Kerala High Court
Silpa.N vs Subhash on 2 July, 2025
Author: Sathish Ninan
Bench: Sathish Ninan
Mat.Appeal Nos.672, 667, 671, 763 of 2017
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR
WEDNESDAY, THE 2ND DAY OF JULY 2025 / 11TH ASHADHA, 1947
MAT.APPEAL NO. 672 OF 2017
AGAINST THE JUDGMENT DATED 15.03.2017 IN OP NO.309 OF
2014 OF FAMILY COURT, OTTAPPALAM
APPELLANT/PETITIONER:
SILPA.N
AGED 26 YEARS, D/O.SUKUMARAN, NELLULLIYIL VEEDU,
S.R.K NAGAR, OTTAPALAM
BY ADVS.
SRI.N.M.MADHU
SRI.M.C.ASHI
SMT.C.S.RAJANI
RESPONDENTS/RESPONDENTS:
1 SUBHASH
AGED 36 YEARS, S/O.KUTTAN, OTTUPURA PALLIYALIL
VEEDU, SHORNUR GOVT.PRESS P.O, SHORNUR,
OTTAPALAM TALUK- 679 122
2 KUTTAN
AGED 68 YEARS, F/O. SUBHASH OTTUPURA PALLIYALIL
VEEDU,SHORNUR GOVT. PRESS P.O,SHORNUR,
OTTAPALAM TALUK 679 122
Mat.Appeal Nos.672, 667, 671, 763 of 2017
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3 PANCHALI
AGED 58 YEARS, W/O. KUTTAN OTTUPURA PALLIYALIL
VEEDU,SHORNUR GOVT. PRESS P.O,SHORNUR,
OTTAPALAM TALUK 679 122
BY ADVS.
SRI.R.SREEHARI
SRI.SACHIN VYAS
THIS MATRIMONIAL APPEAL HAVING COME UP FOR HEARING ON
25.06.2025, ALONG WITH MAT.APPEAL.667/2017, 671/2017 AND
763/2017, THE COURT ON 02.07.2025 DELIVERED THE FOLLOWING:
Mat.Appeal Nos.672, 667, 671, 763 of 2017
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR
WEDNESDAY, THE 2ND DAY OF JULY 2025 / 11TH ASHADHA, 1947
MAT.APPEAL NO. 667 OF 2017
(AGAINST THE JUDGMENT DATED 15.03.2017 IN O.P.nO.386/2014 OF
FAMILY COURT, OTTAPALAM)
APPELLANT/RESPONDENT:
SUBHASH
37 YEARS
S/O KUTTAN, OTTUPURA,PALLIYALIL VEEDU, SHORNUR
GOVERNMENT PRESS POST, SHORNUR,OTTAPALAM TALUK,
PALAKKAD DISTRICT.
BY ADVS.
SRI.R.SREEHARI
SRI.SACHIN VYAS
RESPONDENTS/PETITIONERS:
1 SILPA.N
27 YEARS,D/O SUKUMARAN, NELLULLIYIL,
ANJANAM VEEDU, MEETNA,
SREE RAMAKRISHNA NAGAR POST,OTTAPALAM,
PALAKKAD DISTRICT 679103.
2 SRAVAN
AGED 4 YEARS (MINOR), S/O SUBHASH, REPRESENTED BY
MOTHER SILPA N. D/O SUKUMARAN, NELLULLIYIL, ANJANAM
Mat.Appeal Nos.672, 667, 671, 763 of 2017
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VEEDU, MEETNA, SREE RAMA KRISHNA NAGAR POST,
OTTAPALAM, PALAKKAD DISTRICT 679103.
BY ADVS.
SRI.M.C.ASHI
SRI.N.M.MADHU
THIS MATRIMONIAL APPEAL HAVING COME UP FOR HEARING ON
25.06.2025, ALONG WITH MAT.APPEAL.672/2017 AND CONNECTED
CASES, THE COURT ON 02.07.2025 DELIVERED THE FOLLOWING:
Mat.Appeal Nos.672, 667, 671, 763 of 2017
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2025:KER:47789
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR
WEDNESDAY, THE 2ND DAY OF JULY 2025 / 11TH ASHADHA, 1947
MAT.APPEAL NO. 671 OF 2017
AGAINST THE JUDGMENT DATED 15.03.2017 IN OP NO.386 OF
2014 OF FAMILY COURT, OTTAPPALAM
APPELLANTS/PETITIONERS:
1 SILPA N
AGED 26 YEARS, D/O. SUKUMARAN,
NELLULLIYIL VEEDU, S.R.K. NAGAR,
PALAPPURAM, OTTAPALAM.
2 SRAVAN
AGED 4 YEARS (MINOR), S/O. SUBHASH,REP.
BY MOTHER SILPA. N.
BY ADVS.
SRI.N.M.MADHU
SRI.M.C.ASHI
SMT.C.S.RAJANI
RESPONDENT/PETITIONER:
SUBHASH
AGED 36 YEARS, S/O. KUTTAN,
OTTUPURA PALLIYALIL VEEDU,
SHORNUR GOVT. PRESS P.O.,
Mat.Appeal Nos.672, 667, 671, 763 of 2017
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SHORNUR,
OTTAPALAM TALUK - 679 122.
BY ADVS.
SRI.R.SREEHARI
SRI.SACHIN VYAS
THIS MATRIMONIAL APPEAL HAVING COME UP FOR HEARING ON
25.06.2025, ALONG WITH MAT.APPEAL.672/2017 AND CONNECTED
CASES, THE COURT ON 02.07.2025 DELIVERED THE FOLLOWING:
Mat.Appeal Nos.672, 667, 671, 763 of 2017
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR
WEDNESDAY, THE 2ND DAY OF JULY 2025 / 11TH ASHADHA, 1947
MAT.APPEAL NO. 763 OF 2017
AGAINST THE JUDGMENT DATED 15.03.2017 IN OP NO.222 OF
2014 OF FAMILY COURT, OTTAPPALAM
APPELLANT/PETITIONER:
SUBHASH
37 YEARS, S/O.KUTTAN, OTTUPURA
PALLIYALIL VEEDU, SHORNUR GOVERNMENT
PRESS ROAD, SHORNUR,
OTTAPALAM TALUK,
PALAKKAD DISTRICT.
BY ADVS.
SRI.R.SREEHARI
SRI.SACHIN VYAS
RESPONDENT/RESPONDENT:
SILPA
27 YEARS
D/O.SUKUMARAN, NELLULLIYIL,
ANJANAM VEEDU, MEETNA,
SREE RAMAKRISHNA
NAGAR POST, OTTAPALAM,
PALAKKAD DISTRICT-679103.
Mat.Appeal Nos.672, 667, 671, 763 of 2017
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BY ADVS.
SRI.M.C.ASHI
SRI.N.M.MADHU
THIS MATRIMONIAL APPEAL HAVING COME UP FOR HEARING ON
25.06.2025, ALONG WITH MAT.APPEAL.672/2017 AND CONNECTED
CASES, THE COURT ON 02.07.2025 DELIVERED THE FOLLOWING:
Mat.Appeal Nos.672, 667, 671, 763 of 2017
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SATHISH NINAN & P. KRISHNA KUMAR, JJ.
= = = = = = = = = = = = = = = = = =
Mat Appeal Nos.672, 667, 671 &
763 of 2017
= = = = = = = = = = = = = = = = = =
Dated this the 2nd day of July, 2025
JUDGMENT
P.Krishna Kumar, J.
By the impugned common judgment, the Family Court,
Ottappalam, disposed of three original petitions. Two of
them were filed by the wife against the husband--one
seeking the return of gold ornaments and money, and the
other claiming past and future maintenance for herself
and their child. The third petition, filed by the
husband, was for a decree of divorce under Section 13(1)
(ia) of the Hindu Marriage Act. The learned Family Judge
dismissed the wife's petition for the recovery of money
and gold ornaments, and allowed the maintenance claim
only insofar as it related to the child. The husband's
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divorce petition was also dismissed. Aggrieved by the
respective adverse decrees, both the husband and wife
have filed appeals challenging those parts of the
judgment.
2. The marriage between the parties was solemnised on
1.05.2011 in accordance with Hindu rites, and a male
child was later born to them. The wife claimed that, at
the time of marriage, she received 51 sovereigns of gold
ornaments from her parents. She alleged that, shortly
after the marriage, 40½ sovereigns of those ornaments
were entrusted to the husband and his parents, who
subsequently misappropriated them for purchasing land in
the husband's name.
3. The wife further alleged that she is
unable to maintain herself and that the husband has
neglected to provide for her and their minor child since
16.04.2014. Based on this, she claimed past and future
maintenance at the rate of Rs.15,000/- per month for
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herself and Rs.10,000/- per month for the child. She also
asserted that the husband is employed abroad, earning a
monthly salary of approximately Rs. 1,00,000/-.
4. The husband denied all the above allegations. He
further filed a petition seeking divorce, alleging that
the wife began exhibiting erratic behaviour soon after
she became pregnant. On one occasion, she allegedly threw
stones at his mother. He further contended that she
frequently quarrelled with him over trivial matters and
had even threatened to commit suicide by jumping from the
upper floor of their residence when they were residing
abroad. After the child's birth, the wife allegedly
refused to return to the matrimonial home. According to
the husband, any possibility of reunion is now
foreclosed, as the wife has consistently behaved in a
cruel manner, resulting in an irretrievable breakdown of
their marital relationship.
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5. We have heard the learned counsel
appearing for the appellants and the respondent.
6. The first point for determination is
whether the wife is entitled to recover gold ornaments
and money from the husband and his parents. It is not in
dispute that the wife was adorned with 51 sovereigns of
gold ornaments at the time of marriage. Her assertion in
this regard, made both in the petition and in her chief
affidavit, remained unchallenged. In support of her
claim, she also relied on Ext.A3, a purchase
bill/estimate, and Ext.A4 series of photographs, which
also substantiate her claim.
7. However, the allegation regarding the entrustment
of the gold ornaments remains seriously disputed. When
the wife deposed that 40 ½ sovereigns of gold ornaments
were entrusted to the husband and his parents (the other
respondents), the husband stoutly denied it. At the same
time, the husband has made a significant admission while
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giving evidence. He said that the gold ornaments were
once entrusted to him by the wife. His contention is that
he returned all of them to her before he went abroad. He
states as follows:
"വ വ ഹശ ഷ ആഭരണങൾ എൻ വ ട ൽ എൻ bed room
ൽ ആണണ സസക ച രരനതണ (page 10). ഗൾഫ ൽ ശ കരനത നര മരൻ ണ ,
ആഭരങൾ ഞ ൻ PW1 ൻന ഏലണ( ചര, അത നരശ ഷ ആ ആഭരണങൾ
ഞ ൻ കണ ട ല (page 11)."
In support of this claim, he produced Exts.B3 to B6
photographs allegedly taken at the time of his brother's
engagement. These photographs show the wife wearing a
thick, long gold chain along with a few other chains and
bangles that also appear in the photographs taken at the
time of wedding. However, these photographs are
insufficient to prove that the wife got back the entire
set of gold ornaments that had admittedly been entrusted
to the husband. Once the husband admits of having had
custody of the ornaments and then asserts that he
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returned them, the burden clearly shifts to him to
convincingly establish that claim.
8. Having carefully appreciated the oral evidence of
PW1 and RW1, along with the photographs produced by both
sides, we are of the view that a substantial portion of
the gold ornaments entrusted to the husband were not
returned to the wife. That said, we are not inclined to
accept the wife's version in its entirety. Her claim that
40½ sovereigns were retained by the husband appears to be
exaggerated. Ext.B4 makes it evident that at least 25
sovereigns of the ornaments allegedly entrusted to the
husband are still in her possession. She has no case that
she re-entrusted them to the husband.
9. The learned Family Judge rejected the wife's
claim on the ground that her case lacks consistency
across various pleadings and in her cross-examination.
The court noted contradictions in her statements: on one
occasion, she claimed that the gold ornaments were taken
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by the husband and his parents; on another, she stated
that only the husband had taken them. Further, in the
maintenance petition, she alleged that the gold was sold
by the husband and his parents to purchase property in
the husband's name. Yet, during cross-examination, she
admitted that she was not sure as to what happened to the
gold ornaments. The court also found inconsistencies
regarding the period of the alleged entrustment. In one
instance, she claimed that the ornaments were taken
before she left for abroad, while in cross-examination,
she stated that the property was purchased after she
returned from the Gulf.
10. We have carefully examined the evidence on
record in order to evaluate the conflicting claims raised
by both parties. Upon a comprehensive analysis of the
pleadings and the deposition of the wife, who was
examined as PW1, we find ourselves unable to concur with
the view taken by the Family Court on this aspect. At
first glance, certain inconsistencies may appear in the
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wife's statements. However, a closer scrutiny reveals
that she has been referring to the same transaction or
incident, albeit in varying terms. Her consistent case
throughout is that the gold ornaments were taken by her
husband and his parents. In her cross-examination, she
deposed as follows:
"ഭർത വര റഞ ടര, അമ വ ങ ൻവകരകയ യ രരനര.
OP 309/2014 ൽ അചനര അമയര ഭർത വര കസട ആഭരണങൾ
എടരതര റ എനര റഞര ക ണരനര (Q ) indirect ആയ
അതര ര യ ണണ , അചനര അമയര ആണണ എന ൽ ന നര വ ങ യതണ .
(A) OP -386/2014 എൻ മരഴരവൻ ആഭരണങളര എടരതര റ എനര
റഞ ടരളതണ ര യല, 40 ½ വൻ ആണണ എടരതതണ . Property
വ ങ ൻ ആണണ എനര റഞ ണണ എന ൽ ന നര ആഭരണങൾ അവർ
വ ങ യതണ . ആഭരണങൾ അവർ എനര ൻ:യ< ര എനണ എന കറ യ ല."
When the wife's version is considered in the context of
the statements made in her various pleadings, we find no
material inconsistency in her case. She has been
narrating the same incident throughout, with only slight
variations regarding the specific role played by the
husband and his parents. Moreover, she has reasonably
explained the context in which such variations occurred.
It is trite that a witness cannot be disbelieved merely
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on account of minor inconsistencies, especially in
matrimonial matters. The duty of the court is to evaluate
the evidence as a whole, rather than to adopt a fault-
finding approach. Inconsistencies in immaterial aspects
should not sway the assessment of credibility.
11. Accordingly, we hold that the respondents
are liable to return the balance 15 ½ sovereigns of gold
ornaments. In our view, the approach adopted by the
Family Court was clearly flawed, as it failed to take
into account the above material aspects in the evidence.
Therefore, we conclude that the wife is entitled to
recover 15½ sovereigns of gold ornaments, or their market
value at the time of recovery.
12. The next issue to be considered is whether
the husband is entitled to a decree of divorce on the
ground of matrimonial cruelty. Both parties have levelled
serious allegations and counter-allegations against each
other, each asserting that the other has acted cruelly
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and irreparably damaged the solemn relationship. Despite
being subjected to detailed cross-examination, the
husband's core contention, that the quarrelsome attitude
of the wife had caused serious disruptions in their
marital life, remained unshaken. He deposed that the wife
frequently reacted disproportionately to minor issues,
even going so far as to threaten suicide. On one
occasion, she allegedly threw stones at her mother-in-
law.
13. Having considered the evidence on record, we
find substantial merit in the argument advanced by the
learned counsel for the husband that a peaceful and
meaningful marital life between the parties has become
practically impossible. In such circumstances, compelling
the husband to remain in this strained relationship would
itself amount to further mental cruelty. Upon evaluating
his testimony alongside the evidence of RW1 and RW2, we
are persuaded to hold that the husband has successfully
established his claim for divorce on the ground of
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matrimonial cruelty under Section 13(1)(ia) of the Hindu
Marriage Act.
14. Apart from the above, it is also undisputed
that the parties have been living separately at least
since 16.04.2014. Although the wife has opposed the
petition for divorce, she has not chosen to file any
petition for restitution of conjugal rights. Despite
various efforts, including mediation and conciliation,
the relationship failed to improve. The prolonged
separation, coupled with the unending discord and the
hostile environment portrayed through the pleadings and
testimony, clearly establishes that the marital bond has
broken down irretrievably. The Apex Court in Samar Ghosh
v. Jaya Ghosh [(2007) 4 SCC 511) observed that the
marriage becomes a fiction, though it is supported by a
legal tie, when there is continuous separation and loss
of essential bond between the couple. It was further
held that, if there has been a long period of continuous
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separation, it is fair to conclude that the matrimonial
bond is beyond repair.
15. In Shilpa Sailesh v. Varun Sreenivasan [2023
SCC OnLine SC 544], it has been held that where there is
an irretrievable breakdown of marriage, then dissolution
of marriage is the only solution. In Rajib Kumar vs.
Sushmita Saha [2023 LiveLaw (SC) 727], the Apex Court
held that keeping the parties together despite an
irretrievable breakdown of marriage amounts to cruelty on
both sides. Such a long separation without any intention
to resume cohabitation amounts to cruelty to the spouse.
After considering all the above aspects, we are of the
view that the marriage between the parties could be
dissolved on the said ground as well.
16. With respect to the challenge against the
maintenance order passed by the learned Family Judge, we
find no merit in the appeals filed by either party. The
husband has failed to establish any sufficient ground to
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absolve himself of the obligation to maintain his minor
son. It is not disputed that he is an able-bodied
individual earning a reasonably substantial monthly
income. We also find some merit in the trial court's
observation that the wife lived separately from the
husband without sufficient reasonable cause. Although she
alleged that she suffered cruelty at the hands of the
husband and his parents, the materials on record do not
fully substantiate those claims. Therefore, we are not
inclined to interfere with the Family Court's decision to
deny her claim for past maintenance. We also find that
the amount awarded as maintenance to the child is
sufficient.
17. However, in light of our conclusion granting a
decree of divorce in favour of the husband, the wife
shall be entitled to get future maintenance. Considering
the claim made by the husband that he is getting only
Rs.30,000/- per month at the time of giving evidence in
this case, we deem it appropriate to allow future
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maintenance at the rate of Rs.10,000/- per month until
she remarries.
18. In the result, Mat.Appeal No.672/2017 is
partly allowed. The appellant is allowed to recover 15½
sovereigns of gold ornaments from the respondents or to
recover its market value prevalent at the time of
recovery, but without any interest on it.
Mat.Appeal No.763/2017 is allowed. The marriage
between the parties solemnised on 01.05.2011 will stand
dissolved by a decree of divorce.
Mat.Appeal No.671/2017 is partly allowed. The first
appellant is entitled to get future maintenance @
Rs.10,000/- from the respondent/husband until she
remarries and that all the immovable properties owned by
the husband will be subject to a charge for the said
amount. The Mat.Appeal No.667/2017 is dismissed,
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confirming the order of maintenance passed by the trial
court.
Sd/-
SATHISH NINAN
JUDGE
Sd/-
P. KRISHNA KUMAR
JUDGE
sv
