w w w . L a w y e r S e r v i c e s . i n



Thresiamma Manshoven v/s Manshoven Jacques Joseph


Company & Directors' Information:- JOSEPH AND CO PVT LTD [Active] CIN = U01211KL1954PTC000507

Company & Directors' Information:- E R JOSEPH & CO PVT LTD [Strike Off] CIN = U28920WB1955PTC022404

    Mat. Appeal. No. 212 of 2012 & 354 of 2016

    Decided On, 30 May 2019

    At, High Court of Kerala

    By, THE HONOURABLE MR. JUSTICE A.M. SHAFFIQUE & THE HONOURABLE MR. JUSTICE ASHOK MENON

    For the Appellant: Thomas Abraham, Merciamma Mathew, K.S. Haridas, V. Renjith Kumar, Aswin. P. John, Jacob Stephen, Advocates. For the Respondent: Philip J. Vettickattu, Siby Mathew, Vineeth Kuriakose, Advocates.



Judgment Text

Shaffique, J.

1. These two appeals arise out of matrimonial issues that had arisen between a couple who got married under the Special Marriage Act on 27/3/1985. Both the appeals are filed by the wife. Mat.Appeal No.212/2012 has been filed against the order in OP(S.M.A.) No.681/2007 of the Family Court, Thiruvananthapuram and Mat.Appeal No.354/2016 has been filed by her against the judgment dated 30/11/2015 in OP No.876/2012 of the Family Court, Thiruvananthapuram. Since both the appeals arise out of the issues relating to the same couple, those are heard and decided together.

2. OP(S.M.A.) No.681/2007 was filed by the husband seeking divorce. According to him, he is a Belgium citizen and he married the appellant, who is an Indian citizen by birth on 27/3/1985 as per the law prevailing at Belgium and in terms with the Civil Code of the Municipality of Alken, Judicial District Tongeren Province of Limburg. Though the marriage was solemnized in 1985, they were living together since 1982 at Thiruvananthapuram District at Kumarapuram and PTP Nagar. They have two sons born out of the wedlock. They remained at Belgium till August, 1987. Both of them shifted their residence to appellant's native place and started residing at Thiruvananthapuram from 18/8/1987 onwards. He had also wound up all his business in Belgium and all his belongings were shifted to Thiruvananthapuram. Since it was not possible to acquire properties in his name, he being a foreign citizen, he purchased 1 acre of land in Pangappara Village in the name of the appellant, constructed a residential building with modern facilities like swimming pool, tennis court etc., and the entire money for purchase of land and construction of building was expended by him. He also received orders for artwork and he started an Art Studio in the year 1988, undertaking decorative drawing jobs and exporting the drawings to Belgium clients. Since there was legal issue relating to registration of a company in his name, the company was registered in the name of his wife and the entire activity was undertaken in her name. The business grew fast and it expanded with more than 50 employees. All the sale proceeds received were deposited in the bank account maintained in the name of the appellant. Several other properties were also purchased at Thiruvananthapuram, Kottayam and Kollam by utilizing the income so received. According to the husband, the unexpected wealth that had come in the name of the appellant made her arrogant, dictatorial and discourteous. She started taking advice from outsiders and relatives instead of consulting him and he was completely ignored. He felt isolated, discriminated and overruled and he was unable to lead a normal life. It reached a stage where even for his personal purpose, he had to ask money from the respondent as the entire money was held by her in her account. Later, the petitioner/husband had come to know that the appellant was having an illegitimate girl child and he was in contact with her and the father of the child was the direct uncle of the respondent. Respondent used to visit her daughter regularly and father of the child was given major portion of the income from the said business. The fact that she had an illegitimate girl child and she was given in marriage was suppressed from the petitioner. Alleging that this caused cruelty and mental tension, he sought for divorce. Subsequently, he acquired P.I.O. status and was capable of acquiring property and to start business in his own name. When he requested the appellant to make him a shareholder in the company, she refused. She sold the properties, purchased new properties and constructed new buildings without consulting the petitioner. Finally, petitioner started companies in his own name. He further alleged that she deserted him from November, 2009 onwards without reasonable cause. The disharmony of the family increased day by day and she was abusing him whenever she gets a chance. She also started commenting against the lady staff in the petitioner's institution. She arranged goondas to do away with him, his business partner and employees. Even his personal belongings were damaged. Taking into account all these facts and the fact that she deserted him for the last three years, he sought for divorce.

3. Respondent denied the allegations. She contended that petitioner was a married man, but he was not having any issues. He adopted a boy during which time, petitioner and the first wife met the respondent. They adopted a female child. The appellant was working as a typist in the office of the petitioner and he persuaded her to live with him and that he would marry her. They lived together for quite sometime and finally they got married on 27/3/1985. She contended that she was working in the company of the petitioner and her salary was 6,000/- francs per month and she worked for about 18 months. She denied that the property was acquired in her name and the building was constructed with the funds expended by the petitioner. According to her, his business concern was sold and the entire sale proceeds amounting to Rs. 3 crores was deposited in the name of respondent in USA and out of the said funds, Rs. 21,50,000/- was spent for the purchase of property and construction of the building. When the petitioner requested that the amount deposited in USA should be given to him, she readily agreed and the money was transferred. Her contention was that the money does not belong to him exclusively. She further contended that the company was started with the funds sent by Mr.Peters August and not with the funds of the petitioner. She had given advertisements in daily newspaper and selected more artists for the work and it was her business activity and she was doing everything concerned for the business and the money belongs to her alone. She denied the other allegations against her. According to her, petitioner is in the company of one Varsha and other friends and is leading a free and luxurious life. It is the petitioner who was behaving cruelly. She further stated that petitioner was aware of her illegitimate child even before he met the respondent. It was a physically handicapped child and she had never contacted the said child. On the date of birth of the child itself, it was removed to an orphanage and after she started living with the petitioner, she was a sincere and dutiful wife. She denied the allegations made by the petitioner and that she had deserted her.

4. Before the Family Court, evidence consisted of oral testimony of PW1, PW2 and DW1 to DW7. Exts.A1 to A3 and Exts.B1 to B20 were marked. Ext.C1 had been summoned and marked before Court. The Family Court found that the petitioner had succeeded in establishing that the appellant is guilty of cruelty and therefore he is entitled to get a decree for divorce on that ground and accordingly the marriage between them stands dissolved.

5. OP No.876/2012 has been filed by the wife seeking for a declaration that sale deed no.2340/2004 of SRO, Kazhakkoottam is null and void. She also sought for consequential relief of injunction to restrain the respondent from dispossessing the petitioner or any movables or fixtures available in the plaint schedule property and also to restrain him from alienating the property in favour of strangers and committing any act of waste in the property. The factual aspects had already been narrated. According to the petitioner/wife, after the marriage, they were engaged in business in Belgium and she was permitted to have 20% share in the company owned by the respondent. The company was sold for a consideration of 40 million rupees and the parties shifted to Kerala. On 23/2/1988, they purchased 1 acre and 698 sq.links of property comprised in Sy.No.1819/2 and 1820/2 of Pangarappera Village as per document No.495/1 of 1988 of SRO, Kazhakoottam. The consideration was Rs. 4 lakhs. Building No.II/800 was constructed in the property by her. She started an Art Studio which was involved in export of paintings to foreign countries. She alleged that the respondent started having illicit relationship with one Varsha and therefore their relationship became strained. She further contended that she was compelled to execute a sale deed in respect of the petition schedule property on 3/7/2004 as per sale deed No.2340/04 of SRO, Kazhakoottam. Even though the consideration mentioned was Rs. 3.5 lakhs, no amount was received as consideration. She allege that after execution of sale deed, the respondent had filed OP(S.M.A.) No.681/2007 to dissolve the marriage. When an attempt was made to carve out 25 cents from the 1 acre 698 sq.links, she filed OP No.934/2007 to restrain the respondent from dispossessing her forcefully. She also filed OS No.400/2009 to declare sale deed No.2340/2004 as null and void. But then the said case had been withdrawn and presented before the Family Court.

6. The respondent alleged that the claim was barred by limitation as the suit is filed 5 years from the date of execution of sale deed. He contended that the petitioner was hailing from an economically backward family without any independent income. She was also mother of an illegitimate child and after abandoning the child, she was residing in a convent. She was sent to Belgium in the middle of 1982 till the second half of 1983. They were living together for quite sometime and ultimately they got married. He denied that she was having 20% share in his business. According to him, the entire property of 1 Acre 689 sq.links was purchased with his own funds and he had constructed the building. He denied having any extramarital relationship with Varsha, who according to him was only his office employee. He also took the very same contentions, which he had made mention in the petition for divorce and he sought for dismissal of the case.

7. In OP(S.M.A.) No.681/2007, evidence consisted of oral testimony of PW1 and PW2 and DW1 to DW7. Exts.A1 to A3 and Exts.B1 to B20 and Ext.C1 are the documents produced and proved.

8. PW1 is none other than the petitioner and PW2 is a witness who is examined on his behalf.

9. We heard the learned counsel for the appellant Sri.Thomas Abraham and Sri.Philip J. Vettickattu, counsel appearing for the husband.

10. One contention that had been urged by the learned counsel for the appellant is regarding maintainability of the petition. It is contended that in so far as the parties had admittedly got married in a foreign territory, in order to seek for divorce under the Foreign Marriage Act, 1969, (for short the FM Act), the marriage ought to be registered under the Foreign Marriage Act.

11. Section 18 of the FM Act inter alia provides that the provisions of Chapters IV, V, VI and VII of the Special Marriage Act, 1954 (for short SM Act) shall apply in relation to marriages solemnized under the Act (FM Act) or to any other marriage solemnized in a foreign country between parties of whom one at least is a citizen of India as they apply in relation to marriages solemnized under the SM Act. Sub-section (2)of S.18 indicates that every petition for relief under Chapter V or VI of the SM Act shall be presented to the District Court within the local limits of ordinary civil jurisdiction, the respondent is residing at the time of presentation of the petition, the husband and wife last resided together or the petitioner is residing at the time of presentation of the petition, provided that the respondent at that time is residing outside India. The District Court has the same meaning as in the Special Marriage Act, 1954. Therefore to confer jurisdiction on a District Court to entertain a petition for divorce, a foreign marriage is treated as a marriage under the Special Marriage Act. A bare reading of S.18(1) of SM Act would clearly indicate that Chapters IV, V, VI and VII of the SM Act apply in relation to marriages which are “solemnized under this Act” and “to any other marriage solemnized in a foreign country between parties of whom one at least is a citizen of India”.

12. In order to invoke the provisions of the SM Act, the first category relates to marriages solemnized under the FM Act. Solemnization of foreign marriages are stipulated under Chapter II which provides for conditions relating to solemnization of foreign marriages and on solemnization, a certificate is issued u/s 14 of the FM Act. S.15 of FM Act indicates that a marriage solemnized in the manner provided under the Act is valid and good in law. Chapter III of the FM Act deals with registration of foreign marriages. S.17 is the only provision under Chapter III, which indicates that in a case where a Marriage Officer is satisfied that a marriage has been duly solemnized in a foreign country in accordance with law of that country between parties of whom one at least was a citizen of India and if any of the parties to marriage informs the Marriage Officer in writing that he or she desires the marriage to be registered u/s 17, the Marriage Officer may, upon payment of the prescribed fee, register the marriage. The registration shall be subject to the conditions specified under sub-section (2). If a marriage is registered under the Section, it shall be deemed to have been solemnized under the Act. A Marriage Officer is a person appointed u/s 3, which indicates that the Central Government may, by notification in the Official Gazette, appoint such of its diplomatic or consular officers as it may think fit to be Marriage Officers for any foreign country. Therefore, a foreign citizen while marrying a person of Indian Origin is entitled to solemnize the marriage by invoking Chapter II or register the marriage in terms of Chapter III. In both these events, it would be a marriage in terms of the Foreign Marriage Act, 1969.

13. Second category of marriages relates to any other marriage solemnized in a foreign country between parties of whom one at least is a citizen of India. Therefore, to invoke the provisions of SM Act, there is no necessity that a marriage should be solemnized under the FM Act, 1969. The only restriction is that one of the parties should be a citizen of India at the time when the marriage is solemnized in a foreign country.

14. S.18(1) of SM Act apparently carves out two incidents. One is marriage solemnized under the FM Act and any other marriage solemnized in a foreign country which of course, indicates that one of the parties should be a citizen of India.

15. Sri.Thomas Abraham placed reliance upon a judgment of the Division Bench of this Court in Gracy v. Mathiri (2005 (3) KLT 412). That was a case in which the question considered was regarding validity of marriage performed between parties in a foreign country, wherein it was held that the act covers four types of marriages, (1) a marriage solemnized before the Marriage Officer appointed by the Government of India in a foreign country as per Chapter II, (2) deemed solemnization as per S.17, (3) recognition of marriage of the country where the marriage is performed and a certificate thereof u/s 24 r/w S.3 of the Act and (4) the marriage is solemnized in a foreign country other than under the provisions of the Act. While considering the above case, the Division Bench also noticed S.27 which read as under:-

“Nothing in this Act shall in any way affect the validity of a marriage solemnized in a foreign country otherwise than under this Act”.

The above judgment gives a clear indication of the extent of jurisdiction the Family Court can exercise with reference to marriages conducted under the FM Act. Therefore, the petition is maintainable and cannot be thrown out on the ground that the marriage was not solemnized or registered under the FM Act.

16. Coming to the merits of the contentions urged, PW1 and PW2 have clearly spoken about the nature of cruelty that had been levelled against the petitioner/husband. The Family Court had after elaborately considering the entire evidence found that a lady who was not having sufficient financial background had, with the assistance of her husband, a foreigner, amassed wealth in her name and thereafter she had started making unsubstantiated allegations against him that he was having relationship with other women. Further, substantial properties were purchased in her name and it is evident that it is with the funds that had been brought by the husband that the properties were purchased. She staked a claim in respect of all the properties and it is evident from the factual materials that she had filed OP No.876/2012 seeking for a declaration that the sale deed executed by her is void which is the subject matter in Mat.Appeal No. 354/2016. The evidence in the case clearly disclose the fact that the wife has been behaving in a cruel manner against her husband. The matrimonial relationship had irretrievably broken and they were fighting for property as well. Under such circumstances, when the Family Court had granted divorce based on sufficient materials on a finding of cruelty by the wife, we do not think that any grounds had been made out for interfering with the said finding especially in an instance where there is no chance for reunion and when substantial properties had already been held by the wife.

17. As far as OP No.876/2012 is concerned, evidence consisted of oral testimony of PW1 to PW3 on behalf of the wife and DW1 and DW2 on behalf of the husband. Exts.A1 to A3 documents and Exts.B1 to B23 were the documents marked. Apparently, the document was executed on 3/7/2004. Her main allegation was that the sale deed was executed under force and coercion and fraud had been played on her. Apparently, if fraud is played or if there is undue influence, misrepresentation or coercion, the person who executes the document is well aware of the same at the relevant time. She had voluntary executed the agreement in the year 2004.

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The contention urged by the petitioner/wife is that she had executed the document with all bonafides when the matrimonial relationship was in existence. Only when the petition was filed to dissolve the marriage, time has started to run. This contention cannot be accepted. It is in evidence that even in the year 2004 itself, she had filed a complaint before a business concern in Belgium against her husband. It is also her case that immediately after execution of Ext.A1 document, which is the impugned sale deed, the respondent started relationship with a lady by name Varsha. That apart, only an extent of 25 cents of land was carved out from 1 acre of land and assigned. Her brother is an attesting witness. On the previous day of execution of Ext.A1, she registered a Will stating that she propose to execute a sale deed regarding 25 cents of land and the remaining properties forming part of the 1 acre land acquired in her name was bequeathed in favour of her two sons. Thereafter mutation was effected and all other steps were taken by her husband for passing on the title in his name. Under such circumstances the suit filed on 29/1/2010 is clearly barred by limitation. We do not find any reason to interfere with the said judgment of the Family Court. That apart, there is clear finding by the Family Court that as per Ext.B4, the appellant had bequeathed her entire property to the respondent. Apparently there was an agreement between the parties to assign all the properties in his name and before executing Ext.A1, she had bequeathed the balance in favour of her children on 3/7/2004. This precedes an agreement between the parties and nothing has been brought out to indicate that she is the actual owner of the property. The materials placed on record clearly indicates that there was no coercion in executing Ext.A1. Under such circumstances, we do not find any error being committed by the Family Court in dismissing the suit. Accordingly, these appeals are dismissed. No costs.
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19-12-2018 The Refugee Appeal Board of South Africa & Others Versus Paul Joseph Mutombo Mukungubila Supreme Court of Appeal of South Africa
14-12-2018 Suriyur Vivasayigal Pathukappu Sangam, Rep. by its President, T. Ramaraj, Trichy Versus LA Bottlers Private Ltd., Represented by its Managing Director, Joseph Francis, Thiruchirappalli & Others Before the Madurai Bench of Madras High Court
13-12-2018 Stella Joseph & Another Versus The Regional Passport Officer, Regional Passport Office, Bengaluru & Others High Court of Kerala
13-12-2018 K.A. Joseph, Kannur District & Another Versus South Indian Bank Ltd, Kannur & Another Debts Recovery Tribunal Ernakulam
29-11-2018 Alphonsa Joseph and Others V/S Anand Joseph High Court of Kerala Ernakulam Bench
30-10-2018 Tomy Joseph Versus Smitha Tomy High Court of Kerala
29-10-2018 G. Bhagavat Singh Versus Manoj Joseph & Others High Court of Kerala