Partly allowed

Sreedevi S.K., W/O. Rajeev v. K.S.Rajeev

Kerala HC19 Jul 2018Mat.Appeal/398/2011

Case brief

AI extract

What is this about?

The High Court set aside the Family Court's finding of desertion as it failed to consider whether there was a reasonable cause for the wife's separation due to alleged manhandling. Divorce is upheld but only on grounds of cruelty, while partition of jointly held property is confirmed due to lack of proof regarding sole funding by the wife.

What did the court decide?

Divorce decree upheld on grounds of cruelty only, desertion not sustained; partition of property affirmed.

Sreedevi S.K., W/O. Rajeev Vs K.S.Rajeev — Matrimonial and Divorce | Kerala HC (2018)

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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 A.M.SHAFFIQUE & THE HONOURABLE MR. JUSTICE P.SOMARAJAN

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THURSDAY, THE 19TH DAY OF JULY 2018 / 28TH ASHADHA, 1940

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Mat.Appeal.No. 398 of 2011 (A)

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AGAINST THE JUDGMENT IN OP 1007/2009 of FAMILY COURT, THIRUVANANTHAPURAM, DATED 20-11-2010

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APPELLANT/COUNTER PETITIONER :-

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SREEDEVI.S.K, W/O. RAJEEV, RESIDING AT GOKULAM, HOSPITAL JUNCTION, POOVAR, NEYYATINKARA, THIRUVANANTHAPURAM.

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BY ADVS SRI. T.C. SURESH MENON SRI. JIBU P. THOMAS SRI. P.S. APPU SRI. A.R. NIMOD

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RESPONDENT/PETITIONER: -

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K.S. RAJEEV, S/O.S.KRISHNAN THAMPI, RESIDING AT NAMBIYADHI, PUTHIYATHURA.P.O., NEYYATINKARA, THIRUVANANTHAPURAM.

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BY ADV. SRI.P.V.ANIL BY ADV. SMT.R.RAMYA

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THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 19-07-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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DMR/-

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A.M.SHAFFIQUE & P. SOMARAJAN, JJ.

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Mat. Appeal No. 398 of 2011

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Dated this the 19^th day of July, 2018

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J U D G M E N T

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A.M. Shaffique, J.

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This appeal has been filed by the counter petitioner in O.P.No.1007/2009, challenging the judgment dated 20.11.2010. By the aforesaid judgment, the Court below granted divorce on the ground of cruelty and desertion, dismissing the prayer of the petitioner to appoint him as the guardian of the minor and passing of preliminary decree for partition of plaint schedule property. The parties are not in dispute regarding the custody of the minor child.

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In the appeal, the learned counsel for the appellant projects two contentions. One is that there was no reason to grant divorce on the ground of desertion and cruelty. Secondly, the Court below had committed serious error in directing partition of the petition schedule property.

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On the other hand, the learned counsel for the respondent/husband supported the aforesaid judgment and submitted that there is no reason to take a different view from what has already been taken by the Family Court.

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Mat. Appeal No. 398 of 2011

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The first ground on which the divorce had been

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granted on the ground of desertion as well as cruelty. While arriving at the finding regarding desertion, the Family Court proceeded on the basis that since the parties had been residing separately from 14.07.2006 and when an application for restitution of conjugal rights had been allowed by the Family Court the appellant/wife preferred an appeal and obtained a stay, that itself amounts to desertion. We do not think that the Family Court has considered the claim for desertion in the proper perspective. Section 13(1)(ib) of the Hindu Marriage Act, 1955 and the second explanation to the aforesaid section reads as under:

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“13. Divorce - (1) Any marriage solemnised, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party -

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(i) …....... (ia) ….......

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(ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or

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Mat. Appeal No. 398 of 2011

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Explanation - In this sub-section, the expression “desertion” means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.”

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Apparently, the Family Court ought to have considered whether there is any reasonable cause for the wife to leave her husband and remain at her parental house. If there is a reasonable cause for remaining away from the matrimonial home, the same does not amount to desertion as contemplated under the statute. In this case, the Family Court found that since she filed a matrimonial appeal against an order directing restitution of conjugal rights, it amounts to desertion. This finding, according to us, is wrong. The Family Court ought to have considered the question as to whether there was reasonable cause for the wife to remain away from the matrimonial home. She has a definite contention that she

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Mat. Appeal No. 398 of 2011

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was severely manhandled, on account of which she had to leave the matrimonial house. This aspect of the matter has not been considered by the Family Court. To that extent we are of the view that the judgment passed by the Family Court is liable to be set aside.

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Now coming to the other ground of cruelty, the Family Court had relied upon the evidence of PW1. He has a contention that she used to call him, an insane person. His evidence in that regard was supported by PW2. When, during matrimonial life calling names disliked by the other spouse clearly amounts to mental cruelty and this finding, according to us, cannot be disturbed. In so far as the divorce had already been granted, we are of the view that there is no reason to modify the decree. It is made clear that the divorce is granted only on the ground of cruelty and not on the ground of desertion.

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Yet another issue that had arisen in the case is with regard to the partition of the petition schedule property. The petition schedule property is having an extent of 17 cents

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Mat. Appeal No. 398 of 2011

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which was purchased in the joint names of the petitioner and the respondent. The respondent/wife has taken a contention that the entire amount for purchasing the petition schedule property was obtained by sale of her gold ornaments and another property. But, it is relevant to note that other than the oral testimony of RW1, there is no other evidence. None of the witnesses who had attested the document nor its scribe has been examined to prove the cash transaction. On the other hand, the husband has a case that two items of property were purchased, of which 50 cents covered by Exhibit A9 was purchased in the name of the wife and later when both the parties contributed, the petition schedule property was purchased in their joint names. The husband is an employed person and according to him he had sufficient funds to contribute for purchasing the property. In so far as the claim has been made by the wife that the entire amount had been spent by her, it is for her to prove that the entire consideration for the property was met by her. In the absence of any such evidence forthcoming, the Family Court was justified in

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Mat. Appeal No. 398 of 2011

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directing partition as they are co-owners of the property. It has to be assumed that both of them had contributed to the purchase of the property.

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In the result, there is no merit in the appeal except for the modification which we have already made in the judgment. The decree shall stands confirmed. Mat. Appeal is dismissed.

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Sd/- A.M.SHAFFIQUE (JUDGE)

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Sd/- P. SOMARAJAN (JUDGE)

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DMR/-

Sreedevi S.K., W/O. Rajeev v. K.S.Rajeev

Case brief

What is this about?

What did the court decide?

Sreedevi S.K., W/O. Rajeev v. K.S.Rajeev

Case brief

What is this about?

What did the court decide?

What the court decided

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