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2025 DIGILAW 305 (KER)

P. M. GEROGE S/o. mathai v. LEELAMMA GEORGE

2025-02-18

SATHISH NINAN, SHOBA ANNAMMA EAPEN

body2025
JUDGMENT : SHOBA ANNAMMA EAPEN, J. 1. The husband is in appeal against the common judgment in two Original Petitions. Since the parties are the same, the above Mat.Appeals are being heard together and disposed of by this judgment. 2. Mat. Appeal No. 53 of 2014 is filed challenging the dismissal of the petition for divorce in O.P.No.261 of 2012 filed by the husband under Section 10(i)(ix) and (x) of the Divorce Act, 1869. 3. Mat.Appeal No.5 of 2014 is filed challenging the order passed in O.P.No.553 of 2012 filed by the wife for return of 50 sovereigns of gold ornaments and money. 4. For the sake of convenience, the parties are referred to as ‘husband’ and ‘wife’. 5. The marriage between the parties was solemnized on 18.05.1970 and two children, a girl and a boy, were born in their wedlock. The husband and wife were living separately from 19.05.84. The girl child was with the husband and the boy was with the wife. Divorce was sought on the ground of cruelty and desertion. The husband alleged that, in 2010 he had filed a petition for restitution of conjugal rights as O.P.No.1179 of 2010 but withdrew the same in the year 2010 itself, finding that the wife is not willing to stay with the husband. Thereafter in 2012 he filed the petition for divorce. In the same year the wife filed the petition for return of gold ornaments and money. The husband alleged that the wife started living separately, abandoning the husband. Though several efforts were made by the husband for reconciliation, the wife was adamant and did not return to the matrimonial home. After more than 20 years of separation, the husband sought for divorce under cruelty and desertion. 6. The wife contended that the husband and his family members treated the wife with mental and physical cruelty. The wife was given 50 sovereigns of gold ornaments and Rs.25,000/- as patrimony. A further claim of 5000 was also made, towards the cost of household articles listed out in Schedule ‘B’ of the petition. Few months after marriage on the demand of the husband’s family, 14 cents of property with a building was conveyed by her father in her name. On 18.05.84 the husband abused and assaulted her and threatened to kill her. Few months after marriage on the demand of the husband’s family, 14 cents of property with a building was conveyed by her father in her name. On 18.05.84 the husband abused and assaulted her and threatened to kill her. On 19.05.84 her brother and uncles came to her matrimonial home and took her home to attend her brother’s marriage on 20.05.84. Though the husband and his family members were invited for the marriage, they did not attend the wedding. While leaving the matrimonial home, they permitted her to take only the younger child and kept the daughter away from the wife. The wife alleged that the conduct of the husband made it impossible for the wife to continue residence with him. She claimed that the gold and money given by her family was appropriated by the husband. Thus she filed a petition for return of gold and money. She also sought for dismissal of the petition for divorce. 7. We have heard Sri Jacob Pallath, learned counsel for the appellant-husband; and Smt. Monisha K.R, learned counsel for the respondent-wife. 8. First of all, we shall consider the question whether the husband is entitled to a decree for divorce. There is dispute between the parties regarding the date of marriage and date of separation. According to the wife, the marriage was on 18.05.1970 and the husband contends that the date of marriage was on 02.01.1970. The date of separation as claimed by the wife is 19.05.1984, and according to the husband is 02.01.1986. No document has been produced to prove the date of marriage. While the husband was examined as PW1 he said that he was not sure about the date of marriage but deposed that the wife went on the previous day of the marriage of her brother. Per contra, the wife has stated that she left the matrimonial home on the previous day of her brother’s marriage, which was on 20.05.1984. On the basis of the evidence adduced, the family court has found that the date of marriage is on 18.05.1970 and she left the matrimonial home on 19.05.1984. We do not find any reason to interfere with the said finding. 9. Due to strained relationships, they have been living separately since 1984 and both parties do not have a case that there was cohabitation after 1984. We do not find any reason to interfere with the said finding. 9. Due to strained relationships, they have been living separately since 1984 and both parties do not have a case that there was cohabitation after 1984. The husband has alleged cruelty against the wife and the wife has alleged cruelty against the husband and his family members by way of assault and mental torture. The divorce petition was filed by the husband in the year 2012, that too after 28 years of separation. The wife strongly opposed the divorce petition relying on the Judgment in Dr. Nirmal Singh Panesar V. Paramjit Kaur Panesar [2023 SCC OnLine SC 1297] and sought for dismissal of the appeal for divorce. 10. As stated earlier they are living separately from 1984 onwards. Now the husband is aged around 85 years. For almost 40 years they were living separately. The wife has not filed any petition for restitution of conjugal rights. If she had a desire to live with the husband she would have sought for restitution of conjugal rights. After more than 40 years of separation, it is evident that the parties have been unable to reconcile their differences and approach to matrimonial life. This prolonged period of separation has led to an irreconcilable breakdown of the marriage, making it clear that the relationship has reached a point of no return. It is indeed a harsh reality that the parties have reached the twilight of their lives, with their advanced age rendering reconciliation increasingly impossible. The husband submits that in 2010 he had filed a petition for restitution of conjugal rights as O.P.No.1179 of 2010 but withdrew the same in the year 2010 itself, finding that the wife is not willing to stay with the husband. The prolonged separation between the husband and wife has itself become a form of cruelty, causing emotional distress to the other. The husband as well as the wife failed in building relationship. The Apex Court in Samar Ghosh v. Jaya Ghosh , 2007 (2) KHC 231 considered such act as cruelty and held as follows:- “Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. The Apex Court in Samar Ghosh v. Jaya Ghosh , 2007 (2) KHC 231 considered such act as cruelty and held as follows:- “Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie the law in such cases does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such cases like situations, it may lead to mental cruelty”. 11. In Rakesh Raman v. Kavitha [2023 SCC OnLine SC 497], it has been held that though in a given case, cruelty as a fault may not be attributable to one party alone and hence, despite the irretrievable breakdown of marriage, keeping the parties together amounts to cruelty on both sides. Similarly, in Shilpa Sailesh v. Varun Sreenivasan [2023 SCC OnLine SC 544], it has been held that where there is an irretrievable breakdown of marriage, then, dissolution of marriage is the only solution. In a recent decision of the apex court in Rajib Kumar Roy vs. Sushmita Saha (Civil Appeal No. 5454 of 2023) [2023 LiveLaw (SC) 727], it has been held that keeping the parties together despite the irretrievable breakdown of marriage amounts to cruelty on both sides. 12. Since the husband and wife have been living separately since 1984, it is evident that there is an irretrievable breakdown of their marriage. The prolonged separation between the husband and wife is itself a cruelty being meted out to each other and we are of the view that the octogenarian husband is entitled for a decree for divorce. 13. The next issue to be considered is regarding the decree granted for return of gold ornaments and money. The wife has claimed that she was given 50 sovereigns of gold ornaments and Rs.25,000/- at the time of marriage and the husband had appropriated the same for his own needs. The husband claimed that she was not given 50 sovereigns of gold ornaments or money. The wife had taken away whatever gold ornaments she had when she left for her parental home. 14. In order to prove the claim put forth by the wife, she was deposed as RW1 and her brother was examined as RW2. The husband claimed that she was not given 50 sovereigns of gold ornaments or money. The wife had taken away whatever gold ornaments she had when she left for her parental home. 14. In order to prove the claim put forth by the wife, she was deposed as RW1 and her brother was examined as RW2. In order to prove the contentions of the husband, he alone was examined as PW1. The husband and wife were living separately from 1984 onwards. However, the claim for the return of gold ornaments was raised in the year 2012. The wife had stated in the petition and has testified that in connection with the marriage, the wife was given 50 sovereigns of gold ornaments and Rs.25,000/- by her family and the same was appropriated by the husband. It was also alleged that a substantial portion of the wife’s gold ornaments was utilized for the husband’s sister Reebi’s marriage. The details of the gold ornaments were listed out in Schedule ‘A’. The counsel for the wife, Smt. Monisha K.R, relied on the judgments in Jubairiya M.K. v Abusalih and Another [ 2013 (2) KHC 304 ] and Bexy Michael v. A.J. Michael [ 2010 (4) KHC 376 ]. 15. The husband in paragraph 5 of the written statement had contended that they never demanded any money, gold ornaments or property from the wife or her family members. No amount in cash was given to her husband. The wife was wearing some gold ornaments but these ornaments were kept in her custody and the husband had no access to it nor he was interested in it. It was further contended that whatever ornaments she had were taken by her when she left the matrimonial home. During examination, the husband testified that the wife did not have 50 sovereigns but admitted that she had 10-20 sovereigns of gold ornaments. Per Contra, during cross-examination, the wife testified an undisclosed fact that 50 sovereigns were entrusted with the husband’s father and it was pledged in the bank. Although the wife’s brother was examined as RW2, his testimony did not yield any significant information regarding the gold and money and he stated that he was a 6th standard student at the time of his sister’s marriage. Although the wife’s brother was examined as RW2, his testimony did not yield any significant information regarding the gold and money and he stated that he was a 6th standard student at the time of his sister’s marriage. The husband, while examined as RW1, had conceded that at the time of marriage, the wife was adorned with approximately 10-20 sovereigns of gold ornaments. As held by this Court in Pankajakshan Nair v. Shylaja & Ors., [ 2017 (1) KHC 620 ], when the husband and wife live together, it is only probable that the valuables of the wife will be entrusted to the husband for safe custody, and when the plea of the husband is that the wife took back the gold ornaments, it is for the husband to prove the same. We are in respectful agreement with the view expressed in Pankajakshan Nair (supra). However, regarding the quantity of gold ornaments, the wife failed to produce any documentary evidence to substantiate her claim of 50 sovereigns of gold ornaments. Furthermore, the claim of Rs.25,000/- also remains not proved, with no evidence except the mere assertion of the wife and the brother. The brother’s testimony failed to provide any information regarding the quantity of gold ornaments allegedly given to his sister. 16. Considering the entire evidence on record and the oral testimony of the husband, wife and wife’s brother, and the documents produced in this case, we find that there is no evidence to prove that the wife had 50 sovereigns of gold ornaments. On the suggestion by the husband while cross- examining the wife, it is probable that she possessed at least 20 sovereigns of gold ornaments at the time of her marriage. Furthermore, it is probable that she was wearing around 8 sovereigns while she left for her parental home. Accordingly, we find that the wife is entitled for the return of the remaining 12 sovereigns of gold ornaments. As regards the claim for return of Rs.25,000/-, we are not inclined to allow the same for lack of satisfactory evidence for entrustment of the same. The claim for Rs.5,000/- being the cost of household articles is declined due to the long lapse of time, which renders the claim unsustainable. 17. Accordingly, the appeals are disposed of as follows: Mat Appeal No. 53 of 2014 is allowed and the husband is granted a decree for divorce. The claim for Rs.5,000/- being the cost of household articles is declined due to the long lapse of time, which renders the claim unsustainable. 17. Accordingly, the appeals are disposed of as follows: Mat Appeal No. 53 of 2014 is allowed and the husband is granted a decree for divorce. Mat.Appeal No.5 of 2014 is allowed in part. The decree and judgment of the Family Court, Muvattupuzha in O.P.No.553 of 2012 will stand modified to the extent that the wife is granted a decree for realisation of the present market value of 12 sovereigns of gold ornaments from the husband personally and from his assets.