IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 6TH AUGUST 2008 / 15TH SRAVANA 1930 Mat.Appeal.No. 702 of 2007(E) ----------------------------- OP.32/2007 of FAMILY COURT,KASARAGOD .................... APPELLANT/RESPONDENT -------------------------------- MOOKAMBIKA, D/O.LATE SHAM BHAT, TEACHER BY PROFESSION, RESIDING AT KUNITKANA MALIGE HOUSE, KUNTIKANA, NEERCHAL VILLAGE, KASARAGOD TALUK & DISTRICT. BY ADVS. SRI.T.SETHUMADHAVAN SRI.PUSHPARAJAN KODOTH SRI.K.JAYESH MOHANKUMAR RESPONDENT: PETITIONER ----------------------- MURALIDHARA.M., S/O.KRISHNA BHAT, R/AT MANIYOOR HOUSE, P.O.URDOOR, ADOOR VILLAGE, KASARAGOD TALUK & DISTRICT. BY ADVS. SRI.K.SHRIHARI RAO FOR R1 SMT.N.SHOBHA FOR R1 THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 17/07/2008, THE COURT ON 6//8/2008 DELIVERED THE FOLLOWING: ORDER IN I.A. NO.2977 OF 2007 IN MAT. APPEAL NO. 72 OF 2007. DISMISSED 6.8.2008 Sd/-(KURIAN JOSEPH, JUDGE) Sd/- (HARUN-UL-RASHID, JUDGE) KURIAN JOSEPH & HARUN-UL-RASHID, JJ. ---------------------------------------------------------------- MAT. APPEAL NO.702 OF 2007 ---------------------------------------------------------------- Dated this the 6th day of August, 2008 JUDGMENT Harun-Ul-Rashid, J. The respondent in O.P. No.32 of 2007 on the file of the Family Court, Kasaragod is the appellant. The husband filed the above Original Petition for a decree of divorce on the ground of desertion. The Family Court allowed the Original Petition and hence, this appeal. The parties herein are referred to as the petitioner and respondent as in the Original Petition. 2. The brief facts necessary for the disposal of this appeal are as follows: The marriage between the petitioner and respondent was solemnised on 5.6.1996 as per the custom prevalent in the Hindu Community. The respondent/wife was a teacher at the time of marriage. It is the case of the petitioner/husband that since his wife was a teacher by profession, she preferred to say in her house. It is his further case that the Mat. Appeal No.702/2007 2 respondent always abused him and she even stopped her occasional visit to his house and ultimately withdrew from his company. It is also stated by the petitioner that he had on an earlier occasion filed O.P. No.42 of 1998 before the Sub Court, Kasaragod for divorce on the ground of cruelty and desertion and by judgment dated 28.2.2001, the petition was dismissed. The appeal filed by the petitioner as M.F.A. No.745 of 2001 also ended in dismissal. Since the parties are residing separately since 17.9.1998, their relationship has become totally strained and irreparably broken. 3. The respondent has resisted the petition for divorce. It is contended inter alia that the petition for divorce is not maintainable, that the petitioner/husband is permanently residing at Mangalore and that the allegation against her regarding desertion is absolutely incorrect. She has further contended that the petitioner/husband wanted her to resign her job and to stay with his parents at Kasaragod. According to her, since the petitioner is not residing with his parents, there is no bona fides in filing the petition for divorce on the ground of desertion. She has also pleaded that she is ready and willing to go and reside with her husband and continue the marital relationship. 4. The petitioner and another witness were examined as PWs.1 and Mat. Appeal No.702/2007 3 2 and Exts.A1 to A6 were marked on his side. The respondent/wife was examined as RW.1 and Exts.B1 to B6 were marked on her side. The Family Court observed that there is no dispute regarding the fact that the petitioner and respondent are separated from 17.9.1998 and that there is no physical or mental contact since then. The Family Court Judge also noted the fact that even in the earlier Original Petition, they had stated that they have been living separately since 17.9.1998. The Family Court rejected the argument of the respondent/wife that the principle of res judicata has to be applied to the present proceedings for the reason that the findings in the earlier proceedings were confined to the situation as on the date of that petition marked as Ext.B4 on 8.1.2.1998. Ext.B6 judgment in O.P.No.42 of 1998 and Ext.A3 judgment in M.F.A. No.745 of 2001would show that the case of the respondent/wife that she was residing with her husband till 17.9.1998 is acceptable and believable. The said finding consequently negatived the case of the husband as there was no proof regarding desertion for a period of two years as on the date of the petition. The Family Court also found that the evidence on record do not warrant a finding that the respondent/wife had the animus to put an end to the relationship once and for all. It was also noted by the Family Court that there was no change in the circumstances and that the parties remained separated for the last ten years sticking to their respective stand. The Mat. Appeal No.702/2007 4 Family Court correctly pointed out that the marriage is defacto dead and to try to resurrect it is a nonsensical effort. 5. The marital discord between the parties started when the respondent/wife refused to resign her job as a teacher as demanded by the petitioner/husband and his parents. The petitioner/husband fairly conceded that there was such a demand. It appears that every other allegation stemmed from the basic one mentioned above. According to the respondent/wife, the petitioner and his parents did not like her because she dared to disobey them by not resigning the job. The petitioner/husband showed no more interest in continuing the relationship and the respondent/wife made it clear that she wants to continue the relationship only for the reason that there is no scope for remarriage as per the custom and tradition in her community. In her reply notice, the respondent/wife pointed out that the petitioner had doubted her chastity in the earlier proceedings and that during conciliation proceedings in the earlier case, the petitioner and his father made it very clear that they did not want her back in their house. She also stated that she failed to understand why the petitioner insisted on her staying in his house at Maniyoor when the petitioner himself was employed at Mangalore. Mat. Appeal No.702/2007 5 6. Efforts made by the Family Court to bring the estranged couple together failed. Before this Court also we made several attempts for reconciliation. We have the impression that the petitioner/husband is not willing to take the respondent/wife back and resume co-habitation. The Family Court elaborately considered the relationship between the parties and the intention of both parties not to continue the relationship. The Family Court also considered the offer made by the respondent/wife that she is willing to reside with her husband at Mangalore and found that it is a camouflage to cover up her real intentions and that the sole reason for her willingness is that there is no scope for remarriage in her community. The Family Court finally held that the respondent/wife had repudiated her marital obligations consciously and with a view to put an end to the relationship. Thus, on an elaborate consideration of the evidence on record and on the basis of the legal principles narrated more elaborately in the impugned judgment, the Family Court concluded that the petitioner/husband is entitled to a decree of divorce on the ground of desertion. The reason for allowing the Original Petition is based on the evidence on record and settled principles of law on the point. We find that the view taken by the Family Court is just and proper and calls for no interference. Mat. Appeal No.702/2007 6 In the result, the Matrimonial Appeal fails and it is accordingly dismissed. There will be no order as to costs. (KURIAN JOSEPH, JUDGE) (HARUN-UL-RASHID, JUDGE) sp/ Mat. Appeal No.702/2007 7 KURIAN JOSEPH & HAURN-UL-RASHID, JJ. MAT. APPEALO.702/2007 JUDGMENT 6th August, 2008