High Court Kerala High Court

K.Somanathan vs K.Shylaja on 8 April, 2009

Kerala High Court
K.Somanathan vs K.Shylaja on 8 April, 2009
       

  

  

 
 
  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.
              ---------------------------------------------------------
                     MAT. APPEAL NO. 438 of 2007
              ---------------------------------------------------------
                     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