Kerala High Court
K.U.Ashokan vs P.Salina on 22 October, 2019
Bench: A.M.Shaffique, Mary Joseph
Mat.Appeal.No.191 OF 2012 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MRS. JUSTICE MARY JOSEPH
TUESDAY, THE 22ND DAY OF OCTOBER 2019 / 30TH ASWINA, 1941
Mat.Appeal.No.191 OF 2012
AGAINST THE JUDGMENT IN OP 49/2011 DATED 31-12-2011 OF FAMILY
COURT, THALASSERY
APPELLANT/PETITIONER:
K.U.ASHOKAN
S/O.R.V.KUNHIKANNAN, AGED 46 YEARS,
TEACHER,
RESIDING AT KIZHAKKE UKKANTAVIDA HOUSE,
MENAPRAM AMSOM,
NEDUMBRAM DESOM,
THALASSERY TALUK,
KANNUR DISTRICT.
BY ADV. SRI.KALEESWARAM RAJ
RESPONDENT/RESPONDENT:
P.SALINA
AGED 38 YEARS,
D/O.MAROLI BALAN,
TEACHER,
RESIDING AT PARAMBATH HOUSE,
P.O.KOORARA,
PANOOR, THALASSERY TALUK,
KANNUR DISTRICT-670692.
R1 BY ADV. SMT.C.G.PREETHA
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
22.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Mat.Appeal.No.191 OF 2012 2
JUDGMENT
Dated this the 22nd day of October 2019 Shaffique, J.
This appeal is filed by the petitioner in O.P No.49/2011 of the Family Court, Thalassery. The Original Petition is filed for divorce on the ground of cruelty and desertion. The marriage between the couple was on 14.11.1999 as per the Hindu religious rites and custom and a girl child was born on 8.1.2001. Both are teachers. The petitioner was working at Kannur and the respondent at Pathanamthitta. According to the petitioner, she was not at all interested to live with him and after delivery of the child, she never came back to the matrimonial home. Though he made several attempts to have a reconciliation, her attitude was totally unfavourable and he was ill treated by her and her relatives and on one occasion he was even manhandled by the relatives of the respondent. He also alleged that since September, 2004 she was living separately and therefore he sought for divorce on the ground of desertion also. According to him, there is no valid reason for her to remain away from the matrimonial home.
2. The respondent wife denied the allegations. Mat.Appeal.No.191 OF 2012 3 According to her, she had not committed any acts of cruelty. It is the petitioner who had insisted that the building constructed by her with her own funds has to be transferred in the name of the petitioner, which she did not agree and that was the reason for the matrimonial dispute. That apart, he used to come and reside with her once in a month until 2010. Therefore, a case of desertion is not made out.
3. In order to prove the case, the petitioner examined himself as PW1 and relied on Exts.A1 to A5. The respondent examined herself as RW1 and she placed reliance on Ext.B1 to B2(c). The Family Court after considering the evidence found that the allegation of cruelty had not been made out and that apart there was no evidence to prove desertion. Accordingly, claim for dissolution of the marriage was denied.
4. We heard the learned counsel appearing on either side. The fact that the parties have been separated since a considerably long time is not in dispute. However, the date of separation is disputed by both the parties. According to the wife, the husband used to visit her until 2010, whereas, according to the husband, they started living separately since September 2004. A perusal of the evidence of RW1 would show that she had not seen the respondent since in the year Mat.Appeal.No.191 OF 2012 4 2009. The learned counsel for the appellant submits that even if 2009 is taken into consideration, the Original Petition having been filed after two years, a case of desertion has been made out.
5. It can be seen from the materials placed on record that the parties were living separately on account of their avocation. One was at Kannur and the other one was at Pathanamthitta and the practice was that once in a while they used to meet. Of course there was separation for a considerably long period between the couple and they were not in good terms as well. The allegations and counter allegations are seen made and this is a case where their marital tie has virtually broken and though attempts were made for settlement, the parties could not settle the matter. Therefore, there is no chance for reunion as well. Irretrievable break down of marriage is clear from the facts and circumstances of the case. Of course irretrievable break down of the marriage is not a ground for granting divorce.
6. The question is whether the allegation of mental cruelty and desertion had been proved in the case. As far as the mental cruelty is concerned, it is settled law and as held by the Apex Court in Samar Ghosh v. Jaya Ghosh (2007(4) Mat.Appeal.No.191 OF 2012 5 SCC 511) that long separation itself amounts to mental cruelty. This is a case in which the parties lived together only for a very short period, if we take into account the number of days they lived together right from the date of marriage itself. Therefore, there is no love or affection between them and they have their own differences. That apart, the wife was residing at the parental house since 8.1.2001. But according to her she was working as a teacher near the school and therefore she was residing in the said house. But still it could be seen that the parties could not have a conciliation regarding their matrimonial issues. The respondent does not have case that she used to visit her husband during holidays. Taking into account all these facts, this is a clear case in which the parties remain at loggerheads and the wife had been remaining separate without sufficient reason for a period more than two years. In order to prove desertion, of course, the court will have to consider whether there is any specific reason for the wife to remain away from the matrimonial home. Of course, there is some explanation, but still as the parties have not contacted each other for a considerably long period at least from 2009, it is only appropriate that the marriage be dissolved on the ground of desertion.
Mat.Appeal.No.191 OF 2012 6
In the result, the appeal is allowed. We set aside the judgment of the Family Court, Thalassery in O.P.No.49/2011. The marriage between the petitioner and the respondent stands dissolved.
Sd/-
A.M.SHAFFIQUE JUDGE Sd/-
MARY JOSEPH JUDGE Ab Mat.Appeal.No.191 OF 2012 7 APPENDIX PETITIONER'S ANNEXURES:
ANNEXURE A1 : COPY OF THE APPLICATIONS SUBMITTED BY THE APPELLANT FOR INTER-DISTRICT TRANSFER. ANNEXURE A2: COPY OF THE APPLICATION SUBMITTED BY THE APPELLANT FOR APPOINTMENT AS BLOCK PROGRAMME OFFICER.
RESPONDENT'S ANNEXURES: NIL
//TRUE COPY//
P.A TO JUDGE
ab