IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE

THE HONOURABLE MR. JUSTICE ASHOK MENON

WEDNESDAY,THE 13TH DAY OF MARCH 2019 / 22ND PHALGUNA, 1940

Mat.Appeal.No. 157 of 2009

AGAINST THE ORDER/JUDGMENT IN OP(HMA) 428/2007 of FAMILY COURT,
THIRUVALLA DATED 22-09-2008

APPELLANT/PETITIONER:

NIJU, AGED 36 YEARS,
S/O. LATE DIVAKARAN, CHARIVUKALAYIL HOUSE, OONNUKAL,
CHENNEERKARA MURI, CHENNEERKARA VILLAGE, KOZHENCHERRY
TALUK.

BY ADV. SRI.P.HARIDAS

RESPONDENT/RESPONDENT:

SUDHA, AGED 31 YEARS, D/O.SUBHASHINI,
PAZHAYAMANGALATH HOUSE, KURAMPALA VILLAGE, ADOOR
TALUK.

THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 13.03.2019,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Mat.Appeal 157/2009

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JUDGMENT

Shaffique, J
This Appeal is filed by the petitioner in

OP(HMA) No.428/2007. The Original Petition was

filed seeking divorce on the ground of cruelty and

desertion. The parties got married on 09.05.1999

and a female child was born in the wedlock on

20.02.2000. According to the petitioner, the

respondent-wife had gone to her parental house for

delivery on 01.01.2000 and thereafter she did not

return. Though he had filed complaint before the

local SNDP Yogam and they had summoned both sides

and made certain suggestions in the matter, she

did not adhere to the same. In the meantime, she

filed complaint against him and his family members

under Section 498A of the Indian Penal Code. She

also filed OP No.368/2005 claiming money and

ornaments and an ex parte decree had been

obtained. A maintenance case was also filed

against him under Section 125 of the Code of

Criminal Procedure. The main allegation of the
Mat.Appeal 157/2009

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petitioner was that the respondent was not

prepared to cook food and she wanted a luxurious

life. He was an autorickshaw driver and when he

returned after his work, he was not given peace of

mind. According to the petitioner, the respondent

never liked him. She was not prepared to share

bed with him, which amounts to mental cruelty.

2. The respondent denied the

allegations. According to her, she was co-

operating with the petitioner for all his desires

and they had a happy married life. They used to

have normal sexual relationship. Initially for

six months, there was no problem in the marital

life. Thereafter, the petitioner became alcoholic

and was demanding more money as dowry, and she was

being tortured both physically and mentally. On

01.01.2000 while she was carrying, she was

physically assaulted and driven out of the house,

even without giving food. On the next day she was

taken to her parental house. It is therefore

submitted that it is not a case of desertion,
Mat.Appeal 157/2009

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whereas she was being ill-treated by the

petitioner.

3. Before the Family Court, on the side

of the petitioner, two witnesses were examined and

one document was produced and marked (Ext.A1).

The petitioner was examined as PW1 and the

respondent as CPW1. The Family Court having found

that there is no evidence to prove either cruelty

or desertion, dismissed the petition.

4. The Family Court found that the

allegation of cruelty had not been established and

there was no material to prove the said fact. It

was found that while being examined before the

court, PW1 did not have a case, even in chief

examination, that the respondent refused conjugal

union, whereas it was found that the version of

CPW1, the respondent-wife, was believable. She

had to leave the matrimonial home only when she

was assaulted demanding more money and ornaments,

while she was carrying. There is no evidence to

show that any person had interfered in the matter
Mat.Appeal 157/2009

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for taking her back to the matrimonial house after

the delivery. The petitioner had a case that the

local SNDP Yogam had interfered in the matter.

But, there is no material to substantiate the

above contention. None of the mediators had been

examined before the court. Under such

circumstances, the Family Court found that there

is no evidence to prove either cruelty or willful

desertion on the part of the wife. In the absence

of such evidence, the Family Court was justified

in dismissing the Original Petition. We do not

find any ground to interfere with the said

judgment. Therefore, the Mat. Appeal is

dismissed. No costs.

Sd/-

A.M.SHAFFIQUE

JUDGE

Sd/-

ASHOK MENON

jg JUDGE