IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE &

THE HONOURABLE MRS. JUSTICE SOPHY THOMAS THURSDAY, THE 7^TH DAY OF APRIL 2022 / 17TH CHAITHRA, 1944 MAT.APPEAL NO. 1130 OF 2015 AGAINST THE ORDER/JUDGMENT IN OP 314/2013 OF FAMILY COURT, PALA APPELLANT/ 1 ^st RESPONDENT:

ALPHONSA @ DAISY, W/O.SUNNY, PARAYAKKUNNEL HOUSE, CHEMPAKKAPPARA, IDUKKI, NOW WORKING AT SENIOR DPO, O/MAS, NGO ANNEXE, CHENNAI DIVISION, SOUTHERN RAILWAY, PORT TOWN, CHENNAI.

BY ADVS.

SRI.P.VISWANATHAN (SR.)

SRI.AJITH VISWANATHAN SRI.P.T.GIRIJAN RESPONDENTS:

1 APREM @ SUNNY, S/O.THOMAS, PUTHUPPARAMBIL HOUSE, THAMAREKKUNNU, CHIRAKADAVU P.O., KANJIRAPPALLY, NOW WORKING AS OS, SR.DIVISIONAL PERSONNEL OFFICE, 3RD FLOOR, ANNEX BUILDING, SOUTHERN RAILWAY, PARK TOWN, CHENNAI-600

025.

2 AJAY PARASAD, LOKO PILOT, S/O.D.VISWANATHAN, NO.6/2, MANI RATINAM STREET, AYYAOABOO, NAIDU COLONY, ANANCHI KARAI, CHENNAI-600 025.

Addl.R3 DON SUNNY, AGED 27, S/O SUNNY THOMAS, VILLA NO.3, SKYLINE CRYSTAL WATERS, MASTER'S ROAD, VADUTHALA, KOCHI 682 023 Addl.R4 BEN SUNNY, AGED 18, DAISY SUNNY, VILLA NO.3, SKYLINE CRYSTAL WATERS, MASTER'S ROAD, VADUTHALA, KOCHI 682 023.

*Addl.R3 AND R4 ARE IMPLEADED AS PER ORDER DATED

7.04.2022 IN I.A. NO.1 OF 2022 IN MJC NO.422 OF 2018 IN MAT. APPEAL NO.1130 OF 2015.

BY ADV SRI.P.K.RAVISANKAR THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 07.04.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

J U D G M E N T

A.Muhamed Mustaque, J This appeal was filed by the wife challenging the divorce granted on a petition filed by her husband on the ground of cruelty. Pending appeal, husband passed away. His children are brought on record as legal heirs as additional respondents three and four. The point that arises for consideration is whether appeal is maintainable consequent upon the death of one of the spouse to the marriage and secondly, if the appeal is maintainable, whether the decree of divorce granted has to be interfered or not.

2. The appeal remedy is a statutory remedy, though divorce is on personal ground available to one of the spouse. The death of the spouse will not forfeit the right of the other spouse to challenge the appeal in accordance with law. Otherwise, the very right of the aggrieved, to file an appeal will be lost consequent to the death of the parties. We are of the view that the appeal is maintainable even though the husband who moved the petition for divorce is no more.

3. Though the husband had projected adultery as well as cruelty as a ground for divorce, the Family Court did not grant divorce on the ground of adultery. The Family Court found mental cruelty on the side of the appellant-wife to grant divorce to the husband. The mental cruelty portrayed before the Family Court was the frequent calls made by the wife to the second respondent. According to the husband the wife was having illicit relationship with the second respondent. Both the husband and wife were the employees of Railway. Except the calls generated through the phone of the wife, no other reasons have been pointed out to prove mental cruelty. In fact, the Family Court relied on Ext.A2 call records to show that there were calls made by the wife to the second respondent the alleged paramour during midnight. 16 calls were noted on 29.05.2011 and also on some other days.

4. According to the wife, on account of the cruelty meted out to her from her husband, she called the second respondent, being a family friend, and she had no intention other than to seek his assistance to sort out her family problem. No doubt, such calls which are not explained may give room for suspicion, but not necessarily every such calls made in midnight, to be treated as a call fortifying illicit relationship. In the absence of any other evidence, we are not able to accept or endorse the finding of cruelty rendered by the Family Court. Absolutely, no other awkward conduct of the appellant had been pointed out or called in question by the husband. In such cir