Azhikkodan Veettil Raveendran vs T.C. Pushpa Nambiar
2021 Latest Caselaw 18393 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
        THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
                                 &
        THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
 TUESDAY, THE 7TH DAY OF SEPTEMBER 2021 / 16TH BHADRA, 1943
                 MAT.APPEAL NO. 118 OF 2013
  AGAINST THE JUDGMENT IN O.P.NO.177/2009 OF FAMILY COURT,
                           KANNUR
APPELLANT/S:

          AZHIKKODAN VEETTIL RAVEENDRAN,
          AGED 57 YEARS, S/O.MADHAVAN NAMBIAR,
          RESIDING AT AZHIKKODAN VEEDU,
          ARAYAKKANDY PARA, AZHIKKODE, KANNUR-9.
          BY ADVS.
          SRI.M.GOPIKRISHNAN NAMBIAR
          SRI.P.BENNY THOMAS
          SRI.K.JOHN MATHAI


RESPONDENT/S:

          T.C.PUSHPA NAMBIAR, D/O.KUNHIKANNAN NAMBIAR,
          OLD NO.55, NEW NO.21, 2ND STREET, AVM COLONY,
          VIRUGAM BAKKOM, CHENNAI-600 099.
          BY ADVS.
          SRI.V.T.MADHAVANUNNI
          SRI.V.A.SATHEESH


THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
07.09.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 Mat.Appeal No.118/2013         2



                           JUDGMENT

DR.KAUSER EDAPPAGATH,J.

The husband filed this appeal challenging the

dismissal of the original petition filed by him for divorce

on the ground of desertion under Section 13 (1) (ib) of the

Hindu Marriage Act, 1955 ( for short, the 'Act').

2. The marriage was solemnised in the year, 1988.

The parties are hailing from Kannur. Their matrimonial

home is at Kannur. After the marriage, they resided in

the matrimonial home at Kannur. The sister of the

respondent-wife was residing in Chennai. Admittedly, the

respondent left the company of the appellant and went to

Chennai in the year, 2005, and since then, she and her

children are residing along with her sister at Chennai.

This is taken as a ground for desertion by the appellant.

He alleged that the respondent had abandoned him since

2005, which amounts to desertion, as contemplated under

law. The respondent resisted the original petition on the

ground that she never deserted the appellant. On the

other hand, it was contended that she went to Chennai

with the consent and knowledge of the appellant.

3. The parties went on trial before the court below.

The appellant was examined as PW1, and the respondent

was examined as RW1. On the side of the appellant,

Exts.A1 to A4 were marked. On the side of the respondent,

Ext.B1 was marked. Ext.B1 is a letter allegedly written by

the appellant to the respondent on 27.1.2006. Relying on

the contents in Ext.P1, the court below found that the

appellant has admitted in the said letter that she went to

Chennai with the consent and knowledge of the

respondent. Accordingly, the original petition was

dismissed holding that the ground of desertion was not

proved. It is challenging the said judgment, the appeal

has been filed.

4. We have heard Sri.Chethan Krishna R., the learned

counsel for the appellant. There is no representation for

the respondent. Perused the records.

5. The perusal of the evidence on record would

show that the parties are living separately, admittedly,

since 2005. There is no case for the respondent that she

resumed cohabitation thereafter. Admittedly, the

petitioner is residing in Kannur, and the respondent is

residing in Chennai since 2005. It is true that the

evidence is lacking in this case to prove that the

respondent has abandoned the appellant so as to constitute

desertion. However, the act of the respondent leaving the

appellant and residing along with her children at Chennai

would amount to matrimonial cruelty.

6. The learned counsel for the appellant argued

that even though the section quoted in the original

petition is under Section 13(1)(ib) of the Act, there are

sufficient pleadings to constitute cruelty. We have

perused the pleadings. In paragraph-3, there is pleading

that the desertion on the part of the respondent amounts

to cruelty. When a wife unilaterally leaves the

matrimonial home and resides away from the husband

without discharging her marital obligations for years

together, the said act would definitely amount to

matrimonial cruelty. Both parties to a marriage are bound

to discharge their respective marital obligations. This is a

case where the respondent has left the appellant along

with their children and residing along with her sister in

Chennai since 2005 without discharging her marital

obligation as a wife. There is no evidence of cohabitation

thereafter. In the circumstances, we are of the view that a

case of divorce on the ground of cruelty has been made

out. The Apex Court in Dr.(Mrs.) Malathi Ravi, M.D vs.

Dr.B.V.Ravi M.D. (AIR 2014 SC 2881) confirmed the

divorce granted by the High Court on the ground of

cruelty, even though the divorce was sought only on the

ground of desertion. That was a case where the husband

instituted a petition for divorce on the ground of desertion.

The Family Court dismissed the petition. The High Court,

based on the subsequent events found that the husband

has made a case for divorce on the grounds of cruelty.

The divorce was granted accordingly. It was confirmed

by the Apex Court. The dictum in the said case could be

applied to the facts of the case.

For the reasons stated above, we hold that the

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

cruelty under Section 13(1)(ia) of the Act. Hence, we set

aside the impugned judgment and allow the original

petition. The marriage between the appellant and the

respondent solemnised on 17.8.1988 would stand

dissolved. The parties are directed to bear their respective

costs.

The Mat.Appeal is allowed as above.

Sd/-

A.MUHAMED MUSTAQUE, JUDGE Sd/-

DR. KAUSER EDAPPAGATH, JUDGE ln