Allowed

K.G.Jayasree v. Mohammed Arshad

Kerala HC20 Jul 2018Mat.Appeal/892/2011

Case brief

AI extract

What is this about?

In Mat. Appeal No. 892 of 2011, the Kerala High Court allowed an appeal by a wife challenging her divorce decree. The Court held that despite the marriage being irretrievably broken, divorce cannot be granted without proof of statutory grounds like cruelty or desertion. The decree was set aside.

What did the court decide?

The judgment of the Family Court is set aside; O.P. No. 424 of 2006 is dismissed; the appeal is allowed.

K.G.Jayasree Vs Mohammed Arshad — 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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FRIDAY, THE 20TH DAY OF JULY 2018 / 29TH ASHADHA, 1940

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Mat.Appeal.No. 892 of 2011

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AGAINST THE JUDGMENT IN OP 424/2006 of FAMILY COURT, NEDUMANGAD DATED 30-04-2011

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APPELLANT/RESPONDENT:

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K.G.JAYASREE D/O.GOPINATHA PILLAI, S.P.NIVAS, FROM KRISHNA VILASOM, MANKULAM, VENJARAMMOODU, THIRUVANANTHAPURAM DISTRICT.

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BY ADV.SRI.J.JAYAKUMAR

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RESPONDENT/PETITIONER:

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MOHAMMED ARSHAD WORKING SOUDI ARABIA, CONVERTED AS MUSLIM, FORMERLY NAMED AS T.RAJENDRA PRASAD PILLAI, S/O.THANKAPPAN PILLAI, RESIDING AT ABIL MANZIL, VATTAPPARA, C.V.NELLOOR P.O., VELINELLOOR VILLAGE, NOW VADAKKEPLAVILA VEEDU & T.S.MANDIRAM, PARAVOOR, KOLLAM DISTRICT, PIN-691 301.

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BY ADV. SRI.SHAIJAN C.GEORGE

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THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 20-07-2018, 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. 892 of 2011

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- - - - Dated this the 20^th day of July, 2018

JUDGMENT

SHAFFIQUE, J.

This appeal has been filed by the respondent/wife challenging the judgment dated 30.4.2011 in O.P.No. 424 of 2006 of the Family Court, Nedumangad by which divorce has been granted against her.

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The parties got married on 8.1.1989 as per Hindu customary rites and ceremony. Two children were born in the wedlock. They were living together till the year 2005 and thereafter according to the appellant/wife she was neglected and the respondent was living with a Muslim women. Later he changed his religion as well. In order to legalise his living together with the Muslim woman, according to the appellant, the respondent filed O.P.No.424 of 2006 on the ground of desertion and cruelty.

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Before the Family Court, the matter was heard along with O.P.No.2224/2005, the petition filed by the appellant and her children seeking maintenance. Common evidence was taken. The respondent herein/husband and two

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Mat.A. No. 892 of 2011 -2-

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witnesses were examined as PW1 to PW3 and the appellant was examined as DW1. The Family Court did not grant divorce on either of the grounds raised, whereas the court proceeded on the basis that the marriage was irretrievably broken down.

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Learned counsel for the appellant submits that the finding of the Family Court cannot be a reason for granting divorce. The main allegation is cruelty for which there is absolutely no pleading or evidence. Cruelty had been meted out against the appellant when the respondent/husband had abandoned his wife and two children and gone with a Muslim lady.

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It is settled law that merely for the reason that the marriage has irretrievably broken is not a ground for divorce. However, in certain cases the Apex Court had while exercising power under Article 142 of the Constitution of India directed grant of divorce on the ground that the marriage is irretrievably broken. In an instance where divorce is claimed on the basis of cruelty, unless the cruelty is proved, the court is not enjoined with the power to grant divorce. In this case there is no evidence

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Mat.A. No. 892 of 2011 -3-

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for either desertion or cruelty and therefore the Family Court is not justified in granting divorce on the ground that the marriage is irretrievably broken.

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Therefore we set aside the judgment of the Family Court. O.P.No.424 of 2006 shall stand dismissed. The appeal is allowed. No costs.

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Sd/-

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A.M.SHAFFIQUE, JUDGE

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sd/-

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P.SOMARAJAN, JUDGE

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K.G.Jayasree v. Mohammed Arshad

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K.G.Jayasree v. Mohammed Arshad

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