IN THE HIGH COURT OF KERALA AT ERNAKULAM
Mat.Appeal.No. 438 of 2007()
1. K.SOMANATHAN, 41 YEAR,
... Petitioner
Vs
1. K.SHYLAJA, 36 YEARS,
... Respondent
For Petitioner :SRI.N.M.MADHU
For Respondent :SRI.K.N.PADMAKUMAR
The Hon'ble MR. Justice R.BASANT
The Hon'ble MR. Justice C.T.RAVIKUMAR
Dated :08/04/2009
O R D E R
R. BASANT & C.T. RAVIKUMAR, JJ.
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MAT. APPEAL NO. 438 of 2007
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Dated this the 8th day of April, 2009
JUDGMENT
Ravikumar, J.
The appellant-husband was the petitioner and the respondent-wife
was the respondent in O.P.No.454 of 2006 filed before the Family Court,
Malappuram for a decree on the grounds of cruelty and desertion. They are
Hindus and their marriage was solemnized on 8.5.1997 in accordance with
the Hindu religious rites and ceremonies. Master Arjun, the only child born
in their wedlock is now aged 10 years.
2. Though the O.P. was filed on the grounds of cruelty and
desertion the former ground was not pressed before the Family Court. The
appellant and the respondent were examined respectively as PW1 and
RW1 and Exts.B1 to B7 were marked during the trial. After considering
the rival contentions and appreciating the oral and documentary evidence
the Family Court made a wishful remark that in future the parties may
make a reunion and lead a happy life with their only son and then,
proceeded to dismiss the O.P. holding that no legally acceptable ground of
desertion sufficient to snap the marital tie was available. It is aggrieved by
Mat. Appeal No. 438/2007 2
the said order of the Family Court that the petitioner-husband preferred
this appeal.
3. A survey of the marital life of the parties would reveal that out
of the 11 years of marriage they lived together only for a period of three
years or thereabouts. The respondent is a post-graduate and now, employed
in Paramekkavu Devaswom Higher Secondary School and the appellant is
only a matriculate and cooking is his avocation. He is employed in Sharjah
and their marriage had taken place when he came back home on leave. He
had taken her to Gulf once on visiting visa and after a short stint of stay till
expiry of the period of the said visa she came back home. Thereafter she
went to her paternal home for confinement, but did not return after
confinement. In August, 2000 he came on leave and went to her house and
took the respondent and the child to his house. Soon she returned to her
paternal home with the child to visit her ailing mother. In fact, it was only
a ruse to return to her house. Before his departure to his place of avocation
on 23.9.2000 he made earnest efforts, in vain, to get them back home.
According to him he pursued his attempts to take them home during
subsequent years as well whenever he came home on holidays. She did not
even attend the marriage of his sister which took place on 22.9.2003.
According to him she left the matrimonial home on 11.9.2000 without any
Mat. Appeal No. 438/2007 3
reasonable cause and without his consent and thereafter did not return to
him. Based on the above and such other relevant aspects he contended that
it was in total repudiation of the obligation of marriage she abandoned his
company with an intention to bring the cohabitation permanently to an
end. It was in the circumstances and with such allegations that the
appellant/petitioner approached the Family Court. The respondent-wife
resisted the same and refuted entire allegations. According to her it was the
constant nagging by the in-laws leading to constant dissatisfaction and
mental torture that led to her physical departure from her matrimonial
home. As stated earlier, the Family Court found the evidence short of
satisfactory and sufficient to snap the martial tie between them.
4. In matrimonial law desertion, to enable a spouse to get divorce on
that ground, should satisfy certain essential elements such as, factum of
separation, necessary intention to put an end to matrimonial consortium
and co-habitation permanently, want of reasonable cause and want of
consent or against the wish. In this case two of such elements viz., factum
of separation and want of consent or against wish are very much evident
from the very pleadings on both the sides. Admittedly, they have been
living separately since the year 2000. The oral testimony of the appellant
as PW1 and the respondent as RW1and Exts.A1 and A2 would reveal the
Mat. Appeal No. 438/2007 4
said factum of separation and they would also go to show the fact that it
was without his consent rather, against his wish that the respondent-wife
had left the matrimonial home and started living separately.
5. Now, we may have to look into the evidence adduced and the
emerging circumstances to see whether the other essential elements are
also satisfied. They are inter-linked and have to be considered jointly. The
oral testimony of the appellant as PW1 and the respondent as RW1and
Exts.A1 and A2 would reveal the fact that the respondent-wife has left her
matrimonial home and is living separately since September, 2000. As
stated earlier, such leaving of the matrimonial home and the subsequent
conduct of the parties revealed from their respective pleadings, oral
testimonies and Exts.A1 and A2 would go to show that the appellant-
husband did not give consent, express or implied, to her to leave the
matrimonial home and to live separately whilst it was she who had
withdrawn from his society and started to live separately. The question is
whether the respondent-wife is having animus deserendi viz., an intention
to put an end to matrimonial consortium and co-habitation permanently.
While considering the same the conduct of the parties as a whole has to be
taken into consideration. The initial burden to prove that the desertion was
without just cause was on the appellant-husband. Besides giving evidence
Mat. Appeal No. 438/2007 5
to discharge that burden he had produce Exts.A1 and A2. Ext. A2 is the
notice sent on her behalf as reply to the notice on behalf of the appellant-
husband. At this juncture it is to be noted that in the objection filed by the
respondent it is stated that she had vividly narrated the unendurable
torturing received by her at his home which created danger to her life and,
accordingly, prayed to treat the said reply notice as part of the said
objection. In the circumstances, a scrupulous scanning of Ext.A2 reply
notice was made to find out the same. However, it is to be said that Ext.P2
contains no such instances which could be accepted by a prudent mind as
unendurable torturing or torturing capable to create apprehension of threat
to life. Except the general and vague statement of ill treatment and nagging
by the in-laws nothing tangible was made therein. A solitary incident that
she was once asked to wash the father-in-law’s clothing cannot be
accepted as ill-treatment of such nature. In fact, it carries no such instances
which would justify her action in leaving the matrimonial home and living
separately. It is apposite to note in this context that her evidence and
pleadings would undoubtedly show that she got no complaints of torture or
ill-treatment by the appellant-husband. It is also fact that hitherto she made
no complaints of torture or ill-treatment by her in-laws before any court or
any competent authorities. Leaving the matrimonial home and withdrawing
the society of the other spouse for over a period of more than eight years,
Mat. Appeal No. 438/2007 6
without reasonable cause, can only lead to an invariable inference of
desertion. Thus taking the conduct of the parties as a whole and the
emerging circumstances and evidence would suggest a total repudiation of
obligation of marriage and abandonment with an intention to bring
matrimonial consortium and co-habitation permanently to an end, without
any reasonable cause, on the side of the respondent-wife. In other words,
the irresistible conclusion in the instant case can only be that the
respondent-wife is guilty of deserting the appellant-husband and as such,
he has succeeded in establishing the ground of desertion against the
respondent-wife. While testifying she had revealed that she continues to
have love towards the appellant-husband and made an offer to live with
him provided he lives separately from his parents. In the circumstances of
the case we have no hesitation in holding that it is nothing but a hollow
statement and was not made in good faith. Non-acceptance of such
unreasonable condition cannot terminate the desertion. We are also
satisfied that the appellant-husband is not taking any advantage of his own
wrong for the purpose of getting relief on the ground of desertion and
therefore, there is nothing to disentitle him under Section 23(1)(a) of the
Hindu Marriage Act,1955 to obtain a decree of divorce on the said ground.
In the result:
Mat. Appeal No. 438/2007 7
a) the appeal is allowed.
b) the impugned order is set aside.
c) decree for dissolution of marriage is granted under
Section 13 of the Hindu Marriage Act and the
marriage between the appellant and the respondent
solemnised on 8.5.1997 is hereby dissolved.
d) the parties are directed to suffer their respective
costs throughout.
We note with satisfaction the wholesome conduct of the appellant/husband
who has deposited an amount of Rs.1,00,000/- in the State Bank of India
(Code No. 10564), Ernakulam by Term Deposit No.TD CS/022 0354296
dated 8.4.2009 in the name of the child born in the matrimony. That
Deposit Receipt is handed over to the counsel for the respondent in court.
The counsel further submits that the appellant agrees to and shall hereafter
pay to the child monthly maintenance at the rate of of Rs.1,000/- even
without direction of any court. We make record of these submissions.
(R. BASANT)
JUDGE
(C.T. RAVIKUMAR)
JUDGE
sp/
Mat. Appeal No. 438/2007 8
R. BASANT &
C.T. RAVIKUMAR, JJ.
MAT. APPEAL
NO.438/2007
JUDGMENT
8th April, 2009
Mat. Appeal No. 438/2007 9