Kerala High Court
Jini vs Vijay Anthrapper @K.A Joseph on 30 November, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
TUESDAY, THE 30TH DAY OF NOVEMBER 2021 / 9TH AGRAHAYANA, 1943
MAT.APPEAL NO. 358 OF 2013
AGAINST THE ORDER/JUDGMENT IN OP 23/2009 OF FAMILY COURT,
THRISSUR
APPELLANTS/RESPONDENTS:
1 JINI
AGED 34 YEARS
D/O.EDAKKALATHUR JOB, MUTHUVARA DESOM, PUZHAKKAL P
O AND VILLAGE, THRISSUR DISTRICT
2 JOB
AGED 74 YEARS
EDAKKALTHUR HOUSE, MUTHUVARA DESOM, PUZHAKKAL P O
AND VILLAGE, THRISSUR DISTRICT.
3 ROSY
AGED 67 YEARS, W/O.EDAKKALATHUR JOB,MUTHUVARA
DESOM, PUZHAKKAL P O AND VILLAGE, THRISSUR
DISTRICT.
BY ADV SRI.RAJIT
RESPONDENT/PETITIONER:
VIJAY ANTHRAPPER @ K A JOSEPHY
AGED 37 YEARS
AGED 37 YEARS, S/O.KOOTANGAL ALEXANDER ANTRAPPER,
KADAKKARAPPALLI DESOM AND POST, CHERTHALA TALUK
BY ADVS.
SMT.R.RAJITHA
SRI.P.SANTHOSH PODUVAL
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
30.11.2021, ALONG WITH Mat.Appeal.378/2013, 692/2016, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Mat.Appeal No.358 of 2013 & conn. cases 2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
TUESDAY, THE 30TH DAY OF NOVEMBER 2021 / 9TH AGRAHAYANA,
1943
MAT.APPEAL NO.378 OF 2013
AGAINST THE ORDER/JUDGMENT IN OP 1378/2005 OF FAMILY COURT,
THRISSUR
APPELLANT/PETITIONER:
JINI, AGED 35 YEARS,
D/O.EDAKALATHUR JOB, MUTHUVARA DESOM, PUZHAKKAL
(PO), AND VILLAGE, THRISSUR DISTRICT.
BY ADV SRI.RAJIT
RESPONDENT/RESPONDENT:
VIJAY ANTHRAPPER @K.A JOSEPH
AGED 38 YEARS, S/O.KOOTANGAL ALEXANDER
ANTHRAPPER, KADAKKARAPPALLI DESOM AND
P.O.,CHERTHALA TALUK.
BY ADVS.
SMT.VINAYA V.NAIR
SRI.SANTHOSH P.PODUVAL
SMT.R.RAJITHA
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
30.11.2021, ALONG WITH Mat.Appeal.No.358/2013 & 692/2016,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Mat.Appeal No.358 of 2013 & conn. cases 3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
TUESDAY, THE 30TH DAY OF NOVEMBER 2021 / 9TH AGRAHAYANA,
1943
MAT.APPEAL NO. 692 OF 2016
AGAINST THE ORDER/JUDGMENT IN OP 1383/2005 OF FAMILY
COURT,THRISSUR
APPELLANT/PETITIONER:
JINI
D/O. EDAKALATHOOR JOB, AGED 36 YEARS, MUTHUVARA
DESOM, PUZHAKKAL VILLAGE, THRISSUR TALUK,
THRISSUR DISTRICT.
BY ADV SRI.RAJIT
RESPONDENTS/RESPONDENTS:
1 VIJAY ANTHRAPER @ K.A.JOSEPH
AGED 43 YEARS,S/O. KOTTUNGAL JOSEPH ALEXANDER
ANTHRAPER @ KUNJICHANDIYACHAN, KADAKARAPPALLY,
CHERTHALA TALUK, ALAPPUZHA DISTRICT - 670391
2 K.J ALEXANDER ANTHRAPER @ KUNJICHANDIYACHAN
S/O. KOTTUNGAL JOSEPH KADAKARAPPALLY, CHERTHALA
TALUK,ALAPPUZHA DISTRICT - 670 331.
THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION
ON 30.11.2021, ALONG WITH Mat.Appeal No.358/2013 &
378/2013, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
Mat.Appeal No.358 of 2013 & conn. cases 4
A.MUHAMED MUSTAQUE &
SOPHY THOMAS, JJ.
---------------------------------------------
Mat. Appeal Nos.358 & 378 of 2013 &
692 of 2016
--------------------------------------------
Dated this the 30th day of November, 2021
JUDGMENT
Sophy Thomas, J.
These appeals arise out of the common order in
O.P No.1378 of 2005, O.P No.1383 of 2005 and O.P No.23 of
2009, on the files of Family Court, Thrissur.
2. The wife Smt.Jini filed O.P.No.1378 of 2005 for
declaration of nullity of marriage, in the alternative for a decree
of divorce on the ground of matrimonial cruelties. She filed
O.P.No.1383 of 2005 for return of money, gold and household
articles against her husband and father-in-law. The husband
Sri.Vijay Anthrapper filed O.P. No.23 of 2009 claiming the
expenses he had incurred for the engagement and marriage
i.e.Rs.2,25,000/- and also compensation of Rs.5 lakhs for
defaming him as an impotent.
3. The Family Court, Thrissur tried the above O.Ps
Mat.Appeal No.358 of 2013 & conn. cases 5
together, treating the Divorce O.P No.1378 of 2005 filed by the
wife for divorce as the leading case. PWs 1 to 5 were examined
and Exts.A1 to A8 were marked from the side of petitioner-wife.
RW1 was examined from the side of the respondent-husband.
Exts.X1 and X2 were marked as witness exhibits.
4. On evaluating the facts and evidence, the Family Court
dismissed O.P No.1378 of 2005 filed by the wife for divorce,
allowed O.P No.1383 of 2005 filed by the wife for recovery of
patrimony and allowed in part O.P No.23 of 2009 filed by the
husband for compensation.
5. Against dismissal of the O.P for divorce, the wife filed
Mat.Appeal No.378 of 2013. In the decree for recovery of
patrimony, regarding relief No.(i), the 1st respondent-husband
alone was found liable for return of 45 sovereigns of gold or its
equivalent value Rs.2,56,500/- and the 2 nd respondent-father-
in-law was exonerated from the liability, though he was made
liable under relief Nos.(ii) and (iii). Challenging exoneration of
the 2nd respondent, and also challenging the market value of the
gold ordered to be paid in default of return of gold, Mat.Appeal
No.692 of 2016 was filed by the wife. The wife and her parents
filed Mat.Appeal No.358 of 2013 assailing the judgment and
Mat.Appeal No.358 of 2013 & conn. cases 6
decree in O.P No.23 of 2009 in which they were directed to pay
compensation of Rs.2 lakh to the petitioner/ husband.
6. Heard learned counsel appearing for the appellants and
also the learned counsel appearing for the respondents.
7. The appellant-wife (Smt.Jini) and respondent-husband
(Sri.Vijay Anthrapper) in Mat.Appeal No.378 of 2013 shall be
referred as the appellant and respondent hereinafter.
8. The appellant-wife sought for a decree of nullity of
marriage alleging that the respondent-husband was impotent
and he was not capable of performing sexual act. In the
alternative, she was claiming a decree of divorce, on the ground
of cruelty. The Family Court found that the allegation of non-
consummation of marriage on account of impotency of the
respondent could not be proved by the appellant. The
testimony of PWs 4 and 5, Doctors, coupled with Exts.X1, X2
and Ext.A8 were found sufficient to hold that the respondent-
husband had no psychiatric illness or sexual dysfunction. On
analysing the evidence available, we agree with that finding and
there is nothing to suggest that he was incapable of indulging in
sexual intercourse. So, that finding is not liable to be disturbed.
9. The appellant-wife is alleging matrimonial cruelties
Mat.Appeal No.358 of 2013 & conn. cases 7
from the part of the respondent-husband and his mother. The
respondent was alleging that the appellant was not having
mental growth and her parents suppressed that fact from him.
He was even suggesting the appellant to undergo an intelligence
quotient test to prove that fact before court. At the same time,
it has come out in evidence that he filed O.P. No.279 of 2006
before the Family Court, Alappuzha for restitution of conjugal
rights. If the appellant was mentally challenged or she was a
person having no mental growth, we cannot expect that the
respondent will file an O.P for restitution of conjugal rights. It is
alleged that she was compelled to bring water from a nearby
pond in pots though water connection was available in his
house. The respondent is rather admitting the same and he was
justifying that act as an exercise for her.
10. PW1, Smt.Jini, narrated the mental and physical
cruelties she had to suffer at her matrimonial home. The very
fact that the respondent was alleging lack of mental growth for
the appellant, without any factual foundation could be treated as
mental cruelty from the part of the husband. According to the
respondent, he was capable of performing sexual act. The
appellant is alleging that the respondent was reluctant even to
Mat.Appeal No.358 of 2013 & conn. cases 8
touch her. Abstaining from matrimonial obligations by a husband
without any reasonable cause will also amount to matrimonial
cruelty.
11. The parties are living separately for the last more than
16 years. If the matrimonial cruelties alleged by the appellant
were of trivial nature, definitely, the parties could have resumed
cohabitation by this time. From the available facts and
circumstances, this Court is inclined to find that the respondent
subjected the appellant to matrimonial cruelties which she was
not able to cope up with and so, she went back to her paternal
house. So, the appellant is entitled for a decree of divorce on
the ground of matrimonial cruelties.
12. The appellant in Mat.Appeal No.692 of 2016 is claiming
Rs.9 lakhs towards value of gold ornaments and according to
her, the father-in-law also is to be made liable for that amount.
She is admitting that, in the O.P she was claiming only
Rs.2,56,500/- towards the value of 45 sovereigns of gold, and
that was decreed by the Family Court. She has no dispute with
respect to the other reliefs granted by the Family Court in that
decree. Since she was given a decree for the gold claimed, or
the value equivalent thereof as claimed in the O.P, the
Mat.Appeal No.358 of 2013 & conn. cases 9
Mat.Appeal No.692 of 2016 is liable to be dismissed. Since the
entrustment of gold was found to be with the respondent-
husband, the father-in-law was rightly exonerated, and so much
so, the appeal on that ground also, is liable to be rejected.
13. In O.P. No.23 of 2009 filed by the respondent-
husband, compensation of Rs.2 lakh was awarded by the Family
Court. The respondent was claiming compensation of
Rs.2,25,000/- towards engagement and marriage expenses, and
Rs.5 lakhs as compensation for depicting him as an impotent.
As far as the marriage expenses are concerned, both the bride
and bridegroom might have incurred expenses. The details of
the expenses were not furnished by the respondent. Moreover,
regarding the allegation of impotence made against the
husband, it was made as a ground for nullity of marriage. It
has to be found that the husband was alleging mental incapacity
against the wife, and he even requested to subject her for an
intelligence quotient test.
14. It is quite common in matrimonial disputes, parties to
the marriage attributing allegations and counter allegations to
suit their claim. If courts are called upon to pay compensation
on each and every such allegations, it will be a non-ending
Mat.Appeal No.358 of 2013 & conn. cases 10
process. So, the lower court went wrong in awarding
compensation of Rs.2 lakhs to the respondent-husband, for
alleging non-consummation of marriage in an O.P filed by the
wife for nullity of marriage, on the ground of impotency. So,
Mat.Appeal No.358 of 2013 is liable to be allowed.
15. In the result, Mat.Appeal No.378 of 2013 is allowed
setting aside the judgment and decree in O.P. No.1378 of 2005.
That O.P. stands allowed dissolving the marriage between the
appellant and respondent solemnised on 28.11.2004.
Mat.Appeal No.358 of 2013 is also allowed setting aside
the judgment and decree in O.P No.23 of 2009. Mat.Appeal
No.692 of 2016 is dismissed confirming the judgment and
decree in O.P No.1383 of 2005. The parties shall suffer their
respective costs in all the appeals.
Sd/-
A.MUHAMED MUSTAQUE
JUDGE
Sd/-
SOPHY THOMAS
JUDGE
smp
