Kerala High Court
Dhanya.N.Nampoothiri vs Sreekanth K on 8 November, 2018
Bench: A.M.Shaffique, P.Somarajan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
THURSDAY ,THE 08TH DAY OF NOVEMBER 2018/17TH KARTHIKA, 1940
Mat.Appeal.No. 1232 of 2017
AGAINST THE JUDGMENT IN OP 216/2014 of FAMILY COURT,
MAVELIKKARA DATED 20-09-2017
APPELLANT/RESPONDENT:
DHANYA.N.NAMPOOTHIRI
AGED 28 YEARS, D/O P.S NARAYANAN
NAMPOOTHIRI,PERIYAMANA ILLOM, PAVUKKARA
MURI,KORATTISSERY VILLAGE, CHENGANNUR
TALUK,MANNAR PO, ALAPPUZHA.689622.
BY ADVS.
SRI.K.S.HARIHARAPUTHRAN
SRI.DIPU JAMES
SRI.GEORGE MATHEW
SRI.M.D.SASIKUMARAN
SRI.P.J.SHIJO
SRI.SETHURAM DHARMAPALAN
SRI.SUNIL KUMAR A.G
RESPONDENT/PETITIONER:
SREEKANTH K.,
AGED 37 YEARS, S/O KESAVAN POTTI V.N,ASWATHY
BHAVAN, PALLAVUR PO, PALLASANA VILLAGE,CHITTUR
TALUK, PALAKKAD.678688.
BY ADVS.
DR.ABRAHAM P.MEACHINKARA
DR.SEBASTIAN CHAMPAPPILLY
SRI.GEORGE CLEETUS
SRI.P.A.SAINUDEEN
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
27.7.2018, ALONG WITH MAT.APPEAL NO.1362/17 & CRL.REV.PETITION
NO.420/18 THE COURT ON 8.11.2018 DELIVERED THE FOLLOWING:
Mat.Appeal Nos.1232, 1362/17
& Crl.Rev.Petition No.420/18
-:2:-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
THURSDAY ,THE 08TH DAY OF NOVEMBER 2018/17TH KARTHIKA, 1940
Mat.Appeal.No. 1362 of 2017
AGAINST THE JUDGMENT IN OPHMA 613/2013 of FAMILY COURT,
MAVELIKKARA DATED 20-09-2017
APPELLANT/RESPONDENT:
DHANYA N.NAMPOOTHIRI
AGED 28 YEARS, D/O. P.S NARAYANAN NAMPOOTHIRI,
PERIYAMANA ILLOM, PAVUKKARA MURI, KORATTISSERY
VILLAGE, CHENGANNUR TALUK, MANNAR P.O ALAPPUZHA
- 689 622.
BY ADVS.
SRI.K.S.HARIHARAPUTHRAN
SRI.DIPU JAMES
SRI.GEORGE MATHEW
SRI.M.D.SASIKUMARAN
SRI.P.J.SHIJO
SRI.SETHURAM DHARMAPALAN
SRI.SUNIL KUMAR A.G
RESPONDENT/PETITIONER:
SREEKANTH.K
AGED 37 YEARS, S/O. KESAVAN POTTI V.N, ASWATHY
BHAVAN,PALLAVUR P.O, PALLASANA VILLAGE, CHITTUR
TALUK, PALAKKAD - 678 688.
BY ADVS.
DR..SEBASTIAN CHAMPAPPILLY (CAVEATOR)
DR.ABRAHAM P.MEACHINKARA
SRI.GEORGE CLEETUS
SRI.P.A.SAINUDEEN
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
27.07.2018, ALONG WITH MAT.APPEAL NO.1232/17 AND CRL.REV.PETITION
NO.420/18 THE COURT ON 8.11.2018 DELIVERED THE FOLLOWING:
Mat.Appeal Nos.1232, 1362/17
& Crl.Rev.Petition No.420/18
-:3:-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
THURSDAY ,THE 08TH DAY OF NOVEMBER 2018/17TH KARTHIKA, 1940
Crl.Rev.Pet.No. 420 of 2018
AGAINST THE JUDGMENT IN CRA 206/2016 of ADDL.SESSIONS
COURT-I,MAVELIKKARA DATED 19-02-2018
MC 9/2014 of J.F.C.M.-I, CHENGANNUR DATED 03-09-2016
REVISION PETITIONERS/APPELLANTS/RESPONDENTS:
1 SREEKANTH K.
S/O.KESAVAN POTTI V.N., AGED 38 YEARS, ASWATHY
BHAVAN, PALLAVUR P.O., PALLASANA PANCHAYATH,
KUNISSERY VILLAGE, CHITTUR TALUK, PALAKKAD
DISTRICT, PIN-678688.
2 KESAVAN POTTI V.N.
AGED 68 YEARS, F/O.SREEKANTH K., ASWATHY
BHAVAN, PALLAVUR P.O., PALLASANA PANCHAYATH,
KUNISSERY VILLAGE, CHITTUR TALUK, PALAKKAD
DISTRICT, PIN-678688.
3 KUSUMMA KUMARI ANTHERJANAM
M/O.SREEKANTH K., AGED 58 YEARS, ASWATHY
BHAVAN, PALLAVUR P.O., PALLASANA PANCHAYATH,
KUNISSERY VILLAGE, CHITTUR TALUK, PALAKKAD
DISTRICT, PIN-678688.
BY ADVS.
DR.SEBASTIAN CHAMPAPPILLY
DR.ABRAHAM P.MEACHINKARA
SRI.GEORGE CLEETUS
SRI.P.A.SAINUDEEN
Mat.Appeal Nos.1232, 1362/17
& Crl.Rev.Petition No.420/18
-:4:-
RESPONDENTS/RESPONDENTS/PETITIONERS:
1 DHANYA N. NAMPOOTHIRI
AGED 29 YEARS, D/O.P.S.NARAYANAN NAMPOOTHIRI,
PERIYAMANA ILLOM, MANNAR P.O., CHENGANNUR
TALUK, KORATTISSERY VILLAGE, PAVUKKARA MURI,
ALAPPUZHA DISTRICT, PIN-689622.
2 ADWAITH S.
AGED 6 YEARS, REPRESENTED BY HIS MOTHER, DHANYA
N. NAMPOOTHIRI,AGED 29 YEARS, D/O.P.S.NARAYANAN
NAMPOOTHIRI, PERIYAMANA ILLOM, MANNAR P.O.,
CHENGANNUR TALUK, KORATTISSERY VILLAGE,
PAVUKKARA MURI, ALAPPUZHA DISTRICT, PIN-689622.
3 STATE OF KERALA
REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH
COURT OF KERALA.
BY ADV.PUBLIC PROSECUTOR SRI.NICHOLAS JOSEPH
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY
HEARD ON 27.7.2018, ALONG WITH MAT.APPEAL NOS.1232 &
1362/17 THE COURT ON 8.11.2018 PASSED THE FOLLOWING:
Mat.Appeal Nos.1232, 1362/17
& Crl.Rev.Petition No.420/18
-:5:-
JUDGMENT
Shaffique, J.
Mat.Appeal Nos.1232/17 and 1362/17 have been filed by the appellant/wife challenging order in OP (G&W) No.216/2014 and OP (HMA) No.613/2013. Both the Original Petitions were filed by the respondent/husband. OP (HMA) No.613/13 has been filed seeking divorce u/s 13(1) of the Hindu Marriage Act. The averments in common are as under:-
2. Parties are described as shown in OP(HMA) No. 613/13 unless otherwise stated.
3. Petitioner married the respondent on 23/4/2009 as per Hindu religious rites and custom. He being employed as a teacher in a Higher Secondary School, they were living together in a rented house at Bobikanam. Respondent expressed her desire to join for B.Ed Course. Since the course was near to the matrimonial home, she remained there to attend the college.
Petitioner contended that on account of some issues which had arisen in the family of the respondent/wife, she was under severe tension and she started showing behavioural disorder. She accused her father of being responsible for the death of her Mat.Appeal Nos.1232, 1362/17 & Crl.Rev.Petition No.420/18 -:6:- mother and showed homicidal and suicidal tendencies. Respondent was always quarreling with her father who was not willing to part with any money demanded by her. In turn, her father threatened the petitioner's parents with dire consequences. At one stage it became impossible for her to be permitted to remain in the matrimonial home and she was taken to the paternal home and she remained with her father for about one month. There was mediation and intervention at the instance of relatives and finally on 8/5/2010, an agreement was executed wherein it was stated that petitioner's parents should not be further troubled. Thereafter she was taken to the matrimonial home. There arose a vacancy in a school in Kollam district for which payment had to be made. Respondent demanded `5 lakhs from her father. He could raise `4,30,000/- which was handed over to her on 11/7/2010. Subsequently her father sold a property at Alappuzha and she demanded the sale proceeds. Her father told her that she had only 1/6th right in the property. Taken aback, she quarrelled with her father. Again, relatives interfered and her father offered to give her a share. Another agreement was executed on 6/5/2011 by which respondent acknowledged receipt Mat.Appeal Nos.1232, 1362/17 & Crl.Rev.Petition No.420/18 -:7:- of money and relinquished her future claims. In the meantime, she delivered a male child on 14/8/2011. According to the petitioner, respondent's father did not meet any of the expenses. After delivery, she started showing symptoms of mental disorder. It reached a stage where petitioner could not live with her. She was taken to a Psychologist for consultation. It became evident that she was suffering from mental disorder. But she did not continue the counselling as suggested by the Psychologist. This situation caused tension between the respondent's father and the petitioner's parents. Though she required treatment, her father was not inclined to accept the same. He contends that he was subjected to physical and mental torture by the respondent. She will make a big issue and make quarrel with any opinion expressed by him. After delivery, she even refused to have sexual intercourse with him and every effort taken by him to give proper treatment was thwarted by her father. He alleged that the marital life had become irretrievably broken and that further cohabitation with the respondent would endanger his life. Hence, he sought for a decree of divorce on the ground of cruelty.
4. Petition has been filed stating that the respondent Mat.Appeal Nos.1232, 1362/17 & Crl.Rev.Petition No.420/18 -:8:- being not in a capacity to understand the true nature of the case and is insane, is to be represented by her father and guardian.
5. Respondent denied the allegations raised against her. She contended that though she was very cordial to petitioner's parents, his mother prevented her from mingling with the petitioner when he came on holidays. Even his father had misbehaved to her. According to her, petitioner always instructed her to obtain her share from the family property including the DCRG of her deceased mother. Her father had given `34,30,000/- to the petitioner and he is in possession of her gold ornaments weighing 64 sovereigns. While she was pregnant, petitioner had brutally manhandled her and she was forced to run away from the matrimonial home even during night. She stated that on 11/7/2010, petitioner received `4,30,000/- from respondent's father on the assurance that he will arrange a job at Changankulangara school for the respondent. She was also taken to various hospitals with an ulterior motive to create a medical certificate to indicate that she is a psychiatric patient. According to her, she was not even permitted to share bed with the petitioner by his parents. She denied having any mental disorder Mat.Appeal Nos.1232, 1362/17 & Crl.Rev.Petition No.420/18 -:9:- and also the allegation of cruelty.
6. OP No.216/14 has been filed by the petitioner seeking custody of the minor child. Very same allegations had been raised by him and according to him, she was having mental disorder and therefore, it is not good for the welfare of the child to remain with the mother. Hence, he sought for permanent custody of the minor child. She in her objection had denied the allegations. According to her, the minor child requires the love and affection of the mother and she is ready and willing to look after the child. She also denied having any mental disorder.
7. Before the Family Court, PW1 to PW9 were examined on the side of the petitioner and respondent was examined as RW1. The Family Court granted a decree for divorce and the permanent custody of the minor child was given to the father. Mother was permitted to have interim custody during first half of summer vacation and entire Onam and Christmas holidays. It is also observed that the mother should have custody of the child on all second Saturdays and second Sundays.
8. PW1 in his evidence allege that she was taken to a Psychiatrist of Jubilee Mission Medical College Hospital, Thrissur Mat.Appeal Nos.1232, 1362/17 & Crl.Rev.Petition No.420/18 -:10:- but she was not willing to continue the counselling as suggested. He also stated that he was subjected to mental and physical torture for about 4 years and further cohabitation will endanger his life.
9. PW2 is his mother who supported his version. According to her, her behaviour was rude and she used to quarrel with them without any reason. Though relatives interfered and attempts were made to correct her behavioural attitude, she and her father were very adamant. PW3, PW5 and PW7 are relatives of the petitioner who had intervened in the family dispute. They also in their evidence stated that she was suffering from mental illness which created problems in the matrimonial home.
10. PW4 is a Clinical Psychologist and PW6 is a Psychiatrist attached to Jubilee Mission Medical College Hospital Thrissur. PW4 has proved Ext.A11, the OP chart of the respondent. He deposed that he suspected mental illness. But A11 would disclose that he was undergoing counselling. PW6 is a psychiatrist who has examined her on 3/2/2014 as per the request of a Psychologist. As per Ext.A11 medical chart, she is suspected to have symptoms of schizophrenia.
Mat.Appeal Nos.1232, 1362/17 & Crl.Rev.Petition No.420/18 -:11:-
11. PW8 is the Professor and Head of Psychiatric Department, Pushpagiri Medical College Hospital, Thiruvalla. PW8 deposed that respondent was under observation for a period from 2/7/2014 to 7/7/2014 as per order of Court dated 20/6/2014. Ext. A9 is the interim report issued by him after observation of the parties. His opinion is that respondent was having immature personality traits leading to marital disharmony. It is also stated that he could not give final report as the parties did not continue counselling and physiotherapy sessions.
12. PW9 is the Psychiatrist attached to Nakkada Mission Hospital, Ramanchira, Thiruvalla. He proved Ext.A14 treatment chart. His evidence indicates that the respondent had undergone in-patient treatment on various occasions and that she was suffering from some mental illness. She is seen admitted periodically from 1/3/2017 to 11/3/2017, 8/4/2017 to 19/4/2017 and from 15/5/2017 to 19/5/2017. The symptoms mentioned in Ext.A14 were that, she was showing anger, making nuisance, beating others, destroying household articles, hearing noise, self talk, suspecting others, sleeplessness etc. PW9 did not agree with the suspicion of PW6 that she was having schizophrenia. Mat.Appeal Nos.1232, 1362/17 & Crl.Rev.Petition No.420/18 -:12:-
13. From the aforesaid evidence, it is rather clear that the respondent was having some mental problem. But, the question is whether it is a case in which divorce could be granted on account of such a problem. The OP has been filed claiming divorce u/s 13(1)(iii) of the Hindu Marriage Act, 1955, which reads as under:-
"13. Divorce (1) Any marriage solemnised, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party-
(iii) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent."
14. In order to grant divorce, the mental disorder should be of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent. Though the petitioner contends that it is difficult to live with her, on an overall consideration of the evidence of the expert Doctors, especially PW9, the cause of mental problem is said to be marital discord. PW9 is the Psychiatrist who has been practicing for the last 30 years. He deposed that she has tension and sleeplessness and she is disturbed and on account of the same, she gets angry. Mat.Appeal Nos.1232, 1362/17 & Crl.Rev.Petition No.420/18 -:13:- He further deposed that she has problems in being separated from her husband and she wants to live with him and when she cannot live with her husband, the symptoms occur. There is no family history and it is stated that her problems had arisen during the last three years and the problem occurs when she is residing with her in-laws. He also stated that she was under medication. In his further chief examination, he stated that the primary cause is the family problems. Later on it was stated that at this stage he cannot say that she was having any problem. He was declared hostile and cross examined.
15. From the aforesaid evidence, it may not be possible to arrive at a finding that she was suffering from an incurable mental illness or mental disorder of any kind by which divorce can be granted. But as rightly pointed out by the Family Court, and as evident from the materials placed on record, it is rather clear that she had some problems though it cannot be stated to be a mental disorder of such a nature by which divorce could be granted.
16. Then the question is whether it would be possible for her husband to adjust her behavioural pattern. The Family Court Mat.Appeal Nos.1232, 1362/17 & Crl.Rev.Petition No.420/18 -:14:- observed that the medical evidence coupled with the deposition of the witnesses rather proves that the matrimonial life has become irretrievably broken and that the petitioner was subjected to mental cruelty and insisting on continuance of the marital life may further aggravate the situation. Under such circumstances, when a divorce is granted invoking S.13(1)(ia) of the Hindu Marriage Act, we do not think it necessary to interfere with the said judgment,
17. Next question to be considered is with reference to the custody of the minor child. During the course of hearing, we had the occasion to interact with the respondent/wife and the minor child. The child is only 7 years old and we find that he has a strong attachment to his mother. She is also very much attached to the child and is taking good care of the child. As already observed, she may have problems on account of marital discord and she had undergone psychiatric treatment as well. But, she is residing with her father and the child is also admitted to a school. While we interacted with the respondent/wife, she was not agreeable for a divorce and she wanted to continue the marital relationship. If her son is taken away from her custody, probably Mat.Appeal Nos.1232, 1362/17 & Crl.Rev.Petition No.420/18 -:15:- her minor problems may aggravate and her life may end in a psychiatric asylum. She has already lost her husband as he had expressed his intention not to live with her and we have already confirmed the order of divorce. But taking away the minor child from her custody, according to us, will affect the child and the mother. The Family Court had also interacted with the minor child who of course stated that he would like to be in the company of both father and mother. But the finding of the Court below that she might not be in a position to look after the minor child properly and her presence will adversely affect the future of the child does not appear to be correct. So far, the child was with the mother. There is no complaint that the child had been affected in any manner. There is no such case for the petitioner as well. According to him, the welfare of the child will be well taken care of if the child is given in his custody and his parents will look after him.
18. There is no dispute about the fact that a minor child requires the care and protection of father as well as mother. Even assuming for the sake of argument that the mother is having some mental problem, there is no evidence to prove that Mat.Appeal Nos.1232, 1362/17 & Crl.Rev.Petition No.420/18 -:16:- she suffers from any unsoundness of mind or of any mental illness that cannot be controlled. May be, at times, she had some symptoms, which is not normal. But, even according to the Doctor, it had arisen on account of marital discord. Now what we find is that she has a very peaceful mind and if at all there are any problems, it can be addressed at that point of time.
19. In the light of the aforesaid circumstances, we are of the view that welfare of the child will be served by giving custody of the minor child to his mother itself. But, he also requires his father's company frequently. Accordingly, we are of the view that the judgment in OP No.216/14 requires modification.
20. As far as Crl.Rev.Petition No. 420/2018 is concerned, it is filed against judgment passed in Crl.Appeal No.206/16 arising from MC No.9/14 of the Judicial First Class Court, Chengannur. The issue relates to maintenance to be paid to the wife and minor child. She claims maintenance on the very same factual situation. She claimed an amount of `25 lakhs as compensation for the mental and emotional distress on account of domestic violence. Respondent denied the allegation.
21. The learned Magistrate directed payment of `5,000/- Mat.Appeal Nos.1232, 1362/17 & Crl.Rev.Petition No.420/18 -:17:- each per month to the petitioner/wife and child w.e.f. 1/6/2013. Challenging the aforesaid order, this appeal was preferred. The Family Court found that there is no reason why the court should interfere in the matter.
22. Having heard the learned counsel on either side and having perused the records, we do not think it necessary to interfere with the said order. Apparently, the revision petitioner is employed and is working as a teacher. He is directed to pay only `5,000/- each as maintenance for the wife and child. The amount directed to be paid is sufficient enough to take care of the interest of the respondents. Under such circumstances, there is no reason to interfere with the said judgment.
23. In the result, Mat.Appeal No.1362/17 and Crl.Revision Petition No.420/18 are dismissed.
Mat.Appeal No.1232/17 is allowed and the judgment in OP(G&W) No.216/14 is set aside and shall stand modified as under:-
(i) The permanent custody of the minor child Adwaith.S shall remain with his mother.
(ii) The petitioner/father shall have interim custody of the Mat.Appeal Nos.1232, 1362/17 & Crl.Rev.Petition No.420/18 -:18:- minor child on all Saturdays and Sundays, on the first half of summer vacation and the entire Onam and Christmas holidays.
(iii) The child shall be taken custody from the residence of the respondent/mother between 10 am and 11 am and return back on or before 5 pm on the respective days.
(iv) The petitioner is also permitted to visit the child in the school on any day with prior intimation to the respondent.
Sd/-
A.M.SHAFFIQUE JUDGE Sd/-
P.SOMARAJAN
Rp //True Copy// JUDGE
PS to Judge
Mat.Appeal Nos.1232, 1362/17
& Crl.Rev.Petition No.420/18
-:19:-
APPENDIX IN CRL.REV.PETITION NO.420/2018 REVISION PETITIONER'S EXHIBITS ANNEXURE 1: A TRUE COPY OF WP(CRL) NO.111/2013 FILED ON 6.3.2013 FILED BY THE 1ST REVISION PETITIONER BEFORE THE HON'BLE HIGH COURT OF KERALA ANNEXURE 2: A TRUE COPY OF THE JUDGMENT AND THE REPORT ANNEXED THERTO DATED 11.3.2013 IN WP(CRL) NO.111 OF 2013. ANNEXURE 3: A TRUE COPY OF THE INTERIM ORDER DATED 4.12.2013 IN WP(CRL) NO.539/2013 ANNEXURE 4: A TRUE COPY OF JUDGMENT DATED 6.3.2014 IN WP(CRL) NO.539 OF 2013.
ANNEXURE 5: A TRUE COPY OF MEDICAL RECORDS PRODUCED AND MARKED AS EXHIBIT A-14 BEFORE THE FAMILY COURT AT MAVELIKKARA IN THE JOINT TRIAL CONDUCTED IN OP(HMA) NO.613/2013 AND OP(G&W) NO.216 OF 2014.
ANNEXURE 6: A TRUE COPY OF THE COMMON JUDGMENT IN OP (HMA) NO.613/2013 AND OP(G&W) NO.216 OF 2014 DATED 20.9.2017. ANNEXURE 7: A TRUE COPY OF THE ORDER DATED 3.9.2016 IN MC NO.9 OF 2014 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT- I, CHENGANNUR.
Rp //True Copy// PS to Judge