IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 4TH JUNE 2008 / 14TH JYAISHTA 1930 SA.No. 782 of 1995() -------------------- AS.13/1990 of SUB COURT, TIRUR OS.219/1987 of M.C.,PARAPPANANGADI .................... APPELLANT/APPELLANT /DEFENDANT ---------------------------------------- KALADY KUNHALANKUTTY S/O KUNHIMOHAMMED RESIDING AT KOTTAKKAL AMSOM KUTTIPPURAM DESOM TIRUR TALUK BY ADV. SRI.T.KRISHNANUNNI RESPONDENT/RESPONDENT/PLAINTIFF ------------------------------------------ NAFEESA D/O MAILAMBADAN KUNHAHAMMED RESIDING AT CLARI AMSOM AND DESOM TIRUR TALUK BY K.K.MOHAMMED RAVUF THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 04/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID, J. ------------------------------------------ S.A. No. 782 of 1995 ------------------------------------------- Dated this the 4th day of June 2008 JUDGMENT This Second appeal is directed against the judgment and decree in A.S. No. 13/1990 on the file of the Subjudge, Tirur. An. o.S. Was filed by the respondent wife as O.S. 219/1987 for dissolution of Marriage and for relisation of nine sovereigns gold ornaments or its value. Is a connected suit as O.S. 191/1987 filed by the present appellant as plaintiff for restitution of conjugal rights. Both cases were tried together and the Munsiff Court Parappanangadi decree O.S. 219/1987 and dismissed O.S. 191/1987. The present appellant filed two appeals before the Lower appellate Court as A.S. 13 & 14 of 1990. The lower appellate court dismissed A.S. 14/1990 filed by the appellant and partly allowed A.S. 13/1990 and the decree is modified to the affect trhat the respondent wife herein is not entitled to get a decree for realisation of the gold ornaments or its calue. Bveing aggrieved by the judgment the appellant husband has filed this second appeal. The parties herein are referred as appellant- husband and respondent-wife. The marriage between the respondent and appellant was performed in the year 1980. A son was born to them and he is under the custody of the respondent. According to the respondent her husban is a drunkard that he used to torture the respondent and narrated several incidients of cruelty. According to her she was subject to physical and mental torture . She also held that her husband deserted her and not maintained in the circumstances. She was constrianed to leave the gulf country where her husband was employed. She was forced to return to India on 23.9.1996 . On 27.7.1987 the appellant visited her in her parental home and demanded her to hand over the chain having a weight of nine sovereigns. The respondent wife believed the words of her husband who handed over the ornaments having nine sovereigns. On enquiry it was found out by the respondent was on the following day her husband contracted a second marriage and out of hjer gold ornaments 3 sopvereigns were given as Mahar for the second wife. It is also alleged that she has not prepared to co-habit with the appellant as wife in the company of his second wife . According to her, her husband deliberately deserted her with an intention not to co-habit with her any more, She sought for dissolution of marriage on the ground of cruelty and desetion. O.S. No. 219/1998 was filed under Section 2 of the Dissolution oof Muslim Marriage Act. In the written statement filed by the appellant he denied all the allegations levelled against him by his wife. Acording to him the respondoent- wife is not entitled to get dissolutionof marriage or return of the gold ornaments or its calue as claimed in the suit. The appellant also filed another suit numbered as O.S. 191/1987for restitution of conjugal rights. The trial court on a consideration of the evidence on record entered findings to the fact that wife is entitled to get dissolution of the marriage is the appellant was neglected or has failed to provide for her maintenance for a period of 2 years or that the husband has failed to perform without rteasonable cause his marital obligations for a perios of 3 years or that the husband treated her with cruelty and the wife is entitled to reside separately. The habitual assaultiing of the wife makes her life miserable amounts to cruelty. The husband's association with woman of evil repute or leads an imoral life also amounts to cruelty. The learned judge also observed that if a person has more wives than one, does not treat all of them equally. This is also a ground for divorce. In the oral evidence tendered by the wife she deposed that her life along with her husband is miserable. The appellant was a drubkard. He was illtreatin and torturing her and that at last she escaped from the residence of the appellant and returned to India with the assistance of her brother residing near to the residence of the appellant in the year 1986. It is brought to the notice that the courts below that the appellant married again uring the subsistence of his earlier marriage. The trial court acepted the evidence tendered by the wife and concluded that the husband has treated her cruelly and concluded that without providing her food cloth and other necessaries for lifew . The trial court also relied on somce decision of this Court and finally concluded that the wife has suceeded in proving the grounds for divorce. The lower appellat courty also elaborately considered the contentions of the respective parties and the evidence on record. The appellant caourt also agreed that the view taken by the trial court on facts and circumstances and held that the plaintiff wife is entitled to a decree of divorce. The appellate court also confirmed the decree passed in O.S. `191/1987 dismissed by the trial court . The decree and judgment was confirmed in appeal by the apepllate court. The appellate court modified the decree in O.A. 219/1987 filed by the wife holding that she is not entitled to recovery of the gold ornaments. The contentions raised by the appellant in this appeal elaborately considered. The finding of fact entered by the trial court confirmed in appeal regarding the cruelty is not liable to be interefered with in this second appeal. It is true that remarriage during the pendency of earlier marriage without the consent oof the first wife is not a ground for dissolutnion of marriage under the provision of the dissolution of Muslim Marriage Act. But that contention has no signifacnce in this case because the findings entered by the court below is that the plaintiff wife has subjected to cruetlty and hence the husband which is one of the grounds for divorce under the dissolution of Muslim Marriage Act. The fact that her husband married on his return is also an important factor to be takemn note of by the courts below. The further fact that the perties are residing separately right from 1986 i.e for the last 22 years and that there is no possiblity for the parties coming together and to live together is very certain in the facts and circusmtances of this case. There is no point in asking her to live with her husbamnd who is living with his husband. The prayer for restitution of conjugal rights not rightsly turned down by the fact finding court. I find no reason to interfered with the findings of fact recorded by the courts below. On that basis the decree for dissoluntion of marriage passed. No substantial questiong of law arising for consideration . int his appeal. Therefore there is no merits in this appeal it is accordingy dismissed. There will be no order as to costs HARUN-UL-RASHID, JUDGE es