IN THE HIGH COURT OF KERALA AT ERNAKULAM
Mat.Appeal.No. 702 of 2007(E)
1. MOOKAMBIKA, D/O.LATE SHAM BHAT,
... Petitioner
Vs
1. MURALIDHARA.M., S/O.KRISHNA BHAT,
... Respondent
For Petitioner :SRI.T.SETHUMADHAVAN
For Respondent :SRI.K.SHRIHARI RAO
The Hon'ble MR. Justice KURIAN JOSEPH
The Hon'ble MR. Justice HARUN-UL-RASHID
Dated :06/08/2008
O R D E R
KURIAN JOSEPH & HARUN-UL-RASHID, JJ.
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MAT. APPEAL NO.702 OF 2007
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Dated this the 6th day of August, 2008
JUDGMENT
Harun-Ul-Rashid, J.
The respondent in O.P. No.32 of 2007 on the file of the Family
Court, Kasaragod is the appellant. The husband filed the above Original
Petition for a decree of divorce on the ground of desertion. The Family
Court allowed the Original Petition and hence, this appeal. The parties
herein are referred to as the petitioner and respondent as in the Original
Petition.
2. The brief facts necessary for the disposal of this appeal are as
follows: The marriage between the petitioner and respondent was
solemnised on 5.6.1996 as per the custom prevalent in the Hindu
Community. The respondent/wife was a teacher at the time of marriage. It
is the case of the petitioner/husband that since his wife was a teacher by
profession, she preferred to say in her house. It is his further case that the
Mat. Appeal No.702/2007 2
respondent always abused him and she even stopped her occasional visit to
his house and ultimately withdrew from his company. It is also stated by
the petitioner that he had on an earlier occasion filed O.P. No.42 of 1998
before the Sub Court, Kasaragod for divorce on the ground of cruelty and
desertion and by judgment dated 28.2.2001, the petition was dismissed.
The appeal filed by the petitioner as M.F.A. No.745 of 2001 also ended in
dismissal. Since the parties are residing separately since 17.9.1998, their
relationship has become totally strained and irreparably broken.
3. The respondent has resisted the petition for divorce. It is
contended inter alia that the petition for divorce is not maintainable, that
the petitioner/husband is permanently residing at Mangalore and that the
allegation against her regarding desertion is absolutely incorrect. She has
further contended that the petitioner/husband wanted her to resign her job
and to stay with his parents at Kasaragod. According to her, since the
petitioner is not residing with his parents, there is no bona fides in filing
the petition for divorce on the ground of desertion. She has also pleaded
that she is ready and willing to go and reside with her husband and
continue the marital relationship.
4. The petitioner and another witness were examined as PWs.1 and
Mat. Appeal No.702/2007 3
2 and Exts.A1 to A6 were marked on his side. The respondent/wife was
examined as RW.1 and Exts.B1 to B6 were marked on her side. The
Family Court observed that there is no dispute regarding the fact that the
petitioner and respondent are separated from 17.9.1998 and that there is no
physical or mental contact since then. The Family Court Judge also noted
the fact that even in the earlier Original Petition, they had stated that they
have been living separately since 17.9.1998. The Family Court rejected
the argument of the respondent/wife that the principle of res judicata has to
be applied to the present proceedings for the reason that the findings in
the earlier proceedings were confined to the situation as on the date of
that petition marked as Ext.B4 on 8.1.2.1998. Ext.B6 judgment in
O.P.No.42 of 1998 and Ext.A3 judgment in M.F.A. No.745 of 2001would
show that the case of the respondent/wife that she was residing with her
husband till 17.9.1998 is acceptable and believable. The said finding
consequently negatived the case of the husband as there was no proof
regarding desertion for a period of two years as on the date of the petition.
The Family Court also found that the evidence on record do not warrant a
finding that the respondent/wife had the animus to put an end to the
relationship once and for all. It was also noted by the Family Court that
there was no change in the circumstances and that the parties remained
separated for the last ten years sticking to their respective stand. The
Mat. Appeal No.702/2007 4
Family Court correctly pointed out that the marriage is defacto dead and
to try to resurrect it is a nonsensical effort.
5. The marital discord between the parties started when the
respondent/wife refused to resign her job as a teacher as demanded by the
petitioner/husband and his parents. The petitioner/husband fairly
conceded that there was such a demand. It appears that every other
allegation stemmed from the basic one mentioned above. According to
the respondent/wife, the petitioner and his parents did not like her because
she dared to disobey them by not resigning the job. The
petitioner/husband showed no more interest in continuing the relationship
and the respondent/wife made it clear that she wants to continue the
relationship only for the reason that there is no scope for remarriage as per
the custom and tradition in her community. In her reply notice, the
respondent/wife pointed out that the petitioner had doubted her chastity
in the earlier proceedings and that during conciliation proceedings in the
earlier case, the petitioner and his father made it very clear that they did
not want her back in their house. She also stated that she failed to
understand why the petitioner insisted on her staying in his house at
Maniyoor when the petitioner himself was employed at Mangalore.
Mat. Appeal No.702/2007 5
6. Efforts made by the Family Court to bring the estranged couple
together failed. Before this Court also we made several attempts for
reconciliation. We have the impression that the petitioner/husband is not
willing to take the respondent/wife back and resume co-habitation. The
Family Court elaborately considered the relationship between the parties
and the intention of both parties not to continue the relationship. The
Family Court also considered the offer made by the respondent/wife that
she is willing to reside with her husband at Mangalore and found that it is
a camouflage to cover up her real intentions and that the sole reason for
her willingness is that there is no scope for remarriage in her community.
The Family Court finally held that the respondent/wife had repudiated her
marital obligations consciously and with a view to put an end to the
relationship. Thus, on an elaborate consideration of the evidence on
record and on the basis of the legal principles narrated more elaborately in
the impugned judgment, the Family Court concluded that the
petitioner/husband is entitled to a decree of divorce on the ground of
desertion. The reason for allowing the Original Petition is based on the
evidence on record and settled principles of law on the point. We find that
the view taken by the Family Court is just and proper and calls for no
interference.
Mat. Appeal No.702/2007 6
In the result, the Matrimonial Appeal fails and it is accordingly
dismissed. There will be no order as to costs.
(KURIAN JOSEPH, JUDGE)
(HARUN-UL-RASHID, JUDGE)
sp/
Mat. Appeal No.702/2007 7
KURIAN JOSEPH &
HAURN-UL-RASHID, JJ.
MAT. APPEALO.702/2007
JUDGMENT
6th August, 2008