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Kerala High Court : Divorce direct on a drift of desertion

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT:
THE HONOURABLE MR.JUSTICE K.HARILAL
THE HONOURABLE MRS. JUSTICE SHIRCY V.

FRIDAY, THE 13TH DAY OF APRIL 2018 / 23RD CHAITHRA, 1940
Mat.Appeal.No. 260 of 2006

AGAINST THE ORDER IN OP 895/2003 of FAMILY COURT,ERNAKULAM DATED 26-03-2005

APPELLANT/PETITIONER : UNNI, AGED 46
S/O. MADHAVAN, KALATHARA, VADAKKUMBHAGOM,, ELOOR,PARAVUR.
BY ADVS.SRI.SUBAL J.PAUL,SMT.SHEEBA THOMAS
VS.
RESPONDENT/RESPONDENT:JAYA, AGED 48 YEARS,
D/O. VASU, KALAPURACKAL, MOOTHAKUNNAM, PARAVUR.
R, BY ADV. SRI.V.M.KRISHNAKUMAR
R, BY ADV. SRI.S.SARAVANA BHAVAN

THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 20.2.2018
THE COURT ON 13.4.2018 DELIVERED THE FOLLOWING:
“C.R”
K. HARILAL SHIRCY V.,JJ.

Mat Appeal No. 260 of 2006

Dated this a 13th day of April, 2018
JUDGMENT
Shircy V., J.

Marriage is a inviolate attribute between a male and a woman. But unfortunately if a attribute is strained, one might some how or other find out reasons to get absolved of his or her partner. This box is a classical instance for a same. The father who unsuccessful to get a direct for divorce conflicting his mother filed this interest severe a sequence of a Family Court, Ernakulam antiquated 26.03.2005 in O.P.895/2003.

2. The matrimony of a appellant with a respondent was solemnized as per a rites and ceremonies of Hindu Marriage Act on 12.11.1995. A child was innate to them in a wedlock. But a respondent /wife had treated him with cruelty and done his life miserable. She was not working good with him right from a pregnancy of a marriage. She also forlorn him yet any reasonable cause. There were consistent fights between them and on 18.5.1998 she had damaged her thali sequence and thrown towards him and left his company. Therefore, he was compelled to cite a petition for divorce on a belligerent of cruelty and desertion, is a box of a appellant.

3. On a other palm yet a respondent had certified her matrimony with a appellant/husband had denied a purported occurrence on 18.5.1998 as good a allegations that she had forlorn him and treated him with cruelty. But she contended that in fact she was presented with 20 sovereigns of bullion ornaments and an volume of Rs.20,000/- during a time of her matrimony with a appellant. He appropriated a same and tormented her for some-more money. Her life with a appellant during her matrimonial home was miserable given of a robe of a appellant picking adult argue with his brothers and so they were compelled to change their chateau to a rented building. However, he continued to ill yield her perfectionist an volume of Rs.50,000/-but still they were staying together. During a month of Jan 1998 she was taken along with a child to her consanguine chateau to attend a matrimony of her brother. But he forlorn them there and did not caring to take them behind to his house. He unsuccessful to yield anything for a upkeep of herself and her child. While so in a year 1998 itself he left abroad yet even intimating her. Thereafter, she elite a explain for upkeep as M.C.No. 217/2003 and a petition as O.P.No.333/2003 for liberation of income and value of her bullion ornaments and she was compelled to do so as she had no source of income. Infuriated by a same imputing fake allegations conflicting her he elite a Original Petition for divorce.

4. Before a hearing justice both a divorce petition and a petition for liberation of income were attempted together and likely of by a common judgment. Before a justice below, a appellant was examined as PW1 and dual some-more witnesses were examined as PWs.2 and 3 and Ext.A1 was noted on his side. The mother was examined as RW1.The schooled Family Court discharged both a O.Ps. filed by a parties. The appellant father depressed by a exclusion of his petition for divorce has elite this appeal.

5. We have listened a schooled warn for a appellant as good a schooled warn for a respondent elaborately and perused a records.

6. Admittedly a matrimony of a integrate was solemnized as per a tradition of a Hindu Marriage Act on 12.11.1995. A child was innate to them in their wedlock. The pleadings exhibit that their life as father and mother was usually for a brief while and from 1998 on wards they are vital separately. The categorical row lifted by a appellant/husband conflicting a respondent is that she had treated him with cruelty and forlorn him for no reason and hence he was compelled to proceed a justice for divorce. As a appellant has sought for divorce on a belligerent of cruelty and desertion, it is apposite to quote a applicable territory for easy reference, that reads as follows:

“Section 13 (1)of a Hindu Marriage Act :
13. Divorce- (1) Any matrimony solemnized, whether
before or after a derivation of a Act, may, on
a petition presented by possibly a father or a wife,
be dissolved by a direct of divorce on a belligerent that
the other party
(i) xx xx xx
(ia) has, after a solemnization of a marriage,treated a postulant with cruelty; or
(ib) has forlorn a postulant for a continual duration of not reduction than dual years immediately preceding a display of a petition.
(ii) xxx
(iii) xxx
(iv) xxx
(v) xxx
(vi) xxx
(vii) xxx
Explanation – In this sub-section, a expression
“desertion” means a abandonment of a postulant by the
other celebration to a matrimony yet reasonable cause
and yet a agree or conflicting a wish of such
party, and includes a determined slight of a petitioner
by a other celebration to a marriage, and a grammatical
variations and related expressions shall be construed
accordingly.”

7. It is impending to note that a categorical claim leveled conflicting a mother is that she had forlorn him for no reason, conflicting his wish given 18.5.1998 and he waited compartment 2003 for her return, yet she did not lapse to him and therefore he approached a justice with a petition for divorce. He asserted that on 18.5.1998 as common she picked adult argue with him and damaged her thali sequence and thrown towards him and left him and afterward never returned to him. But on 13.8.2003 she entered into his chateau and combined all sorts of bother and troubles and left a place and she is staying divided from him yet any current reason. Therefore, he is entitled for a direct of divorce on a belligerent of abandonment underneath territory 13(1)(ib) of a Act.

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8. However, it has come out in justification that he left abroad on 20.5.1998 and worked there for a duration of dual years and came behind on 25.5.2000 and again returned to Gulf and continued there compartment 2003. But it is poignant that he has no box that he had supposing upkeep to a respondent and their child during a pronounced duration or even attempted to hit her. As mentioned above he has no box that he had taken any stairs to move behind his mother so as to continue with a marital life yet he purported that she left him yet any reason. But his transparent box is that a respondent has cold from his association yet reasonable excuses for a continual duration of about 5 years with a goal to move a marital life to an end. The respondent stoutly denied a claim and contended that yet her marital life was not happy given of his illtreatment towards her she had no goal or enterprise to put an finish to their marital life yet was compelled to live during her consanguine chateau with her teenager child yet any source of income for upkeep usually given of his bullheaded neglect. She pleaded her pitiable condition and it is her row that on 16.1.1998 her father had taken her to her chateau to attend a matrimony duty of her hermit with an bargain that they will lapse after 3 days, yet he unsuccessful to take them behind and his opinion had caused most pain and sufferings to her and so her kin approached him and requested to take her back. But he did not caring to do so and yet giving any information he left a nation and proceeded to Gulf in a month of March, 1998 and afterward returned usually in a year 2003. He did not hit her given he left her during her chateau and unsuccessful to yield upkeep to her and their teenager child. When she came to know about his lapse from Gulf from outward source she approached him and requested to take her behind to his chateau yet he did not caring to do so. In fact, he has totally neglected and forlorn her and most close a doors of her matrimonial home and afterward imputing fake and groundless allegations elite a petition for divorce and hence he is not entitled for a divorce, is a transparent mount taken by her .

9. It is good staid that in sequence to get a direct for divorce on a belligerent of desertion, a celebration who proceed a justice alleging abandonment is ostensible to infer that a conflicting celebration willfully stayed divided from him/her association and abstained from cohabitation yet any reason that too with a goal to put an finish to a marital relationship. So a goal to put a full stop to a marital attribute yet any reasonable means for a continual duration of not reduction than dual years given a date of petition would certainly tantamount to desertion. The small fact of staying divided by one celebration from a association of a other yet any goal to put an finish to a marital attribute is not sufficient to infer that there is desertion. So also there contingency be justification to uncover that a conflicting celebration was carrying a goal or enterprise not to continue with a attribute and had totally neglected or rejected a celebration who approached a justice and that a subdivision was yet any reasonable means and also yet a consent. The word ‘desertion’ is explained in a Act as abandonment by a other celebration to a matrimony yet reasonable cause, yet a agree or conflicting a wish of such party, that includes bullheaded slight of a celebration whom a claim is leveled against. The small fact of staying alone from a association of a associate for some reason or other can't be termed as desertion. The celebration alleging abandonment contingency means to infer that conflicting his/her agree /wish a associate left a association that too for no reason and he/she do not wish to cohabit and reside together during any infer of time in destiny and also totally neglected or avoided a marital relationship, for ever.

10. In a multitude matrimony is a rarely appreciated and dedicated attribute between a male and woman, vital together pity happiness, sorrow, love, affection, care, company, sex and all in life. In such a attribute if one withdrew on one excellent morning yet any reasonable means and continue to stay divided for a continual duration of during slightest dual years really a conflicting celebration is entitled to find for a divorce as a bond they common was snapped for ever. But a celebration entrance a justice is weight with a charge to infer before a justice that his/her associate has totally forlorn or neglected a marital attribute with a goal to put an finish henceforth yet reasonable means and yet consent. Desertion is really a matter of deduction to be drawn from a contribution and resources of any case.

11. It is borne out from a significant aspects that a appellant left abroad in a month of Mar 1998 yet informing a respondent and returned usually in a year 2003. There is no justification to uncover that he paid any volume as upkeep to his mother or his child during a whole duration he stayed in Gulf in tie with his practice and has no box that he contacted her during any time during a duration of 5 years. But according to a respondent when she came to know about his lapse from Gulf from out side source in a year 2003 she approached him with a ask to take her behind along with his child. But there was no certain proceed from his side and he willfully neglected to yield even upkeep to them. She pleaded that when she was entirely assured that she was totally neglected by him, she filed a petition for upkeep and a strange petition for lapse of bullion ornaments and money.

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12. It is impending to note that he has no box that he had ever attempted to hit her during a duration of 5 years and there is no justification to uncover that he had supposing upkeep to her and her teenager child during a prolonged duration of about 5 years yet there was a deceptive try on his side to uncover that he offering income by his hermit while he was abroad. No such matter was pleaded in a petition filed by him yet he deposed so when he was examined before a hearing court. So also his hermit was not examined as a declare to justify that partial of his contention. It is impending to note that a clever inspection of a materials placed on record would exhibit that a appellant had totally neglected to yield maintenance, protection, adore and caring approaching from a side of a father and yet any current reason he had approached a justice alleging abandonment conflicting his wife. Hence, it could righteously be resolved that a justice next has righteously evaluated a materials on record and found that a postulant could not attain in his try to settle that a respondent has forlorn him yet any reasonable cause, conflicting his wish so as to extend him to get a direct for divorce on a belligerent of desertion.

13. In short, we find that a appellant unsuccessful to infer that a respondent has forlorn him yet any reasonable means with a goal to move cohabitation henceforth to an finish entrance within a definition of Section 13(1) (ib) of a Act so as to get a direct of divorce in his favour. Rather, it is a appellant who has forlorn her yet any reasonable cause.

14. Now a doubt to be looked into is possibly he is entitled to get a direct for divorce on a belligerent of mental cruelty suffered given of a poise settlement of a respondent towards him. On going by a applicable supplies of law, it could be seen that cruelty has not been tangible in a Act. But it is good staid by legal attestation that cruelty can be possibly mental and physical. But to infer mental cruelty a celebration alleging a same has to remonstrate a justice that a resources narrated done his life miserable, difficult, untimely and unfit for him to continue with a marital life. It is good staid that mental cruelty is a state of mind and that a feeling of low anguish, disappointment, frustration, degrading treatment, indifference, selfishness, jealousy etc of one associate might means annoy and problems and describe a life miserable for a other spouse. However, no true coupler regulation can be adopted and no uniform customary can be laid for superintendence to establish mental cruelty in matrimonial matters and it all differs from chairman to person, of varying degrees depending on several reasons. It is certain that teenager quarrels, arguments between spouses, disproportion of opinion etc are usually normal wear and rip in a married life when dual people from opposite families and mostly from opposite backgrounds are vital together. But when continual woe or bother possibly earthy or mental cranky a boundary and creates a life of a associate miserable and terrible really he/she is entitled for a divorce on a belligerent of cruelty.

15. According to him, a respondent was in a robe of melancholy him that she would dedicate self-murder and on dual occasions she had consumed poison and attempted to dedicate self-murder and due to a timely involvement of his neighbours, her life was saved. She was also in a robe of picking adult argue utterly mostly with her in-laws and abuse them in dirty denunciation and given of her rare impression they had to change their chateau from a family chateau to a rented building. He has also a box that she used to collect adult argue utterly mostly with their neighbours also for no reason and so there were complaints that caused most mental agonise and agonise to him and in fact his standing was lowered before them. Though he deposed so, nothing of a neighbours who purported to have done complaints conflicting a respondent about her misconduct or bother combined due to her fractious nature, had been examined as a declare to infer his case. So also he could not cite convincing justification to infer that she had attempted to dedicate self-murder by immoderate poison and somehow she was saved by a involvement of neighbors.

16. He has also asserted that she always used to keep poison with her and bluster that she would dedicate suicide. He has narrated an occurrence in that she had once attempted to dedicate self-murder by jumping into a stream nearby. PW2 was also examined by him in support of his box that she was saved by him. Of course, PW2 had deposed that one day he happened to see a respondent jumping into a circuitously stream and he saved her from drowning. But there is no pleading in his petition that it was PW2 who saved her from drowning. If such an occurrence had happened and PW2 had saved her from drowning, really that would find a place in a pleadings and of-course in his deposition before a Court. His small matter yet pleading that PW2 saved her, itself would uncover that it was a story baked adult by him to support or strengthen his box and a hearing of PW2 was usually an afterthought to justify his box that she was in a robe of melancholy him that she would dedicate self-murder and had even attempted for a same so as to make him panic causing complicated mental torture.

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17. The other occurrence narrated by a postulant to infer cruelty conflicting a respondent is a claim that one day she quarelled with him for no reason and had even thrown her thali sequence towards him and left a place. He has mentioned a date as 18.5.1998 in a petition filed by him in a year 2003. As PW1 also he has mentioned a date as 18.5.1998. But a respondent has a box that she has left to her possess chateau along with a postulant on 16.1.1998 in tie with a matrimony of her hermit and afterward she was never taken behind by a postulant to his chateau and he left abroad in a month of Mar 1998 yet informing her. Though he certified that he left abroad in a year 1998 he has not mentioned a accurate date when he proceeded for holding adult an employment. Like that he had certified that he had left to her chateau to attend a matrimony of his brother-in-law, that was in a month of Jan and after left abroad in a month of May 1998 and returned usually in a month of Aug 2003. The disaster to discuss a accurate date when he left abroad itself would infer that a story narrated by him to infer cruelty is puzzled generally when a respondent has a transparent box that she was taken to her chateau in a month of Jan 1998 in tie with a matrimony of her brother. Her box that after a matrimony of her hermit she was not taken behind to his chateau appears to be some-more illusive as it was his weight to infer a purported occurrence by convincing justification but, no arguable justification was adduced by him. All these matters as good his disaster to discuss a accurate date of his depart to Gulf nation to take adult practice would chuck cloud to a story narrated by a postulant .

18. The hearing of a dual witnesses procured by him will not infer a mandate and they could not divulge anything in a inlet of mental bother or woe towards a petitioner. He is ostensible to infer that she done his life miserable given of her sold function and control towards him. The allegations could usually be one leveled conflicting her to get a direct of divorce as it was certified by him in transparent terms that after he went abroad in a month of May 1998 compartment 2003 he had not attempted to hit her or to yield upkeep to her or to their teenager child. It is impending to note that he has no box that he had furnished his chateau to her so as to have any communication with him. In fact he compelled her to sojourn in sum dark during a pronounced duration of 5 years. She is a lady carrying no source of income. His locale were not done famous to her during a 5 years itself is sufficient to interpretation that he unsuccessful in behaving his matrimonial duties and obligations. It appears that he done whimsical and fake allegations conflicting a respondent usually to get absolved of her from his life. The record would also infer that a efforts done by her kin to settle a brawl was not successful as they were also precluded from carrying any hit with him while he was abroad and it is transparent that he left abroad yet any sign to them also. It is also critical to note that a respondent has a box that when she came to know about his lapse from Gulf she approached him with her child with a enterprise to continue with a marital life. But he did not assent her to enter into a newly assembled chateau by him. His box that she combined bother and difficulty during his chateau on 13.8.2003 also not valid by him by adducing excusable evidence. The respondent has a box that indeed he procured a skill for construction of a chateau utilizing her income and bullion ornaments. But whatever be it Ext.A1 sale help stands in his name and it has come out in justification that he was an worker in FACT during a duration when a skill was acquired in his name. So also, she could not cite any eccentric justification to justify her box that a skill was purchased utilizing her income and ornaments. Still a building that belongs to him has to be treated as her matrimonial chateau and rejection of entrance to a chateau with her teenager child would come within a extended parameters of mental cruelty on his side. It is transparent that she has a enterprise to continue with a marital life and that is clear from her proceed with a child after his lapse from abroad even after a prolonged duration of his overpower with her.

19. Therefore, we find that a schooled Family Court analyzed a justification scrupulously and arrived to a right end holding that a postulant could not attain in his box that a respondent has willfully abstained from his association and forlorn him totally creation no range for continuation of a marital life and entitling him for a service of retraction of matrimony on a belligerent of desertion. So also there is no justification to uncover that he was subjected to mental cruelty as purported by him so as to extend a direct for divorce.

We find no consequence to interfere. Dismissed.

K. HARILAL, JUDGE
smm. SHIRCY V., JUDGE

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