Kerala High Court
Gerry Douglas vs State Of Kerala on 17 June, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
FRIDAY, THE 17TH DAY OF JUNE 2022 / 27TH JYAISHTA, 1944
MAT.APPEAL NO.478 OF 2016
AGAINST THE JUDGMENT & DECREE IN OP 868/2009 OF FAMILY
COURT, THIRUVANANTHAPURAM
APPELLANT/PETITIONER:
XXXXX
BY ADVS.
SRI.P.B.SAHASRANAMAN
SRI.T.S.HARIKUMAR
RESPONDENT/RESPONDENT:
XXXXX
BY JERRY DOUGLAS(Party-In-Person)
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
17.06.2022, ALONG WITH MAT.APPEAL No.693 OF 2016 AND
CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
Mat.Appeal No.478 of 2016 & 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
FRIDAY, THE 17TH DAY OF JUNE 2022 / 27TH JYAISHTA, 1944
MAT.APPEAL NO. 693 OF 2016
AGAINST THE JUDGMENT DTD.13.01.2016 IN OP 868/2009 OF
FAMILY COURT, THIRUVANANTHAPURAM.
APPELLANT/COUNTER PETITIONER:
XXXXX
BY GERRY DOUGLAS(Party-In-Person)
RESPONDENT/PETITIONER:
XXXXX
BY ADVS.
SRI.T.S.HARIKUMAR
SRI.P.B.SAHASRANAMAN
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
31.05.2022, ALONG WITH Mat.Appeal.478/2016 AND CONNECTED
CASES, THE COURT ON 17.06.2022 DELIVERED THE FOLLOWING:
Mat.Appeal No.478 of 2016 & 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
FRIDAY, THE 17TH DAY OF JUNE 2022 / 27TH JYAISHTA, 1944
MAT.APPEAL NO. 1433 OF 2017
AGAINST THE JUDGMENT DTD.07.10.2017 IN OP 746/2014 OF
FAMILY COURT, PATHANAMTHITTA
APPELLANT/PETITIONER:
XXXXX
BY GERRY DOUGLAS(Party-In-Person)
RESPONDENTS:
1 XXXXX
2 XXXXX
3 XXXXX
4 XXXXX
BY ADVS.
SRI.T.S.HARIKUMAR
SRI.P.B.SAHASRANAMAN
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
31.05.2022, ALONG WITH Mat.Appeal.478/2016 AND CONNECTED
CASES, THE COURT ON 17.06.2022 DELIVERED THE FOLLOWING:
Mat.Appeal No.478 of 2016 & conn. cases 4
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
FRIDAY, THE 17TH DAY OF JUNE 2022 / 27TH JYAISHTA, 1944
MAT.APPEAL NO.117 OF 2021
AGAINST THE ORDER DTD. 26.05.2020 IN OP 1269/2014 OF
FAMILY COURT, PATHANAMTHITTA
APPELLANT/PETITIONER:
XXXXX
BY GERRY DOUGLAS(Party-In-Person)
RESPONDENT/RESPONDENTS 1 TO 3:
1 XXXXX
2 XXXXX
3 XXXXX
BY ADVS.
P.B.SAHASRANAMAN
T.S.HARIKUMAR
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
31.05.2022, ALONG WITH Mat.Appeal.478/2016 AND CONNECTED
CASES, THE COURT ON 17.06.2022 DELIVERED THE FOLLOWING:
Mat.Appeal No.478 of 2016 & conn. cases 5
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
FRIDAY, THE 17TH DAY OF JUNE 2022 / 27TH JYAISHTA, 1944
OP (FC) NO. 31 OF 2017
AGAINST THE COMMON ORDER DTD.13.1.2016 IN I.A.2448/14,
2449/14 & 2450/14 IN O.P No.868/2009 OF FAMILY COURT,
THIRUVANANTHAPURAM
PETITIONER/PETITIONER:
XXXXX
BY GERRY DOUGLAS(Party-In-Person)
RESPONDENT/COUNTER PETITIONER/PW2:
XXXXX
BY ADVS.
SRI.T.S.HARIKUMAR
SRI.P.B.SAHASRANAMAN
THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON
31.05.2022, ALONG WITH Mat.Appeal.478/2016 AND CONNECTED
CASES, THE COURT ON 17.06.2022 DELIVERED THE FOLLOWING:
Mat.Appeal No.478 of 2016 & conn. cases 6
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
FRIDAY, THE 17TH DAY OF JUNE 2022 / 27TH JYAISHTA, 1944
OP (FC) NO. 32 OF 2017
AGAINST THE COMMON ORDER DTD.13.1.2016 IN I.A.2448/14,
2449/14 & 2450/14 IN O.P No.868/2009 OF FAMILY COURT,
THIRUVANANTHAPURAM
PETITIONER/PETITIONER:
XXXXX
BY GERRY DOUGLAS(Party-In-Person)
RESPONDENT/COUNTER PETITIONER/PW3:
XXXXX
BY ADVS.
SRI.T.S.HARIKUMAR
SRI.P.B.SAHASRANAMAN
THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON
31.05.2022, ALONG WITH Mat.Appeal.478/2016 AND CONNECTED
CASES, THE COURT ON 17.06.2022 DELIVERED THE FOLLOWING:
Mat.Appeal No.478 of 2016 & conn. cases 7
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
FRIDAY, THE 17TH DAY OF JUNE 2022 / 27TH JYAISHTA, 1944
OP (FC) NO. 42 OF 2017
AGAINST THE COMMON ORDER DTD.13.1.2016 IN I.A.2449/14 IN
O.P No.868/2009 OF FAMILY COURT, THIRUVANANTHAPURAM
PETITIONER/PETITIONER:
XXXXX
BY GERRY DOUGLAS(Party-In-Person)
RESPONDENT/COUNTER PETITIONER/PW1:
XXXXX
BY ADVS.
SRI.T.S.HARIKUMAR
SRI.P.B.SAHASRANAMAN
THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON
31.05.2022, ALONG WITH Mat.Appeal.478/2016 AND CONNECTED
CASES, THE COURT ON 17.06.2022 DELIVERED THE FOLLOWING:
Mat.Appeal No.478 of 2016 & conn. cases 8
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
FRIDAY, THE 17TH DAY OF JUNE 2022 / 27TH JYAISHTA, 1944
CRL.REV.PET NO. 757 OF 2018
AGAINST THE JUDGMENT DTD.22.3.2017 IN CRL.A 558/2012 OF
ADDITIONAL DISTRICT & SESSIONS COURT - V,
THIRUVANANTHAPURAM
AGAINST THE ORDER/JUDGMENT IN MC 67/2010 OF ADDITIONAL
CHIEF JUDICIAL MAGISTRATE ,TRIVANDRUM
REVISION PETITIONER/APPELLANT No.1/RESPONDENT No.1:
XXXXX
BY GERRY DOUGLAS(Party-In-Person)
RESPONDENTS/RESPONDENTS/PETITIONER:
1 XXXXX
2 XXXXX
BY ADVS.
T.S.HARIKUMAR
P.B.SAHASRANAMAN
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
ADMISSION ON 31.05.2022 ALONG WITH Mat.Appeal.478/2016 AND
CONNECTED CASES, THE COURT ON 17.06.2022 DELIVERED THE
FOLLOWING:
Mat.Appeal No.478 of 2016 & conn. cases 9
A.MUHAMED MUSTAQUE &
SOPHY THOMAS, JJ.
--------------------------------------------
Mat.Appeal Nos.478 & 693 of 2016,
1433 of 2017, 117 of 2021,
O.P (F.C) Nos.31, 32 & 42 of 2017 &
Crl.R.P No.757 of 2018
-------------------------------------------
Dated this the 17th day of June, 2022
JUDGMENT
Sophy Thomas , J.
The parties to the proceedings are husband and wife. The
wife filed O.P No.868 of 2009 before Family Court,
Thiruvananthapuram for recovery of gold ornaments and
money from the husband. The husband filed O.P No.746 of
2014 before Family Court, Pathanamthitta for recovery of gold
from the wife. He filed O.P No.1269 of 2014 before Family
Court, Pathanamthitta for dissolution of marriage. The Family
Court, Thiruvananthapuram decreed in part O.P No.868 of
2009 filed by the wife. Against rejection of her prayer for
return of patrimony, she preferred Mat.Appeal No.478 of 2016,
Mat.Appeal No.478 of 2016 & conn. cases 10
and against the decree granted in her favour, the husband
preferred Mat.Appeal No.693 of 2016. Alleging perjury against
PWs 1 to 3 in O.P No.868 of 2009, the husband filed I.As,
under Section 340 of Cr.P.C to prosecute them. Against
dismissal of those I.As by the Family Court, he preferred
O.P (FC) Nos.31 of 2017, 32 of 2017 and 42 of 2017.
2. Against dismissal of O.P No.1269 of 2014 for
divorce, the husband preferred Mat.Appeal No.117 of 2021,
and against dismissal of his O.P No.746 of 2014 for recovery of
gold, he preferred Mat.Appeal No.1433 of 2017.
3. Against the protection order obtained by the wife
under Section 12 of the Protection of Women from Domestic
Violence Act, 2005, the husband preferred Crl.Appeal No.558 of
2012 before Additional District and Sessions Court-V,
Thiruvananthapuram and against dismissal of that appeal, he
has preferred Crl.R.P No.757 of 2018.
4. The husband and wife shall be referred as the
appellant and respondent hereinafter, for the purpose of
convenience.
5. The marriage between the appellant and the
Mat.Appeal No.478 of 2016 & conn. cases 11
respondent was solemnised on 16.09.1995 at St.Jude
Malankara Syrian Catholic Church, Kulanada in Pathanamthitta
district. According to the respondent, 125 sovereigns of gold
ornaments and Rs.5 lakh was the patrimony given to her from
her family. The entire gold ornaments and cash were entrusted
with the appellant and his father, in trust for her. At the time
of marriage, the appellant was working in Kuwait and he took
the respondent also to Kuwait on a housemaid visa. After
reaching Kuwait, she was working on temporary basis in
different institutions, and her entire salary was received by the
appellant and misappropriated by him. Two children were born
in their wedlock. Her matrimonial life was miserable as she was
ill-treated mentally and physically by the appellant. In July,
2009 she was sent back from Kuwait and she was not allowed
even to take her children along with her. After reaching her
paternal home at Thiruvananthapuram, she filed O.P No.868 of
2009 for getting back her patrimony as well as her salary
received by the appellant.
6. In the year 2014, the appellant approached Family
Court, Pathanamthitta, with O.P No.1269 of 2014 for
Mat.Appeal No.478 of 2016 & conn. cases 12
dissolution of marriage on the ground of adultery, cruelty and
desertion, and he filed O.P No.746 of 2014 before the very
same court for getting back 96.25 sovereigns of gold
ornaments allegedly entrusted with the respondent or its
equivalent value. The Family Court, Pathanamthitta was
pleased to dismiss both the O.Ps filed by him.
7. Admittedly the appellant and respondent are living
separately from 2009 July onwards, filing cases against each
other, and making allegations and counter allegations to their
detriment. The elder daughter became major by this time, and
she is married away. The younger son is now 17 years old and
is pursuing his Plus 2. 54 cases are there to their credit, filed
for and against. But it seems that, even now they have not
lost their vigour to continue their fight against each other.
8. Now let us examine each case one by one to find out
whether any interference is warranted in the judgments/orders
impugned.
Mat.Appeal.117 of 2021
9. This appeal is filed by the husband, against
dismissal of O.P No.1269 of 2014 filed by him, for getting
Mat.Appeal No.478 of 2016 & conn. cases 13
divorce from the wife.
10. The appellant was claiming divorce on the ground of
cruelty, adultery and desertion. The Family Court found that
the adultery alleged against the wife with respondents 2 and 3
was a false story and in fact, the appellant hired the
2nd respondent to cook up a case against her. Learned counsel
Sri.T.S.Harikumar appearing for the respondent pointed out
that, the 2nd respondent appeared before the Family Court,
even without getting a notice from the court, and he gave
evidence against the respondent, in collusion with the
appellant. The case of adultery with the 3 rd respondent also
was not found to be genuine, and there is nothing on record to
enter into a different finding. So the dismissal of the divorce
petition, finding that the ground of adultery was not proved
against the respondent, is liable to be upheld.
11. The ground of desertion was also found against the
appellant by the Family Court. The available facts and evidence
are sufficient to show that, when the ill-treatment became
unbearable, the respondent made a complaint before the
embassy in Kuwait on 08.06.2009, with a request to send her
Mat.Appeal No.478 of 2016 & conn. cases 14
back to her native. Meanwhile on 02.07.2009, a divorce
decree was passed by Kuwait Ministry of Justice, on a petition
filed by the appellant, and visa of the respondent was cancelled
on the very same day. On 16.07.2009 the appellant handed
over her passport and ticket at the Airport, and she was
deported from Kuwait. Thereafter, they never lived together.
From the available facts and evidence, it has to be held that
the case of desertion alleged against the respondent could not
be proved against her, and so, the dismissal of divorce petition
for not proving desertion is only to be justified.
12. The appellant contended that the respondent was a
cruel wife to him. She never attended the affairs of the
appellant or his children. she refused to have sexual
relationship with him. He was not permitted even to sleep with
her inside the bedroom. She was very rude and she used
abusive words against him. She was compelling him to dissolve
their marriage. She tried to kill him by adding poison to his
food. She did not attend him when he suffered acid injury to
his eyes. On 17.07.2009, she convened a press meet at
Thiruvananthapuram inviting media people and made baseless
Mat.Appeal No.478 of 2016 & conn. cases 15
allegations against the appellant defaming him in public. With
all these acts of cruelty, he is not in a position to continue his
conjugal relationship with the respondent.
13. The respondent also is making counter allegations
against the appellant. According to her, the appellant was
leading an adulterous life with one Smt.Prestina Antony. He
was subjecting the respondent to all sorts of mental and
physical torture during her stay in Kuwait. He exploited her
physically and financially misappropriating her patrimony,
salary etc. She is admitting the press conference, but
according to her, she was deported from Kuwait, after a fake
decree of divorce obtained by the appellant from the Kuwait
Ministry, and on consequent cancellation of her visa, even
without permitting her to take her little children with her. She
was crying throughout her journey from Kuwait, and several
persons noticed the same, and later when the media people
asked her about the incident, she divulged the things to them,
out of pain and agony of forcible separation from her children.
In that case, it cannot be termed as an intentional act, aimed
to defame or malign the appellant, and it could be termed only
Mat.Appeal No.478 of 2016 & conn. cases 16
as an outcry of a mother, who was forced to separate from her
little children.
14. The respondent herself is admitting that from 2005
onwards there is no husband and wife relationship between
them. The appellant would say that the respondent refused sex
to him without any valid reasons and that itself will amount to
cruelty. The respondent also is rather admitting lack of
intimacy between herself and the appellant after birth of the
second child. In Ext.A5, mother of the respondent gave
testimony to the effect that the appellant and respondent were
sleeping in two different rooms even in 2003 and they had no
physical relationship. The refusal to have sexual relationship
without valid reasons can be termed as cruelty from the part of
a wife.
15. The respondent filed complaint against the appellant
before the Embassy in June 2009 alleging physical torture, and
with a request to send her to her native. In July 2009, the
appellant obtained a decree of divorce from the Kuwait Ministry
and it was served on the respondent. She was sent back from
Kuwait on 16.07.2009. For the last 14 years, the appellant and
Mat.Appeal No.478 of 2016 & conn. cases 17
respondent are living separately, filing cases one after another
against each other. As we have already seen, 54 cases are
there to their credit, and presently we are dealing with 8 cases
pending between them. The respondent also is admitting that
there is no chance for a reunion and their relationship is dead
practically and emotionally. During pendency of these matters,
we tried for an amicable settlement but it did not work out.
16. It is true that a few isolated instances over a certain
period will not amount to cruelty but the married life has to be
assessed as a whole. The ill-conduct must be persisting for a
fairly lengthy period. Here the couple live separately for the
last more than 14 years, with their heart full of resentment and
dirty allegations against each other. They have proved
themselves that there is no rose, and only thorns are left, and
there is no scope for their conjugal life to sprout again. Their
relationship has deteriorated to a point that it is not possible or
feasible for them to live together.
17. As held by the Hon'ble Supreme Court in Samar
Ghosh vs. Jaya Ghosh ((2007) 4 SCC 511) "once the parties
have separated and separation has continued for a sufficient
Mat.Appeal No.478 of 2016 & conn. cases 18
length of time, and one of them has presented a petition for
divorce, it can well be presumed that the marriage has broken
down. The court, no doubt, should seriously make an
endeavour to reconcile the parties; yet, if it is found that the
breakdown is irreparable, then divorce should not be withheld.
The consequences of preservation in law of the unworkable
marriage which has long ceased to be effective are bound to be
a source of greater misery for the parties".
18. In Navin Kohli vs. Neelu Kohli ((2006) 4 SCC
558), the Apex Court held that if the parties cannot live
together on account of obvious differences, one of the parties
is adamant and callous in attitude for having divorce on mutual
consent, such attitude can be treated as the cause of mental
cruelty to other spouse.
19. We had held interactions with the appellant,
respondent and also their children to see whether any chances
are there for an amicable settlement. Both parties are not
willing for a reunion, and even their children are not intending
for a reunion of their parents. Even then, the respondent is not
amenable for a divorce on mutual consent, by which she can
Mat.Appeal No.478 of 2016 & conn. cases 19
be set free from all sorts of wild allegations levelled against her
by the appellant. But she is adamant and she is not willing.
20. We had occasion to deal with a case like this, in
Beena vs. Shino G.Babu reported in (2022 (2) KLT 139), in
which we have held that when both the parties are unable to
lead a meaningful matrimonial life due to inherent differences
of opinion, and one party is willing for separation and the other
party is withholding consent for mutual separation, that itself
would cause mental agony and cruelty to the spouse who
demands separation. The purpose of marriage is to hold
matrimonial ties lifelong, respecting mutual obligations and
rights. If the court is able to form an opinion that due to
incompatibility, the marriage failed and one of the spouses was
withholding consent for mutual separation, the court can very
well treat that conduct itself as cruelty. If one of the spouses is
refusing to accord divorce on mutual consent after having
convinced of the fact that the marriage failed, it is nothing but
cruelty to spite the other spouse. No one can force another to
continue in a legal tie and relationship if the relationship
deteriorated beyond repair. The portrayal of such conduct
Mat.Appeal No.478 of 2016 & conn. cases 20
through manifest behaviour of the spouse in a manner
understood by a prudent as 'cruelty' is the language of the
lawyer for a cause before the court.
21. There is no useful purpose served in prolonging the
agony any further and the curtain should be rung at some
stage. Both the appellant and respondent are alleging adultery
and cruelty against each other. They are living separately for
the last more than 14 years. There is no chance for a reunion
as admitted by both. Though she is alleging all sorts of physical
and mental torture against the appellant, she has not filed any
petition for divorce against him. At the same time, she is
opposing the divorce petition filed by her husband, and she is
not willing even for filing a joint petition for divorce, even
though she is well aware of the fact that, she could get a
decree of divorce on mutual consent, without leaving any
stigma on her.
22. As we have found, the respondent was denying
sexual life to the appellant as borne out from their own
testimony and the testimony of her mother. Moreover even on
fully knowing that their relationship is dead practically and
Mat.Appeal No.478 of 2016 & conn. cases 21
emotionally and there is no chance for a reunion, she is not
willing for a divorce on mutual consent to the detriment of the
other party, which will also amount to cruelty as it was held in
Beena's case (supra). There is no merit in preserving intact a
marriage when the marital tie becomes injurious to the parties
and a burden to their children. We could see no signs of life in
their dead relationship and there is no chance to save their
marriage.
23. Considering all these facts and circumstances, we
have no hesitation to dissolve their marriage on the ground of
matrimonial cruelties.
24. Hence, Mat. Appeal No.117 of 2021 is allowed
dissolving the marriage between the appellant and respondent
solemnised on 16.09.1995, setting aside the impugned
judgment dated 26.05.2020.
Mat.Appeal No.478 of 2016 and 693 of 2016.
25. These appeals arise out of the same judgment in
O.P No.868 of 2009 on the file of Family Court,
Thiruvananthapuram. The respondent filed that O.P for
recovery of patrimony of 125 sovereigns of gold and Rs.5 lakh
Mat.Appeal No.478 of 2016 & conn. cases 22
along with recovery of her salary received in Kuwait, which the
appellant had misappropriated. The Family Court turned down
her prayer for recovery of patrimony, but permitted her to
recover Rs.8,17,500/- with interest from the appellant, being
her salary received by him, and also to receive the Fixed
Deposit of Rs.6 lakh with interest from Federal Bank,
Pandalam Branch. Against denial of patrimony, she filed
Mat.Appeal No.478 of 2016, and against the money decree
granted in her favour, the husband filed Mat.Appeal No.693 of
2016.
26. The respondent contended that at the time of
marriage she was given 100 sovereigns of gold ornaments by
her parents and she received 25 sovereigns of gold coins and
other ornaments as marriage gift from relatives. Rs.5 lakh was
given as patrimony amount from her family. The gold
ornaments and cash were entrusted with the appellant and his
father, but they never returned the same.
27. It has come out in evidence that the marriage
between the appellant and respondent was solemnised on
16.09.1995. After marriage the appellant returned to Kuwait
Mat.Appeal No.478 of 2016 & conn. cases 23
where he was working, leaving the respondent in Kerala. So,
normally she might have made arrangements to keep her gold
ornaments safe, in the absence of her husband. She herself
admitted that Ext.A10 series wedding photographs will not
show 100 sovereigns of gold ornaments, and the explanation
given by her is that among Malankara Syrian Catholics, there is
no practice of wearing all the ornaments at the time of
marriage, and so the balance gold ornaments were kept by her
without wearing at the time of marriage. Since the respondent
was here in Kerala, even after the appellant went back to
Kuwait, it is difficult to believe that she had entrusted her 125
sovereigns of gold ornaments with the husband or his parents.
The appellant would say that after the marriage the respondent
was staying at her paternal house, and she used to go to her
matrimonial home only occasionally. PW1 admitted that she
had attended DSM course at Thiruvananthapuram during 1995-
96 after the marriage, and so obviously she was staying at her
paternal house even after the marriage. According to her, she
was taken to Kuwait only in September 1996, though the
marriage was in September 1995. So she was here for one
Mat.Appeal No.478 of 2016 & conn. cases 24
year after the marriage. There is no proof to show that the
respondent was having 125 sovereigns of gold ornaments at
the time of marriage, and there is nothing to show that her
gold ornaments were entrusted with the appellant or his
parents.
28. Regarding the patrimony of Rs.5 lakh also, there is
no cogent evidence to support the claim of the respondent. If
Rs.5 lakh was handed over to the appellant or his father,
definitely the respondent would have been able to show the
source of that money. The case of the respondent is that
during betrothal ceremony Rs.4 lakh in cash was given, and a
Fixed Deposit for Rs.1 lakh was handed over by her mother to
the father of the appellant. If there was F.D for Rs.1 lakh,
definitely documents from bank also would have been there, to
substantiate that fact. But no evidence is forthcoming to prove
the source of Rs.5 lakh alleged to have been given by her
mother to the father of the appellant. The testimony of
witnesses also could not inspire confidence of the Family Court
to prove that transaction.
Mat.Appeal No.478 of 2016 & conn. cases 25
29. So the finding of the Family Court that the
respondent could not prove entrustment of 125 sovereigns of
gold ornaments and Rs.5 lakh with the appellant and his father
towards her patrimony, is liable to be confirmed.
30. Now regarding the recovery of salary claimed by the
respondent, she would say that though she reached Kuwait on
a housemaid visa, she was working temporarily in different
institutions and was getting salary. Her entire salary received in
her bank account was taken by the appellant, and she was not
permitted to use the same. But according to the appellant since
she was on housemaid visa, and not on any work visa, she was
not supposed to do any work in Kuwait, and if at all she worked
there and earned some amount, it will amount to black money.
It has come out in evidence that the respondent is a Post
Graduate in Chemistry with B.Ed. The appellant was not having
any good job in Kuwait to provide family visa for his wife. So
obviously to support the family, the respondent who was well
qualified might have gone for some job in Kuwait, even if she
was not there on a work visa.
Mat.Appeal No.478 of 2016 & conn. cases 26
31. According to the respondent, she worked as a
teacher, chemist and also as a Laboratory Analyst on
temporary basis. Rs.6 lakh received from her salary was
deposited in Federal Bank, Pandalam branch in the year 2004,
and though the F.D is in the joint name of herself and the
appellant, that amount absolutely belongs to her. During
interaction with the parties, the appellant also was ready to
permit the respondent to receive that amount. So obviously
that amount was deposited out of her salary, and so she is
entitled to receive the amount covered by Ext.A6 series F.D
receipts from Federal bank, Pandalam. So the finding of the
Family Court that the respondent is entitled to receive the F.D
amount of Rs.6 lakh with interest from Federal Bank, Pandalam
branch is liable to be upheld.
32. The Family Court found that the salary which the
respondent might have received while working as a temporary
teacher or as a chemist at Riqqua Sewage Treatment Plant,
amounting to Rs.2,81,100/- in total, as claimed by her, might
have been utilised for her personal expenses. At the same
time, the Family Court found that the respondent could not
Mat.Appeal No.478 of 2016 & conn. cases 27
prove her temporary job as a teacher, or the remuneration
received by her either as a teacher or as a chemist. But even
then the Family Court took into account, the alleged salary that
might have been received by her from those temporary jobs,
and adjusted it towards her personal expenses. Since there
was no evidence to prove those jobs, or the income received
therefrom, the Family Court could not be justified in adjusting
the salary allegedly received by her, towards her personal
expenses, without any proof for the same.
33. The available facts and evidence, especially Exts.A4,
A5, A7, A8 and A12 will prove her employment with Central
Environmental Laboratory as an Analyst, with a monthly salary
of 350 K.D. So for 27 months, she might have received total
remuneration of Rs.14,17,500/-, as observed by the Family
Court. Since Rs.6 lakh was seen deposited out of her salary in
Federal Bank, Pandalam, she was found eligible to receive the
balance amount of Rs.8,17,500/- from the appellant and his
assets. But, as she was living with family of two children, we
cannot accept her case that her entire salary was given to the
appellant. Moreover, it is the case of the respondent that their
Mat.Appeal No.478 of 2016 & conn. cases 28
relationship was never cordial, and she was ill-treated and
tortured by the appellant. If that be so, she might have been
expending money from her own pocket to meet the personal
needs of herself and her children. So even if she had earned
Rs.14,17,500/- as her salary from Central Environmental
Laboratory, we cannot presume that after depositing Rs.6 lakh
as F.D, the entire balance was given to the appellant. After
deducting amounts towards the personal expenses of the
respondent and her children, we are of the view that the
respondent is entitled to get back Rs.5 lakh from the appellant
apart from the F.D receipt for Rs.6 lakh.
34. Since the respondent is now employed as
Administrative Officer in a private Engineering College earning
more than Rs.25,000/- per month, she is not entitled to get
maintenance from the appellant.
35. From the foregoing discussion, Mat.Appeal No.478 of
2016 filed by the respondent/wife is liable to be dismissed, and
Mat.Appeal No.693 of 2016 filed by the appellant/husband is to
be allowed in part as follows :
Relief No.(i) is modified reducing the amount to be
Mat.Appeal No.478 of 2016 & conn. cases 29
recovered to Rs.5 lakh with interest at the rate of 6% per
annum from the date of petition till realisation, from the
appellant and his assets. Relief No.(ii) in the impugned
judgment is hereby upheld.
Mat. Appeal No.1433 of 2017
36. The appellant filed O.P No.746 of 2014 before Family
Court, Pathanamthitta for recovery of 96.25 sovereigns of gold
ornaments allegedly entrusted with the respondent or its
equivalent value Rs.20,12,250/-. The Family Court rejected his
claim, against which he has preferred this appeal.
37. The case of the appellant is that he was working in
Kuwait since 1994, and after his marriage in the year 1995, he
took the respondent also to Kuwait in the year 1996. At the
time of marriage he had given a thali chain weighing
5 sovereigns and thali weighing 2 grams to the respondent.
Moreover before he returned to Kuwait, he entrusted his
ornaments weighing 6 sovereigns with the respondent. In
Kuwait he had kept 85 sovereigns of gold ornaments in his
cupboard. When the respondent returned to Kerala from Kuwait,
she wrongfully removed those ornaments also from the cupboard.
Mat.Appeal No.478 of 2016 & conn. cases 30
38. The respondent is admitting receipt of thali chain and
thali from the appellant but according to her it was weighing
only 2 sovereigns. In the year 2008, the appellant snatched
away the thali chain from her, and she had to return to Kerala
even without her thali chain. He never purchased or entrusted
any gold ornaments with the respondent. In fact he
clandestinely obtained divorce from Kuwait Ministry and she
was deported on cancellation of her visa. She had to leave
Kuwait at midnight, even without taking her little children. In
such a situation, the case of the appellant that the respondent
had removed 85 sovereigns of gold ornaments from his
cupboard is difficult to be believed.
39. The Family Court, on analysing the evidence adduced
from either side, came to the conclusion that there was no
entrustment of gold ornaments with the respondent and the
allegation of removal of 85 sovereigns of gold ornaments also
was found against. After reaching the native, the respondent
filed O.P No.868 of 2009 before Family Court,
Thiruvananthapuram to get back her patrimony and salary
from the appellant. The appellant approached Family Court,
Mat.Appeal No.478 of 2016 & conn. cases 31
Pathanamthitta, only in the year 2014 alleging removal of his
gold ornaments by the respondent. Admittedly, the respondent
was sent back from Kuwait in the year 2009 and only after five
years of her return, he made a claim for recovery of gold
against her. That itself will show the falsity of his claim.
Moreover, no reliable documents were produced by the
appellant to prove purchase of 85 sovereigns of gold
ornaments while he was in Kuwait. So, the finding of the Family
Court that there was no proof for the entrustment of gold or its
wrongful removal by the respondent is only to be confirmed.
Hence, Mat.Appeal No.1433 of 2017 is liable to be dismissed.
O.P(F.C) Nos. 31, 32 and 42 of 2017
40. These original petitions are filed by the appellant,
against dismissal of I.A. Nos.2448, 2449 and 2450 of 2014 in
O.P No.868 of 2009 on the file of Family Court,
Thiruvananthapuram. The appellant filed those I.As against
PWs 1 to 3 in that O.P to initiate prosecution against them
under Section 340 of the Cr.P.C, for the offence of perjury.
41. The respondent had filed O.P. No.868 of 2009 for
recovery of money and gold from the appellant. In order to
Mat.Appeal No.478 of 2016 & conn. cases 32
prove her case, she herself got examined as PW1 and two
other witnesses were examined as PWs 2 and 3. It was the
case of PW1 that 125 sovereigns of gold ornaments and
Rs.5 lakh in cash were given as her patrimony. PWs 2 and 3
supported her saying that, they had witnessed handing over of
the amount by the mother of the respondent to the father of
the appellant.
42. According to the appellant, PWs 1 to 3 were stating
falsehood before court, to suit the case of entrustment of
patrimony, fully knowing that their statements were false. So
they have committed offence of perjury to be prosecuted under
Section 340 of Cr.P.C. Moreover, PW1 suppressed the factum of
her employment in order to claim maintenance from the
appellant, and she gave false evidence to the effect that she
was working in Kuwait, though she had no work permit. So also
she is liable to be prosecuted.
43. Learned Family Court, on appreciating the facts and
evidence, found that, at no stretch of imagination the evidence
adduced by PWs 1 to 3 could be characterised as false
evidence. Even if the evidence adduced by PWs 1 to 3 was
Mat.Appeal No.478 of 2016 & conn. cases 33
found not reliable to substantiate the claim, it is not sufficient
to proceed against them under Section 340 of Cr.P.C. (Reliance
placed on Varghese vs. State of Kerala (1989 (1) KLT 625).
44. Intention is the essential ingredient in the constitution
of the offence of perjury. If the statement was false and known
or believed to be false, it may be presumed that, in making
that statement, he intentionally gave false evidence. A person
can be held guilty under Section 193 of IPC, if he had the
intention of fabricating evidence in order that it should appear
in evidence in a judicial proceeding. The mere fact that a
deponent has made contradictory statements at two different
stages in a judicial proceeding, is not by itself always sufficient
to justify a prosecution for perjury under Section 193 of IPC,
but it must be established that the deponent has intentionally
given a false statement in any stage of the judicial proceedings
or fabricated false evidence for the purpose of being used in
any stage of the judicial proceedings.
45. In family disputes, we often see warring couples
making allegations and counter allegations to suit their claims
and they may examine any number of witnesses in support of
Mat.Appeal No.478 of 2016 & conn. cases 34
their claim, even if it is bogus. The statement of witnesses
may or may not be convincing, and accordingly the court may
accept or reject their testimony. The statement of witnesses
sometimes may not tally with the attending circumstances or
may not corroborate the pleadings. If the statement of a
witness is found to be not acceptable, or is found not tallying
with the pleadings in the petition, it is not a circumstance
warranting prosecution for perjury. If prosecution has to be
initiated in such matters, it will be a non-ending process.
46. As a civil court, the Family Court is taking decision in
a given cause based on preponderance of probabilities. If a
particular fact pleaded is found to be probable from attending
evidence and circumstances, the court will accept the same as
proved, to grant a relief based on that finding. The testimony
given by witnesses may be contradictory to each other or even
it may be self contradictory. Unless and until such statements
are made intentionally, knowing it to be false, it may not come
under the definition of perjury. In the case on hand,
essentially the dispute is between the husband and wife
regarding their matrimonial life. Relatives or neighbours may
Mat.Appeal No.478 of 2016 & conn. cases 35
support their claim, and there may occur discrepancies or
contradictions which may prevent the court from accepting
their testimony. On the mere fact that the testimony given by
the witnesses was contradictory and it was not relied upon by
the court, we cannot jump into a conclusion that the witnesses
were giving false evidence knowingly.
47. The appellant was alleging that the respondent was
guilty of adultery and she was having adulterous relationship
with two men in Kuwait. The Family Court found that there was
collusion between the appellant and the persons with whom he
was alleging adultery for his wife. So, his case of adultery
against his wife was disbelieved by the court and his prayer for
divorce on the ground of adultery was rejected. If we go by the
proposition put forward by the appellant, he is also liable for
prosecution for manipulating false evidence. That is not the
spirit or intention of the legislature in a prosecution for perjury,
and it should be initiated only if it is expedient in the interest of
justice.
48. From the available facts and circumstances, we are
convinced that, the Family Court rightly rejected the I.As filed
Mat.Appeal No.478 of 2016 & conn. cases 36
by the appellant for prosecution under Section 340 of Cr.P.C.
So the original petitions are liable to be dismissed.
Crl. R.P. No. 757 of 2018
49. The appellant is challenging the judgment of
Additional District and Sessions Judge-V, Thiruvananthapuram
dismissing his Crl. Appeal No.558 of 2012, which was filed
against the order of Additional Chief Judicial Magistrate,
Thiruvananthapuram in M.C. No.67 of 2010.
50. M.C No.67 of 2010 was filed by the respondent,
under Section 12 of the Protection of Women from Domestic
Violence Act, 2005. Learned Additional Chief Judicial
Magistrate, Thiruvananthapuram allowed her petition,
restraining the appellant from committing any domestic
violence to her and from dispossessing her or from trespassing
into the shared household Flat No.5B, Muthoot Valley
Apartment. The appellant would say that on the strength of
that order, the respondent and her mother broke open his flat
and started residence there. Since she was working in
Administration Department of Lurdhu Matha College of Science
and Technology, Kuttichal, Thiruvananthapuram in the year
Mat.Appeal No.478 of 2016 & conn. cases 37
2010, it was convenient for her to commute from that flat at
that time. But in the year 2012, she secured a new job in
Mar Baselious Engineering College, Nalanchira and then she
shifted her residence to a two storied building in her parental
property i.e. House No.4, Mosque Lane, Kesavadasapuram. In
M.C No.67 of 2010, the address of the petitioner who is the
respondent herein, is house No.4, Mosque Lane,
Kesavadasapuram. It supports the case of the appellant that in
the year 2012 the respondent was staying in the house at her
parental property. According to him, in the year 2019, the
children also joined the respondent to reside with her in her
parental house.
51. The appellant contended that though the wife
obtained favourable orders with respect to the flat owned by
him, she was not residing there since 2012. For the last ten
years that flat was lying vacant. In the year 2021, daughter
of the appellant and respondent, moved out from her mothers
house and now she is staying in flat No.5B owned by the
appellant.
Mat.Appeal No.478 of 2016 & conn. cases 38
52. The appellant produced additional documents in
Crl. R.P. No.757 of 2018 which was accepted as per order in
Crl.M.A. No.1 of 2021. Annexure A2 series will show that there
was no energy consumption in that flat from June, 2020 till
August, 2021. It will show that nobody was residing there
during that period. The appellant further contended that now
his daughter is married and she is staying in his flat and she
had obtained a protection order from Judicial First Class
Magistrate-XI, Thiruvananthapuram against her own mother,
who is the respondent herein, from committing domestic
violence against her. The respondent is not disputing the fact
that now she is not staying in flat No.5B of Muthoot Valley
Apartment, which stands in the name of the appellant. She is
not disputing the fact that now her daughter is staying there.
She is not disputing the statement of the appellant that now
she is staying in her parental house at Kesavadasapuram and is
working in Mar Basellious Engineering College.
53. In Mat. Appeal No.117 of 2021, we have set aside
the judgment in O.P No.1269 of 2014 of Family Court,
Pathanamthitta, and dissolved the marriage between the
Mat.Appeal No.478 of 2016 & conn. cases 39
appellant and the respondent solemnised on 16.09.1995. So
the question of domestic violence and shared household is now
out of place.
54. Since the respondent is not staying in the flat owned
by the appellant and she is staying in her parental house, and
the marriage between the appellant and the respondent stands
dissolved, flat No.5B in Muthoot Valley Apartment which stands
in the name of the appellant is no more her shared household
and so she is not entitled to get any protection order with
respect to that flat. Crl.R.P.No.757 of 2018 is accordingly
allowed.
On an overall anaysis of the facts and evidence, above
cases are disposed of as follows:
i) Mat.Appeal Nos.478 of 2016 and 1433 of 2017 are
dismissed.
ii) Mat.Appeal No.117 of 2021 is allowed dissolving the
marriage between the appellant and respondent
solemnised on 16.09.1995 on the ground of
matrimonial cruelty, setting aside the impugned
judgment and decree.
Mat.Appeal No.478 of 2016 & conn. cases 40
iii) Mat.Appeal No.693 of 2016 is allowed in part
upholding relief No.(ii) and modifying relief No.(i) by
reducing the amount to be recovered to Rs.5 lakh
with 6% interest per annum from the date of
petition till realisation, recoverable from the
appellant and his assets.
iv)O.P (F.C.) Nos.31, 32 and 42 of 2017 are dismissed.
v) Crl.R.P. No.757 of 2018 is allowed.
Both parties shall suffer their respective costs.
The Registry is directed to mask the name of parties
while uploading the judgment.
Sd/-
A.MUHAMED MUSTAQUE
JUDGE
Sd/-
SOPHY THOMAS
JUDGE
smp
Mat.Appeal No.478 of 2016 & conn. cases 41
APPENDIX OF OP (FC) 31/2017
PETITIONER'S EXHIBITS:
EXHIBIT P1- TRUE COPY OF IA.NO.2450/2014 IN
OP.NO.868/2009 DATED DAY OF AUGUST
2014.
EXHIBIT P2- EXTR.P4 TRUE COPY OF THE OBJECTIOIN
FILED TO EXT.P1 DATED 17/09/14.
EXHIBIT P3- TRUE COPY OF THE COMMON ORDER DATED
13/01/2016 IN I.A.NO.2448/14, 2449/14
& 2450/14 IN O.P. NO.868/2009 ON THE
FILES OF THE FAMILY COURT,
THIRUVANANTHAPURAM.
RESPONDENT'S EXHIBITS: NIL
True Copy
P.S to Judge
smp
Mat.Appeal No.478 of 2016 & conn. cases 42
APPENDIX OF OP (FC) 32/2017
PETITIONER'S EXHIBITS
EXHIBIT P1 TRUE COPY OF I.A.NO.2448/2014 IN
O.P.NO.868/2009 DATED 2ND DAY OF
AUGUST 2014
EXHIBIT P2 TRUE COPY OF THE OBJECTION FILED TO
EXT.P1 DATED 17.9.2014
EXHIBIT P3 TRUE COPY OF THE COMMON ORDER DATED
13.1.2016 IN I.A.2448/14, 2449/14 &
2450/14 IN O.P.NO.868/2009 ON THE
FILES OF THE FAMILY COURT,
THIRUVANANTHAPURAM
RESPONDENT'S EXHIBITS: NIL.
True Copy
P.S to Judge
smp
Mat.Appeal No.478 of 2016 & conn. cases 43
APPENDIX OF OP (FC) 42/2017
PETITIONER EXHIBITS
P1 TRUE COPY OF I.A NO. 2449/2014 IN O.P.
NO 868/2009 DATED 2ND DAY OF AUGUST
2014.
P2 TRUE COPY OF THE OBJECTION FILED TO
EXT.P1 DATED 17.9.2014.
P3 TRUE COPY OF THE COMMON ORDER DATED
13.1.2016 IN I.A2448/14, 2449/14
&2450/14 IN O.P. NO.868/2009 ON THE
FILES OF THE FAMILY COURT,
THIRUVANANTHAPURAM.
P4 TRUE COPY OF THE JUDGMENT DATED
13.11.2016 IN O.P NO.868/2009.
RESPONDENT'S EXHIBITS: NIL.
True Copy
P.S to Judge
smp
Mat.Appeal No.478 of 2016 & conn. cases 44
APPENDIX OF CRL.R.P 757 OF 2018
ANNEXURES:
ANNEXURE A/1 : SUMMARY OF LITIGATIONS BETWEEN
REVISION PETITIONER & RESPONDENT 2
ANNEXURE A/2 (a): TRUE COPIES OF KSEB BILLS OF CONSUMER
TO A/2(G) No.1146767009375 FROM JUNE 2020 TILL
AUGUST 2021 (7 BILLS)
ANNEXURE A/3 : TRUE COPY OF ORDER DTD.18/12/2019 IN
CRL.RP 44/2017 BY HON'BLE
ADDL.SESSIONS JUDGE-II,
THIRUVANANTHAPURAM.
True Copy
P.S to Judge
smp
