The High Court allowed an appeal against a Family Court order denying divorce on grounds of cruelty and desertion. The Court held that the husband's failure to return to the matrimonial home after 2006 constituted desertion, granting divorce to the wife.
The marriage between the parties stands dissolved by a decree of divorce.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
TUESDAY,THE 25TH DAY OF SEPTEMBER 2018/3RD ASWINA, 1940
Mat.Appeal.No.564 of 2012
AGAINST THE JUDGMENT DATED 31-05-2012 IN OP NO.612/2011 of FAMILY COURT, KOTTAYAM AT ETTUMANOOR.
APPELLANT/PETITIONER:
P.M.ASWATHY, AGED 34 YEARS, D/O.V.M.MANI, VELLIKKADAMUKALEL, NEENDOOR P.O., ETTUMANOOR, KOTTAYAM-686 601.
BY ADVS. SRI.H.B.SHENOY SMT.K.R.PRIYA SMT.LAKSHMI B.SHENOY
RESPONDENT/RESPONDENT:
K.G.RAJENDRAN (NAME CORRECTED) AGED 40 YEARS, SON OF GOVINDAN ACHARI, KAVALAYIL HOUSE, KARAPUZHA P.O., KOTTAYAM, PIN - 686 003.
(THE NAME OF THE RESPONDENT - K.G.RAJENDRAN - IS CORRECTED AS - K.G.RAVINDRAN - AS PER ORDER DATED 28.06.2013 IN IA 1272/13.)
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 25.09.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Mat. Appeal No.564 of 2012
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JUDGMENT
Shaffique, J.
This appeal is filed by the petitioner in O.P.No.612 of 2011 on the file of the Family Court, Kottayam at Ettumanoor. The original petition was filed by the appellant seeking divorce on the ground of cruelty and desertion. In the petition, she alleged that they got married on 4.2.2002 and a child was born in the wedlock on 15.1.2003. After she had gone to her parental home for delivery she was not taken back. She also alleged that during the marital relationship she had to suffer severe cruelty at the hands of the petitioner.
According to him, since the respondent does not have necessary financial capacity, the petitioner and her parents decided to avoid him and accordingly she filed the original petition seeking divorce on the ground of cruelty and desertion.
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desertion has been made. The marriage between the
parties was on 4.2.2002 and a child was born on 15.1.2003. According to the petitioner, she was not taken back to the matrimonial home after the said date. The original petition was filed only in the year 2011. The Family Court, based on the letters
written by the petitioner, Exts.B1 and B2, observed that the petitioner is a loving wife and she wanted
the respondent to come and live with her. That apart,
it was observed that the respondent had a case that they lived together upto 4.8.2006 and taking into account the fact that she always wanted to live with her husband the case of desertion was not made out. It is found that until 2011 she was expecting her husband coming back.
ground of desertion is, a spouse not taking care of the other. In this case, the petitioner has a specific contention that she was not taken care of by
her husband after she left the matrimonial home for delivering the child. She had written Exts.B1 and B2 letters expressing her love towards him and requesting
Mat. Appeal No.564 of 2012
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him to come back to take care of her. But
unfortunately he did not move a little finger. He kept quite. According to the respondent, he had accompanied her for attending a PSC test even after 14.3.2003 and they lived together on many occasions till 4.8.2006. But, the respondent could not adduce
any evidence to prove that he has taken care of the petitioner and the minor child. Even assuming that he
has taken care of them until 4.8.2006, when it is admitted that he had not taken any steps to bring his wife and child back to the matrimonial home after
4.8.2006, it is a clear case of desertion. The fact
that the wife was expecting a normal life with the respondent/husband does not mean that he had not deserted her. Her expectation to live together is the main basis to consider whether the husband had
deserted her. Admittedly, she is residing at her parental home. What are the circumstances under which
she is not residing at the matrimonial home is to be
understood. In the case on hand, despite her
expectation to live together he had ignored her for a considerably long period, which clearly amounts to desertion. This fact was completely ignored by the
Mat. Appeal No.564 of 2012
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Family Court. Considering the above circumstances, we
are of the view that the Family Court was not justified in arriving at a finding that a case of desertion had not been made out. Hence, we are of the view that the appellant is entitled for divorce on the ground of desertion.
concerned, it could be seen that on account of her
love towards him, which is evident from Exts.B1 and B2 letters, there is no cruelty. Even otherwise, the allegation of cruelty is made after a substantial long period. We do not think that there is any error committed by the Family Court in denying divorce on the ground of cruelty.
the Family Court in O.P.No.612 of 2011 is set aside and the original petition is allowed as under:
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The marriage between the petitioner and the respondent shall stand dissolved by a decree of
divorce. No costs.
Sd/
A.M.SHAFFIQUE
JUDGE
Sd/
P.SOMARAJAN
JUDGE
ahz/
2 issues framed by the court
Whether the facts constitute desertion warranting divorce.
Whether the finding regarding desertion made by the Family Court was correct.
2 provisions across 2 enactments
P.M. Aswathy
K.G. Rajendran
A.M. Shaffique
P. Somarajan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
