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Ramachandran Pillai vs Ananda Bai Amma on 21 November, 2018

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE

THE HONOURABLE MRS. JUSTICE SHIRCY V.

WEDNESDAY, THE 21ST DAY OF NOVEMBER 2018 / 30TH KARTHIKA, 1940

Mat.Appeal.No. 989 of 2010

AGAINST THE JUDGMENT IN OP 193/2005 of FAMILY COURT, KOLLAM DATED
31-05-2010

APPELLANT/PETITIONER:

RAMACHANDRAN PILLAI, S/O RAGHAVAN
PILLAI, PUNTHALA THEKKATHIL, PANMANA P.O., CHAVARA,
KOLLAM DISTRICT.

BY ADV. SRI.T.MADHU

RESPONDENT/RESPONDENT:

ANANDA BAI AMMA, 45 YEARS
D/O. MEENAKSHI AMMA, ANANDA BHAVAN, (KOOTAMPALLY)
KANNIMEL, KAVANADU P.O., KOLLAM, PIN-691 003.

BY ADV. SRI.R.SATISH KUMAR

THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 21.11.2018,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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Mat.A.No.989/2010

JUDGMENT

SHAFFIQUE, J

This appeal is filed by the petitioner in O.P.No.193 of 2005. The

original petition is filed seeking divorce on the ground of cruelty and

desertion.

2. The parties are described as shown in the original petition.

The short facts of the case are as under:

The petitioner married the respondent on 05.12.1987. Two children were

born in the wedlock. According to him, they had some difference of

opinion on account of the insistence of his wife that he should shift his

residence to her house. She never liked the petitioner residing with his

mother and other siblings. He also has a case that in order to match the

horoscope, the respondent’s family had fabricated her horoscope. She

also misrepresented that she had M.Com decree while she studied only

upto B.Com. The petitioner further contended that the respondent

mortgaged the property that belonged to her as security for availing a

loan in the name of her brother without his consent. They had to live

separately form 13.4.1992 onwards. Subsequently, on account of

mediation, she came back to her matrimonial home on 16.3.2002.

Thereafter also she did not behave properly towards the petitioner and

she did not carry out any of her matrimonial obligations. She left the

matrimonial home on 29.3.2003. On that day her brother and other
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Mat.A.No.989/2010

people from the neighbourhood had come to the petitioner’s house. He

was abused and on that day she left the matrimonial home as well. She

had in fact deserted the petitioner and she did not come back despite his

repeated attempt. Therefore he filed the divorce petition alleging cruelty

and desertion.

3. The respondent denied the allegations. According to her, she

was ill-treated and therefore she was forced to file a complaint against

the petitioner and his brother under Section 498 A of the IPC. She was

treated with cruelty and she had no other option other than to leave the

matrimonial house and reside with her parents.

4. This case was heard along with O.S.No.165/2003 filed by the

wife claiming return of gold ornaments and money. Common evidence

was taken. PW1 and PW2 were examined on the side of the petitioner

and the respondent was examined as RW1. The Family Court found that

there is no evidence to prove either cruelty or desertion and accordingly,

the petition was dismissed.

5. The learned counsel for the appellant argued that the incident

narrated by the petitioner by itself would indicate that she was behaving

in a cruel manner against him which fact was ignored by the Family

Court. From the factual background available in the case, it is rather

clear that the parties lived together until 13.4.1992, on which date it is

alleged that she left the matrimonial home. They remained separated till

16.03.2002 and thereafter on account of mediation she had come back
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Mat.A.No.989/2010

and resided at the matrimonial home. Therefore, whatever had

happened before 16.03.2002 in the matrimonial home, which is narrated

as cruelty, stands condoned at the instance of the petitioner himself.

The question is, after she came back to the matrimonial home on

16.03.2002 and before leaving the matrimonial home on 29.03.2003

whether she had behaved in a cruel manner against the petitioner. In

order to prove the said fact there is only the oral testimony of PW1 and

RW1. PW1 though submits that she had not complied with the

matrimonial obligations, this fact is disputed by the respondent. PW2 is

the only witness to prove the incident which occurred on 29.03.2003.

6. There is no dispute abut the fact that something happened at

petitioner’s house, on 29.03.2003. According to the petitioner, several

persons who are associated with the respondent and family members

had come and abused him. PW2 deposed that he had interfered in the

matter and told them that the matter could be mediated and settled.

Thereafter they did not approach him. The evidence further indicates

that the respondent had been admitted in a hospital on 30.03.2003. She

suffered few lacerated injuries and contusion. Before the Doctor she said

that she was man-handled by her husband, his brother and mother. That

apart, it is also in evidence that she had filed a complaint before the

police on 1.4.2003, under Section 498 A of the IPC. The case was

investigated by the police and final report was filed against the petitioner

and his brother for the offence under Section 498 A IPC. We do not know
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Mat.A.No.989/2010

the outcome of the said complaint as neither of the counsel are able to

give the details thereof.

7. Be that as it may, that an incident had happened on

29.03.2003 is reflected from the evidence of PW1 and PW2. According to

RW1 demand was made for more money and she objected to the same

and she was man-handled. The fact that she suffered few injuries is

reflected from Ext.B3 wound certificate. She was also admitted in the

hospital as an inpatient. Therefore, the fact that she suffered injuries on

29.3.2003 stands proved. Hence it is not without any reason that several

people had assembled in the house of the petitioner and questioned him

and abused him. Therefore what can be derived from the aforesaid

factual situation is that the petitioner was behaving in a cruel manner

against the respondent and there is no evidence to prove that she was

behaving in a cruel manner against the petitioner.

8. The next contention urged is regarding desertion. A case of

desertion can be made only if the spouse leaves the company of other

spouse without any reasonable cause. Evidence in this case indicates

that once she had gone away on 13.4.1992 and after mediation she

came back on 16.03.2002 and she remained in the matrimonial home till

29.03.2003, on which date according to her, she was man-handled.

Thereafter, she had to leave the matrimonial home and reside in her

parental house. This by itself is a reason for her to remain away from the

matrimonial home.

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Mat.A.No.989/2010

Under such circumstances, the petitioner cannot contend that there

is no valid reason for her to remain away from the matrimonial home.

Hence we are of the view that a case of desertion also is not made out.

There is no merit in the appeal and hence it is dismissed. No costs.

Sd/-

A.M.SHAFFIQUE

JUDGE

Sd/-

SHIRCY V.

True copy JUDGE
kp

P.A. To Judge.

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