Allowed

Chenthamarakshan v. B.Indhu

Kerala HC19 Aug 2013Mat.Appeal/462/2009

Case brief

AI extract

What is this about?

The High Court allowed the appeal against the Family Court's dismissal of a divorce petition. It held that non-compliance with Rule 7(3) of the Kerala Rules was not fatal since the respondent admitted the separation facts in court. The Court found desertion established and granted a decree.

What did the court decide?

Decree for divorce under Section 13(1b) of the Hindu Marriage Act dissolving the marriage with effect from the date of the judgment.

Chenthamarakshan Vs B.Indhu — Matrimonial and Divorce | Kerala HC (2013)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE ANTONY DOMINIC

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THE HONOURABLE MR. JUSTICE P.D.RAJAN

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MONDAY, THE 19TH DAY OF AUGUST 2013/28TH SRAVANA, 1935

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Mat.Appeal.No. 462 of 2009 ( )

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------------------------------AGAINST THE ORDER & JUDGMENT DATED 31-01-2009 IN OP 613/2006 OF FAMILY COURT, PALAKKAD

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PETITIONER / PETITIONER :

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CHENTHAMARAKSHAN, AGED 41 YEARS, S/O. LATE T.P. MADHAVAN, RESIDING AT PERIYAPADAM KALAM, ETHANUR P.O. AMSON CHITOOR TALUK.

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BY SENIOR ADVOCATE SRI.K.RAMAKUMAR BY ADVS. SRI.J.R.PREM NAVAZ SRI.T.RAMPRASAD UNNI

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RESPONDENT/RESPONDENT :

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B. INDHU, AGED 32 YEARS, D/O. BHASKARAN, RESIDING AT BHASKARANILAYAM KUNDUKAD, KALIPPARA, KOTTEKAD AMSOM, PALAKKAD TALUK.

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THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 19-08-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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ANTONY DOMINIC & P.D.RAJAN, JJ

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Mat Appeal No.462 of 2009 ......................................... Dated 19^th August, 2013

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JUDGMENT

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ANTONY DOMINIC, J

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This appeal arises from the judgment of the Family Court in O.P.No.613 of 2006. The marriage between the appellant husband and respondent wife was solemnized on 21.12.1997. A child was born to the couple on 9.12.1998. As a result of the difference of opinion between the couple, they separated in June, 2002. On 21.2.2005, the appellant filed O.P before District Court, Palakkad alleging cruelty and desertion as grounds, as provided under Section 13(1a) and (1b) of Hindu Marriage Act and seeking divorce. On the establishment of Family Court, Palakkad, the O.P was transferred to that court and was re-numbered as O.P.No.613 of 2006. Before the Family Court, appellant was examined as PW1 and respondent was examined as RW1. Exts.A1 to A5(a) and Ext.B1 were also marked. Finally, Family Court rendered judgment dated 31.1.2009, dismissing the O.P. It is aggrieved by this judgment, the husband has filed this appeal.

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We heard learned senior counsel appearing for appellant husband and also the learned counsel appearing for respondent wife. During the hearing, the only contention urged before us was that before the Family Court, in the pleadings as well as in the evidence, the ground of desertion was established and that the Family Court

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illegally rejected the said contention on the ground that there was non-compliance of Rule 7(3) of the Hindu Marriage(Kerala) Rules, 1963 (hereinafter referred to as the 'Rules'). While according to the learned senior counsel , this finding of the Family Court is illegal, learned counsel for the respondent sought to sustain the said finding. According to him, even apart from the non-compliance of Rule 7, the evidence available before Family Court itself indicated that wife had no intention to desert the husband. On this ground, respondent sought dismissal of the appeal.

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Having considered the rival submissions made at the Bar, we feel that the Family Court has erroneously dismissed the petition. Reading of the judgment of Family Court itself show that under point No.2, where the issue of desertion was considered, Family Court noticed that RW1 wife in cross examination has admitted that the couple did not live together since June, 2002. The court has also found that the petition was presented two years after the said separation. The court has also found that respondent wife did not prosecute her contention that she was driven out of her matrimonial home and that she did not stick on to the said allegation in the proof affidavit filed. Referring to the deposition of the respondent wife in O.P.No.613 of 2006, court also found that the respondent has admitted that the allegation that she was driven out of her matrimonial home was not correct. Thus, the fact that

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there was desertion in June, 2002 has been admitted by the wife and has been found by the Family Court. Family Court had also found that respondent had no justifiable reason for such desertion. However, proceeding further, Family Court found that the petition did not contain date and circumstances of desertion and therefore there is non-compliance of Rule 7(3) of the Rules and on that basis dismissed the petition.

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Rule 7 of the Rules deals with the contents of a petition filed under the Hindu Marriage Act. This rule provides that in addition to the particulars required to be given under Order VII Rule 1 of Code of Civil Procedure and Section 20(1) of the Act, every petition for divorce shall contain the particulars mentioned therein. Sub-rule (3) says that in cases where desertion or cruelty are alleged, the petitioner shall state the date and circumstances under which the alleged desertion began and/or specific acts of cruelty. The rule therefore requires the petitioner to furnish in the petition, the date and circumstances under which the alleged desertion began. In so far as this case is concerned, in the petition filed by the appellant, all that he has stated is that desertion began in June 2002. Therefore, technically, Family Court was right in its factual conclusion that the date and such other details required to be furnished under Rule 7(3) of the Rules are absent in the petition. However, one has to look at the object of the Rules. The purpose

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that is sought to be achieved by Rule 7(3) is that the respondent in the petition should have notice of the case pleaded by the petitioner, so that respondent could effectively defend the case set up by the petitioner.

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In so far as this case is concerned, the respondent wife herself has in the box, admitted of having deserted the husband in June, 2002. Therefore, the absence of the date or other particulars concerning the desertion were irrelevant and its absence has not caused any prejudice to the respondent wife in defending her petition. In such a case, to our mind, the mere absence of particulars which are required to be furnished under Rule 7(3) of the Rules in the petition, did not cause any prejudice to the respondent and therefore this irregularity was not fatal to the petition filed by the appellant, husband. Consequently, Family Court could not have thrown out the petition on that ground.

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Now what remains is whether at the time of desertion, respondent had any intention to terminate the relationship. It is true that in the proof affidavit filed, respondent has offered to join the husband anytime he calls her. It is also true that such an offer has been made by respondent in Exts.A1 and A1(a). However, it is important to be noticed that in the objection filed by respondent wife, she has not made such an offer. Therefore, what is stated by her in the proof affidavit is improvement to her own case. In so far

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as Ext.A1 and Ext.A1(a) are concerned, there also an offer has been made. However, at any point of time, did the respondent make any effort to have a re-union with the appellant, nor has the respondent filed an application for restitution of conjugal right at any point of time. Therefore, we are not persuaded to think that the offer made by the respondent was a bondafide one and that too, for the reason that even according to her, she was not driven out of her matrimonial home.

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Therefore, on the materials available, we are satisfied that the appellant has made out a case of desertion entitling him for a decree for divorce.

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For all these reasons, the judgment of the Family Court, Palakkad O.P.No.613 of 2006 will stand set aside and it is allowed. Appeal is allowed, granting a decree for divorce under Section 13 (1b) of Hindu Marriage Act dissolving the marriage between the appellant and respondent with effect from today.

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ANTONY DOMINIC, JUDGE

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P.D.RAJAN, JUDGE

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lgk

Chenthamarakshan v. B.Indhu

Case brief

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Chenthamarakshan v. B.Indhu

Case brief

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