IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
MONDAY, THE 23RD DAY OF SEPTEMBER 2019 / 1ST ASWINA, 1941
Mat.Appeal.No.434 OF 2013
AGAINST THE ORDER IN OP 957/2007 DATED 27-11-2012 OF FAMILY
COURT,THRISSUR
APPELLANT/PETITIONER:
A.N. VISWANATHAN
AGED 50 YEARS,
S/O.LATE NARAYANAN,AYINIPULLY
HOUSE,PUTHUMANASSERY,PAVARATTY VIA,THRISSUR DISTRICT.
BY ADV. SRI.G.SREEKUMAR (CHELUR)
RESPONDENT/RESPONDENT:
M.R. SHAIJA
AGED 39 YEARS
D/O.RAMACHANDRAN,MANDAKATHINGAL
HOUSE,CHOWANNOOR,THRISSUR DISTRICT-680001.
R1 BY ADV. SRI.T.M.CHANDRAN
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
23.09.2019, ALONG WITH Mat.Appeal.439/2013, Mat.Appeal.642/2013,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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Mat.A.Nos.434, 439 642 of 2013
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
MONDAY, THE 23RD DAY OF SEPTEMBER 2019 / 1ST ASWINA, 1941
Mat.Appeal.No.439 OF 2013
AGAINST THE ORDER IN OP 1143/2007 DATED 27-11-2012 OF FAMILY
COURT,THRISSUR
APPELLANT/PETITIONER:
A.N.VISWANATHAN, AGED 50,
S/O.LATE NARAYANAN, AYINIPULLY HOUSE,
PUTHUMANASSERY, PAVARATTY VIA, THRISSUR DISTRICT.
BY ADV. SRI.G.SREEKUMAR (CHELUR)
RESPONDENT/RESPONDENT:
M.R.SHAIJA, AGED 39,
D/O.RAMACHANDRAN, MANDAKATHINGAL HOUSE, CHOWANNOOR,
THRISSUR DISTRICT-680001.
R1 BY ADV. SRI.T.M.CHANDRAN
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
23.09.2019, ALONG WITH Mat.Appeal.434/2013, Mat.Appeal.642/2013,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
3
Mat.A.Nos.434, 439 642 of 2013
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
MONDAY, THE 23RD DAY OF SEPTEMBER 2019 / 1ST ASWINA, 1941
Mat.Appeal.No.642 OF 2013
AGAINST THE ORDER IN OP 1142/2007 DATED 27-11-2012 OF FAMILY
COURT,THRISSUR
APPELLANT/PETITIONER:
M.R.SHAIJA
AGED 39 YEARS, D/O.RAMACHANDRAN, MANDAKATHINGAL
HOUSE, CHOWANNOOR, THALAPPILLY TALUK, THRISSUR
DISTRICT.
BY ADVS.
SRI.T.M.CHANDRAN
SRI.S.SUJITH
RESPONDENT/RESPONDENT:
A.N.VISWANATHAN
AGED ABOUT 50 YEARS, S/O.LATE NARAYANAN,
AYINIPPULLY HOUSE, PUTHUMANASSERRY, PAVARATTY
(VIA), THRISSUR DISTRICT, PIN 680001.
BY ADV. SRI.G.SREEKUMAR (CHELUR)
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
23.09.2019, ALONG WITH Mat.Appeal.434/2013, Mat.Appeal.439/2013,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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Mat.A.Nos.434, 439 642 of 2013
JUDGMENT
Dated this the 23rd day of September 2019
SHAFFIQUE, J
These appeals are filed by the petitioner in O.P.No.957/2007 and the
respondent in O.P.No.1143/2007. O.P.No.957/2007 is filed by the
petitioner/husband seeking divorce on the ground of cruelty and desertion.
O.P.No.1143/2007 has been filed by the wife seeking restitution of conjugal
rights. The parties got married on 9.2.1995 and a child was born in the
wedlock on 4.7.1997. In the divorce petition, the husband contended that
they were separated for the last 7 years. Even during the early stage of
marriage, the wife was not willing to live with him. He was working abroad
during the relevant time. After the marriage he left abroad and returned on
leave only after two years. Though he insisted his wife to live at the
matrimonial home, she was not willing to do so. That apart, his contention
was that she behaved in a cruel manner against him and mentally harassed
him. She used to allege that he was not capable to continue the marital
relationship and was not a loving husband.
2. In the objection as well as in the petition seeking restitution of
conjugal rights, the wife complained that when the husband had gone
abroad, she used to be harassed by husband’s sister and parents, as a result
of which she was not in a position to live in the matrimonial home and hence
left to her parental home. According to her, she is ready and willing to
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Mat.A.Nos.434, 439 642 of 2013
continue the matrimonial relationship and hence she sought for restitution of
conjugal rights.
3. The above cases were heard along with O.P.No.1142/2007 filed
by the wife seeking return of gold ornaments and money. The same has
been rejected by the Family Court on the ground that direction had been
issued to restitute the conjugal rights. The claim of the wife for return of
gold ornaments and money had not been considered on merits. Common
evidence was taken in these cases and it was challenging the order in
O.P.No.1142/2007 that the wife filed Mat.Appeal 642/2013.
4. The contention urged by the learned counsel for the husband is
that, in so far as the parties had been separated for quite a long time and as
there is no chance for a re-union, it is evident that the marital tie is broken
and a decree of divorce may be granted. But in order to grant divorce on the
ground of cruelty and desertion, necessarily there has to be some evidence
to prove cruelty and to prove the fact that the wife was living away from the
company of the husband without valid cause. Apparently, in this case the
husband was working abroad and he used to come back only occasionally. It
was his obligation to ensure that the wife and his child were having a
peaceful life, if at all he insists his wife to live in the matrimonial home or
else he could have taken them abroad. In the case on hand, he insisted that
she should remain in the matrimonial home. But according to her, she was
not able to live in the matrimonial home on account of the harassment by
the family members and husband.
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Mat.A.Nos.434, 439 642 of 2013
5. When there is valid reason for a wife to remain away from the
matrimonial home it does not amounts to desertion. That apart, according
to her, it is from 2003 onwards he had stopped meeting her. On a perusal of
the allegations made by each other, it appears that there was some wear
and tear between the couple and there is no specific reason for desertion or
for cruelty. When the husband is not in the matrimonial home, there is
justification for her to remain away from the matrimonial home as such.
That apart, she got employment near her residence and therefore she is
justified in residing in her parental home. Having regard to the fact
situation, we do not think that a case has been made by the husband to seek
divorce and we are not satisfied with the pleadings and evidence in this
regard. The mere fact that they are remaining separate for a considerably
long period is not a reason for divorce. Whereas in certain instances when
the allegation of cruelty has been substantiated, long separation also
amounts to mental cruelty. In this case, when the husband is away and
living abroad for a considerably long period, it cannot be stated that the wife
had committed any act of cruelty. Under such circumstances, we don’t think
that a case has been made out by the husband to interfere with the
judgment in O.P.Nos.957/2007 and 1143/2007. We confirm the view
expressed by the Family Court in that regard.
6. As far as O.P.No.1142/2007 is concerned, no attempt had been
made by the Family Court to consider the evidence on record. Her claim had
been rejected on the sole ground that direction had been issued for
restitution of conjugal rights. Therefore it is appropriate that the matter is
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Mat.A.Nos.434, 439 642 of 2013
considered afresh. For that reason, the matter is to be remitted back to the
Family Court. Mat.A.No.1142/2007 is to be allowed and the judgment in
O.P.No.1142/2007 is to be set aside, remitting back the matter to the Family
Court for fresh consideration.
Accordingly, the appeals are disposed of as under:
Mat.Appeals Nos. 434/2013 and 439/2013 are dismissed.
Mat.Appeal.No.642/2013 is allowed. The judgment in O.P.No.1142/2007 is
set aside, and the matter is remitted back to the Family Court for fresh
consideration. The parties shall appear before the Family Court on
28.10.2019. The Family Court shall endeavour to dispose of the matter in
accordance with law, within a period of six months from the date of
appearance of the parties. Parties shall be permitted to adduce additional
evidence in the matter.
Sd/-
A.M.SHAFFIQUE
JUDGE
Sd/-
N.ANIL KUMAR
True copy JUDGE
kp
P.A. To Judge.
