Allowed

James v. Regin Joseph

Kerala HC24 Jul 2018Mat.Appeal/234/2007

Case brief

AI extract

What is this about?

The High Court allowed a matrimonial appeal by the husband seeking divorce. Despite the Family Court dismissing the divorce petition due to lack of expert evidence on mental illness, this Court granted divorce based on unsubstantiated false allegations of misconduct made by the wife against her husband's character and reputation.

What did the court decide?

The judgment in O.P.No.326/17 is set aside and the marriage between the petitioner and the 1st respondent is dissolved by a decree for divorce.

James Vs Regin Joseph — Matrimonial and Divorce | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE &

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THE HONOURABLE MR. JUSTICE P.SOMARAJAN

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TUESDAY, THE 24TH DAY OF JULY 2018 / 2ND SRAVANA, 1940

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Mat.Appeal.No. 234 of 2007

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AGAINST THE JUDGMENT IN OP 759/2004 of FAMILY COURT, KOTTAYAM DATED 17-01-2007

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APPELLANT/PETITIONER:

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1 JAMES JOSEPH, S/O JOSEPH, HOUSE NO.414, KUTTAMPEROOR HOUSE, OPPOSITE ST.ANNE'S GIRLS HIGH SCHOOL, CHANGANACHERRY, KOTTAYAM DISTRICT.

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2 JIMMY JOSEPH, S/O.K.J.JOSEPH, KUTTAMPEROOR CHAKKALAKKAL HOUSE,, KURISUMMOODU P.O., CHANGANACHERRY,, KOTTAYAM DISTRICT.

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BY ADV.SRI.P.C.HARIDAS

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RESPONDENTS/RESPONDENTS:

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REGIN JOSEPH, AGED 42 YEARS, D/O.JOSEPH, KULLAMPALLIKATTEL HOUSE, SLEEVAPURAM, KANJIRATHANAM P.O., KURUPPANTHARA.

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BY ADV. SMT.SHERLYMOL THOMAS

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THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 24-07-2018 ALONG WITH MA.NO. 252/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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A.M.SHAFFIQUE & P.SOMARAJAN, JJ

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- - - - Mat.A. Nos. 234 & 252 of 2007

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- - - - Dated this the 24^th day of July, 2018

JUDGMENT

SHAFFIQUE, J.

Mat.A.No.252/2007 has been filed by the petitioner in O.P.No.326/2003. The original petition has been filed seeking for a declaration that the marriage between the petitioner and the 1^st respondent is null and void and in the alternative for a decree for dissolving the marriage between the petitioner and the 1^st respondent on the ground of unsoundness of mind and cruelty.

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The parties got married on 17.2.1994. Two children were born in the wedlock. They lived together in petitioner's house till July, 2002 and thereafter on account of strange and cruel behaviour she had gone back to her parental home. The petitioner alleges that his wife was suffering from incurable disease even prior to marriage which continue after marriage and he has suffered severe cruelty at her hands.

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The respondents denied the aforesaid allegations. The Family Court considered the above original petition along with another O.P.No.759 of 2004 filed by the wife/1^st respondent herein seeking return of gold ornaments and money.

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Common evidence was taken in the case and by the impugned judgment the Family Court dismissed the petition for

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Mat.A. Nos. 234 & 252 of 2007 -2-

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divorce and partly allowed O.P.No.759 of 2004 directing return of 30 sovereigns of gold ornaments or its equivalent value of Rs.1,80,000/with interest at the rate of 6% per annum from the date of decree and also Rs.50,000/- with interest at the same rate from the date of suit till realisation. The husband alone had preferred the aforesaid appeals.

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The learned counsel for the appellant submitted that to prove the mental illness of the 1^st respondent, Ext.A2 document was produced which is a medical certificate indicating that she was suffering from a mental illness. The Family Court did not accept the aforesaid version on the ground that expert evidence has not been adduced in the matter. We do not think that a different view can be taken. In an instance where a person complains mental illness of the spouse, it is for him/her to prove the same with cogent evidence. In the absence of any evidence it is not possible for a court to arrive at a decision in the matter. In this case other than the medical certificate produced, no attempt has been made to examine the Doctor who treated the 1^st respondent. Therefore, the finding of the Family Court to that extend cannot be disturbed.

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Yet another contention urged by the petitioner/appellant is that several allegations have been raised against the petitioner by the 1^st respondent wife in connected O.P.No.759/2004. In the petition it is her allegation that he was an alcoholic and has weakness for women.

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Mat.A. Nos. 234 & 252 of 2007 -3-

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It is also alleged that he has purchased a property and constructed a house in the name of one Mercy and has relationship with other women. These are serious allegations which affected his reputation which itself amounts to mental cruelty as held by the Apex Court in Samar Ghosh v. Jaya Ghosh [(2007) 4 SCC 511] which has been reiterated in K. Srinivas Rao v. D.A. Deepa [(2013) 5 SCC 226]

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It is further contended that even in her evidence as RW1,

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she had reiterated the allegations against him and in cross examination she stated that she got the said information from the parish priest. It is therefore argued that the petitioner being a teacher is affected by the unsubstantiated allegations raised against him which itself amounts to mental cruelty and therefore the petitioner is entitled for a divorce on the ground of cruelty.

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On the other hand the learned counsel for the 1^st respondent argued that the parties are residing separately for last 16 years and no ground has been made out for divorce. There is no proof for the mental illness and the allegations that she has made against him were true facts. She was working abroad and money was being sent which had been misappropriated by the petitioner. She had come to know about various allegations and for the mere reason that she was unable to adduce any other evidence regarding the same by itself cannot be a ground to grant divorce.

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Mat.A. Nos. 234 & 252 of 2007 -4-

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But having regard to the facts and circumstances and as settled by long line of judgments, when one of the spouse make very serious allegations against other spouse it amounts to mental cruelty. In K. Srinivas Rao (supra), the Apex Court held at paragraph 16 as under:

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“16. This, to the instances illustrative of mental cruelty noted in Samar Ghosh , we could add a few more. Making unfounded indecent defamatory allegations against the spouse or his or her relatives in the pleadings, filing of complaints or issuing notices or news items which may have adverse impact on the business prospect or the job of the spouse and filing repeated false complaints and cases in the court against the spouse would, in the facts of a case, amount to causing mental cruelty to the other spouse.”

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Taking into consideration all these factual aspects and the fact that the marriage has been irretrievably broken and as there is no chance for a reunion, there is no point in keeping the marriage alive. The 1^st child is living with the petitioner and the 2^nd child is now 18 years and she is also with the petitioner. The mother is residing alone. Taking into consideration all these facts, we are of the view that this is a fit case in which the petitioner is entitled for a decree for divorce.

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Mat.A.No.234/07 arises from O.P.No.759/2004 wherein the wife has filed a petition for return of money and gold ornaments. It is her allegation that at the time of marriage, she was given 30

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Mat.A. Nos. 234 & 252 of 2007 -5-

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sovereigns of gold and Rs.50,000/-. That apart she had also earned an amount of Rs.90,000/- and 22 sovereigns of gold ornaments while she was working abroad in Gulf and the entire money and gold ornaments were appropriated by the respondents and his family members. She also contended that an amount of Rs.1.5 lakhs from her savings was taken by the 1^st respondent. Her further contention was that Rs.5 lakhs was withdrawn by respondents 1 and 2 from the bank account by playing fraud on her. As already stated common evidence was taken in the case. The wife was examined as RW1 and the husband as PW1.

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The Family Court after considering the evidence directed return of 30 sovereigns of gold ornaments and an amount of Rs.50,000/-. It was found from the available evidence that the case of the respondent/wife was that she was entitled for return of 52 sovereigns of gold ornaments and Rs.8,46,000/-. The Family Court had only partly decreed the said claim. In order to prove her case she alone was examined as RW1 and she relied Ext.B1 savings bank pass book. In the absence of any other evidence other than the evidence of the respondent/wife, direction was issued to return only 30 sovereigns of gold and Rs.50,000/-. There is no other evidence to substantiate the other claims.

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Taking into account all the factual circumstances involved in the

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Mat.A. Nos. 234 & 252 of 2007 -6-

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matter, we do not think it necessary to interfere with the judgment of the Family Court regarding the return of gold ornaments.

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(i) Accordingly Mat.A.No.252 of 2007 is allowed as under:

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The judgment dated 17.1.2007 in O.P.No.326/17 is set aside.

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The marriage between the petitioner/appellant and the 1^st respondent is dissolved by a decree for divorce.

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(ii) Mat.A.No.234 of 2007 is dismissed.

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Sd/-

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A.M.SHAFFIQUE, JUDGE

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sd/-

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P.SOMARAJAN, JUDGE

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James v. Regin Joseph

Case brief

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James v. Regin Joseph

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