C.Pushpalatha vs K.P.Narayanankutty
2021 Latest Caselaw 6864 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

          THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE

                                     &

         THE HONOURABLE MR.JUSTICE DR. KAUSER EDAPPAGATH

    FRIDAY, THE 26TH DAY OF FEBRUARY 2021 / 7TH PHALGUNA, 1942

                       Mat.Appeal.No.969 OF 2016

       AGAINST THE ORDER IN O.P.No.471/2005 DATED 28-12-2015
                     OF FAMILY COURT, MALAPPURAM
                                ------


APPELLANT/S:

                C.PUSHPALATHA, AGED 50 YEARS,
                D/O.KUNHILAKSHMIAMMA,
                RESIDING AT CHIRAKKADAVATH HOUSE,
                MARAKKARA PO, KADAMPUZHA,
                MALAPPURAM DISTRICT, PIN-676553.

                BY ADVS.
                SRI.J.R.PREM NAVAZ
                SRI.P.T.SHEEJISH

RESPONDENT/S:

                K.P.NARAYANANKUTTY, AGED 58 YEARS,
                S/O.LATE B.P.N NAIR,
                RESIDING AT KORANATH HOUSE,
                PATHAIKKARA POST,
                PERINTHALMANNA VIA,
                PERINTHALMANNA TALUK,
                PERINTHALMANNA TALUK,
                MALAPPURAM DISTRICT,
                PIN- 679322.

                BY ADV. SRI.U.K.DEVIDAS
                BY ADV. SMT.P.M.SHAHIDA


THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 26.02.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 Mat.Appeal.No.969/2016                     2




                                    JUDGMENT

Dated this the 26th day of February 2021 A.Muhamed Mustaque, J.

This appeal was filed as against the order of

divorce granted to the respondent in a petition filed

by the respondent herein in O.P.No.471/2005 on the

file of the Family Court, Malappuram.

2. The marriage between the appellant and the

respondent was solemnized on 08.09.1986 in accordance

with the rites and custom prevailing in the Hindu

Religious Community. Two children were born in the

wedlock. The respondent filed a petition for divorce

on two grounds. One is relatable to cruelty and the

other is desertion. An ex parte decree was granted.

Thereafter, the respondent married another lady on

14.05.2013. The application for setting aside the ex

parte decree was filed. That was allowed. The

appellant also filed another O.P.No.1124/2013 to

declare that the second marriage performed by the

respondent with another lady is null and void. The

above petition was also allowed. After setting aside

the ex parte decree, the petition for divorce was

tried along with the petition filed by the appellant

in O.P.No.1124/2013. Both petitions have been allowed

by a common order. Challenging the granting of

divorce, this appeal was preferred.

3. There is no challenge against the order in

O.P.No.1124/2013. The Family Court did not accept the

respondent's claim for divorce on the ground of

cruelty for want of evidence. However, the Family

Court accepted the claim for divorce on the ground of

desertion. The Family Court noted that the appellant

failed to file a written statement rebutting the

alleged plea of desertion. However, the Family Court

had the advantage of oral evidence of the appellant

for taking the decision.

4. It is to be noted that when the matter was

tried, the appellant herein was examined as RW1. The

case of the respondent was that the appellant with an

intention to withdraw from the matrimonial

relationship deserted him. It is alleged that the

appellant deserted him for the last more than eight

years before instituting O.P.No.471/2005. The Family

Court though observed that there was no written

statement, perused the records and the testimony of

parties and came to the conclusion that the appellant

preferred to stay in her family house without

discharging her marital obligations. In the cross-

examination itself, RW1 has stated that she is living

apart from the respondent from 1997 on wards.

5. It is to be noted that the appellant was so

desirous of living with the respondent she would have

taken steps for restitution of conjugal rights. No

such steps were taken. This Court in Praseena v.

Girish Kumar [2020 KHC 4125] observed that if the wife

is not taking any efforts to join husband and restore

matrimonial relationship, the husband would be

entitled for decree for dissolution of marriage on the

ground of desertion. If the real intention of the

parties to maintain the marital relationship, that

would have reflected from their conduct. When a party

to marriage, is living apart from other party for a

long period and no attempt was made by the party to

restore the marital relation, it has to be presumed

that the party abandoned the marital relationship.

6. We are also taking note of the fact that the

parties are living separately from 1997 onwards and

more than 23 years lapsed. In such circumstances, we

do not want to interfere with the impugned decree

granting divorce to the respondent on the ground of

desertion. We affirm the order of the Family Court.

The appellant has a case that the written

statement filed in the matter had been misplaced

before the Family Court and that is the reason the

Family Court noted that there was no written

statement. Anyhow, we are of the view that non-filing

of written statement did not prejudice the appellant

as she mounted box and gave evidence. The Family Court

took note of the testimony while granting the decree

of divorce to the respondent. The appeal, accordingly,

dismissed. No costs.

Sd/-

A.MUHAMED MUSTAQUE

JUDGE

Sd/-

KAUSER EDAPPAGATH

JUDGE

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