Kerala High Court
Baiju Varghese vs Suni Thomas on 6 December, 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 06TH DAY OF DECEMBER 2018/15TH AGRAHAYANA,
1940
RP.No. 1113 of 2017 IN Mat.Appeal. 2/2011
AGAINST THE JUDGMENT IN Mat.Appeal 2/2011 of HIGH COURT OF
KERALA DATED 13-06-2017
REVIEW PETITIONER/PETITIONER:
BAIJU VARGHESE
AGED 48 YEARS, S/O.LATE V.J VARGHESE,
VILANGATTIL HOUSE, VENNALA P.O, CHALIKKAVATTOM,
ERNAKULAM DISTRICT
BY ADV. SRI.BABU KARUKAPADATH
RESPONDENT/RESPONDENT:
SUNI THOMAS,
AGED 42 YEARS, D/O. P.M THOMAS,PULAYAN PARAMBIL,
ALANAD P.O,ANTHINADU, PALA, KOTTAYAM 686 651
THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON
13.11.2018, ALONG WITH RP.30/2018, RP.1147/2017, THE COURT
ON 6.12.2018 PASSED THE FOLLOWING:
RP Nos.1113/17, 1147/17
& 30/2018
-: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 06TH DAY OF DECEMBER 2018/15TH AGRAHAYANA,
1940
RP.No. 30 of 2018 IN Mat.Appeal. 917/2010
AGAINST THE JUDGMENT IN Mat.Appeal 917/2010 of HIGH COURT
OF KERALA DATED 13-06-2017
REVIEW PETITIONER/PETITIONER:
BAIJU VARGHESE
AGED 48 YEARS, S/O. LATE V. J. VARGHESE,
VILANGATTIL HOUSE, VENNALA P.O.,
CHALIKKAVATTOM, ERNAKULAM DISTRICT.
BY ADV. SRI.BABU KARUKAPADATH
RESPONDENT/RESPONDENT:
SUNI THOMAS
AGED 42 YEARS, D/O. P. M. THOMAS, PULAYAN
PARAMBIL, ALANAD P.O., ANTHINADU, PALA,
KOTTAYAM-686575.
THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON
13.11.2018, ALONG WITH RP.1113/2017, RP.1147/2017, THE
COURT ON 6.12.2018 PASSED THE FOLLOWING:
RP Nos.1113/17, 1147/17
& 30/2018
-: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 06TH DAY OF DECEMBER 2018/15TH AGRAHAYANA,
1940
RP.No. 1147 of 2017 IN Mat.Appeal. 1028/2010
AGAINST THE JUDGMENT IN Mat.Appeal 1028/2010 of HIGH COURT
OF KERALA DATED 13-06-2017
REVIEW PETITIONER/PETITIONERS:
1 BAIJU VARGHESE
AGED 50 YEARS, S/O.LATE V.J.VARGHESE,
VILANGATTIL HOUSE, VENNALA P.O.,
CHALIKKAVATTOM, ERNAKULAM DISTRICT.
2 BIJU VARGHESE
AGED 45 YEARS, S/O.LATE
V.J.VARGHESE,VILANGATTIL HOUSE, VENNALA
P.O.,CHALIKKAVATTOM, ERNAKULAM DISTRICT.
3 BENCY VARGHESE
AGED 30 YEARS, D/O.LATE
V.J.VARGHESE,VILANGATTIL HOUSE, VENNALA
P.O.,CHALIKKAVATTOM, ERNAKULAM DISTRICT.
BY ADVS.
SRI.BABU KARUKAPADATH
SMT.AMRIN FATHIMA
SMT.M.A.VAHEEDA BABU
SRI.K.M.FAISAL (KALAMASSERY)
SRI.MITHUN BABY JOHN
SRI.P.U.VINOD KUMAR
RP Nos.1113/17, 1147/17
& 30/2018
-:4:-
RESPONDENT/RESPONDENT:
SUNI THOMAS
AGED 42 YEARS, D/O.P.M.THOMAS, PULAYAN
PARAMBIL, ALANAD P.O., ANTHINADU, PALA,
KOTTAYAM-686651.
THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON
13.11.2018 ALONG WITH RP.30/2018, RP.1113/2017, THE COURT
ON 6.12.2018 PASSED THE FOLLOWING:
RP Nos.1113/17, 1147/17
& 30/2018
-:5:-
ORDER
Shaffique, J.
These review petitions have been filed against a common order dated 13/6/2017 in Mat.Appeal Nos.2/11, 1028/10 and 917/10 respectively.
2. Mat.Appeal No.2/11 arises from the judgment in OP No.637/09 filed by the review petitioner seeking dissolution of marriage on the ground of cruelty. The OP was dismissed by the Family Court. By a common judgment dated 13/6/2017, the appeal also was dismissed.
3. Mat.Appeal No.1028/10 arises out of the judgment in OP No.268/10 by which the Family Court allowed a claim made by the respondent/wife for realisation of money and gold ornaments. Appeal filed by the review petitioner was dismissed by common judgment dated 13/6/2017.
4. Mat.Appeal No.917/10 has been filed against the order in OP No.135/2008 filed by the review petitioner seeking custody of the minor child. OP filed by him was dismissed by the Family Court against which the appeal was preferred and by a common RP Nos.1113/17, 1147/17 & 30/2018 -:6:- judgment dated 13/6/2017, the findings of the Court below was confirmed.
5. Review petitions were filed inter alia contending that certain issues which had been specifically raised by the petitioner in his Original Petition and also the grounds of appeal had not been considered by this Court while delivering the common judgment dated 13/6/2017.
6. As far as RP No.1113/17 which is filed in Mat.Appeal No.2/11 is concerned, the issue related to rejection of a petition for divorce. The contention of the review petitioner is that certain grounds urged by him have not been considered by this Court. One such contention urged is that the finding of this Court that the petitioner was suffering from paranoid psychosis and he was treated by Dr.Dinesh is without any basis as there is no evidence to substantiate the said contention. The second ground urged was that, an instance of cruelty which he had narrated in the petition, which occurred on 20/5/2007 had not been considered by the appellate Court while deciding the appeal. His contention was that on 20/5/2007 while he was sleeping, respondent pressed a pillow on his face in order to suffocate him. Subsequently, on RP Nos.1113/17, 1147/17 & 30/2018 -:7:- 10/6/2007, when he attempted to have sexual relationship with her, she attempted to stab him with a screw driver. Further, in MC No.43/2007, while she was examined as PW1, she made an accusation against him alleging that he demanded to have sexual intercourse with her mother and younger sister. Such allegation, according to him, is scandalous and amounts to mental cruelty. There was no such incident. That apart, these facts have not been specifically denied by the respondent during her evidence or in her pleading. This Court while deciding the appeal also did not consider the said issues and hence the judgment is sought to be reviewed.
7. On a perusal of the judgment of this Court, it is rather clear that the respondent had a specific case that the petitioner was suffering from mental illness. The trial Court, after considering the evidence found that evidence of the review petitioner and his witnesses, who are his friends, was not sufficient to prove the cruelty alleged in the petition. However, it was found that evidence of the respondent/wife, her father RW2 and RW3, her cousin could prove that the husband was behaving in a cruel manner towards his wife. Family Court also took note of RP Nos.1113/17, 1147/17 & 30/2018 -:8:- the criminal cases that had been registered on the complaint filed by the wife against her husband and his family members. She had also filed a domestic violence case against her husband. It was observed that he was undergoing treatment for mental depression. Regarding the allegation that wife has made false statements against him alleging that he demanded sexual intercourse with her mother and younger sister, in paragraph 27 of the judgment, Family Court observed that though there is no specific denial of the said allegations, all the allegations had been denied in the written statement. Being a matrimonial issue, the entire issue has to be read as a whole. This Court while considering the appeal having taken note of the respective contentions of the parties and on appreciation of evidence found that the contention that the respondent was behaving in a cruel manner against him stands disproved as the evidence of PW2 and PW3 cannot be accepted. Materials were available before the Court as Exts.B6 and B7 to arrive at a finding that she had suffered domestic violence at the hands of the petitioner. The evidence of Dr.Dinesh who was examined before the Magistrate Court in MC No.43/2007 was produced as Ext.B6. In fact, PW1 RP Nos.1113/17, 1147/17 & 30/2018 -:9:- had admitted that he was treated by Dr.Dinesh for Paranoid Psychosis. Perusal of the impugned judgment would indicate that the contention regarding his allegation that she had made a false accusation against him was not considered. It is also true that the specific instance of cruelty pointed out on 20/5/2007 and on 10/6/2007 also was not specifically dealt with by this Court. With reference to the contention that wife had made a false allegation against him, it is rather clear that the said contention is not met in the judgment. According to the revision petitioner, he had produced the deposition in MC No. 43/2007 which would prove the said fact. She also did not deny the same when examined as RW1.
8. Learned counsel for the review petitioners submits that though these points had been urged, the same has not been considered. Taking into consideration the fact that a few contentions which had been mentioned in the memorandum of appeal are not specifically considered, it is necessary in the interest of justice that an opportunity is to be granted to the review petitioner for a further hearing with reference to the grounds specifically urged in the review petition. RP Nos.1113/17, 1147/17 & 30/2018 -:10:-
9. In RP No.1147/147, which is with reference to the claim for return of money and gold ornaments, the contention urged is that the evidence has not been properly appreciated by this Court. Perusal of the judgment would show that the said issues had been considered in paragraphs 24 to 27 of the judgment. No specific instance had been pointed out to indicate that any of the grounds urged has not been considered. There is no error apparent on the face of record as well. Therefore, the judgment in Mat.Appeal No.1028/2010 does not deserve to be reviewed. Same is the situation as far as RP No.30/2018 in Mat.Appeal No. 917/10. Apparently, the child is suffering from cerebral palsy and custody has been given to the mother with visitation rights to the father. This issue has been considered by this Court in paragraphs 32 and 33 and certain modifications have been suggested to the direction issued by the Family Court as well. We do not think that as far as the said judgment is also concerned, nothing calls for any review.
10. In the light of the aforesaid discussion, RP No.1147/2017 and RP No.30/18 are dismissed.
RP No.1113/2017 is allowed. The judgment dated 13/6/2017 RP Nos.1113/17, 1147/17 & 30/2018 -:11:- in Mat.Appeal No.2/2011 shall stand recalled and the said appeal requires to be heard afresh. Post the appeal for hearing.
Sd/-
A.M.SHAFFIQUE JUDGE Sd/-
P.SOMARAJAN
Rp //True copy// JUDGE
PS to Judge
RP Nos.1113/17, 1147/17
& 30/2018
-:12:-
APPENDIX IN RP NO.1113/2017 in MAT.APPEAL NO.2/2011 REVIEW PETITIONER'S EXHIBITS ANNEXURE A1: A TRUE COPY OF THE CERTIFICATE DATED 13/10/2017 ISSUED BY DR.C.K.BALAN TO THE PETITIONER.
ANNEXURE A2: A CERTIFIED COPY OF THE COMPLETE DEPOSITION OF DR.DINESH, WHO WAS EXAMINED AS PW3 IN MC NO.43/2007 BEFORE THE HON'BLE JUDICIAL FIRST CLASS MAGISTRATE COURT, ERNAKULAM.
RESPONDENT'S EXHIBITS: NIL.
RP Nos.1113/17, 1147/17
& 30/2018
-:13:-
APPENDIX IN RP NO.1147/2017 IN MAT.APPEAL NO.1028/2010 REVIEW PETITIONER'S EXHIBITS ANNEXURE A1: A TRUE COPY OF THE CERTIFICATE DATED 13/10/2017 ISSUED BY DR.C.K.BALAN TO THE PETITIONER.
RESPONDENT'S EXHIBITS: NIL.
RP Nos.1113/17, 1147/17
& 30/2018
-:14:-
APPENDIX IN RP NO.30/2018 IN MAT.APPEAL NO.917/2010 REVIEW PETITIONER'S EXHIBITS ANNEXURE A1: A TRUE COPY OF THE CERTIFICATE DATED 13/10/2017 ISSUED BY DR.C.K.BALAN TO THE PETITIONER.
RESPONDENT'S EXHIBITS: NIL.
//True copy//
PS to Judge