Jessy Joseph v. Jayaprakash C

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **&** **THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR** **MONDAY, THE 18TH DAY OF NOVEMBER 2019 / 27TH KARTHIKA, 1941** **Mat.Appeal.No.799 OF 2013** **AGAINST THE JUDGMENT IN OP 12/2013 DATED 13-09-2013 OF FAMILY COURT, MUVATTUPUZHA** ## **APPELLANT/RESPONDENT:** **JESSY JOSEPH AGED 43 YEARS D/O.JOSEPH, BELIKUNNEL HOUSE, AVOLY P.O., MUVATTUPUZHA** **BY ADV. SRI.T.K.RADHAKRISHNAN** ## **RESPONDENT/PETITIONER:** ## **JAYAPRAKASH C** **AGED 44 YEARS S/O.LATE C.U.JOSEPH, CHIRAKANDATHIL (H), MEENKUNNAM P.O., MUVATTUPUZHA - 686 672.** **BY ADV. SRI.PAUL K.VARGHESE** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 07-11-2019, THE COURT ON 18-11-2019 DELIVERED THE FOLLOWING:** **Mat.Appeal No.799 of 2013** ## **:-2-:** ## **Dated this the 18[th] day of November, 2019** ## **J U D G M E N T** ## **T.V.ANILKUMAR, J.** Appellant is the wife in O.P.No.12 of 2013 before the Family Court, Muvattupuzha. Being aggrieved by the order of the Family court granting divorce in favour of the respondent/husband, she has filed this appeal. 2. She was married to respondent on 2.8.1999 in accordance with the religious rites of Christian community. She was employed in Saudi Arabia at the time of marriage. The respondent was a junior lawyer practicing in Muvattupuzha. Two children were born to the spouses out of the wedlock. 3. The respondent/husband sought dissolution of marriage on the grounds of cruelty and desertion ## **Mat.Appeal No.799 of 2013** ## **:-3-:** under Sections 10(ix) and (x) of the Indian Divorce Act, 1869 (for short, 'the Act'). His case is that immediately after the marriage, the appellant used to insult him terming him to be penniless and incapable of earning. When she returned from Saudi Arabia in 2003, she preferred to live in her parental home and avoided to stay with him in the matrimonial house. When she resigned and returned from Saudi Arabia on 28.1.2006 also, she used to quarrel and humiliate him in front of his parents. She used to launch complaints before the police against him on unfounded facts. She demanded a sum of Rs.7 lakhs to be paid to her as a condition for living with him and the amount was paid to her on 25.8.2007 in the presence of the mediators. Immediately for no good reasons, she left the house taking the children away and has failed to join him ## **Mat.Appeal No.799 of 2013** ## **:-4-:** since then. Instead, she initiated litigations seeking return of money and claimed maintenance. 4. She filed counter statement denying allegations of cruelty and desertion. According to her, the respondent failed to earn anything out of his profession and he always insisted her to part with hard earned money out of her job. She denied having insulted him in any manner. The money she sent to him was misutilised for purchasing 2.10 acres in his name and another 15 cents with building in the name of his father, against his undertaking with her that the money would be used only for acquisition of properties in her sole name. It is contended that when she demanded to transfer the properties in her name, he manhandled her. He sold 2 acres and 15 cents and gave her a cheque for Rs.7 lakhs promising to pay the balance ## **Mat.Appeal No.799 of 2013** ## **:-5-:** amount out of the total sale price of Rs.18,60,000/-. On account of harassment, she was forced to leave for her parental house with children on 25.8.2007. She has not wilfully deserted the respondent nor committed any acts of cruelty. This is the sum and substance of her case. 5. The court below examined the respondent and a close neighbour of his as PWs.1 and 2 respectively and marked Exts.A1 to A4 in evidence. Appellant had no documents to be produced and she examined herself as RW1. 6. The court below after analysing the evidence on record found that the appellant was interested only in getting money from respondent and she had no genuine love for him and her acts amounted to cruelty. It was also found that she deserted him for a period more than two years ## **Mat.Appeal No.799 of 2013** ## **:-6-:** immediately preceding the institution of the original petition. Thus, accepting cruelty and desertion as valid grounds for dissolution, the original petition was allowed by impugned order dated 13.9.2013. 7. It is contended by the learned counsel for the appellant that there is no iota of evidence on record to establish that she treated the respondent with cruelty and the court below was misled by the poor evidence and it erred in granting decree of dissolution of marriage. It was also contended that the appellant was forced to leave for the parental home only because of the cruelty meted out to her and there was no intention on her part to abandon the matrimonial relationship for ever. On the other hand, the learned counsel for the respondent sought to sustain the order of the court below relying on ## **Mat.Appeal No.799 of 2013** ## **:-7-:** the evidence on record. 8. The sole contention of the respondent in support of his case for cruelty is that the respondent by using insulting words humiliated him in front of his parents by saying that he was not capable of earning from his profession and further he misrepresented to her before the marriage that he was a rich lawyer. We find that no specific incident has been alleged indicating the act of cruelty committed by the appellant either in the pleadings or in the evidence. The sole reason for the court below to accept cruelty as ground of dissolution is that appellant was interested only in the earnings of the respondent. On a reconsideration of entire evidence, we do not find that there is any evidence to support the view of the court below. It is not that every act of a ## **Mat.Appeal No.799 of 2013** ## **:-8-:** spouse done towards the counter part in life amounts to cruelty. In order to constitute an act of cruelty, the complaining spouse should aver and prove that he or she apprehended life with the counter part to be unsafe. There is no such allegation in the present case and the reason relied on by the lower court cannot be regarded as an act of cruelty adequate enough to form a grand for divorce. There is no evidence coming forth in this case to the effect that the life of the respondent would be harmful or injurious for the respondent to live with the appellant. 9. Therefore, disagreeing with the view taken by the court below, we are inclined to hold that the respondent failed to prove cruelty as a valid ground for dissolution of marriage. The learned counsel for the appellant cited a decision in ## **Mat.Appeal No.799 of 2013** ## **:-9-:** **Philip v. Susan Jacob (2001(1) KLT 890)** to contend for the position of law that husband cannot seek for dissolution of marriage on the ground of cruelty and desertion. We are of the opinion that the said decision does not lay down any such law contrary to Section 10(1) of the Act. 10. The second ground for dissolution is desertion, which the court below, in our view, rightly accepted as a ground for granting divorce in favour of the respondent. Both spouses admit that after 25.8.2007, they separated and there had been no re-union thereafter. The question therefore is, which of the spouses is responsible for the separation. An erring spouse cannot take advantage of his or her own wrong and obtain a decree of dissolution on the ground of desertion. According to PW1, the appellant received an amount of Rs.7 ## **Mat.Appeal No.799 of 2013** ## **:-10-:** lakhs on 25.8.2007 in settlement of certain financial issues between them and left the house, and thereafter did not return at all. On the other hand, the appellant's case is that in connection with settlement of financial issues, she demanded the entire money back and when he manhandled her, she had to naturally leave the matrimonial house for the sake of her safety. 11. It has come out in evidence that the respondent purchased properties in his name allegedly with the funds given by the appellant. There were litigations also in this respect and it appears that O.P.No.320 of 2012 filed for return of money was settled. Likewise M.C.No.52 of 2012 filed by her for maintenance was also settled as is evident from Exts.A3 and A4 proceedings of the Family Court, Muvattupuzha, disposed of on ## **Mat.Appeal No.799 of 2013** **:-11-:** 4.7.2012. When these records are read along with the evidence of PW1, it is obviously clear that the appellant left the matrimonial house on account of monetary issues between the spouses. There is no convincing evidence to prove that the respondent ever manhandled her and therefore she was compelled to leave him. The evidence on record sufficiently proves that the appellant left the respondent on her own account. Therefore, the burden lies only on her to prove that the separation was not with an intent to put the matrimonial relationship to a permanent end. The burden of proof has not been discharged by her. The evidence given by PW2, a neighbour, and the circumstances on record clearly prove that after 25.8.2007, she has not joined the respondent nor made any attempt to live with him at all. ## **Mat.Appeal No.799 of 2013** ## **:-12-:** 12. The appellant has a specific contention that in spite of the compromise and settlement of litigations also, she has not been benefited by the orders of the court. Whether this is true or not, this contention indicates that the broken relationship still continued and she has never been in any mental condition to resume the matrimonial relationship with the respondent. On looking at he entire facts and circumstances, we agree with the view that the court below, that the appellant deserted the respondent with the intention of abandoning the matrimonial life for ever. Many a attempt has been made to bring the parties together through counsellings and mediations at different levels of this litigation. The failure of parties to come to terms and lead a normal life, indicates that the relationship has become irretrievably ## **Mat.Appeal No.799 of 2013** ## **:-13-:** broken. Therefore, we find no ground to interfere with the order of the court below granting dissolution of marriage on the ground of desertion. The impugned order, accepting desertion as a valid ground made out by the respondent for an order of dissolution of marriage, is only to be confirmed. We do so. **==> picture [398 x 13] intentionally omitted <==** dismissed. However, parties will suffer their respective costs. **==> picture [398 x 12] intentionally omitted <==** closed. Sd/- **A.M.SHAFFIQUE JUDGE** Sd/- **T.V.ANILKUMAR JUDGE** ami/