S. Kolappa Pillai v. Suseela Bhai.K.M.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN WEDNESDAY, THE 9TH DAY OF AUGUST 2017/18TH SRAVANA, 1939 Mat.Appeal.No. 600 of 2008 ( ) ------------------------------- AGAINST THE ORDER/JUDGMENT IN OP 621/2006 of FAMILY COURT, KOTTAYAM DATED 28-04-2008 APPELLANT(S): ------------ S.KOLAPPA PILLAI, 50 YEARS, S/O.LATE SREE KRISHNA PILLAI, SREE KRISHNA VILAS,, TC.26/1642,, GOVT.PRESS ROAD, STATUE, THIRUVANANTHAPURAM BY ADVS.SRI.THOMAS ABRAHAM SRI.DIPU.R SRI.K.S.HARIDAS SRI.S.KRISHNAMOORTHY SMT.MERCIAMMA MATHEW RESPONDENT(S): -------------- SUSEELA BHAI.K.M. AGED 47, , W/O.KOLAPPA PILLAI, XI/53, KMC, PAPPALAYIL HOUSE, KEEZHKUNNU,, COLLECTORATE PO., KOTTAYAM. BY ADV. SRI.MATHEW PHILIP EDAPPALLIL THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 09-08-2017, ALONG WITH MA. 625/2008, MA. 640/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **A.M.SHAFFIQUE & ANU SIVARAMAN, JJ.** **----------------------------------------------Mat.Appeal Nos.600, 625 and 640 of 2008 ----------------------------------------------Dated this the 9[th] day of August, 2017** ## **JUDGMENT** ## _**Anu Sivaraman, J.**_ These appeals are preferred by the appellant husband against the common judgment in O.P.Nos.621, 620 and 622 of 2006. Mat.Appeal No.600 of 2008 is filed against the judgment in O.P.No.621 of 2006. Mat.Appeal No.625 of 2008 is preferred against the judgment in O.P.620 of 2006 and Mat.Appeal No. 640 of 2008 is filed against the judgment in O.P.No.622 of 2006. O.P.No. 621 of 2006 had been filed by the respondent herein who is the wife of the appellant for restitution of conjugal rights under the Hindu Marriage Act, 1955. O.P.No.620 of 2006 was filed by the respondent wife seeking return of money and gold ornaments. O.P.No.622 of 2006 was preferred by the wife and two children of the appellant seeking maintenance. The original petitions were jointly tried taking O.P.No. 621 of 2006 as the main case. 2. The material contentions of the petitioner wife were as follows: The marriage between the parities was solemnised on _**Mat.600,625 & 640/08**_ 2 14.6.2979 as per the Hindu rites. They lived together as husband and wife and three children were born in the wedlock. For the first eight years, they lived at the petitioner's house at Kanjikkuzhi at Kottayam. Later, the respondent got appointment as Boxing Coach in the Sports Authority of India in 1987. His first appointment was in Madras and the family moved there in 1988. The respondent was transfered to Hyderabad in 2000. The petitioner and children remained in Chennai, since the children were studying there. But during 2003, the respondent developed an illicit relationship with one Udayakumari, his friend's wife. He deserted and neglected the petitioner and the children. On 23.1.2004, when the petitioner visited the house of Udayakumari, the respodent was found there and the petitioner was severely assaulted and admitted for medical treatment. The petitioner filed criminal case against Udayakumari, but due to the assurance of the respondent, the complaint was withdrawn. But the respondent continued the illicit relationship and the petitioner approached the Tamilnadu Legal Services Authority. Thereafter, the respondent arranged a rental house for the petitioner and the children. But the rent was in arrears and the landlord filed eviction suit which was not contested and the petitioner and family were evicted from the _**Mat.600,625 & 640/08**_ 3 premises in April, 2005. The respondent has withdrawn from the society of the petitioner without reasonable excuse and hence she filed petition for restitution of conjugal rights. 3. The respondent husband filed objections denying a legal marriage. It is stated that the petitioner and the respondent had executed a marriage agreement in 1979 and had been living as husband and wife. He stated that he used to visit the petitioner's house at Kanjikjuzhy once in a week. He denied the allegation that he lived with Udayakumari and stated that the petitioner harassed him alleging such illicit relationship and because of the cruelty and harassment, he was compelled to leave the matrimonial house and live separately from 2000 onwards. He therefore prayed for dismissal of the petition for restitution of conjugal rights. 4. In O.P.No.620 the petitioner's case was as follows: The petitioner is the wife and the respondent is the husband. After three years of the marriage, 15 sovereigns of gold ornaments was given to the petitioner by her father and those ornaments have been taken and sold by the respondent for his own purposes. The petitioner's father was an employee of Malayala Manorama and he retired in 1980. He gifted Rs.10,000/- to the petitioner out of his retirement benefits and that was given to 4 _**Mat.600,625 & 640/08**_ the respondent. The petitioner's father had 5.5 cents of land at Kanjikuzhy in Kottayam and that was sold in the year 2000 for a consideration of Rs.6 lakhs and Rs.1 lakh was given to the petitioner as her share. The above amount was also spent by the respondent. The petitioner's mother had a fixed deposit of RS.1,25,000/- in the Malayala Manorama Employees Cooperative Society. At the request of the respondent, an amount of Rs.25,000/- was withdrawn on 23.10.2003 and it was given to him through the petitioner and it was used for the preparation of partition deed in the family of the respondent. An amount of Rs.50,000/- was also obtained by the petitioner from her sister Nirmala Bai and that amount was given to the respondent. The respondent is liable to return 15 sovereigns of gold ornaments and Rs.1,85,000/- appropriated by him. 5. The respondent filed objection contending that the respondent has not received any dowry. The statement that 15 sovereigns of gold ornaments was given to the petitioner after 3 years of the marriage is absolutely false. The petitioner had no gold ornaments. He states that all the gold she had was purchased by him and it was utilised or family expenses. The respondent never misappropriated any gold ornaments. No amount has been entrusted with him. The statement that the _**Mat.600,625 & 640/08**_ 5 father of the petitioner entrusted Rs.1 lakh after selling the property is not correct and even if such amount is received by the petitioner, it is with her. The respondent is not liable to return any amount or gold ornaments, it is contended. 6. In O.P.No.622 of 2006, the claim was for maintenance to the petitioners and the children on the ground that the respondent was well employed and the petitioners required Rs.2,500 each for their maintenance. The respondent filed objection in the said original petition also stating that he used to give maintenance to the petitioners, but the wife was misusing the said amount. It is stated that the 2[nd] petitioner was able to look after the children, whereas the the respondent has lost his job, as the wife sent complaint to the authority against the respondent. He therefore sought a dismissal of the claim for maintenance. 7. The evidence consisted of oral testimony of PW1 and RW1 and RW2 and Exhibits A1 to A8 and B1 to B4. After the considering the contentions advanced and the pleadings and evidence on record, the Family Court allowed O.P.No.621 of 2006 granting the petitioner wife a decree for restitution of conjugal rights. O.P.No.620 of 2006 was decreed permitting the petitioner to realise Rs.1,85,000/- and 15 sovereigns of gold _**Mat.600,625 & 640/08**_ 6 ornaments or its approximate value of Rs.1,30,000/-. O.P.No. 622 was also allowed in part, directing payment of maintenance to the 1[st] petitioner at the rate of Rs.1,000/- and Rs.750/- each to petitioners 2 and 3. Cost of Rs.3,000/- was also ordered. 8. Heard learned counsel for the appellant and the learned counsel for the respondent. 9. The main contention urged by learned counsel for the appellant is to the effect that appellant has specifically contended before the Family Court that there was no legally valid marriage between the parties and that the decree for restitution of conjugal rights therefore could not have been passed. It is submitted that the existence of a valid marriage in terms of the Hindu Marriage Act, 1955 is a jurisdictional prerequisite for a decree of restitution of conjugal rights under Section 9 of the Act. It is further contended that the continuous harassment meted out by the respondent wife alleging infidelity was the reason for the break down of the relationship between the parties and the appellant husband had ample reason for staying away from his wife and children. It is further submitted that he had taken all possible steps to maintain his wife and children but she herself had made the same _**Mat.600,625 & 640/08**_ 7 impossible, since she preferred repeated complaints before his employer and even went to the extent of sitting in front of his residence with a begging bowl in order to humiliate him and to see that his employment is lost. He claims that at the time of the filing of the original petitions, he had no employment whatever and was unable to maintain his wife and children. It is also submitted that since there was admittedly no formal marriage between the parties, the respondent had no gold ornaments and there was no occasion for her father to have entrusted any money with the respondent. 10. The learned counsel for the respondent, on the other hand, contended that the unfortunate plight of a mother and three children who had been driven to destitution by the extreme cruelty of the respondent is manifest in this case. It is submitted that after having married her and having three children in the wedlock, the defence taken by the appellant before the Family Court that there was no legal marriage itself is an act of extreme cruelty. It is submitted that the marital life of the spouses was disrupted only by the illicit relationship of the appellant with one Udayakumari which had rendered the respondent and her children homeless and destitute. It is stated that the children's education was also disrupted due to _**Mat.600,625 & 640/08**_ 8 the refusal of the respondent to meet the expenses of the same and the respondent and the children had been evicted from their home for non payment of rent. It is further submitted that cogent evidence had been adduced to show that the appellant had appropriated 18 sovereigns of gold ornaments belonging to the respondent and had also been given Rs.1,85,000/- as patrimony by her father. The appeals deserve only a dismissal, it is submitted. 11. We have considered the contentions on either side at considerable length. We have also gone through the pleadings and materials on record. The respondent contends that there was a marriage in accordance with the Hindu rites on 14.6.1979. The fact of such a marriage is denied by the appellant. However, he does not deny that the parties were living together as husband and wife. The paternity of the three children is also an admitted fact. Exhibit A1 was produced by the wife to show that he had preferred a petition seeking divorce before the Family Court, Thiruvananthapuram. The Apex Court has repeatedly held that in a case where the living together as husband and wife and long cohabitation stands proved, the Courts must presume the existence of a matrimonial relationship. In _**Dhannulal and others v.**_ 9 _**Mat.600,625 & 640/08**_ _**Ganeshram and another**_ [AIR 2015 SC 2382], the Apex Court held that it is well settled that the law presumes in favour of marriage and against concubinage, when a man and woman have cohabited continuously for a long period. However, the presumption can be rebutted by leading unimpeachable evidence. A heavy burden lies on a party, who seeks to deprive the relationship of legal origin. 12. In the instant case, the very contention of the appellant before the Family Court was that though they were not legally married, they had lived together as husband and wife from the date of the agreement to marry executed between the parties. He states that he used to go to the respondent's house once in a week initially. Thereafter, the parties had lived together at Madras. The birth of the three children in the relationship between the parties is also an admitted fact. In the above circumstances, as held by the Apex Court, the burden was heavily on the appellant herein to show that there was no legal marriage in existence. The appellant contended that the parties belong to different religions and admittedly there was no marriage under the Special Marriage Act as registered between them. It is therefore contended that there can be no presumption of a marital relationship. _**Mat.600,625 & 640/08**_ 10 However, this Court in _**Sreedharan v. Pushpa Bai Alias Leela**_ [1978 KLT 26] has considered the maintainability of a claim for maintenance under Section 125 of the Cr.P.C in an alleged marriage between a Hindu and a Christian, who belonged to Nadar community of Thiruvananthapuram District. This Court held that the Indian Christian Marriage Act permits marriage between a Christian and a non Christian solemnized in accordance with the provisions of the Act. Therefore, the fact that the appellant and the respondent followed different religions need not necessarily mean that there could be no marriage between them and that the status of wife will not be conferred even after undergoing a ceremony of marriage. 13. In the instant case, the plea is that a marriage according to Hindu Religions rites was performed. Apart from stating that there was no valid marriage, the husband did not have a case that no form of marriage had been undertaken by the parties. In any view of the matter, that a marriage agreement was executed in 1979 and that the parties had lived together as husband and wife and that three children were born to them are all admitted. In view of these specific admissions made in the pleadings by the appellant himself, we are of the opinion that the finding of the Family Court that the _**Mat.600,625 & 640/08**_ 11 parties had resided together as husband and wife and that a valid marriage can be presumed to have existed is well justified in the facts of the case. 14. The petitioner wife had adduced evidence to show that she had been given gold ornaments by her family while the relationship between the parties was subsisting. She had also testified that amounts had been handed over to the respondent which were appropriated by him. In the facts and circumstances of the case, the denial by the respondent on these aspects cannot be held to be reliable, since the long cohabitation between the parties is an admitted fact. It is clear that they had been living as husband and wife and the respective families and the society at large had treated them as such. In the above circumstances, we are of the opinion that the evidence adduced by the wife was sufficient to establish the case of entrustment and appropriation of gold and money. The decree for return of gold and money and the order for grant of maintenance are therefore found to be sustainable. 15. As regards Mat.Appeal No.600 of 2008, a specific contention was raised by learned counsel for the appellant that since the respondent wife had not succeeded in proving that a marriage under the Hindu Marriage Act, 1955 had been _**Mat.600,625 & 640/08**_ 12 solemnized between the parties, a decree for restitution of conjugal rights could not have been passed. It is contended that since the respondent was a Christian at the time of the alleged solemnization of marriage, no marriage under the Hindu Marriage Act could have been solemnized between the parties. We have already referred to the decisions of this Court as well as of the Apex Court on the point. In _**Uday Gupta v. Aysha**_ [(2014)16 SCC 300], the Apex Court specifically held that a presumption to the existence of the legally valid marriage and the presumption of legitimacy of children can be rebutted by leading unimpeachable evidence. In the instant case, the existence of a marriage contract and the solemnization of a marriage by exchange of garlands and tying of a Thali has not been clearly established by the wife. She stated in the petition that she had been following the faith and practice of Hindu religion. Since we have already held that in the facts of the instant case, the presumption of a legally valid marriage can be drawn, in the absence of any unimpeachable evidence having been adduced by the respondent to rebut the presumption of the existence of a legally valid marriage, we are of the opinion that the decree of the court below for restitution of conjugal rights was also valid and proper. The appellant also 13 _**Mat.600,625 & 640/08**_ did not adduce evidence to show that he had any valid excuse for withdrawal from the company of the wife. In the above circumstances, the appeals fail and are accordingly dismissed. The parties shall bear their respective costs. **A.M.SHAFFIQUE JUDGE** **ANU SIVARAMAN JUDGE** _vgs_