Dismissed

R.Thankappan v. Jayasree

Kerala HC14 Feb 2017Mat.Appeal/181/2005

Case brief

AI extract

What is this about?

The High Court Kerala dismissed matrimonial appeals seeking annulment of marriage and divorce. The court upheld the Family Court's rejection because the annulment petition was filed beyond the statutory one-year limit. Regarding divorce, the court found no evidence of voluntary post-marital adultery, citing contradictory DNA evidence. The appeal challenging the maintenance order of Rs.750 was dism

What did the court decide?

Appeals against Family Court judgment granting maintenance and refusing divorce/annulment were dismissed.

R.Thankappan Vs Jayasree — Maintenance and Alimony | Kerala HC (2017)

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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 A.M.SHAFFIQUE & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN

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TUESDAY, THE 14TH DAY OF FEBRUARY 2017/25TH MAGHA, 1938

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Mat.Appeal.No. 181 of 2005 ( )

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O.P.NO.73/1997 of FAMILY COURT, THIRUVANANTHAPURAM, DATED 05-04-2005

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APPELLANT(S)/APPELLANT/RESPONDENT:

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R.THANKAPPAN, S/O.RAMAKRISHNAN ASARI, RAMAKRISHNA NILAYAM, KONGALAM MOOLAYIL, KUNNAPUZHA P.O., THIRUMALA VILLAGE, THIRUVANANTHAPURAM.

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BY ADV. SRI.O.V.MANIPRASAD

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RESPONDENT(S)/PETITIONERS:

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1. M.A. JAYASREE, KUMAR BHAVAN, T.C.NO.18/284, PUNNAKKAMUGAL, KUNNAPUZHA P.O., THIRUMALA VILLAGE, THIRUVANANTHAPURAM.

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2. ARAVIND (MINOR), KUMAR BHAVAN, T.C.18/284, PUNNAKKAMUGAL, KUNNAPUZHA P.O., THIRUMALA VILLAGE,

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THIRUVANANTHAPURAM.

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R1 & R2 BY ADV. SRI.P.S.VASAVAN PILLAI

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THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 14-02-2017, ALONG WITH M.A.NO.183/2005, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

A.M.SHAFFIQUE

K. RAMAKRISHNAN, JJ.

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============================== Mat.Appeal Nos.181 & 183 of 2005 ============================== Dated this, the 14^th day of February, 2017.

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J U D G M E N T

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A.M.Shaffique, J.

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Mat.Appeal No.183/2005 is filed against the judgment dated 05.04.2005 in O.P.No.71/1997 of the Family Court, Thiruvananthapuram. The petitioner is the appellant. The original petition is filed seeking for annulment of marriage with the respondent and also alternatively seeking for a divorce on the ground of adultery.

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The short facts involved in the original petition reads as under:

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The marriage between the petitioner and the first respondent was solemnized on 25.10.1995. It is contended by the petitioner that the first respondent behaved in a strange manner during the succeeding days of the marriage and petitioner and his relatives were

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Mat.Appeal Nos.181 & 183 of 2005 : 2 :

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made to believe that the first respondent was having menses during the early hours on 28.10.1995. Later, it was found that the said attempt on her part was to impress upon the petitioner and his relatives that she was having her usual mensuration even after marriage. The petitioner has a contention that there was difficulty in having sexual intercourse with the petitioner and he could not have a proper sexual intercourse even. Later, she became pregnant and on enquiry, it was understood that she was having sexual relationship with others and she became pregnant on account of the same. The petitioner submits that the first respondent was having relationship with the second respondent prior to marriage and also after marriage and hence, sought for a declaration that the marriage is null and void and also alleging that the first respondent had sexual intercourse with another person by name Sasi, who is the second respondent herein.

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The first respondent had filed a counter affidavit denying the aforesaid contentions alleged by the

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Mat.Appeal Nos.181 & 183 of 2005 : 3 :

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petitioner. It was inter alia contended that she was living as a faithful wife and it was only on account of the doubt expressed by the petitioner that she was forced to leave her matrimonial house. It is alleged that the petitioner had abandoned the first respondent from 29.02.1996 onwards. She also denied the allegation of unchastity and the contention that she was living in adultery. The wife also filed O.P.No.73/1997 before the Family Court seeking for maintenance for herself and the child. As against the decree passed in the said case, the appellant/husband has filed Mat.Appeal No.181/2005.

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Common evidence was taken in both the cases.

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On behalf of the husband/petitioner PWs 1 to 5 were examined and the first respondent was examined as DW1. Petitioner placed reliance on Exts.A1 to A8 whereas the respondents relied upon Exts.B1 to B5.

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The Family Court, on an overall consideration of the factual and legal aspects involved in the matter, observed that there is no evidence to show that the marriage could be declared either null and void, nor can a

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Mat.Appeal Nos.181 & 183 of 2005 : 4 :

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decree be granted for divorce as there is no proof to find out whether that first respondent was living in adultery. In regard to maintenance, an award has been passed, by which, direction was issued to pay maintenance at the rate of Rs.750/- each per month to the petitioners with effect from the date of filing the petition.

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First of all, we should consider Mat.Appeal No.181/2005. The said appeal is filed against the grant of maintenance at the rate of Rs.750/- each per month to the petitioners. The first petitioner is the wife and the second petitioner is the son. The son has already become major and therefore, nothing survives as far as the second petitioner is concerned. In regard to the wife, only an amount of Rs.750/- per month is granted as maintenance. Her claim itself was only for Rs.1,500/- per month. Under such circumstances, we do not find that Rs.750/- is on the higher side and therefore, there is no merit in this appeal filed against the grant of maintenance. Mat.Appeal No.181/2005 is liable to be dismissed.

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Mat.Appeal Nos.181 & 183 of 2005 : 5 :

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Coming to the question regarding the judgment in O.P.No.71/1997, the Family Court observed that in order to annul the marriage under Section 12(1)(d) of the Hindu Marriage Act, it has to be proved that the application ought to be filed within one year. The marriage was solemnized on 25.10.1995 and the petition is filed only on 30.01.1997. The contention was urged stating that the petition ought to have been instituted within one year. According to the petitioner, he had come to know about the alleged infidelity only when she became pregnant, which, according to the petitioner, was on 11.12.1995, 30.12.1995, 09.01.1996 and 15.01.1996.

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The pregnancy test was proved positive and the allegation is that she was again taken to the Doctor on 31.01.1996 and on further examination, he was informed that she was pregnant by about four months by then. According to him, he had come to know about the infidelity only on 31.01.1996. Section 12(1)(d) of the Hindu Marriage Act reads as follows:

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“ 12. Voidable marriages - (1) Any

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Mat.Appeal Nos.181 & 183 of 2005 : 6 :

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marriage solemnised, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely:-

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(d) that the respondent was at the time of the marriage pregnant by some person other

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than the petitioner.

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Section 12(2)(b)(ii) of the Act reads as follows:

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S.12(2). Notwithstanding anything contained in subsection (1), no petition for annulling a marriage-

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(b) on the ground specified in clause

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(d) of sub-section (1) shall be entertained unless the court is satisfied-

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(ii) that proceedings have been instituted in the case of a marriage solemnised before the commencement of this Act

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within one year of such commencement and in the case of marriages solemnised after such commencement within one year from the date of the marriage.”

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8. The date of knowledge of pregnancy is not at all

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a factor to be considered as far as filing of the petition under Section 12(1)(d) is concerned. What is relevant to

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Mat.Appeal Nos.181 & 183 of 2005 : 7 :

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be noticed is whether the petition is filed within one year from the date of marriage. Apparently, the petition is filed beyond the period of one year under Section 12(1) (d) of the Act. In the said circumstances, there is no reason why that the court below further proceeded to consider the question of Section 12(1)(d). The petition itself was not maintainable at the relevant time.

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The petitioner, of course, has an alternative prayer on the allegation that she had voluntarily intercourse with another person by name Sasi, the second respondent and she was living an adulterous life. The main evidence relied upon by the petitioner is Ext.A1, a letter alleged to have been written by the first respondent at the time she left the matrimonial home. Section 13(1) of the Hindu Marriage Act reads as follows:

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“ 13. Divorce :- (1) Any marriage solemnised, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground

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Mat.Appeal Nos.181 & 183 of 2005 : 8 :

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that the other party-

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(i) has, after the solemnisation of the marriage, had voluntary sexual intercourse with any person other than his or her spouse.”

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A perusal of the provision itself would show that she

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should have voluntary sexual intercourse with another person other than her spouse after solemnization of the marriage. The Court below had come to the conclusion that going by Ext. A1, what could be inferred is only that the alleged sexual intercourse which she admits was prior to her marriage. There is enough material to come to such a conclusion as well. That apart, perusal of Ext.A1 would show that, it was not a voluntary sexual intercourse, whereas, the said person had sexual intercourse without her consent. In such circumstances, we are of the view that, Ext.A1 by itself will not help the petitioner to arrive at a conclusion that she had voluntary sexual intercourse after the marriage. Further, the DNA profile report of the son has been taken and it was clearly found that it matched with the DNA profile of the

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Mat.Appeal Nos.181 & 183 of 2005 : 9 :

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petitioner/appellant. Under such circumstances, we are of the view that the allegation of the petitioner that the first respondent was living an adulterous life was totally baseless and the Court below was justified in rejecting the claim for divorce on that ground. We do not find any other ground to interfere with the judgment of the Family Court warranting interference at the appellate stage.

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Accordingly, these appeals are dismissed.

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Sd/- A.M.SHAFFIQUE, JUDGE

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Sd/- K. RAMAKRISHNAN, JUDGE

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Bb/18/02/2017

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[True copy]

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P.A to Judge

R.Thankappan v. Jayasree

Case brief

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R.Thankappan v. Jayasree

Case brief

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