Dr. Shamsudheen @ Sadasivan Nair v. B.T. Jalaja

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE** **& THE HONOURABLE MR. JUSTICE P.D.RAJAN** **SATURDAY, THE 23RD DAY OF MARCH 2013/2ND CHAITHRA 1935** ## **Mat.Appeal.No. 367 of 2009 ( )** **------------------------------OP.1348/2005 of FAMILY COURT, NEDUMANGAD** ## **APPELLANT/PETITIONER :** **-----------------------------------** **DR.SHAMSUDHEEN @ SADASIVAN NAIR AGED 63 YEARS, S/O.VELAYUDHAN PILLAI, "PRAYAGA" ODAYAM, VARKALA P.O., THIRUVANANTHAPURAM.** **BY ADV. SRI.MOHAN JACOB GEORGE** **RESPONDENT/RESPONENT :** **---------------------------------------** ## **B.T.JALAJA,D/O.G.BALAKRISHNAN NAIR G.B.K.VILAS, KURAKANNAI, VARKALA P.O. TRIVANDRUM.** **R BY ADVS. SRI.K.A.ABRAHAM SRI.BIJU MARTIN** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 06/03/2013, THE COURT ON 23-03-2013 DELIVERED THE FOLLOWING:** **BP** ## **Mat.Appeal.No. 367 of 2009 ( )** ## **APPENDIX** **PETITIONER'S EXHIBITS : EXT.A5: COPY OF THE G.O.(R.T)NO.3398/2008 G.EDN DT 25/07/2008 EXT:A6: COPY OF THE CHARGE SHEET DT 8/7/2008. EXT.A6(a): COPY OF THE COMPLAINT FILED BY THE RESPONDENT DT 15/10/2003 AGAINST SRI.SALIMKUTTY. EXT.A7: CONDUCT CERTIFICATE ISSUED FROM CHEMBAKASSERY BASIC TRAINING SCHOOL, KOLAM DT 22/5/1981. EXT.A7(a): CONDUCT CERTIFICATE ISSUED FROM UNIVERSITY OF KERALA, TRIVANDRU DT 26.10.1982. EXT.A7(b): CONDUCT CERTIFICATE ISSUED FROM N.S.S. TRAINIGN COLLEGE, OTTAPALAM, 18.09.1987 EXT.A7(c): CONDUCT CERTIFICATE ISSUED FROM N.S.S. TRAINIGN COLLEGE , CHANGANASSERY, DT 19/7/1996. EXT.A7(d): CONDUCT CERTIFICATE ISSUED FROM N.S.S. TRAINIGN COLLEGE , CHANGANASSERY, DT 31/03/1999. EXT.A7(e): CONDUCT CERTIFICATE ISSUED FROM H.M.TRAINING COLLEGE, MUVATTUPUZHA, DT 15/6/2003. EXT.A7(f): CONDUCT CERTIFICATE ISSUED FROM ANNAMALAI UNIVERSITY, ANNAMALAI NAGAR, DT 23/1/2004. EXT.A7(g): CONDUCT CERTIFICATE ISSUED FROM M.C.T. TRAINING COLLEGE MALAPPURAM, DT 30/4/2005. EXT.A7(h): CONDUCT CERTIFICATE ISSUED FROM SREE NARAYANA COLLGE OF TEACHER EDUCATION DT 10/2/2006. EXT.A7(i): CONDUCT CERTIFICATE ISSUED FROM TRAVANCORE INSTITUTE OF SCIENCE AND TECHNOLOGY, TRIVANDRUM DT 20/2/2006 EXT.A8: ORDER NO. AC. ALL -3-532/93 & DT 02/08/1993 OF THE MAHATMA GANDHI UNIVERSITY. EXT.P9: ORDER NO.AC.EI.3.1707/92 21/5/1992 OF THE KERALA UNIVERSITY. EXT.A10: COPY OF THE COMMPLAINT DT 14/11/2008 SUBMITTED BY THE TEACHER IN CHARGE OF THE M.V.L.P. SCHOOL BEFORE THE DY.S.P., ATTINGAL. EXT.A10(a): COPY OF THE COMPLAINT DT 28/6/2005 SUBMITTED BY ONE SMT.JAYASREE S. BEFORE THE MANAGER, M.V.L.P.S.** ## **Mat.Appeal.No. 367 of 2009 ( )** **EXT.A10(b): COPY OF THE COMPLAINT DT 24/7/2008 SUBMITTED BY JAYASREE S. TO THE MANAGER, M.V.L.P.S. MANTHARA.** **EXT.A10(c): COPY OF THE COMPLAINT DT 24/7/2008 SUBMITTED BY JAYASREE S. TO THE MANAGER, M.V.L.P.S. MANTHARA EXT.A10(d): COPY OF THE COMPLAINT DT 13/8/2008 SUBMITTED BY THE TEACHERS OF THE SCHOOL TO THE VARKALA SUB INSPECTOR OF POLICE. EXT.A10(e): COPY OF THE COMPLAINT DT 27/6/2008 SUBMITTED BY ONE BASHEER BEFORE THE A.E.O., VARKALA. EXT.A10(f): COPY OF THE COMPLAINT COMPAITN OF THE TEACHERS AND PTA PRESIDENT TO THE MANAGER** **RESPONDENT'S EXHIBITS : NIL.** ## **//TRUE COPY//** ## **P.A. TO JUDGE** ## **BP** ## **PIUS C. KURIAKOSE & P. D. RAJAN, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=** ## **Mat. Appeal No. 367 of 2009 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 23[rd] day of March, 2013** ## **JUDGMENT** ## **RAJAN, J.** This appeal has been directed against the judgment and decree in O.P.(HMA)No.1348/2005 of the Family Court, Nedumangad. The appellant is the husband, who filed the above petition in the Family under Section 13(1) and (ib) of the Hindu Marriage Act 1955 for a decree of divorce against the wife, who is the respondent herein, on the ground of cruelty and desertion. 2 **.** The facts in brief are as follows: The marriage between the appellant and the respondent was solemnized on 30.08.1975 at Varkala Janardhana Swami Temple as per Hindu Customary Rites. After the marriage, they lived together as husband and wife at appellant's house for six months. Thereafter, they shifted to respondent's parental house and resided there for 8 years. At the time of marriage, the appellant was an aided School Teacher and the respondent was doing 1[st] year Pre-degree. The appellant permitted her to continue her studies and all MA 367/2009 2 expenses were also met by him. A daughter was born to them in the wedlock and she studied upto M.Sc who got married to one Dr. Reji in the year 1999. Appellant retired from service in the year 1999 and after that the respondent behaved in an indifferent manner, gradually in the year 2001. She deserted him without any reason and all her belongings were taken away. While so, the appellant again got employment at H. M. Training College, Muvattupuzha. During this period, the appellant decided to embrace Islam and converted into Islam religion. After embracing Islam, he joined MCT Training College, Melmuri P.O., Malappuram. Even after desertion, several attempts were made by the respondent against the life of the appellant. Since the respondent was causing physical and mental pain to the appellant and no chance for reunion, the appellant prayed for a decree of dissolution of the marriage. 3. The respondent denied the allegation by filing objection and contended that she is the legally wedded wife of the appellant. At the time of marriage, her parents were working in London, they gave 50 sovereigns of gold, MA 367/2009 3 Rs.50,000/- as pocket money and an ambassador car to the appellant. She admitted that she was a student and her parents spent money for her further studies. After six months of their marriage, they shifted their residence to her parental house, while residing together the appellant sent letters to her parents demanding money. Accordingly, her parents gave money and purchased 30 cents of property at Odayam in his name, in which a double storied building was constructed, she spent more than 9 lakhs rupees for the house and property. After this, the appellant ousted her and her daughter from the house on the ground that her parents did not gave her share from the property, but through mediation, they lived together. The appellant had illicit relationship with his students and colleagues. For the betrothal ceremony of his daughter, he demandedone lakh rupees, but she refused to write letter to her parents and for that he brutally manhandled her. On the occasion of their daughter's marriage, he was very adamant to bring a beautician from Changanassery and allowed her to reside in the house days before marriage. The appellant converted to MA 367/2009 4 Islam and destroyed the idol of Lord “siva' and compelled the respondent and her daughter to follow islamic faith. When she refused that, he driven out her. Thus, she went her parental house and resided there. Even after several mediation talk, the appellant is not willing to take them back. He has made an attempt to kill her while she was going to school in a scooter. Then she filed a complaint before the Circle Inspector of Police. When she refused for the divorce, he tried for a second marriage after disposing of the entire property. 4. In the family court O.P.No.1348/2005 and O.P.No.1554/2005 were tried jointly and disposed by a common judgment. The evidence was recorded in O.P.No.1554/2005, which consists of oral testimony of PW1 and CPW1 and documentary evidence of Exts.A1 to A4 and Ext.B1 to B12. The trial court framed issues and dismissed O.P.No.1348/2005 and allowed O.P. No.1554/2005. Aggrieved by that husband preferred this appeal. 5. We have heard the learned counsel for the appellant husband and the learned counsel for the MA 367/2009 5 respondent wife. 6. Now the question that arises for consideration is whether the appellant had proved the desertion in the trial court? If so, the judgment and decree passed by the trial court is sustainable in law? It is clear from the oral evidence of PW1 that the marital relationship between the appellant and the respondent had broken and both of them are living separately. Desertion means, rejection of one party of all the obligations of the marriage towards other. The allegation of the appellant was that the respondent deserted him without any reasonable cause and without his consent. In actual desertion, the abandonment of the matrimonial home as a fact is essential, but a temporary withdrawal or abandonment is not with the intention to desert permanently. The evidence of the appellant shows that after the marriage, while they were living together, they shifted to the respondent's parental house and resided therefor eight years. The appellant was an aided school teacher and the respondent was a student of P.D.C. at the time of marriage. In their marital life, a daughter was born MA 367/2009 6 to them and she married one Dr. Reji in the year 1999. After the appellant's retirement, the conduct of the respondent became indifferent and harassing him. In the year 2001, she deserted him without any reasonable cause or issue. This was admitted by CPW1 in her cross examination. She replied the date of desertion as 12.1.2001. She admitted that she filed O.P.No.1554/2005 after filing the divorce petition and before she never approached the court for getting any relief. But, even though, she contended that her husband assaulted her, no evidence has been adduced by her to prove the alleged cruelty. She also contended that PW1 became cruel towards her demanding more amount, but no evidence has been adduced by her to prove that also. But, the evidence in Exts.A2 to A4 shows that now PW1 embraced Islam. The respondent also produced Exts.B11 and B12 to prove the illicit relationship of the appellant with other girls, but that is not admissible because the author of the letter is unknown. The specific allegation of CPW1 that the appellant has illicit relationship with several girls, but that MA 367/2009 7 allegation was not proved. The Family Court has purely misconceived the evidence of PW1 and the family court dismissed the petition for dissolution of marriage. 7. At the very out set we would like to make it clear that the appellant has a long service in various institutions and till date, there was no allegation of misconduct or adverse remark against him through out the service. The respondent is a person having no such reputation and she was placed under suspension due to her misconduct and insubordination towards the school authorities. She is now under suspension for forging the documents against coworkers but her evidence was fully believed by the family court. In cross examination, she admitted that she had left the company of the appellant deliberately in the year 2001 and without any reason. Moreover, she filed the petition for seeking restitution of conjugal rights in 2005 after several years of her desertion in 2001. She was thinking always about monetary benefit from her husband and not lived as a loving wife, she wanted the share from his property, which was admitted in her cross examination. MA 367/2009 8 The conduct of the respondent shows that persistently she is making derogatory and ugly remarks against the appellant. Moreover, her allegation that the appellant having illicit connection with his students or colleagues has caused serious mental pain and agony to him. Mental harassment against the appellant was ignored by the trial court. Cruelty, both mental and physical, against the appellant was with specific motive in order to harass him in the general public. The approach of the respondent, it is clear that there was pure desertion and in order to counter blast that aspect, she preferred the petition for restitution of conjugal rights. 8. “Desertion” is a good ground for divorce under section 13(1)(ib) Hindu Marriage Act. Section 13 (1)(ib) reads as follows: - “13. **Divorce.** (1) Any marriage solemnised, whether before or after the commencement of this Act, 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- xx xx xx xx (ib) has deserted the petitioner for a continuous period of not less than two years MA 367/2009 9 immediately preceding the presentation of the petition.” The above section shows that the abandonment of one spouse by the other without any valid cause and without any consent of the other can be say as “desertion”, which is a complete withdrawal from the life of the other. Therefore, it includes a willful neglect by one spouse by the other. In such a desertion there must be an intention to desert and the factum of separation must present there. Another factor is that desertion should be made without consent of the other. Desertion must have been for a statutory period of two years preceding the presentation of the petition. In this case the respondent deserted the appellant in the year 2001 without any cause, left his company and after that there was no contact between them for reunion. 9. In this context we may refer to one decision of the apex court discussing the principle of desertion. In **Bipinchandra Jaisinghbai Shah** v. **Prabhavati** [AIR 1957 SC 176] in which the Supreme Court observed as follows: _“..For the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there namely, (1) the factum of separation, and (2) the_ MA 367/2009 10 _intention to bring cohabitation permanently to an end (animus deserendi). Similiarly two elements are essential so far as the deserted spouse is concerned: (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. The petitioner for divorce bears the burden of proving those elements in the two spouses respectively. Here a difference between the English law and the law as enacted by the Bombay Legislature may be pointed out. Whereas under the English law those essential conditions must continue throughout the course of the three years immediately preceding the institution of the suit for divorce, under the Act, the period is four years without specifying that it should immediately precede the commencement of proceedings for divorce. Whether the omission of the last clause has any practical result need not detain us, as it does not call for decision in the present case. Desertion is a matter of inference to be drawn from the facts and circumstances to each case. The inference may be drawn from certain facts which may not in another case be capable of leading to the same inference; that is to say, the facts have to be viewed as to the purpose which is revealed by those acts or by conduct and expression of intention, both anterior and subsequent to the actual acts of separation. If in fact, there has been a separation, the essential_ _question always is whether that act could be attributable to an animus deserendi.The offence of desertion commences when the fact of separation and the animus deserendico- exist. But it is not necessary that they should commence at the same time. The de facto separation may have commenced without the necessary animus or it may be that the separation and the (animus deserendi) coincide in point of time; for example, when the separating spouse abandons the marital home with the intention, express or implied of bringing cohabitation permanently to a close. The law in England has prescribed a three years period and the Bombay Act prescribed a period of four years as a continuous period during which the two elements must subsist. Hence, if a deserting spouse takes advantage of the locus poenitentiae thus provided by law and decides to come back to the deserted spouse by a bona fide offer of resuming the matrimonial home with all the implications of marital life, before the statutory period is out or even after the lapse of that period, unless proceedings for_ MA 367/2009 11 _divorce have been commenced, desertion comes to an end, and if the deserted spouse unreasonably refuses to offer, the latter may be in desertion and not the former. Hence it is necessary that during all the period that there has been a desertion, the deserted spouse must affirm the marriage and be ready and willing to resume married life on such conditions as may be reasonable. It is also well settled that in proceedings for divorce the plaintiff must prove the offence of desertion, like and other matrimonial offence, beyond all reasonable doubt. Hence, though corroboration is not required as an absolute rule of law the courts insist upon corroborative evidence, unless its absence is accounted for to the satisfaction of the court.”_ It is worth to note the following decisions of this Court in _**Narayanan**_ V. _**Sreedevi**_ (1989(1) KLT 509) and _**Baby**_ v. _**Gopinath**_ (1989(1) KLT 650). In _**Narayanann's case (Supra)**_ this Court considered the meaning of 'desertion' and held as follows:- _6. The true content and import of desertion in clause l(b) of S.13 of the Hindu Marriage Act imparts a definite idea of complete and endless abandonment of one spouse by the other. This must be without the other’s consent and without justifiable cause. Two essential conditions attached to the notion of desertion are: (1) the factus of separation and (2) the intention to bring marital life permanently to an end animus deserendi. Desertion is always a matter of inference to be drawn from the facts and circumstances of each case. There may be often cases where a spouse is forced under certain peculiar circumstances by the conduct of the other spouse, to live separately or to stay away. In such a case there is no legal desertion to constitute a ground for divorce. The simple reason is that the said situation has been brought about by the act of the spouse who had misconducted himself or herself._ _7 . Desertion as a ground for divorce was added to S.13 by the Marriage Laws (Amendment) Act, 1976. Before the amendment, it was only a ground for judicial separation. Now the ground of desertion for claiming divorce is qualified as desertion for a continuous period of two years immediately preceding the presentation of the petition. The Explanation makes it clear that the expression ‘desertion’ means the desertion of the petitioner by the other party to the marriage_ MA 367/2009 12 _without reasonable cause, and without the consent and against the wish ofsuch party and it includes the wilful neglect of the petitioner by the other party to the marriage. The section read along with the explanation makes it abundantly clear, that in its essence it signifies the intentional permanent forsaking and abandonment of one spouse by the other without the other’s consent and without reasonable cause. It is a total repudiation of the obligations of marriage vide (Lachman v. Meena A.I.R. 1964 S. C. 40). The explanation gives emphasis to the quality of permanence as one of the essential elements differentiating desertion from voluntary separation for good reasons. It is very important to note that in deciding what constitutes desertion, one of the first matters for consideration is the intent of the offending party in addition to separation or withdrawal from cohabitation._ ## 10. In 1989 (1) KLT 650 (Supra) this court held as ## follows:- To constitute an act of desertion two elements must be there on the side of the deserting spouse. Firstly, the factum of physical separation is the sine qua non of desertion. There must also be the animus deserandi to bring co-habitation or the matrimonial consortium to an end. Likewise, so far as deserted spouse is concerned, to constitute desertion, it must be affirmatively established that he was not a consenting party to the desertion by the opposite party. In other words, if it is found that desertion happened on account of the action of the deserted spouse he cannot legitimately adopt the posture of innocence. On the side of the deserted spouse there should not occur any conduct giving reasonable cause to the spouse leaving matrimonial house. In a case where desertion is alleged to obtain decree of divorce it must be established that the deserting spouse purposefully kept away from the other party to the marriage with the avowed intention of not having any matrimonial relationship. In Rohini Kumari v. Narendra Singh (AIR. 1972 S.C. 459) the Supreme Court held that desertion within the meaning of S.10(1) (e) of the Act read with Explanation does not imply only a separate residence and separate living but also a determination to put an end to matrimonial relationship and co-habitation. One of the essential elements which differentiates desertion from wilful separation is the quality of permanence. If in a case a spouse abandons the other spouse in a state of temporary passion or anger without intending to cease co-habitation permanently, it will not amount to desertion. In a case where a spouse had left the MA 367/2009 13 opposite party’s company never to return and with the intention to bring cohabitation permanently to an end, the necessary animus deserandi can be inferred. In a case where physical separation with animus deserandi has been established, certainly, the allegation of desertion stands proved. 11. In her evidence she admitted that she is residing separately from 2001. She admitted that she deliberately left the house in the year 2001 and in the year 2005 she filed O.P. No. 1060/2004 for restitution of conjugal right. After the desertion, she never approached the appellant for residing together. She deposed that she has income from her Government job. Now she is residing in her family house. She admits that while she was residing with the appellant their life was peaceful. Moreover, she left the company of the appellant because of her apprehension that there was a threat to her life but no physical act of violence was proved. While she was working as Headmistress, there were several complaints against her. There was a quarrel with another teacher and the respondent was suspended. She admitted that Ext.A11 letter was not shown to the appellant. While the appellant was working in Training College, Muvattupuzha, several girls visited his house on MA 367/2009 14 different occasions. The appellant is a Ph.D. guide and the respondent has no knowledge regarding this guide status. But she admitted that for research purpose students visited the house. Even though she deposed so, no evidence has been adduced by her to prove that he has illicit relation with other girls. Even though she highlighted several facts in her examination, her evidence is not admissible for reaching a conclusion with regard to alleged cruelty. 12. Keeping in view of the principles pertaining to desertion, we have scrutinized the oral and documentary evidence which shows that there was deliberate desertion from her side through out the period. If it is a temporary retreat by the wife from the company of the husband, it will not amount to permanent desertion. Actual desertion is not a simple or stray retreat by one spouse from a place, but, the permanent physical separation with an intention to end the cohabitation permanently. If the respondent is living with 'animus deserendi' and her absence was without sufficient reason to leave the company of the husband, then the appellant's claim has some relevancy. MA 367/2009 15 13. In the result, the judgment and decree passed by the Family Court , Nedumangad are set aside and the O.P. No.1348 of 2005 of the Family Court, Nedumangad is decreed granting divorce under section 13(1)(ib) of the Hindu Marriage Act. No costs. ## **PIUS C. KURIAKOSE, JUDGE.** **P. D. RAJAN, JUDGE.** nkm.