Dismissed

Sanoj Pareethu v. Nimmy

Kerala HC8 Feb 2017Mat.Appeal/366/2013

Case brief

AI extract

What is this about?

The High Court dismissed two appeals filed against a Family Court judgment granting divorce to the wife under the Dissolution of Muslim Marriages Act and awarding maintenance. The High Court found no error in the lower court's conclusions regarding cruelty, neglect, and the discretion on monetary claims.

What did the court decide?

The appeals were dismissed; the original decree for divorce and maintenance was affirmed.

Sanoj Pareethu Vs Nimmy — 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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WEDNESDAY, THE 8TH DAY OF FEBRUARY 2017/19TH MAGHA, 1938

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Mat.Appeal.No. 366 of 2013 ()

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AGAINST THE JUDGMENT IN OP 926/2008 of FAMILY COURT,ERNAKULAM DATED 05-02-2013

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APPELLANT/RESPONDENT:

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SANOJ PAREETHU, AGED 37 YEARS, S/O.LATE KHADER ALI PAREETHU,HOUSE NO.37/2904, PONOTH ROAD,KALOOR,KOCHI-682017.

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BY ADVS.SRI.A.BALAGOPALAN SRI.A.RAJAGOPALAN SRI.M.S.IMTHIYAZ AHAMMED SMT.JENNEYA MARIAM PHILIP

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RESPONDENT/PETITIONER:

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NIMY.P.Y, AGED 31 YEARS, D/O.P.A.YOUNES,PUNNEPILLI HOUSE,SHENOY ROAD,KALOOR, KOCHI-682017.

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R1 BY ADV. SRI.BABU KARUKAPADATH R1 BY ADV. SMT.M.A.VAHEEDA BABU R1 BY ADV. SRI.K.A.NOUSHAD R1 BY ADV. SRI.P.U.VINOD KUMAR R1 BY ADV. SRI.KANDAMPULLY RAHUL R1 BY ADV. SRI.MITHUN BABY JOHN R1 BY ADV. SRI.J.RAMKUMAR

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THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 11/1/2017, ALONG WITH MA. 367/2013, THE COURT ON 08-02-2017 DELIVERED THE FOLLOWING:

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A.M. SHAFFIQUE & K.RAMAKRISHNAN, JJ.

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=========================== Mat.Appeal Nos.366 & 367 of 2013

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=======================

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Dated this, the 8^th day of February, 2017

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J U D G M E N T

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Shaffique, J.

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These two appeals are filed against the common judgment dated 5/2/2013 in OP Nos.925/2008 and 926/2008. The common respondent in the original petitions is the appellant herein. OP No.925/08 against which MA No.367/13 has been filed, was filed by the minor son represented by mother and the wife of the appellant seeking for past and future maintenance which was allowed by the Family Court in part directing grant of maintenance at the rate of `5000/- each per month to the respondents herein from the date of original petition. OP No.926/2008 against which MA No.366/13 has been filed is filed by the respondent herein seeking for a divorce under Section 2 of the Dissolution of the Muslim Marriages Act, 1939, which was allowed by the Court

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MA Nos.366 & 367/13

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below and also claiming damages of 10 lakhs and return of money paid as value of articles to the tune of 2,96,000/- of which Court below allowed `2 lakhs only.

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For easy reference, parties are referred to as shown in the memorandum of appeal. The facts in MA No.366/13 are as under:-

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The parties are Muslim by religion. Appellant married the respondent on 14/5/2006. The allegation raised by the respondent is that the appellant did not show any liking to her, he did not speak to her and they were not leading a normal sexual life as husband and wife. At the time of marriage, the respondent was working as a tutor in the Federal Institute of Science and Technology and she discontinued the employment. The respondent requested the appellant to permit her to join for a course for getting an employment. She was forced to secure an employment since the appellant was not caring for her nor spending any time with her. The respondent narrates the fact that the appellant was not taking any interest in the household affairs. She conceived a child and during earlier days of

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MA Nos.366 & 367/13

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pregnancy, the appellant did not help her. In December, 2006, she came to her house. The appellant did not make any enquiries even thereafter nor did he even telephone her or visited her. It appeared to the respondent that the appellant was not at all interested in her or her family members and was not inviting her to live with him. It is also contended that even at the time when there was a problem with the growth of the child, no action was taken by the appellant in order to give proper medication or nursing. She was taken to Madras after much persuasion, but after four days, she was forced to come back. The respondent felt like being abandoned. In the meantime, appellant got a better employment in Bangalore and started living with a cousin who had divorced his wife. Even while the respondent was at hospital, the appellant did not care to stay along with her nor console her. She delivered a child and he reached the hospital only after delivery and did not show any interest to spend time with the respondent or the child. The respondent thereafter narrates various incidents which according to the respondent was that the appellant was ignoring her and her family members and

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MA Nos.366 & 367/13

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ultimately when the respondent's father and her uncle met the appellant in Bangalore during the last week of January, 2008, he said that he will not take the respondent and he is not intending to have a divorce. Though several steps were taken for conciliation, he continued the disinterested attitude towards the respondent. The appellant had sent a reply to a letter making allegations against the respondent. When the parents of the respondent went to Jama Ath Office where the appellant and his relatives were present, they openly declared that he did not want the respondent and the appellant is willing to give talaq if the child is given to him. Respondent submits that the above bargaining tendency was made to harass her and her family members. Respondent submits that the aforesaid action amounts to cruelty and they were separated for about two years and seeks for dissolution of marriage. Respondent also sought for compensation of 10 lakhs and to recover a further amount of 2,96,000/- which was entrusted as her share and the value of articles given at the time of marriage.

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The allegations were denied by the appellant by filing

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MA Nos.366 & 367/13

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statement of objections. According to him, he had not neglected the respondent as alleged. However, being an employee of a software company, he had to work for more than 10 hours a day and had great job responsibilities and he had pressure of work. The respondent used to demand that they should go to her house regularly which was not possible on account of the work pressure under which the appellant was working. According to him, he was taking care of her in the manner required and was as a dutiful husband and the contrary allegations were absolutely baseless. Even during pregnancy, he had taken all care to call her and enquire about her health conditions. However, he contends that when he obtained a job at Bangalore and arranged a flat for their residence, the respondent did not join him and she and her parents were not willing to accede to the same. It is contended that the attitude of the respondent and her parents changed drastically when she was at Ernakulam. According to him, during her delivery, he had come to Ernakulam and stayed with her in the hospital for over two weeks. The parents of the appellant also visited respondent on several occasions at the hospital. The

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MA Nos.366 & 367/13

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appellant alleges that the attitude of the respondent and her parents towards him was quite bad. They had even named the child without consulting him which he had protested. It is submitted that it is on account of the attitude of the respondent and her family members that she did not come back to Bangalore. The respondent's uncle and father had visited the appellant at Bangalore and informed him that their decision was for divorce and father of the respondent had taken back all her belongings from the house. Therefore, according to him, it was on account of the attitude of the respondent and her family members that they were unable to live together. According to him, none of the grounds stated in the petition warrants a divorce under the Act. He also submits that he had not received any amount for himself. All the money the respondent had, was deposited in her name and he was not entrusted with any amount. The amounts given by her father was in her name, which was not utilized by the appellant. It is stated that the appellant had given gold ornaments to the respondent and as a consideration of the same, the respondent's parents had given `2 lakhs and if the gold

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MA Nos.366 & 367/13

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ornaments are returned, he is ready to return the amount as well.

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As far as OP No.925/2008 is concerned, the claim is for maintenance, past and future for the wife and child on the allegation that they were living separately from 3/12/2006 onwards. The maintenance claim is at the rate of 5,000/- per month to the minor child and at 10,000/- per month for the wife.

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Joint trial was conducted by the Family Court. The respondent relied upon the evidence of PWs1 and 2 and Exts.A1 series and A2. The appellant relied upon the evidence of RW1 and Exts.B1 to B9.

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The Family Court found that the attitude of the appellant against the respondent amounts to cruelty and therefore she was entitled for a divorce. In regard to the amount claimed, direction had been issued for realising a sum of 2 lakh with interest at the rate of 12% per annum. However, the claim for compensation and value of household articles were rejected. In regard to maintenance, direction had been issued to pay a sum of 5,000/- each per month to respondents 1 and 2, while claim for past maintenance was rejected.

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MA Nos.366 & 367/13

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-:8:-

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In regard to MA No.367/13, the Family Court has come to a conclusion that the appellant is having an earnings of more than 70,000/- per month. In the written statement filed in the matter, his contention was that he was ready to resume cohabitation at any time whereas the respondent had a case that the appellant was earning 1 lakh per month and he is a qualified experienced Software Engineer. The said fact is not disputed. In the objection filed by the appellant, he did not specifically deny the said fact whereas it is contended that the 2^nd respondent is also employed. However, he did not disclose his salary.

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It is after relying upon the evidence adduced in the matter that the Court below observed that the appellant would be getting 70,000/- per month and he was not paying interim maintenance promptly. It is in the said circumstances that direction was issued to pay maintenance @ 5,000/- each per month to the respondents. Having considered the matter and having perused the judgment, we do not find any reason to interfere with the said judgment and accordingly, MA No.367/13 is liable to be dismissed.

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MA Nos.366 & 367/13

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Now coming to MA No.366/13, the short question to be considered is whether the evidence in the case warrants grant of a decree of divorce. The Court below after considering the evidence of PW1 and RW1 had observed that the marital relationship between PW1 and RW1 had been broken down irretrievably, mentally, physically and emotionally.

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The short question to be considered is whether a situation as warranted under Section 2 of the Dissolution of Muslim Marriages Act, 1939 had arisen in the case. Respondent seeks divorce on the ground that the husband had neglected her. The counsel for respondent further argued that the facts pleaded also disclose cruelty as well. Section 2(ii), (viii) and (ix) read as

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under:-

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“2. Grounds for decree for dissolution of marriageA woman married under Muslim law shall be entitled to obtain a decree for the dissolution of her marriage on any one or more of the following grounds, namely:-

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(i) xxx

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(ii) that the husband has neglected or has failed to provide for her maintenance for a period of two years.

MA Nos.366 & 367/13

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(iii) xxx

(iv) xxx

(v) xxx

(vi) xxx

(vii) xxx

(viii) that the husband treats her with cruelty, that is to say, -

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(a) habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill-treatment, or

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(b) associates with women of evil repute or leads an infamous life, or

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(v) attempts to force her to lead an immoral life, or

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(d) disposes of her property or prevents her exercising her legal rights over it, or

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(d) Obstructs her in the observance of her religious profession or practice, or

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(f) if he has more wives than one, does not treat her equitably in accordance with the injunctions of the Quran.

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(ix) on any other ground which is recognised as valid for the dissolution of marriages under Muslim law.”

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It is settled law that a Muslim wife can file an application for divorce on the ground of cruelty and non

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MA Nos.366 & 367/13

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performance of marital obligations by the husband. What exactly is the nature of cruelty required is explained in sub clauses (a) to (f) of Section 2(viii).

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Learned counsel for the appellant would submit that the evidence adduced in the case was not sufficient enough to grant a decree for divorce as claimed by the respondent. In the Original Petition, claim for divorce is under Section 2(ii).

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The admitted facts in the case would disclose that the parties have contracted the marriage on 14/5/2006. A child was born to them on 2/7/2007. The main contention urged by the respondent was that they were residing separately from 3/12/2006 onwards. After 3/12/2006, the appellant had not visited the respondent and had not carried out any of the obligations as a husband and he has neglected her. It is contended that neglecting a wife by the husband by itself is a ground for divorce and the evidence in the case further indicates that the divorce could be granted on any other ground which is recognized as valid for dissolution of marriage under Muslim law, which includes cruelty. The Family Court had taken note of the fact that the parties were

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MA Nos.366 & 367/13

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living separately atleast from July, 2007 and no effective attempt has been made to resume cohabitation. The wife had sent a letter requesting to resume cohabitation which is admitted by the appellant also. Instead of replying to the said letter, he made a complaint to the Jama Ath making certain allegations against the respondent wife. The Family Court has observed that from the conduct of the appellant, it was clear that he had no intention to resume cohabitation whereas he wants to expose or create such an impression in the mind of others as well as before Court. In the said circumstances having found that the appellant had virtually neglected to maintain his wife and his actions amounts to cruelty, divorce has been granted.

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As regards the compensation and value of articles and the money given at the time of marriage, the Court below had disallowed the claim of 10 lakhs and also 96,000/- being the value of the furniture said to have been given and this was not challenged by the respondent. The Court below had only granted a decree for `2 lakhs being the amount given by the father of the respondent to the appellant in connection with the

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MA Nos.366 & 367/13

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marriage with interest. The fact that 2 lakhs was given to him was admitted by the appellant in his counter statement as well as in his evidence. According to him, in the cross examination this was given in lieu of 17 sovereigns of gold ornaments agreed to be given, though such case was not raised by him in his counter statement. Further he had a case that he had made a deposit of 2 lakhs in favour of the respondent and the fixed deposit receipt was entrusted to her. But this fact was denied by PW1. The appellant also had not produced any document to show that he had deposited this amount in the name of PW1 and handed over the fixed deposit receipt to her as has been done in the case of 8 lakhs. Once it is proved by the wife that an amount of 2 lakhs was entrusted by her father and it is in the possession of her husband, then he is in the position of a trustee as far as that amount is concerned and he is liable to return the same when demanded by the wife unless it is proved by him that it was paid or returned to her. Such an evidence is lacking in this case. So under such circumstances, the Court below was perfectly justified in granting the relief of `2 lakhs

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MA Nos.366 & 367/13

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in favour of the wife payable by the husband together with interest. On the basis of the evidence available on record, we do not find any reason to interfere with the findings of the Court below on this aspect.

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After having perused the records and on a reappreciation of the evidence adduced by either side, we do not find any error on the part of the Family Court to have taken such a view. There are no materials to warrant a different view to be taken and the findings are not perverse enough to set aside the same. In the result, we do not find any reason to interfere with the decree for divorce and accordingly, this appeal is also liable to be dismissed. Consequently, MA No.366/13 is dismissed.

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Accordingly, the appeals are dismissed.

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Sd/-

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A.M. SHAFFIQUE, JUDGE

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Sd/- K.RAMAKRISHNAN, JUDGE

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//True Copy//

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P.S to Judge

Sanoj Pareethu v. Nimmy

Case brief

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Sanoj Pareethu v. Nimmy

Case brief

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