IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
THURSDAY, THE 30TH DAY OF MAY 2019 / 9TH JYAISHTA, 1941
Mat.Appeal.No. 286 of 2013
AGAINST THE ORDER/JUDGMENT IN OP 39/2012 of FAMILY COURT,
MUVATTUPUZHA DATED 19-01-2013
APPELLANT/S:
SHIBU.K.JOHN
AGED 33 YEARS,S/O.LATE YOHANNAN, KARUTHEDATH
HOUSE, VALAMBOOR KARA, KADAYIRUPPU.P.O.,
PATTIMATTOM VILLAGE, ERNAKULAM DISTRICT.
BY ADV. SRI.S.RENJITH
RESPONDENT/S:
MAYA
AGED 31 YEARS,D/O.SKARIA, KUMMAMKOTTU HOUSE,
KONNATHADY KARA, KONNATHADY VILLAGE, IDUKKI
DISTRICT-691001.
BY ADV. SRI.SAJEEV KUMAR K.GOPAL
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
30.05.2019, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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Mat.Appeal.No. 286 of 2013
JUDGMENT
Shaffique, J.
The appeal is filed by the petitioner in OP No. 39 of 2012.
Original Petition has been filed seeking divorce on the ground of
cruelty and desertion. The parties to the case got married on
08.01.2007. The allegation made by the petitioner is that while
the couple were residing together at the matrimonial home, her
behaviour was not proper and she used to quarrel with him and
even with his mother. He had to go abroad for an employment
on 08.09.2007. When he came back she did not come and reside
with him. That apart, she had even manhandled his mother and
left the matrimonial home on 18.06.2009. Thereafter, the parties
were not living together. Alleging that her actions amounts to
cruelty and that she had deserted him, the original petition has
been filed.
2. Respondent denied the allegations. According to her,
she had not quarreled with the petitioner or his mother.
Allegations of cruelty was absolutely baseless. It is also
submitted that the petitioner never came to her after going
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abroad and she was not taken back to the matrimonial home.
The allegations have been made only as a ruse for getting
divorce. She is always ready and willing to reside with him.
3. Evidence consisted of oral testimony of PW1 and PW2
on behalf of the petitioner and RW1 and RW2 on behalf of the
respondent. Ext.A1 is the marriage certificate. The parties are
Christians and there is no dispute about their marriage. The
only issue is whether the respondent/wife had committed any
act of cruelty, which warrants grant of divorce and whether she
had deserted him. It is settled law that allegations of cruelty are
to be specifically pleaded and proved. The allegations now raised
by the petitioner appears to be a normal wear and tear in a
family and cannot be adjudged as a cruelty warranting grant of
divorce. So is the finding of the Family Court. The learned
counsel for the appellant however, submits that the quarrel is
between his wife and his mother, while he was abroad. But,
though the mother was examined as PW2, evidence does not
indicate that it was a cruelty of such a nature, which warrants
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Mat.Appeal.No. 286 of 2013
grant of divorce. The allegations are only vague and cannot be
considered to be of a nature to grant divorce.
4. Next question to be considered is whether the wife
had deserted the husband. Apparently the husband was working
abroad as he was employed abroad and respondent wife was
residing at her parental house. She thereafter continued her
studies and even got an employment. When the husband is not
in India, his obligation is to take her also abroad, but having not
done so, he cannot say that she had deserted him. It is for him
to ensure that she resides with him. Under such circumstances,
the allegation of desertion also cannot be pleaded. Since the
Family Court had considered the entire issue and had arrived at a
finding, which is not perverse, we don’t think it necessary for us
to interfere with the same.
5. The learned counsel for the appellant however,
submits that the marriage has been irretrievably broken and that
case had been filed by the wife alleging offence under Section
498A against the petitioner and his mother, and in the said case
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the accused were acquitted. But acquittal of a criminal case by
itself will not indicate that it is a false case. The criminal case
came to be acquitted for want of evidence. The wife had a
definite case before the criminal Court regarding allegations of
cruelty. That by itself is not enough to conclude that a false case
has been filed against the husband. That the marriage is
irretrievably broken by itself is not a ground to order divorce,
especially where the wife is ready and willing to continue to
marital relationship.
Under such circumstances, we don’t find any ground to
interfere with the judgment of Family Court, and hence,
dismissed.
Sd/-
A.M.SHAFFIQUE
JUDGE
Sd/-
N.ANIL KUMAR
JUDGE
das
