Xxxxxx vs Xxxxxx
2021 Latest Caselaw 14007 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
       THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
                               &
        THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
  WEDNESDAY, THE 7TH DAY OF JULY 2021 / 16TH ASHADHA, 1943
                   MAT.APPEAL NO. 541 OF 2014
 AGAINST THE JUDGMENT DATED 7.1.2014 IN OPHMA 1229/2013 OF
                   FAMILY COURT, MAVELIKKARA
APPELLANT/PETITIONER:

         xxxxx

         xxxxx



         BY ADV SRI.R.T.PRADEEP



RESPONDENT/RESPONDENT:

         xxxxxxx

         xxxxxxx



         BY ADV SRI.R.ROHITH

     THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON
07.07.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 Mat.Appeal No.541/2014
                                     -:2:-




                            J U D G M E N T

             Dated this the 7th day of                July, 2021


A.Muhamed Mustaque,J.

      This    appeal      has        been     filed     by    the        husband

assailing the dismissal of the petition for divorce

filed under Section 13(1)(i)(ia) & (ib) of the Hindu

Marriage Act, 1955.

2. The parties are referred to by their status in

this appeal. The appellant married the respondent in

accordance with the religious rites of the Hindu Nair

community on 14.5.1996. In that wedlock, a female

child was born on 28.8.1998. The appellant's petition

for divorce was under the ground of desertion and

cruelty.

3. It is alleged by the appellant that the

respondent treated him badly and humiliated him on many

occasions. It is also alleged that false complaints

were filed against the appellant and his mother under

Section 498A read with Section 34 of the IPC. It was

the specific case of the appellant that false

complaints were also forwarded to the Commanding Mat.Appeal No.541/2014

Officer of the Military where the appellant was

employed at that time.

4. Earlier, the appellant had filed

O.P(HMA).No.86/2007 before the Family Court, Alappuzha,

for restitution of conjugal rights. That was tried

along with other matters filed by the appellant for

custody of the child and the petition filed by the respondent for recovery of gold ornaments. The

petition for restitution of conjugal rights was

dismissed on 14.10.2010. The Family Court accepted the

reasons for non joining of the respondent with the

appellant. The respondent has a case that she was

treated with cruelty. The Family Court, therefore, was

of the view that she had valid reasons for non joining

with the husband. Further, it was observed by the

Family Court that the appellant can very well reside

with the respondent at the place where she was residing

at the time of filing the petition.

5. Heard the learned counsel for the appellant

and the respondent.

6. The appellant was employed in Military

service. He had worked in different parts of the

country. It appears that from the initial period of Mat.Appeal No.541/2014

the marriage life itself there were quarrel between the

parties. The present case for divorce was filed on

23.10.2010. The respondent contended that the

appellant left her company in the year 2006. It has

come out in evidence as seen from Ext.A2 (16.11.2011),

a letter sent by the respondent to OIC records, AMC,

Lucknow, that the respondent had reported to the higher authorities alleging illicit relationship of the

appellant with another woman. It is appropriate to

reproduce the contents of the letter.

"Due to difference of opinion between myself and my husband I am residing at my house with my daughter. There were several cases between us before the Family Court at Alappuzha and those cases were went against him. I have initiated legal proceedings to realise the value of my gold ornaments that were appropriated by my husband and in laws which is pending in appeal before Kerala High Court.

My husband again filed divorce petition against me alleging false reasons and the same is pending before the Family Court, Alappuzha as OP(HMA) 1140/2010 which stands posted to 21.1.2012.

Now I have got reliable information from the immediate neighbours of Mr. Mat.Appeal No.541/2014

xxxxxxx(*) that he is living with another woman without getting a legal divorce from ray matrimonial relationship. Recently when Mr. xxxxxx(*) was on leave here, that woman was with him throughout and they were living together in his house and was leading a life by giving wide publicity that matrimonial relationship with me was divorced.

In fact he is keeping that woman with him as a concubine when the relationship with roe legally subsists. He is now leading a life of immorality." (*The name of the party is masked ).

7. The Family Court while adverting to the

grounds of cruelty, did not give much weight to the

complaint made by the respondent to the higher

authorities of the appellant. The Family Court

observed that the respondent had only stated about the

facts she came to know from her neighbours. We cannot

brush aside the complaint of such nature. The

complaint of such nature would have serious

repercussion in the employment of the appellant. The

respondent specifically stated about the illicit

relationship of the appellant with another woman. But

she failed to substantiate the same. The complaints of

such nature certainly would constitute mental cruelty Mat.Appeal No.541/2014

to the appellant. When allegation of illicit

relationship is made, that too to the superior officer

of the husband, it is the bounden duty of the wife to

prove the same. Unsubstantiated allegation of adultery

itself would amount to cruelty. One of the reasons

that the Family Court refused to grant a decree of

divorce on the ground of cruelty is that the appellant filed a petition for divorce on the same ground as O.P.

No.133/2000 before the Family Court, Mavelikkara, which

was withdrawn in the year 2002 as the parties decided

to live together on intervention of the mediators. It

is seen from the records that this case was settled

along with other cases filed by the respondent.

8. The family court did not grant divorce on the

ground of cruelty for the reason that the appellant

filed original petition for divorce as OP No.133/2000

on the file of the Sub Court, Mavelikkara on the same

set of allegations. It was further observed that in a

petition for restitution filed by the appellant in OP

86/2007, before the Family Court, Alappuzha, it was

found by the family court that the respondent had

reasonable cause for not cohabiting with the appellant

on account of cruelty. We find that the family court Mat.Appeal No.541/2014

erred in finding that the earlier petition filed for

divorce was on the same set of allegations. In fact,

apart from raising same allegations set out in the

earlier petition, the appellant raised allegations of

continuing nature of cruelty. There was no dispute in

regard to the authorship of Ext.A2 letter.

Unsubstantiated letter of adultery as raised in Ext.A2 itself is sufficient to prove mental cruelty. Though

there is no specific pleading in regard to Ext.A2, for

the reason that it came into existence after the filing

of the petition, it will at least establish the conduct

of the respondent subsequent to dismissal of earlier

divorce petition and petition for restitution of

conjugal rights. In a ground for cruelty, what is

sought to be proved is the conduct of one spouse to the

other. Therefore, there is no difficulty in adverting

to the conduct of spouse after the institution of the

petition for divorce on the ground of cruelty. The

court can very well take note of the subsequent conduct

of the parties as well for moulding the relief. We in

such circumstances are of the view that Ext.A2 would

itself establish cruelty justifying grant of divorce on

that ground.

Mat.Appeal No.541/2014

9. Under Section 13 1(i)(ib) of the Hindu

Marriage Act, divorce is granted on the ground of

desertion. The provision states that the marriage can

be dissolved by a decree of divorce on the ground that

the other party has deserted the petitioner for a

continuous period of not less than two years

immediately preceding the presentation of the petition.

10. We shall now advert to the claim for divorce

on the ground of desertion. In Savitri Pandey v. Prem

Chandra Pandey [(2002) 2 SCC 73, the Apex Court ruled

thus:

" "Desertion", for the purpose of seeking divorce under the Act, means the intentional permanent forsaking and abandonment of one spouse by the other without that other's consent and without reasonable cause. In other words it is a total repudiation of the obligations of marriage. Desertion is not the withdrawal from a place but from a state of things. Desertion, therefore, means withdrawing from the matrimonial obligations, i.e., not permitting or allowing and facilitating the cohabitation between the parties. The proof of desertion has to be considered by taking into consideration the concept of marriage which in law legalises the sexual relationship between man and woman in the society for the perpetuation of race, permitting lawful indulgence in passion to prevent licentiousness and for procreation of children. Desertion is Mat.Appeal No.541/2014

not a single act complete in itself, it is a continuous course of conduct to be determined under the facts and circumstances of each case. After referring to host of authorities and the views of various authors, this Court in Bipinchandra Jaisinghbhai Shah v. Prabhavati [AIR 1957 SC 176] held that if a spouse abandons the other in a state of temporary passion, for example, anger or disgust without intending permanently to cease cohabitation, it will not amount to desertion."

11. There cannot be much dispute with regard to

the period involved in this case. Parties were living

separately much before the earlier petition filed for

restitution of conjugal rights. That petition was

filed in the year 2007. The resistance to the petition

filed for restitution of conjugal rights itself would

show that the respondent has no intention to co-habit

with the appellant. The explanation under Section 13

explains the expression "desertion" as follows:

"Explanation- In this sub-section, the expression "desertion" means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly."

12. In the earlier proceedings for restitution of Mat.Appeal No.541/2014

conjugal rights itself, the Family Court found that the

appellant can very well reside with the respondent.

The Family court only found that the respondent cannot

be compelled to reside at the place of employment on

account of her past experience. This would show that

cruelty as alleged against the appellant was not that

serious to force the respondent to withdraw from the matrimonial obligations. The reasonable cause as

referred in the Explanation to Section 13 must be

something in the nature of forcing a spouse to withdraw

from the marital obligation. If the intention of one

of the spouse is to put an end to the marital

obligation permanently, that would signify that, that

spouse has deserted. The reasonable cause therefore,

has to be understood as a cause to withdraw from the

matrimonial obligation temporarily. The statute itself

fix a period of two years. The reasonable cause

therefore, has to have a bearing on two years. The

reasonable cause is such cause which would signify the

intention of party who are residing separately to

withdraw from the marital obligation for a short

period. In that background, we are of the view that

merely for the reason that the respondent was able to Mat.Appeal No.541/2014

resist the application for restitution of conjugal

rights in the past successfully, that itself will not

entail in the dismissal of the petition for divorce on

the ground of desertion. The respondent's intention is

very clear. She wants to bring down the marriage to

its termination permanently by residing separately.

We, therefore, are of the view that the appellant has made out a case for divorce on the ground of desertion.

13. The divorce petition was filed in the year

2010. The matrimonial relationship has come to an end

permanently. Therefore, we allow this appeal for

divorce on the ground of desertion and grant a decree

of divorce dissolving the marriage between the

appellant and respondent solemnized on 14.5.1996. No

order as to costs.

        Pending      interlocutory    applications,         if   any,   are

closed.                                               Sd/-

                                          A.MUHAMED MUSTAQUE, JUDGE
                                                     sd/-
                                     DR. KAUSER EDAPPAGATH, JUDGE
kp     True copy


     P.A. To Judge