Dismissed

Hemalatha.P. v. C.v.Vijayakumar

Kerala HC18 Jul 2018Mat.Appeal/25/2008

Case brief

AI extract

What is this about?

The High Court of Kerala disposed of a matrimonial appeal filed by a wife against a Family Court order dismissing her divorce suit. The appeal was based on allegations of cruelty and desertion. The High Court upheld the Family Court's finding that sufficient evidence for divorce had not been made out.

What did the court decide?

The appeal against the dismissal of the divorce petition was dismissed.

Hemalatha.P. Vs C.v.Vijayakumar — Matrimonial and Divorce | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE

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THE HONOURABLE MR. JUSTICE P.SOMARAJAN

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WEDNESDAY, THE 18TH DAY OF JULY 2018 / 27TH ASHADHA, 1940

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Mat.Appeal.No. 25 of 2008

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AGAINST THE ORDER IN OP 866/2002 of FAMILY COURT,ERNAKULAM DATED 31-01-2007

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APPELLANT/PETITIONER

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HEMALATHA.P., W/O.C.V.VIJAYAKUMAR, RESIDING AT CHALAYIL HOUSE,, KALLAYIPARAMBU, NEAR N.A.D QUARTERS, N.A.D. P.O., ALUVA.

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BY ADVS.SMT.S.KARTHIKA

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SRI.M.R.ANISON SMT.K.P.GEETHA MANI SRI.T.R.RAJESH SRI.M.S.UNNIKRISHNAN

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RESPONDENT/RESPONDENT:

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C.V.VIJAYAKUMAR, CHAKKALATH HOUSE, NEAR S.D.P.Y. HIGH SCHOOL,, OLD PIPELINE ROAD, PALLURUTHY,, KOCHI-6.

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THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 18-07-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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A.M.SHAFFIQUE & P.SOMARAJAN, JJ

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- - - - Mat.A. No. 25 of 2008

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- - - - Dated this the 18^th day of July, 2018

JUDGMENT

SHAFFIQUE, J.

This appeal has been filed by the petitioner in O.P.No.866/2002. The petitioner challenges the judgment dated 31.1.2007 of the Family Court, Ernakulam, dismissing her claim for divorce. The marriage between the parties was solemnized on 15.3.1998. A child was born in the wedlock. Thereafter, according to the petitioner, the respondent herein was not taking care of the day-to-day expenses and deserted her. Further, he had inflicted physical and mental cruelty on the petitioner.

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The respondent denied the allegations and contended that she was making false allegations against him and in fact, he was treated with cruelty. Further it is contended that she had obtained a job in Naval Base and was residing with her parents. She always insisted that he should also go and reside with her parents. But he objected to it and therefore she filed suit for divorce.

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Before the Family Court, the petitioner relied on

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Mat.A. No. 25 of 2008 -2-

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evidence of PW1 and PW2. Respondent placed reliance on the evidence of RW1 to RW3. Exts. A1 to A5 were marked on the side of the petitioner and Exts. B1 to B10 were marked on the side of the respondent.

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The Family Court after considering the evidence on record found that the case was filed before the expiry of period required for filing a petition on the ground of desertion and accordingly the said ground was rejected. Family Court also found that the petitioner was unable to prove the cruelty and accordingly the case on the ground of cruelty was also rejected.

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The learned counsel for the appellant argued that the Family Court committed serious error in not allowing the divorce petition. The cruelty was pleaded and proved and as such, the Family Court ought to have granted divorce. The learned counsel submits that after the child was born in the wedlock no attempt has been made by the respondent to take care of the child. That apart, she was a pure vegetarian and she was forced to consume non-vegetarian food.

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On a perusal of the averments in the petition and after hearing the learned counsel, we do not think that any specific allegations of cruelty have been made out. With regard to the

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Mat.A. No. 25 of 2008 -3-

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cruelty, other than the oral testimony of PW1, no other evidence is forthcoming which could be accepted. PW2 a neighbour had been examined. His version is only hearsay and he had not witnessed any incident. The Family Court was therefore justified in rejecting such evidence. Whereas the respondent had examined two other witnesses. RW3 is a friend of the respondent. RW2 and RW3 had categorically stated that the respondent had taken care of the family and he had expended large amount for treatment at the time of delivery and for treating the child as well. Therefore, the said allegation of the petitioner is not true.

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The allegation that she was forced to cook non vegetarian food was also found against on valid reason.

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Taking into account the over all facts and circumstances, we do not think that a case has been made out for divorce. This appeal is hence dismissed.

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Sd/- A.M.SHAFFIQUE, JUDGE

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sd/-

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P.SOMARAJAN, JUDGE

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Hemalatha.P. v. C.v.Vijayakumar

Case brief

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Hemalatha.P. v. C.v.Vijayakumar

Case brief

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