K.G. Jayaraj v. K.G. Bindu

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **THE HONOURABLE MR.JUSTICE K.HARILAL &** **THE HONOURABLE MR. JUSTICE A.M.BABU** **TUESDAY, THE 19TH DAY OF JUNE 2018 / 29TH JYAISHTA, 1940** **AGAINST THE JUDGMENT DATED 07-10-2008 IN O.P.(HMA) NO.959/2007 of FAMILY COURT, THIRUVALLA** **APPELLANT/PETITIONER:-** **-----------------------** **K.G.JAYARAJ, S/O.GOVINDAN, KUNNATHUPARAMBIL VEEDU, KARACKAL MURI, PERINGARA VILLAGE, THIRUVALLA TALUK.** **BY ADV.SRI.R.GIREESH VARMA** ## **RESPONDENT/RESPONDENT:-** **-----------------------** **K.G.BINDU, D/O.K.P.GOPALAN, KUTTIPARAMPIL VEEDU, PADINJAREKKARA MURI, NEDUMPRAM VILLAGE, THIRUVALLA TALUK.** **BY ADV. SRI.SANTHOSH MATHEW** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 19-06-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **DST** ## **K. HARILAL & A.M. BABU,JJ.** **= = = = = = = = = = = = = = = = =** **Mat. Appeal No.182 of 2009 - - - - - - -- - - - - - - - - - - - - -** _Dated this the 19[th] day of June, 2018_ ## **J U D G M E N T** ## **K. Harilal, J.** The appellant is the husband of the respondent. He was the petitioner in O.P.(HMA) No.959 of 2007 of the Family Court, Thiruvalla. The aforesaid Original Petition was filed by him against the respondent under Section 13(1)(b) of the Hindu Marriage Act, 1955 _(hereinafter referred to as 'the Act'),_ on the ground that the respondent has deserted him. The respondent resisted the said Original Petition and denied the allegations levelled against her. 2. Both parties adduced evidence. After considering the evidence on record, the Family Court dismissed the Original Petition. This appeal has been filed challenging the findings, whereby the ## **Mat. Appeal No. 182 of 2009** ## **-: 2 :-** Family Court dismissed the aforesaid Original Petition. The parties are referred to as in the Original Petition 3. Brief facts of the case can be summarised as follows: The marriage between the petitioner and the respondent was solemnized on 01.01.1987 and two children were born to them. While living together, their marital relationship has become strained. According to the petitioner, she left his company and went to her parental home frequently, without his consent. In the meantime, the petitioner started a grocery shop in the name of the respondent, by availing a loan from the Vanitha Vikasana Corporation and there arose dispute with respect to the liability to discharge the loan. However, they entered into an agreement at the instance of the mediators settling the liabilities between them and the said agreement was executed on 22.01.2002. Thereafter, the respondent started to live with her mother in the parental home ## **Mat. Appeal No. 182 of 2009** ## **-: 3 :-** with the children. Though, the petitioner made all his earnest efforts through mediators for resolving the differences of opinion between them and to resume cohabitation, the respondent was not willing to resume cohabitation with him. In the meantime, she has filed M.C. No.32 of 2002, seeking maintenance allowance and Original Petition No.235 of 2005, seeking custody of the children. The respondent has deserted the petitioner from 21.01.2002 and thereafter, she has been residing along with her mother and she is not willing to resume cohabitation. In the above circumstances, the petitioner filed the aforesaid Original Petition, seeking dissolution of marriage on the ground of desertion. 4. The respondent filed objection, denying the allegation that she has deserted the petitioner from 22.01.2002 onwards. According to her, the petitioner has neglected to maintain the respondent and the children and she was constrained to approach ## **Mat. Appeal No. 182 of 2009** ## **-: 4 :-** the court for getting an order, directing the petitioner to pay maintenance allowance to her and the children. She has also contended that there was an agreement to transfer the ownership of 46 cents of paddy land, which stands in the name of the petitioner and the respondent to the ownership of the petitioner alone; but the petitioner has not complied the terms of agreement. In the aforesaid averments, the respondent has prayed for dismissal of the Original Petition. 5. The petitioner was examined as PW.1 and Exts.A1 to A4 were marked. The respondent was examined as CPW.1. No documentary evidence was produced. After considering the evidence on record, the Family Court rejected the claim for dissolution of marriage on the ground of desertion on a finding that the petitioner has failed to prove desertion as contemplated under the Explanation to Section 13(1) ## **Mat. Appeal No. 182 of 2009** ## **-: 5 :-** - (b) of the Act. 6. Heard the learned counsel for the appellant and the learned counsel for the respondent. 7. In view of the arguments at the Bar, the point to be considered is, whether the Family Court is justified in finding that the petitioner has failed to prove the allegation that the respondent has deserted him from 22.01.2002 as contemplated under the Explanation to Section 13(1)(b) of the Act. 8. It is not disputed that the marriage was on 01.01.1987 and they lived together as husband and wife till 22.01.2002 and in the meantime, two children were born to them. The respondent has admitted that after 22.01.2002, she has been residing with her mother in the parental home. Thus, the departure of the respondent from the ## **Mat. Appeal No. 182 of 2009** ## **-: 6 :-** society of the petitioner from 22.01.2002 is not disputed. 9. Going by the impugned judgment, it is seen that the Family Court has rejected the claim for dissolution of marriage on the ground of desertion, on a finding that Ext.A2 agreement produced by the petitioner himself would prove that the respondent started to live separately from 22.01.2002 on the basis of a mutual consent of the petitioner and the respondent, which was taken at the interference of mediators, who interfered with the marital dispute between the petitioner and the respondent. Can the Family Court be justified in finding so on the basis of the pleadings of the respondent? 10. Going by the Explanation to Section 13(1) (b) of the Act, it is seen that mere desertion by one of the party to the marriage without reasonable cause and without consent is not sufficient to get a ## **Mat. Appeal No. 182 of 2009** ## **-: 7 :-** decree for dissolution of marriage, unless the desertion was against the wish of the other party to the marriage. Therefore, it was incumbent on the petitioner to prove that the desertion of the respondent from 22.01.2002 was against his wish. Going by the averments in the Original Petition, there is no averments to the effect that the respondent was living separately on her own volition or against his will and that she has deserted him without any reason. Thus, mere desertion alone is pleaded in the Original Petition. 11. Coming to the evidence, the petitioner was examined as PW.1 and in his chief-examination also, it was not stated that the respondent was living separately on her own volition or against his will and that she has deserted him without any reason. Thus, the ingredients constituting desertion as contemplated under the Explanation to Section 13(1) **Mat. Appeal No. 182 of 2009** ## **-: 8 :-** (b) of the Act is totally absent in pleadings and in chief-examination. 12. On the other hand, the petitioner himself has produced Ext.A2 agreement, which was executed between the petitioner and the respondent on 22.01.2002. It is true that the said agreement was executed to settle the financial liability in connection with the grocery shop, which was started after obtaining loan from the Women Development Corporation. But, in the prelude of the agreement, it is specifically stated that the petitioner and the respondent have on mutual consent entered into an agreement to live separately and the said decision was taken at the interference of some mediators, who interfered with the matrimonial dispute between the petitioner and the respondent. Thus, it is discernible from Ext.A2 agreement that on the basis of the mutual consent, the respondent ## **Mat. Appeal No. 182 of 2009** ## **-: 9 :-** started to live separately with her mother and the children in her parental home. Therefore, it cannot be held that the respondent withdrew from the society of the petitioner against his wish. 13. In the above analysis, the Family Court is justified in rejecting the claim for dissolution of marriage on the ground of desertion. The above view is supported by the decision of this Court in _**Unni**_ ## _**v. Jaya**_ [2018(2)KHC 804]. _“9. It is well settled that in order to get a decree for divorce on the ground of desertion, the party who approach the court alleging desertion is supposed to prove that the opposite party willfully stayed away from him / her company and abstained from cohabitation without any reason that too with the intention to put an end to the marital relationship. So the intention to put a full stop to the marital relationship without any reasonable cause for a continuous period of not less than two years since the date of petition would surely tantamount to desertion. The mere fact of staying away by one party from the company of the other without any intention to put an end to the marital relationship is not sufficient to infer that there is desertion. So also there must be evidence to show that the opposite party was having the intention or desire not to continue with the relationship and had totally neglected or discarded the party who approached the court and that the_ ## **Mat. Appeal No. 182 of 2009** ## **-: 10 :-** _separation was without any reasonable cause and also without the consent. The word 'desertion' is explained in the Act as desertion by the other party to the marriage without reasonable cause, without the consent or against the wish of such party, which includes willful neglect of the party whom the allegation is levelled against. The mere fact of residing separately from the company of the spouse for some reason or other cannot be termed as desertion. The party alleging desertion must able to prove that against his / her consent / wish the spouse left the company that too for no reason and he / she do not wish to cohabit and reside together at any point of time in future and also totally neglected or avoided the marital relationship, for ever.”_ Hence, this appeal is dismissed. All pending Interlocutory Applications will stand closed. Sd/- **K. HARILAL, JUDGE** Sd/- **A.M. BABU, JUDGE** DST //True copy// P.A. To Judge