C.P. Prakash v. Sreeja

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MRS. JUSTICE ANNIE JOHN WEDNESDAY, THE 13TH DAY OF NOVEMBER 2019 / 22ND KARTHIKA, 1941 ## Mat.Appeal.No.535 OF 2017 AGAINST THE JUDGMENT IN OP(HMA) 411/2011 OF FAMILY COURT, KOTTARAKKARA ## APPELLANT/PETITIONER: C.P.PRAKASH S/O.PRABHAKARAN, AGED 45, CHARUVILA VEEDU, URUKUNNU P.O., THENMALA, PATHANAPURAM, KOLLAM DISTRICT. BY ADVS. SRI.K.C.SANTHOSHKUMAR SMT.K.K.CHANDRALEKHA ## RESPONDENT/RESPONDENT: SREEJA D/O.RAMANI, AGED 36, NARAYANA SADANAM, THEVARKUNNU, EDAMON P.O., VELLIMALA, PATHANAPURAM, KOLLAM DISTRICT. R1 BY ADV. SRI.ARUN CHANDRAN THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 27-05-2019, THE COURT ON 13-11-2019 DELIVERED THE FOLLOWING: Mat. Appeal No. 535/2017 : 2 : ## JUDGMENT ## Annie John,J. Challenging the judgment dated 10.02.2017 in O.P. (HMA) No. 411 of 2011 on the files of the Family Court, Kottarakkara, this Mat. Appeal has been filed. The said petition was filed by the appellant seeking dissolution of marriage on the grounds that the respondent herein has deserted the appellant for a continuous period of not less than nine years, and that she has, after the solemnization of the marriage, treated the appellant with cruelty. 2. The case of the appellant is as follows: The marriage between the appellant and the first respondent was solemnized on 26.08.2000 as per the religious rites and customs of Hindu religion. Thereafter, they started to live together in the appellant's house. While they were residing together, the respondent began to treat him with cruelty and she used to pick up quarrel with the appellant without any reason. She misbehaved towards the appellant even in the presence of neighbours and the appellant had to suffer for the sake of his family life. On 10.04.2008, while the appellant was not in his house, the respondent/wife went to her house taking all her articles abandoning the appellant and her child. Thereafter, in Mat. Appeal No. 535/2017 : 3 : the year 2010, while the appellant was not in station, she came to the house of the appellant along with a group of police persons and took the child. According to the appellant, the respondent was not at all interested in discharging her duties as a wife, and the child is still living with the appellant. 3. The respondent has filed a counter statement admitting marital relationship and the birth of the child in the wedlock. But, she denied the averments with respect to the cruelty and desertion as alleged by the appellant. She has also stated that she did not take the child forcibly; but she took the child as insisted by the child himself. The appellant has filed a petition for divorce, since she had initiated proceedings against the appellant herein by filing O.P. No. 709 of 2011 seeking realisation of value of gold ornaments and money paid by her at the time of marriage. The respondent has also filed M.C. No. 171 of 2011 seeking maintenance as provided under Section 125 of the Criminal Procedure Code. Those cases were tried together and the evidence was recorded in O.P. No. 709 of 2011 treating the same as the leading case. 4. The evidence consists of oral testimony of PWs 1 to 4 and RWs 1 and 2. Exts.A1 to A5 and B1 and B2 were marked. 5. The respondent, while examined as PW1, has admitted Mat. Appeal No. 535/2017 : 4 : that she has been living separately from the appellant for the past nine years. But, there is no specific denial on the part of PW1 that she started living separately due to any of the acts of the appellant, and that the refusal to reside along with the appellant amounts to desertion. The mother of the respondent was examined as PW2 and she has also admitted that the respondent has been living separately. 6. The learned counsel for the appellant contended that the court below ought to have proved that he is entitled to get a decree for divorce as provided under Section 13(1)(ia) and (ib) of the Hindu Marriage Act. The court below committed grave illegality in brushing aside the material evidence, including the admissions of the respondent and her mother regarding desertion and the non-attendance of her duties as a wife. The court below committed grave illegality in accepting the readiness of the respondent to live with the appellant to deny the relief claimed by the appellant. 7. The aforesaid OP was considered by the Family Court, Kottarakkara along with O.P. No. 709 of 2011 and M.C.No. 171 of 2011 filed by the respondent and dismissed the same. The said OP was filed by the appellant/husband seeking a decree of divorce on the ground of cruelty and desertion. It is an Mat. Appeal No. 535/2017 : 5 : undisputed fact that the appellant and the respondent got married on 26.08.2000 at New LPS, Edamon as per the religious customs and rites of Hindus. To substantiate the same, Ext.A2 certificate issued by the SNDP Sakha was produced. A male child was born out of that wedlock. When a decree for dissolution of marriage is sought by the appellant on the ground of cruelty and desertion, the burden is upon him to establish the same by adducing cogent and convincing evidence. 8. The appellant when examined as RW1 in the connected matter in O.P. No. 709 of 2011, he has deposed that after the marriage, while the respondent was residing in his house, she treated him with cruelty. According to the appellant, the respondent/wife used to pick up quarrel with the appellant and she was not properly looking after the affairs of the appellant as well as the child. He has given evidence to the effect that the respondent used to go to the neighbouring houses without looking after the household affairs. When he questioned the same, she used filthy language in the presence of neighbours. According to him, the respondent/wife has mentally tortured him and has abandoned him and the child on 10.04.2008 without any justifiable reasons. 9. The respondent/wife, while examined as PW1, has given Mat. Appeal No. 535/2017 : 6 : evidence to the effect that the appellant has raised false allegations against her. According to her, the appellant has treated her with cruelty while she was residing at his residence. It appears that she has deposed that she is ready and willing to go along with him and the child by discharging her duties as wife. But, the appellant is not ready to take her with him. 10. The question to be considered is whether the grounds urged by the appellant will tantamount to cruelty. In order to get a decree of divorce on the ground of cruelty, the appellant has to establish that the respondent has, after the solemnization of marriage, treated him with cruelty. The grounds urged for getting divorce on the strength of cruelty is that the respondent used to quarrel frequently and she never cared to look after him and she used to wander here and there. Further, the respondent used to call filthy words against the appellant in the presence of other persons. It is a well settled principle that the cruelty must be grave in nature and the normal wear tear of the marital life is not sufficient enough to establish cruelty. So, the pleadings as stated by the appellant is not sufficient enough to prove that he has undergone cruelty on the side of the respondent. 11. The next ground urged by the appellant is that he wants to get a decree of divorce on the ground of desertion. It is the Mat. Appeal No. 535/2017 : 7 : case of the appellant that the respondent abandoned him on 4.10.2008. It appears that the respondent is residing at her parental house. The respondent, while examined as PW1 in the connected OP, deposed that she is ready and willing to reside along with the appellant; but the appellant is not ready to take her back. The OP was filed in the year 2011. 12. As per Section 13(1)(ib) of the Hindu Marriage Act, 1955, any marriage solemnized may on a petition presented by either the husband or the wife 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. The factum of separation and intention to bring the cohabitation permanently to an end or animus deserendi are the main ingredients necessary to constitute desertion. Desertion is not a withdrawal from one place to another for a particular period. It involves both mental and physical element. 13. In Ushakumari C.V. v. P. Sukumaran[1] , it is held that in the absence of pleading and proof, no decree of divorce could be granted on the ground of desertion. Permanent abandonment of one spouse by the other without the other spouse's consent and without reasonable cause for statutory period, must be pleaded 1 2015(3) KLT SN 66(DB) Mat. Appeal No. 535/2017 : 8 : and proved. Desertion is not a single act; but it is a continuous act of conduct, which is to be determined under the facts and circumstances of each case. 14. In the instant case, the respondent has abandoned the appellant on 04.10.2008 and this fact has not been disputed by the respondent. As per the evidence of the respondent, she is ready to go along with the appellant and since the appellant is not ready to take her back, she is living separately and that from 04.10.2008 onwards, the respondent has permanently stopped cohabitation with the appellant. More than 11 years have elapsed after the separation. There is no justifiable reasons on the part of the respondent in residing separately. The marital life has become irretrievably broken and they are living separately for 3 years prior to the filing of the petition. In any way, the respondent has also filed OP No. 709/2011 for return of gold ornaments as well an MC No. 171/2011 seeking maintenance. Therefore, the intention of the respondent is very clear that she wants to separate from the company of the appellant. The filing of the aforesaid cases reveal that the respondent has no intention to cohabitate with the appellant. The evidence adduced by the appellant is sufficient enough to establish that the respondent has wilfully deserted the appellant without any justifiable Mat. Appeal No. 535/2017 : 9 : reasons. Therefore, the appellant is entitled to get a decree of divorce under Section 13(1)(ib) of the Hindu Marriage Act, 1955. The finding to the effect that the appellant is not entitled to get a decree of divorce under Section 13(1)(ia) is upheld. In the result, this appeal is allowed in part granting a decree of divorce under Section 13(1)(ib) of the Hindu Marriage Act, 1955. sd/K. HARILAL, JUDGE. sd/ANNIE JOHN, JUDGE. sd/- Rv