Gopalakrishnan vs Rethnamma
2021 Latest Caselaw 8797 Ker

R.P.No.25/2021 IN Mat.Appeal. 866/2016

                             1

         IN THE HIGH COURT OF KERALA AT ERNAKULAM

                          PRESENT

      THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE

                             &

            THE HONOURABLE MR.JUSTICE C.S.DIAS

 WEDNESDAY, THE 17TH DAY OF MARCH 2021 / 26TH PHALGUNA,
                          1942

         RP.No.25 OF 2021 IN Mat.Appeal. 866/2016

AGAINST THE JUDGMENT IN Mat.Appeal 866/2016 OF HIGH COURT
                        OF KERALA


REVIEW PETITIONER/APPELLANT::

           GOPALAKRISHNAN
           AGED 57 YEARS
           SON OF LATE THIRUVANKUTTY, GIGI BHAVANAM,
           VANAVATHUKARA, THIRUVANDOOR VILLAGE,
           ERAMALLIKKARA P.O, CHENGANNUR TALUK, ALAPPUZHA
           DISTRICT-690 512.

           BY ADV. SMT.KOCHUMOL KODUVATH

RESPONDENT/RESPONDENTS:

     1     RETHNAMMA
           AGED 52 YEARS
           DAUGHTER OF LATE GOPALAN, PALANIKUNNEL HOUSE,
           PERANGADU KARA, NEERVILAKAM P.O, ARANMULA
           VILLAGE, 690 518

     2     GOPALAKRISHNAN T.K,
           AGED 50 YEARS
           SON OF LATE KOCHUKUNJU, THOZHUVAMVECHATHIL
           HOUSE, VANAVATHUKARA, THIRUVANDOOR VILLAGE,
           ERAMALIKKARA P.O, CHENGANNUR TALUK, ALAPPUZHA
           DISTRICT-690 512


     THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON
17.03.2021, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
 R.P.No.25/2021 IN Mat.Appeal. 866/2016

                               2

                             ORDER

C.S.DIAS,J.

Being aggrieved by the judgment dated

23.1.2020 passed by this Court in Mat.A No.866/2016,

the appellant has filed the review petition.

2. The review petitioner had filed Mat.A

No.866/2016 challenging the judgment and decree in

O.P. 892/2014 on the file of the Family Court,

Mavelikara. The respondents in the review petition

were the respondents in the appeal.

3. The review petitioner had filed O.P.

No.892/2014 before the Family Court under Section

13 (1) (i) (ia) & (ib) of the Hindu Marriage Act,1955

(in short ' Act') seeking a decree for dissolution of

his marriage with the 1st respondent on the grounds

that the 1st respondent was living in adultery with the

2nd respondent, had treated the review petitioner

with cruelty and had also deserted him for a period of

more than two years.

R.P.No.25/2021 IN Mat.Appeal. 866/2016

4. The original petition was resisted by the 1 st

respondent, who filed a written objection denying the

allegations in the original petition. According to her,

it was the review petitioner who brutally

manhandled her and their daughter while he was in

an inebriated stage. Due to the unbearable atrocities

that were meted out on her, she was constrained to

leave the matrimonial home on 31.8.2011.

5. The review petitioner was examined as PW1

and his sister and cousin brother were examined as

PW2 and PW3. The 1st respondent was examined as

RW1 and Ext.B1 was marked through her.

6. The Family Court by the impugned

judgment and decree dismissed the original petition.

7. Challenging the judgment and decree of the

Family Court, the review petitioner filed Mat.Appeal

866/2016.

8. This Court, after considering the pleadings

and materials on record, by the impugned judgment R.P.No.25/2021 IN Mat.Appeal. 866/2016

confirmed the finding of the Family Court

disbelieving the oral testimonies of PW1 to PW3 and

also finding that the review petitioner had failed to

prove that the 1st respondent had sexual intercourse

with the 2nd respondent or that the 1st respondent had

treated the review petitioner with cruelty or deserted

him. It is also found that the review petitioner and

the 1st respondent lived together for a period of 20

years after the retirement of the review petitioner on

30.4.1992. It was only on 30.8.2014 that the review

petitioner filed the original petition. Accordingly, it

was held that the original petition was hit by sub-

clause (b) of sub-section 1 of Section 23 of the Act.

Likewise, it was held that as the review petitioner

continued to cohabit with the 1st respondent till

31.8.1992, even after learning that the 1 st respondent

had committed adultery in 1979, the review

petitioner had condoned the acts of adultery alleged

against the 1st respondent, as provided under sub- R.P.No.25/2021 IN Mat.Appeal. 866/2016

clause (b) of sub-section (1) of Section 23 of the Act.

9. After a complete re-appreciation of the

pleadings and materials on record, this Court found

that there was no error or illegality in the impugned

judgment passed by the Family Court, dismissing the

original petition. Consequently, the Mat.Appeal was

dismissed confirming the judgment and decree of the

Family Court.

10. It is now contended before this Court that

the impugned judgment passed by this Court suffers

from errors apparent on the face of record for the

reasons that when the ground of desertion is averred

in an original petition, it is wrong for this Court to

invoke sub-clause (b) of sub-section (1) of Section 23

of the Act and when the ground of cruelty is averred,

which is a continuing wrong, it was erroneous for this

Court to have invoked the above provision of law.

Likewise, it is contended that this Court had wrongly

eschewed the evidence of the 2nd respondent for the R.P.No.25/2021 IN Mat.Appeal. 866/2016

reason that he was not examined in Court. Hence

the judgment may be reviewed.

11. Heard the learned counsel appearing for the

review petitioner and the learned counsel appearing

for the 1st respondent.

12. The grounds that have been raised in the

review petition are all matters which have been

elaborately dealt with by this Court in the impugned

judgment.

13. The specific case of the review petitioner in

the original petition was that he was married to the 1 st

respondent on 24.11.1977. The 1st respondent had

sexual intercourse with the 2nd respondent in the

Malayalam month of Vrischikam in the English

Calendar Year 1979. Undisputedly, the review

petitioner retired from the Indian Army on

30.4.1992 and lived with the 1 st respondent till

31.8.2011. It was after 31.8.2011, that the 1 st

respondent left the matrimonial home which R.P.No.25/2021 IN Mat.Appeal. 866/2016

according to the petitioner was an act of desertion,

but according to the 1st respondent was due to the

cruelty that was meted out on her. The fact remains

that the review petitioner sought a decree of divorce

on the ground of adultery, cruelty and desertion on

the afore stated allegation only on 30.8.2014, even

after knowing that the 1st respondent had sexual

intercourse with the 2nd respondent in the year 1979.

14. On a complete and comprehensive re-

appreciation of the pleadings and materials on

record, this Court found that the review petitioner

had lived with the 1st respondent without any demur

or protest from 30.4.19092 till 31.8.2011. Therefore,

it was held that the instances of alleged adultery,

cruelty and desertion have certainly been condoned

by the review petitioner by resumption of

cohabitation with the 1st respondent and they lived

together for twenty long years after the retirement of

the review petitioner. It was in the said R.P.No.25/2021 IN Mat.Appeal. 866/2016

circumstances that this Court on finding that the

review petitioner has not proved any of the grounds

alleged in the original petition in addition to the acts

of condonation and unnecessary and improper delay

in instituting the proceedings, dismissed the appeal

confirming the judgment of the Family Court. We do

not find any error apparent on the face of record

warranting interference by this Court in exercise of

its review jurisdiction. The review petition is devoid

of any merits and is consequently dismissed.

Sd/-

A.MUHAMED MUSTAQUE

JUDGE

Sd/-

C.S.DIAS ma/19.3.2021 JUDGE /True copy/