IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN WEDNESDAY, THE 7TH SEPTEMBER 2011 / 16TH BHADRA 1933 Mat.Appeal.No. 542 of 2011() ----------------------------------------- OP.NO. 1251/2010 of FAMILY COURT,TRIVANDRUM .................... PETITIONER(S): APPELLANT -------------------------------------------- PADMANABHAN G.NAIR, S/O.P.GOPALAKRISHNAN NAIR, AGED 38 YEARS, G-3, CAUVERY APARTMENTS, CHURCH LANDING ROAD, KOCHI, PRESENTLY RESIDING AT VARADA, NANDAVANAM, THIRUVANANTHAPURAM BY SRI.N.NANDAKUMARA MENON, SENIOR ADVOCATE BY ADV. SRI.M.SREEKUMAR SRI.THOUFEEK AHAMED RESPONDENT(S): COUNTER PETITIONER -------------------------------------------------------------- SONAL DASH, D/O.AMERENDRA DASH, AGED 33 YEARS, A-47, UNIT-III, KHARAVELA NAGAR, BHUVANESWER, PRESENTLY RESIDING AT FLOT NO.4, II ST.LUKE'S ROAD, LONDON, W I I I DB. OFFICE ADDRESS: SONAL DASH, "BAIN N COMPANY", 83, PICCADILLY, WIJ8JA, LONDON. BY THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 07/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts Thottathil B.Radhakrishnan & K.Surendra Mohan, JJ. = = = = = = = = = = = = = = = = = = = = = = = = Mat.Appeal No.542 of 2011-A = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 7th day of September, 2011. Judgment Thottathil B.Radhakrishnan, J. 1.The husband is the appellant. He applied for a decree of divorce on the ground that the wife had deserted him. Though the wife was served with notice from the Family Court, she did not contest. The court below found that the appellant-husband has not proved desertion by the wife. Accordingly, the application for divorce was dismissed. Hence, this appeal by the husband. 2.Though notice was served on the respondent-wife from this Court, she remains ex parte. 3.The appellant and respondent were students in the Indian Institute of Foreign Trade during 1999- Mat.Appeal 542/11 -: 2 :- 2000. They married on 5.5.2001 in Bhuvaneswar. The appellant thereafter got employment in Tansania. The couple resided together in Tansania. Respondent went for post graduation in International Relations in the London School of Economics. This was in 2001. After that, the couple decided to move to Delhi. The appellant resigned his job in Tansania and got an employment in Delhi. The respondent also came down to Delhi and got a job there. They lived together from 2002 to 2005 in Gurshom in Haryana. In December, 2005, appellant went to Paris as he got admission for MBA in INSEAD Institute. The wife took up assignment in Sidney in Australia for an year. The appellant returned to Delhi in December, 2006. According to him, the respondent, without discussing the matter with him, went to Paris for some courses of study. With the object of cohabitation, the appellant took up employment in Rotterdam in April, 2007 and worked there till April, 2008. According to the appellant, the respondent declined to cohabit during that period Mat.Appeal 542/11 -: 3 :- even for holidays. With the passage of time, appellant is settled in Thiruvananthapuram and is working there. According to him, all efforts for reunion failed and no children were born in the wedlock. He pleads that the marital tie between them has irretrievably broken down and that there is no chance of reunion. 4.As already noticed, the respondent-wife remained ex parte in the proceedings before the court below. The appellant-husband filed an affidavit in lieu of chief examination. Ext.A1 marriage certificate was marked. Ext.A2 is the electoral identity card. The appellant-husband was not cross-examined. The court below also did not deem it appropriate to call him up to answer any particular question to get any clarification. However, the Family Court concluded that from the available materials, it is not established that the wife had deserted the husband. It was held that the materials do not establish prima facie that there was any animus deserendi on the part Mat.Appeal 542/11 -: 4 :- of the respondent-wife or to bring the cohabitation and matrimonial consortium to an end. It appears that the learned Judge also took the view that the so-called desertion happened on account of the action of the husband also. 5.Even here in this appeal, the respondent-wife remains ex parte. 6.The uncontroverted assertions in the petition for divorce include the clear averment that while the appellant went to Rotterdam after knowing that the wife went to Paris to undergo studies, she declined to cohabit with him even during holidays. Thereafter, according to the appellant, the wife moved to London and she is working there. If the court below was not aware of the distance between Delhi and Rotterdam and thought it that it was a decisive fact in relation to the issue in hand, in a case where there is no contra evidence, the court below could have called for such information from the appellant rather than Mat.Appeal 542/11 -: 5 :- thrust on him the penalty of dismissal of the petition which is even not contested by the wife. The averment of the appellant that from then onwards, there was no cohabitation and that all efforts for reunion failed, was supported by the legal evidence on record in the form of his proof affidavit. On the basis of such uncontroverted material, the inference of the court below that the husband ought to have sent a lawyer's notice or a letter inviting the wife to join him to have cohabitation is quite misplaced. It is not always necessary for the husband to get documentary evidence to support his plea of desertion by the wife. The process of court that was issued by the court below on the application for divorce was duly served. The wife did not contest. Even here, she does not contest. The question of establishing contumacious desertion for the purpose of granting a divorce in an uncontested proceedings cannot be treated so rigidly that the uncontroverted evidence of the husband had to be rejected even in the absence of a contest, Mat.Appeal 542/11 -: 6 :- particularly when the parties are highly educated, well oriented and had apparently joined in matrimony of their own decision. The case in hand is one where the appellant and respondent met as students in the Indian Institute of Foreign Trade, developed intimacy and decided to marry and the appellant, a domicile of State of Kerala and the respondent, then a domicile of Bhuvaneswar married in Bhuvaneswar. May be, the families had then blessed them at the ceremonies at Hotel Mayfair Lagoon in Bhuvaneswar. These factors necessarily indicate that the wife, who would not answer the allegation of contumacious desertion, clearly stands to admit such matrimonial misconduct by her. Therefore, on the facts of the case in hand, the appellant's case is proved by the legal evidence on record. In the result, this appeal is allowed vacating the impugned judgment and allowing OP.No.1251 of 2010 of the Family Court, Thiruvananthapuram and it is hereby declared that the marriage between Mat.Appeal 542/11 -: 7 :- the appellant and the respondent will stand dissolved from today by the force of this decree. Thottathil B.Radhakrishnan, Judge. K.Surendra Mohan, Judge. Sha/0509