Allowed

Sbastian v. Akkamma Ipe

Kerala HC10 Jul 2012Mat.Appeal/655/2009

Case brief

AI extract

What is this about?

The High Court allowed two matrimonial appeals based on a joint compromise petition. The marriage was dissolved on grounds of mutual desertion and irretrievable breakdown. Custody of minor children was granted to the mother with visitation rights for the father and specific conditions were laid regarding education, medical insurance, and property conveyance.

What did the court decide?

The marriage was dissolved by a decree of divorce on the ground of desertion. Custody of minor children was given to the respondent, with visitation rights for the appellant. The original petitions we

Sbastian Vs Akkamma Ipe — Child Custody and Guardianship | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE K.T.SANKARAN & THE HONOURABLE MR.JUSTICE M.L.JOSEPH FRANCIS

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TUESDAY, THE 10TH DAY OF JULY 2012/19TH ASHADHA 1934

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Mat.Appeal.No. 655 of 2009 ( )

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-----------------------------OP.410/2008 of FAMILY COURT, MALAPPURAM

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APPELLANT(S)/PETITIONER::

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SEBASTIAN K.M., AGED 38 YEARS, S/O.MATHEW @ THANKACHAN KAKKANATTIL ERUMAMUNDA P.O., CHUNKATHARA VIA, NILAMBUR MALAPPURAM DISTRICT.

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BY ADV. SRI.A.MOHAMED MUSTAQUE

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RESPONDENT(S)/RESPONDENT::

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AKKAMMA IPE, AGED 33 YEARS, D/O.IPE KALAPURAKKAL, KALAPURAKKAL VEEDU POOKOTTUMANNA P.O., CHUNKATHARA VIA, NILAMBUR MALAPPURAM DISTRICT.

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BY ADV. SRI.BABU S. NAIR

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THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 28-06-2012, ALONG WITH MAT. APPEAL NO.841 OF 2010, THE COURT ON 10-07-2012 DELIVERED THE FOLLOWING:

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K.T.SANKARAN & M.L.JOSEPH FRANCIS, JJ.

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Mat. Appeal Nos.655 of 2009 & 841 of 2010

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Dated 10^th July, 2012.

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J U D G M E N T

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Joseph Francis, J.

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Mat.Appeal No.655 of 2009 is filed by the petitioner/husband in O.P.No.410 of 2008 on the file of the Family Court, Malappuram. The respondent/wife herein was the respondent in that Original Petition, which was filed by the husband for divorce under Section 10 of the Divorce Act (for short, 'the Act').

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Mat.Appeal No.841 of 2010 is an appeal filed by the respondent/husband in O.P.No.1086 of 2009 on the file of the Family Court, Malappuram. The respondent herein was the petitioner/wife in that Original Petition, which was filed by the wife for realization of an amount of Rs.57,45,200/- from the husband. Parties in both the appeals are the same.

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Before the Family Court, in O.P.No.410 of 2008, PW1 to PW4 and RW1 were examined and Exts.A1 to A7, B1 to B4 series and Ext.X1 were marked. The Family Court, on considering the evidence on record, dismissed that Original Petition on finding that the petitioner/husband has not made

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Mat.Appeal Nos.655/09 & 841/10

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out a case of cruelty falling under Section 10(1)(x) of the Act. Against that order, the petitioner/husband in that Original Petition filed Mat.Appeal No.655 of 2009.

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In O.P.No.1086 of 2009, PW1 and RW1 were

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examined and Exts.A1 to A23 and B1 to B8 were marked before the Family Court. The Family Court, on considering the evidence, allowed that Original Petition in part directing the respondent/husband to repay the amount of Rs.2,50,000/- to the petitioner/wife with interest at the rate of 9% per annum from the date of filing of the Original Petition till realization and costs. Against that order, the respondent/husband filed Mat.Appeal No.841 of 2010.

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During the pendency of the above appeals, the parties have settled their disputes and filed a joint compromise petition in Mat. Appeal No.655 of 2009. The joint compromise petition filed under Order 23 Rule 3 of the Code of Civil Procedure reads as follows :

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The above Appeal is arising from the judgment, dismissing the application for divorce filed by the appellant under Section 10 of the Divorce Act, as O.P.No.410/2008 of the Family Court,

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Mat.Appeal Nos.655/09 & 841/10

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Malappuram.

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Parties hereto are husband and wife and agreed to settle matrimonial dispute amicably. In the wedlock, two children born to the parties who are (1) Blitsen Sebastian, (2) Litzia Sebastian. Accordingly, this compromise filed on the following terms :

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(i) The parties have agreed to allow the petition for divorce on the ground of mutual desertion. The appellant and the respondent has no objection in granting decree of divorce on the ground of desertion. It has come to the conviction of both parties marriage has broke down irretrievably rendering life of both the parties miserable, desolate. Therefore, parties agree for a divorce. Accordingly, it is prayed that the marriage between appellant and respondent may be dissolved by a decree of divorce.

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(ii) The appellant is having undivided half share in the property in R.S.No.1079/1A of Edakkara amsom, desom, Nilambur Taluk along with a residential building and having an extent of 17.5 cents. The appellant shall convey his half share in favour of the respondent for the benefit and future requirement of their children. The appellant shall execute necessary conveyance in favour of the respondent within one month from today at the cost of the respondent. If appellant fails to do so, based on the decree to be passed by this Hon'ble Court, respondent is free to execute the decree as if the decree is passed in specific performance. It is made clear that undivided right is being conveyed in the name of the respondent for the benefit of the minor children.

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(iii) The appellant shall pay a sum of 750 Riyals or such other higher sum if the fees increases towards tuition fee including conveyance charges of the children relating to their school education till they complete higher secondary education per month. The appellant also shall liable to pay all educational

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Mat.Appeal Nos.655/09 & 841/10

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expenses of the children till they attain majority. The above fixed sum is liable to be paid by the appellant to the respondent on or before 10^th day of every English Calendar month. The professional educational decisions to be taken by both the parents with mutual consent and in the best interest of the children.

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(iv) Custody of the minor children namely Blitsen Sebastian and Litzia Sebastian shall be vested with the respondent. However, the appellant will have visitorial rights and right of custody on three (3) weekends (Thursday 8.00 a.m. to Friday 6.00 p.m.) in every month. The appellant will also be entitled for custody during annual school vacation for a half of vacation period. This period will commence immediately after school closes for annual vacation or the last half of the vacation, mutually agreed by the parties. The appellant undertake to return the minor children to the respondent without any demur or objection. In case the respondent needs to travel outside without the children to anywhere, the custody of both children shall be given to the appellant and not to anyone else. Any major medical conditions need hospitalization to be informed as well.

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(v) The appellant shall provide medical insurance cards to both children annually, at the expense of the appellant.

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(vi) The respondent and their minor children are currently domiciled in Saudi Arabia. The respondent shall not remove the children to any other country other than to India without written consent of the appellant. Further respondent shall not attempt or make changes in the nationality of the minor children without the written consent of the appellant.

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(vii) The respondent will not be entitled for any maintenance or any other allowance from the appellant and respondent relinquish

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Mat.Appeal Nos.655/09 & 841/10

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whatsoever nature of monetary and property claims against the appellant consequent upon dissolution of marriage based on this compromise. The respondent relinquish her claim in O.P.No.1086/2009 on the files of the Family Court, Malappuram accordingly, she has no objection in setting aside the order passed in the above case. Therefore, the respondent has no objection in allowing the appeal filed by the appellant against the order in O.P.No.1086/2009 as Mat.Appeal No.841/2010 before this Hon'ble Court.

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(viii) In case the respondent remarries, the custody of the daughter shall be vested with the appellant. The custody of the children is being given to the respondent considering paramount welfare of the minor children. Therefore, in the event of breach, the appellant reserves right to seek custody.

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It is therefore, respectfully prayed that this Hon'ble court may be pleased to record the above compromise.

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It is true that irretrievable break down of

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marriage itself is not a ground for divorce. While scrutinizing the evidence on record to determine whether the grounds on which divorce is sought are made out, the circumstances can be taken into consideration. In the compromise petition, both the parties have stated that the appellant/husband and respondent/wife have no objection in granting a decree of divorce on the ground of desertion and that it has come to the

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Mat.Appeal Nos.655/09 & 841/10

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conviction of both parties that the marriage has broken down irretrievably, rendering life of both parties miserable and desolate.

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Desertion may be either actual or constructive.

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Desertion may be inferred from attending circumstances. Separate residence is not necessary. The desertion can be proved where parties are still living under one roof . If one spouse by his words and conduct compels the other spouse to leave the matrimonial home the former will be guilty of desertion though it is the latter who has physically separated from the other and left the matrimonial home. In the present case, it has come out in evidence that the marriage between the appellant and the respondent has irretrievably broken down and both the spouses deserted each other from 2006 onwards and therefore, the petitioner/husband in O.P.No.410 of 2008 is entitled to get a decree of dissolution of marriage on the ground of desertion under Section 10(1)(ix) of the Act.

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Accordingly, Mat. Appeal No.655 of 2009 is allowed and the order in O.P.No.410 of 2008 on the file of the Family

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Mat.Appeal Nos.655/09 & 841/10

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Court, Malappuram is set aside and that Original Petition is allowed and a decree of divorce is granted dissolving the marriage between the petitioner and the respondent with effect from this day and an executable decree is also passed in terms of the compromise. Mat. Appeal No.841 of 2010 is allowed in view of the compromise and the order in O.P.No.1086 of 2009 on the file of the Family Court, Malappuram is set aside and that Original Petition is dismissed without costs. The parties are directed to suffer their respective costs in both the appeals. The compromise petition will form part of the decree in the Mat. Appeals.

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Sd/-

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K.T.SANKARAN, JUDGE.

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Sd/-

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M.L.JOSEPH FRANCIS, JUDGE.

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tgs

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(true copy)

Sbastian v. Akkamma Ipe

Case brief

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Sbastian v. Akkamma Ipe

Case brief

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