IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MRS.JUSTICE SOPHY THOMAS
THURSDAY, THE 23RD DAY OF JUNE 2022 / 2ND ASHADHA, 1944
MAT.APPEAL NO.1106 OF 2018
AGAINST THE ORDER/JUDGMENT IN OP(HMA) NO.682/2015 OF FAMILY
COURT, PATHANAMTHITTA
APPELLANT/S:
LETHA P.NAIR, AGED 42 YEARS,
D/O.INDRANIAMMA, USHAS VEETTIL,
POOVATHOOR EAST, KULAKKADA P.O,
KALAYAPURAM VILLAGE, KOTTARAKKARA TALUK,
KOLLAM DISTRICT, PIN-691521.
BY ADVS.
H.PRAVEEN (KOTTARAKARA)
K.MOHANAKANNAN
RESPONDENT/S:
1 HARIKUMAR.G., AGED 47 YEARS,
S/O.GOPALAPILLAI, NOW RESIDING AT ITTARSIYIL,
3RD 535 A ASAD NAGAR, HOSHAGAMSAD.R.B,
HOSHIYABAD DISTRICT, MADHYAPRADESH-461001.
FROM VAIKUNDAM VEETTIL, E.V.NAGAR,
KARUVATTA MURI, ADOOR TALUK, PATHANAMTHITTA
DISTRICT-691523.
(DIED).
ADDL.R2 KAMALAMMA, D/O.LATE GOPALAN NAIR,
RESIDING AT GEETHA VILASAM, VYTTILA.PO.,
KOCHI, ERNAKULAM- 682 019.
ADDL.R3 SYAMALA AMMA, D/O.LATE GOPALAN NAIR,
RESIDING AT MADHAVANCHERIL HOUSE, KONNAMAMKARA,
ADOOR.PO., PATHANAMTHITTA - 691 523.
ADDL.R4 SREEDEVI.G.KURUP, D/O.LATE GOPALAN NAIR,
RESIDING AT KOKKOTTUKALAYIL, NEAR KOLAPPARA,
PATHANAMTHITTA- 689 656.
Mat.Appeal No.1106/2018 & W.P.(C) No.12843/2022 2
ADDL.R5 OMANA AMMA, D/O.LATE GOPALAN NAIR, KANJIRAM
NILKUNNATHIL, KURAMPALA, PANDALAM.PO.,
PATHANAMTHITTA - 689 501.
LEGAL HEIRS OF THE DECEASED RESPONDENT ARE
IMPLEADED AS SUPPLEMENTAL RESPONDENT 2 TO 5 IN
THE MAT.APPEAL AS PER ORDER DATED 22/3/2022 IN
IA 2/2021 IN MAT.APPEAL 1106/2018.
ADDL.R6 VYSAKH, AGED 23 YEARS, S/O.HARIKUMAR. G, USHAS
VEETTIL, POOVATHOOR EAST, KULAKKADA.P.O.,
KALAYAPURAM VILLAGE, KOTTARAKKARA TALUK, KOLLAM
DISTRICT - 691521.
IMPLEADED AS ADDL.R6 AS PER ORDER DATED
20.05.2022 IN IA 2/2022.
ADDL.R7 VYSHNAV, AGED 20 YEARS, S/O HARIKUMAR. G, USHAS
VEETTIL, POOVATHOOR EAST, KULAKKADA.P.O.,
KALAYAPURAM VILLAGE, KOTTARAKKARA TALUK,
KOLLAM DISTRICT - 691521.
IMPLEADED AS ADDL.R7 AS PER ORDER DATED
20.05.2022 IN IA 2/2022.
BY ADVS.
GEORGE VARGHESE(PERUMPALLIKUTTIYIL)
NAVANEETH D.PAI
P.J.JOE PAUL
MANU SRINATH
A.R.DILEEP
NIMESH THOMAS
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
23.06.2022, ALONG WITH WP(C).12843/2022, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
Mat.Appeal No.1106/2018 & W.P.(C) No.12843/2022 3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
THURSDAY, THE 23RD DAY OF JUNE 2022 / 2ND ASHADHA, 1944
WP(C) NO. 12843 OF 2022
PETITIONER/S:
LATHA P NAIR., AGED 45 YEARS,
W/O.LATE HARIKUMAR.G, USHAS VEETTIL,
POOVATHOOR EAST, KULAKKADA.P.O,
KALAYAPURAM VILLAGE,
KOTTARAKKARA TALUK,
KOLLAM DISTRICT-691521.
BY ADVS.
K.MOHANAKANNAN
H.PRAVEEN (KOTTARAKARA)
RESPONDENT/S:
1 UNION OF INDIA, REPRESENTED BY ITS SECRETARY
TO GOVERNMENT, MINISTRY OF RAILWAYS,
FEDERATION OF RAILWAY OFFICER'S ASSOCIATION
OFFICE, 256-A, RAIL BHAVAN,
RAISINA ROAD, NEW DELHI-110001.
2 GENERAL MANAGER, OFFICE OF THE GENERAL MANAGER,
WEST CENTRAL RAILWAY, INDIRA MARKET, JABALPUR,
MADHYA PRADESH-482001.
3 DIVISIONAL RAILWAY MANAGER, WEST CENTRAL
RAILWAY, DRM ROAD, BENGALI COLONY, N-2,
HABIBGANJ, BHOPAL, MADHYA PRADESH-462024.
4 WELFARE INSPECTOR, WEST CENTRAL RAILWAY,
ITARSI, BHOPAL, MADHYA PRADESH-461111.
Mat.Appeal No.1106/2018 & W.P.(C) No.12843/2022 4
ADDL.R5 VYSAKH.H. , AGED 23 YEARS,
S/O.HARIKUMAR.S., USHAS VEETTIL,
POOVATHOOR EAST, KULAKKADA P.O.,
KALAYAPURAM VILLAGE, KOTTARAKARA TALUK,
KOLLAM DISTRICT-691 521.
ADDL.R6 VYSHNAV.H., S/O.HARIKUMAR.S.,
USHAS VEETTIL, POOVATHOOR EAST,
KULAKKADA P.O., KALAYAPURAM VILLAGE,
KOTTARAKARA TALUK, KOLLAM DISTRICT-691 521.
ARE IMPLEADED AS ADDL. R5 & R6 AS PER ORDER
DATED 20.05.2022 IN IA NO.1/2022 IN WP(C)
NO.12843/2022.
BY ADVS.
MANU S., ASG OF INDIA
NAVANEETH D.PAI
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
23.06.2022, ALONG WITH Mat.Appeal.1106/2018, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
Mat.Appeal No.1106/2018 & W.P.(C) No.12843/2022 5
JUDGMENT
[Mat.Appeal No.1106/2018 & W.P.(C) No.12843/2022] A.Muhamed Mustaque, J.
Mat.Appeal No.1106/2018 This appeal arises out of a decree of divorce granted in favour of the husband. The wife is the appellant. The decree of divorce was passed on 14.09.2018. The husband died on 29.03.2020. This Court had granted a stay against the operation of the decree of divorce on 3.12.2018. The husband was an employee in Railway. On his death, there arose a dispute regarding terminal benefits. The wife also filed W.P.(C) No.12843/2022 for disbursement of the family pension. In view of the fact that the right of the wife to claim family pension is directly connected to the challenge against the divorce granted in favour of the husband, we ordered tagging the writ petition filed by the wife for claiming terminal benefits as W.P.(C) No.12843/2022 along with Mat.Appeal No.1106/2018. Both cases came up today for hearing. Mat.Appeal No.1106/2018 & W.P.(C) No.12843/2022 6
2. We heard the learned counsel for the petitioner Adv.K.Mohanakannan assisted by Adv.H.Praveen and Adv. Nimesh Thomas who appeared for the legal heirs of the deceased husband.
3. It is to be noted that the children were not a party to the proceedings. They were brought on record, subsequently, on the death of the deceased husband. The legal heirs of the husband who would have succeeded to the estate of the deceased husband if divorce decree is confirmed were also brought on record in Mat.Appeal based on the order of this Court on 27.1.2021.
4. The learned counsel who appeared for the sisters of the deceased husband stoutly opposed the maintainability of the appeal, at the outset. It is argued that the appeal is not maintainable. It is also submitted that the Family Court granted a decree of divorce on the ground of cruelty and the fact finding was based on the materials produced before the Family Court and the oral evidence of the husband.
Mat.Appeal No.1106/2018 & W.P.(C) No.12843/2022 7
5. We are of the view that these matters have to be decided at the first instance on the maintainability of the appeal, consequent upon the death of the husband. The learned counsel for the wife relying upon the judgments of the Apex Court in Smt.Yallawwa v. Smt.Shantavva[(1997) AIR (SC) 35] and R.Lakshmi v. K.Saraswathi Ammal [(1996) 6 SCC 371] submitted that the appeal is maintainable even if one of the spouses dies after the decree. It is submitted that the right to file an appeal is a statutorily conferred right and it cannot be taken away consequent upon the death of one of the parties to the proceedings. It is further submitted that once the rights and obligations of the parties are crystallized through the orders of the Court, what is questioned before the appellate authority or higher authority is the order of the court, even though the cause of action to the proceedings leading to the order or decree is based on a personal cause of action. Per contra, the learned counsel for the contesting parties would submit that the appeal is abated inasmuch as divorce is a personal remedy available to one of the spouses and consequent upon the death of Mat.Appeal No.1106/2018 & W.P.(C) No.12843/2022 8 such spouse, the proceedings will come to a halt.
6. We are of the view that the appeal is maintainable inasmuch as that the appeal provision is not depending upon the death of the parties to the proceedings. Once the rights and obligations of the parties are crystalized, the appellate court in the appeal is examining the matter based on the findings rendered by the court. The death of one of the parties to the proceedings after the decree will not render the proceedings as abated. The statutory provision conferring the right to challenge such decree is relatable to the findings made in the decree and not relatable to the personal right that was available to the parties who initiated the proceedings or based on the cause of action available to such parties. The Apex Court judgments referred as above, clearly fortifies the maintainability of an appeal. Therefore, we hold that the appeal is maintainable.
7. The next question is regarding merit. The divorce was granted to the husband on the ground of Mat.Appeal No.1106/2018 & W.P.(C) No.12843/2022 9 cruelty. We can classify the finding of facts as relatable to three aspects. Firstly, denial of physical relationship with the husband. Secondly, using sim cards and contacting strangers at odd hours and thirdly, the intimacy of the wife with one of her relatives, namely, Subhash. The point to be considered in this appeal is based on the appreciation of the evidence. We shall advert to each of the aspects in this appeal.
8. The husband was admittedly working in Madhya Pradesh and the wife was working in Kollam District as a teacher. The husband died in harness. The Family Court found that the marriage has been irretrievably broken down and there was hardly any intimacy left between the parties during the subsistence of the marriage. It is found that the parties was living separately from 2010 onwards and that itself would amount to cruelty. It is to be noted that the husband occasionally comes on leave to his native place. He has no specific case that on those occasions, the wife refused to have a relationship with him. On the other hand, his case is that the wife is found using Mat.Appeal No.1106/2018 & W.P.(C) No.12843/2022 10 different sim cards and contacting others. That means he was staying with his wife whenever he comes on leave. It was also the case of the husband that she failed to respond to his call. There may be some misunderstanding between the parties. The facts clearly would show that the husband used to come on leave and used to stay at the residence of the wife. It cannot be assumed that there was no physical relationship between the parties. In the wedlock, two children were born in the year 1999 and 2002. Though the husband had alleged that there was no physical and mental relationship between him and his wife, there is nothing on record to prove his allegations. On the other hand, visiting the native place and staying with his wife clearly would show that they were living together whenever he was on leave. The finding made by the Family Court that there was no physical intimacy between them, according to us, absolutely, was without materials in the background of the case.
9. The next allegation is pointing out the use of different sim cards by the wife. This aspect could have Mat.Appeal No.1106/2018 & W.P.(C) No.12843/2022 11 been proved by summoning the records from the service providers. According to the husband, he has seen some obscene messages on the phone. He has not stated the nature of the obscene messages he has seen. The wife has denied all these allegations. When the wife denied the allegations of using different sim cards, the husband could have very well summoned call records from the service providers.
10. The wife's intimacy with Subhash has been pointed out as cruelty. The husband has no case that the wife was leading an adulterous life. The wife is a school teacher. According to her, Subhash is the son of a paternal aunt and 10 years younger than her. She explained that she has no other intimacy with Subhash except being a relative. Merely raising such bald allegations without any supporting evidence would actually amount to cruelty against whom such allegations have been raised.
11. No evidence was adduced by the husband to prove the cruelty alleged against the wife. On mere surmises and conjunctures, the court cannot grant a divorce. We, Mat.Appeal No.1106/2018 & W.P.(C) No.12843/2022 12 therefore, are of the view that the impugned judgment has to be set aside. Accordingly, it is set aside. The appeal is allowed.
W.P.(C) No.12843/2022 This writ petition is directly connected to the decision in Mat.Appeal. We have set aside the decree of divorce granted in favour of deceased Harikumar, the husband of the petitioner. When the matter is taken up, the counsel for the wife and the counsel for the children would submit that they have no objection in releasing the entire DCRG in the name of the children who are additional respondents 5 and 6 in the writ petition. The learned counsel for respondents 5 and 6 also has no objection in receiving DCRG in equal proportions. The petitioner as well as respondents 5 and 6 in the writ petition also agreed that the amount may be deposited in fixed deposit in a nationalised bank until they attain the age of 25. It is also agreed that the interest can be used by the children. We record the submission. Accordingly, we pass the following orders in the writ petition: Mat.Appeal No.1106/2018 & W.P.(C) No.12843/2022 13 i. The Railway Authority is directed to disburse DCRG in two equal shares in the name of respondents 5 and 6 in fixed deposit in State Bank of India, Kottarakkara Branch.
ii. The fixed deposit can be liquidated by respondents 5 and 6 only when they attain the age of 25. Respondents 5 and 6 are permitted to withdraw the interest accrued from time to time.
iii. The Railway Authority can release the family pension to the petitioner if she is otherwise found entitled to recover the same, in accordance with law.
Sd/-
A.MUHAMED MUSTAQUE JUDGE Sd/-
SOPHY THOMAS JUDGE ln Mat.Appeal No.1106/2018 & W.P.(C) No.12843/2022 14 APPENDIX OF WP(C) 12843/2022 PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE DEATH CERTIFICATE ISSUED BY THE REGISTRAR OF BIRTH AND DEATHS, DEPARTMENT OF URBAN AFFAIRS, KOLLAM DATED 05.06.2020.
EXHIBIT P2 TRUE COPY OF THE JUDGMENT DATED 14/9/2018 IN OP(HMA) 682/2015.
EXHIBIT P3 TRUE COPY OF THE JUDGMENT DATED 14/9/2018 IN OP(HMA)NO.682/2015.
EXHIBIT P4 TRUE COPY OF THE INTERIM ORDER PASSED BY THIS HON'BLE COURT DATED 3/12/2018 IN MAT APPEAL 1106/2018.
EXHIBIT P5 TRUE COPY OF THE REPRESENTATION FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT DATED NIL.
EXHIBIT P6 TRUE COPY OF THE COMMUNICATION ISSUED BY THE 3RD RESPONDENT O THE PETITIONER DATED 08/12/2020 ALONG WITH ENGLISH TRANSLATION.
EXHIBIT P7 TRUE COPY OF THE BIRTH CERTIFICATE OF VYSAKH.H DATED 06/03/1999.
EXHIBIT P8 TRUE COPY OF THE BIRTH CERTIFICATE OF VYSHNAV.H DATED 13/06/2001.
EXHIBIT P9 TRUE COPY OF THE FAMILY PASS ISSUED BY THE WESTERN CENTRAL RAILWAY, BHOPAL CIRCLE DATED NIL ALONG WITH ITS ENGLISH TRANSLATION.
EXHIBIT P10 TRUE COPY OF THE COMBINED NOMINATION FORM FOR PF, GIS AND DCRG SUBMITTED BY LATE SHRI.HARIKUMAR.G, BEFORE WEST CENTRAL RAILWAY ALONG WITH A TYPED LEGIBLE COPY OF THE SAME.