SREEDEVI VARMA v. RAVIVARMA THAMBURAN

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL** **&** **THE HONOURABLE MR. JUSTICE A.M.BABU** **TUESDAY, THE 20TH DAY OF MARCH 2018 / 29TH PHALGUNA, 1939** **Mat.Appeal.No. 265 of 2007** **AGAINST THE ORDER DATED 22-05-2007 IN O.P. NO.826/2004 of FAMILY COURT,KOZHIKODE** ## **APPELLANT/RESPONDENT:** **---------------------** **SREEDEVI VARMA,** **'ARCHANA', CHEMBAKA HOUSING COLONY, CHALAPPURAM, KOZHIKODE DISTRICT.** **BY ADV.SRI.P.V.KUNHIKRISHNAN** ## **RESPONDENT/PETITIONER:** ## ***RAVIVARMA THAMBURAN,** **S/O V.S.NARAYANAN NAMBOOTHIRI, ANGANATTU MADAM,** **KURICHIKARA, KURICHI VILLAGE, KURICHI P.O.,** **KOZHIKODE DISTRICT.(CORRECTED)** **THE ADDRESS OF THE RESPONDENT IS CORRECTED AS “RAVIVARMA THAMBURAN, S/O. V.S. NARAYANAN NAMBOOTHIRI, ANGANATTU MADAM, KURICHIKARA, KURICHI VILLAGE, KURICHI P.O., KOTTAYAM DISTRICT AS PER ORDER DATED 12.07.2007 IN I.A. NO.1386 OF 2007.** **** DIED. ADDL. RESPONDENTS IMPLEADED** **THE DEATH OF THE 1ST RESPONDENT IS RECORDED AS PER ORDER DATED 31.03.2016 IN I.A.NO.3080/2015 IN MAT. APPL. NO.265/2007** ## **IMPLEADING OF ADDL. R2 AND R3** **----------------------------** **ADDL.R2. SMITHA VARMA, AGED 43 YEARS, D/O. RAVIVARMA THAMBURAN, ARCHANA, CHEMBAKA HOUSING COLONY, CHALAPPURAM, KOZHIKODE DISTRICT** **ADDL.R3. SANDEEP VARMA R., AGED 37 YEARS, S/O. RAVIVARMA THAMBURAN,ARCHANA, CHEMBAKA HOUSING COLONY, CHALAPPURAM, KOZHIKODE DISTRICT** **ARE IMPLEADED AS ADDL. RESPONDENTS 2 AND 3 AS PER ORDER DATED 31.03.2016 IN I.A. NO.3080/2015 IN M.A. NO.265/07.** **R,R1 BY ADV. SRI.VARUN.V.** **R,R1 BY ADV. SRI.AJU MATHEW R,R1 BY ADV. SRI.P.VISWANATHAN RADDL. BY ADV. SRI.G.ANEESH** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 20-03-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **DST** ## **K. HARILAL & A.M. BABU,JJ.** ## **= = = = = = = = = = = = = = = = =** **Mat. Appeal No.265 of 2007(A)** **- - - - - - -- - - - - - - - - - - - - -** _Dated this the 20[th] day of March, 2018_ ## **J U D G M E N T** ## **K. Harilal, J.** The appellant/wife is the respondent in Original Petition No.826 of 2004, on the files of the Family Court, Kozhikode and the above Original Petition was filed by the original respondent/ husband herein under Section 13 of the Hindu Marriage Act, 1955, for divorce on the ground of desertion. 2. During the pendency of this appeal, the original respondent died and the legal representatives, who are the children of the appellant and the respondent got impleaded in this appeal, as additional respondents 2 and 3, as per order passed by this Court in Interlocutory **Mat. Appeal No. 265 of 2007(A)** **-: 2 :-** Application No.3080 of 2015. They were impleaded, in view of the decision of the Supreme Court in _**Smt. Yallawwa. v. Smt. Shantavva**_ [1997 KHC 1260 = AIR 1997 SC 35 = (1997) 11 SCC 159] and the decision of this Court in _**Varghese K.V. And Others v. Magdaline Claudi @ Mini**_ [2017(2) KHC 216] and _**State of Rajasthan v. Mangal Singh**_ [2017(2) KLT SN 30]. In the aforesaid decisions, the Apex Court as well as this Court held that, where one of the spouses died during the pendency of the appeal filed against the judgment and decree, granting divorce and cause of action will survive and the children are entitled to get impleaded as legal representatives of the deceased. In view of the above decisions and subsequent impleadment made in this appeal, we proceed with the appeal to hear it on merits. The parties are referred to as in the Original Petition. ## **Mat. Appeal No. 265 of 2007(A)** ## **-: 3 :-** 3. The facts of the case, for the consideration of this appeal, can be summarised as follows: The marriage between the petitioner/ husband and the respondent/wife was solemnized on 13.12.1970 and two children were born out of the said wedlock. Both of them are well settled at present. The daughter is settled at U.S.A. and working there. The son is employed at Bangalore. The petitioner was employed in Canara Bank and retired from his service on 31.03.2001. According to the petitioner, some period after the marriage, the respondent began to behave cruelly to the petitioner. She could not do her duties as a loving wife. She behaved cruelly even in front of his relatives and friends. Considering the future of the children and his status in the society, he tolerated the same and continued the marital relationship till his retirement. ## **Mat. Appeal No. 265 of 2007(A)** ## **-: 4 :-** The petitioner's native place is at Kurichi in Kottayam District and his aged parents are living in his Tharavadu house. After his retirement, he decided to live with the parents at the Tharavadu house and he told the same to the respondent. She was not willing for the same. She was interested to live at Kozhikode, after selling the properties at Kurichi. However, the petitioner started to live at Kurichi on 10.04.2001. Thereafter, the respondent never spoke to the petitioner and never done her duties as a wife. The behaviour of the respondent caused physical and mental pain to the petitioner. At last, the petitioner compelled her to live at Kurichi and she started to reside at Kurichi from 10.04.2001 onwards. While so, on 30.07.2001, the respondent left the house with her belongings without the consent and knowledge of the petitioner with an intention to cut the martial relationship with the petitioner and ## **Mat. Appeal No. 265 of 2007(A)** ## **-: 5 :-** started to live with her son at Kozhikode. She wilfully neglected him. Though, several attempts were made to make a reunion, all the efforts ended in failure. Thus, according to the petitioner, the respondent deserted him on 30.07.2001, without reasonable cause and without his consent. 4. The respondent filed counter-statement, admitting the marriage and paternity of the children. So also, she admitted that they lived together as husband and wife at various working stations of the petitioner, till his voluntary retirement on 31.03.2001. But, she emphatically denied the allegations of cruel behaviour alleged against her. On the other hand, the respondent contended that the petitioner was a drunkard, having immoral connections with other women, and he used to assault the respondent and showered abusive words ## **Mat. Appeal No. 265 of 2007(A)** ## **-: 6 :-** frequently on her and children. The respondent belongs to a royal family and she was always very careful and cautious. According to the respondent, she was suffering from rheumatic arthritis and was totally bedridden for years and undergoing treatment from Kottakkal Aryavydyasala. Now, she is under the treatment of Dr Ramesh Bhasi at NIMS Hospital, Kozhikode. After the retirement of the petitioner, she never started to reside at Kurichi with the petitioner and his parents as alleged in the petition. The petitioner has obtained voluntary retirement from the bank and received huge amount, as retirement benefit and thereafter constructed a house at Kurichi and started to reside there alone. The petitioner never permitted the respondent and children to live there. He has been maintaining an illicit relationship with one housemaid and several ## **Mat. Appeal No. 265 of 2007(A)** ## **-: 7 :-** other ladies. There was no occasion to leave from the house of the petitioner, as she never resided in the house. On the other hand, the petitioner deserted her and started to live at Kurichi, without considering comfort, convenience and bad health condition of the respondent. 5. On the aforesaid rival pleadings both parties adduced evidence. After considering the evidence on record, the Family Court passed the impugned judgment, dissolving the marriage between the petitioner and the respondent. The legality and correctness of the findings, whereby the Family Court dissolved the marriage between the petitioner and the respondent, are challenged in this appeal. 6. Heard the learned counsel for the appellant and the learned counsel for the respondent. 7. The point to be considered is, whether the ## **Mat. Appeal No. 265 of 2007(A)** ## **-: 8 :-** Family Court is justified is dissolving the marriage between the petitioner and the respondent on the ground of desertion? Put it differently, the point is, has the petitioner succeeded in proving that the respondent has deserted him for a continuous period of not less than two years immediately preceding the presentation of the Original Petition? 8. The petitioner and the respondent are husband and wife and their marriage was solemnized on 13.12.1970. They lived together as husband and wife under the same roof till 31.03.2001. Two children were born out of the said wedlock. The daughter is settled at U.S.A. and working there. The son is employed at Bangalore. At the time of filing the Original Petition, the petitioner was aged 60 years and the respondent was aged 56 years. The genesis of the marital disharmony between the ## **Mat. Appeal No. 265 of 2007(A)** ## **-: 9 :-** petitioner and the respondent is the refusal of the respondent to live along with the petitioner at Kurichi, near the Tharavadu of the petitioner. According to the petitioner, the respondent was interested in living at Kozhikode, after selling the properties at Kurichi. At last owing to the compulsion from the part of the petitioner, the respondent started to live there. 9. According to the petitioner, though the respondent was not willing to live at Kurichi, after the retirement of the petitioner on 31.03.2001, owing to the compulsion from the part of the petitioner and she started to live at Kurichi on 10.04.2001 onwards. But, she left the house with her belongings without the consent and knowledge of the petitioner on 30.07.2001, with an intention to break the marital relationship with the petitioner. ## **Mat. Appeal No. 265 of 2007(A)** ## **-: 10 :-** 10. On an analysis of the evidence on record, which consists of the oral testimony of PW.1 and RWs.1 and 2 and Exts.A1 to A6 and B1 to B6(a), we find that the parties adduced two sets of documentary evidence to prove desertion alleged against the other. The petitioner pressed Exts.A1 to A4 into service to prove that after the retirement on 31.03.2001, the petitioner started to live at Kurichi and thereafter the respondent left the house with her belongings on 30.07.2001, as alleged by the petitioner. But, the respondent produced Exts.B1 to B4 to prove that after the retirement of the petitioner, the petitioner also started to live at Kozhikode along with the respondent and thereafter he left the house at Kozhikode and started to live at Kurichi and thereby he deserted the respondent. ## **Mat. Appeal No. 265 of 2007(A)** ## **-: 11 :-** 11. Coming to the evidence adduced by the petitioner, Ext.A1 is the certificate issued by the Manager, Canara Bank, Meenangadi branch, stating the petitioner is permitted to shift the articles to Kurichi from Wynad and Ext.A2 is the permission obtained from the Village Officer, Purakkadi Village, to transport the furniture used by him from Meenangadi to Kurichi in Kottayam District. Thus, Exts. A1 and A2 are permissions granted by the bank and Village Officer to shift the furniture and belongings of the petitioner from Meenangadi to Kurichi. Even after Exts.A1 and A2 are taken at its face value, it cannot be said that the petitioner has acted on Exts.A1 and A2. 12. On the other hand, Ext.A3 is the receipt dated 30.07.2001 for installation of cable TV at the house at Chalappuram from Asianet in the ## **Mat. Appeal No. 265 of 2007(A)** ## **-: 12 :-** name of PW.1, the petitioner. Thus, Ext.A3 shows that the petitioner has installed cable TV connection at the house at Chalappuram from Asianet in his name. Ext.A4 is a passbook issued to the petitioner from Canara Bank, Kozhikode and it shows that the account started in the bank at Kozhikode on 04.08.2001. The petitioner has contended that though the cable TV connection stands in his name, the same was obtained for the use of his son and the account was opened for operating the same by the respondent. No evidence was adduced to substantiate the said contention. Thus, Exts.A3 and A4 give rise to an inference that immediately after the retirement on 31.03.2001, the petitioner started to live at Kozhikode. Ext.A5 is the receipt for the gas connection from Calicut gas service in the name of the petitioner and the same was issued on ## **Mat. Appeal No. 265 of 2007(A)** ## **-: 13 :-** 20.08.2001. Ext.X1 is the application for the gas connection alleged to be given by the petitioner to Bharat Petroleum Corporation at Calicut on 20.08.2001. RW.2 is the proprietor of the gas agency and he has produced Ext.X1 document. Though the petitioner has denied his signature in Ext.X1, RW.2 has given evidence to the effect that the consumer had signed in the application. In view of the evidence given by RW.2 and Ext.X1, it cannot be held that the signature shown in Ext.X1 was not put by the petitioner, as contended by him. Exts.B1 and B3 are the certified copies of the ration cards in the name of the petitioner at Kozhikode. Ext.B3 is dated 21.08.2001. Ext.B2(a) are receipts for the payment of charges of mobile phones in the name of PW.1 at Kozhikode. 13. Thus, on a combined reading of Exts.A3, ## **Mat. Appeal No. 265 of 2007(A)** ## **-: 14 :-** A4 and B1 to B5, it can be held that immediately after the retirement on 31.03.2001, the petitioner started to live in the house at Chalappuram, Kozhikode. But, the Family Court miserably failed to appreciate the aforesaid documents in its correct perspective. If the petitioner has started to live at Kozhikode immediately after the retirement, there was no possibility for the respondent to come at Kurichi and reside with him from 10.04.2001 onwards. Though the petitioner has stated in the Original Petition that owing to the compulsion from his part, the respondent started to live at Kurichi from 10.04.2001 to 30.07.2001, no evidence had been adduced to prove the said contention. But, Ext.B4 to B6(a) would show that the respondent was residing in the house at Chalappuram, Kozhikode, after 31.03.2001. ## **Mat. Appeal No. 265 of 2007(A)** ## **-: 15 :-** 14. More importantly, as we have held above, it has come out in evidence that immediately after the retirement on 31.03.2001, the petitioner started to live in the house at Chalappuram, Kozhikode. The said proven fact unambiguously give rise to an irresistible conclusion that the story put forward by the petitioner that the respondent started to live with him at Kurichi from 10.04.2001 onwards and the respondent left the house, without the consent and knowledge on 30.07.2001, is an utter false story. 15. The petitioner failed to prove that the respondent has deserted him for a continuous period of not less than two years immediately preceding the presentation of the Original Petition. No decree could have been passed on the basis of the alleged desertion pleaded and attempted to be proved ## **Mat. Appeal No. 265 of 2007(A)** ## **-: 16 :-** by the petitioner. But, the Family Court miserably failed to appreciate the evidence on record in its correct perspective. The Family Court is not justified in dissolving the marriage between the petitioner and the respondent on the ground of desertion. Hence, we set aside the impugned judgment and decree passed by the Family Court and the appeal will stand allowed. Sd/- **, JUDGE** //True copy// P.A. To Judge **K. HARILAL, JUDGE** Sd/- **A.M. BABU, JUDGE** DST