IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.D.RAJAN TUESDAY, THE 26TH DAY OF FEBRUARY 2013/7TH PHALGUNA 1934 [CASE NUMBER]Appeal.No. 636 of 2007 ( ) AGAINST THE ORDER/JUDGMENT IN [CASE NUMBER] OF FAMILY COURT,KOZHIKODE DATED 09-07-2007 PETITIONER/APPELLANT(S): [ENTITY],S/[ENTITY], AGED 51 YEARS, RESIDING AT [ENTITY], [ENTITY], [ENTITY], [ENTITY], KOYILANDY TALUK, KOZHIKODE - 673 529. BY ADVS.SRI.S.RAMESH SRI.NAVEEN.T [ENTITY] RESPONDENT(S): [ENTITY],D/O.BALAN NAMBIAR P.V., AGED 36 YEARS, RESIDING AT THARIPPEMMAL, KIZHAKKE ONTHAM PARAMBATH, KUNNUMMAL VILLAGE, KOZHIKODE.P.O VATTOLI - PIN - 673 510. BY ADVS. [ENTITY] SRI.E.S.M.KABIR[CONCILIATOR] [ENTITY]] THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 21-02-2013 ALONG WITH [CASE NUMBER], THE COURT ON 26-02-2013 DELIVERED THE FOLLOWING: Kss [CASE NUMBER] APPENDIX PETITIONER'S ANNEXURES: ANNEX.A1: COPY OF THE ORDER IN [CASE NUMBER] IN [CASE NUMBER]. ANNEX.A2: COPY OF THE SALARY PARTICULARS RECEIVED FROM DIVISIONAL OFFICE PALAKKAD DTD. 20.09.2009. ANNEX.A3: COPY OF THE CERTIFICATES RECEIVED FROM STATE BANK OF MYSORE DTD. 6/07/2011. RESPONDENT'S ANNEXURES: ANNEX.1: COPY OF THE RECEIPT ISSUED BY LAXMI MEMORIAL COLLEGE OF NURSING, MANGALORE, DTD. 10/01/2011. ANNEX.2: COPY OF THE RECEIPT ISSUED BY LAXMI MEMORIAL COLLEGE OF NURSING, MANGALORE, DTD. 10/01/2011. ANNEX.3: COPY OF THE RECEIPT ISSUED BY LAXMI MEMORIAL COLLEGE OF NURSING, MANGALORE, DTD. 5/02/2011. ANNEX.4: COPY OF THE RECEIPT ISSUED BY LAXMI MEMORIAL COLLEGE OF NURSING, MANGALORE,DTD. 5/02/2011. ANNEX.5: COPY OF THE COURSE FEE DETAILS FOR THE YEAR 2ND YEAR WITH RESPECT OF [ENTITY], DTD. 19/09/2011. ANNEX.6: COPY OF THE COURSE FEE DETAILS FOR THE YEAR WITH RESPECT TO [ENTITY], DTD. 19/09/2011. ANNEX.7: COPY OF THE COURSE FEE DETAILS FOR THE 2ND YEAR WITH RESPECT TO [ENTITY], DTD. 7/02/2013. ANNEX.8: CERTIFICATE ISSUED BY THE SOUTH MALABAR GRAMIN BANK, KAKKATTIL DTD. 27/02/2012. /TRUE COPY/ P.S.TO JUDGE Kss [ENTITY] & [ENTITY], JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= [CASE NUMBER] Appeal Nos. 636/2007 and 191/2008 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 26th day of February, 2013 JUDGMENT
RAJAN, J.
These appeals are preferred against the common order in [CASE NUMBER] of the Family Court, Kozhikode. [CASE NUMBER] was filed under [SECTION] of the [ACT] and [CASE NUMBER] was filed under [SECTION] of the [ACT] by the husband.
2. Appellant's case before the Court below in [CASE NUMBER] was that he married the respondent on 28.12.1988 at her residence as per Hindu Customary rites and after the marriage both of them resided together in the matrimonial house. Two children were born to them in that wedlock. Appellant is a TTE in the Indian Railway who usually comes [CASE NUMBER] and con. case 2 to his house once in a week where his mother, brother, sister, wife and children are living together. Appellant alleges that the respondent was not willing for the marriage first but due to pressure of others she agreed for the marriage and discharged her duties as a wife and she never considered him as a husband. Even after the birth of second child she was not ready to change her attitude towards the appellant. Besides this, she has connection with some others. Ultimately, on 24.05.2000 when he went for his job, the respondent took her articles and left the matrimonial house. Thereafter there was no marital relationship between the appellant and the respondent. When appellant's mother was laid up in the hospital, the respondent did not care to visit his mother. The respondent filed a false compliant against the appellant, his aged mother and sister before Judicial First Class Magistrate Court, Nadapuram. She also filed [CASE NUMBER] for getting maintenance. Therefore, the appellant approached the court below for decree of divorce on the ground of [CASE NUMBER] and con. case 3 desertion.
3. [CASE NUMBER] was filed by the appellant u/[SECTION] of the [ACT]. In addition to the facts in [CASE NUMBER], he contended that both the children are living with his wife and if they are allowed to continue, it will affect their future. After the delivery of the second child, the respondent obtained a transfer certificate of the first child from Vidya Nikekthan Public School and admitted the child in Little Flower School and further to High-Tech English Medium School, Kallachi without his consent and knowledge. Both children are living with the respondent and she has not cared about their future. Appellant is ready and willing to look after his children and he has sufficient means to give better education to the children. For better education and development of the personality, both children need special care and protection. Hence, he prayed for the custody of the children as per their natural guardian.
4. Both cases were resisted by the respondent by filing [CASE NUMBER] and con. case 4 a counter statement in which she contented that the appellant is a drunkard and he has connection with several women and for that reason alone she was subjected to physical and mental cruelty. Appellant's mother and her sister and her daughter behaved cruelly towards her. After the birth of the second child, appellant's mother and sister deliberately took him from the company of the respondent and they are enjoying the income and assets of the appellant. Appellant sold respondent's gold ornaments weighing 35 sovereigns and misappropriated that amount without her consent. The appellant also ill-treated her demanding `2 lakhs for her share. She went to her father's house only on 10-11-2003, when her father was laid up due to ailments and the allegation that on 24-5-2000 she left the matrimonial house without the consent of the appellant is false. On 25.11.2003 appellant reached the house of the respondent, assaulted her and insisted her for divorce. Due to interference of others, the appellant left the house. Appellant has relationship with other women and is leading [CASE NUMBER] and con. case 5 an immoral life and with that intention he is residing in new house from 27.05.2005 onwards. He filed the petition only to harass her mentally by suppressing original facts at the instigation of his relatives.
5. In [CASE NUMBER] she denied all allegations and contended that children are very brilliant and residing with her. In addition to the counter statement in [CASE NUMBER] she contended that appellant himself obtained transfer certificate of the child from Vidhyanikethan Public School and told that he is not in a position to look after the children. Now both children are getting good education. If the custody is granted to the appellant, their future will be spoiled, since he is leading an immoral and alcoholic life. He never cared for the children and now there is nobody to look after the day today affairs of the children. The children are safe in her custody and petitioner be permitted to see them in the school.
6. The Family Court framed two vital issues in both cases. The first issue is that whether the appellant is [CASE NUMBER] and con. case 6 entitled for a decree of divorce; secondly, he is entitled for a decree as prayed for in [CASE NUMBER]. Both cases were tried jointly and evidence was recorded in [CASE NUMBER]. The appellant in order to prove the allegation of desertion and getting custody of the children, examined PWs.1 to 3 and marked Exts.A1 to A5. The respondent examined RWs.1 and 2 and marked Exts.B1 to B3(f). The Family Court on analyzing the evidence on record came to the conclusion that the alleged desertion was not proved; moreover the children were not willing to go with the appellant and the appellant was not entitled for any of the relief claimed, dismissed both the petitions. Hence, these appeals.
7. It is the argument of the learned counsel for the appellant that the trial court failed to appreciate the evidence of desertion. Moreover the material aspects of the evidence and various incidents were not considered and appreciation of evidence is absolutely contrary to reasons. If the incidents highlighted were properly appreciated, according to the evidence of the appellant, the appellant is [CASE NUMBER] and con. case 7 definitely entitled for a decree as prayed for.
8. Resisting the aforesaid submission, the learned counsel for the respondent contended that the court below discussed the entire evidence and appreciated it with great caution and there is nothing on record to show that any part of it has been omitted. All the material parts of the oral evidence of PWs.1 to 3 has been discussed in detail, after recording the facts highlighted by the respondent in her pleading, which cannot be construed to constitute "desertion". Appellant created a dent in her marital life and made efforts to take advantage of his wrong, which is not allowable according to law.
9. At the outset, we would like to make it clear that the marital relationship between both the parties are strained and they have no intention to clear the matrimonial rapture. The relationship between them was shattered and both of them have decided not to adjust to each other. In the circumstances, husband approached the Family Court for dissolving the marriage U/[SECTION] of the Hindu [CASE NUMBER] and con. [SECTION] [ACT]. In this context we may note the argument advanced by the learned counsel for the appellant and the foundation of the case is upon desertion by the wife for a continuous period of not less than two years immediately preceding the presentation of the petition. For this we have considered the evidence of the husband and other witnesses in reaching a conclusion.
10. PW1 who is the appellant in this case deposed that the respondent left the matrimonial home, when he went for his job as TTE in the Indian Railway. Moreover, the respondent was not ready to accept him as her husband and she consented for the marriage at the instigation and inspiration of some other person. She without his consent left his company and residing separately in her house. PW1 categorically stated that she always considered him as a TTE in the Indian Railway and not as a husband. The respondent took a decision on 24-5-2000 and she deserted him and went to her house taking her house hold articles. After that she never came to his house and obeyed as a [CASE NUMBER] and con. case 9 loving wife. The two children also left his company. Mediation talk also progressed at the initial stage but it has become futile and both of them are residing separately. On 9-12-2003 the respondent filed a criminal case against him and his relatives before the Judicial First Class Magistrate Court, Nadapuram alleging offence under [SECTION] and [SECTION] [ACT]. In this situation it is difficult for him to live with her both physically and mentally as a responsible husband. PWs.2 and 3 supported the evidence of PW1. PW3 who is the relative of PW1 also deposed that the relationship between the appellant and the respondent was not in good terms. Analyzing the evidence of PWs.1 to 3, in the light of the pleadings, it reveals that "deliberate desertion" by the wife or "desertion" as alleged by the appellant is not prima facie established.
11. Keeping in view the principles pertaining to desertion, we have scrutinized the oral and documentary evidence of the wife respondent. The evidence shows that there was no deliberate desertion from her side through out [CASE NUMBER] and con. case 10 her life. She always obeyed him and led good marital life with the appellant. While the appellant was serving as TTE in the Indian Railway, she never went to her house without the consent of her husband. RW1 denied all the allegations put forward by the appellant, on the other hand, she deposed that there was no quarrel between them during early days of the marriage but the appellant started physical and mental torture. A close scrutiny of the evidence of RW1 shows that there was no "desertion" from her side during the subsistence of the marriage. Therefore, we have meticulously analyzed what are the ingredients proved actually to constitute desertion in this case.
12. According to PW1, the alleged desertion of RW1 was from 24-5-2000 and after three year on 21-11-2003 the appellant issued a lawyer's notice. As per the request of PW1, on 27-5-2001 PW2 visited the house of the respondent and initiated a mediation talk. But the evidence of PW3 who is the relative of PW1 shows that respondent and the appellant resided together for five years as wife and [CASE NUMBER] and con. case 11 husband peacefully. This evidence of PW3 is against the case of PW1. We have also considered the plea of "desertion" alleged by the appellant. The section says that any marriage solemnized whether before or after the commencement of the Act the wife or the husband is entitled to get a decree of divorce on the ground of desertion where continuous period of two years immediately preceding the presentation is proved in a case.
13. We have considered the term 'desertion' as per [SECTION] of the [ACT] and analyzed the oral evidence of RW1, who is the wife of the appellant in this case. The evidence of RW1 shows that the appellant ill-treated her both mentally and physically after few years of the marriage. After the birth of 2nd child, he deliberately ignored her, which is evident from her deposition. She also alleged that the appellant has illicit relation with another lady. RW2 is the son of RW1 also a brilliant student. Even though PW1 deposed about "desertion", no such incidents of desertion were highlighted by him. The alleged "desertion"
[CASE NUMBER] and con. case 12 is only the ordinary tear and wear in a married life. What are the ingredients to constitute a "desertion" is not specifically defined and there is no straight jacket formula or fixed para metres for fixing desertion. It is the duty of the court to analyze and evaluate the evidence and facts highlighted by the parties for reaching a conclusion that there is a "deliberate desertion".
14. In this context, we have considered a decision of the Apex Court in [PRECEDENT] in which the Supreme Court observed as follows:-
" For the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there namely, (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similiarly two elements are essential so far as the deserted spouse is concerned: (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the [CASE NUMBER] and con. case 13 necessary intention aforesaid. The petitioner for divorce bears the burden of proving those elements in the two spouses respectively. Here a difference between the English law and the law as enacted by the Bombay Legislature may be pointed out. Whereas under the English law those essential conditions must continue throughout the course of the three years immediately preceding the institution of the suit for divorce, under the Act, the period is four years without specifying that it should immediately precede the commencement of proceedings for divorce. Whether the omission of the last clause has any practical result need not detain us, as it does not call for decision in the present case. Desertion is a matter of inference to be drawn from the facts and circumstances to each case. The inference may be drawn from certain facts which may not in another case be capable of leading to the same inference; that is to say, the facts have to be viewed as to the purpose which is revealed by those acts or by conduct and expression of intention, both anterior and subsequent to the actual acts of separation. If in fact, there has been a [CASE NUMBER] and con. case 14 separation, the essential question always is whether that act could be attributable to an animus deserendi.The offence of desertion commences when the fact of separation and the animus deserendico- exist. But it is not necessary that they should commence at the same time. The de facto separation may have commenced without the necessary animus or it may be that the separation and the (animus deserendi) coincide in point of time; for example, when the separating spouse abandons the marital home with the intention, express or implied of bringing cohabitation permanently to a close. The law in England has prescribed a three years period and the [ACT] prescribed a period of four years as a continuous period during which the two elements must subsist. Hence, if a deserting spouse takes advantage of the locus poenitentiae thus provided by law and decides to come back to the deserted spouse by a bona fide offer of resuming the matrimonial home with all the implications of marital life, before the statutory period is out or even after the lapse of that period, unless proceedings for divorce have been commenced, desertion comes to an end, and if [CASE NUMBER] and con. case 15 the deserted spouse unreasonably refuses to offer, the latter may be in desertion and not the former. Hence it is necessary that during all the period that there has been a desertion, the deserted spouse must affirm the marriage and be ready and willing to resume married life on such conditions as may be reasonable. It is also well settled that in proceedings for divorce the plaintiff must prove the offence of desertion, like and other matrimonial offence, beyond all reasonable doubt. Hence, though corroboration is not required as an absolute rule of law the courts insist upon corroborative evidence, unless its absence is accounted for to the satisfaction of the court."
15. It is worth to note the following decisions of this Court in [PRECEDENT] and [PRECEDENT]. In [ENTITY]'s case (Supra) this Court considered the meaning of 'desertion' and held as follows:-
6 . The true content and import of desertion in [SECTION] of the [ACT] imparts a definite idea of complete and endless [CASE NUMBER] and con. case 16 abandonment of one spouse by the other. This must be without the other's consent and without justifiable cause. Two essential conditions attached to the notion of desertion are: (1) the factus of separation and (2) the intention to bring marital life permanently to an end animus deserendi. Desertion is always a matter of inference to be drawn from the facts and circumstances of each case. There may be often cases where a spouse is forced under certain peculiar circumstances by the conduct of the other spouse, to live separately or to stay away.
In such a case there is no legal desertion to constitute a ground for divorce. The simple reason is that the said situation has been brought about by the act of the spouse who had misconducted himself or herself.
7 . Desertion as a ground for divorce was added to [SECTION] by the Marriage Laws
(Amendment) Act, 1976. Before the amendment, it was only a ground for judicial separation. Now the ground of desertion for claiming divorce is qualified as desertion for a continuous period of two years immediately preceding the presentation of the petition. The Explanation [CASE NUMBER] and con. case 17 makes it clear that the expression `desertion' means the desertion of the petitioner by the other party to the marriage without reasonable cause, and without the consent and against the wish ofsuch party and it includes the wilful neglect of the petitioner by the other party to the marriage. The section read along with the explanation makes it abundantly clear, that in its essence it signifies the intentional permanent forsaking and abandonment of one spouse by the other without the other's consent and without reasonable cause. It is a total repudiation of the obligations of marriage vide ([PRECEDENT]). The explanation gives emphasis to the quality of permanence as one of the essential elements differentiating desertion from voluntary separation for good reasons. It is very important to note that in deciding what constitutes desertion, one of the first matters for consideration is the intent of the offending party in addition to separation or withdrawal from cohabitation.
In Baby's case (Supra) this Court also held thus:-
To constitute an act of desertion two elements must be there on the side of the deserting [CASE NUMBER] and con. case 18 spouse. Firstly, the factum of physical separation is the sine qua non of desertion. There must also be the animus deserandi to bring co-habitation or the matrimonial consortium to an end. Likewise, so far as deserted spouse is concerned, to constitute desertion, it must be affirmatively established that he was not a consenting party to the desertion by the opposite party. In other words, if it is found that desertion happened on account of the action of the deserted spouse he cannot legitimately adopt the posture of innocence. On the side of the deserted spouse there should not occur any conduct giving reasonable cause to the spouse leaving matrimonial house. In a case where desertion is alleged to obtain decree of divorce it must be established that the deserting spouse purposefully kept away from the other party to the marriage with the avowed intention of not having any matrimonial relationship. In [PRECEDENT] the Supreme Court held that desertion within the meaning of [SECTION] of the Act read with Explanation does not imply only a separate residence and separate living but also a [CASE NUMBER] and con. case 19 determination to put an end to matrimonial relationship and co-habitation. One of the essential elements which differentiates desertion from wilful separation is the quality of permanence. If in a case a spouse abandons the other spouse in a state of temporary passion or anger without intending to cease co-habitation permanently, it will not amount to desertion. In a case where a spouse had left the opposite party's company never to return and with the intention to bring cohabitation permanently to an end, the necessary animus deserandi can be inferred. In a case where physical separation with animus deserandi has been established, certainly, the allegation of desertion stands proved.
16. Keeping in view of the aforesaid discussions by the Apex court and the High Court pertaining to desertion it is clear that "desertion" is not a simple retreat by one spouse from a place but a permanent physical separation with an intention to end cohabitation permanently. Here, the wife alleges physical and mental torture against her by the husband and he is leading an independent separate life [CASE NUMBER] and con. case 20 declining to maintain wife and children. But she has never withdrawn from his life and was more bothered about the marital rights. In such a situation, the burden of proof mainly fall upon the appellant to prove the essential ingredients of desertion that is living with animus deserandi and absence of sufficient reason to leave the company of the husband. Here he has not pleaded and established any misconduct of the wife. We are of the opinion that she had not withdrawn from the company of the husband with 'animus deserandi'. In the back drop of the aforesaid discussion, we may note that the discussions made by the Family Court regarding various aspects are reasonable, based upon the evidence and relevant materials. Hence we decline to interfere in that findings. The appellant failed to prove the alleged desertion and his appeal to that extent is liable to be dismissed.
17. The next core issue is whether the appellant is entitled to get the custody of the children as claimed in [CASE NUMBER]. For that, we have considered the oral [CASE NUMBER] and con. case 21 evidence of RW1 and her son, who was examined as RW2 in the Family Court. PW1 in his cross examination admitted that he had obtained the transfer certificate of the elder child from the school for admitting him to any other school.
In the petition, PW1 alleged that RW1 took the child without his consent and now the children are in her custody. This admission made by PW1 is a relevant piece of evidence against him. The son of the appellant and the respondent, RW2, who is a student in the Vidyaniketan Public School, Payyoli, admitted that he failed in Standard I and PW1 transferred his TC and admitted him in Little Flower English Medium School, near the house of RW1. He studied there up to Standard V and thereafter studied at High Tech English Medium School up to Standard IX. He completed Standard X at National Higher Secondary School, Vattoli. In his evidence, he disclosed that his father, after consuming liquor, assaulted his mother while they were living together. His brother is also studying in the same school at Vattoli. They are now feeling the safety and security with their [CASE NUMBER] and con. case 22 mother and not willing to reside with his father in the present situation. He categorically stated in his evidence that PW1, who is the father, is very cruel and if they are permitted to reside with his father, it will damage their future.
18. In such a situation, if the children are entrusted with the appellant, we are of the opinion that apprehension of the respondent has some relevancy. The respondent is looking after the minor children properly. It is difficult to entrust them to the appellant. Moreover, according to RW1, the appellant is a drunkard and not leading a systematic life. If that be so, it is difficult for him to look after the welfare of the children. Therefore, the issue of granting children to the appellant was properly concluded by the Family Court in a matrimonial dispute with entrustment of the children to the mother. It is the mother who is the best person to look after the welfare of the minor children. Even though father is financially sound, he is not interested in the welfare of the children. The elder son is a B.Sc Nursing student and he [CASE NUMBER] and con. case 23 needs sufficient amount for his education, fee and accommodation.
19. According to [SECTION] of the [ACT], the natural guardian of a Hindu minor in respect of person and property are in case of boy or unmarried girl the father and after him the mother. The regulating significant consideration governing the custody of the children is the paramount welfare of the children . The Apex court in the decision of [PRECEDENT] held that in the phrase "the father and after him, the mother" the word 'after' need not necessarily mean after the lifetime of father. In the context in which it appears in [SECTION] it means 'in the absence of', the word 'absence' therein referring to the father's absence from the care of minor's property or person for any reason whatsoever. If the father is wholly indifferent to the matters of the minor or if by virtue of mutual understanding between the parents, the mother is put exclusively in charge of the minor or if the father is [CASE NUMBER] and con. case 24 physically unable to take care of minor for any reason whatsoever, the father can be considered to be absent and mother being a recognized natural guardian can act validly on behalf of the minor as the guardian. Such an interpretation will keep the statute within the constitutional limits otherwise the word 'after' if read to mean a disqualification of a mother to act as guardian during lifetime of father the same would violate one of the basic principles of our [ACT] i.e gender equality. Moreover, in another decision, [PRECEDENT], it is held that the controlling consideration governing the custody of the children is the welfare of the children and not the right of the parents.
20. Keeping in view of the settled principle, we are of the opinion that interference in the finding of the court below is not warranted. Considering the totality of the circumstances and the evidence in this case, we are of the opinion that the judgment and decree passed by the court below are only to be confirmed.
[CASE NUMBER] and con. case 25 In the result, the judgment and decree passed by the court below in [CASE NUMBER] are confirmed. We find no merit in these appeals and both appeals are dismissed accordingly. The appellant is directed to pay `10,000/- as costs.
[ENTITY], JUDGE.
[ENTITY], JUDGE.