Allowed

Udayakumar.S. v. Sindhu.K.

Kerala HC22 Nov 2013MFA (G & W)/41/2012

Case brief

AI extract

What is this about?

The High Court allowed the husband's divorce petition under Section 13(1)(ib) of the Hindu Marriage Act, finding the wife deserted him. The Court upheld the custody order keeping the minor daughter with the mother for her welfare, granting the father visitation rights. The wife's petition for restitution of conjugal rights was dismissed.

What did the court decide?

Decree of divorce granted; custody denied to husband; visitorial rights allowed to husband.

Udayakumar.S. Vs Sindhu.K. — 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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FRIDAY, THE 22ND DAY OF NOVEMBER 2013/1ST AGRAHAYANA, 1935

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MFA.No. 41 of 2012 ()

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AGAINST THE ORDER/JUDGMENT IN OP(GW) 985/2009 of FAMILY COURT, ALAPPUZHA DATED 26-12-2011

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APPELLANT/PETITIONER:

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---------------------

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UDAYAKUMAR.S, AGED 40, S/O. SUKUMARAN, RESIDING AT JAYALAYAM, KALAVAMKODAM.P.O, VAYALAR VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT - 688 586.

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BY ADV. SRI.MANJU ANTONEY

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RESPONDENT/RRESPONDENT:

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-----------------------

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SINDHU.K., AGED 35, W/O. UDAYAKUMAR.S, JAYALAYAM (VAZHATHOPPIL) KALAVAMKODAM.P.O, CHERTHALA NOW RESIDING AT RADHAKRISHNA NILAYAM MARUTHOORVATTAM.P.O, KOKOTHAMANGALAM VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT - 688 524.

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BY ADV. SRI.K.RAMANATHAN

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THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 22-11-2013 ALONG WITH MAT.A.NOS.137 &157/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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ANTONY DOMINIC & P.D. RAJAN, JJ.

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M.F.A(G&W)No.41 of 2012, Mat.A.No.137 of 2012 & Mat.A.No.157 of 2012

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Dated this the 22^nd day of November, 2013

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JUDGMENT

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Antony Dominic, J.

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These appeals are filed by the husband and the respondent in these appeals is the wife. Their marriage was on 14.7.2003 and a child was born in that wedlock on 28.9.2006. Parties separated on 29.10.2008. Thereafter the appellant/husband filed O.P.No.611/2009 for divorce on the ground of cruelty and desertion as provided under Section 13 (1)(ia) and (ib) of the Hindu Marriage Act. Subsequently, the wife filed O.P.No.910/2009 seeking a decree for restitution of conjugal rights. The husband also filed O.P.No.985/2009 praying for the custody of the minor daughter.

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Before the Family Court, on behalf of the appellant/husband, himself and two other witnesses were examined as PWs 1 to 3 and he also produced Exts.A1 to A7. The wife was examined as RW1 and she produced Exts. B1 to B8. The cases were jointly tried and by a common judgment rendered on 26.12.2011, the Family Court dismissed O.P.No.611/200 and allowed O.P.No.910/2009.

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MFA.41/12 & Con.Cases 2

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O.P.No.985/2009 was also dismissed. It is in these circumstances, Mat.A.Nos.137/2012, 157/2012 and M.F.A(G&W) No.41/2012 are filed against the judgments in O.P.Nos.611/2009, 910/2009 and 985/2009 respectively.

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We heard the counsel for the appellant and also gone through the records of the cases.

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First we shall deal with Mat.A.Nos.137 and 157 of 2012 arising out of the judgments in O.P.No.611/2009 and 910/2009. In O.P.No.611/2009, the husband contended that the wife was in the habit of quarreling with him on silly matters. It is stated that even after the delivery of the child, her behaviour did not improve and that, she did not even take care of his aged father, who was suffering from cancer. The appellant had lost his mother at a young age and his family was being looked after by his mother's sister. According to the appellant, the respondent had adopted a very adverse attitude towards the step mother, who was residing with them and that the respondent failed to perform her marital obligations. He alleged that on 21.11.2005 when the respondent was quarreling with him, she left his company without any reason. Thereafter she was brought back after mediation and in spite of which on

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MFA.41/12 & Con.Cases 3

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29.10.2008 she again picked up quarrel with the appellant and his relatives and left the house along with her mother. It is in these circumstances, he filed the original petition alleging cruelty and desertion.

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However, the respondent pleaded that she was subjected to cruelty by the appellant and the sister of his mother. It was the case of the respondent that she and her child, who was suffering from acute thyroid and was under treatment, were thrown out of the matrimonial house. She also alleged that she was assaulted even in front of the Lekshmi Hospital on 20.09.2008. She also had a case that when she entered the house of the appellant on the strength of the order in M.C.No.124/2008, she was beaten by the appellant and his step mother. According to her, she was compelled to resign her employment and that, her employment benefits were snatched away by the appellant. She also complained that she was prevented from attending the marriage of her sister and that, her gold ornaments and money were also misappropriated by the appellant. On these grounds, she sought dismissal of the petition.

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In so far as O.P.No.910/2009 filed by the

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MFA.41/12 & Con.Cases 4

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respondent/wife is concerned, there she would contend that although she was subjected to cruelty and was driven out of the matrimonial house, she was willing to resume cohabitation. According to the respondent, in spite of that the appellant had withdrawn from her company without any justifiable reason. In that original petition, the appellant filed a counter affidavit denying the allegations against him and also contended that the respondent was residing separately from him without any justifiable reason. He therefore, pleaded for dismissal of O.P.No.910/2009.

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The evidence in this case consists of PWs 1 to 3 and RW1, the wife. PW1, the appellant, explained the various acts of cruelty allegedly committed by the respondent. These include various instances of quarrel and the cruel treatment that he suffered at the hands of the respondent. He also narrated the instances when his ailing father was ill treated by the respondent. He also narrated the instances when the respondent is alleged to have misbehaved with his step mother.

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Although the appellant was subjected to a very lengthy cross examination, the evidence available before the Family

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MFA.41/12 & Con.Cases 5

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Court shows that his testimony was not discredited in any manner. PWs 2 and 3 are the neighbours of the appellant. They also fully supported the case of the appellant. They have also corroborated the instances that were spoken to by the appellant. The cross examination of these witnesses shows that nothing was brought out to disbelieve their version that was spoken to in the court.

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The respondent's evidence is one of complete denial and her claims were not corroborated in any manner.

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The conclusion in the judgment of the Family Court shows that the evidence of PWs 2 and 3 were disbelieved by the Family Court on the basis that they are interested witnesses. The only reason for saying so is that those witnesses are also hailing from the immediate neighborhood of the appellant.

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In our view if the evidence is otherwise confidence inspiring, it is improper for the Family Court to discard the evidence for the only reason that the witnesses hail from the neighborhood of the appellant. In our view, the evidence adduced by PWs 2 and 3 fully corroborated by the evidence of PW1 and there was absolutely no reason for the Family Court to disbelieve their evidence. If that be so, the case of

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MFA.41/12 & Con.Cases 6

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cruelty pleaded by the appellant stood proved with the evidence adduced by PWs 1 to 3 and the conclusion to the contrary seen in the judgment of the Family Court cannot be sustained.

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In so far as the desertion pleaded by the appellant is concerned, his case was that on 29.10.2008 the respondent picked up quarrel with the appellant and his relatives and left the matrimonial home along with her mother. It is stated that along with the mother, the respondent left to her parental home and did not return to the matrimonial home. The fact that she left the matrimonial home on 29.10.2008 is not disputed even by the respondent. Reading of the evidence of PW1 shows that he has fully explained the circumstances in which the respondent left the matrimonial home on 29.10.2008. He has also deposed that after her departure, despite the intervention of the mediators, the respondent refused to return to the matrimonial home. The evidence of PWs 2 and 3 also shows that at the time of departure she had declared that she cannot live in the matrimonial home and that she had no intention to return to the matrimonial home. The evidence of the respondent, who was examined as RW1 in the court, shows that she had declared her unwillingness to resume

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MFA.41/12 & Con.Cases 7

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cohabitation. Obviously, the aforesaid evidence available in the case shows that the respondent left the matrimonial home with an intention to put an end to the matrimonial life and with the firm decision not to return to the matrimonial house. This, therefore, establishes the case of desertion as contemplated under Section 13(1)(ib) of the Hindu Marriage Act. In a case of this nature, the appellant ought to have been granted a decree of divorce.

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From the above discussion, it is evident that the respondent had deserted the appellant without any justifiable cause. Such a lady cannot seek a decree for restitution of conjugal rights and therefore, the original petition filed by her deserves only dismissal.

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In such circumstances, we set aside the judgment of the Family Court dismissing O.P.No.611/2009 filed by the appellant and allow Mat.A.No.137/2012. There will be a decree dissolving the marriage between the appellant and the respondent under Section 13(1)(ib) with effect from today.

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O.P.No.910/2009 filed by the respondent will stand dismissed and Mat.A.No.157/2012 will also stand allowed.

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M.F.A(G&W)No.41/2012 arises out of the judgment in

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MFA.41/12 & Con.Cases 8

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O.P.No.985/2009 filed by the appellant for the custody of the minor daughter. Admittedly, the daughter was born only on 28.9.2006 and is still a young child. The evidence before the Family Court also shows that the child is suffering from ailment and needed constant treatment. At this stage in the life of the child, we agree with the Family Court that her welfare will be served better, if she is allowed to grow up in the company of the mother. Therefore, by allowing the child to be with the mother, the Family Court was only passing an order in the welfare of the child. As far as the petitioner is concerned, he being the father has been granted visitorial rights and we do not find anything illegal in the judgment dismissing O.P.No.985/2009. Therefore MFA(G&W)No.41/2012 is dismissed.

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Sd/ANTONY DOMINIC, JUDGE.

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Sd/P.D. RAJAN, JUDGE.

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/true copy/

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P.S. to Judge

Udayakumar.S. v. Sindhu.K.

Case brief

What is this about?

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Udayakumar.S. v. Sindhu.K.

Case brief

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