Kerala High Court
Letha P.Nair vs Harikumar.G on 23 June, 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 23RD DAY OF JUNE 2022 / 2ND ASHADHA, 1944
MAT.APPEAL NO.1106 OF 2018
AGAINST THE ORDER/JUDGMENT IN OP(HMA) NO.682/2015 OF FAMILY
COURT, PATHANAMTHITTA
APPELLANT/S:
LETHA P.NAIR, AGED 42 YEARS,
D/O.INDRANIAMMA, USHAS VEETTIL,
POOVATHOOR EAST, KULAKKADA P.O,
KALAYAPURAM VILLAGE, KOTTARAKKARA TALUK,
KOLLAM DISTRICT, PIN-691521.
BY ADVS.
H.PRAVEEN (KOTTARAKARA)
K.MOHANAKANNAN
RESPONDENT/S:
1 HARIKUMAR.G., AGED 47 YEARS,
S/O.GOPALAPILLAI, NOW RESIDING AT ITTARSIYIL,
3RD 535 A ASAD NAGAR, HOSHAGAMSAD.R.B,
HOSHIYABAD DISTRICT, MADHYAPRADESH-461001.
FROM VAIKUNDAM VEETTIL, E.V.NAGAR,
KARUVATTA MURI, ADOOR TALUK, PATHANAMTHITTA
DISTRICT-691523.
(DIED).
ADDL.R2 KAMALAMMA, D/O.LATE GOPALAN NAIR,
RESIDING AT GEETHA VILASAM, VYTTILA.PO.,
KOCHI, ERNAKULAM- 682 019.
ADDL.R3 SYAMALA AMMA, D/O.LATE GOPALAN NAIR,
RESIDING AT MADHAVANCHERIL HOUSE, KONNAMAMKARA,
ADOOR.PO., PATHANAMTHITTA - 691 523.
ADDL.R4 SREEDEVI.G.KURUP, D/O.LATE GOPALAN NAIR,
RESIDING AT KOKKOTTUKALAYIL, NEAR KOLAPPARA,
PATHANAMTHITTA- 689 656.
Mat.Appeal No.1106/2018 & W.P.(C) No.12843/2022 2
ADDL.R5 OMANA AMMA, D/O.LATE GOPALAN NAIR, KANJIRAM
NILKUNNATHIL, KURAMPALA, PANDALAM.PO.,
PATHANAMTHITTA - 689 501.
LEGAL HEIRS OF THE DECEASED RESPONDENT ARE
IMPLEADED AS SUPPLEMENTAL RESPONDENT 2 TO 5 IN
THE MAT.APPEAL AS PER ORDER DATED 22/3/2022 IN
IA 2/2021 IN MAT.APPEAL 1106/2018.
ADDL.R6 VYSAKH, AGED 23 YEARS, S/O.HARIKUMAR. G, USHAS
VEETTIL, POOVATHOOR EAST, KULAKKADA.P.O.,
KALAYAPURAM VILLAGE, KOTTARAKKARA TALUK, KOLLAM
DISTRICT - 691521.
IMPLEADED AS ADDL.R6 AS PER ORDER DATED
20.05.2022 IN IA 2/2022.
ADDL.R7 VYSHNAV, AGED 20 YEARS, S/O HARIKUMAR. G, USHAS
VEETTIL, POOVATHOOR EAST, KULAKKADA.P.O.,
KALAYAPURAM VILLAGE, KOTTARAKKARA TALUK,
KOLLAM DISTRICT - 691521.
IMPLEADED AS ADDL.R7 AS PER ORDER DATED
20.05.2022 IN IA 2/2022.
BY ADVS.
GEORGE VARGHESE(PERUMPALLIKUTTIYIL)
NAVANEETH D.PAI
P.J.JOE PAUL
MANU SRINATH
A.R.DILEEP
NIMESH THOMAS
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
23.06.2022, ALONG WITH WP(C).12843/2022, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
Mat.Appeal No.1106/2018 & W.P.(C) No.12843/2022 3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
THURSDAY, THE 23RD DAY OF JUNE 2022 / 2ND ASHADHA, 1944
WP(C) NO. 12843 OF 2022
PETITIONER/S:
LATHA P NAIR., AGED 45 YEARS,
W/O.LATE HARIKUMAR.G, USHAS VEETTIL,
POOVATHOOR EAST, KULAKKADA.P.O,
KALAYAPURAM VILLAGE,
KOTTARAKKARA TALUK,
KOLLAM DISTRICT-691521.
BY ADVS.
K.MOHANAKANNAN
H.PRAVEEN (KOTTARAKARA)
RESPONDENT/S:
1 UNION OF INDIA, REPRESENTED BY ITS SECRETARY
TO GOVERNMENT, MINISTRY OF RAILWAYS,
FEDERATION OF RAILWAY OFFICER'S ASSOCIATION
OFFICE, 256-A, RAIL BHAVAN,
RAISINA ROAD, NEW DELHI-110001.
2 GENERAL MANAGER, OFFICE OF THE GENERAL MANAGER,
WEST CENTRAL RAILWAY, INDIRA MARKET, JABALPUR,
MADHYA PRADESH-482001.
3 DIVISIONAL RAILWAY MANAGER, WEST CENTRAL
RAILWAY, DRM ROAD, BENGALI COLONY, N-2,
HABIBGANJ, BHOPAL, MADHYA PRADESH-462024.
4 WELFARE INSPECTOR, WEST CENTRAL RAILWAY,
ITARSI, BHOPAL, MADHYA PRADESH-461111.
Mat.Appeal No.1106/2018 & W.P.(C) No.12843/2022 4
ADDL.R5 VYSAKH.H. , AGED 23 YEARS,
S/O.HARIKUMAR.S., USHAS VEETTIL,
POOVATHOOR EAST, KULAKKADA P.O.,
KALAYAPURAM VILLAGE, KOTTARAKARA TALUK,
KOLLAM DISTRICT-691 521.
ADDL.R6 VYSHNAV.H., S/O.HARIKUMAR.S.,
USHAS VEETTIL, POOVATHOOR EAST,
KULAKKADA P.O., KALAYAPURAM VILLAGE,
KOTTARAKARA TALUK, KOLLAM DISTRICT-691 521.
ARE IMPLEADED AS ADDL. R5 & R6 AS PER ORDER
DATED 20.05.2022 IN IA NO.1/2022 IN WP(C)
NO.12843/2022.
BY ADVS.
MANU S., ASG OF INDIA
NAVANEETH D.PAI
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
23.06.2022, ALONG WITH Mat.Appeal.1106/2018, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
Mat.Appeal No.1106/2018 & W.P.(C) No.12843/2022 5
JUDGMENT
[Mat.Appeal No.1106/2018 & W.P.(C) No.12843/2022]
A.Muhamed Mustaque, J.
Mat.Appeal No.1106/2018
This appeal arises out of a decree of divorce granted
in favour of the husband. The wife is the appellant.
The decree of divorce was passed on 14.09.2018. The
husband died on 29.03.2020. This Court had granted a stay
against the operation of the decree of divorce on
3.12.2018. The husband was an employee in Railway. On
his death, there arose a dispute regarding terminal
benefits. The wife also filed W.P.(C) No.12843/2022 for
disbursement of the family pension. In view of the fact
that the right of the wife to claim family pension is
directly connected to the challenge against the divorce
granted in favour of the husband, we ordered tagging the
writ petition filed by the wife for claiming terminal
benefits as W.P.(C) No.12843/2022 along with Mat.Appeal
No.1106/2018. Both cases came up today for hearing.
Mat.Appeal No.1106/2018 & W.P.(C) No.12843/2022 6
2. We heard the learned counsel for the petitioner
Adv.K.Mohanakannan assisted by Adv.H.Praveen and Adv.
Nimesh Thomas who appeared for the legal heirs of the
deceased husband.
3. It is to be noted that the children were not a
party to the proceedings. They were brought on record,
subsequently, on the death of the deceased husband. The
legal heirs of the husband who would have succeeded to the
estate of the deceased husband if divorce decree is
confirmed were also brought on record in Mat.Appeal based
on the order of this Court on 27.1.2021.
4. The learned counsel who appeared for the sisters
of the deceased husband stoutly opposed the
maintainability of the appeal, at the outset. It is argued
that the appeal is not maintainable. It is also submitted
that the Family Court granted a decree of divorce on the
ground of cruelty and the fact finding was based on the
materials produced before the Family Court and the oral
evidence of the husband.
Mat.Appeal No.1106/2018 & W.P.(C) No.12843/2022 7
5. We are of the view that these matters have to be
decided at the first instance on the maintainability of
the appeal, consequent upon the death of the husband. The
learned counsel for the wife relying upon the judgments of
the Apex Court in Smt.Yallawwa v. Smt.Shantavva[(1997)
AIR (SC) 35] and R.Lakshmi v. K.Saraswathi Ammal [(1996) 6
SCC 371] submitted that the appeal is maintainable even if
one of the spouses dies after the decree. It is submitted
that the right to file an appeal is a statutorily
conferred right and it cannot be taken away consequent
upon the death of one of the parties to the proceedings.
It is further submitted that once the rights and
obligations of the parties are crystallized through the
orders of the Court, what is questioned before the
appellate authority or higher authority is the order of
the court, even though the cause of action to the
proceedings leading to the order or decree is based on a
personal cause of action. Per contra, the learned counsel
for the contesting parties would submit that the appeal is
abated inasmuch as divorce is a personal remedy available
to one of the spouses and consequent upon the death of
Mat.Appeal No.1106/2018 & W.P.(C) No.12843/2022 8
such spouse, the proceedings will come to a halt.
6. We are of the view that the appeal is
maintainable inasmuch as that the appeal provision is not
depending upon the death of the parties to the
proceedings. Once the rights and obligations of the
parties are crystalized, the appellate court in the appeal
is examining the matter based on the findings rendered by
the court. The death of one of the parties to the
proceedings after the decree will not render the
proceedings as abated. The statutory provision conferring
the right to challenge such decree is relatable to the
findings made in the decree and not relatable to the
personal right that was available to the parties who
initiated the proceedings or based on the cause of action
available to such parties. The Apex Court judgments
referred as above, clearly fortifies the maintainability
of an appeal. Therefore, we hold that the appeal is
maintainable.
7. The next question is regarding merit. The
divorce was granted to the husband on the ground of
Mat.Appeal No.1106/2018 & W.P.(C) No.12843/2022 9
cruelty. We can classify the finding of facts as
relatable to three aspects. Firstly, denial of physical
relationship with the husband. Secondly, using sim cards
and contacting strangers at odd hours and thirdly, the
intimacy of the wife with one of her relatives, namely,
Subhash. The point to be considered in this appeal is
based on the appreciation of the evidence. We shall advert
to each of the aspects in this appeal.
8. The husband was admittedly working in Madhya
Pradesh and the wife was working in Kollam District as a
teacher. The husband died in harness. The Family Court
found that the marriage has been irretrievably broken down
and there was hardly any intimacy left between the parties
during the subsistence of the marriage. It is found that
the parties was living separately from 2010 onwards and
that itself would amount to cruelty. It is to be noted
that the husband occasionally comes on leave to his native
place. He has no specific case that on those occasions,
the wife refused to have a relationship with him. On the
other hand, his case is that the wife is found using
Mat.Appeal No.1106/2018 & W.P.(C) No.12843/2022 10
different sim cards and contacting others. That means he
was staying with his wife whenever he comes on leave. It
was also the case of the husband that she failed to
respond to his call. There may be some misunderstanding
between the parties. The facts clearly would show that the
husband used to come on leave and used to stay at the
residence of the wife. It cannot be assumed that there
was no physical relationship between the parties. In the
wedlock, two children were born in the year 1999 and 2002.
Though the husband had alleged that there was no physical
and mental relationship between him and his wife, there is
nothing on record to prove his allegations. On the other
hand, visiting the native place and staying with his wife
clearly would show that they were living together whenever
he was on leave. The finding made by the Family Court that
there was no physical intimacy between them, according to
us, absolutely, was without materials in the background of
the case.
9. The next allegation is pointing out the use of
different sim cards by the wife. This aspect could have
Mat.Appeal No.1106/2018 & W.P.(C) No.12843/2022 11
been proved by summoning the records from the service
providers. According to the husband, he has seen some
obscene messages on the phone. He has not stated the
nature of the obscene messages he has seen. The wife has
denied all these allegations. When the wife denied the
allegations of using different sim cards, the husband
could have very well summoned call records from the
service providers.
10. The wife's intimacy with Subhash has been pointed
out as cruelty. The husband has no case that the wife was
leading an adulterous life. The wife is a school teacher.
According to her, Subhash is the son of a paternal aunt
and 10 years younger than her. She explained that she has
no other intimacy with Subhash except being a relative.
Merely raising such bald allegations without any
supporting evidence would actually amount to cruelty
against whom such allegations have been raised.
11. No evidence was adduced by the husband to prove
the cruelty alleged against the wife. On mere surmises
and conjunctures, the court cannot grant a divorce. We,
Mat.Appeal No.1106/2018 & W.P.(C) No.12843/2022 12
therefore, are of the view that the impugned judgment has
to be set aside. Accordingly, it is set aside. The
appeal is allowed.
W.P.(C) No.12843/2022
This writ petition is directly connected to the
decision in Mat.Appeal. We have set aside the decree of
divorce granted in favour of deceased Harikumar, the
husband of the petitioner. When the matter is taken up,
the counsel for the wife and the counsel for the children
would submit that they have no objection in releasing the
entire DCRG in the name of the children who are additional
respondents 5 and 6 in the writ petition. The learned
counsel for respondents 5 and 6 also has no objection in
receiving DCRG in equal proportions. The petitioner as
well as respondents 5 and 6 in the writ petition also
agreed that the amount may be deposited in fixed deposit
in a nationalised bank until they attain the age of 25. It
is also agreed that the interest can be used by the
children. We record the submission. Accordingly, we pass
the following orders in the writ petition:
Mat.Appeal No.1106/2018 & W.P.(C) No.12843/2022 13
i. The Railway Authority is directed to disburse DCRG
in two equal shares in the name of respondents 5 and 6 in
fixed deposit in State Bank of India, Kottarakkara Branch.
ii. The fixed deposit can be liquidated by
respondents 5 and 6 only when they attain the age of 25.
Respondents 5 and 6 are permitted to withdraw the interest
accrued from time to time.
iii. The Railway Authority can release the family
pension to the petitioner if she is otherwise found
entitled to recover the same, in accordance with law.
Sd/-
A.MUHAMED MUSTAQUE
JUDGE
Sd/-
SOPHY THOMAS
JUDGE
ln
Mat.Appeal No.1106/2018 & W.P.(C) No.12843/2022 14
APPENDIX OF WP(C) 12843/2022
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE DEATH CERTIFICATE
ISSUED BY THE REGISTRAR OF BIRTH AND
DEATHS, DEPARTMENT OF URBAN AFFAIRS,
KOLLAM DATED 05.06.2020.
EXHIBIT P2 TRUE COPY OF THE JUDGMENT DATED
14/9/2018 IN OP(HMA) 682/2015.
EXHIBIT P3 TRUE COPY OF THE JUDGMENT DATED
14/9/2018 IN OP(HMA)NO.682/2015.
EXHIBIT P4 TRUE COPY OF THE INTERIM ORDER PASSED
BY THIS HON'BLE COURT DATED 3/12/2018
IN MAT APPEAL 1106/2018.
EXHIBIT P5 TRUE COPY OF THE REPRESENTATION FILED
BY THE PETITIONER BEFORE THE 3RD
RESPONDENT DATED NIL.
EXHIBIT P6 TRUE COPY OF THE COMMUNICATION ISSUED
BY THE 3RD RESPONDENT O THE PETITIONER
DATED 08/12/2020 ALONG WITH ENGLISH
TRANSLATION.
EXHIBIT P7 TRUE COPY OF THE BIRTH CERTIFICATE OF
VYSAKH.H DATED 06/03/1999.
EXHIBIT P8 TRUE COPY OF THE BIRTH CERTIFICATE OF
VYSHNAV.H DATED 13/06/2001.
EXHIBIT P9 TRUE COPY OF THE FAMILY PASS ISSUED BY
THE WESTERN CENTRAL RAILWAY, BHOPAL
CIRCLE DATED NIL ALONG WITH ITS ENGLISH
TRANSLATION.
EXHIBIT P10 TRUE COPY OF THE COMBINED NOMINATION
FORM FOR PF, GIS AND DCRG SUBMITTED BY
LATE SHRI.HARIKUMAR.G, BEFORE WEST
CENTRAL RAILWAY ALONG WITH A TYPED
LEGIBLE COPY OF THE SAME.
