Kerala High Court
Anu Mary Yohannan vs Manu Philip on 1 March, 2021
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Mat.Appeal.No.256 OF 2018
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MR.JUSTICE C.S.DIAS
MONDAY, THE 01ST DAY OF MARCH 2021 / 10TH PHALGUNA, 1942
Mat.Appeal.No.256 OF 2018
AGAINST THE ORDER/JUDGMENT IN OPDIV 223/2016 DATED 31-01-2018 OF
FAMILY COURT, THODUPUZHA
APPELLANT/S:
ANU MARY YOHANNAN
AGED 29 YEARS, D/O.YOHANNAN D.T.,OLAKKENGIL HOUSE,
MOTHER STREET, CHEROOR, THRISSUR.
BY ADV. SRI.C.CHANDRASEKHARAN
RESPONDENT/S:
MANU PHILIP
AGED 31 YEARS, S/O.K.P.PAILY, KADAVUNKAL HOUSE,
THODUPUZHA KARA, THODUPUZHA VILLAGE, THODUPUZHA
TALUK, IDUKKI DISTRICT.
R1 BY ADV. SRI.P.I.GEORGEKUTTY
R1 BY ADV. SRI..SHAJI JOSEPH CAVEATOR
R1 BY ADV. SRI.T.KRISHNANUNNI SR.
R1 BY ADV. SRI.SHAJI JOSEPH
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 23-02-
2021, THE COURT ON 01-03-2021 DELIVERED THE FOLLOWING:
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Mat.Appeal.No.256 OF 2018
A.MUHAMED MUSTAQUE & C.S.DIAS, JJ.
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Mat.Appeal No. 256 of 2018
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Dated this the 1st day of March, 2021.
JUDGMENT
C.S.DIAS , J.
The respondent in OP(Div) 223/2016 on the file of the
Family Court, Thodupuzha is the appellant. The petitioner in
the above original petition is the respondent in the appeal.
2. The respondent had filed the above original
petition under Secs 10 (1)(x), 18 and 19 of the Divorce Act,
1869, seeking to declare his marriage with the appellant null
and void or in the alternative to dissolve his marriage with
the appellant by a decree of divorce.
3. The germane facts in the original petition, relevant
for the determination of the appeal, are: the respondent was
married to the appellant on 11.5.2015 at St.Mary's Forane
Church, Chunkam, Thodupuzha. The couple is issueless.
The respondent and the appellant are Engineers by
profession. The respondent is working in the United States
Mat.Appeal.No.256 OF 2018
of America. Right from the beginning of the marital life, the
appellant behaved indifferently towards the respondent.
The respondent found the appellant to be immature and she
lacked manners in her words and deeds. During the
customary visits to the respondent's sister's house, the
appellant behaved in an inappropriate manner. The
appellant repeated the same kind of behaviour even at the
respondent's paternal aunt's house. On the way back from
aunt's house, the appellant had an argument with
respondent and she got down from the car at 7.00 p.m and
sat on the side of the road attracting the attention of drivers
and pedestrians causing humiliation to the respondent. The
appellant was arrogant, short tempered and rough in her
talks. The respondent left to USA two weeks after the
marriage. Thereafter, the appellant resided in the
matrimonial home along with the respondent's parents, who
are sick and bedridden. However, the appellant did not
take care of the respondent's parents and refused to do any
household chores. The appellant has a habit of hiding in the
corner of the bedroom when the respondent's parents tried
Mat.Appeal.No.256 OF 2018
to advice her. The appellant made a hue and cry over trivial
issues. She also was in the habit of leaving the house
without informing the parents of the respondent. On
14.6.2015 the appellant left the matrimonial home. She was
found roaming in Thodupuzha town calling the attention of a
Police Officer. It is after about two hours, she returned back
to the matrimonial home. The respondent's parents turned
very tensed and frantic on not finding the appellant. The
respondent's father has a good reputation in the locality.
The above act of the appellant caused disgrace to the family.
On 8.7.2015 the appellant turned violent. She threatened
and harassed the respondent's bedridden mother. She used
to cause severe mental distress to the respondent's mother
by switching off the lights in the house. Without any reason,
the appellant proclaimed that she was pregnant. Thereafter,
she said that in the pregnancy test, she turned negative.
Due to the erratic behaviour of the appellant, the
respondent and his parents felt that the appellant had some
behavioural disorder. The appellant used to sent umpteen
number of emails and messages to the respondent which
Mat.Appeal.No.256 OF 2018
irritated and frustrated him. He was unable to concentrate
on his work. The appellant also levelled unsubstantiated
allegations against the respondent's family members. She
even alleged that the respondent's father was a mental
patient. Nevertheless, in some of the emails and messages
that were sent to the respondent, the appellant admitted
that her father was under medication for mental disorder
and that her elder brother was suffering from unsoundness
of mind and was under treatment. The above fact was
suppressed from the respondent at the time of fixing the
marriage. This act of suppression was a fraud perpetrated
on the respondent and his family members. In the said
circumstances, the respondent is entitled for a decree to
declare his marriage with the appellant null and void. Due
to the atrocities and cruelty that was meted out on the
respondent, he was also entitled for a decree of divorce on
the ground of cruelty. Hence, the original petition.
4. The appellant filed a written objection, inter alia,
refuting the allegations in the original petition. She
admitted the marriage. It was her case that the couple lived
Mat.Appeal.No.256 OF 2018
together only for a period of 14 days. The respondent
mentally and physically harassed the appellant. After the
marriage, the respondent's father demanded the appellant
to keep all her gold ornaments in the matrimonial home.
The respondent and his father used to turn violent if the
appellant received any telephone calls from her mother. The
appellant has a friendly and kind nature towards the
respondent and his family members. The respondent's sister
enquired about the appellant's parental property and its
value. She sarcastically said that the respondent would
have got a wealthier person as his life partner and more
dowry. On one occasion, the respondent's father asked
whether the appellant was a mental patient and was under
any medication. The respondent's father harassed the
appellant in every possible way, which clearly devalued the
dignity of the appellant as a women and human being. The
respondent's sister also demanded the appellant not to go
for work. The respondent's parents and sister continuously
tortured the appellant by creating issues in the matrimonial
home. The appellant was brutally harassed in the
Mat.Appeal.No.256 OF 2018
matrimonial home. The respondent's father behaved
indecently towards the appellant. The appellant was
shocked to receive a divorce notice after an incident that
occurred in June 2016. The respondent is in a habit of
watching X-rated movies on his mobile phone. Even though
the appellant warned the respondent not to indulge in
smoking and drinking, he did not adhere to her advice. The
respondent seemed to be having obsessive compulsive
disorder and he always doubted the appellant. The
respondent spoiled the life of the appellant, who had a very
bright future as a B.Tech graduate. The intention of the
respondent is to spoil the image of the appellant's family in
the society. The respondent absconded within 14 days after
the marriage. The original petition is without any merits and
is liable to be dismissed.
5. The respondent and a witness were examined as
PWs 1 and 2 and Exts A1 to A6 were marked through them.
The appellant was examined as RW1 and Exts B1 to B8 were
marked through her.
6. The Family Court, after analysing the pleadings
Mat.Appeal.No.256 OF 2018
and materials on record, by the impugned judgment and
decree allowed the original petition by declaring the
marriage between the appellant and the respondent null and
void.
7. Aggrieved by the said judgment and decree, the
appellant/respondent is in appeal.
8. Heard Sri.C.Chandrasekharan, the learned counsel
appearing for the appellant and Sri.Krishnanunni, the
learned Senior Counsel appearing for the respondent.
9. On a reappreciation of the pleadings and materials
on record, we find that the respondent has given more
emphasis in his pleadings and evidence regarding the
alleged instances of cruelty committed by the appellant. He
also produced Exts A2 to A6 messages allegedly sent by the
appellant to prove the ground of cruelty. A reading of the
written objection and oral testimony of the appellant - RW1
and Exts B2 to B8 documents, would also establish that the
appellant had attempted to prove that the respondent had
meted out cruelty on her and he has taken advantage of his
own wrong. Nevertheless, the Family Court went on a totally
Mat.Appeal.No.256 OF 2018
different tangent. The Family Court based on the alleged
communication of the appellant to the respondent, that the
appellant's father and brother are suffering from
unsoundness of mind, held that the non-disclosure of the
mental illness of the brother and father was a fraud
perpetrated by the appellant on the respondent, which
vitiated the marriage and, therefore, the respondent was
entitled to a decree of nullity.
10. After considering the pleadings and materials on
record, particularly the oral testimonies of PWs 1 and 2 and
RW1, we are of the opinion that the respondent has not
proved that the appellant's father and brother have mental
illness, so as to vitiate the consent for the marriage. Other
than for interested oral testimonies of PWs 1 and 2, there is
no material to arrive at such a conclusion. In light of the
decree of nullity granted, the alternative relief for divorce
was not at all considered by the Family Court.
11. In Samar Ghosh vs Jaya Ghosh [(2007) 4 SCC
511] a three Judge Bench of the Hon'ble Supreme Court has
laid down exhaustive guidelines on the acts that constitute
Mat.Appeal.No.256 OF 2018
cruelty. Illustration Nos (i) to (xiv) in paragraph 101 of the
said judgment lays down the acts that constitute cruelty.
12. On a cumulative analysis of the entire pleadings
and materials on record, we are of the opinion that the
finding of the Family Court that the appellant had committed
fraud on the respondent by not revealing the fact that her
father and brother were persons of unsound mind is patently
erroneous and unsustainable in law. Declaring a marriage
null and void is a very serious matter because it wipes out a
jural relationship. If such a decree has to be passed, there
should be cogent materials, which according to us, is lacking
in the case.
13. In the above peculiar circumstances, to meet the
ends of justice, we are of the firm opinion that the Family
Court is to be directed to reconsider OP 223/2016 after
considering the entire pleadings and materials in its proper
perspective. We are conscious of the mandate under Order
XLI Rule 23 (a) of the Code of Civil Procedure that a decree
shall not be reversed as a matter of routine, but for the
reasons mentioned above, we are compelled to adopt such a
Mat.Appeal.No.256 OF 2018
course.
14. In the result, the appeal is allowed and the
judgment and decree in OP 223/2016 are set aside by
remitting back OP 223/2016 to the Family Court to
reconsider the case afresh. Taking note of the fact that the
original petition is of the year 2016, we direct the Family
Court to consider and dispose of OP 223/2016, in
accordance with law, as expeditiously as possible, after
affording both the appellant and respondent an opportunity
of adducing additional evidence and being heard. The
parties are directed to appear before the Family Court,
Thodupuzha on 22.3.2021 either in person or through their
counsel. The parties shall bear their respective costs.
Sd/-
A.MUHAMED MUSTAQUE
JUDGE
Sd/-
C.S.DIAS
Sks/24.2.2021 JUDGE
