IN THE HIGH COURT OF KERALA AT ERNAKULAM
Mat.Appeal.No. 39 of 2004()
1. MERRY, AGED 36, D/O. MATHAPPAN,
... Petitioner
Vs
1. PAULOSE, AGED 39 YEARS,
... Respondent
For Petitioner :SRI.FRANCO T.J.
For Respondent :SRI.P.K.ANIL
The Hon'ble MR. Justice P.R.RAMAN
The Hon'ble MR. Justice C.T.RAVIKUMAR
Dated :03/02/2009
O R D E R
P.R. RAMAN & C.T. RAVIKUMAR, JJ.
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MAT. APPEAL NO. 39 OF 2004
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Dated this the 3rd day of February, 2009
JUDGMENT
Ravikumar J.
The petitioner in O.P. No.526 of 1999 on the file of the Family
Court, Thrissur is the appellant herein. The said Original Petition was
filed under Section 32 of the Divorce Act, 1869 for a decree of restitution
of conjugal rights. As per order dated 7.2.2004, the Family Court
dismissed the Original Petition and this appeal is filed against the said
order of dismissal.
2. Both the appellant and the respondent are Christians. Their
marriage was solemnised on 18.1.1988 in accordance with the Christian
customary rites. The case of the appellant/petitioner is that even before
completion of one year of their marriage, the respondent began to ill treat
her. According to the appellant, on 13.5.1989, she was taken to the
parental home by her father and thereafter neither the respondent nor his
relatives came to take her back. The further case of the appellant is that
Mat. Appeal No.39 /2004 2
within one month thereafter, her father as also her kith and kin entreated
him to resume cohabitation, but he was not prepared for the same. When
their earnest efforts turned futile, they had even enquired about the
possibility for a divorce. Further, it is contended that even the attempts
made by the Priest of Kuzhur Church did not yield any effect and
thereafter on 12.4.1999, she caused issuance of a registered notice.
However, that too did not evoke any response. It was in the said
circumstances that she approached the Family Court for restitution of
conjugal rights.
3. The respondent contested the matter contending that the petition
lacks bona fides and hence not maintainable. According to him, he never
expressed any disinterest in the marital life with the appellant. He had also
denied the contentions regarding disharmony between them and the
attempts on the part of her father and also her relatives to set right their
married life. According to the respondent, after the marriage, they
resided together for about three months and even during such short stay,
the appellant used to complain that the respondent did not have enough
personality to be her husband. He had also denied the allegation that he
was quarrelsome and, according to him, the respondent left his house and
company on her own volition. His case is that she had never sought his
Mat. Appeal No.39 /2004 3
consent for leaving the home and for living separately and that his request
for resuming cohabitation was not responded favourably by herself. He
contended that the Original Petition was filed belatedly and it has now
become impossible to resume cohabitation. In short, his contention is that
the appellant has withdrawn from his society without any sufficient reason
and the intervention and efforts on the part of the mediators on his side
did not yield any desired effect and the marital tie has broken down
irretrievably. Based on the pleadings on either side, the following points
were formulated for consideration by the Family Court:
i. Whether the petitioner is entitled to get a
decree for restitution of conjugal rights?
ii. What is the order as to costs?
The evidence in the case consists of the oral testimonies of PWs.1 to 4 and
documents Exts.A1 to A5 on the side of the appellant herein. The
respondent got himself examined as RW.1.
4. The marriage between the appellant and respondent was
solemnised on 18.1.1988. Admittedly, on 13..5.1989 the appellant was
taken to her paternal home from the matrimonial home by her father. Her
Mat. Appeal No.39 /2004 4
case is that since then the respondent did not take her back home. It is a
fact that by the time the said Original Petition was filed for restitution of
conjugal rights, ten years have elapsed. The Family Court found that
absolutely no reasonable or cogent reasons were given for the inordinate
delay in filing the Original Petition. Though the appellant/petitioner
contended that several attempts had been made for resuming cohabitation
prior to the filing of the said Original Petition, she failed to prove the
same. A registered notice was issued to the respondent for resumption of
cohabitation only on 12.4.1999. Ext.A2 is the copy of the same. In this
context it is to be noted that the case of the appellant is that the respondent
was trying to contract another marriage and the same would make the delay
on the part of the appellant more unreasonable. It is noteworthy that in the
Ext.A2 as well, it was admitted that on 13.5.1989, it was her father who
took her from the marital home. Admittedly, since 13.5.1989 there was no
resumption of cohabitation. After appreciating the evidence adduced by
both the sides, the Family Court found that the long delay in filing the
petition for resumption of cohabitation and the factum that the appellant
left the marital home on her own accord would mitigate against the plea
for restitution of conjugal rights. The Court also observed that merely
because the respondent had never moved the law, the same could not be
taken to mean that he has been culpably neglecting the appellant/petitioner.
Mat. Appeal No.39 /2004 5
Obviously, the appellant/petitioner did not assign any reasonable excuse as
to why she had withdrawn from the society of the respondent and started
living separately. It was after carefully considering the evidence on record
that the Family Court declined to issue an order under Section 32 of the
Divorce Act.
5. The admitted facts are that the marriage between the parties was
solemnised on 18.1.1988 and that the appellant was taken from her
matrimonial home to her parental home by her own father on 13.5.1989. It
is needless to say that in a case for restitution of conjugal rights, the initial
burden of proving reasonable excuse for withdrawing from the society of
the other shall be on the person who has withdrawn from the society. In
this case, going by the admitted facts, it is evident that it was the appellant
herein who withdrew from the society of the respondent/husband on
13.5.1989. That apart, she failed to show any reasonable excuse for
withdrawing from his society. As stated earlier, the petition for restitution
of conjugal rights was filed by the appellant after a lapse of about ten years
since her leaving the matrimonial home. Almost another ten years have
elapsed since filing of the petition for restitution of conjugal rights. The
stand of the respondent that the marital tie has broken down irretrievably
would further nullify even the remote possibility for resuming
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cohabitation. As held by the Family Court, we are also not satisfied about
the truthfulness of the statement made in the petition for restitution of
conjugal rights filed by the appellant herein.
6. In view of the matter, we find no reason to disagree with the
finding of the Family Court that the case on hand is not a fit case to be
allowed under Section 32 of the Divorce Act. The conclusion arrived at
by the Family Court and the reasons given therein do not suffer from any
legal infirmity or illegality warranting any interference.
In the circumstances, the Matrimonial Appeal is dismissed, however,
without any order as to costs.
(P.R. RAMAN)
JUDGE
(C.T. RAVIKUMAR)
JUDGE
sp/
Mat. Appeal No.39 /2004 7
P.R. RAMAN
&
C.T. RAVIKUMAR, JJ.
MAT.APPEAL NO.39/2004
JUDGMENT
3rd February, 2009
Mat. Appeal No.39 /2004 8