Partly allowed

M.R.Shaija v. a.N.Viswanathan

Kerala HC23 Sept 2019Mat.Appeal/642/2013

Case brief

AI extract

What is this about?

Divorce petition dismissed as husband failed to prove cruelty or desertion despite long separation. Appeal for return of gold ornaments dismissed; separate appeal for ornaments money remitted for fresh consideration due to incomplete evidence evaluation.

What did the court decide?

Mat.Appeals 434/2013 and 439/2013 dismissed; Mat.Appeal 642/2013 allowed; O.P. 1142/2007 set aside and remitted to Family Court for fresh consideration with permission to adduce additional evidence.

M.R.Shaija Vs a.N.Viswanathan — 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 N.ANIL KUMAR

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MONDAY, THE 23RD DAY OF SEPTEMBER 2019 / 1ST ASWINA, 1941

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Mat.Appeal.No.434 OF 2013

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AGAINST THE ORDER IN OP 957/2007 DATED 27-11-2012 OF FAMILY COURT,THRISSUR

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APPELLANT/PETITIONER:

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A.N. VISWANATHAN AGED 50 YEARS, S/O.LATE NARAYANAN,AYINIPULLY HOUSE,PUTHUMANASSERY,PAVARATTY VIA,THRISSUR DISTRICT.

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BY ADV. SRI.G.SREEKUMAR (CHELUR)

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RESPONDENT/RESPONDENT:

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M.R. SHAIJA AGED 39 YEARS D/O.RAMACHANDRAN,MANDAKATHINGAL HOUSE,CHOWANNOOR,THRISSUR DISTRICT-680001.

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R1 BY ADV. SRI.T.M.CHANDRAN

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THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 23.09.2019, ALONG WITH Mat.Appeal.439/2013, Mat.Appeal.642/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Mat.A.Nos.434, 439 & 642 of 2013

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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 N.ANIL KUMAR

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MONDAY, THE 23RD DAY OF SEPTEMBER 2019 / 1ST ASWINA, 1941

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Mat.Appeal.No.439 OF 2013

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AGAINST THE ORDER IN OP 1143/2007 DATED 27-11-2012 OF FAMILY COURT,THRISSUR

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APPELLANT/PETITIONER:

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A.N.VISWANATHAN, AGED 50, S/O.LATE NARAYANAN, AYINIPULLY HOUSE, PUTHUMANASSERY, PAVARATTY VIA, THRISSUR DISTRICT.

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BY ADV. SRI.G.SREEKUMAR (CHELUR)

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RESPONDENT/RESPONDENT:

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M.R.SHAIJA, AGED 39,

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D/O.RAMACHANDRAN, MANDAKATHINGAL HOUSE, CHOWANNOOR, THRISSUR DISTRICT-680001.

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R1 BY ADV. SRI.T.M.CHANDRAN

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THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 23.09.2019, ALONG WITH Mat.Appeal.434/2013, Mat.Appeal.642/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Mat.A.Nos.434, 439 & 642 of 2013

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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 N.ANIL KUMAR

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MONDAY, THE 23RD DAY OF SEPTEMBER 2019 / 1ST ASWINA, 1941

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Mat.Appeal.No.642 OF 2013

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AGAINST THE ORDER IN OP 1142/2007 DATED 27-11-2012 OF FAMILY COURT,THRISSUR

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APPELLANT/PETITIONER:

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M.R.SHAIJA AGED 39 YEARS, D/O.RAMACHANDRAN, MANDAKATHINGAL HOUSE, CHOWANNOOR, THALAPPILLY TALUK, THRISSUR DISTRICT.

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BY ADVS. SRI.T.M.CHANDRAN SRI.S.SUJITH

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RESPONDENT/RESPONDENT:

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A.N.VISWANATHAN AGED ABOUT 50 YEARS, S/O.LATE NARAYANAN, AYINIPPULLY HOUSE, PUTHUMANASSERRY, PAVARATTY (VIA), THRISSUR DISTRICT, PIN 680001.

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BY ADV. SRI.G.SREEKUMAR (CHELUR)

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THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 23.09.2019, ALONG WITH Mat.Appeal.434/2013, Mat.Appeal.439/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Mat.A.Nos.434, 439 & 642 of 2013

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JUDGMENT

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Dated this the 23rd day of September 2019

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SHAFFIQUE, J

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These appeals are filed by the petitioner in O.P.No.957/2007 and the respondent in O.P.No.1143/2007. O.P.No.957/2007 is filed by the petitioner/husband seeking divorce on the ground of cruelty and desertion. O.P.No.1143/2007 has been filed by the wife seeking restitution of conjugal rights. The parties got married on 9.2.1995 and a child was born in the wedlock on 4.7.1997. In the divorce petition, the husband contended that they were separated for the last 7 years. Even during the early stage of marriage, the wife was not willing to live with him. He was working abroad during the relevant time. After the marriage he left abroad and returned on leave only after two years. Though he insisted his wife to live at the matrimonial home, she was not willing to do so. That apart, his contention was that she behaved in a cruel manner against him and mentally harassed him. She used to allege that he was not capable to continue the marital relationship and was not a loving husband.

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In the objection as well as in the petition seeking restitution of conjugal rights, the wife complained that when the husband had gone abroad, she used to be harassed by husband's sister and parents, as a result of which she was not in a position to live in the matrimonial home and hence left to her parental home. According to her, she is ready and willing to

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Mat.A.Nos.434, 439 & 642 of 2013

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continue the matrimonial relationship and hence she sought for restitution of conjugal rights.

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The above cases were heard along with O.P.No.1142/2007 filed by the wife seeking return of gold ornaments and money. The same has been rejected by the Family Court on the ground that direction had been issued to restitute the conjugal rights. The claim of the wife for return of gold ornaments and money had not been considered on merits. Common evidence was taken in these cases and it was challenging the order in O.P.No.1142/2007 that the wife filed Mat.Appeal 642/2013.

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The contention urged by the learned counsel for the husband is that, in so far as the parties had been separated for quite a long time and as there is no chance for a re-union, it is evident that the marital tie is broken and a decree of divorce may be granted. But in order to grant divorce on the ground of cruelty and desertion, necessarily there has to be some evidence to prove cruelty and to prove the fact that the wife was living away from the company of the husband without valid cause. Apparently, in this case the husband was working abroad and he used to come back only occasionally. It was his obligation to ensure that the wife and his child were having a peaceful life, if at all he insists his wife to live in the matrimonial home or else he could have taken them abroad. In the case on hand, he insisted that she should remain in the matrimonial home. But according to her, she was not able to live in the matrimonial home on account of the harassment by the family members and husband.

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Mat.A.Nos.434, 439 & 642 of 2013

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When there is valid reason for a wife to remain away from the matrimonial home it does not amounts to desertion. That apart, according to her, it is from 2003 onwards he had stopped meeting her. On a perusal of the allegations made by each other, it appears that there was some wear and tear between the couple and there is no specific reason for desertion or for cruelty. When the husband is not in the matrimonial home, there is justification for her to remain away from the matrimonial home as such. That apart, she got employment near her residence and therefore she is justified in residing in her parental home. Having regard to the fact situation, we do not think that a case has been made by the husband to seek divorce and we are not satisfied with the pleadings and evidence in this regard. The mere fact that they are remaining separate for a considerably long period is not a reason for divorce. Whereas in certain instances when the allegation of cruelty has been substantiated, long separation also amounts to mental cruelty. In this case, when the husband is away and living abroad for a considerably long period, it cannot be stated that the wife had committed any act of cruelty. Under such circumstances, we don't think that a case has been made out by the husband to interfere with the judgment in O.P.Nos.957/2007 and 1143/2007. We confirm the view expressed by the Family Court in that regard.

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As far as O.P.No.1142/2007 is concerned, no attempt had been made by the Family Court to consider the evidence on record. Her claim had been rejected on the sole ground that direction had been issued for restitution of conjugal rights. Therefore it is appropriate that the matter is

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Mat.A.Nos.434, 439 & 642 of 2013

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considered afresh. For that reason, the matter is to be remitted back to the Family Court. Mat.A.No.1142/2007 is to be allowed and the judgment in O.P.No.1142/2007 is to be set aside, remitting back the matter to the Family Court for fresh consideration.

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Accordingly, the appeals are disposed of as under:

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Mat.Appeals Nos. 434/2013 and 439/2013 are dismissed. Mat.Appeal.No.642/2013 is allowed. The judgment in O.P.No.1142/2007 is set aside, and the matter is remitted back to the Family Court for fresh consideration. The parties shall appear before the Family Court on 28.10.2019. The Family Court shall endeavour to dispose of the matter in accordance with law, within a period of six months from the date of appearance of the parties. Parties shall be permitted to adduce additional evidence in the matter.

N.ANIL KUMAR

JUDGE

kp True copy

P.A. To Judge

Mat.A.Nos.434, 439 & 642 of 2013

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The “ Mat.A.No.1142/2007 ” mentioned in the 2^nd line of page 7 of the common Judgment in Mat.Appeal Nos. 434, 439 & 642/2013 dated 23.09.2019 is suo moto corrected as “ Mat.Appeal No.642/2013 ” as per order dated 15.06.2020 in Mat. Appeal Nos.434, 439 & 642/2013.

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sd/-

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DEPUTY REGISTRAR

M.R.Shaija v. a.N.Viswanathan

Case brief

What is this about?

What did the court decide?

M.R.Shaija v. a.N.Viswanathan

Case brief

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