IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
THE HONOURABLE MRS. JUSTICE MARY JOSEPH
FRIDAY, THE 10TH DAY OF JANUARY 2020 / 20TH POUSHA, 1941
Mat.Appeal.No.611 OF 2013
AGAINST THE JUDGMENT IN OP No. 426/2011 DATED 25-01-2013 OF FAMILY
COURT, KANNUR
APPELLANT/RESPONDENT:
V.V. VEENA
AGED 32 YEARS
THEKKUMBADAN HOUSE, KALLIASSERY SOUTH, ANCHAMPEEDIKA
POST, KALLIASSERY AMSOM, DESOM, KANNUR TALUK, KANNUR
DISTRICT.
BY ADVS.
SRI.M.SASINDRAN
SRI.P.K.SUBHASH
RESPONDENT/PETITIONER:
K.V. VINODKUMAR
AGED 37 YEARS
S/O E.RAGHAVAN, KADANMMAR HOUSE, MORAZHA POST,
MORAZHA AMSOM DESOM, ANCHAMPEEDIKA POST, TALIPARAMBA
TALUK, KANNUR DISTRICT-670 001.
R1 BY ADV. SMT.N.SHAMNA
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
10.01.2020, ALONG WITH Mat.Appeal.586/2013, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
Mat.Appeal.No.611586 OF 2013 2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
THE HONOURABLE MRS. JUSTICE MARY JOSEPH
FRIDAY, THE 10TH DAY OF JANUARY 2020 / 20TH POUSHA, 1941
Mat.Appeal.No.586 OF 2013
AGAINST THE JUDGMENT IN OP No.421/2011 DATED 25-01-2013 OF
FAMILY COURT, KANNUR
APPELLANT/PETITIONER:
V.V.VEENA
AGED 32 YEARS, THEKKUMBADAN HOUSE, KALLIASSERY
SOUTH, ANCHAMPEEDIKA POST, KALLIASSERY AMSOM,
DESOM, KANNUR TALUK, KANNUR DISTRICT.
BY ADVS.
SRI.M.SASINDRAN
SRI.P.K.SUBHASH
RESPONDENT/RESPONDENT:
K.V.VINODKUMAR
S/O.E.RAGHAVAN,AGED 37 YEARS, KADANMMAR HOUSE,
MORAZHA POST, MORAZHA AMSOM, DESOM, ANCHAMPEEDIKA
POST, TALIPARAMBA TALUK, KANNUR DISTRICT. 670 001.
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
10.01.2020, ALONG WITH Mat.Appeal.611/2013, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
Mat.Appeal.No.611586 OF 2013 3
JUDGMENT
[ Mat.Appeal.611/2013, Mat.Appeal.586/2013 ]
Dated this the 10th day of January 2020
A.M.SHAFFIQUE,J
These two appeals arise out of matrimonial issues between
a couple. O.P No.421 of 2011 has been filed by the wife seeking
divorce on the ground of cruelty. O.P No.426 of 2011 was filed
by the husband seeking Restitution of Conjugal Rights.
Maintenance case was also filed by the wife as M.C No.89 of
2011. All these cases were jointly tried and resulted in judgment
dated 25.01.2013. While allowing the petition for Restitution of
Conjugal Rights, the petition for divorce was dismissed by the
Family Court against which these appeals have been preferred
by the wife.
2. Learned Counsel for the appellant submits that the
wife had taken a specific contention regarding cruelty but the
Family Court had failed to consider the same in the proper
perspective. That apart, the marriage is irretrievably broken
Mat.Appeal.No.611586 OF 2013 4
insofar as they have been separated since 2007 and there is no
chance for re-union. Even before this Court, there is no
appearance on behalf of the wife.
3. Petitioner and respondent got married on 19.5.1996.
Two children were born in the wedlock. They got separated on
22.07.2007. The contention urged by the petitioner/wife was
that after the marriage, her husband lost his job and started
idling. There was no peace in the house as he used to quarrel
with them quite often. According to her, when his grandmother
died, though the petitioner wanted to attend the cremation, he
did not permit her to go for cremation rituals. She was assaulted
and she along with children were locked in the room. She had to
contact his parents and on the instructions of a social worker in
the locality, they were released. Subsequently, there was a
mediation between the parties and they started residing in a
rented house. However, petitioner and children were ill treated .
Ultimately they were ousted from the house on 22.07.2007. She
was forced to take shelter in her parental house along with the
children and thereafter she filed the petition for maintenance.
Mat.Appeal.No.611586 OF 2013 5
Respondent denied the allegations. According to him, he had
lost his employment due to the harassment and cruelty by the
petitioner and her parents. He had availed a loan from the Bank,
with which his wife started a Beauty Parlour under the name
‘Chaithanya’. She is earning more than Rs.10,000/- per month
from the aforesaid business and after having started the Beauty
Parlour, she is not willing to continue the marital relationship.
Hence he sought for dismissal of divorce petition and on the
very same ground he sought for Restitution of Conjugal Rights.
4. Evidence in the case consists of oral testimony of
PW1 and RW1. Exts.A1 and B1 series were the documents relied
on. Family Court after considering the evidence found that there
is no material to prove cruelty and therefore dismissed the
petition for divorce and allowed the petition for Restitution of
Conjugal Rights.
5. Having heard the learned counsel for the appellant
and having perused the records, we are of the view that the
marriage has been irretrievably broken. Parties got separated in
the year 2007 and there is no chance for re-union. For the last
Mat.Appeal.No.611586 OF 2013 6
12 years, there was no relation ship between them. The children
are with the mother and no attempt had been made for getting
custody as well. Perusal of the evidence in the case and the
pleadings of the petitioner/wife and the evidence would show
that she had specifically spoken about the incidents which have
occurred in their marital life. According to her, she and her
children were ill-treated as the petitioner was not having any job
and he was merely idling. The attitude of the respondent
prompted her to start the Beauty Parlour and even after starting
the Beauty parlour, she and the children were ousted from the
place where they were living together. These facts apparently
amounts to mental cruelty. Husband has the duty to take care of
his wife and children. If he fails to do so, it will amount to
severe sufferings for the family. This is a case in which the
husband had failed to take care of his wife and children and she
was forced to start a business of her own.
6. Under the said circumstances, when the wife made a
complaint that she was being ill-treated by her husband, there is
no reason to discard the said evidence. Therefore, having taken
Mat.Appeal.No.611586 OF 2013 7
into consideration the evidence of PW1, and further fact that the
marriage has been irretrievably broken, we are of the view that
the appeal ought to be allowed. Accordingly, these appeals are
allowed as under.
7. The judgment in O.P No.421 of 2011 and 426 of 2011
are set aside. O.P No.421/2011 is allowed and the marriage
between the petitioner and respondent shall stand dissolved by
decree of divorce. O.P No.426 of 2011 is dismissed. No order as
to cost.
Sd/-
A.M.SHAFFIQUE
JUDGE
Sd/-
MARY JOSEPH
JUDGE
JJ
