Syam R.S. v. Lekshmi Vijaya

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** ## **&** **THE HONOURABLE MRS. JUSTICE SOPHY THOMAS THURSDAY, THE 14[TH] DAY OF JULY 2022 / 23RD ASHADHA, 1944 MAT.APPEAL NO. 1406 OF 2017 AGAINST THE ORDER/JUDGMENT in OP 1374/2015 OF FAMILY** **COURT,TRIVANDRUM** ## **APPELLANT/S:** SYAM.R.S S/O.LATE RAVEENDRAN, AGED 34 YEARS, RAVI NIVAS, KARAVARAM VILLAGE, CHIRAYINKEEZHU TALUK, THIRUVANANTHAPURAM. BY ADVS. M.SANTHI (K/868/2011) G.RANJU MOHAN ## **RESPONDENT/S:** LEKSHMI VIJAYA AGED 26 YEARS D/O.VIJAYAN, AGED 26 YEARS, SWAMI NIVAS, NEAR FARMER'S BANK, AYIROORPARA VILLAGE, POTHENCODU, THIRUVANANTHAPURAM-695584. BY ADVS. SRI.G.BIJU SRI.V.A.VINOD THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 14.07.2022, ALONG WITH Mat.Appeal.160/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **&** **THE HONOURABLE MRS. JUSTICE SOPHY THOMAS THURSDAY, THE 14[TH] DAY OF JULY 2022 / 23RD ASHADHA, 1944 MAT.APPEAL NO. 160 OF 2018** **AGAINST THE ORDER/JUDGMENT in OP 36/2016 OF FAMILY COURT,TRIVANDRUM** ## **APPELLANT/S:** SYAM R.S. AGED 34 YEARS S/O.LATE RAVEENDRAN, AGED 34 YEARS, RAVI NIVAS, KARAVARAM VILLAGE, CHIRAYINKEEZHU TALUK, THIRUVANANTHAPURAM. BY ADVS. M.SANTHI (K/868/2011) G.RANJU MOHAN ## **RESPONDENT/S:** LEKSHMI VIJAYA D/O.VIJAYAN, AGED 26 YEARS, SWAMI NIVAS, NEAR FARMER'S BANK, AYIROORPARA VILLAGE, POTHENCODU, THIRUVANANTHAPURAM-695584. BY ADVS. SRI.G.BIJU SRI.V.A.VINOD THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 14.07.2022, ALONG WITH Mat.Appeal.1406/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **A.MUHAMED MUSTAQUE & SOPHY THOMAS, JJ.** ---------------------------------------------------------------------------------- Mat.Appeal Nos.1406/2017 & 160/2018 --------------------------------------------------------------------------------- Dated this the 14[th] day of July, 2022 ## **J U D G M E N T** A.Muhamed Mustaque, J. These matrimonial appeals are between the same parties. Both appeals are at the instance of the husband. The husband filed O.P.No.36/2016 before the Family Court, Thiruvananthapuram, for divorce. This was not allowed. Challenging the dismissal, he filed Mat.Appeal No. 160/2018. The wife filed O.P.No. 1374/2015 against the husband for the recovery of value of gold ornaments and maintenance. The said O.P. was allowed. Challenging the said decree, the husband filed Mat. Appeal No. 1406/2017. 2. Heard the learned counsel for both sides. 3. The above cases were tried jointly by the Family Court along with O.P.No.1991/2014 filed by the husband for permanent custody of the child. ## **Mat.Appeal Nos.1406/2017 & 160/2018** ## **-:2:-** The said original petition was dismissed. No appeal is seen filed as against the dismissal of the above original petition. 4. The parties married on 26.12.2011 in accordance with the customs and rites of their community. The parties are Hindus by faith. After the marriage, they lived at Sharjah in U.A.E. In the wedlock, a female child was born on 9.10.2013. The child was given birth in India. According to the husband, he was willing to take the child and wife to Sharjah. However, the wife refused to accompany him. The husband claimed divorce, both on the grounds of cruelty and desertion. According to the wife, it was the husband who refused to take her and the child to Sharjah. She contended that the husband misappropriated her gold ornaments. 5. The question involved in this case has to be decided based on the oral evidence of the parties. **Mat.Appeal Nos.1406/2017 & 160/2018** ## **-:3:-** 6. We shall now advert to the appeal filed by the husband challenging the decree granted in favour of the wife to recover gold ornaments, maintenance and other monetary relief. Besides granting monetary relief in favour of the wife, a sum of Rs.5,000/- each has been ordered to be paid by the husband to the wife and minor child. It has come out that the wife has no income of her own. Therefore, there is no reason to deny the maintenance awarded therein. Though the husband contended that he used to send money to the wife, there is no evidence adduced to prove the same. Taking note of the quantum of the amount awarded towards maintenance, we find no reason to interfere with the impugned order to that extent. **==> picture [360 x 12] intentionally omitted <==** ornaments, the claim of the wife was that the entire gold ornaments, except the gold ornaments given to her for daily use, were kept in a joint locker maintained in the name of the husband and wife, at the S.B.T., Kallambalam Branch. It has come out that the key of the locker was with the **Mat.Appeal Nos.1406/2017 & 160/2018** ## **-:4:-** wife. According to her, the husband on his visit to the native place from abroad, opened the locker and took eight sovereigns of gold ornaments for personal use. This fact had not been controverted to by the husband in the objection filed before the Family Court. According to the husband, he pledged those ornaments and after six months redeemed the pledge and placed the ornaments in the locker itself. However, the husband failed to prove the same. It is in that context, the Family Court ordered husband to return the eight sovereigns of gold ornaments or to pay its present market value together with interest. On an appreciation of the evidence as above, we are of the view that the finding of the Family Court in this regard, has to be affirmed. 6.(ii). In regard to the order passed by the Family Court allowing the wife to claim Rs.9,00,000/- fixed deposit in the joint name of both the parties, the stand of the husband was that he does not require any amount standing in the joint name. If that be so, we affirm the ## **Mat.Appeal Nos.1406/2017 & 160/2018** ## **-:5:-** finding of the Family Court in this regard as well. 7. We shall now advert to the appeal filed by the husband dismissing his claim for divorce. The parties are living separately since March 2013. All attempts for reunion have failed. The Family Court declined divorce on the ground of desertion noting that the wife was always willing to join husband at Sharjah where he was employed. The Family Court noted that the husband failed to prove that the wife deserted him for a continuous period of not less than two years immediately preceding the presentation of the petition. It appears that the husband had no income to have a family status at Sharjah. In that back ground, we find that no case is made out by the husband to prove that the wife had intention to desert him. 8. We are not called upon to decide on the aspects related to cruelty. We are sure that no cruelty exists in the form of physical cruelty and; based on the evidence adduced, the husband **Mat.Appeal Nos.1406/2017 & 160/2018** ## **-:6:-** failed to prove cruelty of physical nature on the side of the wife. 9. It appears that some disputes arose between the parties immediately after the birth of the child. According to the husband, he was not allowed to see the child; on the other hand, the wife would contend that the husband never cared to visit the child. 10. We note that attempts were made by this Court to settle the disputes between the parties to reconcile which have been failed. We are pausing for a moment as to the fate of this marital relationship. It is now impossible for the parties to lead a happy married life. In those circumstances, we are of the view that withholding consent for mutual separation itself will amount to cruelty. In the judgment of this Court in **Beena v. Shino G.Babu [2022 (2) KLT 139]** , we had enunciated law regarding withholding consent for mutual separation, as follows: “6. The law on divorce recognises both fault and consent as a cause for separation. When both the parties are unable to lead a meaningful **Mat.Appeal Nos.1406/2017 & 160/2018** ## **-:7:-** matrimonial life due to inherent differences of opinion and one party is willing for separation and the other party is withholding consent for mutual separation, that itself would cause mental agony and cruelty to the spouse who demands separation. The purpose of marriage is to hold matrimonial ties lifelong, respecting mutual obligations and rights. The companionship of spouses creates oneness of the mind to walk together. It is through mutual respect and courtship, the companionship is built and fortified. The modern jurisprudence of irretrievable break down to allow divorce is premised on the fact that the spouses can never remain together on account of their differences. If the court is able to form an opinion that due to incompatibility, the marriage failed and one of the spouses was withholding consent for mutual separation, the court can very well treat that conduct itself as cruelty. If one of the spouses is refusing to accord divorce on mutual consent after having convinced of the fact that the marriage failed, it is nothing but cruelty to spite the other Mat.Appeal Nos.43 & 72/2020 13 spouse. No one can force another to continue in a legal tie and relationship if the relationship deteriorated beyond repair. The portrayal of such conduct through manifest behaviour of the spouse in a manner understood by a prudent as 'cruelty' is the language of the lawyer for a cause before the court. This case is also not different. The behavioural disorder pointed out against the appellant in the petition for divorce was essentially reflection of incompatibility that existed between the parties. The husband wants to **Mat.Appeal Nos.1406/2017 & 160/2018** ## **-:8:-** get out of the struggled relationship, on the projected cause of cruelty with reference to the incidents of misbehaviour. Incompatibility is a factor that can be reckoned while considering the ground for cruelty, if one of the spouses withholds the consent of mutual separation, though incompatibility is not recognised as ground for divorce.” 11. We are sure that, in a failed marriage, if one of the spouse withholds consent for mutual separation to spite vengeance, that itself will amount to cruelty. In those circumstances, we are of the view that a decree of divorce can be granted to the husband. Accordingly, we dissolve the marriage solemnised between the parties on 26/12/2011 granting a decree of divorce. In the light of the discussions as above, we dismiss M.A.No.1406/2017 and allow M.A.No.160/2018. **Sd/-** ## **A.MUHAMED MUSTAQUE, JUDGE** **Sd/-** **SOPHY THOMAS, JUDGE** ms