Sabu M Varghese v. Vimala Rosy A.A.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR FRIDAY, THE 21[ST] DAY OF OCTOBER 2022 / 29TH ASWINA, 1944 MAT.APPEAL NO. 701 OF 2021** **AGAINST THE JUDGMENT DATED 31.08.2022 IN O.P.NO.200 OF 2018 OF THE FAMILY COURT, ERNAKULAM** **APPELLANT/PETITIONER:** **SABU M VARGHESE AGED 48 YEARS, S/O. VARGHESE, MANGALAPPILLY HOUSE, NO.43/406, EROOR WEST P.O, THRIPUNITHURA, ERNAKULAM DISTRICT.** **BY ADV JOSEPH M.P.** ## **RESPONDENT/RESPONDENT:** **VIMALA ROSY A.A** **AGED 40 YEARS, W/O. SABU M VARGHESE, D/O. ANTONY, ADICHIYIL HOUSE, THYKOODAM, VYTILLA P.O, ERNAKULAM DISTRICT.** **BY ADV M.V.KISHORE KUMAR** **THIS MATRIMONIAL APPEAL HAVING COME UP FOR FINAL HEARING ON 21.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 Mat.Appeal No.701 of 2021 ## **JUDGMENT** ## Ajithkumar, J. The petitioner in O.P.No.200 of 2018 on the file of the Family Court, Ernakulam is the appellant. He filed the original petition for dissolution of his marriage with the respondent on the ground of desertion under Section 10(1)(ix) of the Divorce Act, 1869. That petition was dismissed as per the judgment dated 31.08.2021, which is under challenge in this appeal filed under Section 19 of the Family Courts Act, 1984. 2. On 15.12.2021 this appeal was admitted. 3. Heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondent. 4. Marriage of the appellant and the respondent was solemnized on 15.04.2002. They have two daughters. The appellant seeks dissolution of marriage on the basis of the allegations that the respondent voluntarily left the matrimonial home on 29.12.2013 and ever thereafter she has not turned up to have cohabitation with the appellant. 3 Mat.Appeal No.701 of 2021 5. The respondent resisted the petition contending that she had to leave the company of the appellant since she has been experiencing total neglect, mental and physical cruelty and lack of support from the appellant. He never discharged his marital obligations. It is contented that they had to leave the family house where she along with the appellant and the children were residing, following partition. They shifted to a rented house, but had to often change the rented house since the appellant was not prompt in making payment of the rent. The money obtained during partition was wasted by him. Although several businesses were attempted, all ended up in loss due to his irresponsibility. He did not bother to provide even food and shelter to the respondent as well as the children. The gold ornaments and money given to the respondent at the time of marriage were misappropriated. He used to manhandle the respondent. She therefore filed a complaint before the police, and M.C.No.16 of 2014 claiming maintenance and other reliefs. Owing to the unbearable miseries due to mental and physical cruelty she could not 4 Mat.Appeal No.701 of 2021 continue cohabitation. Also, she along with children could not continue in the rented house for want of payment of rent by the respondent. It was in such circumstances she along with the children left for her parental house. The respondent accordingly sought to dismiss the petition. 6. PWs.1 to 4 were examined and Exts.A1 to A12 were marked on the side of the appellant. RWs.1 to 3 were examined and Exts.B1 to B4 were marked on the side of the respondent. The Family Court after considering the evidence on record found that the respondent had to leave the matrimonial home only on account of the fault on the part of the appellant and in fact, it was the appellant who meted out cruelty and if at all to claim divorce, it should have been by the respondent. She still wanted to continue the marital chord. The Family Court accordingly dismissed the petition. 7. The learned counsel appearing for the appellant would submit that the Family Court was not correct in holding that the evidence let in by the appellant was insufficient to grant a decree of divorce. It is pointed out that the 5 Mat.Appeal No.701 of 2021 respondent’s leaving the matrimonial home on 29.12.2013 is an admitted fact and the reasons stated by her for abandoning the company of the appellant is unacceptable. When Section 10(1)(ix) of the Divorce Act states that a decree of divorce is liable to be granted if a spouse deserted for a period of more than two years immediately preceding the filing of the petition, it is incumbent upon the court to grant such a decree since sufficient evidence in proof of such desertion was placed before the court. 8. The respondent does not dispute that she left the matrimonial home. The assertion of PW1 that she abandoned the matrimonial home on 29.12.2013 is not challenged. The learned counsel for the respondent contended that mere leaving from the marital home does not amount to desertion. He asserts that if a spouse leaves the marital tie for justifiable reason that will not amount to desertion for the purpose of Section 10(1)(ix) of the Divorce Act. If a person is unable to cope with the situation and forced to leave the home as a result of the acts and deeds of the other spouse, that cannot 6 Mat.Appeal No.701 of 2021 be an abandonment, but it involves a forceful ousting from the home. The learned counsel would submit that the evidence sufficiently established that the respondent left the house only because of the miseries she and her children had to face on account of the misdeeds of the appellant and hence the judgment of the Family Court does not suffer from any vice. 9. As against the oral testimony of PW1 that the respondent failed to discharge her responsibilities as a wife and left the home without any justifiable reason, the respondent deposed as RW1 narrating the circumstances in which she had to leave the home. It is her version that only on account of aid and help from the uncle of the appellant, she could live on for a considerable period in the company of the appellant and the appellant never had looked after the affairs of herself or the children. 10. Ext.A9 series, A11 and A12 were produced to show that certain amounts were paid to the respondent and thus the appellant has met the expenses relating to the 7 Mat.Appeal No.701 of 2021 maintenance of the wife and children. The payments evidenced by the said documents were by the mother and uncle of the appellant. The evidence of RWs.2 and 3 assumes much importance in that context. 11. RW2 is the sister and RW3 is the brother-in-law of the appellant. Going by their versions, it is quite evident that the appellant never was responsible in the affairs of not only the wife, but also children. He was a spent-thrift and drunkard showing no interest or regard to the affairs of the children. When his own sister and brother-in-law describe the appellant as such a man, how could the respondent along with her two daughters, who are aged 13 and 8 years, continue to live with the appellant. RW1 deposed that the appellant did not even pay rent for their rented accommodation, he did not meet the expenses of the daily sustenance and education of the children and he used to torture her even physically. Those versions were not successfully cross-examined. 12. PW2 is the Doctor who was consulted by the appellant and the respondent together. Ext.A4 is a medical 8 Mat.Appeal No.701 of 2021 prescription. From the evidence of PW2, it is seen that the appellant was an addict of alcohol, tobacco and drugs. In the view of PW2 the behavioural pattern and abnormality on the part of the appellant resulted in mental stress and depression to the respondent, and other than that, she has no issues for leading a healthy married life. Thus the evidence brought on record established that the respondent was subjected to intolerable cruelty, both physical and mental. On the other hand, the appellant did not adduce any evidence to probabilise that the respondent voluntarily had left the matrimonial home and thereby deserted the appellant. 13. The term ‘desertion’ is defined in Section 3(9) of the Divorce Act. ‘Desertion’ implies an abandonment against the wish of the person charging it. Therefore, against the wish of the person, who alleges such abandonment will amount to desertion. But abandonment shall not be one that forced the spouse to leave the home as a result of the acts and deeds of the other spouse, that cannot be an abandonment, but it is a forceful ousting from the home. An abandonment is a 9 Mat.Appeal No.701 of 2021 voluntary act. If leaving the house is the only option available to the spouse, the same cannot be an abandonment. 14. In **Lachman Utamchand Kirpalani v. Meena @ Mota [1964 (4) SCR 331]** the Apex Court explained the term desertion and that principle has been consistently followed in several decisions of the Apex Court. The law consistently laid down is that desertion means the intentional abandonment of one spouse by the other without the consent of the other and without a reasonable cause. The deserted spouse must prove that there is a factum of separation and there is an intention on the part of the deserting spouse to bring the cohabitation to a permanent end. In other words, there should be _animus deserendi_ on the part of the deserting spouse. There must be an absence of consent on the part of the deserted spouse and the conduct of the deserted spouse should not give a reasonable cause to the deserting spouse to leave the matrimonial home. 15. After referring to the said principle the Apex Court in **Debananda Tamuli v. Kakumoni Kataky [(2022) 5 SCC 459]** held that the reasons for a dispute between 10 Mat.Appeal No.701 of 2021 husband and wife are always very complex and every matrimonial dispute is different from another. Whether a case of desertion is established or not will depend on the peculiar facts of each case. It is a matter of drawing an inference based on the facts brought on record by way of evidence. 16. In **Darshan Gupta v. Radhika Gupta [(2013) 9 SCC 1]** it was held that merely because the husband and wife are staying separately, an inference regarding desertion on the wife's part cannot be drawn. It must be shown that separation is wilful and deliberate. Desertion should be with _animus deserendi_ , meaning thereby, there must be a vicious intention to part with the matrimonial company of the other spouse and to deprive him or her of the matrimonial bliss. The burden of proof is heavy on the person who seeks the relief of divorce on the ground of desertion. The factum of separation, intention to separate, absence of consent by the other spouse and absence of his or her conduct driving the other to leave the matrimonial home are to be established if one is to get a decree of divorce. 11 Mat.Appeal No.701 of 2021 17. We are of the view that the evidence let in by the appellant is totally insufficient to establish that the respondent deserted the marital company of the appellant voluntarily. If the evidence adverted to above is viewed in the light of the aforementioned principle of law, we are of the view that the desertion of the appellant is for just and sufficient cause and the appellant failed to prove the requirements of Section 10(1)(ix) of the Divorce Act. The Family Court considered all the relevant evidence that came on record and rightly concluded that the evidence was totally insufficient to grant a decree of dissolution of marriage on the ground of desertion. We find no reason to interfere with the said finding. Therefore, this appeal fails and the same is dismissed. **Sd/-** **ANIL K. NARENDRAN, JUDGE** **Sd/P.G. AJITHKUMAR, JUDGE** dkr