Megha Mohan v. V.A. Rakesh

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM & THE HONOURABLE MR. JUSTICE SHAJI P.CHALY THURSDAY, THE 7TH DAY OF APRIL 2016/18TH CHAITHRA, 1938 Mat.Appeal.No. 708 of 2012 () ------------------------------ AGAINST THE ORDER IN OP 725/2012 of FAMILY COURT, IRINJALAKUDA DATED 12-09-2012 APPELLANT/PETITIONER: ----------------------------------- MEGHA MOHAN, AGED 22 YEARS, D/O.THARAYIL MOHANAN, VELOOKKARA VILLAGE & DESOM, MUKUNDAPURAM TALUK. BY ADVS.SMT.SUMATHY DANDAPANI (SR.) SRI.MILLU DANDAPANI RESPONDENT/PETITIONER: -------------------------------------- V.A. RAKESH, AGED 29 YEARS, S/O.VENNARAPARAMBIL APPUKUTTAN, METHALA VILLAGE, AANAPPUZHA DESOM, ANAPUZHA P.O., KODUNGALLUR TALUK-680667. BY ADVS. SRI.S.RAJEEV SRI.K.K.DHEERENDRAKRISHNAN THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 07-04-2016, ALONG WITH MA. 713/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: smv ## **C.K. ABDUL REHIM & SHAJI P. CHALY, JJ.** ----------------------------------------------- **Mat.Appeal Nos.708 & 713 of 2012 ----------------------------------------------Dated this the 7[th] day of April, 2016.** ## **JUDGMENT** ## Shaji P. Chaly, J. The above Mat.Appeals are arising out of a common judgment of the Family Court, Irinjalakuda in O.P.Nos.725/2012 and 50/2012, dated 12.9.2012 respectively. O.P.No.50/2012 filed by the appellant seeking nullity of the marriage under Section 12 and alternatively dissolution of the marriage under Section 13 of the Hindu Marriage Act, was dismissed. O.P.No.725/2012 filed by the respondent seeking restitution of conjugal rights was allowed by the Family Court. The Mat.Appeals are preferred by the appellant, being aggrieved by the judgments passed by the Family Court. Since the Original Petitions disposed through the common judgment which is impugned herein are intrinsically connected, both the appeals were considered together and disposed of through this M.A. Nos.708 & 713 of 2012 2 common judgment. 2. Facts required for the disposal of the appeals as discernible from Mat.Appeal No.713/2012, is recited for appreciation of the appeals. The fate of Mat.Appeal.No. 708/2012 will depend upon the findings and conclusions which we arrive at in Mat.Appeal No.713/2012. 3. Averments in brief are as follows; The appellant was a student of PGDCA, during the academic year 2007-2008. Respondent was also a student there and they became friends. The respondent, by taking advantage of the friendly relationship developed, managed the appellant to undergo solemnization of a marriage with the respondent. That the respondent by taking undue advantage of the friendship developed, conveyed to the appellant about the financial difficulties of his family. Thus appellant became sympathetic towards the respondent and appellant used to pacify the respondent. But later, the appellant realized that the respondent has conveyed the difficulties of his family only with the malafide and cunning intention to secure sympathy of the appellant, and that he had actually no affection towards the appellant. It is also contended M.A. Nos.708 & 713 of 2012 3 that the appellant is financially very high and her father is employed in Gulf in a very lucrative position. The friendship that developed between the appellant and the respondent was picturised by the respondent as a love affair and rumours were spread by him accordingly, to suit his convenience. That apart it is contended that, the appellant is a member of Hindu Ezhava Community and the respondent is a member of Hindu Fishermen community and therefore, any sort of relationship between the appellant and the respondent will not be approved by the family of the appellant. But at that time the respondent has conveyed to the appellant that even though they do not approve the relationship by and between the appellant and the respondent, the respondent will take care of the appellant without any difficulties in life. 4. It is also contended that, during January 2008 the respondent told the appellant that their marriage should be conducted immediately and they will live together as husband and wife. But the appellant has then conveyed to the respondent that the appellant is not mature enough to solemnize a marriage and further that, she does not want to solemnize the M.A. Nos.708 & 713 of 2012 4 marriage without permission, support and blessings of her parents. It is contended that, thereupon the respondent told the appellant that the marriage can be conducted after securing permission from her parents, but till such time, in order to ensure that a marriage takes place, an agreement of marriage will have to be signed by the parties. In such circumstances, on 15.1.2008 appellant as per the directions of the respondent, went to Paravoor and executed an agreement of marriage attested by a Notary Public. Thereafter, it is contended that, both parties went to their respective houses. 5. During March, 2008 the appellant conveyed to the respondent that her father will come to the native place from Gulf. Thereupon respondent insisted that a marriage between the appellant and the respondent should be solemnized before arrival of her father and on his arrival he should witness that they are leading a marital life. On communicating so, due to immature nature of the appellant, without taking into account the pros and cons and also thinking that after marriage the respondent will take her to the marital home, appellant agreed for the same. Accordingly on 21.2.2008 the respondent along M.A. Nos.708 & 713 of 2012 5 with the appellant went to the 'Pavakulam Mahadeva Temple', Ernakulam and the respondent has garlanded the appellant, apart from tying a 'thail' and the respondent has declared that the marriage between them is solemnized. 6. Later on that day, as directed by the respondent the appellant went back to her home. But, when the respondent demanded her to go back, the appellant asked, are they not expected to reside together. Then the respondent told the appellant that it is not the time for them to live together. That apart, it is contended that, the respondent asked the appellant to hand over back the chain which was tied as 'thali' and accordingly she had returned the same. Certain photographs were also taken before removing the chain and the garland. It is also contended that, thereafter she went back to her house, but she has not conveyed anything to her mother. It is also contended that, even though the appellant has told the respondent to take her to his house, since they got married, the respondent told the appellant that she will be taken to his house only after the registration of the marriage and after tiding over the poor financial situation prevailing in his family. Thereafter M.A. Nos.708 & 713 of 2012 6 on 29.2.2008 the respondent telephoned the appellant and requested her to be present in the Kochi Corporation Office in order to register the marriage that has taken place in the temple. It is the contention of the appellant that, the respondent has tutored her with necessary answers, if and when the Registering Authority put any question with respect to the marriage. Accordingly, the marriage was registered before the Marriage Officer of the Cochin Corporation. It is also contended that, when she was present before the Marriage Officer, the 'thali' chain was again put in order to establish that a valid marriage has taken place by and between the parties. After registration of the marriage also, the chain was again removed and kept in the custody of the respondent. It is also contended that, after such incidents the respondent started behaving her in a very cruel manner. The intention of the respondent was to blackmail the appellant. Thereafter enquiries were made by the appellant and it was realized that the family of the respondent is in severe financial difficulties and his family was facing recovery steps against bad debts. That apart it is contended that, the respondent has made several marriage commitments to other M.A. Nos.708 & 713 of 2012 7 persons and ransacked money from them. It is also contended that, the respondent was behaving to the appellant very cruelly after registration of the marriage and he has not even cared to provide a thali chain to her. 7. It is the further contention of the appellant that, under such circumstances, the appellant has revealed everything to her mother and brother and thereupon her father came down from Gulf and hearing all what was happened they were shocked and worried about the incidents. That apart it is contended that the intention of the respondent was only to harass the appellant mentally and to secure money from her. It is also contended that thereafter the father of the appellant has met the father of the respondent. Father of the respondent has conveyed to the father of the appellant that the respondent and himself are not in good terms and that the respondent is not in the habit of going for any job and he is not fit enough to take care of himself. Thereafter when the father of the appellant contacted the respondent, the respondent asked him for amount of dowry he proposes to provide and to transfer the same to his account. In such circumstances, father of the appellant has decided that the M.A. Nos.708 & 713 of 2012 8 appellant will not be sent along with the respondent, in any circumstances. Thereafter respondent has filed W.P.(Crl) No.115/2008 before this court seeking a writ of Habeas Corpus, which was dismissed by this court after ascertaining wishes of the appellant. It is the case of the appellant that, the respondent did not have any love and affection towards the appellant and that the respondent was exhibiting his love and affection only with the malafide intention of securing properties and money of the father of the appellant. That apart it is contended that, actions pursuant to execution of the agreement and the marriage was solemnized due to the immature mind of the appellant at that point of time. In such circumstances, the appellant sought for nullity of the marriage, with an alternative relief for dissolution of marriage that took place by and between the parties and also seeking cancellation of the registration done pursuant to the same. 8.The respondent has filed objections refuting and denying the allegations, statements and claims and demands made by the appellant. That apart it is pleaded by the respondent that the appellant and the respondent were in deep love and affection M.A. Nos.708 & 713 of 2012 9 and it is on the basis of mutual discussions made by the parties, that the agreement of marriage and subsequently the marriage has taken place by and between the parties. The respondent has denied the removal of the 'thali' chain by him after the marriage. It is also contended by the respondent that, after the marriage they have decided to go to the respective houses and to reside separately till such time the marriage conducted by them is known to the parents of the appellant and the respondent. That apart it is contended that, the 'thali' chain was weighing 3 sovereigns and still the same is retained by the appellant. It is also contended that the contra allegations made to the extent that the respondent has removed the chain and kept it with him, is denied. The averments regarding the incidents that took place in the Corporation Office, with respect to wearing of the thali chain again by the respondent, is also denied. It is contended that she herself appeared before the Registering Officer and it was the decision of both of them that their marriage should be registered. It is also contended that the marriage between the appellant and the respondent was consummated also. 9. That apart it is contended that, later the marriage of the M.A. Nos.708 & 713 of 2012 10 appellant and the respondent became known to the parents of the appellant and thereafter the appellant was not sent to the college. That apart it is contended that, when the appellant's family came to know about the marriage, frequent threats were made by them to the respondent as well as to his family members and tried their best to terminate the marriage. Somehow or other, later the family of the appellant and the family of the respondent had discussions about the issue and decided to conduct a ceremony of marriage on 2.4.2008, in accordance with rituals and custom prevailing in the Hindu religion, in one of the temples. Accordingly on 2.4.2008, as decided upon, the respondent and his family members were present in the temple. But the appellant and her family members did not turn up as promised and it was thereupon that the respondent has filed the writ of Habeas Corpus before this court. It is contended by the respondent that the petition filed by the appellant is not sustainable under law and facts and seeks for dismissal of the same. 10. The respondent has filed O.P.No.725/2012 seeking restitution of conjugal rights, contending that on 21.02.2008 the M.A. Nos.708 & 713 of 2012 11 marriage between the appellant and the respondent was solemnized at Pavakulam Mahadeva Temple, Ernakulam as per the rituals and customs prevailing in the Hindu Community and thereafter the marriage was registered on 29.2.2008 in the Cochin Corporation. That apart it is contended that when the family of the appellant came to know about the marriage, they objected the same and the appellant was put under illegal confinement by her relatives, thereby depriving the respondent to live with the appellant. Apart from the same, all other contentions which were raised in the objections filed to the other original petition, are also raised by the respondent. It is contended that there are no reasonable circumstances enabling the appellant to stay away from the respondent and sought restitution of conjugal rights. The appellant has filed objections to the same by contending similar allegations as made in the original petition filed seeking nullity of marriage. 11. The Family Court, after appreciating the rival pleadings and contentions, has framed following two issues for consideration: M.A. Nos.708 & 713 of 2012 12 1. Whether the marriage of the petitioner in O.P.50/2012 is to be annulled on any of the grounds u/s.12 or to be dissolved u/s.13 of the Hindu Marriage Act ? 2. Whether the petitioner in O.P.No.725/2012 is entitled for restitution of conjugal rights ? 12. The appellant was examined as PW1 and respondent was examined as RW1 and four documents were marked on his side as Exts.B1 to B4. Ext.B1 is the agreement of marriage executed by and between the parties and attested by a Notary Public. Ext.B2 is a series of photographs which shows the tying of thali chain by the respondent on the appellant, the sacred steps taken by them, wearing garland by both of them and other ceremonies performed in the temple. Two of the photographs shows entering details by the parties in the Register of the temple. Ext.B3 is the Certificate of Marriage issued from Cochin Corporation and Ext.B4 is the judgment of this court in W.P.(Crl.) No.115 of 2008. 13. The Family Court after appreciating the pleadings, documents and evidence, has arrived at a finding that there is a M.A. Nos.708 & 713 of 2012 13 legal marriage existing between the appellant and the respondent. It was also found by the Family Court that, in Ext.B5 judgment rendered by this Court, it is recorded that the appellant has admitted that there was a marriage between the appellant and the respondent. It was also held that all the evidence unambiguously proved that a marriage between the appellant and the respondent took place. It is further held that, the contentions put forth by the appellant with respect to demand of dowry and that the intention of the respondent was to defraud the appellant were not proved. Therefore, the court found that, consent for the marriage can never be said to have obtained by practicing fraud on the appellant and further that there is no evidence to establish cruelty of any manner and to establish that the respondent had entered upon promises of marriage with other persons. The consent given by the appellant was found to be proper, since she was aged 21 years at that time and since the parties were of marriageable age. Finding so, the petition filed by the appellant seeking nullity and dissolution of marriage was dismissed. On the other hand, the petition filed by the respondent seeking restitution of conjugal M.A. Nos.708 & 713 of 2012 14 rights was allowed in view of the findings rendered in the petition filed by the appellant and based on a further finding that there was no reasonable circumstances for the appellant to live apart. 14. Heard learned Senior Counsel who appeared for the appellant and learned counsel for the respondent. 15. The primary questions need to be considered are whether was there a valid marriage by and between the parties and whether there was any fraud committed by the respondent in the matter of getting consent for the marriage or, in the conduct of the marriage ? We have perused the pleading, gone through the evidence tendered by the parties and the lower court records. The evidence is nothing but oath against oath. On a perusal of the original petition, the marriage that took place in Pavakulam Mahadeva Temple on 21.2.2008 and the registration of the same on 29.2.2008 before the Marriage Officer of the Cochin Corporation, are admitted. The case of the appellant is that, the appellant is compelled, to solemnize the marriage due to fraud practiced by the respondent. The fraud alleged, in our view is that, even though the respondent M.A. Nos.708 & 713 of 2012 15 exhibited love and affection towards the appellant, actually he did not have any such feelings but his intention was malafide to extract money and properties of the father of the appellant, knowing very well that he is a very rich person. That apart, after solemnization of the marriage, the thali chain was removed by the respondent from the appellant and later he demanded an amount of Rs.10,00,000/- towards dowry. According to learned counsel for the appellant, these aspects contribute element of fraud and establish that the respondent did not have any love and affection in order to carry on a matrimonial life by and between them. 16. Learned Senior Counsel appearing for the appellant had argued that there is no valid marriage solemnized, because no requisite rites and ceremonies to constitute a valid marriage was performed at the Temple, as stipulated in the relevant provisions of the Hindu Marriage Act. But going by the deposition of the appellant, who was examined as PW1 it is evident that she had admitted performance of all customary rituals, which will persuade this court to discard such contentions. M.A. Nos.708 & 713 of 2012 16 17. The respondent has refuted all the contentions raised on behalf of the appellant and further contended that, the appellant and the respondent were in deep love and affection and it was out of their mutual understanding that the marriage was conducted. Parties have decided to live apart till such time the marriage was known to the family of the appellant and the respondent. The fraud alleged by the appellant, even though not in specific terms was denied by the respondent. Appellant has not cared to adduce any evidence apart from her interested testimony before the court in tune with averments contained in the original petition. 18. Having appreciated the rival submissions made at the Bar, we are of the considered opinion that the marriage between the appellant and the respondent was conducted on their free will and volition and there are no circumstances made out by the appellant to convincingly establish that marriage has taken place on practicing fraud by the respondent. There are also no circumstances made out before the court below or before this court to enter a prima facie finding even to the effect that any cruelty was inflicted by the respondent towards the appellant. M.A. Nos.708 & 713 of 2012 17 19. Learned Senior Counsel for the appellant contended that, the marriage has not been consummated and that even according to the appellant the parties were staying apart after the alleged marriage conducted in the temple on 21.02.2008. That apart it is contended that the marriage has irretrievably broken down and therefore as held by the Apex Court in its various decisions, the marriage can be dissolved treating the same as irretrievably broken down. Learned Senior Counsel has invited our attention to various judgments of the Apex Court to substantiate the said point. On the other hand, learned counsel for the respondent has contended that the ground of irretrievable break down of marriage is not at all a ground under the Hindu Marriage Act and therefore, no marriage can be dissolved by taking into account the irretrievable break down of marriage. That apart learned counsel for the respondent has also invited our attention to the judgments of the Apex Court in **Vishnu Dutt Sharma v. Manju Sharma** reported in [(2009) 6 SCC 379] and **Neelam Kumar v. Dayarani** reported in [2010 (13) SCC 298: 2010 KHC 4422]. There, the Apex Court considered the question of irretrievable breakdown of marriage M.A. Nos.708 & 713 of 2012 18 and held that the same is not a ground under the Hindu Marriage Act and therefore, dissolution of marriage ordered by the Apex Court taking into account the irretrievable break down of marriage cannot be termed as a precedent binding on the courts to hold so. We find force in the said contention. Moreover in the latter decision supra, it was held by the Apex Court that in order to dissolve a marriage on the ground of irretrievable breakdown of marriage there should be positive conduct on the part of, any of the spouses in order to bring the marriage to an end. 20. Taking into account the evidence let in by the parties and reckoning the other circumstances involved in the case, we have no other option than to arrive at a conclusion similar to the conclusion arrived at by the Family Court. We do not find any reason to interfere with the same since the Family Court has rendered the judgment taking into account the entire facts, law, evidence and circumstances involved in this case. Therefore, there are no illegality, error or impropriety or other legal or factual circumstances persuading us to interfere with the judgment of the Family Court. Accordingly the findings of the M.A. Nos.708 & 713 of 2012 19 Family Court with respect to the petition filed by the appellant seeking nullity and dissolution is sustained. 21. So far as the the findings of the Family Court with respect to the petition filed by the respondent seeking restitution of conjugal rights is concerned, is purely dependent on the findings rendered in the petition filed by the appellant for nullity. Going through the records, we do not find any circumstances warranting interference with respect to findings rendered on that account also. Therefore, we do not think that the appellant has made out any factual or legal circumstances warranting our interference in the same also. Therefore, the said appeal is also liable to be dismissed. 22. It is only proper to mention that, the appellant has filed I.A No.2830/2014 in Mat.Appeal No.708/2012 seeking amendment of the appeal memorandum to incorporate a prayer for dissolution of marriage on the ground of desertion which was dismissed by this court by a separate order. It will not out of context to mention about the attempts made by this court for a settlement of the dispute between the parties, taking note of the conciliatory role in family matters. We noticed that, M.A. Nos.708 & 713 of 2012 20 despite the marriage solemnized as early as on 21.2.2008, the parties never lived together. In the year 2008 itself the appellant expressed her unwillingness to go along with the respondent, when she appeared before this court in the Habeas Corpus writ petition. The appellant is living in Muscat, Sultanate of Oman, along with her parents. She is also employed therein at present. The litigation for nullifying the marriage/dissolution of the marriage started in the year 2012. Therefore, we made an earnest attempt by interacting with the parties for arriving at terms, either for a reunion or for a legal separation on mutual consent. But we failed in our attempts, despite the fact that there was no marital life between the parties, ever established since the last 8 years. There were also attempts made by referring the parties to mediation before the Mediation Centre, which also failed. But, as already observed, the irretrievable break down of the matrimony cannot be taken as a ground to nullify or dissolve the marriage, under the Hindu Marriage Act. 23. Resultantly both the appeals filed by the appellant are hereby dismissed, but in the circumstances of the case without M.A. Nos.708 & 713 of 2012 21 any costs. All pending interlocutory applications in these appeals will stand closed. Sd/- **C.K. ABDUL REHIM JUDGE** Sd/- **SHAJI P. CHALY** //true copy// **JUDGE** P.A. To Judge smv 12.4.2016