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