Kerala High Court
Devi @ Baby vs Karunan @ Karunakaran on 30 January, 2020
Equivalent citations: AIRONLINE 2020 KER 145
Bench: A.M.Shaffique, Mary Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MRS. JUSTICE MARY JOSEPH
THURSDAY, THE 30TH DAY OF JANUARY 2020 / 10TH MAGHA, 1941
Mat.Appeal.No.516 OF 2013
AGAINST THE JUDGMENT IN OP 370/2011 DATED 29-12-2012 OF FAMILY
COURT, VADAKARA
APPELLANT/RESPONDENT:
DEVI @ BABY
D/O.KUTTYPERACHAN, AGED 51,SWASTHAM, KIZHAKKE PATHARI
HOUSE, PATHALAYANI AMSOM, DESOM, KOYILANDY TALUK.
BY ADVS.
SRI.R.PARTHASARATHY
SMT.SEEMA
RESPONDENT/PETITIONER:
KARUNAN @ KARUNAKARAN
S/O.SANKARAN, THEYYARI HOUSE, MP.6/453, SWASTAM, AGED
53 YEARS, MOODADI AMSOM, MUCHUKUNNU DESOM, KOYILANDY
TALUK - 673 305.
BY ADV. SRI.A.RANJITH NARAYANAN
BY ADV. SMT.A.SIMI
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
30.01.2020, ALONG WITH Mat.Appeal.562/2013, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
2
Mat.Appeal.Nos.516 & 562 of 2013
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MRS. JUSTICE MARY JOSEPH
THURSDAY, THE 30TH DAY OF JANUARY 2020 / 10TH MAGHA, 1941
Mat.Appeal.No.562 OF 2013
AGAINST THE JUDGMENT IN OP 522/2011 DATED 29-12-2012 OF FAMILY
COURT, VADAKARA
APPELLANT/PETITIONER:
DEVI @ BABY
AGED 51 YEARS
D/O.KUTTYPERACHAN,SWASTHAM, KIZHAKKE PATHARI HOUSE,
PATHALAYANI AMSOM, DESOM, KOYILANDY TALUK
BY ADVS.
SRI.R.PARTHASARATHY
SMT.SEEMA
RESPONDENT/RESPONDENT:
KARUNAN @ KARUNAKARAN, AGED 53 YEARS
S/O.SANKARAN, THEYYARI HOUSE,
MP.6/453,SWASTHAM,MOODADI AMSOM, MUCHUKUNNU DESOM,
KOYILANDY TALUK,673305
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
30.01.2020, ALONG WITH Mat.Appeal.516/2013, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
3
Mat.Appeal.Nos.516 & 562 of 2013
JUDGMENT
Dated this the 30th day of January 2020 Shaffique, J These two appeals arise out of a common order passed by the Family Court in O.P.No.370/2011 and 522/2011. O.P.No.370/2011 has been filed by the husband seeking divorce on the ground of cruelty and desertion. O.P.No.522/2011 has been filed by the wife seeking restitution of conjugal rights. Parties got married on 21.1.1990 as per Hindu religious rites and ceremonies. They have no children.
2. According to the petitioner, he was not keeping well and he required continuous treatment. It was decided to sell the property and to purchase a small house at an interior place. In the meantime, husband of the petitioner's sister died in a road traffic accident and hence petitioner and respondent shifted to the sister's house at Kozhikode. Subsequently, the petitioner had certain debt and he intended to sell the Tharawad property. There was a demand from the side of the respondent to pay some amount to her brother which he refused. At this time petitioner's sister's husband died in a road accident and before the rituals were over, the respondent left the 4 Mat.Appeal.Nos.516 & 562 of 2013 house. She informed the petitioner that she had to attend the temple festival at her birth place. Later she field M.C.No.65/2007 before the Judicial Magistrate of First Class, Koyilandy arraying sister of the petitioner, his brothers and petitioner as accused. The said case was later settled on the basis of compromise and the petitioner agreed to deposit Rs.1,90,000/- in the name of both the parties and the interest can be utilised for paying maintenance.
3. They were thereafter living in the sister's house. However, on 11.12.2008, the respondent left the house stating that she had to attend marriage of her sister's daughter. After the marriage she did not come back and on enquiry it was understood that she was residing in her tharawad property at Panthalayani. Though the petitioner made several attempts to bring her back, due to her adamant attitude all the attempts failed. While staying separately, the respondent used to demand money threatening that on his failure he would be dragged to police station along with his family members. Respondent's sister is a woman Sub Inspector of Police. According to him, the respondent always demanded money from the petitioner and his relatives. She even filed a complaint before the the Vanitha Cell, Vatakara and his younger nephew was dragged to the Vanitha Cell more than once. His nephew was also summoned to Vanitha Commission, Kozhikode and was insulted in front of other litigants. She also approached the Taluk 5 Mat.Appeal.Nos.516 & 562 of 2013 Legal Service Committee, Koyilandy and filed A.P.No.1/2011 and thereafter approached the Family Court.
4. The respondent denied the allegations. According to her, she was always ready and willing to come back to the petitioner. Whereas the petitioner was not interested. She had to file case since she was completely ignored by the petitioner. She also sought for restitution of conjugal rights. Evidence consisted of the oral testimony of the couple as PW1 and RW1. Exts.A1 and B1 are the documents relied upon. The Family Court after considering the evidence on record found that allegation of desertion and cruelty had been proved and accordingly divorce was granted.
5. The learned counsel for the appellant/wife would argue that there is absolutely no material to arrive at a conclusion that the wife had meted out cruelty against the husband and the allegation of desertion is totally incorrect. It was the petitioner who stopped the company of the respondent and therefore the Family Court was not justified in finding that desertion had been proved. Reference is made to Ext.B1, which according to the learned counsel for the appellant/wife, would prove that she was always ready and willing to join the husband/respondent herein. On the other hand, the learned counsel appearing for the respondent herein/husband supports the judgment of the Family Court. It is argued that the Family Court has 6 Mat.Appeal.Nos.516 & 562 of 2013 considered all the relevant materials and divorce was granted on the basis of the material evidence that has been adduced by the parties. Further, it is submitted that the parties had been separated since 2008. The marriage is irretrievably broken and there is no chance for a reunion.
6. Having regard to the respective contentions of the parties it has to be considered whether the Family Court was justified in granting divorce. It is not in dispute that the petitioner was a sick person and he was not having any job. He had to sell his house and come and reside at his sister's house. Of course, this is a case in which the wife was not happy about the financial situation of her husband which prompted her to file a complaint seeking maintenance while the matrimonial relationship was in existence. Further the case of the petitioner is that, with effect from 11.12.2008, respondent/wife left him and did not come back. She had gone stating that she had to attend her sister's daughter's marriage. But she did not return. Though he tried his level best to bring her back, she was very adamant and did not come back. In the objection filed by the respondent she did not dispute the fact that she had left the company of the petitioner on 11.12.2008. RW1 while being examined admitted that she was residing with her sister at Kozhikode. Therefore the separation of the parties as on 11.12.2008 cannot be disputed.
7Mat.Appeal.Nos.516 & 562 of 2013
7. The question is, under what circumstances the respondent left the company of the petitioner and started residing separately. Ext.B1 had been produced which is a complaint filed by the respondent before the Women' Commission. In the said complaint it is stated that a police complaint had been filed against the petitioner before the Vanitha Cell, Kozhikode in the year 2009. The respondent also admitted the fact that she had filed a complaint against the nephew of the petitioner. The Family Court did not believe the contents of Ext.B1 since she had made mention that she was residing with her husband until 20.12.2010 which was found against her. Therefore, considering the totality of the evidence available in the case, two things are rather clear. (1) The appellant had left the petitioner on 11.12.2008 and thereafter she had filed several complaints against him. Even his nephew was made party to various complaints and according to the petitioner, he was unnecessarily summoned to the Vanitha Cell as well as before the Vanitha Commission. (2) It is also in evidence that on a previous occasion, the respondent/wife left the matrimonial home and immediately filed a case for maintenance which was later settled between the parties.
Taking into consideration all these facts it is rather clear that there is clear intention on the part of the appellant to desert the petitioner/husband as he was sick and was unable to maintain the 8 Mat.Appeal.Nos.516 & 562 of 2013 appellant/wife. Under such circumstances, the Family Court was justified in granting divorce. The Mat. Appeals are hence dismissed. No costs.
Sd/-
A.M.SHAFFIQUE JUDGE Sd/-
MARY JOSEPH
kp True copy JUDGE
P.A. To Judge