[Cites 11, Cited by 0]
Kerala High Court
Shaji Sebastian vs Julie Joseph on 29 January, 2026
Author: Sathish Ninan
Bench: Sathish Ninan
Mat.Appeal Nos.537/2014, 538/2014
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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
THURSDAY, THE 29TH DAY OF JANUARY 2026 / 9TH MAGHA, 1947
MAT.APPEAL NO. 537 OF 2014
AGAINST THE JUDGMENT DATED 15.06.2013 IN OP NO.573 OF 2012
OF FAMILY COURT, MUVATTUPUZHA
APPELLANT/PETITIONER :
SHAJI SEBASTIAN
S/O SEBASTIAN, THARIAKKU, PUTHUSSERY HOUSE, PRAROOR
P.O, VIA KALADY, ERNAKULAM DISTRICT, PIN:683 572.
BY ADVS.
SHRI.M.P.RAMNATH
SHRI.P.RAJESH (KOTTAKKAL)
SMT.S.SANDHYA
SMT.UMA R.KAMATH
RESPONDENT/RESPONDENT:
JULIE JOSEPH
D/O JOSEPH, NURSE, MANICKATHAN HOUYSE, EDAVOOR P.O.,
ERNAKULAM DISTRICT, PIN:686 544.
BY ADV SRI.N.K.SUBRAMANIAN
THIS MATRIMONIAL APPEAL HAVING COME UP FOR HEARING ON
21.01.2026, ALONG WITH MAT.APPEAL.538/2014, THE COURT ON
29.01.2026 DELIVERED THE FOLLOWING:
Mat.Appeal Nos.537/2014, 538/2014
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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
THURSDAY, THE 29TH DAY OF JANUARY 2026 / 9TH MAGHA, 1947
MAT.APPEAL NO. 538 OF 2014
AGAINST THE JUDGMENT DATED 15.06.2013 IN OP NO.574 OF 2012
OF FAMILY COURT, MUVATTUPUZHA
APPELLANT/RESPONDENTS:
1 SHAJI SEBASTIAN
S/O SEBASTIAN, THARIAKKU PUTHUSSERY HOUSE,
PRAROOR P.O., VIA KALADY,
ERNAKULAM DISTRICT,
PIN:683 574.
2 SEBASTIAN @ DEVASSIKUTTY
S/O OUSEPH, THARIYAKKU PUTHUSSERY HOUSE,
PRAROOR P.O., VIA KALADY,
ERNAKULAM DISTRICT, PIN:683 574.
BY ADVS.
SHRI.M.P.RAMNATH
SHRI.P.RAJESH (KOTTAKKAL)
SMT.S.SANDHYA
SMT.UMA R.KAMATH
RESPONDENTS/PETITIONERS:
1 JULIE JOSEPH
D/O JOSEPH, NURSE, MANICKATHAN HOUSE,
EDAVOOR P.O., ERNAKULAM DISTRICT.
2 APPU
S/O JULIE JOSEPH, MANICKATHAN HOUSE,
Mat.Appeal Nos.537/2014, 538/2014
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EDAVOOR P.O., ERNAKULAM DISTRICT,
MINOR NOW AGED 7 YEARS, REPRESENTED BY MOTHER AND
GUARDIAN JULIE JOSEPH (IST RESPONDENT HEREIN)
BY ADV SRI.N.K.SUBRAMANIAN
THIS MATRIMONIAL APPEAL HAVING COME UP FOR HEARING ON
21.01.2026, ALONG WITH MAT.APPEAL.537/2014, THE COURT ON
29.01.2026 DELIVERED THE FOLLOWING:
Mat.Appeal Nos.537/2014, 538/2014
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CR
SATHISH NINAN & P. KRISHNA KUMAR, JJ.
= = = = = = = = = = = = = = = = = =
Mat.Appeal Nos.537 & 538 OF 2014
= = = = = = = = = = = = = = = = = =
Dated this the 29th day of January, 2026
JUDGMENT
P.Krishna Kumar, J.
These appeals arise out of a common judgment rendered by
the Family Court, Muvattupuzha. O.P. No. 573/2012 was
instituted by the husband seeking dissolution of marriage,
while O.P. No. 574/2012 was filed by the wife seeking return
of gold ornaments and money, along with past maintenance.
2. By the impugned common judgment, the Family Court
granted a decree of divorce on the ground of desertion and
also allowed the wife's claim for return of gold and money,
as well as maintenance. Though the husband succeeded in
obtaining a decree of divorce, he has preferred these
appeals insofar as the Family Court declined to grant
divorce on the additional grounds of adultery and cruelty
urged by him, and also challenging the decree granting the
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aforesaid reliefs to the wife.
3. The brief facts necessary for the disposal of the
disputes are as follows: The marriage between the appellant
and the respondent was solemnised on 08.06.2003 in
accordance with the religious rites and customs prevailing
in the Christian community. The respondent claimed recovery
of ₹2,00,000/- and 28 sovereigns of gold ornaments from the
appellant, contending that at the time of marriage her
relatives entrusted a sum of ₹3,50,000/- with the father of
the appellant (who is the second respondent in O.P. No.
574/2012) towards her share in the parental properties. It
was further contended that, using ₹1,50,000/- out of the
said amount, 44 sovereigns of gold ornaments were purchased
for the respondent. According to her, most of the ornaments,
except those used for daily wear, were kept in the custody
of the appellant's father.
4. It was alleged that when the respondent became
pregnant, she returned to her parental home. The appellant
did not take her back after she gave birth to a child on
20.12.2005. The parties have been living separately
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thereafter. The respondent further alleged that the
appellant has been retaining her 28 sovereigns of gold
ornaments and that she is therefore entitled to recover the
same along with the balance amount of ₹2,00,000/-.
5. Though the appellant admitted receipt of ₹3,50,000/-,
he contended that the 44 sovereigns of gold ornaments worn
by the respondent at the time of marriage were purchased by
him from his own funds. He further contended that his gold
ornaments are still in the possession of the respondent and
that she is bound to return the same.
6. Claiming that she was unable to maintain herself and
the minor child, the respondent sought past maintenance of
₹49,500/- for herself and ₹16,000/- for the child. She
alleged that the appellant was employed in the Central
Industrial Security Force and was earning ₹12,000/- per
month. The appellant opposed the claim for maintenance
contending that the respondent had deserted him.
7. Upon appreciation of the evidence, the Family Court
allowed the respondent to recover ₹2,00,000/- with interest
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at the rate of 6% per annum and further directed the
appellant and his father to return 28 sovereigns of gold
ornaments or its market value. The court also awarded
₹25,500/- as past maintenance to the respondent and
₹8000/- to the minor child.
8. We have heard Sri.M.P.Ramnath, the learned counsel
appearing for the appellant and Sri.N.K.Subramaniam, the
learned counsel for the respondent.
9. During the course of hearing, learned counsel for the
appellant submitted that, though an appeal was preferred
against the order in the divorce petition to the extent it
declined to grant divorce on the grounds of cruelty and
adultery, the appellant is now satisfied with the decree
granted on the ground of desertion. In view of the said
submission, we do not propose to examine the question
whether the grounds of cruelty and adultery were
established. It was further submitted that the appellant
does not intend to oppose the direction in the judgment for
payment of past maintenance to the child.
10. Thus, the points that arise for consideration are as
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follows:
(1) Is the respondent entitled to get the
gold ornaments and money claimed in the
petition?
(2) Is the respondent entitled to get past
maintenance?
11. It is not in dispute that a sum of ₹3,50,000/- was
entrusted to the appellant by the relatives of the
respondent at the time of the marriage engagement. It is
also not disputed that the respondent had adorned 44
sovereigns of gold ornaments at the time of marriage and
that the said ornaments were purchased by the appellant. The
contentions raised by the appellant are twofold: first, that
the gold ornaments were not purchased by utilising the
amount given by the respondent and hence she has no right
over them; and secondly, that the amount was not given to
his father.
12. Let us now examine the evidence to resolve these
contentions. To substantiate the contentions that the said
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ornaments were purchased using the money given by the
respondent, and that the appellant retained 28 sovereigns of
gold ornaments when they fell apart, the respondent relied
on her own testimony and the oral evidence of PW2, her
mother. Both witnesses deposed substantially in tune with
each other and consistently with the pleadings. Though they
were subjected to lengthy cross-examination, no material
sufficient to discredit their version has been elicited.
13. Sri M.P. Ramnath, learned counsel appearing for the
appellant, contended that even though the respondent stated
during cross-examination that the sum of ₹3,50,000/- was
handed over to the appellant's father at the church--implying
the presence of several persons--she did not attempt to prove
that fact by examining any independent witness. It was
further contended that one Xavier, the brother of the
respondent's father, who is said to have handed over the
amount, was also not examined. Drawing our attention to the
answer given by PW1, the respondent, to a question as to
whether the gold ornaments were purchased prior to the
engagement ceremony, to which she answered in the
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affirmative, learned counsel contended that the said answer
demolishes her entire case, since it would then be
impossible to contend that the gold was purchased by
utilising the money given only at the time of engagement.
For these reasons, it is urged, while the appellant may be
bound to return the amount received, he cannot be compelled
to return the gold ornaments.
14. Upon a careful evaluation of the evidence in its
entirety, we are unable to accept the aforesaid contentions.
It is true that the respondent answered in the affirmative
when such a question was put to her during cross-
examination. However, in the facts and circumstances of the
present case, we are of the view that the said answer, by
itself, is insufficient to discard her entire testimony,
particularly when it is corroborated by the evidence of PW2
on the same point. What the respondent admitted was only a
suggestion put to her that the ornaments were purchased
prior to the engagement. Such an answer cannot, in our
opinion, be treated as an admission on the fact in issue,
namely, whether the gold ornaments were purchased using the
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amount entrusted at the time of engagement.
15. It is only an inference drawn from her answer to the
suggestion that, if the gold was purchased prior to the
engagement, the money used for its purchase could not have
been the amount given at the time of engagement. When a
witness is subjected to cross-examination, several factual
situations may be put to him or her for different purposes,
including testing veracity. The effect of such inferential
aspects has to be analysed in the totality of the
circumstances and not in isolation. Significantly, the
appellant has no case in his pleadings that the gold
ornaments were purchased prior to the engagement. No such
case was put forward even in his chief affidavit. PW2, the
mother of the respondent, has categorically deposed that the
gold ornaments were purchased by utilising the amount given
to the appellant at the time of engagement. Above all, the
effect of admission made by RW1 during his cross-examination
is also relevant in the above context. The first paragraph
of his cross-examination reads as follows:
"Arranged marriage ആയയിരുന. വധുവയിനന് share പണണം കകകൊടുക്കുന
Mat.Appeal Nos.537/2014, 538/2014
2026:KER:6855
പതയിവന് സമുദകൊയകൊചകൊര പ്രകകൊരണം ഉണന് . പണതയിനന് നയിങ്ങൾ സസ്വർണണം
വകൊങ്ങുമമകൊ അതന് ഭർതകൊവയികന്റെ ഇഷ്ടമകൊണന് . വധുവയിനന് സസ്വർണണം
കകകൊടുക്കുന പതയിവന് ഇല. 3 1/2 ലകണം രൂപ share ആയയി വയിവകൊഹതയിനന്
മുൻപന് തന. മനസമ്മത ചടങ്ങയിനകൊണന് തനതന് . സസ്വർണണം എറണകൊകുളണം,
Beema, Alappatt jewellery യയിൽ നയിനന് എടുത. ഹർജയികകൊരയി, എകന്റെ
വവീട്ടുകകൊർ ഉണകൊയയിരുന. 44 പവൻ സസ്വർണണം എടുത. സസ്വർണതയിനന് എത
രൂപയകൊയയിരുന (q) (A) 2 1/2 ലകണം രൂപയുകട സസ്വർണണം എടുത."
It is evident from his testimony that he received
Rs.3,50,000/- at the time of engagement and when the gold
ornaments were purchased from Ernakulam Bhima and Alappat
Jewellers, the respondent and family members were present.
This circumstance is consistent with the respondent's case
that a sum of ₹3,50,000/- was given at the time of
engagement and that thereafter all of them together went to
the aforesaid jewellers and purchased the gold ornaments for
the marriage. If the gold ornaments were purchased by the
appellant, they were, in all probability, purchased after
the engagement, particularly since the respondent was also
present at the jewellery shop.
16. Apart from the above, the appellant failed to
produce any documentary evidence to establish that he had
purchased the gold ornaments using his own funds. If the
gold ornaments had in fact been purchased by him from his
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personal funds, he could have produced some record in that
regard. We therefore conclude that the answer given by the
respondent during cross-examination is not of any material
significance and that the gold ornaments were purchased by
utilising the funds provided by the respondent and her
family.
17. On appreciating the evidence adduced by both sides,
we are of the view that the version of PW1 and PW2 is more
probable than that of the appellant, and is sufficient to
hold that the amount was entrusted to the father of the
appellant (the second respondent in O.P. No. 574/2012) at
the time of engagement and that the purchase of ornaments
was utitlising a portion of the said amount. The appellant
failed to elicit any material in cross-examination to
discredit the testimony of the respondent's witnesses on
that aspect.
18. Likewise, on the question whether the appellant
retained 28 sovereigns of gold ornaments when the respondent
went to her parental home for delivery, there is no reason
to disbelieve the oral testimony of PW1. It is a matter of
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common knowledge that, upon reaching the matrimonial home
after marriage, a bride may not retain all her gold
ornaments in her personal possession. Ordinarily, such
ornaments are kept in the custody of the husband or his
close relatives for safekeeping. In this case, the appellant
himself admitted during cross-examination that the gold
ornaments were kept in his custody after the marriage. He
deposed as follows:
ഹർജയികകൊരയി സസ്വർണണം അതതകൊവശതണം മകൊതണം ധരയിചയിരുന. ബകൊകയി സസ്വർണണം
ഞകൊൻ കപടയിയയിൽ സൂകയിചയിരുന. Suit-case - ൽ സൂകയിചയിരുന.
സകൊധകൊരണ 16-17 പവൻ ധരയിചയിരുന . മകൊറയിമകൊറയി ധരയിചയിരുന.
In the above circumstance, the trial court is completely
justified in ordering recovery of gold ornaments. It is
clear from the evidence that money was given to the
appellant for purchasing the gold for the respondent. Thus,
the appellant or his father cannot evade their
responsibility to return the ornaments by merely returning
the amount entrusted at the time of engagement.
19. No argument was advanced to challenge the liability
of the appellant to return Rs.2,00,000/- to the respondent.
At any rate, the finding of the trial court in that regard
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is perfectly justified, as the appellant admitted the
receipt of the said amount.
20. As far as the question of past maintenance of the
respondent is concerned, we notice a peculiar situation in
this case. The divorce decree passed against her on the
ground of desertion has become final, as she did not prefer
any appeal against it. When the court has categorically
found that the respondent has deserted the appellant, her
entitlement to get maintenance is a matter which requires
careful examination. It is submitted by
Shri N.K.Subramaniam, the learned counsel for the respondent
that unlike the provisions in the Hindu Marriage Act, 1955,
Section 10 of the Divorce Act, 1869, ('the Act', for short)
does not state that an act of desertion presupposes lack of
reasonable causes for such an act.
21. "Desertion" is defined under Section 3(9) of The
Divorce Act, 1869 as follows:
" "desertion", implies an abandonment against
the wish of the person charging it."
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It is not explicitly stated anywhere in the Act that
abandonment without a reasonable cause alone would amount to
desertion for the purpose of Section 10. On the contrary,
the Explanation to Section 27 of the Special Marriage Act,
1954 and Section 13(1) of the Hindu Marriage Act, 1955
states specifically that the term 'desertion' means
desertion of a person by the other party to the marriage
without reasonable cause. Though the Act does not expressly
state so, in our view, the term cannot be understood
otherwise; as a contrary construction would treat a spouse
who lives apart for a just or reasonable cause, as guilty of
a matrimonial offence, and it may lead to the severance of
the marital tie--an outcome that cannot be reconciled with
constitutional principles of reasonableness and fairness.
The Act, being a pre-constitutional enactment, its
provisions cannot be construed in isolation from the
constitutional guarantees under Articles 14 and 21.
22. In A:Husband v. B:Wife (2010(4)KHC 435), the
Division Bench of the Kerala High Court, while interpreting
the expression "cruelty" under Section 10 of the Act,
categorically held that its content and meaning cannot
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differ from that attributed to the same term under the Hindu
Marriage Act, 1955 or the Special Marriage Act, 1954 as
assigning divergent meanings to identical matrimonial
concepts solely on the basis of the terms used in the
personal law would offend the constitutional mandate of
equality.
23. The same reasoning applies with equal force to the
expression "desertion". Interpreting the term "desertion"
under the Act in a strictly literal sense would result in
hostile discrimination between similarly situated spouses
governed by different personal laws, without any rational
nexus, and would infringe Article 21 by compelling
cohabitation in circumstances that are unjust, unsafe, or
inconsistent with dignity and personal autonomy. Therefore,
the expression "desertion" occurring in Section 10 of the
Act must receive a purposive and constitutionally compliant
interpretation. We also notice that a similar view has been
expressed by the Calcutta High Court in Adelaide Mande
Tobias v. William Albert Tobia (AIR 1968 Cal.133).
24. When the finding that the respondent has deserted
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the appellant became final, it also means she deserted him
without any reasonable cause or justification. It is
relevant to note that, as per Section 37 of the Act, before
awarding alimony to a wife, the court has to consider her
conduct. Having found that the respondent deserted the
appellant, the trial court ought not have awarded past
maintenance to her. To the above extent, the impugned
judgment is liable to be interfered with.
In the result, Mat.Appeal No.537/2014 is dismissed.
Mat.Appeal No.538/2014 is partly allowed and the direction
to pay past maintenance to the wife is set aside. The
impugned judgment is upheld in other respects. No costs.
Sd/-
SATHISH NINAN
JUDGE
Sd/-
sv P. KRISHNA KUMAR
JUDGE
