IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS WEDNESDAY, THE 3RD FEBRUARY 2010 / 14TH MAGHA 1931 Mat.Appeal.No. 763 of 2008(G) ---------------------------- AGAINST THE ORDER DATED 15/05/2008 IN & 180/2007 IN OP.719/2006 of FAMILY COURT, KOTTAYAM .................... PETITIONER: APPELLANT ------------------------- P.G. SUDHESH @ BABU, S/O. GOPALAN NAIR, PADINJAREDATHU HOUSE, KAVUMBHAGOM P.O. CHERUVALLY VILLAGE, KANJIRAPPALLY TALUK, KOTTAYAM DISTRICT. BY ADV. SRI.T.M.ABDUL LATHEEF SRI. MIJI JOHN MUHAMMED HASHIM A A FEROS KHAN RESPONDENT: RESPONDENT ------------------------- V.N.DEEPA, D/O. K.K.NARAYANAN NAIR, VALLACHIRA HOUSE, KADAYINICKADU P.O. CHANGANACHERRY TALUK, KOTTAYAM DISTRICT. BY ADV. SRI.KKM.SHERIF FOR R SRI.LAL K.JOSEPH FOR R SRI.A.A.ZIYAD RAHMAN FOR R SMT.SHEENA SAMUEL FOR R THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 03/02/2010, ALONG WITH MA NO.767 OF 2008 AND MA NO. 840 OF 2009. THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M. JOSEPH & M.L.JOSEPH FRANCIS JJ., - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mat. Appeal Nos: 763, 767 of 2008 & 840 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 3rd day of February, 2010. JUDGMENT Joseph Francis J., Mat. Appeal No. 763 of 2008 is filed by the petitioner husband in O.P. No. 719 of 2006 on the file of Family Court, Kottayam. Respondent herein is the wife in that O.P., which was filed by the petitioner husband for decree of divorce under Section 13 of Hindu Marriage Act. Mat. Appeal No. 767 of 2008 is filed by the respondent husband and Mat. Appeal No. 840 of 2008 is filed by the petitioner wife in O.P. No. 180 of 2007 on the file of Family Court, Kottayam, which was filed by the petitioner wife for return of money and gold ornaments alleged to have been given at the time of marriage. 2. Appellant's case in his divorce petition was that marriage took place on 10.2.2000 as per the customary of Hindu rites. In the wedlock no issues were born and the respondent left the company of the Mat.Appeal Nos: 763, 767/2008 & 840/2009 :2: appellant within two weeks of the marriage. She was cruelly behaving towards the appellant, disobeying the appellant and she wanted always to live in her paternal house. She did not even care to nurse his bedridden parents. She was keeping her entire gold ornaments in her custody. She was infertile and was undergoing treatment for it. She was suffering from mental illness and was undergoing treatment and she had withdrawn of cohabitation. So the appellant is entitled to get a decree of divorce on the ground of cruelty and desertion. 3. In the objection filed by the respondent she had stated that 12 ¼ soverigns of gold ornaments was misappropriated by the appellant. The appellant was not a responsible husband and that she was not suffering any mental illness. She was not infertile. She further stated that she was admitted in the mental hospital due to the cruel behaviour of the appellant. 4. However in O.P. No. 180 of 2007 petition for return of money and gold ornaments, her case was that 35 soverigns of gold ornaments were given at the time of marriage, out of which 12 ¼ soverigns of gold ornaments was sold by the appellant herein and the appellant was also Mat.Appeal Nos: 763, 767/2008 & 840/2009 :3: undergoing treatment for infertility was not having sufficient fund to meet the treatment and accordingly her father had spent Rupees 3 lakhs for treatment. It was further stated that an amount Rs.10,000/- was given by her father to the appellant and the said amount and the amount of Rupees 3 lakhs spent for treatment should be returned. 5. Both the petitions were tried together and on the side of the appellant Exts.A-1 to A-4 were marked and on the side of the respondent Exts.B-1 to B-4 were marked Ext.X-1 is the court exhibit. On the side of the appellant Pws.1 to 3 were examined and on the side of the respondent Rw1 to Rw3 were examined. 6. The learned Family Court on considering the evidence found that the petitioner husband in O.P. No. 719 of 2006 failed to prove the allegation of incurable illness of the wife and cruelty and desertion alleged as ground for divorce and that O.P. was dismissed. O.P. No. 180 of 2007 was allowed in part and the petitioner wife was given a decree to realise Rs.10,000/- with 9% interest from the date of petition (20.2.2007) and 12 ¼ soverigns of gold ornaments or its present Mat.Appeal Nos: 763, 767/2008 & 840/2009 :4: approximate value of Rs.1,00,000/- with 9% interest from the date of decree from the respondent husband. Against that judgment in O.P. No. 719 of 2006, the petitioner husband filed Mat. Appeal No. 763 of 2008. Against the judgment in O.P. No. 180 of 2007, the petitioner wife filed Mat. Appeal No. 840 of 2009 and the respondent husband filed Mat. Appeal No. 767 of 2008. 7. During the pendency of above appeals, as per the order by this court dated 13.11.2009, the matter was referred to mediation. The mediator as per report dated 15.12.2009 submitted that the mediation was successful and a settlement between the parties was entered into on 15.12.2009 and the terms of settlement between the parties signed by both parties and their counsel was placed before this court for consideration. The terms of settlement are as follows: (i). Both the parties have agreed that they were living separate till date for the last 3 and half years and there is no possibility of continuing with the marital relationship. Hence both have agreed their no objection in granting a decree for divorce. (ii). Regarding the property claim also the matter is settled Mat.Appeal Nos: 763, 767/2008 & 840/2009 :5: between the parties and the appellant in Mat. Appeal No. 767 of 2008 has agreed to pay a sum of rupees two lakh twenty five thousand to the respondent Smt. V N Deepa who is the appellant in Mat. Appeal No. 840/2009 within 30 days from to day. (iii). The said amount of two lakh twenty five thousand includes all her claim relating to the property right, maintenance which is covered by the order in M.C. No. 49/07 of Family Court, Ettumanoor, future maintenance expenses treatment expenses incurred by her, all costs incurred and all such claims specifically mentioned in the proceedings between the parties. (iv). However, the appellant in Mat. Appeal 767/ 2008 had deposited an amount of rupees twenty thousand based on the interim order passed by this Hon'ble High Court and the amount of rupees two lakh twenty five thousand fixed above includes the said deposit amount and the balance amount of rupees two lakh five thousand (Rs.2,05,000/-) shall be paid to her within a period of 30 days either in cash or bank draft or pay order etc. and any failure enables her to realise the same with 15% interest from today. (v). The respondent further agreed to withdraw all her contentions raised in O.P. No.719/2006 and O.P. No. Mat.Appeal Nos: 763, 767/2008 & 840/2009 :6: 180/2007 of the Family Court at Ettumanoor and also in M.C. 49/07 and accordingly agrees to grant a decree for divorce in respect of the marriage between the appellant P.G.Sudesh @ Babu and the respondent V.N. Deepa which took place on 10.2.2000. (vi) Taking into account the lump sum of payment of Rs.2,25,000/- respondent agrees to withdraw the execution proceedings in M.C. No.49/07 of Family Court, Ettumanoor. (vii).All the parties suffer their respective cost. 8. Learned counsel for both the parties submit that as per settlement, the husband has paid the entire amount and the wife is entitled to get Rs.20,000/- deposited by the husband before the Family Court as per the Interim order passed by this court. 9. In view of the above terms Mat. Appeal No. 767 of 2008 and 840 of 2009 can be closed and the judgment in O.P. No. 180 of 2007 on the file of Family Court Kottayam can be set aside and the petitioner wife can be allowed to withdraw Rs.20,000/- deposited by the husband before the Family court. 10. As regards Mat. Appeal No. 763 of 2008 is concerned, the Mat.Appeal Nos: 763, 767/2008 & 840/2009 :7: learned counsel for both sides submitted that there is evidence in O.P. No. 719 of 2006 showing that the respondent wife deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition without any reasonable cause, which is a ground for divorce under Section 13(1)(i b) of the Hindu marriage Act and therefore a decree of divorce can be passed in O.P. No. 719 of 2006. 11. In the petition in O.P. No. 719 of 2006, it is alleged by the husband that the respondent wife in 2004 on a Thiruvonam day left his company and went to her house without any reasonable cause and without his consent and she had deserted him and living seperately for more than two years. This fact is deposed by the petitioner husband when he was examined as PW1. When the respondent wife was examined as RW1 she has admitted that she had left the company of husband, but her submission is that it was because of the cruel behaviour of the husband she left his company. But there is no reliable evidence to show that the husband committed any cruelty towards the wife. PW2 is a neighbor of the petitioner husband. PW2 deposed that respondent Mat.Appeal Nos: 763, 767/2008 & 840/2009 :8: wife is living in her parental house without any sufficient cause and that the respondent wife behaved cruelly towards petitioner husband. Respondent wife has not given any plausible reason for living seperate from the petitioner husband. The evidence of PW1 and PW2 would clearly show that the respondent wife deserted the petitioner husband for a continued period of not less than two years immediately preceding presentation of the petition without any reasonable cause and without the consent of the petitioner husband. Therefore, we are of the view that the petitioner husband is entitled to get a decree of divorce in O.P. No. 719 of 2006. Accordingly the Mat.Appeal No. 763 of 2008 is allowed. The judgment in O.P. No. 719 of 2006 on the file of Family court Kottayam dismissing the O.P. is set aside and that O.P. is allowed. The marriage between the petitioner husband and respondent wife is dissolved by a decree of divorce with effect from today. Mat. Appeal No. 767 of 2008 and 840 of 2009 are closed in view of the compromise and the judgment and decree in O.P. 180 of 2007 on the file of Family Court Kottayam is set aside and that O.P. is dismissed without any costs in Mat.Appeal Nos: 763, 767/2008 & 840/2009 :9: view of the compromise. The respondent wife is allowed to realise Rs.20,000/- deposited by the husband before the Family court, Kottayam as per the interim order of this court. Parties are directed to suffer their respective costs in this appeals. K.M. JOSEPH, JUDGE M. L. JOSEPH FRANCIS, JUDGE. dl/