X v. Y

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **&** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH FRIDAY, THE 19[TH] DAY OF NOVEMBER 2021 / 28TH KARTHIKA, 1943 MAT.APPEAL NO. 434 OF 2016 AGAINST THE ORDER/JUDGMENT IN OP 1692/2012 OF FAMILY COURT,ERNAKULAM, ERNAKULAM** ## **APPELLANT/S:** 'X' BY ADVS. SRI.C.M.NAZAR SRI.G.CHANDRASEKHAR SMT.K.BINDU RANI ## **RESPONDENT/S:** 'Y' BY ADVS. SRI.BOBY MATHEW SMT.K.MEERA **THIS MATRIMONIAL APPEAL HAVING BEING FINALLY HEARD ON 15/09/2021, THE COURT ON 19.11.2021 DELIVERED THE FOLLOWING:** “C.R.” A.MUHAMED MUSTAQUE & DR.KAUSER EDAPPAGATH, JJ. -----------------------------------------Mat.Appeal No.434 of 2016 ------------------------------------------ ## **J U D G M E N T** Dated this the 19[th] day of November, 2021 ## A.Muhamed Mustaque, J. “ People are always good company when they are doing what they really enjoy.” Samuel Butler ([1] ) When marriage is in trouble due to inherent incompatibility, enjoyment vanishes and what left in the marriage is often confounding the Court. The troubled marriage never ends happily; it gets worsened when one party moves the Court. Here is a case of divorce of the parties who are living separately since 2003. 2. A case for divorce on the ground of 'desertion' moved by the husband ended in dismissal with scathing remarks about > 1) Considerations of the decline of Italian Art [See: Delphi Complete Works of Samuel Butler (Illustrated)] (Series Five Book 19) Kindle Edition] **MAT.APPEAL NO. 434 OF 2016** **-:3:-** his conduct and life style. He, accordingly, approached this Court in this appeal. The parties are Christian by faith. Their marriage was solemnized in accordance with the Christian rites on 26.12.1994. Two daughters born in the wedlock in the year 1997 and 1999 respectively, have attained majority and they are looking forward to lead a quiet and steady life. When we looked into the case, we thought on assigning ordinary meaning to 'desertion'; the Family Court was justified in dismissing the petition for divorce. However, on a deeper consideration of the law, we are of the view that a glaring misunderstanding on the point of law had resulted in dismissal. We looked at the true meaning of 'desertion' in the context of divorce under Divorce Act, 1869. We find 'desertion' also mean refusal of a spouse to 'cohabit' even if such spouse has no intention to abandon the marriage. Before venturing to the above exercise, we deem to refer the brief factual situation. **MAT.APPEAL NO. 434 OF 2016** ## **-:4:-** 3. The appellant-husband is a retired Navy Officer. His marriage with the respondent was an arranged marriage. The appellant asserts that the initial phase of marriage was a happy one; they lived together in different places in Kochi; then he availed study leave for two years from August 2001 to 2003 to obtain M.Tech and MBA degrees from US. The appellant states that he returned to India in July, 2003. Thereafter, his attempt to resume cohabitation did not yield any positive response. We will advert to the evidence in the later part of this judgment. Since the appellant assumed that the respondent abandoned matrimonial relationship, he filed a petition for divorce before the Family Court, Ernakulam, on the ground of desertion. The petition for divorce was filed on 24.09.2012. 4. The respondent-wife had a different story to tell. According to the respondent, the appellant never provided any emotional or familial security and he was more pre-occupied in **MAT.APPEAL NO. 434 OF 2016** **-:5:-** forming various romantic internet alliances using multiple identical aliases. It is further contended that the appellant was more interested to lead a bachelor life without any family responsibility. She pointed out that she and her children were completely neglected. She also stated that she was compelled to single handedly perform social and domestic chores including medical, schooling and recreational needs of the children. It is stated by her that her parents being convinced of neglect, forced to take the children along with her to Bangalore in the year 2001. The defense of the wife clearly would show that there was no emotional bonding between the parties ever since the marriage and disillusionment with husband made her to stay away from him. May be the appellant-husband herein is the real defaulter when looked from the point of social mores. In the context of Divorce Act, the Court has to consider whether such refusal would amount to desertion or not. **MAT.APPEAL NO. 434 OF 2016** ## **-:6:-** 5. Let us examine the evidence. PW1 is the appellant. He narrated his attempt to resume marital life. He deposed that since August, 2001, there was no husband and wife relationship. PW2 is the father of the appellant. He deposed about the attempts made on his side to persuade the parties to live together. He also stated that he tried to involve Fr. M Austin to make efforts for reunion. He also stated that the joint counseling arranged by Fr. Austin and Fr. Kandathil could not be conducted as the respondent refused to turn up for the session. PW3 is the uncle of the appellant. He deposed that he and his wife went thrice to the residence of the respondent and held extensive discussion to resolve the marital issues between the appellant and the respondent. However, it is stated by him that due to refusal on the side of the respondent-wife, both parties could not resume cohabitation. Ext.A1 is the lawyer notice proceeded from the side of the appellant dated 23.7.2004 requesting the **MAT.APPEAL NO. 434 OF 2016** **-:7:-** respondent to resume cohabitation. Ext.A2 is another lawyer notice dated 16.8.2004 sent to the lawyer of the respondent. In that, the appellant expressed his willingness to preserve the marriage and to resume the marital relationship. Ext.A3 is the report of the Consultant Psychiatrist, dated 30.11.2011. In that report, it is stated that the parties are emotionally incompatible for a normal marital life. Ext.A4 is the report of a private Mediator. In the report, the Mediator stated that the attempt to settle the issues to facilitate reunion failed and there exists little chance for reunion. We are not referring to other documents produced on the side of the appellant. This may not have much relevance for consideration on the point of law involved in this case. 6. On the side of the respondent, she was examined as RW1 and Ext.B1 was marked as documentary evidence. The case as projected by her is that the appellant refused to accept **MAT.APPEAL NO. 434 OF 2016** ## **-:8:-** the realities and situation in life. According to her, the appellant was only eager to set his record right; she further deposed that the offer for reunion was only to save his face and without any bonafides. It is also deposed that the appellant was not interested in her and the children. She reiterated that the appellant was at fault owing to his own conduct and life style. Her case was that the appellant neglected her and children. Ext.B1 is the reply notice to Ext.A1 lawyer notice. In that the respondent narrated the attitude, conduct and character of the appellant. 7. The Family Court on an appreciation of pleadings and evidence came to the conclusion that it is the appellant who had deserted the respondent. It was specifically observed that the appellant failed to “conquer the hearts of respondents and minor children by love and affection.” It was also noted that the appellant failed to give support, respect and recognition to the ## **MAT.APPEAL NO. 434 OF 2016** ## **-:9:-** wife and; the appellant failed both as husband to his wife and father for his children. 8. 'Desertion' as a ground for dissolution of marriage under the Divorce Act is referred in Section 10(1)(ix) which reads thus: (ix) has deserted the petitioner for at least two years immediately preceding the presentation of the petition; 9. Desertion, as referred under the Divorce Act though is similar to the ground under the Hindu Marriage Act, 1955, there is no statutory backing to the opposite party to plead and prove, reasonable cause as a cause for separation as contained in the explanation in the ground of desertion mentioned under Section 13 of the Hindu Marriage Act. 10. 'Desertion' is defined in the Halsbury's Law of England [5[th] Edn. Vol 72 (2009)] as follows: ## **MAT.APPEAL NO. 434 OF 2016** ## **-:10:-** In its essence desertion means the intentional, permanent forsaking and abandonment of one party by the other without that other's consent, and without reasonable cause. It is a total repudiation of one party's obligations. 11. In Black's Law Dictionary, desertion is defined as “the willful and unjustified abandonment of a person's duties or obligations, esp. to military service or to a spouse or a family”. 12. In Bipinchandra Jaisinghbai Shah v. Prabhavati [AIR 1957 SC 176] under the Bombay Hindu Divorce Act, 1947, the Apex Court referred to two essential conditions for desertion, namely, (i) the factum of separation and (2) the intention to bring cohabitation permanently to an end. **13.** In Pulford v. Pulford [(1922) All E.R. Rep. 121], 'desertion' is defined as abandonment and withdrawal from cohabitation. It is appropriate to refer the relevant statement on the point of law in the judgment, which is as follows: The statement of Lord Penzance that “Desertion means abandonment, and implies an active withdrawal from a cohabitation that exists” (L. R. 1 P. & M. ## **MAT.APPEAL NO. 434 OF 2016** **-:11:-** 697), is not an exhaustive definition of desertion. The conduct of the party charged must be looked at. If he or she has not recognized the duty of cohabitation in the married state, desertion has arisen. There may be a complete renunciation of that conjugal duty and an intention to put an end to cohabitation, though there is no matrimonial home, and cohabitation as an existing state of things has been suspended by circumstances not under the control of the party. 14. Similarly in Hopes v. Hopes [(1948) 2 ALL E.R. 920, CA] , it is interesting to refer the remarks of Lord Denning on desertion. Lord Denning posed a question whether desertion exist while the parties are living under the same roof? The answer was “Yes”. According to Lord Denning, when a spouse himself or herself shuts up in one or two rooms in the same house and have nothing to do with the other spouse and living separately, effectively, desertion would exist. According to Lord Denning, if the spouse had forsaken and abandoned cohabitation, a case of desertion would be attracted. ## **MAT.APPEAL NO. 434 OF 2016** **-:12:-** 15. The Division Bench of this Court in P.C.Kunhinarayanan v. Vijayakumari [2021 (3) KLJ 906] held that when the spouse refuses offer to cohabit without reasonable cause it amounts to desertion. 16. In Rayden on Divorce [Vol.1, Edn.14, Pg.249] after referring to various case laws discussed meaning of 'desertion' as follows: Meaning of desertion. The Court has discouraged attempts at defining desertion, there being no general principle applicable to all cases. In its essence desertion is the separation of one spouse from the other, with an intention on the part of the deserting spouse of bringing cohabitation permanently to an end without reasonable cause and without the consent of the other spouse; but the physical act of departure by one spouse does not necessarily make that spouse the deserting party. Desertion is not a withdrawal from a place, but from a state of things, for what the law seeks to enforce is the recognition and discharge of the common obligations of the married state; the state of things may be termed, for short, 'the home'. There can be desertion without previous cohabitation by the parties, or without the marriage having been consummated. The fact that a ## **MAT.APPEAL NO. 434 OF 2016** ## **-:13:-** husband makes an allowance to a wife he has abandoned is no answer to a charge of desertion. Consensual divorce is now permitted, but consent to separation is not the same as consent to divorce, and, as stated, where the separation is consensual there is no desertion. 17. In understanding desertion, the Court first has to examine who left the matrimonial home and secondly, the spouse who left has any intention to return to the matrimonial home and resume cohabitation. The desertion begins when the spouse declares not to resume cohabitation after leaving matrimonial home. Spouse may have reasons or dislikes to cohabit with the other spouse. If that reason or cohabitation reached to a point in declaring not to resume cohabitation, the Court has to hold that desertion commenced from that stage. 18. In the absence of any stipulation allowing a spouse who separated to plead and prove reasonable cause in a like manner under the Hindu Marriage Act, this Court has to examine how a 'separation' will constitute 'desertion' under the **MAT.APPEAL NO. 434 OF 2016** **-:14:-** Divorce Act. There may be circumstances where a spouse is forced to separate on account of cruelty, misbehaviour, adulterous behaviour of other spouse and any other like causes. If the spouse is forced to live separately, the Court cannot hold that such spouse has deserted the petitioner who is seeking divorce on the ground of desertion. The recognition of desertion as a ground for divorce is based on the fault theory of divorce. The fault theory presupposes that the opposite party in a petition for divorce had committed a matrimonial guilt and the petitioner is an innocent party. If the petitioner is at fault and the opposite party is innocent, the Court cannot allow such petition to grant divorce. Therefore, the Court has to examine the factual scenario that resulted in separation. It is also to be noted that the opposite party in a petition for divorce initiated under the Divorce Act has no statutorily recognized right to show reasonable cause for such separation. However, the Court cannot withhold it from **MAT.APPEAL NO. 434 OF 2016** **==> picture [45 x 9] intentionally omitted <==** examining the fault aspect related to grant of divorce. The Court can grant divorce only in a circumstance on being satisfied that the opposite party is at fault and the petitioner is innocent in relation to the ground canvassed for divorce. 19. In this case, it is clear from the pleadings as well as the evidence adduced on the side of the respondent that she has no intention to resume cohabitation with the appellant. It also has come out in evidence adduced by the appellant that he made attempt to resume cohabitation. The oral testimony of PW2 and PW3 cannot be overlooked in order to prove the attempt made by the appellant to resume cohabitation. The evidence shows that the appellant had no intention to abandon or separate the marriage. The problem appears to be inherent incompatibility of the parties. Ext.A3 report of the Consultant Psychiatrist and Ext.A4 of the private Mediator vouchsafe that there exist lack of emotional intimacy between the parties. The life style of the ## **MAT.APPEAL NO. 434 OF 2016** **-:16:-** appellant is attributed as the cause for separation by the respondent-wife. However, it is to be noted that the respondent failed to prove or substantiate any case of forced separation. If the emotional intimacy is not built in a marriage, such marriage is bound to collapse. If the ways of life of a partner is disliked by the opposite partner, one cannot force the other partner to lead a life of his/her choice. The outlook and approach may vary and differ. It differs from person to person. To sustain a meaningful marriage life, compromise is essential. If one tries to exert control over other, it escalates to differences and disputes. Learning to respect each other is the key in a healthy marital relationship. If one expects the other to follow the way of life he/she wants, it is for the other spouse to decide to follow or not to follow. If both cannot find ways and means to lead a sustained marital life, it would be ideal for them to part. A spouse cannot demand the other spouse to follow his/her life style, and if that **MAT.APPEAL NO. 434 OF 2016** **-:17:-** becomes cause of rift for separation, fault becomes prominent on the part of a spouse who separates. In this case what looms large is that the appellant's life style caused discomfort to the respondent-wife. The appellant-husband is not prepared to change or mend his lifestyle in a way the respondent-wife wants. It looks like that the respondent does not like the flashy life style of appellant husband. According to her, the appellant, instead of showing understanding of the matrimonial relationship in a manner she perceived, behaved obnoxiously. She appears to be a person more interested in having a private life with her husband and children and not beyond. We find nothing wrong with the such an attitude of the respondent but that cannot be forced upon the appellant. The separation of the respondent, therefore, has to be understood as if it was her choice and not forced by the appellant-husband. If that be so, desertion begun from the moment she opted for such choice. The **MAT.APPEAL NO. 434 OF 2016** **-:18:-** choice so opted thus becomes her fault in a context of matrimonial relationship to enable husband to obtain divorce. Thus, the meaning of desertion in such context also includes cessation or withdrawal from cohabitation. We, in such a situation deem it appropriate to hold that the respondent had no intention to resume cohabitation which resulted in desertion of the appellant. We allow this appeal. The impugned judgment is set aside. The decree of divorce is granted by dissolving the marriage solemnized between the appellant and the respondent on 26.12.1994. No costs. Sd/- ## **A.MUHAMED MUSTAQUE, JUDGE** Sd/- ## **DR.KAUSER EDAPPAGATH,JUDGE** **ln/ms**