Mat.Appeal Nos.69/2014, 70/2014, 122/2014, 135/2014 and 237/2014 (Ambily Merlin Kuruvilla v. Mathews M. George) – High Court of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **&** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH FRIDAY, THE 29[TH] DAY OF OCTOBER 2021 / 7TH KARTHIKA, 1943 MAT.APPEAL NO. 69 OF 2014 AGAINST THE JUDGMENT IN OP 592/2011 OF FAMILY COURT, KOTTAYAM AT ETTUMANOOR** ## **APPELLANT/PETITIONER:** AMBILY MERLIN KURUVILLA D/O.T.C.KURUVILLA, THURUTHEL HOUSE, PEROOR P.O., ETTUMANOOR VILLAGE, KOTTAYAM TALUK, NOW RESIDING AT HOUSE NO.XI/584, KARUTHEDAM BUIDING, MANIPUZHA, KOTTAYAM BY ADVS. SRI.PHILIP T.VARGHESE SMT.ACHU SUBHA ABRAHAM SMT.K.R.MONISHA SRI.C.J.SHAJI SRI.THOMAS T.VARGHESE ## **RESPONDENTS/RESPONDENTS:** 1 MATHEWS M.GEORGE S/O.M.M.GEORGE, RESIDING AT MALIKA KAROTTU, PATHAMUTTOM P.O., PANACHIKKAD VILLAGE, KOTTAYAM TALUK, - 686 532. 2 M.M.GEORGE AGED 73 YEARS S/O.MATHAI, RESIDING AT MALIKA KAROTTU, PATHAMUTTOM P.O., PANACHIKKAD VILLAGE, KOTTAYAM TALUK - 686 532. Mat.Appeal Nos.69/2014 & conn.cases -: 2 :- 3 JOLLY GEORGE AGED 67 YEARS W/O.M.M.GEORGE, RESIDING AT MALIKA KAROTTU, PATHAMUTTOM P.O., PANACHIKKAD VILLAGE, KOTTAYAM TALUK - 686 532. BY ADVS. SMT.ASHA ELIZABETH MATHEW SRI.RINNY STEPHEN CHAMAPARAMPIL THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 20.09.2021, ALONG WITH Mat.Appeal.70/2014 AND CONNECTED CASES, THE COURT ON 29.10.2021 DELIVERED THE FOLLOWING: Mat.Appeal Nos.69/2014 & conn.cases -: 3 :- **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **&** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH FRIDAY, THE 29[TH] DAY OF OCTOBER 2021 / 7TH KARTHIKA, 1943 MAT.APPEAL NO. 70 OF 2014 AGAINST THE JUDGMENT IN OP 343/2011 OF FAMILY COURT,** **KOTTAYAM AT ETTUMANOOR** ## **APPELLANT/RESPONDENT:** AMBILY MERLIN KURUVILLA D/O.T.C.KURUVILLA, THURUTHEL HOUSE, PEROOR P.O., ETTUMANOOR VILLAGE, KOTTAYAM TALUK, NOW RESIDING AT HOUSE NO.XI/584, KARUTHEDAM BUILDING, MANIPUZHA, KOTTAYAM. BY ADVS.SRI.PHILIP T.VARGHESE SMT.ACHU SUBHA ABRAHAM SMT.K.R.MONISHA SRI.C.J.SHAJI SRI.THOMAS T.VARGHESE ## **RESPONDENT/PETITIONER:** MATHEWS M. GEORGE S/O.M.M.GEORGE, RESIDINGAT MALIKA KAROTTU, PATHAMUTTOM P.O., PANACHIKKAD VILLAGE, KOTTAYAM TALUK. BY ADV SMT.ASHA ELIZABETH MATHEW THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 20.09.2021, ALONG WITH Mat.Appeal.69/2014 AND CONNECTED CASES, THE COURT ON 29.10.2021 DELIVERED THE FOLLOWING: Mat.Appeal Nos.69/2014 & conn.cases -: 4 :- **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **&** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH FRIDAY, THE 29[TH] DAY OF OCTOBER 2021 / 7TH KARTHIKA, 1943 MAT.APPEAL NO. 122 OF 2014 AGAINST THE JUDGMENT IN OP 343/2011 OF FAMILY COURT,** **KOTTAYAM AT ETTUMANOOR** ## **APPELLANT/PETITIONER:** MATHEWS M GEORGE, AGED 39 YEARS, S/O.M.M.GEORGE, MALIKA KAROTTU HOUSE, PATHAMUTTOM P.O., PANACHIKKAD VILLAGE, KOTTAYAM TALUK. BY ADVS.SRI.RINNY STEPHEN CHAMAPARAMPIL SMT.ASHA ELIZABETH MATHEW ## **RESPONDENT/PETITIONER:** AMBILY MERLIN KURUVILA AGED 32 YEARS D/O.T.C.KURUVILLA, THURUTHEL HOUSE, PEROOR P.O.ETTUMANOOR VILLAGE, KOTTAYAM TALUK NOW RESIDING ATHOUSE NO.XI/584, KARUTHEDAM BUILDING (KARAKOTT)MANIPUZHA, NATTAKOM P.O., KOTTAYAM. BY ADVS.SMT.ACHU SUBHA ABRAHAM SRI.PHILIP T.VARGHESE, SRI.THOMAS T.VARGHESE SRI.C.J.SHAJI, SMT.SUNANDA SUKUMARAN SMT.V.B.VRINDA, SMT.K.R.MONISHA SMT.VIDHYA KISHAN, SRI.DENNY VARGHESE THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 20.09.2021, ALONG WITH Mat.Appeal.69/2014 AND CONNECTED CASES, THE COURT ON 29.10.2021 DELIVERED THE FOLLOWING: Mat.Appeal Nos.69/2014 & conn.cases -: 5 :- **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **&** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH FRIDAY, THE 29[TH] DAY OF OCTOBER 2021 / 7TH KARTHIKA, 1943 MAT.APPEAL NO. 135 OF 2014 AGAINST THE JUDGMENT IN OP 342/2011 OF FAMILY COURT,** **KOTTAYAM AT ETTUMANOOR** ## **APPELLANT/PETITIONER:** MATHEWS M GEORGE, AGED 39 YEARS, S/O.M.M.GEORGE,MALIKA KAROTTU HOUSE,PATHAMUTTOM.P.O,PANACHIKKAD VILLAGE,KOTTAYAM TALUK. BY ADVS.SRI.RINNY STEPHEN CHAMAPARAMPIL SMT.ASHA ELIZABETH MATHEW ## **RESPONDENT/PETITIONER:** AMBILY MERLIN KURUVILA AGED 32 YEARS D/O.T.C.KURUVILLA,THURUTHEL HOUSE,PEROOR.P.O,ETTUMANOOR VILLAGE,KOTTAYAM TALUK,NOW RESIDING AT HOUSE NO.XI/584,KARUTHEDAM BUILDING,MANIPUZHA,KOTTAYAM. BY ADVS.SMT.ACHU SUBHA ABRAHAM SMT.K.R.MONISHA, SRI.PHILIP T.VARGHESE, SRI.C.J.SHAJI, SRI.THOMAS T.VARGHESE THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 20.09.2021, ALONG WITH Mat.Appeal.69/2014 AND CONNECTED CASES, THE COURT ON 29.10.2021 DELIVERED THE FOLLOWING: Mat.Appeal Nos.69/2014 & conn.cases -: 6 :- ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **&** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH FRIDAY, THE 29[TH] DAY OF OCTOBER 2021 / 7TH KARTHIKA, 1943 MAT.APPEAL NO. 237 OF 2014 AGAINST THE JUDGMENT IN OP 592/2011 OF FAMILY COURT,** ## **KOTTAYAM AT ETTUMANOOR** ## **APPELLANTS/PETITIONERS:** 1 MATHEWS M GEORGE S/O.M.M.GEORGE,MALIKA KAROTTU HOUSE,PATHAMUTTOM.P.O,PANACHIKKAD VILLAGE,KOTTAYAM TALUK-686532. 2 M.M.GEORGE AGED 73 YEARS S/O.MATHAI,MALIKA KAROTTU HOUSE,PATHAMUTTOM.P.O,PANACHIKKAD VILLAGE,KOTTAYAM TALUK-686532. 3 JOLLY GEROGE AGED 67 YEARS W/O.M.M.GEORGE,MALIKA KAROTTU HOUSE,PATHAMUTTOM.P.O,PANACHIKKAD VILLAGE,KOTTAYAM TALUK-686532. BY ADVS. SRI.RINNY STEPHEN CHAMAPARAMPIL SMT.ASHA ELIZABETH MATHEW Mat.Appeal Nos.69/2014 & conn.cases -: 7 :- ## **RESPONDENT/RESPONDENT:** AMBILY MERLIN KURUVILA AGED 32 YEARS D/O.T.C.KURUVILLA,THURUTHEL HOUSE,PEROOR.P.O,ETTUMANOOR VILLAGE,KOTTAYAM TALUK,NOW RESIDING AT HOUSE NO.XI/584,KARUTHEDAM BUILDING(KARAKOTT),MANIPUZHA,NATTAKOM.P.O, KOTTAYAM-686013. BY ADVS. SMT.ACHU SUBHA ABRAHAM, SMT.SUNANDA SUKUMARAN SMT.K.R.MONISHA SRI.PHILIP T.VARGHESE SRI.C.J.SHAJI SRI.THOMAS T.VARGHESE THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 20.09.2021, ALONG WITH Mat.Appeal.69/2014 AND CONNECTED CASES, THE COURT ON 29.10.2021 DELIVERED THE FOLLOWING: Mat.Appeal Nos.69/2014 & conn.cases -: 8 :- J U D G M E N T (Mat.Appeal Nos.69, 70, 122, 135 & 237/2014) Dated this the 29[th ] day of October, 2021 ## Kauser Edappagath, J. The above appeals have been preferred against the common judgment dated 22[nd] November, 2013 passed by the Family Court, Kottayam at Ettumanoor (for short, the Court below) in three original petitions: OP Nos. 342/2011, 343/2011 and 592/2011. 2. The parties are referred as the husband and the wife for brevity. 3. The marriage between the husband and the wife was solemnized on 12/9/2005 at St.Mary's Dayara Chappel, Vallikkattu Dayara as per the Christian religious rites and customs. A boy child was born in the wedlock on 19/09/2006. According to the husband, immediately after the commencement of the marital relationship, serious matrimonial problems developed between them which despite his earnest and sincere efforts kept growing Mat.Appeal Nos.69/2014 & conn.cases -: 9 :- and intensified. It was alleged that the wife was extremely bad tempered and belligerent in nature, constantly using filthy language and arguing with him and his parents. It was alleged that the wife was behaving in an indifferent and abnormal way. She was in the habit of keeping rosary and prayer books beneath her bed to prevent attack of evil powers. She often claimed that she could see the departed souls of her dear and near ones, especially her deceased father. According to the husband, the wife showed complete disinterest in all household functions and failed to discharge her obligation as a wife. Not only was she distancing from him, but there were regular instances of outrage and resentment, causing serious mental agony and pain to him, it was alleged. The husband further alleged that the conduct and behaviour of the wife was unbecoming of a wife and she never recognised him as a husband and used to pick up quarrel for absolutely no reason. He highlighted few instances where she became violent and assaulted him even in front of others. It was alleged that she often threatened him with suicide and she has even made an attempt to do so by hitting her head against the wall. It was alleged that she often attributed immorality against Mat.Appeal Nos.69/2014 & conn.cases -: 10 :- him. On 16/7/2009, the wife left his house along with the child and did not come back. According to the husband, his life with his wife has become miserable and the various acts of cruelty exercised by her on him has caused a reasonable apprehension in his mind that it would be harmful for him to live with her. In these circumstances, the husband preferred OP No.342/2011 for dissolution of marriage on the ground of cruelty. 4. Along with the original petition for dissolution of marriage, the husband has also preferred another original petition as OP No.343/2011 for guardianship and custody of the minor child. It was alleged that he is the father and natural guardian of the child and the wife who is suffering from mental disorder is unfit to be appointed as guardian of the minor. She is incapable of looking after the child, it was alleged. According to him, for the welfare of the child, he has to be appointed as guardian of the child and permanent custody has to be given to him. 5. The wife entered appearance in both the original petitions mentioned above and filed detailed counter statements. She specifically denied various instances of cruelty allegedly Mat.Appeal Nos.69/2014 & conn.cases -: 11 :- exercised by her on the husband and pleaded in the original petition. According to her, it was the husband who often quarreled with her and failed to discharge the marital obligations. It was contended that she was a loving and caring wife and was discharging her marital obligations perfectly. It was further contended that in July, 2009, the husband and his mother manhandled her and she was forced to leave the house along with her child. Thereafter, a mediation was taken place at the instance of Father K.K.Thomas, Vicar of Sleeba Church, Malikakkadavu and on assurance by the husband and his parents that they will not create any further problems, she went back to the house of the husband in January, 2010. But, again his mother started to create problems and they shifted to a rented house at Manipuzha in February, 2010. Ultimately in September, 2010, the husband again started quarreling with her asking her to return to his parental house and in October, 2010, he abandoned her and her child and she returned to her parental house. In so far as the guardianship and custody of the child are concerned, she contended that the husband is unfit to be appointed as the guardian of the child. It was contended that in the best interest Mat.Appeal Nos.69/2014 & conn.cases -: 12 :- of the child, the custody has to be retained by her. She also contended that the husband never showed any love or affection towards the child. 6. The wife further contended that as agreed at the time of engagement, a sum of `10,50,000/- was handed over to the husband and his parents at their house at Pathamuttam as patrimony. She also contended that she was having 129 sovereigns of gold ornaments at the time of her marriage and she entrusted 114½ sovereigns of gold ornaments out of it with the husband and his parents for safe custody. It was contended that she entrusted FD receipts for a total sum of `10,40,000/- with the husband and his parents and on maturity, the amount covered by it were withdrawn by them. It was further contended that the husband and his parents were entrusted with a sum of `1,50,000/- on 28/2/2010 and another sum of `2,50,000/- on 16/5/2010. It was also contended that she had entrusted `70,000/- with her husband and his parents during the period from December, 2005 to July, 2009 from her salary. According to the wife, thus, the husband and his parents are holding 114½ sovereigns of gold ornaments and a total sum of `25,60,000/- as Mat.Appeal Nos.69/2014 & conn.cases -: 13 :- trustees and they are liable to return the same. The wife preferred OP No.592/2011 claiming return of 114½ sovereigns of gold ornaments and a total sum of `25,60,000/- against the husband and his parents. 7. The husband and his parents who are the respondents in OP No.592/2011 denied the allegation that they were entrusted with gold ornaments and cash. However, they admitted that `10,00,000/- was given to the wife by her parents as patrimony and out of it, `3,00,000/- was spent for the marriage and the balance `7,00,000/- was deposited in the bank in the name of both spouses equally. 8. The Court below tried all the three original petitions together. On the side of the husband, he himself gave evidence as PW1. His father was examined as PW2. On the side of the wife, she herself gave evidence as RW1. An independent witness was examined as RW2. The maternal uncle of the wife was examined as RW3. The brother of the wife was examined as RW4. After trial, the Court below found that the husband has failed to make out a case for dissolution of marriage. Accordingly, OP No.342/2011 was dismissed. OP No.343/2011 was also dismissed Mat.Appeal Nos.69/2014 & conn.cases -: 14 :- subject to the visitation right of the husband on every weekends and during holidays. OP No.592/2011 was allowed in part and the husband and his parents were directed to return `10,00,000/- to the wife with interest being patrimony amount received by them. The claim for return of gold ornaments and the remaining amount allegedly entrusted with the husband and his parents were disallowed. Aggrieved by the dismissal of OP Nos.342/2011 and 343/2011, the husband preferred Mat.Appeal Nos.135/2014 and 122/2014, respectively. Aggrieved by the judgment in OP No.592/2011, he preferred Mat.Appeal No.237/2014. Aggrieved by the rejection of the claim for return of gold ornaments and cash, the wife preferred Mat.Appeal No.69/2014. She has also preferred Mat.Appeal No.70/2014 against the visitation right granted to the husband in the judgment in OP No.343/2011. 9. Since all the five appeals are interconnected, we dispose of the same by this common judgment. ## **Dissolution of marriage** 10. The dissolution of marriage was sought on the ground of cruelty. The Court below on appreciation of evidence found that the husband could not prove the mental and physical Mat.Appeal Nos.69/2014 & conn.cases -: 15 :- cruelties alleged against the wife so as to claim a decree of divorce on the ground of matrimonial cruelty. The Court below further found that there is evidence on record to show that after the wife left the matrimonial home on 16/7/2009, a mediation was taken place and the wife returned to the husband in January, 2010 and they resumed cohabitation and, hence, the cruelty, if any, meted out by the husband at the hands of the wife stood condoned. It was held that inasmuch as the husband did not have a case that the wife had caused physical or mental torture after the resumption of cohabitation, the divorce on the ground of cruelty cannot be granted. It was also found that the husband failed to substantiate the various allegations of cruelty. Accordingly, the original petition for dissolution of marriage was dismissed. 11. Assailing the above findings, the learned counsel for the husband vehemently argued that Court below was unreasonable and unrealistic in the appreciation of evidence. The learned counsel submitted that the evidence on record were sufficient to prove cruelty alleged so as to grant a decree for dissolution of marriage u/s 10 (1)(x) of the Indian Divorce Act, Mat.Appeal Nos.69/2014 & conn.cases -: 16 :- 1869. 12. No doubt, the burden to prove the accusation of cruelty is on the part of the person alleging it and, in the present case, it is upon the husband. The evidence consists of the oral testimony of the husband and his father. Normally, the matrimonial cruelty – be it physical or mental – takes place within the four walls of the matrimonial home and, hence, independent witnesses may not be available. Thus, the Court can act upon sole testimony of the spouse if it is found convincing and reliable. The Apex Court in _**Dr.N.G.Dastane v. Mrs.S.Dastane**_ (AIR 1975 SC 1534) has held that the standard of proof in matrimonial cases would be the same as in civil cases i.e., the Court has to decide the cases based on preponderance of probabilities. Therefore, it is the duty for the Court to see what are the probabilities in a case and legal cruelty has to be found out, not merely as a matter of fact but as the effect of the mind of the complainant spouse because of the acts or omission of the other. 13. A perusal of the evidence of the husband would show that the various acts of cruelty as well as harassment, meted out by him at the hands of the wife, have been spoken to in detail by Mat.Appeal Nos.69/2014 & conn.cases -: 17 :- him. It has come out in evidence that the wife has caused innumerable mental stress and pain by constantly sharing abusive words and filthy language towards him and also by threatening to commit suicide on many occasions. It has further come out in evidence that on two occasions, the wife physically assaulted the husband and on another occasion, she slapped on his face in the presence of his brothers and sisters. It has also come out in evidence that the wife was behaving very strangely and she used to claim that she could see the departed souls of her dear and near ones. She was in the habit of keeping rosary and prayer books beneath her bed claiming that it was to prevent the attack of evil powers. He specifically deposed that the wife used to pick up quarrel with him on silly and unnecessary issues. The husband is a journalist and the wife is a teacher. Both of them are employed. The husband in evidence stated that she often insisted him to take leave and to remain at home to keep company to the child as she had no faith in his parents. He further stated that she even did not permit him to sleep properly on almost all days. It has also come out in evidence that the wife had neglected his parents and used to pick up quarrel with Mat.Appeal Nos.69/2014 & conn.cases -: 18 :- them unnecessarily. There was even an instance where the mother of the husband developed chest pain following a quarrel by the wife and was hospitalised and took prolonged treatment for her heart. Regular instances of outrage and resentment on the part of the wife had been spoken to by the husband. Constant picking up quarrels with his mother has also been spoken by him. He asserted that the apathy and indifferent conduct of the wife made him completely distressed. He specifically deposed that right from the first day of marriage, there has been a sustained cause of strange, indifferent and abnormal behaviour, humiliating treatment and reprehensible conduct on the part of the wife and on account of this, he was convinced that it was impossible for him to continue with the martial relationship. 14. Cruelty as a matrimonial offence is the conduct in relation to or in respect of matrimonial duties and obligations. The cruelty may be mental or physical. If it is physical, it is a question of fact and degree. If it is mental, the enquiry must be as to the nature of cruel treatment and impact of such treatment in the mind of the spouse. What acts would constitute mental cruelty depend upon the circumstances of each case and upon Mat.Appeal Nos.69/2014 & conn.cases ## -: 19 :- the type of life the parties are accustomed to or their economic, educational and social status and conditions. Cruelty which constitutes a ground for divorce, whether it be mental or physical in nature, is a question of fact. Behaviour which may constitute cruelty in one case may not be cruelty in another. One person may be able to tolerate conduct on the part of his/her spouse which would be intolerable to another. To constitute cruelty, the conduct complained of need not necessarily be so grave and severe so as to make the cohabitation virtually unendurable. It is sufficient if the conduct and behaviour of one spouse towards the other is of such a nature that it causes reasonable apprehension in the mind of the latter that it is not safe for him/her to continue the marital tie. The Apex Court in _**Samar Ghosh v. Jaya Ghosh**_ [(2007) 4 SCC 511] has held that feeling of deep anguish, disappointment, frustration and embarrassment in one spouse caused by the sustained cause of abusive and humiliating conduct of other may lead to mental cruelty. There is nothing to disbelieve the evidence given by the husband that throughout the period they lived together, the wife has perpetrated various acts, ranging from several mental agony by behaving in an Mat.Appeal Nos.69/2014 & conn.cases -: 20 :- immature, irrational and bizarre manner constantly picking up quarrel with him and his parents, threatening to commit suicide, physically assaulting him, showing abnormal behaviour, abdicating all shared household duties etc,. making his life a living hell. The evidence given by the husband gets corroboration from the evidence of his father as well. From the kind of attitude, conduct and treatment discussed above, it can readily be inferred that the husband has every reason to apprehend that it is not safe for him to continue the marital relationship with the wife. 15. Now, we will come to the finding of the Court below regarding condonation of cruelty. The Court below found that even assuming that the allegations of cruelty stood proved, in the facts of the present case, there was clear condonation on the part of the husband inasmuch as they resumed cohabitation in January 2010 and the husband did not have a case that wife had exercised cruelty after the said resumption. It is true that there is evidence on record to show that the husband has taken a building on lease belonging to RW2 in January, 2010. However, the husband disputes that he resided there permanently along with the wife. According to him, the wife along with the child were Mat.Appeal Nos.69/2014 & conn.cases -: 21 :- residing there and he used to occasionally visit there to see the child. 16. Condonation, in a sense, is reconciliation viz., the intention to remit the wrong and restore the offending spouse to the original status which in every case deserves to be gathered from the attending circumstances. Ordinarily, as a general rule, condonation of matrimonial offence deprives the condoning spouse of the right of seeking relief on the offending conduct. However, condonation cannot be taken to be an absolute and unconditional forgiveness. In the case the matrimonial offence is repeated even after an act of condonation on the part of the spouse, it gets revived on the commission of subsequent act resulting in matrimonial disharmony. 17. The Apex Court has very succinctly and elaborately summarised the law regarding condonation in _**Dr. N.G. Dastane**_ ## (supra) and has observed thus: _“Condonation means forgiveness of the matrimonial offence and the restoration of offending spouse to the same position as he or she occupied before the offence was committed. To constitute condonation there must be, therefore, two things: forgiveness and restoration. But condonation is always subject to the implied_ Mat.Appeal Nos.69/2014 & conn.cases ## -: 22 :- _condition that the offending spouse will not commit a fresh matrimonial offence, either of the same variety as the one condoned or of any other variety. No matrimonial offence is erased by condonation. It is obscured but not obliterated. 'Since the condition of forgiveness is that no further matrimonial offence shall occur, it is not necessary that the fresh offence should be ejusdem generis with the original offence. Condoned cruelty can, therefore be revived, say by desertion or adultery. 'Condonation' under S.23(1)(b), therefore, means conditional forgiveness, the implied condition being that no further matrimonial offence shall be committed.”_ The Division Bench of this Court in _**Chathu v. Jayasree**_ (1990 (1) KLT 604) has held that the condonation is conditional forgiveness and there cannot be condonation if offending spouse continues in matrimonial offence. It was observed thus: _“Condonation of matrimonial transgression involves conditional forgiveness of such transgression as is known to or believed by the offended spouse, so as to restore the status quo ante as between the spouses. To constitute condonation there must be two things: Forgiveness and restoration. The real import of condonation is conditional waiver of the right of the injured spouse to take out proceedings. The condition is revival of the normal married life. There cannot be condonation if the offending spouse continues to indulge in the matrimonial offence. Forgiveness is meaningless unless there is contrition in the person who_ Mat.Appeal Nos.69/2014 & conn.cases **==> picture [66 x 10] intentionally omitted <==** _seeks or pleads for forgiveness. Condonation rests on some assurance to the offended spouse of retracement of the offending spouse from the wrong path hitherto followed.”_ Recently, the Division Bench of this Court in _**Santhosh Kumar v. Jayasree Damodaran**_ (2020 (2) KLT 111) has held that an act of cruelty once condoned could certainly revive and give rise to a cause of action for dissolution of marriage, when the offending spouse exploits and takes unfair advantage of the generosity or the benevolence shown by the wronged spouse and takes to matrimonial misdeeds over again. 18. What we can gather from the above precedents is that condonation implies knowledge to the husband of being wronged by wife, conscious election by him not to exercise the legal right flowing therefrom, to forgive the wife conditionally and the same resulting in the resumption of normal relationship between the couple. Thus, it is resumption of normal marital ties with mutual understanding which assumes significance. As has been held in _**Dr. N.G. Dastane**_ (supra), to constitute condonation, there must be two things: forgiveness and restoration. If for constituting condonation, there must be forgiveness and restoration, it is Mat.Appeal Nos.69/2014 & conn.cases -: 24 :- obvious that bilateral acts of both parties will be required to be taken into account while considering the aspect of condonation. Forgiveness and restoration cannot be unilateral and for it to be effective and fruitful, it has to be bilateral. 19. While the husband contends that there was resumption of cohabitation in January, 2010 till October, 2010, the wife denies the same. The question is not whether the husband and wife started to reside together since January, 2010. The question is whether there was resumption of conjugal relationship. There is absolutely no material on record to indicate the resumption of conjugal life between the husband and the wife even between the period from January, 2010 to October, 2010. The wife does not have a case that there was a normal conjugal life in the said period. The wife also admits that in October, 2010, the husband left her and the child and they are residing separately since then. The evidence on record would show that after the alleged resumption of conjugal relationship, their relationship remained even bitter and strained. In short, there is nothing on record to show that the matrimonial life was restored. Thus, we have no hesitation to conclude that neither the pleading Mat.Appeal Nos.69/2014 & conn.cases -: 25 :- nor the evidence indicate any bilateral act or conduct so as to record a finding that there was forgiveness and restoration between the parties amounting to condonation of the cruelty on the part of the husband. Therefore, the conclusion of the Court below on this ground is not legally sustainable. 20. On an overall appreciation of the pleading and evidence, we find that the husband and the wife were at loggerheads right from the inception of their marriage. The marriage is virtually shattered and has become a dead wood. The allegations and counter allegations levelled against each other establish that there is no further chance of rapprochement. The husband has pleaded and proved specific instances of cruelty meted out on him by the wife which have been discussed in the preceding paragraphs. Admittedly, they are residing separately since October, 2010. The Apex Court in _**Samar Ghosh**_ (supra) has held that insistence by one spouse to preserve the dead marriage could be treated as an act of cruelty. Hence, we hold that the Court below went wrong in dismissing the original petition for dissolution of marriage and the husband has made out a case for granting a decree for dissolution of marriage on the Mat.Appeal Nos.69/2014 & conn.cases -: 26 :- ground of cruelty u/s 10(1)(x) of the Indian Divorce Act, 1869. ## **Guardianship and custody of the child** . 21. The date of birth of the child is 19/9/2006. Now the child has attained 15 years. Admittedly, the child has been in the custody and care of the mother since its birth. After the last separation of the husband and wife in October, 2010, the child is with the mother. It was alleged in the original petition for guardianship by the husband that he being the father is the natural guardian of the child and that the mother was not taking proper care of the child and hence he has to be appointed as the guardian. It was also alleged that the wife is suffering from behavioural disorder and that she has no sufficient means to maintain the child or give proper education. Per contra, the wife contended that the child was well taken care of by her and the welfare of the child was safe in her hands. The Court below after evaluation of the evidence dismissed the original petition filed by the husband allowing visitation right to him on every weekend from 5 p.m. Friday to 5 p.m. Sunday and also half the period of Onam, Christmas and summer vacation. 22. It is settled that the welfare of the child is of Mat.Appeal Nos.69/2014 & conn.cases -: 27 :- paramount consideration in matters relating to the guardianship and custody of the child. Admittedly the child is with the mother since its birth. There is nothing on record to suggest that the child is in any way neglected or not taken care of by the mother. The evidence on record would also show that the child has been given proper care and education by the mother. The wife is working as a college lecturer. Her working hours are only up to 1.30 p.m. Thus, she has sufficient time and means to maintain and take care of the child. On the other hand, the husband is a journalist working in Mangalam Daily. His mother is admittedly a heart patient. The husband is having night duty as well. The Court below found that considering the welfare of the child, the mother has to be appointed as the guardian. We see no reason to interfere with the said finding. The Court below has also granted sufficient visitation right to the father. 23. The learned counsel for the wife submitted that the child is studying in X[th] Standard and is having tuition on Friday till 5.00 p.m. The counsel further submitted that the child is having tuition class on Saturday as well. In these circumstances, the counsel prayed that the weekend custody may be modified from Mat.Appeal Nos.69/2014 & conn.cases -: 28 :- 6.00 p.m. Saturday to 6.00 p.m. Sunday till the child completes X[th ] standard. We find the said submission to be very reasonable. The visitation right granted to the husband in the impugned judgment can be modified accordingly. ## **Recovery of gold ornaments and cash** 24. The wife has sought recovery of 114½ sovereigns of gold ornaments and a total sum of `25,60,000/- from the husband and his parents. It was alleged that the wife was having 129 sovereigns of gold ornaments and out of it, 114½ sovereigns were entrusted to the husband and his parents for safe custody on the date of marriage itself. According to the wife, the husband and parents being trustees of the gold ornaments are bound to return the same. The Court below on appreciation of evidence found that the wife has failed to prove the entrustment of gold ornaments and accordingly the claim was rejected. 25. The burden is entirely upon the wife to plead and prove the ownership, entrustment and misappropriation of gold ornaments. The only pleading in the original petition is that the wife was wearing 129 sovereigns of gold ornaments at the time of marriage and out of which, 114½ sovereigns of gold ornaments Mat.Appeal Nos.69/2014 & conn.cases -: 29 :- were entrusted with the husband and his parents for safe custody. It is further stated that those gold ornaments include the gold ornaments she was already having prior to the marriage and the balance was purchased at the time of marriage. In evidence, the wife admitted that there were documents to show the purchase of the gold ornaments, but she did not keep it. The learned counsel for the wife submitted that even though the bill could not be produced, Ext.B2 series photographs taken at the time of marriage would show that she was wearing gold ornaments. It is true that even the husband has admitted that she was wearing some gold ornaments at the time of marriage. Mere production of the photographs would not prove that the wife was having 114½ sovereigns of gold ornaments at the time of marriage. In so far as the entrustment is concerned, the date has not been stated in the pleadings. In evidence, the wife deposed that the entrustment was on the evening of the marriage. Though in the pleadings it was stated that entrustment was to the husband and his parents, in evidence the wife stated that the entrustment was to the mother of the husband. 26. According to the husband, the gold ornaments were Mat.Appeal Nos.69/2014 & conn.cases -: 30 :- kept by the wife in the bank locker of her brother who was examined as RW4. It has come out in evidence that a bank locker was opened at SBT, Chingavanam in the joint name of the husband and wife. The wife has admitted in the evidence that the said locker was opened at her instance for keeping her gold ornaments. But to a specific question, she gave an evasive reply that she did not know whether her gold ornaments were kept in that locker or not. Even though the husband has asserted that most of the gold ornaments except used for daily wear were kept by the wife in the locker of her brother, nothing has been stated about it when the brother was examined as RW4. As stated already, the case of the wife is that 114½ sovereigns of gold entrusted with the mother of the husband on the evening of marriage were not returned to her though she made request to return the same. But she has admitted that when she returned to her parental house for delivery, she was wearing some gold ornaments. She has also admitted that when she attended the marriage of the daughter of her mother-in-law's sister, she was given ornaments by the mother, but after the function, they were returned. It is against her version that the gold ornaments after Mat.Appeal Nos.69/2014 & conn.cases -: 31 :- entrustment were never returned. Considering the evidence on record, the Court below found that the wife has failed to prove the entrustment of gold ornaments with the husband and his parents. On re appreciation of evidence, we find no reason to interfere with the said findings. 27. The wife has sought for the recovery of a total sum of `25,60,000/- under four heads. Firstly, she alleged that on 22/8/2005, `10,50,000/- was handed over to the husband and his parents as patrimony. Secondly, she alleged that the husband and his parents were entrusted with FD receipt for `10,40,000/and on maturity, the amount was withdrawn by them. Thirdly, she alleged that on 28/2/2010, the husband and his parents were entrusted with `1,50,000/- and on 16/5/2010, they were entrusted with `2,50,000/-. Fourthly, she alleged that she entrusted `70,000/- with the husband and his parents during the period from December, 2005 to July, 2009 from her salary. On appreciation of evidence, the Court below found that the husband has admitted receipt of `10,00,000/- as patrimony and accordingly the said claim alone was allowed. Rest of the money claims were rejected. Mat.Appeal Nos.69/2014 & conn.cases -: 32 :- 28. According to the wife, prior to the marriage, `10,50,000/- was given as patrimony and another sum of `10,40,000/- covered by the Fixed Deposit was given after the marriage. The pleading is that at the time of engagement, there was an understanding that the wife would be given a sum of `10,50,000/- as patrimony. There is no case for the wife that there was an understanding to give `10,40,000/- after the marriage. There is no explanation for what purpose or under what understanding the said amount was given. The evidence given by RW3 and RW4, the maternal uncle and brother of the wife, that there was agreement at the time of engagement that the wife would be given patrimony amount of not less than `20,00,000/- is against the pleadings and hence cannot be relied on. Though the wife has produced documents to show that FD account was closed and amount was withdrawn, there is nothing on record to show that the said amount was entrusted to the husband or his parents. In so far as the alleged entrustment of `1,50,000/- on 28/2/2010, `2,50,000/- on 16/5/2010 and `70,000/- during the period from December 2005 to July, 2009 are concerned, there is no sufficient evidence. It is pertinent to note that the definite Mat.Appeal Nos.69/2014 & conn.cases -: 33 :- case of the wife is that the marital relationship between her and the husband was not at all cordial and the husband quarreled with her throughout. It is difficult to believe that during the period when the marital relationship was so strained, the wife would give this much amount to the husband or his parents. Considering the entire evidence on record, we see no reason to interfere with the findings of the Court below that except `10,00,000/- given as patrimony, the wife failed to prove the entrustment of the rest of the amounts. Since the husband and his parents have admitted the receipt of `10,00,000/-, they are bound to return it. The Court below rightly granted a decree to return `10,00,000/-. In the light of the above findings, we dismiss Mat.Appeal Nos. 69/2014, 237/2014 and 122/2014 and allow Mat.Appeal No.135/2014. The impugned judgment in OP No. 342/2011 is set aside. OP No.342/2011 is allowed. The marriage between the husband and wife solemnized on 12/9/2005 at St.Mary's Dayara Chappel, Vallikkattu Dayara is hereby dissolved. Mat.Appeal No.70/2014 is allowed in part and the weekend custody of the child granted to the husband is modified from 6.00 p.m Saturday Mat.Appeal Nos.69/2014 & conn.cases -: 34 :- to 6.00 p.m. Sunday till the child completes X[th] Standard. The parties are directed to bear their respective costs in all the appeals. **Sd/A.MUHAMED MUSTAQUE JUDGE Sd/DR. KAUSER EDAPPAGATH JUDGE** ## **Rp** The 3[rd] line of Paragraph No.8 at page No.13, 4[th] line of Paragraph No.12 at page No.16 and line No.33 in Paragraph No.14 at page No.20 of the common judgment dated 29/10/2021 in Mat.Appeal Nos.69/2014, 70/2014, 122/2014, 135/2014 and 237/2014 stand corrected by substituting the word 'father' with the word 'mother' vide order dated 8/7/2022 in I.A.No.1/2021 in Mat.Appeal No.135/2014. Sd/- **Deputy Registrar**