Kerala High Court
Medona Thomas vs Benny John on 24 March, 2025
Author: Sathish Ninan
Bench: Sathish Ninan
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MAT.A.NO.355 OF 2017 AND CONNECTED CASES
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
MONDAY, THE 24TH DAY OF MARCH 2025 / 3RD CHAITHRA, 1947
MAT.APPEAL NO. 355 OF 2017
AGAINST THE ORDER/JUDGMENT DATED 31.01.2017 IN OPDIV NO.95 OF 2015
OF FAMILY COURT, PALA
APPELLANT:
MEDONA THOMAS
AGED 55 YEARS
AGED 55 YEARS, D/O.MERCY THOMAS, MAILATTU, KARIKKATTOOR
PO,MANIMALA, KOTTAYAM-686544
BY ADVS.
S.JIJI
M.M.BABY
RESPONDENT:
BENNY JOHN
AGED 56 YEARS
AGED 56 YEARS, S/O.YOHANNAN THOMAS, PARAMBIL VADAKKETHIL,
PUTHIYAKAVU P.O., MAVELIKKARA-690101
BY ADV SMT.GISA SUSAN THOMAS
THIS MATRIMONIAL APPEAL HAVING COME UP FOR HEARING ON 11.03.2025,
ALONG WITH Mat.Appeal.237/2019, 109/2022 AND CONNECTED CASES, THE COURT
ON 24.03.2025 DELIVERED THE FOLLOWING:
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
MONDAY, THE 24TH DAY OF MARCH 2025 / 3RD CHAITHRA, 1947
MAT.APPEAL NO. 237 OF 2019
AGAINST THE ORDER/JUDGMENT DATED IN OP NO.95 OF 2015 OF FAMILY
COURT, PALA
APPELLANT:
BENNY JOHN
AGED 57 YEARS
S/O YOHANNAN THOMAS, PARAMBIL VADAKKETHIL, PUTHIYAKAVU
P.O.MAVELIKKARA-690 101
BY ADV GISA SUSAN THOMAS
RESPONDENT:
MADONNA THOMAS
AGED 56 YEARS
D/O MERCY THOMAS, MYLATTU HOUSE, KARIKKATTOR P.O.MANIMALA,
PIN 686 544, KOTTAYAM DISTRICT.
BY ADVS.
MARIAN G.M.THARAKAN
S.JIJI
M.M.BABY
THIS MATRIMONIAL APPEAL HAVING COME UP FOR HEARING ON 11.03.2025,
ALONG WITH Mat.Appeal.355/2017 AND CONNECTED CASES, THE COURT ON
24.03.2025 DELIVERED THE FOLLOWING:
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
MONDAY, THE 24TH DAY OF MARCH 2025 / 3RD CHAITHRA, 1947
RPFC NO. 109 OF 2022
AGAINST THE ORDER/JUDGMENT DATED 18.01.2022 IN MC NO.37 OF 2019 OF
FAMILY COURT, PALA
REVISION PETITIONER:
MADONNA THOMAS
AGED 60 YEARS
D/O MERCY THOMAS, MYLATTU HOUSE, KARIKKATTOOR P.O., MANIMALA
VILLAGE, KANJIRAPPALLY TALUK, KOTTAYAM DISTRICT., PIN -
686544
BY ADVS.
S.JIJI
M.M.BABY
RESPONDENT:
BENNY JOHN
AGED 65 YEARS
S/O YOHANNAN, PARAMBIL VADAKKETHIL HOUSE, PUTHIYAKAVU P.O.,
MAVELIKKARA VILLAGE, MAVELIKKARA TALUK, ALAPPUZHA DISTRICT,
PIN - 690101
BY ADVS.
GISA SUSAN THOMAS
ANJANA G.(K/1607/2018)
JOBIN JOSE P.(K/1811/2019)
THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR HEARING ON
11.03.2025, ALONG WITH Mat.Appeal.355/2017 AND CONNECTED CASES, THE COURT
ON 24.03.2025 DELIVERED THE FOLLOWING:
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
MONDAY, THE 24TH DAY OF MARCH 2025 / 3RD CHAITHRA, 1947
MAT.APPEAL NO. 538 OF 2019
AGAINST THE ORDER/JUDGMENT DATED 31.01.2016 IN OP NO.95 OF 2015 OF
FAMILY COURT, PALA
APPELLANT:
MEDONA THOMAS
AGED 55 YEARS
D/O MEARCY THOMAS,MAILATTU,KARIKKATTOOR
P.O,MANIMALA,KOTTAYAM-686544
BY ADVS.
S.JIJI
M.M.BABY
RESPONDENT:
BENNY JOHN
AGED 56 YEARS
S/O YOHANNAN THOMAS,PARAMBIL VADAKKETHIL,PUTHIYAKAVU
P.O,MAVELIKKARA-690101
BY ADVS.
SMT.REVATHI A.K.
SMT.VIDYAJITH M.
THIS MATRIMONIAL APPEAL HAVING COME UP FOR HEARING ON 11.03.2025,
ALONG WITH Mat.Appeal.355/2017 AND CONNECTED CASES, THE COURT ON
24.03.2025 DELIVERED THE FOLLOWING:
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J U D G M E N T
SHOBA ANNAMMA EAPEN,J:
Mat.A.Nos.355 of 2017, 538 of 2019 and RP(FC) No. 109
of 2022 are filed by the wife. Mat.A.No.237 of 2019 is by
the husband. For the sake of convenience, the parties
are hereinafter referred to as the 'husband' and 'the
wife'.
2. Mat.A.No. 355 of 2017 is filed by the wife
challenging the judgment and decree of divorce granted by
the Family Court in O.P(Div). No.95/2015 filed by the
husband.
3. Mat.A.No. 538 of 2019 was filed by the wife
challenging the order in I.A.No.568/2016 in O.P(Div)
No.95/2015 passed by the Family Court awarding permanent
alimony of Rupees three lakh against the claim of Rupees
five crores.
4. RP(FC) No. 109 of 2022 was filed by the wife
challenging the order in M.C.No.37 of 2019 passed by the
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Family Court, dismissing the claim for monthly maintenance
from the husband.
5. The husband has filed Mat.A.No. 237 of 2019
challenging the order dated 31.01.2016 in I.A.No.568/2016
awarding permanent alimony of Rupees three lakhs to the
wife.
6. The husband's case in brief is as follows:-
The marriage between the parties was solemnised on
03.11.2013. On the first day of marriage, he noticed
abnormal behaviour on the part of the wife. She reacted
for silly reasons and withheld the conjugal relation and
the wife used to leave the matrimonial house without any
notice. On 19.01.2014, the wife deserted the husband and
went to her parental home. The husband realised that it
was impossible for him to continue to live with the wife
in peace. Hence, he approached the Family Court with the
prayer for dissolution of marriage.
7. According to the wife, she always loved the
husband, but he treated her with cruelty. She never
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treated her husband with cruelty and was always ready to
discharge her obligations as a wife. Her life was
peaceful until 27.11.2013, when she made the discovery of
his illicit relationship with another woman. Despite
leaving her matrimonial home on 28.11.2013, due to
illness, her husband failed to take her back home. On
enquiry, she came to know the shocking truth that he had
been cohabiting with their maid servant. During December
2013 she went to her matrimonial home, confirmed the above
fact and sent away the maid servant. Thereafter, the
husband continued quarrelling with her. On 18.01.2014, the
husband demanded her to transfer the property belonging to
her, threatened her with a revolver, putting her life in
danger. On the subsequent day, the husband left her at the
bus stand, after which she went home all alone. She has
not deserted the husband and the husband is not entitled
to get a decree of divorce.
8. The Family Court, on appreciation of evidence and
after an elaborate consideration of the issue, granted
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dissolution of marriage between the parties which was
solemnised on 03.11.2013.
9. The wife filed I.A. No. 568 of 2016 in O.P.(Div)
No. 95 of 2015 claiming permanent alimony and maintenance.
She claimed that the husband is earning an amount of
₹3,00,000/- per month and also has landed property worth
₹10 crore and demanded ₹5 crore as permanent alimony for
her livelihood. However, the husband contended that he had
only a small business and had the added responsibility of
supporting two children from his previous marriage. Also
contended that he had no landed property. The Family
Court, allowed the application, directing the husband to
execute a fixed deposit of ₹3 Lakh in the name of the
wife and also directed to pay ₹2000/- per month as
maintenance to the wife with effect from January 2017.
Challenging the same, the wife as well as the husband have
come up in appeal.
10. After passing of the orders in O.P(Div) No. 95
of 2015, the wife filed MC No. 37 of 2019 claiming an
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amount of ₹15,000/- per month as monthly maintenance.
Since, the family Court had already granted monthly
maintenance in I.A No. 568 of 2016, the Family Court
dismissed the further claim for monthly maintenance.
Aggrieved by the same, the wife has come up in appeal.
11. We have heard Sri.S.Jiji, the learned counsel
appearing for the wife and Smt. Gisa Susan Thomas learned
counsel appearing for the husband.
12. First, we shall consider the appeal
(Mat.A.No.355/2017) filed against the judgment and decree
of divorce granted by the Family Court. According to the
wife, she was subjected to cruelty and alleged that her
husband was having an illicit relationship with Maniamma,
a housemaid and after discovering the illicit
relationship, the husband started torturing the wife. She
further alleged that the extramarital relationship of the
husband was tortuous for her. She has consistently
maintained her affection for the husband, and denies
having ever treated him with cruelty at any point in their
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relationship.
13. Per contra, the husband alleged that from the
very first day of their marriage, the husband observed
unusual behaviour on the part of the wife and she withheld
the conjugal relations. He also alleged that the wife
repeatedly left the matrimonial home without notice, and
ultimately deserted him and lived with her parents.
14. On going through the evidence, it is seen that
other than the allegation by the wife, no evidence has
been adduced to prove the illicit relationship of the
husband with the housemaid. A complaint was filed by the
wife before the Judicial First Class Magistrate Court,
Kanjirappally under the provisions of Domestic Violence
Act, which is produced as Ext. B7. In the said complaint
also, it is alleged that the husband was having illicit
relationship with the housemaid, Maniamma and that she was
subjected to cruelty by the husband. Unsubstantiated
allegations of illicit relationships, can cause
significant distress to the accused spouse. In this case
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the burden of proof lies with the wife to establish that
the husband had any such illicit relationship with the
maid. On going through the allegations made, corroborated
with her evidence as DW1, establish that the wife's
actions caused the husband significant mental pain, agony
and suffering, constituting cruelty. The severe mental
pain, agony and suffering inflicted by one spouse on the
other can render cohabitation impossible and thus
destroying the foundation of their marriage. In the
present case, the marriage took place on 03.11.2013, and
they were living separately from 19.01.2014. The marital
life lasted only for a period of 2½ months. There is no
case for the parties that after January 2014, there was
any cohabitation between the parties. The relationship has
become strained and the marital life has come to an end by
losing its sweetness and charm. The marriage which has
irretrievably broken down spells cruelty to both parties,
as each spouse inevitably subjects the other to emotional
distress and hardship in such a dysfunctional
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relationship.
15. In Shri Rakesh Raman Vs Smt. Kavita (2023 LiveLaw
(SC) 353), the apex court has held that irretrievable
breakdown of marriage can be read as "cruelty" - a marital
relationship which has only become more bitter and
acrimonious over the years, does nothing but inflicts
cruelty on both the sides. It was also held that to keep
the façade of this broken marriage alive would be doing
injustice to both the parties. It was also held that long
separation and absence of cohabitation and the complete
breakdown of all meaningful bonds and the existing
bitterness between the two, has to be read as cruelty
under Section 13(1) (ia) of the 1955 Act.
16. We find that the Family Court has rightly granted
the decree for dissolution of marriage between the
parties. We do not find any reason to interfere with the
same.
17. Next, we shall consider the claim for alimony and
maintenance (MatA.No.538 of 2019). During the pendency of
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O.P No. 95 of 2015, the wife filed I.A. 568 of 2016 for
alimony and maintenance. The claim of the wife was that
the husband was earning ₹3 lakh per month and he was
financially sound. He also had landed property worth ₹10
crore. Thus, she claimed an amount of ₹5 crore as
permanent alimony. The husband contended that he had only
a small business of electrical spare parts and he is
maintaining his two children born to him out of his
previous wedlock. The Family Court directed the husband
to execute a fixed deposit of ₹3 lakh in the name of the
wife and also to pay an amount of ₹2000/- per month as
maintenance to the petitioner, wife. The wife claimed
enhancement of permanent alimony and maintenance.
18. The husband challenged the above direction by
filing Mat.A.No.237 of 2019. The main contention raised
by the husband is that an interlocutory application under
section 37 of the Divorce Act cannot be maintained in a
divorce petition filed by the husband. Section 37 of the
Divorce Act, 1869 reads as follows :
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"37. Power to order permanent alimony.--
Where a decree of dissolution of the marriage or a
decree of judicial separation is obtained by the wife,
the District Court may order that the husband shall] to
the satisfaction of the court, secure to the wife such
gross sum of money, or such annual sum of money for any
term not exceeding her own life, as, having regard to
her fortune (if any), to the ability of the husband, and
to the conduct of the parties, it thinks reasonable; and
for that purpose may cause a proper instrument to be
executed by all necessary parties.
Power to order monthly or weekly payments.-- In every
such case the Court may make an order on the husband for
payment to the wife of such monthly or weekly sums for
her maintenance and support as the Court may think
reasonable:
Provided that if the husband afterwards from any cause
becomes unable to make such payments, it shall be lawful
for the Court to discharge or modify the order, or
temporarily to suspend the same as to the whole or any
part of the money so ordered to be paid, and again to
revive the same order wholly or in part as to the court
seems fit."
It is true that the above I.A. was filed during the
pendency of the divorce petition filed by the husband. The
Family Court has granted the relief in the I.A. only after
granting dissolution of the marriage. The provision is made
for ensuring a stable livelihood for the wife in the
future. The claim of the wife for ₹5 crores as permanent
alimony is devoid of any merits. After proper appreciation
of evidence and the claim put forward, the Family Court
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granted ₹3 lakh as permanent alimony and an amount of
₹2000/- as monthly maintenance to the wife, which appears
to be just and reasonable. We do not find any reason to
interfere with the same.
19. Though the wife has filed a revision
petition(RP(FC) No.109 of 2022) against the dismissal of
the maintenance case as MC No. 37 of 2019, we find that
since the wife was already granted maintenance in I.A. No.
568 of 2016, the Family Court has rightly dismissed the
petition holding that the maintenance of the wife was
already decided and allowed. We are not inclined to
interfere with the same.
Accordingly, Mat.A.Nos.355 of 2017, 538 of 2019
and RP(FC) No. 109 of 2022 and Mat.A.No.237 of 2019 are
dismissed.
Sd/-
SATHISH NINAN
JUDGE
Sd/-
SHOBA ANNAMMA EAPEN
JUDGE
MBS/
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APPENDIX OF MAT.APPEAL 237/2019
PETITIONER ANNEXURES
ANNEXURE A1 CERTIFIED COPY OF THE JUDGMENT DATED 31.1.2017 IN
OP NO 95/2015 PASSED BY THE FAMILY COURT, PALA
ANNEXURE A2 CERTIFIED COPY OF THE DECREE DATED 31.1.2017 IN
OP NO 95/2015 PASSED BY THE FAMILY COURT, PALA
