IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI WEDNESDAY, THE 17TH JUNE 2009 / 27TH JYAISHTA 1931 Mat.Appeal.No. 7 of 2008(A) --------------------------- OPDIV.668/2005 of FAMILY COURT, THIRUVALLA .................... APPELLANT : PETITIONER ------------------------- PHILIP THOMAS PALAMOOTTIL, AGED 43 YEARS, PALAMOOTTIL HOUSE, NELIMALA P.O., ERAVIPEROOR, PATHANAMTHITTA DISTRICT. BY ADV. SRI.V.PHILIP MATHEW RESPONDENT : RESPONDENT ------------------------- SHERRY SUSAN KOSHY, SABARMATHY, KARIPUZHA P.O., MAVELIKARA, ALAPPUZHA DISTRICT, PRESENTLY WORKING AT STATE BANK OF TRAVANCORE, KUMBANAD. ADV. SRI.MVS.NAMBOOTHIRY THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 17/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. ------------------------------------ Mat.Appeal No.7 of 2008 ------------------------------------- Dated this the 17th day of June, 2009 JUDGMENT BASANT, J. This appeal is preferred by the appellant/petitioner/husband against an order of the Family Court rejecting his prayers under the Indian Divorce Act for declaration of nullity of marriage and for dissolution on the ground of cruelty and desertion. 2. Admittedly, the parties are Christians. Admittedly the marriage took place in accordance with the Christian Religious rites on 13-1-1990. The appellant was a Lecturer in English at St.Thomas College, Kozhencherry whereas the respondent is and continues to be a Bank official in the State Bank of Travancore. Two children, both daughters aged 17 and 10 years now, have been born in the wedlock. Admittedly, the parties continue to reside together till June 2002. It is alleged that from June 2002, Mat.Appeal No.7 of 2008 2 the spouses, though they were sharing a common roof, were virtually leading independent and separate life. It is conceded that they started separate residence with effect from 11-11-2002. The petition for declaration of nullity of marriage and for dissolution on the ground of cruelty and desertion was filed on 9-11-2005. 3. The husband alleged that the wife was masculine in nature and had peculiar behaviour and habits. These were suppressed from him. According to him the marriage which was solemnized on 13-1-90 was hence liable to be declared to be null and void. This was suppressed from him and he was fraudulently induced to enter matrimony. Less said about the plea for declaration of nullity of marriage, the better. The appellant husband appears to have realised in 2005 about 15 years after the marriage and after the birth of two children that his wife is masculine and has peculiar habits and he sought the marriage to be declared null and void. We are not adverting to the claim for declaration of nullity in greater detail as there is virtually no challenge against the rejection of the claim for declaration of nullity. We have chosen to advert to that claim because we thought that we should take note of such background Mat.Appeal No.7 of 2008 3 of the case and the context in which the disputes have been raised. 4. According to the husband, the wife has been guilty of desertion from June 2002. There was allegedly constructive desertion. They both were sharing the same roof but occupying different rooms from June to November, 2002. From 11.11.2002, there was actual separate residence also. According to the husband, these amount to desertion from June 2002 or at least from November 2002. He further alleged that during the period that they co-habited, the wife was guilty of matrimonial cruelty. She disregarded him. She did not obey him. She used to pick up quarrels with him. She used to threaten him that she will commit suicide. These acts according to him amount to cruelty of the contumacious variety. 5. The wife had a totally different story to advance. According to her, the claim for declaration of nullity of marriage and the claim for dissolution have all sprung up very fancifully. The husband had developed love with a Junior Lecturer in the same college and the same department, i.e. English department. In his anxiety to start a life with such a young colleague, he and the said colleague abandoned their employment and started Mat.Appeal No.7 of 2008 4 absconding. The college had initiated proceedings against both of them on the ground of abandoning employment and immoral behaviour. There was no cruelty or desertion on her part. Allegations of cruelty and desertion are only the convenient excuses invented by the appellant after he started absconding and started residence with such a young colleague of his somewhere in Bangalore after abandoning their employment at their college in Kozhenchery. 6. The parties went to trial on these contentions. On the side of the claimant-husband, he examined himself as PW1. No other witnesses were examined. The wife examined herself as CPW1. She examined CPW2, the Enquiry Officer appointed by the Management of the College who had conducted a domestic enquiry and submitted Ext.X1 domestic enquiry report. Ext.A1 marriage certificate is the only other document proved in the case by the rival contestants. The court below came to the conclusion that the oral evidence of PW1 in the broad facts and circumstances of this case is totally insufficient to establish the claim for divorce on the ground of cruelty and desertion. The boot was on the other leg, it was seen by the court below. The undisputed circumstance that from 11.11.02 both the appellant Mat.Appeal No.7 of 2008 5 and his young colleague were not attending the college was reckoned as a broad circumstance knocking the bottom out of the theory advanced by the appellant/petitioner. The court below in these circumstances was not persuaded to accept the evidence of PW1 and turned down the prayer for divorce. 7. As stated earlier, in the absence of any serious challenge, we are not adverting in detail to the refusal of the prayer for declaration of nullity of marriage. 8. We have heard the arguments of the learned counsel for the appellant and the respondent. Very active efforts were made by this Court to explore the possibilities of a settlement. But unfortunately, the parties have not been able to settle all these disputes for whatever reason. It is one thing to say that the court must make endeavor to explore the possibility of harmonious re-union or at least respectable parting of ways, but totally different to explore the reasons as to why the parties could not reach a settlement. The fact remains that the parties could not reach a settlement. 9. The learned counsel for the appellant assails the impugned order on the following grounds: Mat.Appeal No.7 of 2008 6 1) The court below ought to have found that the wife was guilty of matrimonial cruelty of the objectionable variety and must have granted divorce on that ground. (2) The court below ought to have held that from June 2002 to November 2002 and thereafter at any rate there was constructive desertion on the part of the wife. Ground Nos.1 and 2 10. As both the grounds are to be considered essentially on the basis of the oral evidence of PW.1 and RW1, we are satisfied that both grounds can be considered together. We have no hesitation to agree with the learned counsel for the appellant that the mere fact that the parties were residing together under the same roof is not a reason to conclude that there was no desertion. There can be constructive desertion even when the parties reside under the same roof. Similarly, there can be desertion even when one party by his/her attitude, conduct and behaviour compels the other party not to continue to reside with such contumacious party. On these aspects, we do not think it necessary to advert to precedents cited. The Mat.Appeal No.7 of 2008 7 position of law appears to be too well settled and reference to any precedents is not warranted. 11. The first question is whether there has been any cruelty. Except the oral evidence of PW1, there is absolutely not a semblance of material to conclude that there was any cruelty on the part of the wife. The boot appears to be on the other foot as can be seen eminently from the fact that 15 years after marriage and after birth of 2 children, the husband comes up with the claim for declaration of nullity of marriage on the ground that her masculine nature and peculiar conduct and character were suppressed from him fraudulently at the time of marriage. The wife on the other hand has stated very clearly that till separate residence started on 11.11.2002 consequent to the conduct of the appellant absconding with his young colleague, there was never allegations of cruelty, misbehaviour or any contumacious conduct on her part. 12. The circumstance looms large, and virtually there is no serious dispute on that aspect, that after 11.11.2002, the appellant and his young colleague had started absconding from the college. They were absent without giving any information to Mat.Appeal No.7 of 2008 8 the college authorities. That circumstance, according to us, is crucial and the commencement of appreciation of evidence must start from that undisputed circumstance. 13. The convenient assertions made about cruelty on the part of RW1 do not impress us at all. We concur with the conclusion of the court below that those are all lame excuses invented conveniently by the husband after separate residence started on account of his own indiscretion on 11.11.2002. The self serving evidence of PW1 cannot in these circumstances be swallowed by any prudent mind to found a decree for divorce on such evidence. The claim for divorce on the ground of cruelty must in these circumstances fail and we concur with the court below on that aspect. 14. Coming to the ground of desertion, admittedly from 11.11.2002, the appellant was not available in the locality. Fanciful excuses are advanced by him to explain such absence from locality. Inference is irresistible for a prudent mind that the version of RW1 is probable, more reasonable and appealing. The husband, it appears to us, was guilty of desertion from Mat.Appeal No.7 of 2008 9 11.11.2002. Whatever may have been the alleged strain in the relationship from June, 2002 to November, 2002, it is evident that actual desertion started only from November, 2002 and the blame for such separate residence must be placed entirely at the doors of the appellant. 15. Nay, it is interesting to note that the wife even now hopes of better days and marital reunion. She offers to condone, forget, forgive and accept the appellant again. But it is the very clear assertion of the appellant even before us that he does not want to resume the marital relationship. It is such husband who claims divorce on the ground of desertion. We are not in the least impressed or persuaded to accept that separate residence of the spouses is attributable to any desertion on the part of the wife. The plea for divorce on the ground of desertion must also hence fail. 16. The learned counsel for the appellant submits that the fact that the marriage has broken down irretrievably stares at the parties and the court. The counsel contends that in such a case a lenient and reasonable view must be taken by the Court on the evidence Mat.Appeal No.7 of 2008 10 adduced in support of the plea for divorce raised by the husband. In a case where there is some acceptable evidence about the matrimonial cruelty, the fact that the marriage has broken down irretrievably may persuade the Court to accept a softer attitude in the appreciation of evidence of such cruelty acting as the cause for the irretrievable break down of marriage. But in a case where the Court is conscientiously satisfied that the separate residence was attributable to the fault of the husband and that the husband is guilty of contumacious cruel acts of running away with a girl friend of his and making unworthy allegations of masculinity etc. against his wife, we are not persuaded to agree that the alleged irretrievable break down of marriage can weigh with us as a reason to accept the plea for divorce advanced by the appellant. Irretrievable break down of marriage is not even today an acceptable ground for dissolution of marriage under the Indian Divorce Act. It is true that the Law Commission is contemplating introduction of such a ground to justify the plea for divorce but as yet that ground has not come into the statute book. This Court Mat.Appeal No.7 of 2008 11 cannot obviously create a new ground for divorce which is not there in the statute book. 17. More over we cannot lose sight of the fact that the wife does not admit that the marriage has irretrievably broken down. She is still hopeful. She is willing to condone, forget and forgive. She offers to resume the matrimonial relationship. It is the appellant who does not want to do the same obviously and evidently because he wants to continue the relationship with that other woman. We are unable to accept the contention that as a matter of fact there has been irretrievable break down of marriage. The petitioner, in her anxiety to protect the interests of her grown up daughters as also in the hope that some day the matrimonial discord can be corrected, still offers to condone, forget and forgive. It is the appellant who is unwilling to do the same. Such a party guilty of contumacious behaviour cannot obviously be permitted to take advantage of the alleged circumstance of alleged irretrievable break down of marriage. The plea for divorce on the last ground of irretrievable break down of marriage cannot be accepted nor can that alleged Mat.Appeal No.7 of 2008 12 circumstance of irretrievable break down of marriage deliver any advantage or benefit to the appellant in his claim for divorce on the ground of desertion and cruelty. 18. It will not be inapposite in this context to note that even after the appellant started absconding (or disappeared) from 11.11.2002, the respondent/wife was living with her mother in law and looking after her. Of course the husband does not admit any such relationship though the fact that he as well as the said woman had disappeared on 11.11.2002 is not specifically denied. 19. It follows that this Appeal is only to be dismissed. We do the same. We show our disapproval against the conduct of the appellant by directing the appellant to pay cost to the respondent. In this appeal the cost is fixed at Rs.10,000/-. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) rtr/-