Kerala High Court
Alphonsa @ Daisy vs Aprem @ Sunny on 7 April, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
THURSDAY, THE 7TH DAY OF APRIL 2022 / 17TH CHAITHRA, 1944
MAT.APPEAL NO. 1130 OF 2015
AGAINST THE ORDER/JUDGMENT IN OP 314/2013 OF FAMILY
COURT, PALA
APPELLANT/1st RESPONDENT:
ALPHONSA @ DAISY, W/O.SUNNY, PARAYAKKUNNEL
HOUSE, CHEMPAKKAPPARA, IDUKKI, NOW WORKING AT
SENIOR DPO, O/MAS, NGO ANNEXE, CHENNAI
DIVISION, SOUTHERN RAILWAY, PORT TOWN, CHENNAI.
BY ADVS.
SRI.P.VISWANATHAN (SR.)
SRI.AJITH VISWANATHAN
SRI.P.T.GIRIJAN
RESPONDENTS:
1 APREM @ SUNNY, S/O.THOMAS, PUTHUPPARAMBIL
HOUSE, THAMAREKKUNNU, CHIRAKADAVU P.O.,
KANJIRAPPALLY, NOW WORKING AS OS, SR.DIVISIONAL
PERSONNEL OFFICE, 3RD FLOOR, ANNEX BUILDING,
SOUTHERN RAILWAY, PARK TOWN, CHENNAI-600 025.
2 AJAY PARASAD, LOKO PILOT, S/O.D.VISWANATHAN,
NO.6/2, MANI RATINAM STREET, AYYAOABOO, NAIDU
COLONY, ANANCHI KARAI, CHENNAI-600 025.
BY ADV SRI.P.K.RAVISANKAR
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
07.04.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
MAT.APPEAL NO. 1130 OF 2015
..2..
J U D G M E N T
A.Muhamed Mustaque, J
This appeal was filed by the wife challenging the
divorce granted on a petition filed by her husband on
the ground of cruelty. Pending appeal, husband
passed away. His children are brought on record as
legal heirs as additional respondents three and four.
The point that arises for consideration is whether
appeal is maintainable consequent upon the death of
one of the spouse to the marriage and secondly, if
the appeal is maintainable, whether the decree of
divorce granted has to be interfered or not.
2. The appeal remedy is a statutory remedy,
though divorce is on personal ground available to one
of the spouse. The death of the spouse will not
forfeit the right of the other spouse to challenge
the appeal in accordance with law. Otherwise, the
MAT.APPEAL NO. 1130 OF 2015
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very right of the aggrieved, to file an appeal will
be lost consequent to the death of the parties. We
are of the view that the appeal is maintainable even
though the husband who moved the petition for divorce
is no more.
3. Though the husband had projected adultery as
well as cruelty as a ground for divorce, the Family
Court did not grant divorce on the ground of
adultery. The Family Court found mental cruelty on
the side of the appellant-wife to grant divorce to
the husband. The mental cruelty portrayed before the
Family Court was the frequent calls made by the wife
to the second respondent. According to the husband
the wife was having illicit relationship with the
second respondent. Both the husband and wife were
the employees of Railway. Except the calls generated
through the phone of the wife, no other reasons have
been pointed out to prove mental cruelty. In fact,
the Family Court relied on Ext.A2 call records to
MAT.APPEAL NO. 1130 OF 2015
..4..
show that there were calls made by the wife to the
second respondent the alleged paramour during
midnight. 16 calls were noted on 29.05.2011 and also
on some other days.
4. According to the wife, on account of the
cruelty meted out to her from her husband, she
called the second respondent, being a family friend,
and she had no intention other than to seek his
assistance to sort out her family problem. No doubt,
such calls which are not explained may give room for
suspicion, but not necessarily every such calls made
in midnight, to be treated as a call fortifying
illicit relationship. In the absence of any other
evidence, we are not able to accept or endorse the
finding of cruelty rendered by the Family Court.
Absolutely, no other awkward conduct of the appellant
had been pointed out or called in question by the
husband. In such circumstances, we are of the view
that the impugned judgment has to be set aside.
MAT.APPEAL NO. 1130 OF 2015
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Accordingly, we allow this appeal and the impugned
judgment granting divorce is set aside. No costs.
Sd/-
A.MUHAMED MUSTAQUE
JUDGE
Sd/-
SOPHY THOMAS
JUDGE
PR
