IN THE HIGH COURT OF KERALA AT ERNAKULAM
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
RAMACHANDRAN PILLAI, S/O RAGHAVAN
PILLAI, PUNTHALA THEKKATHIL, PANMANA P.O., CHAVARA,
BY ADV. SRI.T.MADHU
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:
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
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
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
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
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
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
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.
True copy JUDGE
P.A. To Judge.