Kerala High Court
Nisha.P.V vs Lakshmanan.K on 27 May, 2019
Author: A.M.Shaffique
Bench: A.M.Shaffique
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
MONDAY, THE 27TH DAY OF MAY 2019 / 6TH JYAISHTA, 1941
Mat.Appeal.No. 209 of 2012
AGAINST THE ORDER/JUDGMENT IN OP 753/2010 of FAMILY COURT, KANNUR
DATED 21-01-2012
APPELLANT/S:
NISHA.P.V.
AGED 44 YEARS
D/O.P.P.BALAN, NIHALAYAM, CHALAD.P.O., MANAL,
PALLIKUNNU VILLAGE, KANNUR TALUK & DISTRICT.
BY ADV. SRI.SURESH KUMAR KODOTH
RESPONDENT/S:
LAKSHMANAN.K.
AGED 49 YEARS
NIRMALYAM, P.O.KURUMATHOOR, KURUMATHOOR VILLAGE,
TALIPARAMBA TALUK, KANNUR DISTRICT.
BY ADVS.
SRI.V.R.KESAVA KAIMAL
SRI.N.M.MADHU
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 27.05.2019,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Mat.Appeal.No. 209 of 2012
2
JUDGMENT
A.M.Shaffique, J The Original petition was filed by the husband seeking divorce on the ground of cruelty and desertion. The parties got married on 02.01.1989 as per religious rights and ceremonies of Hindu Community. One female child was born in the wedlock. The contention raised by the petitioner was that the respondent was not behaving properly towards him. He was a military man at the time of marriage. Though they lived together in the place of his employment, the respondent did not allow him to mingle with the relatives of the petitioner. She always abused and insulted him even in the presence of their child which caused disrespect in the mind of the child towards him. However, he managed to avoid any marital discord and for the better future of the child, he came back and constructed a new house at Thaliparamba in the year 1998. But the respondent was not willing to reside with him Mat.Appeal.No. 209 of 2012 3 in the new house. During April 2008, he came back to the native place availing leave. At the relevant time the respondent was staying in her parental house. Even though, he had informed her about the arrival, she did not respond to it. After reaching Thaliparamba, the petitioner had gone to her house on several occasions but the respondent did not come and reside with him. On 26.04.2008 he had again gone to her house to take her back. But she was not even ready to go with him. He informed the matter to his relatives. They also met her. But respondent refused to even talk to them. In the said circumstances, he sought for divorce on the ground of cruelty and desertion.
2. The respondent denied the allegations. According to her, she was not permitted to move out of the house and she was residing with the petitioner and he always doubted her chastity. She was willing to share the house of the petitioner. She had suffered cruelty in the hands of the petitioner and he would never change his stand. She also stated that her daughter had contracted a marriage with a boy Mat.Appeal.No. 209 of 2012 4 belonging to a different caste. She however stated that she is willing to live with the petitioner, if he is ready to change his cruel attitude towards her. Before the Family Court, evidence consisted of oral testimony of petitioner and respondent.
3. The Court below having considered the respective contentions raised by them, held that From the nature of events, it is rather clear that the respondent was not ready to reside with the petitioner and their matrimonial life has irretrievably broken and accordingly granted divorce. Reference was made by the judgment of the Apex Court in Samar Ghosh v. Jaya Ghosh [2007(4) SCC 511].
4. Apparently, the couple lived together for quite some time and they had a female child. They came back after residing together in different parts of the country to their native place in the year 1998. The petitioner had constructed a new house at Thaliparamba. According to him, she was not ready to live in the said house and she remained at her parental house. Apparently, he had gone back to continue his job and came back in April 2008. His specific contention was Mat.Appeal.No. 209 of 2012 5 that even after he came back, she was not ready and willing to join him in his house. However, according to the respondent, she was ready to go with him, provided, he changes his attitude and cruel behavior towards her. But there is no evidence to prove that any cruelty had been meted out against the wife. It can only be seen that she was making some allegations which are not substantiated. Apparently, this is a case in which the parties have been living separately for quite number of years, right from 2008. There is no chance for a reunion. Their only daughter got married and there is no connection whatsoever between the parties. It is a clear case in which desertion has been proved before the court. Admittedly, the petitioner was working outside the State for quite a long time. When he came back, despite his attempts to bring back his wife to his house, the wife remained at her parental house. Sufficient reason for her to remain away from the matrimonial home, had not been proved in this case.
5. The learned counsel for the appellant would submit that the respondent's father was ill and was laid up and she Mat.Appeal.No. 209 of 2012 6 had to take care of him. But no such evidence is forthcoming. Whereas, her specific case was that she can go back to the matrimonial home only if the petitioner changes his cruel attitude. As already stated, there is no evidence of any such cruelty from the side of the respondent/husband. Therefore, it is rather clear that she was remaining away from the matrimonial home without any valid reason. In such circumstances, there is justification on the part of the Family Court to have granted divorce on the ground of desertion. As far as long separation is concerned, it is held in Samar Ghosh (supra) in paragraph 101(xiv) which reads as follows.
"(xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situation, it may lead to mental cruelty."
Even long separation is stated to be a mental cruelty. Taking into consideration all these facts, we do not find any Mat.Appeal.No. 209 of 2012 7 reason to interfere with the judgment of the Family Court.
Accordingly this appeal is dismissed. No costs.
Sd/-
A.M.SHAFFIQUE JUDGE Sd/-
N.ANIL KUMAR
Dxy JUDGE