IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 13TH FEBRUARY 2008 / 24TH MAGHA 1929 Mat.Appeal.No. 58 of 2007() --------------------------- OP.42/2005 of FAMILY COURT, KASARAGOD .................... PETITIONER: APPELLANT: ---------------------- K. SREEDHARAN, 40 YEARS, S/O.LATE K. VELUNGAN, ASST.EXECUTIVE ENGINEER (CIVIL), 220 SUB STATION KSEB, POINACHI, P.O.MYLATTI, KASARAGOD TALUK, RESIDING AT POINACHI, BARE VILLAGE. BY ADVS. SRI.H.B.SHENOY SRI.B.ASHOK SHENOY SMT.LAKSHMI B.SHENOY SRI.ABU MATHEW SRI.SOBHAN GEORGE SRI.ANTONY FIGAREDO SRI.M.S.ABDUL RAHIM RESPONDENT/RESPONDENT: ------------- USHA. M., AGED 33 YEARS, DAUGHTER OF KUNHIRAMAN, RESIDING AT POORNAJALI NILAYAM, THATTACHER, P.O.NILESHWAR, WORKING AS SCHOOL TEACHER IN SWAMI NITHYANANDA ENGLISH MEDIUM SCHOOL, S.N.POLYTECHNIC COMPOUND, KANHANGAD, KASARAGOD DISTRICT. BY ADVS. SRI.M.THAMBAN SMT.T.SUDHAMANI THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 13/02/2008, ALONG WITH RPFC NO. 31 OF 2007 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: KURIAN JOSEPH & HARUN-UL-RASHID, JJ. ---------------------------------------------------------------- Mat. Appeal NO. 58 OF 2007 & R.P.(F.C.)NO. 31 OF 2007 ---------------------------------------------------------------- Dated this the 13th day of February, 2008 JUDGMENT Harun-Ul-Rashid, J. The above appeal is filed by the petitioner in O.P. No.42 of 2005 on the file of the Family Court, Kasaragod. By the impugned judgment, the Family Court found that the petitioner has not proved that his wife, the respondent wilfully had deserted him without sufficient reasons and, therefore held that he is not entitled to dissolution of marriage on the ground of desertion. The court below also noticed the fact that the respondent was always ready and willing to come back to her husband's consortium and that it was the petitioner who was refusing to co-habit with her for reasons which cannot hold good in law. R.P.(F.C.)No.31 OF 2007 arises from the order of the Family Court in M.C. No.185 of 2005. The wife and her daughter aged 3 years are the petitioners in M.C. No.185 of 2005. The Family Court by a separate order dated 27.9.2006 allowed the petition for maintenance and directed the respondent/husband to provide maintenance to the second petitioner at the rate of Rs.1,500/- per month. The first petitioner in M.C. No.185 of 2005 has filed this revision petition challenging rejection of her claim for maintenance. The parties to this Mat.Appeal No.58/2007 & R.P.(FC)No.31/07 2 appeal and revision are referred to as the petitioner and respondent as in the Original Petition. 2. The parties got married on 15.9.1996 as per the customary rites prevalent in the community. A child was born in the wedlock on 7.4.2002. The respondent/mother is in custody of the child. The petitioner/husband alleged that the respondent has withdrawn from the conjugal society of the petitioner and has adopted a hedonistic way of life. He further alleged that the respondent did not return to the conjugal society despite his best efforts to reconcile with her, that her attitude and behaviour towards the petitioner and members of his family caused injury, mental distress and anxiety to him and that she insulted and humiliated the petitioner in the presence of others. It is also averred that the respondent had voluntarily deserted the petitioner for a continuous period of two years and four months and that there is no possibility of a reunion. In the above circumstances, the petitioner seeks dissolution of marriage. 3. In the counter affidavit filed by the respondent/wife, she has ; denied the material averments. According to her, her life was made miserable by the conduct of the petitioner, that she was subjected to severe physical and mental torture and that the intention of the petitioner was to Mat.Appeal No.58/2007 & R.P.(FC)No.31/07 3 enrich himself by taking away her gold ornaments and to absolve from the liability to maintain her and the child. The respondent has also stated that she is ready to reside with the petitioner provided he stops his cruel treatment and joins her for a peaceful matrimonial life. 4. Before the court below, the petitioner and his sister were examined as PWs.1 and 2 and Ext.A1 was marked on the side of the petitioner. The respondent was examined as RW.1. No documents were marked on her side. During counselling, the petitioner was adamant in not taking his wife back though the respondent expressed her willingness to go along with him. On going through the evidence adduced by the petitioner, we find that he had not discharged his burden to prove that the respondent had wilfully deserted him without sufficient and cogent reasons. The petitioner had examined his sister as PW.2 to prove the behavioural characteristics of the respondent. The evidence adduced by the parties would clearly indicate that there is only incompatibility of temperaments. The court below noticed the fact that the only complaint of the petitioner is against the aggressive nature of his wife and her refusal to heed to his wishes. It is natural that when two people from different background having different outlook, temperaments and family status join together, it may lead to some incompatibility. But, incompatibility of Mat.Appeal No.58/2007 & R.P.(FC)No.31/07 4 temperaments is not a statutory ground for dissolution of marriage. The petitioner should prove that there was physical separation on the part of the respondent for no good reasons. 5. The evidence on record would go to show that the petitioner failed to establish that the respondent wilfully deserted him for the statutory period without sufficient reasons. The finding of the Family Court in this regard, therefore, requires no interference in appeal. Therefore, the appeal fails and it is accordingly dismissed. The revision petitioner in R.P.(F.C.)No.31 of 2007 submitted that for the time being, she is not pressing the revision petition claiming maintenance. Hence, the revision petition is also dismissed without prejudice to the right of the revision petitioner to approach the statutory forum in case any such need arises in future. There will be no order as to costs. (KURIAN JOSEPH, JUDGE) (HARUN-UL-RASHID, JUDGE) sp/ Mat.Appeal No.58/2007 & R.P.(FC)No.31/07 5 KURAIN JOSEPH & HAURN-UL-RASHID, JJ. L.A.A. .NO 8TH FEBRUARY, 2008