IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 3RD SEPTEMBER 2010 / 12TH BHADRA 1932 Mat.Appeal.No. 136 of 2004() ---------------------------- OPDIV.453/2003 of FAMILY COURT, THIRUVALLA .................... PETITIONER(S): APPELLANT/PETITIONER ----------------------------------- SALEENAMMA OOMMAN, D/O. OOMMAN ABRAHAM, KAIYYALAKKAKATHU VEEDU, KOTTATHODE BHAGOM, THIRUVALLA P.O., ERUVALLIPRA MURI, KUTTAPPUZHA VILLAGE. BY ADV. SRI.SATHISH NINAN SRI.SANTHOSH MATHEW RESPONDENT(S): RESPONDENT ------------------------- K.I.JOSE @ DAVIDSON, S/O.ISSAC, KOLLAMATTOM VEEDU, NALUNNAKKAL P.O., NALUNNAKKAL KARA, VAKATHANAM VILLAGE, CHANGANASSERI TALUK, KOTTAYAM DISTRICT. ADV. SRI.C.C.PADMAKUMAR THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 03/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R. BASANT & M.L.JOSEPH FRANCIS JJ., - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mat. Appeal No.136 of 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 3rd day of September, 2010. JUDGMENT Basant J., The wife is the appellant. She claimed a decree for divorce against the respondent, her husband, under Section 10 of the Divorce Act. It is relevant that the subsection of section 10 under which the claim was made was not specified. The marriage took place on 27.11.1999 at the Vakathanam Salvation Army Church in accordance with the Christian religious rites. Ext.A1 is the Certificate of marriage. The spouses lived together as husband and wife thereafter. While the wife, a qualified Nurse was employed at Delhi earlier, after marriage she did not resume her employment. The spouses were not blessed with any children. It is the case of the claimant wife that she was the victim of baseless allegations and insult as a result of the failure to conceive. According to her, there Mat. A No.136 of 2004 2 was no defect in her but she had accepted the request of her husband, the respondent to undergo treatment. According to her, mental and physical cruelty were inflicted on her on account of her alleged inability to conceive. The spouses started seperate residence from 21.10.2002. All the efforts made by the wife and her relatives to ensure that the spouses resumed cohabitation met with cruel retorts/responses. No maintenance was paid. The wife was not enquired about at all. Baseless and cruel allegations were raised and physical and mental cruelty were heaped on her on account of her alleged inability to conveive. Demand was made in writing asserting that there may be resumption of cohabitation. The husband received the demand but did not cruelly respond to such request. It was in these circumstances that the claim for divorce was filed on 29.3.2003. 2. Notice was ordered to the respondent. The respondent did enter appearance. Counseling proved to be unsuccessful. The spouses did not resume cohabitation. The husband did not show Mat. A No.136 of 2004 3 any interest in resuming cohabitation. He did not file any counter statement. Thereafter, the husband was set ex-parte. The appellant/petitioner/wife was called upon to adduce evidence. She examined herself as PW1. Her father was examined as PW2. Respondent/ husband did not adduce any evidence. 3. The Court below took up the matter for consideration and proceeded to pass the impugned order. The court below reckoned the claim as one for divorce on the ground of dessertion under Section 10(ix) of the Divorce Act. In as much as, a period of 2 years had not elapsed from the admitted date of seperate residence, the court below took a view that the appellant is not entitled for a decree of divorce under Section 10. Accordingly, the court below proceeded to pass the impugned order. 4. The respondent was served in this appeal. He has entered appearance through counsel. Learned counsel for the respondent submits that the respondent is not interested in continuing the marital relationship. Appropriate orders may be passed. The Mat. A No.136 of 2004 4 respondent does not want to oppose the prayer for divorce in this appeal. It is further pointed out that as per the order in O.P. No. 1135 of 2003, the Family Court has directed the respondent/husband and his father to pay an amount to the appellant herein. Against that order, an appeal was taken before this court and that Appeal ; M.A. No. 341 of 2006 now stands dismissed. 5. Called upon to explain the nature of the challenge which the appellant wants to mount against the impugned order, the learned counsel for the appellant submits that the court below erred grossly and completely in not considering the claim for divorce in the proper perspective. Though the relevant subsection of Section 10 was not specified in the petition, it is very evident that the claim is founded on the alleged acts of cruelty which emanated from the respondent/ husband towards the appellant/ wife. The learned counsel for the appellant submits that notwithstanding the omission to specify the subsection of Section 10, it is very evident from the Mat. A No.136 of 2004 5 relevant averments in the petition, particularly paragraphs 12 and 31, that the claim for divorce was built on the plank of cruelty. In fact the claim was founded on sec. (x) of Section 10 of the Divorce Act. The fairly specific plea of the appellant wife was that she was the recipient of gross physical and mental cruelties on the ground that she did not conceive. This aspect was highlighted in the oral evidence tendered by the appellant as PW1. According to the learned counsel for the appellant, the court below misdirected itself on the basis of the unfortunate omission on the part of the appellant to specify the precise subsection of S.10 of the Divorce Act under which the claim was founded. Of course it was pointed out that the amounts/ornaments were mis-appropriated by the husband. It was also urged before the court below that notwithstanding the willingness of the wife to cohabit with the appellant, the husband was cruel and was not willing to resume cohabitation. It is on the basis of the assumption that the claim was founded on desertion and not cruelty, that the court below misdirected itself, contends the Mat. A No.136 of 2004 6 learned counsel for the appellant. 6. We have been taken through the relevant averments in the petition filed for divorce. We have particularly been taken through the relevant averments in paragraphs 12 and 31. We have been taken through the evidence tendered by PW1. We take note of the attitude of the respondent/ husband before the court below and before us. He has chosen not to appear before this Court or contest the matter. We are convinced that there is no collusion between the parties. The nature of pleadings and evidence as also the nature of response by the respondent clearly convey that cruelty under Section 10(x) of Divorce Act has been established by the evidence tendered by PW1. It is true that PW2, the father of PW1 did not tender any specific evidence about the physical and mental cruelty on the part of the respondent against the appellant. His evidence was relied on by the petitioner to show that amounts due were not returned and that despite the efforts of the wife, the husband cruelly did not respond to the request of resumption of cohabitation. Mat. A No.136 of 2004 7 Cruelty was thus broadly, though not specified, indicated by the evidence of PW2 also. 7. We are satisfied that the court below committed a serious error in not considering the claim for divorce on the ground of cruelty under Section 10(x). Significantly, the court erred in considering that the claim was only under Section 10(ix) of the Divorce Act. We are satisfied that the appellant /wife is entitled to decree for divorce on the ground of cruelty. We may repeat in this context that we have taken note of the stand taken by the respondent through his counsel in this appeal that the respondent has no objections against a decree for dissolution of marriage being granted in favour of the appellant. 8. In the result; (a) This appeal is allowed. (b) The impugned order is set aside. (c) The marriage between the appellant and the respondent solemnised as per Ext.A1 certificate of marriage on 27.11.1999 at Mat. A No.136 of 2004 8 Salvation Army Church at Vakathanam is hereby dissolved with effect from this date. (d) The parties are directed to suffer their respective costs throughout. R. BASANT, JUDGE M. L. JOSEPH FRANCIS, JUDGE dl/