Unnikrishnan V.K. v. Deepa K.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** # **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **&** **THE HONOURABLE MRS. JUSTICE SOPHY THOMAS THURSDAY, THE 6[TH] DAY OF JANUARY 2022 / 16TH POUSHA, 1943 MAT.APPEAL NO. 914 OF 2014** **AGAINST THE ORDER/JUDGMENT IN OP 352/2012 OF FAMILY COURT, KASARAGOD** **APPELLANT/S:** **UNNIKRISHNAN.V.K., AGED 43 YEARS, S/O.LATE KUNHIKRISHNA PODUVAL, RESIDING AT SREEVINAYAKA, KODALI HOUSE, KIZHAKKAN KOZHUVAL, NILESWARAM VILLAGE AND POST, KASARAGOD DISTRICT.** **BY ADVS. SRI.SURESH KUMAR KODOTH SRI.K.P.ANTONY BINU** ## **RESPONDENT/S:** **DEEPA.K., AGED 35 YEARS, D/O.T.K.APPU, RESIDING AT NANDANAM, PATHILAKANDAM, PALAKKAT, PEROLE VILLAGE, POST NILESWARAM, HOSDURG TALUK, KASARAGOD DISTRICT.** **BY ADV SRI.A.ARUNKUMAR** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 06.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Mat.Appeal No.914/2014 2 A.MUHAMED MUSTAQUE & SOPHY THOMAS, JJ. -------------------------------------------Mat.Appeal No.914 of 2014 -------------------------------------------Dated this the 6[th] day of January, 2022 ## **JUDGMENT** ## A.Muhamed Mustaque, J. This appeal arises from the dismissal of the petition for divorce filed by the appellant under the Hindu Marriage Act, 1955. 2. The appellant who is the husband of the respondent filed the petition for divorce on the grounds of desertion and cruelty. The Family Court negatived the claim for divorce on both grounds. 3. The appellant married the respondent in accordance with the Hindu customary practices on 15.4.2001. In the wedlock, two children were born. The appellant is a trader and runs two pooja stores near a temple in Nileswaram. According to the appellant, the respondent-wife left the matrimonial home on 30.06.2010 after taking all her belongings. The petition for divorce was filed on 6.10.2012. It is specifically stated by the Mat.Appeal No.914/2014 3 appellant in the maintenance case filed by the respondent under Section 125 of the Criminal Procedure Code before the Judicial First Class Magistrate, Hosdurg. The respondent took the stand that she will not live with the appellant. It was further alleged by the appellant that the respondent preferred her own parental home than matrimonial home as a place of residence. It is stated that due to pressure exerted by her own parents, she refused to stay with the appellant. It is also stated by the appellant that he purchased a house at Nileswaram in the month of April 2009. However, the respondent refused to stay with him in the new house also. According to the appellant, the respondent used to pick up quarrels unnecessarily with everyone at his home. 4. The respondent denied all allegations in the petition for divorce. According to the respondent, the appellant took away her 20 sovereigns of gold ornaments and he used to torture her mentally and physically demanding money and gold. It is further stated that the appellant is a habitual drunkard and used to come home late in the night after heavily drinking alcohol. It Mat.Appeal No.914/2014 4 was also stated by her that the appellant never cared to protect the respondent and her children in spite of having sufficient income. 5. In this matter, both parties adduced oral evidence. No other evidence was adduced. The appellant who was examined as PW1 deposed in tune with the petition. The respondent also examined in tune with her objections. She also stated that she filed a petition under the Domestic Violence Act and obtained an order against the husband preventing her from entering into the matrimonial home. The Family Court, on an evaluation of oral testimonies of both parties, came to the conclusion that the appellant was cruel to the respondent and her children and willfully kept them away. It was also noted that the appellant never attempted for filing a petition for restitution for conjugal rights and no petition has been filed for custody of the children. 6. Admittedly, the parties were living separately ever since 2010 onwards. There was hardly any dispute to the fact both parties were living separately for more than two years prior Mat.Appeal No.914/2014 5 to the presentation of the petition for divorce. RW1, the respondent was examined before the court on 21.8.2013. In cross-examination, she admitted that she was living separately for more than three years. According to her, the constant demand for money and cruelty on the side of the appellant forced her to stay away from the appellant. If the respondent had a reasonable cause to stay away from the appellant, no doubt, divorce on the ground of desertion has to be declined. If the real cause for the respondent to stay away from the appellant was due to cruelty and demand for dowry, the court would be justified in declining divorce on the ground of desertion. However, this Court finds the respondent had no reasonable cause to stay away from the appellant. Admittedly, the respondent filed the petition under the Domestic Violence Act against the appellant. She also obtained a protection order against the appellant. The court has to assume that the respondent obtained the protection order with an intention to stay at matrimonial home, but she never did so. That shows that Mat.Appeal No.914/2014 6 the respondent is hiding something else from the court. The appellant has a case that the respondent has always been under the control of her parents and she preferred to stay at her parental house. The order passed under the Domestic Violence Act appears to connect the claim made by her for maintenance before the Magistrate. If the cruelty was a real issue, she would not have chosen to obtain a protection order. Absolutely, no evidence was adduced to substantiate her counter allegations of cruelty. Further, the respondent also not initiated any proceedings to recover the alleged misappropriation of her gold ornaments. Looking at the facts in the above background, we are of the view that the appellant made out a case on the ground of desertion. The refusal on the part of the respondent to cohabit with the appellant at matrimonial home for a continuous period of more than two years without reasonable cause would amount to desertion. 7. As we already adverted, the respondent refused to cohabit with the appellant for more than the period of two years. Mat.Appeal No.914/2014 7 This refusal itself would give rise to a cause of action on the ground of cruelty for separation of the marriage. The parties have mutual rights and obligations in the matrimonial relationship. If one spouse refused to cohabit without reason, it would amount to mental cruelty to other spouses. 8. We attempted for settlement between the parties. We interacted with the appellant who appeared before us in person. We also interacted with the respondent who came online. The appellant though offered to have a reunion, the respondent refused the offer made by the appellant. After indicating the counsel that we are proposing to grant the divorce. The appellant offered a sum of Rs.2,00,000/- towards the future maintenance of the respondent. He also agreed to pay a sum of Rs.6,000/- in total towards the maintenance of the children with effect from 1.2.2022. The appellant agreed to pay Rs.2,00,000/within two months. In the light of the above, we dispose of this appeal with the following orders: Mat.Appeal No.914/2014 8 i. The marriage between the appellant and the respondent solemnized on 15.4.2001 would stand dissolved by a decree of divorce. ii. The appellant shall pay a sum of Rs.2,00,000/- (Rupees two lakhs only) to the respondent towards the future maintenance in lumpsum within two months from today. iii. The appellant shall pay a sum of Rs.6,000/- (Rupees six thousand only) towards the maintenance of the children with effect from 01.02.2022. iv. Any pending applications for enhancement of the maintenance shall take note of the maintenance awarded as above. v. No order as to costs. **Sd/-** **A.MUHAMED MUSTAQUE, JUDGE** **Sd/-** **SOPHY THOMAS, JUDGE** **ln**