Back
2017 Supreme(Ker) 1454
IN THE HIGH COURT OF KERALA
A.M. Shaffique, Anu Sivaraman, JJ.
Kochurani Chacko – Appellant
Vs.
K.M. Chackochen – Respondent
Mat. Appeal. Nos. 832, 833 & 834 of 2009 and 77 of 2010
Decided On : 05-07-2017
For the Appellants :Sri. K.V. Sadananda Prabhu, Advocate
For the Respondent:Sri. Roy Chacko and Dr. P.L. John, Advocates
The main legal point established in the judgment is that the evidence of manhandling, the absence of cohabitation, and the irretrievable breakdown of the marriage justified the grant of divorce on the ground of cruelty. The judgment also clarified the entitlement of daughters for maintenance until marriage or gainful employment.
Headnote:
Divorce - Family Dispute - Divorce Act, 1869 - Section 10(ix) and (x) - Maintenance - Recovery of Possession - [Desertion, Cruelty, Maintenance, Recovery of Possession] - Section 10(ix) and (x) of the Divorce Act, 1869 - The court discussed the allegations of desertion and cruelty by the parties, the entitlement of maintenance for the children, and the recovery of possession of the property. The court found that the marriage between the parties was dissolved by a decree of divorce, allowed recovery of possession of the property, and granted maintenance for the children. The court also discussed the legal principles related to maintenance and entitlement of daughters for maintenance until marriage or gainful employment. The court's decision was influenced by the evidence of manhandling, the absence of cohabitation, and the irretrievable breakdown of the marriage.
Fact of the Case:
The case involved a dispute between a husband and wife regarding divorce, maintenance, and recovery of possession of property. The husband alleged desertion and cruelty by the wife, while the wife denied the allegations and sought maintenance for herself and the children. The court also considered the husband's claim for recovery of possession of certain properties.
Finding of the Court:
The court found that the marriage between the parties was dissolved by a decree of divorce, allowed recovery of possession of the property, and granted maintenance for the children. The court also found that the wife's manhandling of the husband amounted to cruelty, justifying the grant of divorce on the ground of cruelty.
Issues: The issues included the allegations of desertion and cruelty, entitlement of maintenance for the children, and the recovery of possession of the property.
Ratio Decidendi: The court held that the evidence of manhandling, the absence of cohabitation, and the irretrievable breakdown of the marriage justified the grant of divorce on the ground of cruelty. The court also emphasized the entitlement of daughters for maintenance until marriage or gainful employment.
Final Decision: The court granted a decree of divorce, allowed recovery of possession of the property, and granted maintenance for the children. The court dismissed the appeals related to the divorce, maintenance, and recovery of possession.
A.M. Shaffique, J.
These appeals are filed challenging the common judgment dated 22/7/2009 of the Family Court, Alappuzha in OP(Div) No. 5/2005 and OP Nos.947/2005 & 523/2006.
2. OP(Div) No.5/2005 for divorce is filed by the respondent in Mat. Appeal No.833/2009. OP(OS) No.523/2006 is filed by the appellant in Mat. Appeal No.832/2009. The said original petition was filed for past and future maintenance for herself and the minor children. OP No.947/2005 is filed by the respondent in Mat. Appeal No.834/2009 seeking for a declaration of title and recovery of possession of the petition schedule items.
3. Mat. Appeal No. 832/09 has been filed by the wife and children of Sri. K.M. Chackochen who is the respondent. Mat. Appeal Nos.833/09 and 834/09 are filed by the wife alone and Mat. Appeal No. 77/2010 has been filed by the husband Chackochen challenging the judgment in OP No.523/2006.Since the cases arise out of the common judgment, all the appeals are heard and decided together.
4. The short facts leading to the above case are as under:
Chackochen and Kochurani Chacko are the parties to marriage. The marriage was on 21/9/1987 as per Christian religious rites and ceremonies and three children were born to them in their wedlock. Husband by filing OP(Div) No.5/2005 contended that the wife had deserted him in the month of April, 1996 and was residing at her parental house. Further, while he was residing alone at his residence at Kalakettuparambu veedu in Thakazhi, his wife and her brothers trespassed into his house on 1/10/1999 and physically manhandled him. He was expelled from his house. Therefore, he alleges cruelty also and sought for a decree of divorce. He has also alleged that he was harassed by the respondent throughout the marital relationship.
5. The respondent wife in her objection denied the allegation of desertion and cruelty. According to her, petitioner was a bank employee and was in the habit of drinking and once he is drunk, he used to manhandle her without any reason. She and her children were driven out of the house. Though police complaints were filed, there was no improvement in the situation. On 1/10/99, she along with the children returned to the petitioner's house and had come to know that he was having illicit relationship with a lady by name Mary Jaquilin of Punnapra. When the respondent questioned him, she was assaulted.
6. In OP No.947/2005, petitioner/husband sought for a declaration that he is the absolute owner of petition schedule items 1 and 2 property which were acquired in his name as per two gift deeds and a partition deed. His contention is that the respondent/wife had trespassed into the said property and building and were in wrongful possession of the same. Hence, he sought for declaration of title and recovery of possession. In the above petition, respondent wife filed objection admitting title of the petitioner but according to her, it is her matrimonial home and she has a right to reside with her children. She also denied the allegation of trespass. It was also contended that though the petitioner filed a suit for injunction before the Munsiff's Court as OP No.409/2000 seeking an injunction to restrain the respondent from entering into the property, the said suit has been dismissed and therefore the present lis is not maintainable.
7. OP No.523/06 has been filed by the wife and children seeking past and future maintenance. Out of the three children, second petitioner attained majority on 17/5/2007. She also claimed return of 50 sovereigns of gold and an amount of Rs. 2 lakh given as patrimony. It is stated that the gold and money were entrusted to the respondent husband and he had appropriated the same. She alleges that the respondent husband deserted her in the month of April, 1996 and he has not been looking after their affairs and not maintaining them. The children are studying in local schools and therefore she has to incur substantial expenditure. Accordingly, she made a claim for past
