Kerala High Court
Rakesh Prabha vs Sreejamol on 14 July, 2025
Author: Sathish Ninan
Bench: Sathish Ninan
2025:KER:51050
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR
MONDAY, THE 14TH DAY OF JULY 2025 / 23RD ASHADHA, 1947
MAT.APPEAL NO. 859 OF 2019
AGAINST THE ORDER/JUDGMENT DATED 30.03.2019 IN OP NO.980 OF
2014 OF FAMILY COURT, KOTTAYAM
APPELLANT/S:
RAKESH PRABHA
AGED 38 YEARS
S/O.PRABHAKARAN, PUTHUVELIL HOUSE, S.N.PURAM.P.O.,
KOTHALA KARA, KOOROPPADA VILLAGE, KOTTAYAM TALUK,
KOTTAYAM DISTRICT.
BY ADVS.
SRI.LIJI.J.VADAKEDOM
SMT.REXY ELIZABETH THOMAS
SRI.RAJEEV JYOTHISH GEORGE
SHRI.TOM E. JACOB
RESPONDENT/S:
SREEJAMOL
AGED 33 YEARS
D/O.C.K.SASI, ETTICKAL HOUSE, AKALAKUNNAM VILLAGE,
MANALUNKAL.P.O., POOVATHILAPPU KARA, KOTTAYAM TALUK,
KOTTAYAM DISTRICT-686503
THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON
14.07.2025, ALONG WITH Mat.Appeal.879/2019, 877/2019 AND CONNECTED
CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
2025:KER:51050
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR
MONDAY, THE 14TH DAY OF JULY 2025 / 23RD ASHADHA, 1947
MAT.APPEAL NO. 879 OF 2019
AGAINST THE ORDER/JUDGMENT DATED 30.03.2019 IN OP NO.801 OF
2014 OF FAMILY COURT, KOTTAYAM
APPELLANT/S:
RAKESH PRABHA
AGED 33 YEARS
S/O PRABHAKARAN, PUTHUVELIL HOUSE, S.N.PURAM P.O.,
KOTHALA KARA, KOOROPPADA VILLAGE, KOTTAYAM TALUK,
KOTTAYAM DISTRICT
BY ADVS.
SRI.LIJI.J.VADAKEDOM
SMT.REXY ELIZABETH THOMAS
SRI.RAJEEV JYOTHISH GEORGE
SHRI.TOM E. JACOB
RESPONDENT/S:
SREEJAMOL
D/O. C.K.SASI, ETTICKAL HOUSE, AKALAKUNNAM VILLAGE,
MANALUNKAL P.O., POOVATHILAPPU KARA, KOTTAYAM TALUK,
KOTTAYAM DISTRICT-686 503
BY ADVS.
SRI.JOSEKUTTY MATHEW
SRI.PRAFIN JOSEPH ZACHARIA
SMT.PRASEENA ELIZABETH JOSEPH
THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON
14.07.2025, ALONG WITH Mat.Appeal.859/2019 AND CONNECTED CASES,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
2025:KER:51050
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR
MONDAY, THE 14TH DAY OF JULY 2025 / 23RD ASHADHA, 1947
MAT.APPEAL NO. 877 OF 2019
AGAINST THE ORDER/JUDGMENT DATED 30.03.2019 IN OP NO.1216 OF
2013 OF FAMILY COURT, KOTTAYAM
APPELLANT/S:
RAKESH PRABHA
AGED 33 YEARS
S/O. PRABHAKARAN, PUTHUVELIL HOUSE, S.N. PURAM P.O,
KOTHALA KARA, KOOROPPADA VILLAGE, KOTTAYAM TALUK,
KOTTAYAM DISTRICT.
BY ADVS.
SRI.LIJI.J.VADAKEDOM
SMT.REXY ELIZABETH THOMAS
SRI.RAJEEV JYOTHISH GEORGE
SHRI.TOM E. JACOB
RESPONDENT/S:
SREEJAMOL
AGED 33 YEARS
D/O. C.K. SASI, ETTICKAL HOUSE, AKALAKUNNAM VILLAGE,
MANALUNKAL P.O, POOVATHILAPPU KARA, KOTTAYAM TALUK,
KOTTAYAM DISTRICT-686 503
BY ADVS.
SRI.JOSEKUTTY MATHEW
SRI.PRAFIN JOSEPH ZACHARIA
SMT.PRASEENA ELIZABETH JOSEPH
THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON
14.07.2025, ALONG WITH Mat.Appeal.859/2019 AND CONNECTED CASES,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
2025:KER:51050
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR
MONDAY, THE 14TH DAY OF JULY 2025 / 23RD ASHADHA, 1947
MAT.APPEAL NO. 878 OF 2019
AGAINST THE ORDER/JUDGMENT DATED 30.03.2019 IN OP NO.1217 OF
2013 OF FAMILY COURT, KOTTAYAM
APPELLANT/S:
RAKESH PRABHA
AGED 38 YEARS
S/O PRABHAKARAN, PUTHUVELIL HOUSE , S.N PURAM P.O,
KOTHALA KARA, KOOROPPADA VILLAGE, KOTTAYAM TALUK,
KOTTAYAM DISTRICT
BY ADVS.
SRI.LIJI.J.VADAKEDOM
SMT.REXY ELIZABETH THOMAS
SRI.RAJEEV JYOTHISH GEORGE
SHRI.TOM E. JACOB
RESPONDENT/S:
SREEJAMOL
AGED 33 YEARS
D/O C.K SASI , ETTICKAL HOUSE, MANALUNKAL P.O,
POOVATHILAPPU KARA, AKALAKUNNAM VILLAGE, KOTTAYAM
TALUK, KOTTAYAM DISTRICT - 686 503
BY ADVS.
SRI.JOSEKUTTY MATHEW
SRI.PRAFIN JOSEPH ZACHARIA
SMT.PRASEENA ELIZABETH JOSEPH
THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON
14.07.2025, ALONG WITH Mat.Appeal.859/2019 AND CONNECTED CASES,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
2025:KER:51050
SATHISH NINAN & P. KRISHNA KUMAR, JJ.
= = = = = = = = = = = = = = = = = =
Mat.Appeal Nos.859, 877, 878 and 879 of 2019
= = = = = = = = = = = = = = = = = =
Dated this the 14th day of July, 2025
JUDGMENT
Sathish Ninan, J.
These appeals are by the husband, challenging the
judgments of the Family Court in proceedings inter se the
wife.
2. Mat.Appeal No.877 of 2019 arise from O.P.No.1216
of 2013. The original petition was one filed by the husband
against the wife, seeking dissolution of marriage. The
original petition was dismissed by the Family Court.
3. Mat.Appeal No.878 of 2019 arise from O.P.No.1217
of 2013. The original petition was filed by the husband
against the wife, seeking return of 'Thali'. The original
petition was dismissed by the Family Court.
4. Mat.Appeal No.859 of 2019 arise from O.P.No.980 of
2014. The original petition was one filed by the wife
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Mat.Appeal Nos.859, 877, 878 and
879 of 2019
against the husband, seeking return of gold ornaments and
money. The original petition was decreed in part.
5. Mat.Appeal No.879 of 2019 arise from O.P.No.801 of
2014. The original petition was filed by the wife against
the husband, seeking custody of the minor child born in the
wedlock. The original petition was allowed.
6. The marriage between the parties was solemnised on
21.10.2010. A daughter was born in the wedlock. At the time
of marriage, the husband was a constable in CRPF and the
wife was working abroad. According to the wife, at the time
of marriage she was provided with 29 sovereigns of gold
ornaments. She had, from out of her salary, provided the
husband an amount of Rs.6,50,000/-. The parties fell apart.
The wife seeks for return of the gold ornaments and money.
She also seeks for custody of the minor child.
7. The husband contended that the wife refused to
stay in the matrimonial home along with his parents and his
sister, who was deaf-and-dumb. The marriage was on
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879 of 2019
21.10.2010 and they resided together till 24.11.2010, when
she went abroad to resume her job. Thereafter, she returned
for delivery. A child was born on 25.07.2011 and she again
went to rejoin her job on 29.08.2011. The wife never cared
to look after the family. On such allegations, the husband
sought for divorce on the ground of mental cruelty and
desertion. He also claimed return of the 'Thali' weighing 34
grams.
8. The Family Court held that the mother is entitled
for the custody of the child. With regard to the claim for
gold and money by the wife, the Family Court granted a
decree for 15 sovereigns of gold ornaments and for
Rs.6,50,000/-. The original petitions filed by the husband,
seeking return of 'Thali' and for divorce, were dismissed.
9. We have heard the learned counsel on either side.
10. With regard to the claim for gold and money, the
wife claimed that at the time of marriage she had 29
sovereigns of gold ornaments out of which 21 sovereigns were
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Mat.Appeal Nos.859, 877, 878 and
879 of 2019
misappropriated by the husband. The fact that the wife had
29 sovereigns of gold ornaments at the time of marriage is
evident in Ext.B1 extract of the marriage register from SNDP
Yogam. The wife must have had 3 to 4 sovereigns of gold
ornaments with her for her daily wear. The husband claims
that 10 sovereigns of gold ornaments were returned by him to
the wife. To substantiate the same, he relies on Ext.A7
receipt issued by the wife. Therein, the wife has
acknowledged that on 31.08.2012, she has received four small
bangles, one necklace and two small "കകാപപ "(ring). Therefore,
the claim that 10 sovereigns were returned to the wife, is
probable. The Family Court has granted a decree to the wife
for remaining 15 sovereigns. On the materials, we find that
the decree is based on materials and is only to be upheld.
11. It is the claim of the wife that an amount of
Rs.6,50,000/- was given to the husband on various occasions.
The claim is that such funds were provided from her salary.
Ext.B3 is the bank account statement of the wife for the
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Mat.Appeal Nos.859, 877, 878 and
879 of 2019
period from 04.08.2011 to 30.06.2014. It does not evidence
the payment of Rs.6,50,000/- as claimed by her. The
statement would evidence only the payment of an amount of
Rs.20,000/- and Rs.22,300/- on two occasions by electronic
transfers by the wife to the husband. It is not in dispute
that, after giving birth to the child on 25.07.2011, the
wife returned for her job abroad on 29.08.2011, leaving the
child with the father. The wife must have sent the amounts
to the husband for the well-being of the child. Such
payments cannot be termed as the amounts entrusted by the
wife. Even assuming that some amounts were provided by the
wife for the expense of the husband, that also would not
constitute the nature of entrustment of money with the
husband as trustee. Those are only payments for the expenses
of the family, made in the course of marital tie. The wife
is not entitled to claim back the said amounts. Therefore,
such claim raised by the wife cannot be accepted. Though the
wife claims that utilising her funds the husband had
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879 of 2019
purchased an immovable property, there is no evidence to
prove the same. The wife has not sought for declaration for
title over such property. Anyhow, as noticed above, the
claim for Rs.6,50,000/- has not been established by the
wife.
12. However, the husband has admitted that at the time
of marriage, the wife was provided with Rs.50,000/-. The
husband is bound to return the same. The wife is entitled
for a decree for that amount.
13. Coming to the claim for custody of the child, a
baby girl was born in the year 2011. As was noticed supra,
even when the child was only a month old , the wife went
abroad for her job. The child was with the father, his
mother and sister. Though it is the contention of the wife
that the husband refused to give custody of the child, till
the year 2014 when she instituted the original petition
seeking custody of the child, she did not have a grievance
with regard to the custody of the child. The Family Court
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Mat.Appeal Nos.859, 877, 878 and
879 of 2019
passed its decree on 30.03.2019, granting custody to the
mother with visitorial rights to the father. In spite of the
fact that there was no stay of the judgment of the Family
Court, till now, no steps have been taken by the mother to
have the decree enforced to get the custody of the child.
The child is now aged 14 years. The child was never in the
custody of the mother. While we notice that it is a girl
child and that the custody of the mother is generally
favoured, we cannot be oblivious of the fact that through
all these years of growing up, she was not with the mother.
Presently, she is studying in the high school. Uprooting her
from the family surroundings, environment and circumstances,
and giving the custody to the mother at this stage would not
be conducive to the best interest of the child.
14. We had a personal interaction with the child on
08.07.2025. The child expressed that she is comfortable in
the present surroundings and she expressed concern of her
being shifted therefrom. We are of the opinion that it would
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Mat.Appeal Nos.859, 877, 878 and
879 of 2019
be in the best interest of the child that the status quo
continuous. The custody is to be retained with the husband,
with visitorial rights to the wife. It shall be open for the
wife to move the Family Court, seeking her visitation rights
and the Family Court could make appropriate arrangements
with due notice to the husband.
15. The husband claims return of the 'Thali' chain.
The Family Court negatived the claim noticing that, in the
proof affidavit filed by the husband as PW1, he has sworn to
that on 25.06.2013, the wife threw the 'Thali' at him and
went away. The court concluded that, on such admission, the
'Thali' is with the husband. Accordingly, the claim was
negatived. However, as pointed out by the learned counsel
for the husband, the wife, during her cross-examination as
RW1, deposed that the 'Thali' chain weighing 2 sovereigns is
still with her. She deposed thus;
"...... വവ ഹ അവസരതൽ ഭർത വ ഒര ത ലമ ല എന അണയചരന. അത ന 34
ഗ തകമണ യരന എ പറഞ ൽ ശരയല& (Q). അ&. ഒര ന'റയ മ ലയ യരന.
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879 of 2019
അത ന 2 പവനടത മ തമ യരന തക (A). അത ഞ ൻ തക ലന കയട&. ആ മ ല
ഇല/ ഴ എന1 ക3വശതൽ ഉണ. ത ലമ ലയ 2 പവൻ മ ത തകലമ ഉളനവ
ന ങളന9 ഹർജയലല ആല;പങള ലല ഒര9ത പറഞ ട& എന പറഞ ൽ ശരയല&
(Q). ഇ&. 2 പവനടത തകമനണ ഭർത വ ണ എല 9 പറഞ ടളത (A)."
In the light of such admission, she is bound to return the
'Thali' chain. The husband could not prove that the chain
weighed 34 grams as claimed by him. Hence, the husband is
entitled for a decree for return of the 'Thali' chain
weighing 2 sovereigns.
16. The husband claims dissolution of marriage on the
ground of cruelty and desertion. It is not in dispute that
the parties have been living separately for the past 13 to
14 years. The wife has mostly been abroad at her place of
employment. It is the allegation of the husband that the
wife refused to live in the matrimonial house along with his
parents and his sister, who is deaf-and-dumb. The
relationship between the parties has gone beyond repair. The
catena of decisions of the Hon'ble Supreme Court in G.V.N.
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Mat.Appeal Nos.859, 877, 878 and
879 of 2019
Kameswara Rao v. G. Jabilli (2002 (2) SCC 296), Parveen Mehta v. Inderjit Mehta
(2002 (5) SCC 706), K. Srinivas Rao v. D.A Deepa (2013 (5) SCC 226) , Naveen Kohli
v. Neelu Kohli (2006 (4) SCC 558), and Samar Ghosh v. Jaya Ghosh (2007 (4) SCC
511), Rajib Kumar Roy Vs. Sushmita Saha (2023 (17) SCC 441) , the long
period of separation with no likelihood of reconciliation
clearly supports the grant of divorce. Accordingly, we find
that the marital tie is liable to be dissolved by a decree
of divorce.
17. In the result, the appeals are allowed as
hereunder;
(i) O.P.No.1216 of 2013 will stand allowed and
the marriage between the parties will stand
dissolved by a decree of divorce.
(ii) O.P.No.1217 of 2013 will stand decreed
directing the wife to return the 'Thali' chain
having 2 sovereigns, within three months from
today (14.07.2025), and on failure, the husband
shall be entitled to recover its value at the time
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Mat.Appeal Nos.859, 877, 878 and
879 of 2019
of realisation.
(iii) The decree and judgment in O.P.No.980 of
2014 will stand modified re-fixing the amount at
Rs.50,000/- with interest at the rate awarded by
the Family Court.
(iv) O.P.No.801 of 2014 will stand ordered
granting the husband the custody of the child,
with visitation right to the wife for which she
will be entitled to move the Family Court.
(v) Parties to bear their respective costs.
Sd/-
SATHISH NINAN
JUDGE
Sd/-
P. KRISHNA KUMAR
JUDGE
yd
//True copy// P.A. To Judge
