IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR TUESDAY, THE 3RD FEBRUARY 2009 / 14TH MAGHA 1930 Mat.Appeal.No. 39 of 2004() --------------------------- OP.526/1999 of FAMILY COURT,THRISSUR .................... APPELLANT/PETITIONER IN THE OP ---------------------------------------------- MERRY, AGED 36, D/O. MATHAPPAN, KANNANGATH HOUSE, KURUVILLASSERY VILLAGE, KOTTAMURI DESOM, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. BY ADVS. SRI.FRANCO T.J. SRI.G.SREEKUMAR (CHELUR) RESPONDENT(S): RESPONDENT IN THE OP ----------------------------------- PAULOSE, AGED 39 YEARS, KAMPEYAN @ NELLISSERY, S/O. WARRUTHUTTY @ VARGHESE THIRUMAKULAM VILLAGE, NEAR KUZHOOR PALLY, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. ADV. SRI.P.K.ANIL THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 08/01/2009, THE COURT ON 03/02/2009 DELIVERED THE FOLLOWING: P.R. RAMAN & C.T. RAVIKUMAR, JJ. --------------------------------------------------------- MAT. APPEAL NO. 39 OF 2004 --------------------------------------------------------- Dated this the 3rd day of February, 2009 JUDGMENT Ravikumar J. The petitioner in O.P. No.526 of 1999 on the file of the Family Court, Thrissur is the appellant herein. The said Original Petition was filed under Section 32 of the Divorce Act, 1869 for a decree of restitution of conjugal rights. As per order dated 7.2.2004, the Family Court dismissed the Original Petition and this appeal is filed against the said order of dismissal. 2. Both the appellant and the respondent are Christians. Their marriage was solemnised on 18.1.1988 in accordance with the Christian customary rites. The case of the appellant/petitioner is that even before completion of one year of their marriage, the respondent began to ill treat her. According to the appellant, on 13.5.1989, she was taken to the parental home by her father and thereafter neither the respondent nor his relatives came to take her back. The further case of the appellant is that Mat. Appeal No.39 /2004 2 within one month thereafter, her father as also her kith and kin entreated him to resume cohabitation, but he was not prepared for the same. When their earnest efforts turned futile, they had even enquired about the possibility for a divorce. Further, it is contended that even the attempts made by the Priest of Kuzhur Church did not yield any effect and thereafter on 12.4.1999, she caused issuance of a registered notice. However, that too did not evoke any response. It was in the said circumstances that she approached the Family Court for restitution of conjugal rights. 3. The respondent contested the matter contending that the petition lacks bona fides and hence not maintainable. According to him, he never expressed any disinterest in the marital life with the appellant. He had also denied the contentions regarding disharmony between them and the attempts on the part of her father and also her relatives to set right their married life. According to the respondent, after the marriage, they resided together for about three months and even during such short stay, the appellant used to complain that the respondent did not have enough personality to be her husband. He had also denied the allegation that he was quarrelsome and, according to him, the respondent left his house and company on her own volition. His case is that she had never sought his Mat. Appeal No.39 /2004 3 consent for leaving the home and for living separately and that his request for resuming cohabitation was not responded favourably by herself. He contended that the Original Petition was filed belatedly and it has now become impossible to resume cohabitation. In short, his contention is that the appellant has withdrawn from his society without any sufficient reason and the intervention and efforts on the part of the mediators on his side did not yield any desired effect and the marital tie has broken down irretrievably. Based on the pleadings on either side, the following points were formulated for consideration by the Family Court: i. Whether the petitioner is entitled to get a decree for restitution of conjugal rights? ii. What is the order as to costs? The evidence in the case consists of the oral testimonies of PWs.1 to 4 and documents Exts.A1 to A5 on the side of the appellant herein. The respondent got himself examined as RW.1. 4. The marriage between the appellant and respondent was solemnised on 18.1.1988. Admittedly, on 13..5.1989 the appellant was taken to her paternal home from the matrimonial home by her father. Her Mat. Appeal No.39 /2004 4 case is that since then the respondent did not take her back home. It is a fact that by the time the said Original Petition was filed for restitution of conjugal rights, ten years have elapsed. The Family Court found that absolutely no reasonable or cogent reasons were given for the inordinate delay in filing the Original Petition. Though the appellant/petitioner contended that several attempts had been made for resuming cohabitation prior to the filing of the said Original Petition, she failed to prove the same. A registered notice was issued to the respondent for resumption of cohabitation only on 12.4.1999. Ext.A2 is the copy of the same. In this context it is to be noted that the case of the appellant is that the respondent was trying to contract another marriage and the same would make the delay on the part of the appellant more unreasonable. It is noteworthy that in the Ext.A2 as well, it was admitted that on 13.5.1989, it was her father who took her from the marital home. Admittedly, since 13.5.1989 there was no resumption of cohabitation. After appreciating the evidence adduced by both the sides, the Family Court found that the long delay in filing the petition for resumption of cohabitation and the factum that the appellant left the marital home on her own accord would mitigate against the plea for restitution of conjugal rights. The Court also observed that merely because the respondent had never moved the law, the same could not be taken to mean that he has been culpably neglecting the appellant/petitioner. Mat. Appeal No.39 /2004 5 Obviously, the appellant/petitioner did not assign any reasonable excuse as to why she had withdrawn from the society of the respondent and started living separately. It was after carefully considering the evidence on record that the Family Court declined to issue an order under Section 32 of the Divorce Act. 5. The admitted facts are that the marriage between the parties was solemnised on 18.1.1988 and that the appellant was taken from her matrimonial home to her parental home by her own father on 13.5.1989. It is needless to say that in a case for restitution of conjugal rights, the initial burden of proving reasonable excuse for withdrawing from the society of the other shall be on the person who has withdrawn from the society. In this case, going by the admitted facts, it is evident that it was the appellant herein who withdrew from the society of the respondent/husband on 13.5.1989. That apart, she failed to show any reasonable excuse for withdrawing from his society. As stated earlier, the petition for restitution of conjugal rights was filed by the appellant after a lapse of about ten years since her leaving the matrimonial home. Almost another ten years have elapsed since filing of the petition for restitution of conjugal rights. The stand of the respondent that the marital tie has broken down irretrievably would further nullify even the remote possibility for resuming Mat. Appeal No.39 /2004 6 cohabitation. As held by the Family Court, we are also not satisfied about the truthfulness of the statement made in the petition for restitution of conjugal rights filed by the appellant herein. 6. In view of the matter, we find no reason to disagree with the finding of the Family Court that the case on hand is not a fit case to be allowed under Section 32 of the Divorce Act. The conclusion arrived at by the Family Court and the reasons given therein do not suffer from any legal infirmity or illegality warranting any interference. In the circumstances, the Matrimonial Appeal is dismissed, however, without any order as to costs. (P.R. RAMAN) JUDGE (C.T. RAVIKUMAR) JUDGE sp/ Mat. Appeal No.39 /2004 7 P.R. RAMAN & C.T. RAVIKUMAR, JJ. MAT.APPEAL NO.39/2004 JUDGMENT 3rd February, 2009 Mat. Appeal No.39 /2004 8