Kerala High Court
Momet Alex vs Asha John on 10 September, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
FRIDAY, THE 10TH DAY OF SEPTEMBER 2021 / 19TH BHADRA, 1943
MAT.APPEAL NO. 971 OF 2017
AGAINST THE JUDGMENT IN O.P.NO.706/2013 OF FAMILY COURT,
PATHANAMTHITTA, DATED 29.03.2017
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APPELLANT/S:
1 MOMET ALEX, AGED 39 YEARS,
S/O.LATE ALEXANDER, R/O. MUTHIRAPARAMBIL,
KOODAL P.O, KOODAL MURI, KOODAL VILLAGE,
KALANJOOR PANCHAYATH, ADOOR TALUK,
PATHANAMTHITTA DISTRICT.
2 KUNJAMMA ALEX, AGED 70 YEARS,
W/O. LATE ALEXANDER, R/O MUTHIRAPARAMBIL,
KOODAL P.O, KOODAL MURI, KOODAL VILLAGE,
KULANJOOR PANCHAYATH, ADOOR TALUK,
PATHANAMTHITTA DISTRICT.
BY ADV SRI.V.PHILIP MATHEW
RESPONDENT/S:
ASHA JOHN, AGED 35 YEARS, W/O. MOMET ALEX,
R/O.CHAKKALAMANNIL, KOODAL MURI, KOODAL VILLAGE, ADOOR
TALUK, PATHANAMTHITTA DISTRICT, PIN-689 693.
BY ADVS.
SRI.M.JAYAKRISHNAN
SRI.G.UNNIKRISHNAN
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD
ON 04.08.2021, ALONG WITH Mat.Appeal NO.1146/2018,
THE COURT ON 10.09.2021 DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
FRIDAY, THE 10TH DAY OF SEPTEMBER 2021 / 19TH BHADRA, 1943
MAT.APPEAL NO. 1146 OF 2018
AGAINST THE JUDGMENT IN O.P.(DIV.)NO.197/2016 OF FAMILY COURT,
PATHANAMTHITTA, DATED 29.03.2017
--------------
APPELLANT/S:
MOMET ALEX, AGED 39 YEARS,
S/O LATE ALEXANDER, R/O MUTHIRAPARAMBIL,
KOODAL P.O., KOODAL MURI, KOODAL VILLAGE,
KALANJOOR PANCHAYATH, ADOOR TALUK,
PATHANAMTHITTA DISTRICT.
BY ADVS.
V.PHILIP MATHEW
SRI.GIBI.C.GEORGE
RESPONDENT/S:
ASHA JOHN, AGED 35 YEARS,
W/O MOMET ALEX, R/O CHAKKALAMANNIL,
KOODAL MURI, KOODAL VILLAGE, ADOOR TALUK, PATHANAMTHITTA
DISTRICT-689693.
BY ADVS.
SRI.G.UNNIKRISHNAN
SRI.M.JAYAKRISHNAN
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD
ON 04.08.2021, ALONG WITH Mat.Appeal NO.971 OF
2017, THE COURT ON 10.09.2021 DELIVERED THE
FOLLOWING:
A.MUHAMED MUSTAQUE & DR.KAUSER EDAPPAGATH, JJ.
=========================
Mat. Appeal Nos.971/2017 & 1146/2018
~~~~~~~~~~~~~~~~~~~~~~~~~
Dated this the 10th day of September, 2021
JUDGMENT
A.Muhamed Mustaque, J.
These matrimonial appeals relate to denial of divorce to the
husband and allowing a claim for recovery of patrimony from the
husband and his mother. Both matters were tried together by the
Family Court, Pathanamthitta. A common judgment was passed
on 29/3/2017. For the sake of brevity, we refer the parties as per
their marital status.
Mat. Appeal Nos.971/2017 & 1146/2018
2. We shall first advert to M.A.No. 971/2017, the appeal filed
by the husband and his mother challenging the direction for
recovery of money. The marriage took place in accordance with
the Christian Community ceremonies and rites on 30/6/2003. It
is the admitted case of both the parties that the wife's parents
promised to give Rs.3,50,000/- as patrimony. There was also no
dispute to the fact that Rs.1,50,000/- was received by the husband
and his family. The above amount was deposited in the State
Bank of Travancore, Pathanapuram Branch in the joint name of
the husband and wife. The amount is now lying in the bank and
as on 27/12/2012, with the accrued interest, the amount available
in the account was Rs.2,59,015/-.
3. One of the prayers of the wife in the petition for recovery of
patrimony from the husband and his mother was to declare that
the amount lying in the joint account belongs to her. That prayer
Mat. Appeal Nos.971/2017 & 1146/2018
has been allowed by the Family Court. There was a serious
dispute in regard to payment of Rs.2,00,000/-, out of
Rs.3,50,000/-. According to the husband, that amount was never
paid, though it was promised. The Family Court overruled this
objection and found that the husband and his family are liable to
pay that amount. The Family Court relied on the evidence of the
wife and her father. However, the Family Court rejected the
claim for value of gold ornaments allegedly entrusted with the
husband and his family and misappropriated by them. There is
no challenge against dismissal of that claim.
4. Admittedly, the money now lying in the joint account was
given by the father of the wife at the time of marriage. We,
therefore, find no difficulty to hold that she alone is entitled for
that amount. The declaration granted by the Family Court,
therefore, does not require any interference.
Mat. Appeal Nos.971/2017 & 1146/2018
5. In regard to the claim for Rs.2,00,000/-, it was alleged that
PW2, the father of the wife entrusted the amount with the
husband's father on 10/7/2003. He explained the source of the
amount and entrustment of the amount as narrated above. It is
the admitted case that at the time of marriage, wife's father
agreed to pay a sum of Rs.3,50,000/- as patrimony. The
husband's case that the above amount was never paid is
unbelievable. In Christian community, there is a practice of
handing over the share as patrimony at the time of marriage.
This Court in Bexy Michael v. A.J.Michael [2010 (4) KHC 376)
took judicial notice of such practice. We are in complete
agreement with the judgment of the Division Bench as above.
We, therefore, hold that the wife is entitled for return of
Rs.2,00,000/- as well. We, accordingly, affirm the finding of the
Family Court. M.A.No.971/2017 filed by the husband and his
mother is, therefore, only to be dismissed.
Mat. Appeal Nos.971/2017 & 1146/2018
6. The other appeal, M.A.No.1146/2018 is filed by the husband,
aggrieved by the dismissal of petition for divorce filed by him.
The grounds canvassed for divorce are alleging cruelty and
unsound mind attributable to the wife. To substantiate the claim
for divorce, the husband was examined. A Psychiatrist was also
examined on the side of the husband. It is alleged by the husband
that the wife used to abuse his mother often and also had
manhandled her. It is also stated by him that she used to doubt
the fidelity of the husband. It is further stated by him that his
brother was working abroad and his brother's wife was residing
near to his house and the appellant's wife used to cook up stories
having illicit relationship with the brother's wife. It is also his
case that the wife is having mental ailment and on account of this,
she had serious behavioural problem. The wife denied all the
allegations. According to her, the marital life was smooth till the
demise of husband's father on 4/12/2008. It is alleged by her that
Mat. Appeal Nos.971/2017 & 1146/2018
after the demise of husband's father, husband and his mother
used to torture her. It is also stated by her that they insisted for
payment of a further amount of Rs.2,00,000/- as patrimony. It is
contended by her that the husband and mother colluded together
and filed a civil suit and based on the order of civil court she was
thrown out of the matrimonial house. She stated that the
husband made arrangements to consult a Doctor of his choice
and took her to the hospital. According to her, she never suffered
any mental ailment.
7. In the wedlock, a child was born. The husband was working
in military at the time of marriage. The wife in the chief
examination had stated that the marital life was not smooth.
According to her, there was a constant demand for patrimony.
The wife never admitted that she had any mental ailment. In the
chief examination itself she has stated that marriage has been
Mat. Appeal Nos.971/2017 & 1146/2018
made miserable by the mother-in-law. She attributed cruelty on
the husband and his mother. In this case, the oral testimony of
the Doctor and Ext.X1 medical records are crucial. The Doctor
stated that the wife was admitted on 13/4/2010 in St.Vincent
Hospital and she was discharged on 29/4/2010. It was stated by
him that the wife was violent when she was brought to the
hospital and she was administered a sedative injunction. In the
case history it was recorded that she was having doubt on the
husband and there were quarrels between them on making
phone calls. It was also recorded that the husband insisted for
divorce. It was also stated by the Doctor that she came for
treatment on a few more occasions. Ext.X1 is the patient's record.
It is recorded in the case history the following:
Mat. Appeal Nos.971/2017 & 1146/2018
Mat. Appeal Nos.971/2017 & 1146/2018
The Doctor diagnosed her suffering from schizophrenia.
8. The medical records and the evidence and pleadings of the
husband clearly establish the pattern of behaviour of the wife.
Though divorce was sought on the ground of unsound mind as
referable under Section 10 (1)(iii) of the Divorce Act 1869, the
ailment as above cannot be treated as something falling under the
above ground. We are also not adverting to this inasmuch as
there were no arguments at the Bar in regard to divorce on the
ground of unsound mind of the wife. Much argument has been
Mat. Appeal Nos.971/2017 & 1146/2018
raised relying on the medical evidence to substantiate the claim
for divorce on the ground of cruelty.
9. Before adverting to the ailment and related behaviour of the
wife and the claim for divorce on the ground of cruelty, we shall
advert to some of the precedents of the Apex Court. The Apex
Court in Vinitha Saxena v. Pankaj Pandit [2006 (2) KLT 150 (SC)]
adverted to cruel behaviour attributable to Schizophrenia and
concluded at para.18 as follows:
18. The appellant filed a petition for divorce under S.13(1)(i-a) and (iii) of the Act on
the ground of mental and physical cruelty. It is also her case that on account of
Paranoid Schizophrenia that the respondent was suffering from, the appellant could not
be reasonably expected to live with the respondent.
The Apex Court also adverted to the disease schizophrenia and its
causes at paras.22 to 25 as follows:
A RESEARCH ON THE DISEASE
"Schizophernia is one of the most damaging of all mental disorders. It causes its victims
to lose touch with reality. They often begin to hear, see or feel things that aren't really
there (hallucinations) or become convinced of things that simply aren't true (delusions).
Mat. Appeal Nos.971/2017 & 1146/2018
In the paranoid form of this disorder, they develop delusions of persecution or personal
grandeur. The first signs of paranoid schizophrenia usually surface between the ages of
15 and 34. There is no cure, but the disorder can be controlled with medications. Severe
attacks may require hospitalization."
What is the disease and what one should know?
* A psychotic lacks insight, has the whole of his personality distorted by illness,
and constructs a false environment out of his subjective experiences.
* It is customary to define 'delusion' more or less in the following way. A delusion
is a false unshakeable belief, which is out of keeping with the patient's social and
cultural background.' German psychiatrists tend to stress the morbid origin of the
delusion, and quite rightly so. A delusion is the product of internal morbid processes
and this is what makes it unamenable to external influences.
• Apophanuous experiences which occur in acute schizophrenia and form the
basis of delusions of persecution, but these delusions are also the result of auditory
hallucinations, bodily hallucinations and experiences of passivity. Delusions of
persecution can take many forms. In delusions of reference, the patient feels that
people are talking about him, slandering him or spying on him. It may be difficult to
be certain if the patient has delusions of self-reference or if he has self-reference
hallucinosis. Ideas of delusions or reference are not confined to schizophrenia, but
can occur in depressive illness and psychogenic reactions.
Causes
The causes of schizophrenia are still under debate. A chemical imbalance in the
brain seems to play a role, but the reason for the imbalance remains unclear. One is
a bit more likely to become schizophrenic if he has a family member with the
illness. Stress does not cause schizophrenia, but can make the symptoms worse.
Mat. Appeal Nos.971/2017 & 1146/2018
Risks
Without medication and therapy, most paranoid schizophrenics are unable to
function in the real world. If they fall victim to severe hallucinations and delusions,
they can be a danger to themselves and those around them.
What is schizophrenia?
Schizophrenia is a chronic, disabling mental illness characterized by:
* Psychotic symptoms
* Disordered thinking
• Emotional blunting
How does schizophrenia develop?
Schizophrenia generally develops in late adolescence or early adulthood, most often:
* In the late teens or early twenties in men
* In the twenties to early thirties in women
What are the symptoms of schizophrenia?
Although schizophrenia is chronic, symptoms may improve at times (periods of
remission) and worsen at other times (acute episodes, or period of relapse).
Initial symptoms appear gradually and can include:
* Feeling tense
Mat. Appeal Nos.971/2017 & 1146/2018
* Difficulty concentrating
* Difficulty sleeping
* Social withdrawal
What are psychotic symptoms?
Psychotic symptoms include:
* Hallucinations: hearing voices or seeing things
* Delusions: bizarre beliefs with no basis in reality (for example, delusions of
persecution or delusions of grandeur)
These symptoms occur during acute or psychotic phases of the illness, but may
improve during periods of remission.
A patient may experience
* A single psychotic episode during the course of the illness
* Multiple psychotic episodes over a lifetime
* Continuous psychotic episodes
During a psychotic episode, the patient is not completely out of touch with reality.
Nevertheless, he/she has difficulty distinguishing distorted perceptions of reality
(hallucinations, delusions) from reality, contributing to feelings of fear, anxiety, and
confusion.
The disorder can prove dangerous for some - especially when symptoms of paranoia
Mat. Appeal Nos.971/2017 & 1146/2018
combine with the delusional symptoms of schizophrenia. In fact, doctors say
paranoid schizophrenics are notorious for discontinuing the treatments which help
control their symptoms.
10. In Shrikant Anandrao Bhosale v. State of Maharashtra
[(2002) 7 SCC 748] the Apex Court at paras 10 and 11 referred
to about paranoid schizophrenia as follows:
10. What is paranoid schizophrenia, when it starts, what are its characteristics and
dangers flowing from this ailment? Paranoid schizophrenia, in the vast majority of
cases, starts in the fourth decade and develops insidiously. Suspiciousness is the
characteristic symptom of the early stage. Ideas of reference occur, which gradually
develop into delusions of persecution. Auditory hallucinations follow, which in the
beginning, start as sounds or noises in the ears, but afterwards change into abuses or
insults. Delusions are at first indefinite, but gradually they become fixed and definite, to
lead the patient to believe that he is persecuted by some unknown person or some
superhuman agency. He believes that his food is being poisoned, some noxious gases are
blown into his room, and people are plotting against him to ruin him. Disturbances of
general sensation give rise to hallucinations, which are attributed to the effects of
hypnotism, electricity, wireless telegraphy or atomic agencies. The patient gets very
irritated and excited owing to these painful and disagreeable hallucinations and
delusions. Since so many people are against him and are interested in his ruin, he comes
to believe that he must be a very important man. The nature of delusions thus may
change from persecutory to the grandiose type. He entertains delusions of grandeur,
power and wealth, and generally conducts himself in a haughty and overbearing
manner. The patient usually retains his memory and orientation and does not show
signs of insanity, until the conversations is directed to the particular type of delusion
from which he is suffering. When delusions affect his behaviour, he is often a source of
Mat. Appeal Nos.971/2017 & 1146/2018
danger to himself and to others. (Modi's Medical Jurisprudence and Toxicology (22nd
Edn.)).
11. Further, according to Modi, the cause of schizophrenia is still not known but
hereditary plays a part. The irritation and excitement are effects of illness. On delusion
affecting behaviour of a patient, he is a source of danger to himself and to others.
11. It is to be noted that, in the case in hand, the wife had never
admitted or accepted her ailment of schizophrenia. She, in fact,
had put up a case that it was her husband, who took her to the
hospital to attribute mental illness. We have gone through the
deposition of the Doctor, who was examined as RW2. The
treatment was in the year 2010. The case for divorce was filed
only in the year 2013. As seen from the medical records, she was
taken to the hospital by her maternal uncle. The Doctor had also
spoken to her mother. She disclosed to the Doctor that the wife
was also treated at St.Gregorius Hospital, Parumala, on an earlier
occasion. The medical records and testimony of the Doctor would
show that the husband and family had no role in taking the wife
to the hospital. Paranoid schizophrenia is a mental illness. The
Mat. Appeal Nos.971/2017 & 1146/2018
literature on this which is available online would show that the
patient would show up in different ways at different times; and
they are unreasonably suspicious of others.( 1) These patients carry
delusions as fixed beliefs and feel that those are real to him or
her. In the light of the medical evidence, we need not disbelieve
the oral testimony of the husband in regard to the suspicion she
had on the fidelity of the husband. We also need not to disbelieve
the oral testimony of the husband narrating wife's conduct
towards his mother. In fact, the wife failed to prove cruelty by the
husband or his mother. The Court cannot grant divorce merely
based on the ailment of one's spouse. However, when a spouse
refuses to acknowledge ailment and treatment, the Court has to
view seriously of such stand of the spouse. It is not a case where
one was prepared to undergo treatment and come out of the
ailment. It is a case where one prefers to suppress the ailment
1 https://www.webmd.com/schizophrenia/schizophrenia-paranoia viewed on 9/9/2021
Mat. Appeal Nos.971/2017 & 1146/2018
and raises counter allegations as against the other spouse
without any reason.
12. In Kollam Chandra Sekhar v. Kollam Padma Latha [(2014) 1
SCC 225], the Apex Court held that merely for the reason that a
wife suffered schizophrenia, the divorce cannot be granted. The
facts in the above case show that the husband failed to prove that
wife was suffering from serious case of schizopernia. There was
also no serious psychotic illness. Further, the wife responded to
the treatment very well.
13. In the present case, the wife refused to acknowledge that she
is suffering from the ailment. The medical records and Doctor's
evidence clearly establish that she suffered an acute form of
ailment. If she refuses to accept it, that itself will make the
relationship miserable. "Cruelty", essentially, is accepted as a
Mat. Appeal Nos.971/2017 & 1146/2018
ground for divorce on the principles of fault for worsening the
marital relationship .
14. A spouse cannot be forced to live with another with whom the
other spouse cannot maintain any normal relationship that is
expected in marital life. If one spouse behaves in such a manner,
mindless of the consequence of her ailments and refuses to
acknowledge the same and expects the other spouse to continue
the relationship, is nothing but cruelty.
15. The learned counsel for the wife placing reliance on
Jayakrishnan G.Nair v. Salini Prasanna Balachandran Nair [2013
(2) KHC 268] and Beena v. Sundaresan [2016 (1) KLT 546]
argued that no case has been made out by the husband as there
were no proper pleadings in the petition. The pleadings clearly set
out the nature of the behaviour. The husband brought medical
evidence to prove the nature of behavior. The Court is not
Mat. Appeal Nos.971/2017 & 1146/2018
granting any divorce on account of unsound mind. Of course, to
grant such divorce, pleadings are lacking. But the pleadings in
regard to the cruel behaviour have been clearly set out in the
petition and have been substantiated by evidence. We, in such
circumstances, hold that the husband succeeded in proving the
divorce on account of cruelty.
Accordingly, we dismiss M.A.No.971/2017 and allow
M.A.No.1146/2018 and declare that the marriage solemnised
between the appellant and the respondent on 30.6.2003 is
dissolved by a decree of divorce. No order as to costs.
Sd/- A.MUHAMED MUSTAQUE, JUDGE
Sd/- DR.KAUSER EDAPPAGATH, JUDGE
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