Kerala High Court

Abrham Varghese vs Anu Kurian on 6 February, 2025

Author: Sathish Ninan

Bench: Sathish Ninan

                                                        2025:KER:9294
Mat.Appeal Nos.1335/2017 & connect.cases


                                 :-1-:



            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
            THE HONOURABLE MR. JUSTICE SATHISH NINAN
                                &
        THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
   THURSDAY, THE 6TH DAY OF FEBRUARY 2025 / 17TH MAGHA, 1946
                   MAT.APPEAL NO. 1335 OF 2017

      [AGAINST THE ORDER DATED 24/07/2017 IN OP NO.184 OF 2015
OF FAMILY COURT, KOTTAYAM AT ETTUMANOOR]
APPELLANT/RESPONDENT:

             ABRAHAM VARGHESE
             AGED 36 YEARS
             S/O. A. A. VARKEY,AGED 36 YEARS, ALACKULATHIL HOUSE,
             AYARKUNNAM POST, KOTTAYAM DISTRICT,PIN-686564.


             BY ADV SRI.P.K.RAVISANKAR


RESPONDENT/PETITIONER IN OP:

             ANU KURIAN
             D/O. KURIAN, AGED 32 YEARS, PULINPUZHA HOUSE,
             MUTTAMBALAM POST, KANJIKUZHI BHAGOM, KOTTAYAM
             DISTRICT,PIN-686004.


             BY ADVS.
             SUBHASH CYRIAC
             S.SREEJITH (S-3453)



     THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON
21.01.2025,    ALONG   WITH    Mat.Appeal.210/2018,     1391/2017   AND
CONNECTED     CASES,   THE    COURT   ON   06.02.2025   DELIVERED   THE
FOLLOWING:
                                                      2025:KER:9294
Mat.Appeal Nos.1335/2017 & connect.cases


                                :-2-:




            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
            THE HONOURABLE MR. JUSTICE SATHISH NINAN
                               &
        THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
   THURSDAY, THE 6TH DAY OF FEBRUARY 2025 / 17TH MAGHA, 1946
                   MAT.APPEAL NO. 210 OF 2018

      [AGAINST THE JUDGMENT DATED 24/07/2017 IN OP NO.185 OF
2015 OF FAMILY COURT, KOTTAYAM AT ETTUMANOOR]
APPELLANT/PETITIONER:

            ANU KURIAN
            AGED 30 YEARS
            D/O. KURIAN, PULIMPUZHA HOUSE,MUTTAMBALAM P.O,
            KANJIKUZHY KOTTAYAMMUTTCUHIRA, VAIKOM TALUK, KOTTAYAM
            DISTRICT.


            BY ADVS.
            SRI.SUBHASH CYRIAC
            SMTSHEEBA JOSEPH
            SRI.S.SREEJITH S-3453


RESPONDENTS/RESPONDENTS:

    1       ABRAHAM VARGHESE
            AGED 34 YEARS,S/O. A.A VARKEY, ALEKULATHIL
            HOUSE,AYARKUNNAM P.O, KOTTAYAM TALUK,NOW RESIDING AT
            NO. 371,FOURTH CROSS (PATEL REMAIAH GARDEN ROAD)
            MUNINAJAPPA LAY OUT, KOTHANNUR P.O, BANGALORE 77.

    2       A.A VARKEY
            W/O. THOMAS, VADAKKEL HOUSE, ALAEKULATHIL
            HOUSE,AYARKUNNAM P.O, KOTTAYAM TALUK 686 564


        THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON
21.01.2025,    ALONG   WITH   Mat.Appeal.1335/2017   AND   CONNECTED
CASES, THE COURT ON 06.02.2025 DELIVERED THE FOLLOWING:
                                                      2025:KER:9294
Mat.Appeal Nos.1335/2017 & connect.cases


                                :-3-:




            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
            THE HONOURABLE MR. JUSTICE SATHISH NINAN
                                &
        THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
   THURSDAY, THE 6TH DAY OF FEBRUARY 2025 / 17TH MAGHA, 1946
                   MAT.APPEAL NO. 1391 OF 2017

      [AGAINST THE JUDGMENT DATED 24.07.2017 IN OP NO.185 OF
2015 OF FAMILY COURT, KOTTAYAM AT ETTUMANOOR]
APPELLANTS/RESPONDENTS IN OP:

    1       ABRHAM VARGHESE
            AGED 36 YEARS
            S/O A.A VARKEY, ALACKULATHIL HOUSE, AYARKUNNAM
            POST,KOTTAYAM DISTRICT, PIN.686564

    2       A.A. VARKEY
            AGED 36 YEARS, ALACKULATHIL HOUSE,AYARKUNNAM POST,
            KOTTAYAM DISTRICT, PIN.686564


            BY ADV SRI.P.K.RAVISANKAR


RESPONDENT/PETITIONER IN OP:

            ANU KURIAN
            D/O KURIAN, AGED 32 YEARS, PULINPUZHA
            HOUSE,MUTTAMBALAM POST, KANJIKUZHY BHAGOM,KOTTAYAM
            DISTRICT. PIN.686004.



        THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON
21.01.2025,    ALONG   WITH   Mat.Appeal.1335/2017   AND   CONNECTED
CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
                                                     2025:KER:9294
Mat.Appeal Nos.1335/2017 & connect.cases


                               :-4-:




            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
            THE HONOURABLE MR. JUSTICE SATHISH NINAN
                                &
        THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
   THURSDAY, THE 6TH DAY OF FEBRUARY 2025 / 17TH MAGHA, 1946
                   MAT.APPEAL NO. 1412 OF 2017

      (AGAINST THE ORDER DATED 24.07.2017 IN OP(G&W) NO.1106 OF
2014 OF FAMILY COURT, KOTTAYAM AT ETTUMANOOR)
APPELLANT/PETITIONER IN OP:

          ABRAHAM VARGHESE,
          S/O.A.A VARKEY, AGED 36 YEARS, ALACKULATHIL HOUSE,
          AYARKUNNAM POST, KOTTAYAM DISTRICT, PIN 686 564


          BY ADV SRI.P.K.RAVISANKAR


RESPONDENT/RESPONDENT IN O.P.:

          ANU KURIAN
          D/O. KURIAN, AGED 32 YEARS, PULINPUZHA
          HOUSE,MUTTAMBALAM POST, KANJIKUZHY BHAGOM,
          KOTTAYAM DISTRICT, PIN 686 004.


          BY ADVS.
          SRI.SUBHASH CYRIAC
          SMTSHEEBA JOSEPH
          SRI.S.SREEJITH S-3453



     THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON
21.01.2025,   ALONG   WITH   Mat.Appeal.1335/2017   AND   CONNECTED
CASES, THE COURT ON 06.02.2025 DELIVERED THE FOLLOWING:
                                                     2025:KER:9294
Mat.Appeal Nos.1335/2017 & connect.cases


                               :-5-:




                         JUDGMENT

Shoba Annamma Eapen, J:

These appeals arise from the common judgment in three

Original Petitions. Since the parties are the same, the above

Mat.Appeals are heard together and being disposed of together.

2. Mat. Appeal No. 1335/2017 is filed by the husband

challenging the order of divorce in O.P.No.184/2015 filed by the

wife, which was allowed by the Family Court, Kottayam at

Ettumanoor.

3. Mat.Appeal Nos.1391/2017 and 210/2018 are filed by the

husband and wife respectively, challenging the order passed in

O.P.No.185/2015 for return of gold and money. O.P.No.185 of

2015 was filed by the wife against husband and his father for return

of gold ornaments and money. The husband filed a counter claim

for return of 15 sovereigns of gold ornaments, educational

expenses of wife ₹3,00,000/-, marriage expenses ₹75,000/- and

betrothal expenses ₹50,000/-. The Family Court partly allowed the

claim of the wife ordering return of 20 sovereigns of gold ornaments

and ₹3,00,000/- as patrimony. Aggrieved by the same, the wife filed 2025:KER:9294 Mat.Appeal Nos.1335/2017 & connect.cases

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Mat.A.No.210/2018. The counter claim filed by the husband was

partly allowed by ordering ₹3,00,000/-. Challenging the same, the

husband and father filed Mat.A.No.1391/2017.

4. Mat.Appeal No.1412/2017 is filed by the husband

challenging the order in O.P.(G&W) 1106/2014 declining the prayer

for custody of the daughter.

5. For the sake of convenience, the parties are hereinafter

referred to as 'husband' and 'wife'.

6 The brief facts of the case are as follows:-

The marriage between the parties was solemnised on

26/12/2010. A girl child was born in the wedlock on 25/08/2012.

Their relationship got strained and they were living separately from

02/10/2014 onwards. At the time of marriage, the husband was

working as Administrator in Bhuvan College of Nursing, Bangalore.

The wife joined the same college, became friends with her

husband's sister, and thereby, the parties got acquainted. They

began living together in Bangalore from 2006 onwards. According

to the wife, at the time of marriage, she was given ₹3,00,000/- as 2025:KER:9294 Mat.Appeal Nos.1335/2017 & connect.cases

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patrimony and 53.63 sovereigns of gold ornaments. They left for

Bangalore, after seven days of marriage and then she possessed

only 10 sovereigns of gold ornaments, while the remaining

ornaments were in the custody of her father-in-law. Following the

marriage, disputes arose, causing strained relationship.

Consequently, the parties filed original petitions before the Family

Court.

7. Heard Sri.P.K.Ravi Shankar, the learned counsel for the

husband and Sri. Subhash Syriac, the learned counsel for the wife.

Mat.A.No.1335/2017:

8. Firstly we will consider Mat.A.No.1335/2017 filed by the

husband against the divorce granted by the Family Court. The wife

has sought divorce on the ground of cruelty. The marital

relationship is built over the period based on harmonious

combination of difference in taste, outlook, attitude etc. Although

the husband and wife had been living together since 2006, after

their marriage, they began to experience marital discord and

disagreements. Admittedly from 02/10/2014 onwards, they were 2025:KER:9294 Mat.Appeal Nos.1335/2017 & connect.cases

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living separately. In Rakesh Raman v. Kavitha [2023 SCC

OnLine SC 497], it has been held that though in a given case,

cruelty as a fault may not be attributable to one party alone and

hence, despite irretrievable breakdown of marriage, keeping the

parties together amounts to cruelty on both sides. In Shilpa

Sailesh v. Varun Sreenivasan [2023 SCC OnLine SC 544], it has

been held that where there is irretrievable breakdown of marriage,

then, dissolution of marriage is the only solution.

9. In this case, from the evidence on record, it is clear that

there was irretrievable breakdown of marriage and they were living

separately from 2014 onwards. Further, the husband during

examination has deposed that he has no objection in granting

divorce. Accordingly, we find that the Family Court has rightly

granted divorce and we do not find any reason to interfere with the

same.

Mat.A.No.1412/2017:

10. Mat.A.No.1412/2017 is filed by the husband challenging

the dismissal of the claim seeking custody of the daughter. At the 2025:KER:9294 Mat.Appeal Nos.1335/2017 & connect.cases

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time of hearing, the learned counsel for the husband submitted that

the claim for custody of the child is not pressed.

Mat.A.Nos.1391/2017 & 210/2018:

11. The main challenge is in respect of Mat.A.Nos.1391/2017

and 210/2018 for return of money, gold ornaments etc. filed by the

husband and wife. According to the wife, at the time of marriage,

she was given 53.63 sovereigns of gold ornaments by her parents

and ₹3,00,000/- was given to her as her share. She further stated

that when she left for Bangalore 7 days after the marriage, she took

only 10 sovereigns of gold ornaments with her, leaving the

remaining ornaments in the custody of her father-in-law. It was

further contended that the husband misappropriated the ten

sovereigns of gold ornaments that were in her custody. It was

alleged that the husband's father misappropriated the gold

ornaments that had been entrusted to him. The wife further alleged

that during the betrothal ceremony, her parents and brother had

entrusted ₹3,00,000/- to the husband and his father as part of her

patrimony. She claimed that the entire amount was misappropriated 2025:KER:9294 Mat.Appeal Nos.1335/2017 & connect.cases

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by them. She sought return of both the gold ornaments and the

misappropriated money.

12. According to the husband, he had given gold ornaments

worth 15 sovereigns and he denied that she was given 53.63

sovereigns of gold at the time of marriage and the entrustment and

misappropriation were also denied. It is also argued that prior to

the marriage, he had met the wife's educational and other

expenses. Furthermore, he had also shouldered the entire cost of

the engagement and marriage ceremonies. He further contended

that he had spent ₹50,000/- for engagement and ₹75.000/- for

marriage and other celebrations. He also denied the alleged ill-

treatment, physical and mental.

13. The Family Court partly allowed both the claims by the

husband and wife. The wife was granted a decree for 20

sovereigns of gold ornaments and ₹3,00,000/- with interest. The

counterclaim of the husband was allowed for an amount of

₹3,00,000/-.

14. In the Original Petition as well as during examination, the 2025:KER:9294 Mat.Appeal Nos.1335/2017 & connect.cases

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wife had stated that she was given 53.63 sovereigns of gold

ornaments and she had taken 10 sovereigns of gold ornaments

when she left for Bangalore and the remaining gold ornaments

were kept in the locker of the second respondent, who is the father-

in-law. Other than the deposition, the wife has not adduced any

evidence to prove that she had 53.63 gold ornaments. The

photographs contained in the Ext.A4 photo album will indicate that

the petitioner was wearing approximately 30-34 sovereigns of gold

ornaments. It is her specific case that after the marriage, the

husband has misappropriated her valuables. Ext.A9 series of gold

loan tokens reveal that the husband had pledged gold ornaments

with financial institutions such as Muthoot and Kosamattam

Finance etc. during the period when he and his wife were

cohabiting. Ext.A9 series of gold loan tokens indicate that

approximately 20 sovereigns of gold ornaments were pledged. The

husband failed to give any proper explanation for the same nor

does he have a case that the gold ornaments were pledged for the

benefit of the wife. It is accordingly that the Family Court directed

return of 20 sovereigns of gold ornaments.

2025:KER:9294 Mat.Appeal Nos.1335/2017 & connect.cases

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15. Regarding the return of patrimony of ₹3,00,000/-, the

petitioner relied on Exts.A2 and A3 statements of account of Co-

operative Bank, Exts.A5 to A7 passbooks of KSFE and Ext.A8

passbook of Canara Bank. Those documents reveal that the

family of the wife was financially stable during 2009-10. Reliable

evidence was adduced by the wife to prove that her father was

having sufficient financial capacity and there is no reason to doubt

that she was given ₹3,00,000/- as patrimony. Hence, there is no

reason otherwise to disbelieve the evidence of the wife that she

was given ₹3,00,000/- as patrimony at the time of betrothal. The

Family Court has rightly allowed the return of ₹3,00,000/- as

patrimony. We do not find any reason to interfere with the same.

16. The husband had claimed return of 15 sovereigns of gold

ornaments and ₹3,00,000/- spent by him towards the educational

expenses of the wife, ₹75,000/- towards marriage expenses and

₹50,000/- towards betrothal expenses. According to the husband

and wife, they were living together from 2006 onwards. From the

deposition of RW1, Exts.B1 driving licence, B3 and B4 2025:KER:9294 Mat.Appeal Nos.1335/2017 & connect.cases

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photographs, B6 ration card, B7 RC book, B9 Election ID card of

wife, B11 club membership receipt, B12 statement of account and

chequebook etc. of Axis bank, it is seen that they were living

together from 2006. The husband, being the administrator of the

nursing college, was drawing an amount of ₹45,000/- per month

and it was his specific case that he remitted her college fees. The

husband also relied on Ext.B16 to show that he had remitted the

tuition fee amounting to ₹3,02,000/-. Considering Ext.B16, the

Family Court allowed the counterclaim of the husband for recovery

of ₹3,00,000/-. We do not find any reason to interfere with the

same.

17. The claim for return of 15 sovereigns and other expenses

alleged to be incurred for betrothal and marriage was declined by

the Family Court for lack of evidence. No satisfactory evidence

was adduced by the husband to prove that he had given 15

sovereigns of gold ornaments to his wife and had spent an amount

of ₹75,000/- and ₹50,000/- for the engagement and marriage

function. No material could be placed before us to arrive at a 2025:KER:9294 Mat.Appeal Nos.1335/2017 & connect.cases

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different conclusion. The Family Court, after appreciation of the

available evidence, rightly declined the claim for return of gold

ornaments and money. We do not find any reason to interfere with

the same.