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A.N. Viswanathan vs M.R. Shaija on 23 September, 2019

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:
2
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:
4
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
5
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.

6

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
7
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.

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