IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI WEDNESDAY, THE 1ST JULY 2009 / 10TH ASHADHA 1931 Mat.Appeal.No. 482 of 2009() ---------------------------- OP.1066/2005 of FAMILY COURT,THRISSUR .................... PETITIONER(S): APPELLANT/RESPONDENT ----------------------------------- SINDHU, D/O.PUSHPAKARAN, EDAKUNNI HOUSE, P.O.KONNIKARA, MUKUNDAPURAM, THRISSUR. BY ADV. SRI.P.VIJAYA BHANU SRI.V.A.JOHNSON (VARIKKAPPALLIL) RESPONDENT(S): PETITIONER ------------------------- R.GURUVAYURAPPAN, S/O.RAMAN, SANTHI NIVAS, KIZHAKETHARA, KUNISSERI AMSOM, ALATHUR TALUK. THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 01/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT & M.C.HARIRANI, JJ. * * * * * * * * * * * * * Mat.Appeal No.482 of 2009 ---------------------------------------- Dated this the 1st day of July 2009 J U D G M E N T BASANT,J The appellant is the respondent in a pending petition for divorce under Section 13 of the Hindu Marriage Act before the Family Court, Thrissur. The petitioner's objection as to maintainability of the said O.P was dismissed by the Family Court by the impugned order. She assails that order in this appeal. 2. Marriage is admitted. That the spouses are residing separately is also conceded. The husband had earlier filed an application for divorce on the twin grounds of cruelty and mental unsoundness. That petition was dismissed. Appeal taken to this court did not also succeed. It is thereafter that the present petition for divorce on the ground of desertion has been filed. Though it is contended that there is only a vague statement that the petition is filed under Section 13 of the Hindu Marriage Act, a careful reading of the petition clearly shows that divorce is now claimed on the ground of desertion. Desertion was not a question that Mat.Appeal No.482/09 2 came up for consideration before the Family Court or this court in the earlier proceedings admittedly. According to the petitioner, there is no desertion and she is even now willing to resume co-habitation with the respondent. In these circumstances, she contended that the claim for divorce on the ground of desertion is not maintainable. 3. The learned Judge of the Family Court found that the nature of the claim for divorce made in the present proceedings is totally different from the nature of the claim made in the earlier proceedings and the earlier proceedings cannot operate as a bar against the entertaining of the present application for divorce on the ground of desertion. We find nothing erroneous or faulty in the impugned order as to justify interference in this appeal. As rightly found by the court below, the ground of desertion was not raised or considered in the previous proceedings for divorce. 4. We note from the averments in the petition that the spouses have been living separately for a period of about 12 years. The wife, the petitioner herein, offers to co-habit with the respondent. Her contention that she has not deserted him, does, of course, require close consideration in the facts and Mat.Appeal No.482/09 3 circumstances of this case. But however, we are unable to agree that the present petition for divorce on the ground of desertion can be held to be not maintainable. 5. This petition is accordingly dismissed. But we do take note of the offer of the wife to co-habit with the respondent/husband. The Family Court must take note of the fact that 12 precious years of their life has already elapsed and every endeavour must be made to attempt conciliation and dispose of the case on merits as expeditiously as possible, at any rate, within a period of eight months from the date on which a copy of this judgment is placed before the Family Court. Hand over copy of this order to the learned counsel for the appellant and compliance shall be reported to this court. (R.BASANT, JUDGE) (M.C.HARIRANI, JUDGE) jsr Mat.Appeal No.482/09 4 Mat.Appeal No.482/09 5 R.BASANT & M.C.HARIRANI, JJ. .No. of 200 ORDER/JUDGMENT 18/06/2009