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Shibu.K.John vs Maya on 30 May, 2019

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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Mat.Appeal.No. 286 of 2013

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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Mat.Appeal.No. 286 of 2013

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

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