Kerala High Court
Janardhanan vs A.Pushpa on 10 August, 2011
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN
THURSDAY, THE 9TH DAY OF FEBRUARY 2017/20TH MAGHA 1938
Mat.Appeal.No. 888 of 2011 ( )
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AGAINST THE JUDGMENT IN OP 37/2011 of FAMILY COURT, KASARAGOD DATED
10-08-2011
APPELLANT/PETITIONER:
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JANARDHANAN,
S/O.LATE KRISHNAN, AGED 42 YEARS, CHERIYANDAM HOUSE,
UNNIKULAM, EKAROOL VILLAGE AND POST, KOILANDI TALUK,
KOZHIKODE DISTRICT.
BY ADV. SRI.K.B.ARUNKUMAR
RESPONDENT/RESPONDENT:
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A.PUSHPA,
D/O.LATE RAMAN, AGED 36 YEARS, MANATHADAM HOUSE,
THIMIRI VILLAGE AND POST, CHERUVATHUR VIA, HOSDURG
TALUK, KASARAGOD DISTRICT. 671 313.
BY ADV. SMT.P.K.PRIYA
BY ADV. SRI.T.K.VIPINDAS
BY ADV.SRI.K.V.SREE VINAYAKAN
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
31.01.2017, THE COURT ON 09-02-2017 DELIVERED THE FOLLOWING:
A.M. SHAFFIQUE & K. RAMAKRISHNAN, JJ.
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Mat.A.No.888 of 2011
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Dated this the 9th day of February, 2017.
JUDGMENT
K. Ramakrishnan, J:
The petitioner in OP.No.37/2011 on the file of the Family Court, Kasaragod is the appellant herein. The original petition was filed by the appellant herein for dissolution of marriage between the appellant and the respondent under Sections 13(1) (ia) and (ib) of the Hindu Marriage Act, 1955 (hereinafter referred to as 'the Act') on the ground of cruelty and desertion. The marriage between the appellant and the respondent was solemnized on 18.12.1992 from the house of the respondent as per custom and after two years of their marriage, a male child was born to them in that wedlock. After the marriage, they resided together in the house of the appellant. The respondent was not satisfied with the small house and limited amenities in the house and she had started problems stating that the appellant was not handsome and not having sufficient wealth or income to have a luxurious life as expected by her. According to him, she had even stated that though she was not interested in the alliance, on account of compulsion of her relatives, she had agreed for the same. In order to meet the requirements of the respondent, the appellant was compelled to take a huge loan. He took loan from others and went to Gulf in search of a job as insisted by the Mat.A.No.888 of 2011 2 respondent. But he could not procure a good job. So he had to return. During March 1998, the respondent left the matrimonial home without his consent with the child and thereafter she did not return. He used to go to her house and reside there. On 25.4.1999, he had to see the illegal relationship of the respondent with her close relative. When he questioned the same, he was driven out of the house. Thereafter she did not come. He filed OP.No.386/2000 during August, 2000 for divorce before the Family Court, Kozhikode. On receipt of the summons in that case, the respondent filed MC.No.210/2000 claiming maintenance for herself and the child before the Judicial First Class Magistrate Court, Hosdurg and there was some mediation and on account of which, he had not pressed the petition for divorce and agreed to pay maintenance to the child and the respondent. She is now residing separately for more than 11 years. The act of the respondent will amount to desertion and cruelty and so the appellant is entitled to get divorce on these grounds. Hence the petition.
2. When the respondent entered appearance, counselling and mediation were attempted, but the matter could not be settled. So she filed a counter statement contending as follows:
The application is not maintainable. She had admitted the marriage and birth of the child. She denied the allegation that she Mat.A.No.888 of 2011 3 was not satisfied with the amenities in the house of the appellant and she was finding fault with the appellant for the same and she told him that she was not interested in the alliance and marriage, but due to the compulsion of the relatives, she agreed for the same. She had also denied the allegation that she was finding fault with him for not providing the amenities as expected by her and he was not handsome. According to her, he was suspicious about her chastity and even ill treated her and assaulted her and she was driven out of the house. So she informed the same to his brother and he came and took her to the paternal house. She denied the allegation that the appellant used to come and reside in her house and on 25.4.1999 he happened to see her in illegal relationship with her relative and when this was questioned by him, he was sent out of the house. She admitted that the appellant filed OP.No.386/2000 before the Family Court, Kozhikode for dissolution of marriage and the same was dismissed. She filed an application for maintenance and that was allowed. She was always willing to resume their relationship and his attempt was to avoid her. So the appellant is not entitled to get any relief. She prayed for dismissal of the appeal.
3. The appellant himself was examined as PW1 and on the side of the respondent, herself was examined as RW1. After considering the evidence on record, the Court below found that the Mat.A.No.888 of 2011 4 appellant had failed to prove the grounds of cruelty and desertion as alleged and dismissed the application. Aggrieved by the same, the present appeal has been preferred by the appellant/petitioner before the Court below.
4. Heard Sri.K.B. Arunkumar, the learned counsel appearing for the appellant and Sri.T.K.Vipindas, the learned counsel appearing for the respondent.
5. The learned counsel appearing for the appellant submitted that the appellant was always co-operative with the respondent but she was not co-operative and she had denied sex with the appellant. She was residing separately from March 1998. That shows that she has no intention to come and reside with him. Though she had stated before the Court below that she is always ready and willing to come and reside with him, she did not take any steps for the same. That shows that the offer made by her for reunion is only a ruse to deny divorce to the appellant and not in good faith. Further, denial of satisfying the marital obligation will amount to mental cruelty and as such the Court below was not justified in dismissing the application. He had relied on the decision reported in Sanat Kumar Agarwal v. Nandini Agarwal (1990 (1) SCC 475) in support of his case.
6. On the other hand, the learned counsel appearing for the respondent submitted that except making some allegations of Mat.A.No.888 of 2011 5 cruelty, there is no evidence adduced on that fact. Further there is no instances of such cruelty also furnished in the petition or in the evidence. Further none of the relatives of the petitioner were examined to prove the act of cruelty. The fact that he filed an application for divorce on the ground of adultery and later withdrawn will go to show that he is always suspicious in nature and that will amount to cruelty by the appellant towards the respondent and so she is justified in residing separately. The Court below was perfectly justified in dismissing the application. He had relied on the decision reported in Latha Kunjamma v. Anil Kumar (2008 (2) KLT 545) in support of his case.
7. The factum of marriage and the paternity of the child are not in dispute. It is also not in dispute that the appellant and the respondent were residing separately from April 1999 even according to the appellant. The grounds alleged for divorce are cruelty and desertion which is provided as a ground for divorce under section 13(1)(ia) and (ib) of the Act which reads as follows:
(ia) has, after the solemnization of the marriage, treated the petitioner with cruelty; or (ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition.
8. It is settled law that, in order to grant divorce on the ground of cruelty, it must be established by the appellant that the Mat.A.No.888 of 2011 6 cruelty alleged of such a nature that it is impossible or not expected to live together any more in future. Further in order to attract desertion, it must be proved by the appellant that the respondent had left the matrimonial home with an intention not to come back permanently without any reasonable cause. There must be animus deserdanti to be established by the appellant.
9. In this case, though there are allegations in the petition that she was not satisfied with the amenities available in his house and she had openly told that he was not handsome and he was not having wealth for leading a luxurious life as expected by her, except his interested testimony, there is no other independent evidence adduced to prove these facts. There is no instance of such an act of cruelty has been either pleaded or proved by the appellant. So under such circumstances, the Court below was perfectly justified in coming to the conclusion that the appellant was not entitled to get divorce on the ground of cruelty.
10. As regards the ground desertion is concerned, according to the appellant, she left the house during March, 1998 without his consent. But he did not object the same due to his limitations. According to him, he even went and resided in the house of the respondent and on 25.4.1999, he happened to see the illegal relationship of the respondent with her brother-in-law namely Asokan and when questioned the same, he was sent out of the Mat.A.No.888 of 2011 7 house. This fact was denied by her. It is also brought out in evidence that earlier he filed OP.No.386/2000 before the Family Court, Kozhikode for dissolution of marriage on the ground of adultery. But when the respondent filed maintenance case, he did not press that case, due to the settlement arrived between the parties. He did not produce the earlier petition for divorce filed and the order passed thereon. According to him, it was not pressed by him. So that shows that though he had raised an allegation of illegal relationship of the respondent with her brother-in-law Asokan, he was not able to prove the same. On the other hand, he had withdrawn that petition and agreed to pay maintenance to his wife and the child. So that strengthen the case of the respondent that he was always suspicious about her chastity and he was ill treating her on account of that. According to her, she was assaulted during March, 1998. When she informed the same to her family members, her brother came and took her to the parental home. She had categorically stated that even in the attempt of mediation, on all occasions she was always willing to resume the relationship as she wanted the relationship for the welfare of the child and she is interested in the relationship as well. It was the appellant who was not willing to resume the relationship.
11. In the decision reported in Sanat Kumar Agarwal v. Mat.A.No.888 of 2011 8 Nandini Agarwal (1990(1) SCC 475), the Apex Court has observed that:
"The question of desertion is a matter of inference to be drawn from the facts and circumstances of each case and those facts have to be viewed as to the purpose which is revealed by those facts or by conduct and expression of intention both anterior and subsequent to the actual act of separation. "
12. That was a case where the marital relationship subsisted only for six months and thereafter they were living separately. There was wide gap between the parties on account of their educational qualifications and position on account of the employment. So under such circumstances, it was held that by the conduct of the respondent, it can be presumed that there was no intention on the part of the respondent wife in resuming the relationship. But that was not the case here. It was admitted by both parties that they lived together for nearly six years in the house of the appellant as husband and wife and a male child was born to them in that wedlock. So under such circumstances it cannot be said that the relationship was not cordial and she was not performing her obligation as a dutiful wife towards the husband.
13. Further in the decision reported in Latha Kunjamma v. Anil Kumar (2008 (2) KLT 545), a Division Bench of this Court has Mat.A.No.888 of 2011 9 held that:
"If one spouse is forced by the conduct of other to leave the home it may be that the spouse responsible for the driving out is guilty of desertion which means constructive desertion. Where the wife is forcibly turned out from her marital home by the husband, the husband is guilty of constructive desertion. The test is not who left the matrimonial home first. If spouse by his words and conduct compel the other spouse to leave the marital home, former would be guilty of desertion, though it is the latter who has physically separated from the other and has been made to leave the marital home. The case will come under the category of 'constructive desertion' as the petitioner was compelled to leave her marital home and it is impossible for her to join the respondent and in such cases it cannot be said that there was desertion on the part of the wife".
14. Further in the same decision it has been held that:
"False, defamatory, scandalous, malicious, baseless and unproved allegations against the spouse in the written statement will amount to cruelty".
15. Though in the earlier petition for divorce as well as in present petition, he had made an allegation of illegal relationship with her brother-in-law, he had not made any attempt to substantiate the same. Further when he was examined before the Court, he had not projected that as a ground as well. So under such circumstances, the respondent was perfectly justified in leaving the matrimonial home and it cannot be said that she was Mat.A.No.888 of 2011 10 responsible for the desertion and she cannot be found fault for desertion and on that ground, he cannot claim divorce as well. Even at the time of evidence, PW1 had categorically stated that he is not interested in resuming the relationship on account of the bad character of the respondent which he had not even established by evidence. So under such circumstances, the Court below was perfectly justified in coming to the conclusion that the appellant had failed to prove both the grounds of cruelty and desertion in order to claim dissolution of marriage and rightly dismissed the application which we do not think it necessary to interfere.
So the appeal lacks merit and the same is hereby dismissed. Considering the circumstances, the parties are directed to bear their respective costs in the appeal.
Sd/ A.M. SHAFFIQUE, JUDGE.
Sd/-
K. RAMAKRISHNAN, JUDGE.
cl