Allowed

Usha Padmanabhan v. Mr.Padmanabhan

Kerala HC6 Feb 2019Mat.Appeal/177/2010

Case brief

AI extract

What is this about?

Appeal against dismissal of divorce petition. High Court held that husband's jail detention in Dubai, deportation, and taking wife's passports caused mental agony. Found marriage irretrievably broken. Allowed appeal, set aside impugned order, and granted divorce.

What did the court decide?

Judgment of Family Court set aside; original petition allowed; marriage dissolved by decree of divorce.

Usha Padmanabhan Vs Mr.Padmanabhan — Matrimonial and Divorce | Kerala HC (2019)

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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

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THE HONOURABLE MR. JUSTICE A.M.BABU

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WEDNESDAY,THE 06TH DAY OF FEBRUARY 2019 / 17TH MAGHA, 1940

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Mat.Appeal.No. 177 of 2010

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AGAINST THE JUDGMENT IN OP 23/2009 of FAMILY COURT,KASARAGOD DATED 31-12-2009

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APPELLANT/PETITIONER:

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USHA PADMANABHAN, AGED 32 YEARS, W/O.PADMANABHAN, RESIDING AT NANDINI NILAYAM, KELUGUDDE, R.D.NAGAR P.O.,,KUDLU VILLAGE, KASARAGOD TALUK, KASARAGOD DISTRICT.

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BY ADV. SRI.T.MADHU

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RESPONDENT/RESPONDENT:

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MR.PADMANABHAN

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S/O.NARAYANAN, RESIDING AT NAMBISAN HOTEL, BUS STAND, NILESHWAR P.O.,, HOSDURG TALUK, KASARAGOD DISTRICT.

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BY ADV. SRI.JACKSON JOHNY SRI.MUHAMMED YAZIL.

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THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 06.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

Mat.A.No.177/2010

JUDGMENT

SHAFFIQUE, J

This appeal is filed by the petitioner in O.P.No.23/2009 challenging the judgment dated 31.12.2009 of the Family Court, Kasaragod by which the claim for divorce on the ground of cruelty had been dismissed.

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The petitioner and the respondent got married on 14.4.2000. A child was born in the wedlock on 23.4.2004. They got separated since April, 2008.

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The contention urged by the petitioner/wife is that after some time of their marital life the attitude of the respondent started changing. He stopped carrying out any job. He was arrested and detained in Dubai jail for 35 days. That apart, he was neglecting his wife and minor child. He left their company. Seven months prior to the date of separation, from their residence he took away all their documents and certificates including their passports. She alleged that on account of the removal of the said documents she suffered mental agony and was unable to obtain a better employment even abroad. Respondent denied the allegations. According to him they had a very good matrimonial life and he had not committed any cruelty as such. It is submitted that he was detained in a jail in Dubai since his sponsor had handed over to him a fake passport after having misused the original one and he had come back to India and started a gas agency. But it was a failure. Even though he attempted other businesses it did not succeed.

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Before the Family Court the petitioner/wife was examined as PW1

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Mat.A.No.177/2010

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and the respondent husband was examined as RW1. Ext.B1 to B15 documents were marked on the side of the respondent. The Family Court on a consideration of the factual aspects involved in the matter found that there is no evidence to prove cruelty.

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The learned counsel for the appellant submits that this is a fit case in which divorce ought to be granted on the ground of cruelty. It is submitted that, though the couple were living together in Dubai, later he was arrested and detained in jail. The couple had to come back and though the respondent started various businesses, he fell into trouble. The petitioner had to get herself an employment to maintain her family and later on, seven months prior to the date of separation he had taken away all her documents including her passport which prevented her from getting a better employment abroad. The child's certificates and passport were also taken away by the husband.

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The learned counsel for the respondent while supporting the judgment of the Family Court submitted that the instances pointed out by the petitioner does not amount to prove cruelty.

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We heard the learned counsel on either side and peruse the records.

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This is an instance where the respondent admittedly was detained in a jail in Dubai. He had an explanation for the same. According to him, his sponsor had given him a fake passport. The petitioner was very well employed abroad and she had to come back on account of the fact that her husband was deported from Dubai. While in India also she got another employment. But later on the respondent started neglecting him. But

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Mat.A.No.177/2010

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according to him it was on account of business loss. But the fact remains that he left the company of the petitioner and minor child in April, 2008. That apart, he had taken away all her documents including that of the child's passport and certificates. This has caused considerable mental agony to the petitioner. The very act of taking away the certificates and passport of the wife itself may amount to mental cruelty in certain circumstances. This is an instance where, after suffering sentence in Dubai jail and the respondent being deported, his attitude towards the petitioner and child was absolute neglect.

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The Family Court had placed reliance on certain letters issued by the petitioner. But it is relevant to note that those letters were written before marriage when they were having an affair between themselves. Apparently at the time of marriage, the petitioner was only 21 years of age and the respondent was 39 years of age. Be that as it may, taking into account the over all factual circumstances, the very fact that the respondent was detained in jail in Dubai for having used fake passport itself would create bad reputation among the public as far as the wife and child are concerned. Even otherwise, seven months prior to the date of separation, he had taken away all the documents including her passport and certificates. This also is a specific instance of cruelty which had been pointed out and proved before the Family Court. That apart, it is clear that the parties are living separately since April, 2008. The marriage has become irretrievably broken and there is no chance for a re-union.

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Taking into consideration the over all factual circumstances, we

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are of the view that this is a fit case in which divorce can be granted. The

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Mat.A.No.177/2010

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Family Court committed serious error in not granting divorce.

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Accordingly, the appeal is allowed as under:

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i. The judgment dated 31.12.2009 in O.P.No.23/2009 of the Family Court, Kasaragod is hereby set aside.

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ii. The original petition is allowed. The marriage between the petitioner and respondent shall stand dissolved by a decree for divorce. No costs.

Sd/-

A.M.SHAFFIQUE

JUDGE

Sd/-

A.M.BABU

True copy

JUDGE

P.A. To Judge.

Usha Padmanabhan v. Mr.Padmanabhan

Case brief

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Usha Padmanabhan v. Mr.Padmanabhan

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