Kerala High Court
Usha vs P.K.Shaji on 10 October, 2019
Author: A.M.Shaffique
Bench: A.M.Shaffique, T.V.Anilkumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR
THURSDAY, THE 10TH DAY OF OCTOBER 2019 / 18TH ASWINA, 1941
RPFC.No.223 OF 2010
AGAINST THE ORDER/JUDGMENT IN MC 70/2008 DATED 20-03-2010 OF
FAMILY COURT,ERNAKULAM
REVISION PETITIONER/PETITIONER:
USHA, D/O. M.R. VELAYUDHAN
THACHETHU PARAMBU, PATTIMATTOM,
ERNAKULAM - 683 562.
BY ADVS.
SRI.SUBAL J.PAUL
SRI.SHEEBA THOMAS
SRI.VIVEK K.VIJAYAN
RESPONDENT/RESPONDENT:
P.K.SHAJI, S/O. KOCHUKUTTY,
PULICHOTTIL HOUSE, EZHIKKARA N.PARUR,, ERNAKULAM
683 519.
R1 BY ADV. SRI.K.S.MADHUSOODANAN
THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD
ON 10.10.2019, ALONG WITH Mat.Appeal.575/2012, THE COURT ON THE
SAME DAY PASSED THE FOLLOWING:
RPFC.No.223 OF 2010 & Mat.Appeal.575/2012
2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR
THURSDAY, THE 10TH DAY OF OCTOBER 2019 / 18TH ASWINA, 1941
Mat.Appeal.No.575 OF 2012
AGAINST THE ORDER/JUDGMENT IN OP 314/2008 DATED 18-06-2012 OF
FAMILY COURT,ERNAKULAM
APPELLANT/RESPONDENT 1 IN O.P:
USHA T.V.
AGED 42 YEARS
D/O.M.R.VELAYUDHAN, THACHETHUPARAMBU HOUSE,
PATTIMATTOM P.O., KUNNATHUNADU TALUK, ERNAKULAM.
BY ADVS.
SRI.SUBAL J.PAUL
SMT.SHEEBA THOMAS
RESPONDENTS/PETITIONER/2ND RESPONDENT IN O.P.:
1 P.K. SHAJI
AGED 46 YEARS
S/O.LATE P.A. KOCHUKUTTY, RESIDING AT GOVERNMENT
QUARTERS, KAKKANAD, ERNAKULAM DIST., PIN:682030.
2 SHARAT
S/O.USHA T.V., AGED 19 YEARS, THACHETHUPARAMBU
HOUSE, PATTIMATTOM P.O., KUNNATHUNADU TALUK,
ERNAKULAM, PIN:683562.
R1 BY ADV. SRI.VELLAYANI SUNDER RAJ FOR R1
R1 BY ADV. SMT.S.JESSIN
R1 BY ADV. SRI.K.S.MADHUSOODANAN
R1 BY ADV. SRI.K.S.MIZVER
R1 BY ADV. SRI.P.K.RAKESH KUMAR
R1 BY ADV. SRI.M.M.VINOD KUMAR
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
10.10.2019, ALONG WITH RPFC.223/2010, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
RPFC.No.223 OF 2010 & Mat.Appeal.575/2012
3
O R D E R
[ RPFC.223/2010, Mat.Appeal.575/2012 ] Dated this the 10th day of October 2019 A.M.SHAFFIQUE, J.
Mat. A. No.575/2012 and R.P.(FC) No.223/2010 arise from matrimonial issues between a couple. O.P.No.314/2008 on the files of the Family Court, Ernakulam, from which Mat. A.No.575/2012 has arisen, was filed by the husband seeking divorce under Section 13 (1) (iii) of the Hindu Marriage Act. The couple got married on 08.11.2007 and they lived together only for a period of two months and she got separated on 11.01.2008. Respondent - husband alleges that from the very inception the appellant -wife was showing the behaviour as if she was suffering some mental disorder. She had assaulted the respondent. She had even attempted to commit suicide and she was not taking care of the first respondent. She even tried to jump from the first floor of the building. Appellant-wife denied all the allegations. According to her, she had no mental disorder RPFC.No.223 OF 2010 & Mat.Appeal.575/2012 4 as alleged and the allegations made by the respondent was only for the purpose of seeking divorce. First respondent - husband was examined as PW1 and the appellant-wife as RW1. Exts.A1 to A4 were the documents relied upon. The Family Court, after considering the evidence, found that the version of PW1 is believable and therefore directed divorce to be granted.
2. The main contention urged by the learned counsel for the appellant is that the Family Court has relied upon irrelevant materials in order to grant divorce. He referred to Ext.A4, which is an order in respect of a divorce case between the appellant and her former husband. That was a case in which the allegations were that of cruelty and desertion. The Family Court had narrated the contents of the said order in order to arrive at a finding that the appellant is suffering from mental disorder, which according to the learned counsel is erroneous.
3. R.P.(F.C.)No.223/2010 arises from M.C.No.70/2008, which was filed by the wife claiming maintenance at the rate of Rs.3,000/- per month. According to her, the respondent is employed in Central Administrative Tribunal at Ernakulam and drawing a monthly salary of Rs.9,000/-. He is also doing finance RPFC.No.223 OF 2010 & Mat.Appeal.575/2012 5 business and earning Rs.10,000/- per month. According to her, she does not have any income of her own and therefore she has sought for maintenance at the above said rate. Respondent/husband alleged that appellant is a mental deranged woman and her disease is incurable. That apart, she is the owner of 30 cents with yielding rubber plants. He also contends that his net salary is Rs.5,130/- and he had to meet the expenses of his family. Family Court after considering the evidence of all the parties who were examined as PW1 and RW1 observed that the income derived from the 30 cents was sufficient enough for her daily needs. That apart, her son in her former marriage, was aged 18 years and she was living with him and therefore maintenance was denied.
4. Learned counsel for the revision petitioner contended that being a wife, she is entitled for maintenance and there is no evidence to prove that she was deriving any income from the landed properties and her son was deriving any income as well. Even otherwise merely for the reason that she has a major son does not indicate that the husband has no obligation to maintain his wife.
RPFC.No.223 OF 2010 & Mat.Appeal.575/2012 6
5. We heard the learned counsel for the first respondent
- husband Sri. K.S. Madhusoodanan, who argued that sufficient materials were available before the trial court for grant of divorce. PW1 in his evidence had clearly stated the sufferings he had to undergo at the hands of the respondent/wife, which itself is enough to conclude that she is a mentally deranged person. That apart several findings in Ext.A4 order in the former case between the appellant and her former husband further reiterates the aspects pleaded by the respondent. It was therefore contended that there is no reason to set aside the said judgment.
6. As far as maintenance is concerned, it is argued that the appellant herself had admitted that she is in possession of 30 cents of land and in Ext.B1 letter which was sent prior to marriage she has even stated that income from the 30 cents of land was sufficient for her livelihood.
7. As far as Mat.A.No.575/2012 is concerned, this is a case in which the divorce had been sought under Section 13 (1)
(iii). In that petition, it is stated that his spouse is having mental disorder of such a kind or of such a nature, that he is incapable RPFC.No.223 OF 2010 & Mat.Appeal.575/2012 7 of living with her. But this has to be proved by adducing medical evidence. It is true that PW1 in his oral testimony had narrated certain incidents. But these incidents have been denied by the appellant. Other than the evidence of PW1, there is no other supporting evidence to prove that the appellant was a mentally deranged woman or she was having any mental disorder as alleged. In the absence of any medical evidence to support PW1's version, it was not possible for the court to grant a decree of divorce on the ground of the appellant's mental disorder.
8. Under such circumstances, we are of the view that the court below committed serious error in placing reliance upon the contents of Exts.A1 to A4 and arriving at a finding that the nature of cruelty inflicted on the former husband of the appellant is evidence enough to arrive at a finding that she was a mentally deranged person. The judgment of the Family Court suffers from serious infirmity as the court below had not considered the claim for divorce in terms of Section 13 (1) (iii) of the Hindu Marriage Act in a proper perspective. In cases involving allegation of mental disorder, necessarily, evidence has to come in the form of medical evidence to prove that she RPFC.No.223 OF 2010 & Mat.Appeal.575/2012 8 was being treated during the relevant time; either before the marriage or after the marriage. But there is no such evidence in the present case. Under such circumstances, we are of the view that the judgment is liable to be set aside and accordingly it is set aside.
9. As far as the maintenance is concerned, the reasons stated by the court below for denying maintenance is absolutely baseless. It is true that the appellant had admitted that she was having 30 cents of land, which was a rubber plantation. But what was the income from the said rubber plantation and whether that was enough for her livelihood is a matter of concern. The prices of rubber has gone down drastically and the court is completely in dark as to what was the income from the rubber plantation at the relevant time. It is even stated that there was a house in the property which was fully damaged and had to be demolished. The finding of the Family Court that the appellant could live with the the income derived by her major son, is again erroneous. We do not agree with the said view. The husband, who is capable of maintaining the wife - who is unable to maintain herself, is liable to pay the maintenance. The court cannot say that she will have to approach her son to get RPFC.No.223 OF 2010 & Mat.Appeal.575/2012 9 maintenance and there is no evidence to prove that her son is deriving any income from any other source. Under such circumstances, the Family Court has committed serious error in denying maintenance to the petitioner.
10. For that reason, the Revision is to be allowed. We set aside the judgment of the Family Court in the M.C. and it is allowed as under:
The respondent shall pay to the petitioner maintenance at the rate of Rs.1,500/- (Rupees one thousand five hundred only) per month from the date of petition till date and thereafter at the rate of Rs.2,000/- (Rupees two thousand only) per month.
Mat.A.No.575/2012 is allowed and the judgment of the Family Court, Ernakulam in O.P.No.314/2008 shall stand set aside, and the Original Petition is dismissed.
Sd/-
A.M.SHAFFIQUE JUDGE Sd/-
T.V.ANILKUMAR
shg JUDGE
RPFC.No.223 OF 2010 & Mat.Appeal.575/2012 10 INDEX APPELLANT'S ANNEXURES ANNEXURE AI TRUE COPY OF JUDGMENT DATED 18.6.2012 IN O.P.NO.314/2008 OF FAMILY COURT, ERNAKULAM