Against The Judgment In Op ... vs By Adv. Sri.A.K.Haridas
2021 Latest Caselaw 9025 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM

                              PRESENT

         THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE

                                 &

        THE HONOURABLE MR.JUSTICE DR. KAUSER EDAPPAGATH

   THURSDAY, THE 18TH DAY OF MARCH 2021 / 27TH PHALGUNA, 1942

                     Mat.Appeal.No.183 OF 2016

AGAINST THE   JUDGMENT IN OP 727/2013 OF FAMILY COURT, PALA DATED
                            30/11/2015


APPELLANT/RESPONDENT

              K.A.AMBILY
              D/O MADHAVAN,KUZHIPOTTUVELI HOUSE,MUHAMMA.P.O,
              CHERTHALA TALUK,ALAPPUZHA.

              BY ADV. SRI.A.K.HARIDAS

RESPONDENT/PETITIONER:

              BIJU
              S/O.VIJAYAMMA,THOONGUPALANIRAPPIL HOUSE,
              KALATHOKADAVU.P.O,THALAPPULAM VILLAGE,
              MEENICHIL TALUK-686101.

              R1 BY ADV. SRI.P.BABU KUMAR

     THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
18.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 Mat.Appeal No.183/2016

                               -:2:-




                         JUDGMENT

Dated this the 18th day of March, 2021

Dr.Kauser Edappagath, J.

This appeal has been preferred by the wife in a matrimonial

dispute challenging the decree of divorce granted by the Family

Court on the ground of desertion.

2. The parties are referred to as shown in the original

petition unless otherwise stated. The petitioner is the husband

and the respondent is the wife. The petitioner and the respondent

got married on 13/9/2003. In the year 2009, the petitioner filed

OP No.1052/2009 for divorce on the ground of cruelty and

desertion. The said OP was dismissed on 20/8/2010. Thereafter,

the petitioner has preferred the present OP after a lapse of three

years. The allegation set out in the original petition is that on the

next day of the marriage itself, she went to her house and

refused to come back, but, due to the intervention of her father,

she came back after four days and left again soon thereafter.

Thereafter, on 7/1/2004, the respondent left the matrimonial Mat.Appeal No.183/2016

home and never came back. According to the petitioner, the

respondent deserted him on 7/1/2004 with an intention to

abandon him for ever. The petitioner further alleged that the

respondent was exercising mental as well as physical cruelty on

him. It is further alleged that the marital life of the petitioner with

the respondent had never been cordial due to the hostile attitude

of the respondent. It is the further case of the petitioner that the

father of the respondent filed frivolous complaint to SNDP with

allegation that mother of the petitioner was compelling her

daughter to do immoral activities. It is also alleged that the

respondent filed a private complaint before the Magistrate Court,

Erattupetta with the false allegation that she was assaulted by

the police and after investigation, police filed refer report stating

that the allegations were false. In short, the case set up by the

petitioner is that he has suffered much mental cruelty due to the

above conduct of the respondent and that she has deserted him

w.e.f. 7/1/2004. It was in this circumstances, OP was instituted for

divorce on the ground of cruelty and desertion.

3. The respondent appeared and filed counter statement.

It is contended that the original petition is barred by the Mat.Appeal No.183/2016

principles of res judicata. The allegation of cruelty and desertion

had been emphatically denied. It is further contended that the

mother of the petitioner compelled her to lead an immoral life

and it amounts to cruelty. According to her, she never treated

the petitioner with cruelty on any occasion, nor did she desert

him. It is asserted that she is prepared to ready to live with the

petitioner. The respondent sought for the dismissal of the

petition.

4. The parties went on trial. The petitioner was

examined as PW1. Two witnesses were examined on the side of

the petitioner as PW2 and PW3. Exts.A1 to A7 were marked. The

respondent was examined as DW1 and Exts.B1 to B4 were

marked. After trial, the Court below found that the petitioner is

entitled to get a decree for divorce on the ground of desertion

and accordingly such a decree was granted as per the impugned

judgment. The said judgment is under challenge in the present

appeal.

5. Heard both sides.

6. As already stated, in 2009, the petitioner filed OP for

divorce as OP No.1052/2009 on the ground of cruelty and Mat.Appeal No.183/2016

desertion which was dismissed. The respondent vehemently

contended that the judgment in the said original petition

operates as res judicata. The Court below found that there are no

new or changed facts or circumstances canvassed by the

petitioner so far as the ground of cruelty is concerned in the

present Original petition and hence, the prayer for divorce on the

ground of cruelty is barred by res judicata. The said finding has

become final since there is no challenge against it. So far as the

ground of divorce on the ground of desertion is concerned, the

Court below found that the ground for desertion canvassed in this

original petition is totally different from the ground canvassed in

the earlier Original Petition and hence res judicata will not apply.

7. In matrimonial litigations for divorce, acts of cruelty or

desertion could be said to be recurring or continuing by nature.

When distinct and different cause of actions are pleaded in the

second petition, the principles of res judicata will not apply. The

present original petition has been filed on the allegation that the

respondent deserted the petitioner on 7/1/2004. The period of

desertion shown in the present original petition and the cause of

action so far as desertion is concerned is different. As such, the Mat.Appeal No.183/2016

principles of res judicata will not apply so far as the ground of

desertion is concerned.

8. To prove desertion, the petitioner himself gave

evidence as PW1. PW2 and PW3 are the relatives of the

petitioner. The petitioner gave evidence that the respondent left

the matrimonial home along with her father on 7/1/2004 and did

not come back since then. Subsequently, the respondent filed a

private complaint against the petitioner with allegation that she

was assaulted by the petitioner and his mother. The said case

was referred by the police. Thereafter, she has also filed another

original petition in the year 2004 before the Family Court,

Ettumanoor with allegation that the petitioner had

misappropriated her gold ornaments. It is not in dispute that the

parties are residing separately from 7/1/2004. The evidence

adduced discloses mental cruelty suffered by the petitioner at the

hands of the respondent. The respondent in the box had

admitted that the petitioner had filed OP No.178/2004 for

restitution of conjugal rights against her and it was withdrawn on

her undertaking to live with the petitioner in a separate house.

But the petitioner did not change his residence. Hence, the Mat.Appeal No.183/2016

respondent did not join him. Thus, it is evident that the

respondent withdrew from the company of the petitioner without

any reasonable cause, which amounts to desertion. As stated

already, the parties are living separately for the last 17 years.

For all these reasons, we have no hesitation to conclude that the

petitioner has made out a case for divorce on the ground of

desertion. We find no reason to interfere with the finding of the

Court below that the petitioner is entitled to get a decree for

divorce on the ground of desertion. The appeal fails and it is only

to be dismissed.

In the result, the appeal is dismissed.

Sd/-

A.MUHAMED MUSTAQUE

JUDGE

Sd/-

                                      DR. KAUSER EDAPPAGATH

Rp                                             JUDGE