Mat. Appeal Nos. 307 & 324 of 2005

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE & THE HON'BLE MR. JUSTICE BABU MATHEW P.JOSEPH THURSDAY, THE 11TH DAY OF OCTOBER 2012/19TH ASWINA 1934 Mat.Appeal.No. 307 of 2005 ( ) -----------------------------OP.634/1998 of FAMILY COURT,TRIVANDRUM APPELLANTS/PETITIONERS: --------------------------------------- 1. V.S. VALASALA KUMARI, SAROJA BHAVAN, VENGANOOR, TRIVANDRUM. 2. P.V. JAYALEKSHMI OF -DO- -DO-. BY ADV. SRI.G.S.REGHUNATH RESPONDENT(S)/(RESPONDENT):: ---------------------------- S. PRAHALADAN, KAVITHA, NAKKARA ROAD, PUTHIYAKAVU THRIPUNITHURA. BY ADV. T.R.JAGADEESH THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 11-10-2012, ALONG WITH M.A.324/2005, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **PIUS C. KURIAKOSE & BABU MATHEW P. JOSEPH, JJ.** **---------------------------------------------------Mat. Appeal Nos. 307 & 324 OF 2005 ----------------------------------------------------Dated this the 11[th] day of October, 2012** ## **C O M M O N J U D G M E N T** ## **BABU MATHEW P. JOSEPH, J** The appellants in Mat. Appeal No.307 of 2005 were petitioners in O.P.No.634 of 1998 on the files of the Family Court, Thiruvananthapuram. In that O.P., the petitioners claimed maintenance from the respondent. The claim for maintenance of the first appellant was rejected and a monthly maintenance of Rs.750/- from the date of petition viz. 17.7.1998 till 31.12.2001 and thereafter at the rate of Rs.1,000/- per month were granted to the 2[nd] appellant. Aggrieved by the rejection of the claim for maintenance of the first appellant and dissatisfied with the amount of maintenance granted to the 2[nd] appellant, Mat. Appeal No.307 of 2005 has been filed. The first appellant in this case is the only appellant [Mat.Appeals. 307 &324/2005] 2 in Mat. Appeal No.324 of 2005. The respondent in this appeal filed O.P.No.333 of 2000 for a decree of divorce dissolving his marriage to the appellant on the grounds of cruelty and desertion. That O.P. has been decreed by the Court below. Aggrieved by the same, Mat. Appeal No.324 of 2005 has been preferred by the appellant. 2. Heard both the sides. Since both these appeals arise out of a common judgment and also considering the parties involved, we have heard both these appeals together and they are being disposed of by a common judgment. 3. The marriage between the appellant/wife and the respondent/husband in Mat.Appeal No.324 of 2005 was solemnized on 20.3.1982 in accordance with the rites and rituals followed among the Hindus. After a few months, differences were developed in their matrimonial life. A female child was born to them on 31.5.1983. It is the case of the husband that the wife deserted him on 19.10.1986. It is also his case that he was subjected to severe mental cruelty by the wife in different ways including raising allegation of illicit relationship with a lady by name Maya Jacob. [Mat.Appeals. 307 &324/2005] 3 4. The wife has contested the divorce petition. The husband has contested O.P.No.634 of 1998 filed by the wife and child for maintenance. The evidence in both the cases is common which consists of the oral testimony of PW1 who is the respondent and CPW1 who is the appellant in Mat. Appeal No.324 of 2005. Exts.A1 to A15 on the side of respondent and Exts.B1 to B15 on the side of appellants were also marked. 5. The Court below, after considering the matter, found that the grounds of cruelty and desertion alleged by the respondent were true and granted a decree of divorce on those grounds. The Court below believed the evidence of PW1, the husband, and disbelieved the evidence of CPW1, the wife. Since the decree of divorce was granted on the ground of desertion by the wife, her maintenance claim was also disallowed. On considering the evidence, Rs.750/- per month from the date of petition viz. 17.7.1998 till 31.12.2001 and thereafter at the rate of Rs.1,000/- per month were granted to the 2[nd] appellant in Mat.Appeal No.307 of 2005 till she is married. 6. Learned counsel on both the sides have advanced detailed arguments before us. We have been taken through the [Mat.Appeals. 307 &324/2005] 4 evidence. We have also gone through the impugned judgment. Having heard the learned counsel on both the sides and considered the matter, we find no reason to interfere with the judgment of the Court below in respect of the maintenance allowed to the 2[nd] appellant in Mat. Appeal No.307 of 2005. On going through the evidence of PW1 and CPW1 and considering the documents brought to our notice, we cannot agree with the findings entered by the Court below for granting divorce. The wife relied on Ext.B2 document for proving her case that the respondent has illicit relationship with Maya Jacob. Ext.B2 is a photograph in which both the respondent and Maya Jacob appear along with the bride and the bridegroom on the occasion of their marriage. Learned counsel for the wife submitted that, subsequently, the respondent and Maya Jacob got married themselves and they are now living as husband and wife. A child was also born to them. Learned counsel for the respondent/husband is not in a position to dispute such a submission made by the learned counsel for the wife. He submits that the records now available before the Court would not show that the respondent and Maya Jacob got married [Mat.Appeals. 307 &324/2005] 5 themselves as submitted by the learned counsel for the wife. 7. Learned counsel for the wife contended that, as a matter of fact, the wife has not deserted the husband. Due to various reasons described in her evidence, she was compelled to live away from the husband for which she cannot be found fault with. It cannot be treated as a desertion forming a ground for granting divorce as it happened due to compelling reasons for which the husband alone was responsible. The fact that the wife is residing away from the husband in such circumstances is no ground for the husband to allege desertion against the wife for getting a decree of divorce on that ground. He has relied on the decision rendered by a Division Bench of this Court in **Latha Kunjamma** v. **Anil Kumar** [2008 (2) KLT 545] and on the decision rendered by the Supreme Court in **Neelam Kumar** v. **Dayarani** (AIR 2011 SC 193). This Court in 2008 (2) KLT 545 held as follows: “........If one spouse by his words and conduct compel the other spouse to leave the marital home, the former would be guilty of desertion, though it is the latter who has physically separated from the other and has been made to [Mat.Appeals. 307 &324/2005] 6 leave the marital home.......” The Supreme Court in AIR 2011 SC 193 held as follows: “......There is nothing to indicate that the respondent has contributed in anyway to the alleged breakdown of the marriage. If a party to a marriage, by his own conduct brings the relationship to a point of irretrievable breakdown, he/she cannot be allowed to seek divorce on the ground of breakdown of the marriage. That would simply mean giving someone the benefits of his/her own misdeeds........” Therefore, in a case where divorce is sought for on the ground of desertion by one spouse against the other, the test is not as to who left the matrimonial home first. If one spouse has left the home compelled by the conduct of the other spouse, the spouse responsible for driving off is guilty of desertion. If the wife is forced or compelled to be away from the marital home by the conduct of the husband, the husband alone is responsible for desertion. So, who is actually responsible or who has contributed to the alleged desertion is the real test in a case where desertion is alleged as a ground for divorce. [Mat.Appeals. 307 &324/2005] 7 8. In the case on hand, the court below entirely relied on the evidence of the husband and entirely disbelieved the evidence of the wife in arriving at the conclusions. Various facts and circumstances available in the case as well as the subsequent development i.e., the marriage of the husband to Maya Jacob asserted by the learned counsel for the wife are considered, we are of the view that the matter has to be remanded for considering afresh by the court below after affording an opportunity to both the sides including the opportunity for adducing further evidence. Since we are remanding the matter, we refrain from going into the details any further. In the result, we set aside the judgment passed by the court below in O.P.No.333 of 2000 granting a decree of divorce in favour of the husband. We also set aside the judgment of the court below in O.P.No.634 of 1998 to the extent it rejects the claim of the wife for maintenance. Learned counsel for the husband now submits that the 2[nd] appellant in Mat. Appeal No.307 of 2005 has already attained majority and her marriage was also over. We have already found that there is no reason for interfering with the judgment of the court below in respect of [Mat.Appeals. 307 &324/2005] 8 the maintenance allowed to the 2[nd] appellant in Mat. Appeal No.307 of 2005. Therefore, Mat. Appeal No.307 of 2005 to the extent it relates to the prayer of the 2[nd] appellant for enhancing the quantum of her maintenance is liable to be dismissed and hence, we do so. The court below need only consider the claim of the first petitioner alone afresh in O.P.No.634 of 1998. The court below is directed to consider afresh O.P.Nos.333 of 2000 and 634 of 1998 in the light of the evidence already on record and also in the light of the evidence which may be adduced by the parties. The parties shall appear before the court below on 9.11.2012. The Registry is directed to transmit the records to the court below without delay. Sd/- ## **PIUS C. KURIAKOSE, JUDGE** **Sd/BABU MATHEW P. JOSEPH, JUDGE** ul/krs.