The High Court held that claims of cruelty and desertion were not substantiated by evidence and that the marriage subsisted via conduct like hospital visits post-decree. Consequently, the ex parte divorce decree was set aside.
The order of dissolution of marriage passed by the court below is set aside.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN
MONDAY, THE 6TH DAY OF MARCH 2017/15TH PHALGUNA, 1938
Mat.Appeal.No. 70 of 2005
AGAINST THE JUDGMENT IN OPHMA.1029/2003 of FAMILY COURT, THIRUVALLA DATED 26.12.2003
APPELLANT/RESPONDENT::
RADHAMANI W/O.LATE GOPALAKRISHNA PILLAI, VARIYATHU VEEDU, PERINGARA MURI DO. VILLAGE, THIRUVALLA, RESIDING AT POWVATHILAYA KAILASATHIL MANIMANDIRATHIL VEEDU PAIPPAD MURI, DO. VILLAGE, CHANGANACHERRY TALUK. BY ADV. SRI.R.GIREESH VARMA
RESPONDENTS/PETITIONER/1ST RESPONDENT & Lrs. OF R1-HIS FATHER:
1. GOPALAKRISHNA PILLAI (DIED) S/O. CHELLAPPAN PILLAI, POWVATHILAYA KAILASATHIL MANIMANDIRATHIL VEEDU, PAIPPAD MURI DO VILLAGE CHANGANACHERRY TALUK.
4. AMBIKADEVI, D/O.CHELLAPPAN PILLAI, NELLIKKUNNATHU HOUSE, PONKUNNAM P O.
5. DIVYA G. D/O. LATE RAMADEVI, B P BHAVAN, PERUNNA P O, CHANGANACHERRY.
R2 BY ADV. SRI.K.JAGADEESCHANDRAN NAIR R,ADDL.R4 BY ADV. SRI.J.R.PREM NAVAZ R4-R5 BY ADV. SRI.K.RAMAKUMAR (SR.) R4-R5 BY ADV. SRI.T.RAMPRASAD UNNI
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 23.2.2017, ALONG WITH MA. 1083/2014, THE COURT ON 06-03-2017 DELIVERED THE FOLLOWING:
ami/
A.M.SHAFFIQUE & K.RAMAKRISHNAN, JJ.
Mat.Appeal Nos.70 of 2005 and 1083 of 2014
Dated this the 6th day of March, 2017
J U D G M E N T
K.Ramakrishnan, J.
The respondent in O.P.(HMA)No.1029/2003 on the file of Family Court, Thiruvalla, is the appellant in Mat.Appeal No.70/2005, who is the petitioner in I.A.Nos.2183/2010 and 2184/2010 in O.P.No.1029/2003 on the file of Family Court, Thiruvalla, and is also the appellant in Mat.Appeal No.1083/2014.
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amount that left after selling his property, i.e., an amount of `25,000/-, was also given to her for the purpose of purchasing a property in Thiruvananthapuram. According to the husband, in the petition filed by him for divorce, it is stated that the appellant made him to believe that she was only less than 40 years of age and that she was a spinster at the time of marriage, and hence he had agreed to marry her. Later, it was revealed that she had married to one Sambasivan of Sasthamcotta on an earlier occasion and due to her immoral activities, that relationship was dissolved through court and he also came to know that she was of the same age as that of the husband etc. It is also alleged in the petition filed by him that she was having illegal intimacy with several persons and this was also he came to know through others. Though he tried to persuade her and desisted from the same, she started treating him cruelly and she abused and even caused him physical assault. During July 1998, when he went to Thiruvananthapuram to see her, he had seen some other person in the house and the said person abused and warned him not to enter the house thereafter and he had assaulted the husband and due to fear of his life, he had to leave the house. When this was
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asked, the appellant told him that she will not repeat the same and she will lead a faithful life and will be a faithful wife to him and hence they started residing together again. But later also, the same incidents continued. Thereafter, she told that it will be difficult for her to live with him. So, they decided to file a joint petition for divorce, but later, she withdrew from the same, which compelled him to file O.P.(HMA) No.1029/2013 for dissolution of marriage on the ground of cruelty.
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to understand that an ex parte decree was passed by sending a notice to her in a different address, where she was not residing and the notice was returned as 'unclaimed'. So, immediately she filed Mat.Appeal No.70/2005, impleading her father in law, as her husband died due to cancer by then. According to her, while her husband Gopalakrishna Pillai was admitted in the hospital, she nursed him and at that time, her husband opened bank accounts and she was shown as the nominee even after the alleged divorce obtained. She had given consent, in the capacity as his wife, for conducting a surgery in the hospital as well. So, till the suit was filed, she was neither aware of the proceedings filed by her husband for dissolution of marriage nor about the ex partee decree for divorce obtained.
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set aside the ex parte order was filed against the legal heirs of her father in law. In the appeal, they were impleaded as additional respondents 3 to 5 as per order in I.A.No.456 of 2010. The appeal itself was filed along with an application to condone the delay of 389 days that occurred in filing the appeal. The respondents in the application to set aside the ex parte decree had filed counter, contending that she was aware of the proceedings and the notice was properly served on her, but she did not appear and after considering the evidence of Pws.1 to 3 who were examined in the case, the court below had granted decree of divorce correctly and there is no necessity to set aside the ex parte decree. In the interlocutory applications filed before the court below for setting aside the ex parte decree and for condoning the delay occurred in filing the same, the appellant herein was examined as PW1 and Exts.A1 to A13 were marked on her side. One witness was also examined as PW2. Ext.X1 was also marked. After considering the evidence on record, the court below found that the petitioner had not proved her case and sufficient reason has not been given for condoning the delay of 6 years and 208 days in filing the application and dismissed those
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applications. Aggrieved by the same, the appellant filed Mat.Appeal No.1083/2014.
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dispute that for some time, they lived together and thereafter they started residing separately. According to the husband, the fact that she had earlier married to one Sambasivan and that the marriage was dissolved through court was suppressed at the time of their marriage and she had also made to believe that she was aged only 40 years, but later he came to know that they were of equal age. According to the husband, she was leading an immoral life and on one day, he happened to see her in the company with another person and when that was questioned, she along with that person had beaten him and he left the matrimonial home. According to him, when he questioned the same, though she had agreed to lead a decent life and that she will be faithful to him, she did not keep up the promise and hence, they agreed to file a joint petition for divorce, but later, she withdrew from the same. Thereafter, he filed an application for divorce on the ground of cruelty and desertion, since she was living separately for more than 2 years without any reasonable cause.
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'unclaimed'. The notice was sent on the address of her parental house. In fact, even as per the allegations in the petition, they were residing together at Vilappilsala where she was working as a teacher in a Government School.
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illegal relationship has not been established. Further, the desertion was also not proved. Though there is an allegation of illegal intimacy and her living in an adulteress life, none of the adulterers were made parties to the proceedings as well.
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any witnesses will be available as well. So, under such circumstances, there is nothing to be decided afresh and if the ex parte decree is set aside and if the files are send back for fresh trial, hardship will be caused to the husband who obtained the decree for divorce. Further, the evidence of Pws.1 to 3 and the discussion of the court below on the evidence adduced will go to show that the court below had considered all the aspects and there is no illegality committed by the court below in granting the decree for divorce on the ground of cruelly.
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ex parte decree, but the court can only consider as to whether a decree passed can be sustained on the basis of the materials available on record. If the court is satisfied that materials are not sufficient to sustain the decree or even to grant a decree, then the court can allow the appeal without remanding the same. It is also settled law that even if the appellant files an application to set aside the ex parte decree under Order 9 Rule 13 and even if that application is dismissed by the court below, there is no bar for her to agitate the legality of the decree granted in a regular appeal filed by her against the ex parte decree passed, but then the Appellate Court cannot consider the question as to whether she is prevented by sufficient cause to appear before the court below and contest the case.
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and at that time both the appellant and that person had abused him and later she promised him that she will not continue that relationship, but she withdrew from the promise and continued the relationship and that promoted him to file the application. Even in the petition, there is no specific instance of cruelty mentioned. He did not mention even the name of the person with whom the appellant was having the alleged illicit connection and the application for divorce filed by him was not on the ground that the appellant having intercourse with some other person during the subsistence of marriage. Probably, he may not be able to establish the same and so, that was not shown as a ground in the application seeking divorce.
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was examined as PW1 before the court below. There also he had only vaguely stated that they have resided together till July 1998 and thereafter they were residing separately, as his wife was having illicit relationship with somebody else. It is simply stated in the deposition that at about 10 p.m. on a day during July 1998, a person had entered the house, but the date of such entry was not mentioned. He had only stated that though he objected the same, the appellant continued the illicit relationship. Thereafter, both of them have manhandled the respondent and several persons have seen that incident. It is also mentioned that thereafter also, they resided together in the house at Peringara. There also the appellant continued the illicit relationship and he left the house in January 1999. The date of leaving was not mentioned. So even in his evidence, he has not given the concrete date and the time at which the incident occurred. He had no case that he had informed this matter to anyone as well.
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not mention the date on which the said incident occurred. He had no case that both the appellant and that person who was said to be present in the house, had jointly assaulted the respondent in the case, as stated by PW1. Further, PW1 has no case that he went to that house along with PW2 and on that day, some incident occurred and he happened to see that incident. So, under such circumstances, the presence of PW2 at the matrimonial house of the appellant and witnessing any incident, as claimed by him, appears to be suspicious.
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separate living, as stated by PW1.
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dismissed. In view of allowing Mat.Appeal No.70/2005, Mat.Appeal No.1083/2014 is closed as unnecessary, without considering the legality of the impugned order passed by the court below.
Sd/-
A.M.SHAFFIQUE
JUDGE
Sd/-
K.RAMAKRISHNAN JUDGE
ami/28.2.17
//True copy//
P.A.to Judge
3 issues framed by the court
Whether the ex parte decree for dissolution of marriage can be set aside on appeal after the death of the petitioner-husband.
Whether the allegations of cruelty and desertion are sufficient to sustain the decree for divorce.
Whether the marriage in question subsisted at the time the divorce decree was passed.
Colour shows how this judgement treated each authority
R. Lakshmi v. K. Saraswathi AmmalReferred¶10
R.Lakshmi v. K.Saraswathi Ammal [(1996) 6 Supreme Court Cases 371]
Radhamani
Legal Heirs of Gopalakrishna Pillai
A.M. Shaffique
K. Ramakrishnan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
