Radhamani W/o Late Gopalakrishna Pillai v. Gopalakrishnan Pillai (and LRs) and Others; Mat.Appeal Nos. 70 of 2005 and 1083 of 2014

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **MONDAY, THE 6TH DAY OF MARCH 2017/15TH PHALGUNA, 1938** ## **Mat.Appeal.No. 70 of 2005** **-----------------------------AGAINST THE JUDGMENT IN OPHMA.1029/2003 of FAMILY COURT, THIRUVALLA DATED 26.12.2003** **APPELLANT/RESPONDENT:: ----------------------RADHAMANI W/O.LATE GOPALAKRISHNA PILLAI, VARIYATHU VEEDU, PERINGARA MURI DO. VILLAGE, THIRUVALLA, RESIDING AT POWVATHILAYA KAILASATHIL MANIMANDIRATHIL VEEDU PAIPPAD MURI, DO. VILLAGE, CHANGANACHERRY TALUK.** **BY ADV. SRI.R.GIREESH VARMA** **RESPONDENTS/PETITIONER/1ST RESPONDENT & Lrs. OF R1-HIS FATHER:** **------------------------------------------------------------1. GOPALAKRISHNA PILLAI (DIED) S/O. CHELLAPPAN PILLAI, POWVATHILAYA KAILASATHIL MANIMANDIRATHIL VEEDU, PAIPPAD MURI DO VILLAGE CHANGANACHERRY TALUK.** *** 2. CHELLAPPAN PILLAI, POWVATHIAATHILAYA (DIED) KAILASATHIL MANIMANDIRATHIL VEEDU, PAIPPAD MURI DO. VILLAGE, CHANGANACHERRY.** **ADDL 3. RAJASEKHARAN PILLAI, S/O.CHELLAPPAN PILLAI, POWATHIL LAKSHMI BHAVAN, NALUKODI P O, PAIPPAD.** **4. AMBIKADEVI, D/O.CHELLAPPAN PILLAI, NELLIKKUNNATHU HOUSE, PONKUNNAM P O. 5. DIVYA G. D/O. LATE RAMADEVI, B P BHAVAN, PERUNNA P O, CHANGANACHERRY.** ***(ADDL.RESPONDENTS 3 TO 5 ARE IMPLEADED AS THE LRs OF DECEASED R2, AS PER ORDER DATED 30.6.2010 IN I A 456/2000)** **R2 BY ADV. SRI.K.JAGADEESCHANDRAN NAIR R,ADDL.R4 BY ADV. SRI.J.R.PREM NAVAZ R4-R5 BY ADV. SRI.K.RAMAKUMAR (SR.) R4-R5 BY ADV. SRI.T.RAMPRASAD UNNI** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 23.2.2017, ALONG WITH MA. 1083/2014, THE COURT ON 06-03-2017 DELIVERED THE FOLLOWING:** **ami/** ## **A.M.SHAFFIQUE & K.RAMAKRISHNAN, JJ.** **-----------------------------------------------** Mat.Appeal Nos.70 of 2005 and 1083 of 2014 **-----------------------------------------------** Dated this the 6[th] day of March, 2017 ## **J U D G M E N T** ## K.Ramakrishnan, J. The respondent in O.P.(HMA)No.1029/2003 on the file of Family Court, Thiruvalla, is the appellant in Mat.Appeal No.70/2005, who is the petitioner in I.A.Nos.2183/2010 and 2184/2010 in O.P.No.1029/2003 on the file of Family Court, Thiruvalla, and is also the appellant in Mat.Appeal No.1083/2014. 2. The marriage between the appellant and one Gopalakrishna Pillai was solemnised on 5.12.1993 as per the custom. At the time of marriage and at the time when the application was filed, the appellant was working at Vilappilsala Government U.P. School as a teacher. After marriage, for some time, they resided together in a rented house at Thiruvananthapuram. According to the husband, for the purpose of doing maintenance work in the family house at Peringara, an amount of `50,000/- was paid by him by selling his property and using that amount, the maintenance work was completed. The Mat.Appeal Nos.70 of 2005 and 1083 of 2014 :-2-: amount that left after selling his property, i.e., an amount of `25,000/-, was also given to her for the purpose of purchasing a property in Thiruvananthapuram. According to the husband, in the petition filed by him for divorce, it is stated that the appellant made him to believe that she was only less than 40 years of age and that she was a spinster at the time of marriage, and hence he had agreed to marry her. Later, it was revealed that she had married to one Sambasivan of Sasthamcotta on an earlier occasion and due to her immoral activities, that relationship was dissolved through court and he also came to know that she was of the same age as that of the husband etc. It is also alleged in the petition filed by him that she was having illegal intimacy with several persons and this was also he came to know through others. Though he tried to persuade her and desisted from the same, she started treating him cruelly and she abused and even caused him physical assault. During July 1998, when he went to Thiruvananthapuram to see her, he had seen some other person in the house and the said person abused and warned him not to enter the house thereafter and he had assaulted the husband and due to fear of his life, he had to leave the house. When this was Mat.Appeal Nos.70 of 2005 and 1083 of 2014 **==> picture [21 x 9] intentionally omitted <==** asked, the appellant told him that she will not repeat the same and she will lead a faithful life and will be a faithful wife to him and hence they started residing together again. But later also, the same incidents continued. Thereafter, she told that it will be difficult for her to live with him. So, they decided to file a joint petition for divorce, but later, she withdrew from the same, which compelled him to file O.P.(HMA) No.1029/2013 for dissolution of marriage on the ground of cruelty. 3. Since the appellant did not appear, she was declared ex parte and the petition was allowed and the ex parte decree for dissolution of marriage was granted on 26.12.2003. According to the appellant, the 2[nd] respondent herein, who is her father in law, filed O.S.No.288/2004 before the Munsiff's Court, Changanacherry for declaration and recovery of possession against the appellant in respect of the house wherein she was residing along with her husband. On 16.10.2004, when she received notice on the proceedings, she came to understand that an ex parte decree for divorce was obtained by her husband on 26.12.2003 from the Family Court, Thiruvalla. Since, she did not receive any notice, she made enquiries about the same and came Mat.Appeal Nos.70 of 2005 and 1083 of 2014 **==> picture [21 x 9] intentionally omitted <==** to understand that an ex parte decree was passed by sending a notice to her in a different address, where she was not residing and the notice was returned as 'unclaimed'. So, immediately she filed Mat.Appeal No.70/2005, impleading her father in law, as her husband died due to cancer by then. According to her, while her husband Gopalakrishna Pillai was admitted in the hospital, she nursed him and at that time, her husband opened bank accounts and she was shown as the nominee even after the alleged divorce obtained. She had given consent, in the capacity as his wife, for conducting a surgery in the hospital as well. So, till the suit was filed, she was neither aware of the proceedings filed by her husband for dissolution of marriage nor about the ex partee decree for divorce obtained. 4. While the appeal was pending, as directed by this Court to file an application to set aside the ex parte decree before the court below, she filed an application to set aside the ex parte order of divorce along with an application to condone the delay of 6 years and 208 days that occurred in filing the application to set aside the ex parte order. Since her husband was no more and in the meantime, her father in law was also died, the application to Mat.Appeal Nos.70 of 2005 and 1083 of 2014 **==> picture [21 x 9] intentionally omitted <==** set aside the ex parte order was filed against the legal heirs of her father in law. In the appeal, they were impleaded as additional respondents 3 to 5 as per order in I.A.No.456 of 2010. The appeal itself was filed along with an application to condone the delay of 389 days that occurred in filing the appeal. The respondents in the application to set aside the ex parte decree had filed counter, contending that she was aware of the proceedings and the notice was properly served on her, but she did not appear and after considering the evidence of Pws.1 to 3 who were examined in the case, the court below had granted decree of divorce correctly and there is no necessity to set aside the ex parte decree. In the interlocutory applications filed before the court below for setting aside the ex parte decree and for condoning the delay occurred in filing the same, the appellant herein was examined as PW1 and Exts.A1 to A13 were marked on her side. One witness was also examined as PW2. Ext.X1 was also marked. After considering the evidence on record, the court below found that the petitioner had not proved her case and sufficient reason has not been given for condoning the delay of 6 years and 208 days in filing the application and dismissed those Mat.Appeal Nos.70 of 2005 and 1083 of 2014 **==> picture [21 x 9] intentionally omitted <==** applications. Aggrieved by the same, the appellant filed Mat.Appeal No.1083/2014. 5. In the divorce proceedings, apart from the husband of the appellant, two other persons were also examined as Pws.2 and 3. After considering the evidence, the court below had granted a decree for divorce. This was challenged by the appellant by filing Mat.Appeal No.70/2005. 6. We felt that since both these cases are complement to each other, we decided to consider Mat.Appeal No.70/2005 filed by the appellant after condoning the delay of 389 days in filing, since according to her, she received a notice in the suit filed by her father in law and only then she came to know about the same and immediately she filed the appeal. It is as directed by this Court that the appellant filed I.A.Nos.2183/2010 and 2184/2010 in O.P.No.1029/2003 before the Family Court, Thiruvalla, to set aside the ex parte decree and to condone the delay that occurred in filing the application to set aside the ex parte decree. 7. It is an admitted fact that marriage was solemnised between the appellant and he deceased-1[st] respondent herein and that they lived together as husband and wife. It is also not in Mat.Appeal Nos.70 of 2005 and 1083 of 2014 **==> picture [21 x 9] intentionally omitted <==** dispute that for some time, they lived together and thereafter they started residing separately. According to the husband, the fact that she had earlier married to one Sambasivan and that the marriage was dissolved through court was suppressed at the time of their marriage and she had also made to believe that she was aged only 40 years, but later he came to know that they were of equal age. According to the husband, she was leading an immoral life and on one day, he happened to see her in the company with another person and when that was questioned, she along with that person had beaten him and he left the matrimonial home. According to him, when he questioned the same, though she had agreed to lead a decent life and that she will be faithful to him, she did not keep up the promise and hence, they agreed to file a joint petition for divorce, but later, she withdrew from the same. Thereafter, he filed an application for divorce on the ground of cruelty and desertion, since she was living separately for more than 2 years without any reasonable cause. 8. The notice sent to the respondent in the petition, who is the appellant herein, was returned with an endorsement Mat.Appeal Nos.70 of 2005 and 1083 of 2014 **==> picture [21 x 9] intentionally omitted <==** 'unclaimed'. The notice was sent on the address of her parental house. In fact, even as per the allegations in the petition, they were residing together at Vilappilsala where she was working as a teacher in a Government School. 9. According to the learned counsel for the appellant, the reason stated by the court below for granting the relief is unsustainable and even the evidence adduced is not sufficient to prove the allegation of cruelty or desertion. In fact, he had made allegation of illegal intimacy even prior to the marriage and that continued even after marriage. But there is no evidence to prove those facts. He was always suspicious of her character and that was the reason why she was living separately. Further, the documents produced by the appellant in the ex parte set aside proceedings, will go to show that even after the divorce decree was obtained, they were living together and it was she who looked after him while he was undergoing treatment for cancer in the hospital and she was with him till his death. She was shown as his nominee in the bank accounts opened by him, while he was in the hospital. She has given consent for the operation also as his wife. So, according to the counsel, the allegation of cruelty or Mat.Appeal Nos.70 of 2005 and 1083 of 2014 **==> picture [21 x 9] intentionally omitted <==** illegal relationship has not been established. Further, the desertion was also not proved. Though there is an allegation of illegal intimacy and her living in an adulteress life, none of the adulterers were made parties to the proceedings as well. 10. The learned counsel for the appellant also relied on a decision reported in **R.Lakshmi v. K.Saraswathi Ammal [(1996) 6 Supreme Court Cases 371]** for the proposition that even if an ex parte divorce decree was obtained by husband against wife, the court can consider the application filed by the wife after the death of the husband to set aside the ex parte decree and such an application is maintainable. 11. On the other hand, the learned counsel for the respondent submitted that the evidence will go to show that the appellant was aware of the proceedings and there was no explanation given by her for not approaching the court for setting aside the ex parte decree within time. The court below had considered that aspect and held that the delay has not been properly explained and rightly dismissed both the application for setting aside the ex parte decree and the delay condonation application. Further, now the husband is no more and it is not known as to whether Mat.Appeal Nos.70 of 2005 and 1083 of 2014 **==> picture [27 x 9] intentionally omitted <==** any witnesses will be available as well. So, under such circumstances, there is nothing to be decided afresh and if the ex parte decree is set aside and if the files are send back for fresh trial, hardship will be caused to the husband who obtained the decree for divorce. Further, the evidence of Pws.1 to 3 and the discussion of the court below on the evidence adduced will go to show that the court below had considered all the aspects and there is no illegality committed by the court below in granting the decree for divorce on the ground of cruelly. 12. Since, we felt that the appeal filed against the ex parte decree can be considered on merits, instead of going into the question as to whether the appellant had proved her case for setting aside the ex parte decree, in the appeal filed by her against the order of dismissal of the application to set aside the ex parte decree filed by her, if this Court on the basis of the available materials could come to a conclusion that on the basis of evidence and pleadings, no decree for divorce can be granted, then there is no necessity for this Court to go into other aspects. It is settled law that even if an ex parte decree is passed, the parties will have the liberty to file regular appeal challenging the Mat.Appeal Nos.70 of 2005 and 1083 of 2014 **==> picture [27 x 9] intentionally omitted <==** ex parte decree, but the court can only consider as to whether a decree passed can be sustained on the basis of the materials available on record. If the court is satisfied that materials are not sufficient to sustain the decree or even to grant a decree, then the court can allow the appeal without remanding the same. It is also settled law that even if the appellant files an application to set aside the ex parte decree under Order 9 Rule 13 and even if that application is dismissed by the court below, there is no bar for her to agitate the legality of the decree granted in a regular appeal filed by her against the ex parte decree passed, but then the Appellate Court cannot consider the question as to whether she is prevented by sufficient cause to appear before the court below and contest the case. 13. The main allegation in the petition was that the earlier marriage with one Sambasivan and the divorce obtained from court were not disclosed. Second allegation was that she was leading an adulteress life with several persons. The respondent in his deposition stated that, one day in July 1998 when he went to the house of the appellant, he happened to see a person in the house and the said person warned the husband not to come there Mat.Appeal Nos.70 of 2005 and 1083 of 2014 **==> picture [27 x 9] intentionally omitted <==** and at that time both the appellant and that person had abused him and later she promised him that she will not continue that relationship, but she withdrew from the promise and continued the relationship and that promoted him to file the application. Even in the petition, there is no specific instance of cruelty mentioned. He did not mention even the name of the person with whom the appellant was having the alleged illicit connection and the application for divorce filed by him was not on the ground that the appellant having intercourse with some other person during the subsistence of marriage. Probably, he may not be able to establish the same and so, that was not shown as a ground in the application seeking divorce. 14. It is true that having illicit relationship with another person may cause mental cruelty, if it is established. Mere allegation alone is not sufficient for that purpose. Further, the question of desertion has also not been properly established as per the allegations in the petition, though it was mentioned that from 1998 onwards, they were residing separately, who was responsible for their separation has not been mentioned in the petition. In order to prove the case of the husband, he himself Mat.Appeal Nos.70 of 2005 and 1083 of 2014 **==> picture [27 x 9] intentionally omitted <==** was examined as PW1 before the court below. There also he had only vaguely stated that they have resided together till July 1998 and thereafter they were residing separately, as his wife was having illicit relationship with somebody else. It is simply stated in the deposition that at about 10 p.m. on a day during July 1998, a person had entered the house, but the date of such entry was not mentioned. He had only stated that though he objected the same, the appellant continued the illicit relationship. Thereafter, both of them have manhandled the respondent and several persons have seen that incident. It is also mentioned that thereafter also, they resided together in the house at Peringara. There also the appellant continued the illicit relationship and he left the house in January 1999. The date of leaving was not mentioned. So even in his evidence, he has not given the concrete date and the time at which the incident occurred. He had no case that he had informed this matter to anyone as well. 15. PW2 was examined to prove that he had accompanied PW1 one day to their residence at Vilappilsala in Thiruvananthapuram District. At that time, PW2 had seen a person in the house who had assaulted the respondent. He did Mat.Appeal Nos.70 of 2005 and 1083 of 2014 **==> picture [27 x 9] intentionally omitted <==** not mention the date on which the said incident occurred. He had no case that both the appellant and that person who was said to be present in the house, had jointly assaulted the respondent in the case, as stated by PW1. Further, PW1 has no case that he went to that house along with PW2 and on that day, some incident occurred and he happened to see that incident. So, under such circumstances, the presence of PW2 at the matrimonial house of the appellant and witnessing any incident, as claimed by him, appears to be suspicious. 16. PW3 - another witness was examined to prove that the petitioner was residing separately from the appellant for the past 4-5 years of his examination. According to him, since no children were born to them in their wedlock, there was some misunderstanding between them and that was the reason why they were residing separately and the appellant has no love for the petitioner in the court below. He had only stated that as instructed by the petitioner in the lower court, he went to the house of the appellant and wanted her to come but she expressed her unwillingness to come. So he had no case that having illicit connection with some other person was the reason for their Mat.Appeal Nos.70 of 2005 and 1083 of 2014 **==> picture [27 x 9] intentionally omitted <==** separate living, as stated by PW1. 17. So the overall evidence adduced on the side of the petitioner before the court below are not sufficient to come to the conclusion that there was any cruelty proved as claimed by him and also desertion on the side of the appellant. It was also in a way admitted that after obtaining the decree, when the original petitioner in the court below was admitted in the hospital, the appellant stayed with him in the hospital and looked after him till his death. It is also in a way admitted that she was shown as a nominee in the accounts opened by her husband while he was in the hospital. If really there was any intention on the part of the appellant not to live with her husband, she would not have gone there. Further, if really the husband also wants to have divorce, he would not have shown her as a nominee in the bank accounts opened by him subsequent to the alleged ex parte decree for divorce obtained against her as well. So, all these things would show that there was no animus deserendi on the side of the appellant not to join her husband so as to grant divorce on the ground of desertion. Mat.Appeal Nos.70 of 2005 and 1083 of 2014 **==> picture [27 x 9] intentionally omitted <==** 18. Further, the allegations are not sufficient to grant a decree for divorce on the ground of cruelty as well. A reading of the judgment of the court below also would show that there was no definite finding entered by the court below that cruelty and desertion, as required to be proved, has been established by the husband for the purpose getting a decree for divorce. So under such circumstances, this Court feels that neither the allegations in the petition nor the evidence adduced will be sufficient for granting a decree for divorce on the ground of cruelty and desertion, and the ex parte decree for divorce granted cannot be sustained and the same is liable to be set aside. So, we do not find any reason to remand the case, as no purpose will be served by remanding the case after setting aside the ex parte decree, to give opportunity to the parties to adduce evidence, as the husband is no more. So, under such circumstances and in view of the discussions made above, we feel it appropriate to set aside the order of dissolution of marriage passed by the court below and dismiss the application itself, as sufficient grounds are not made out so as to sustain the decree for divorce granted. Mat.Appeal Nos.70 of 2005 and 1083 of 2014 **==> picture [27 x 9] intentionally omitted <==** 19. Since we have allowed the appeal and set aside the decree and dismissed the application for divorce filed by the husband, we are not entering into any finding regarding the legality of the order passed by the court below in dismissing the application to set aside the ex parte decree, against which, Mat.Appeal No.1083/2014 has been filed and hence, we close the appeal as unnecessary. So, Mat.Appeal No.70/2005 is allowed and the order of dissolution of marriage passed by the court below on the ground of cruelty and desertion is set aside and O.P.No.1029/2003 on the file of the Family Court, Thiruvalla, is dismissed. In view of allowing Mat.Appeal No.70/2005, Mat.Appeal No.1083/2014 is closed as unnecessary, without considering the legality of the impugned order passed by the court below. Sd/- **A.M.SHAFFIQUE JUDGE** ## Sd/- **K.RAMAKRISHNAN JUDGE** ami/28.2.17 //True copy// P.A.to Judge