Full Judgment
Mat.Appeal No. 1057 of 2016 & 36 of 2017 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE THE ACTING CHIEF JUSTICE MR. A.MUHAMED MUSTAQUE & THE HONOURABLE MRS. JUSTICE SOPHY THOMAS TUESDAY, THE 6TH DAY OF AUGUST 2024 / 15TH SRAVANA, 1946 MAT.APPEAL NO. 36 OF 2017 AGAINST THE ORDER/JUDGMENT DATED 30.09.2016 IN OP NO.452 OF 2014 OF FAMILY COURT,ERNAKULAM APPELLANT/PETITIONER: DR.THOMAS AGED 48 YEARS, S/O.P.T.OUSEPH,PATHIPARAMBAN HOUSE, KORATTY,MUKUNDAPURAM TALUK, MURINGOOR P.O.,PIN-680309, CHALAKUDY, THRISSUR DISTRICT(NOW RESIDING AT 12B, TRINITY CROWN,TRINITY FLATS, EDAPPALLY PO, KOCHI-682 024. BY DR.THOMAS(Party-In-Person) RESPONDENT/RESPONDENT: MRS.NADINE AGED 38 YEARS, W/O.THOMAS, RESIDING AT 6B,GOLDEN RESIDENCY, S.A.ROAD, BEHIND ICICI BANK,KADAVANTHRA PO, KOCHI -680 020.
BY ADV M.P.RAMNATH THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 25.07.2024, ALONG WITH Mat.Appeal.1057/2016, THE COURT ON 06.08.2024 DELIVERED THE FOLLOWING: Mat.Appeal No. 1057 of 2016 & 36 of 2017 2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE THE ACTING CHIEF JUSTICE MR. A.MUHAMED MUSTAQUE & THE HONOURABLE MRS. JUSTICE SOPHY THOMAS TUESDAY, THE 6TH DAY OF AUGUST 2024 / 15TH SRAVANA, 1946 MAT.APPEAL NO. 1057 OF 2016 AGAINST THE ORDER/JUDGMENT DATED 30.09.2016 IN OP NO.2354 OF 2013 OF FAMILY COURT,ERNAKULAM APPELLANT/PETITIONER IN OP No.2354/2013: NADINE AGED 37 YEARS FROM 12-B TRINITY CROWN,TRINITY FLATS,EDAPPALLY.P.O,COCHIN,NOW RESIDING AT FLAT NO.6B,GOLDEN RESIDENCY,S.A.ROAD,BEHIND ICICI BANK,KADAVANTHRA,KOCHI-682020. BY ADVS. SRI.M.P.RAMNATH SRI.BEPIN PAUL SRI.K.V.JOSEPH SMT.B.J.MEYFLOWER SRI.P.RAJESH KOTTAKKAL SMT.SIKHA S.NAIR SRI.SHALU VARGHESE SMT.UMA R.KAMATH SEI.M.VARGHESE VARGHESE G.SREEKUMAR (CHELUR) RESPONDENT/RESPONDENT IN OP No.2354/2013: DR THOMAS, AGED 48 YEARS, S/O.P.T.OUSEPH,PATHIPARAMB HOUSE, KORATTY.P.O,MUKUNDAPURAM TALUK,PIN-680309. BY DR THOMAS(Party-In-Person) THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 25.07.2024 ALONG WITH Mat.Appeal.36/2017, THE COURT ON 06.08.2024 DELIVERED THE FOLLOWING: Mat.Appeal No. 1057 of 2016 & 36 of 2017 3
JUDGMENT
Sophy Thomas, J.
These appeals are re-considered on remand, as per the direction of the Apex Court in Civil Appeal No(s) 1144-1147 of 2023 arising from SLP (C) Nos.17311-17314/2022, and Civil Appeal No(s) 1150-1158 of 2023 arising from SLP (C) No(s).21736-21744/2022.
2. Matrimonial disputes were pending between Sri.Thomas
and his wife Nadine since 2013. The wife filed OP for divorce and the husband filed OPs for restitution of conjugal rights as well as for custody of children. The Family Court dismissed the Divorce OP filed by the wife and allowed the OP for restitution filed by the husband. OP(G&W) filed by the husband for getting permanent custody of the children was also dismissed. Against those judgments the parties approached this Court by filing separate Mat.Appeals, and this Court allowed Mat.Appeal No.1057 of 2016 filed by the wife and dissolved their marriage on the ground of matrimonial cruelties. Mat.Appeal No.36 of 2017 filed by the husband, against dismissal of his OP (G&W) for getting permanent custody of the children was dismissed.
3. Both parties approached the Apex Court filing SLP, and on Mat.Appeal No. 1057 of 2016 & 36 of 2017 4 granting leave, Civil Appeals were numbered therefrom. As per
order dated 14.02.2023, the Apex Court, while upholding the
decree of divorce granted by this Court in Mat.Appeal No.1057 of 2016, was pleased to observe that, the claim of the wife for a lumpsum alimony of Rs.25 lakh for herself and Rs.50 lakh for her children, was not considered by the High Court and so, directed this Court to consider her claim under Section 37 of the Divorce Act, for a gross sum of money or such annual sum of money, for any term not exceeding her life, having regard to her fortune, the ability of the husband, and the conduct of the parties. There was a further direction that the visitation rights of the father also has to be decided by the High Court, without delegating that matter to the Family Court. In order to re-consider these aspects, the cases were remanded back to this Court and accordingly, it is re-considered.
4. Heard Mr.Thomas, the husband, who is appearing in person, and also learned counsel for the wife.
5. As far as the visitation rights of the children claimed by
Mr.Thomas-father is concerned, the elder child has become major. So, there is no scope for any orders for visitation with respect to that girl. The younger child Kareena is still a minor and now she is Mat.Appeal No. 1057 of 2016 & 36 of 2017 5 permanently residing with the father at his house at Chalakudy as
the custody of that child was handed over to him by the wife, after these cases were remanded back by the Apex Court. Mr.Thomas is taking care of all affairs of that child, including her stay, education etc. So, as far as the minor child is concerned, no orders are necessary as the father has taken permanent custody of the child. So as far as Mat.Appeal No.36 of 2017 is concerned, no further orders or directions are necessary.
6. Regarding the claim of the wife under Section 37 of the
Divorce Act, for permanent alimony, she is claiming Rs.25 lakh for herself and Rs.50 lakh for her children. The Apex Court observed that the husband Thomas is a Dental Surgeon and so, while granting divorce, this Court should have considered her claim for permanent alimony. The husband submitted before this Court that, earlier he was a Dental surgeon working abroad, and all his savings were sent to his wife through her mother, as his wife was not competent enough. According to him, his mother-in-law was taking care of his wife and children, while he was working abroad. All the money sent by him was misused and misappropriated by his mother-in-law and the properties purchased with his hard earned money, were disposed by his wife and her mother, without his Mat.Appeal No. 1057 of 2016 & 36 of 2017 6 knowledge, and now he is a bankrupt. He is not a Dental Surgeon any more and he has no income of his own. He has filed several cases against his wife and mother-in-law for recovery of his money and also the properties misappropriated by them.
7. Learned counsel for the wife would submit that, the
husband is financially sound and he is able and liable to pay permanent alimony to the wife. No evidence is forthcoming to show that, the husband is now working as a Dental Surgeon and he is having financial capacity to pay alimony to the wife. Considering the fact that he is a qualified Dental Surgeon able to practice his profession, he cannot escape from his liability to pay alimony to his wife.
8. The wife also is admitting that several cases are pending
between them before the Civil Court for recovery of money property etc. filed by the husband. According to him, his entire savings were misused and misappropriated by the wife and her mother, and so he had to file cases against them. In such circumstances, we are of the view that, a lumpsum amount of Rs.3 lakh can be ordered as permanent alimony to the wife.
9. Sri.Thomas shall deposit Rs.3 lakh as permanent alimony, in the Bank Account of Smt.Nadine within a period of six months, Mat.Appeal No. 1057 of 2016 & 36 of 2017 7 for which Smt.Nadine has to furnish her Bank Account details to Sri.Thomas within two weeks from today. In default of deposit Smt.Nadine can seek execution through Family Court, Ernakulam.
The appeals are finally disposed of accordingly, and no order
as to costs. Sd/- A.MUHAMED MUSTAQUE ACTING CHIEF JUSTICE Sd/- SOPHY THOMAS JUDGE smp Mat.Appeal No. 1057 of 2016 & 36 of 2017 8 APPENDIX OF MAT.APPEAL 1057/2016 APPELLANT’S ANNEXURES Annexure A1 THE COURT CERTIFIED COPY OF THE ENTIRE REPORT FROM THE FORENSIC SCIENCE LABORATORY, THIRUVANANTHAPURAM, WITH THE LETTER DT. 24.5.2019 OF THE DIRECTOR OF FORENSIC SCIENCE LABORATORY WITH THE ENCLOSURES THEREWITH CONTAINING THE REPORT OF THE SCIENTIFIC OFFICER, QUESTIONED DOCUMENTS AND STANDARD DOCUMENTS. Annexure A2 THE COURT CERTIFIED COPY OF THE FINAL REPORT, CHARGE SHEETING THE RESPONDENT FOR OFFENCES UNDER S. 197, 416, 468 AND 420 IN CRIME NO. 311/2019 OF THE KADAVANTHRA POLICE STATION AS RECEIVED FROM THE JUDICIAL FIRST CLASS MAGISTRATE COURT VIII, ERNAKULAM. Annexure A3 THE ORIGINAL OF THE LETTER DT. 07.10.2020 BEARING NO. KBC/1404/2020 ISSUED FROM THE BAR COUNCIL OF KERALA EXTRACTING THE MINUTES OF THE MEETING HELD ON 18.08.2019 AND ITEM NO. 112 IN THE MEETING AND THE RESOLUTION NO. 208/2019. Annexure A4 THE ORIGINAL OF THE LETTER DT. 18.10.2021 BEARING NO. KBC/RTI/1938/2021 ISSUED FROM THE BAR COUNCIL OF KERALA UNDER THE RIGHT TO INFORMATION ACT. Annexure A5 THE ONLINE PRINT OUT OF THE JUDGMENT DT 24.09.2020 IN CRL.M.C. NO. 2718/2020 OF THE HON'BLE HIGH COURT OF KERALA.
Annexure A6 THE COURT CERTIFIED COPY OF THE JUDGMENT
DT. 15.12.2017 IN W.P.C NO. 30010/2017 OF THE HON'BLE HIGH COURT OF KERALA.
Annexure A7 THE COURT CERTIFIED COPY OF THE JUDGMENT
DT. 04 01.2018 IN W.A. NO. 2689/2017 OF THE HON'BLE HIGH COURT OF KERALA. Mat.Appeal No. 1057 of 2016 & 36 of 2017 9 RESPONDENT ANNEXURES Annexure B1 A TRUE COPY OF THE ORDER OF CJM COURT, ERNAKULAM DATED 14.11.2016 FOR THE DISMISSAL OF THE M.C. NO. 1/2012 CASE AS NOT PRESSED. Annexure B2 TRUE COPY OF THE REPORT DATED 25.05.2017 OF DISTRICT REGISTRAR (GENERAL), ERNAKULAM IN CONNECTION WITH THE SALE OF 10 CENTS OF LAND. Annexure B3 TRUE COPY OF THE REPORT IN CONNECTION WITH SALE OF FLAT MADE BY THE DISTRICT REGISTRAR (AUDIT), ERNAKULAM DATED 19.08.2017. Annexure B4 TRUE COPY OF THE SALE AGREEMENT MADE BETWEEN THOMAS AND MR. K.T. JOHN DATED 11.05.2018. Annexure B5 TRUE COPY OF THE O.S.NO. 795/2018 FILED BY APPELLANTS MOTHER MRS. KOCHURANI VINCENT AGAINST IYPE JOSEPH. Annexure B6 TRUE COPY OF 161 STATEMENT OF APPELLANT'S MOTHER MRS. KOCHURANI VINCENT BEFORE KADAVANTRA POLICE STATION IN CRIME NO. Annexure B7 TRUE COPY OF THE ORDER OF HON'BLE CJM
COURT VIDE CMP No.2061/16 IN MC.1/12 DTD 29.09.2016 TO PRODUCE THE BANK STATEMENT OF APPELLANT'S MOTHER.
ANNEXURE B8 A CERTIFIED COPY OF THE PROOF AFFIDAVIT FILED BY THE APPELLANT BEFORE CJM COURT IN MC 1/2012 Annexure R1 THE TRUE COPY OF THE PETITION IN OP NO. FILED BY THE RESPONDENT IN THIS APPEAL AS PETITIONER , AS AVAILABLE WITH THE APPELLANT. Mat.Appeal No. 1057 of 2016 & 36 of 2017 10 Annexure R2 THE TRUE COPY OF THE OBJECTION/WRITTEN
STATEMENT FILED BY RESPONDENTS 1 & 2 IN OP NO. 1759/2012 BEFORE FAMILY COURT, ERNAKULAM, AS AVAILABLE WITH THE APPELLANT IN THIS APPEAL. Annexure R3 THE TRUE COPY OF THE PLAINT IN O.S. NO. ERNAKULAM AS OBTAINED BY THE APPELLANT FROM HER MOTHER. True Copy P.S to Judge smp