Divorce decree on the grounds of desertion: Kerala High Court 2018

IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.HARILAL
&
THE HONOURABLE MRS. JUSTICE SHIRCY V.
FRIDAY, THE 13TH DAY OF APRIL 2018 / 23RD CHAITHRA, 1940
Mat.Appeal.No. 260 of 2006
AGAINST THE ORDER IN OP 895/2003 of FAMILY COURT,ERNAKULAM DATED
26-03-2005
APPELLANT/PETITIONER
UNNI, AGED 46
S/O. MADHAVAN, KALATHARA, VADAKKUMBHAGOM,, ELOOR,
PARAVUR.
BY ADVS.SRI.SUBAL J.PAUL
SMT.SHEEBA THOMAS
RESPONDENT/RESPONDENT::
JAYA, AGED 48 YEARS,
D/O. VASU, KALAPURACKAL, MOOTHAKUNNAM, PARAVUR.
R, BY ADV. SRI.V.M.KRISHNAKUMAR
R, BY ADV. SRI.S.SARAVANA BHAVAN
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 20.2.2018
THE COURT ON 13.4.2018 DELIVERED THE FOLLOWING:
“C.R”
K. HARILAL & SHIRCY V.,JJ.
==============================
Mat Appeal No. 260 of 2006
==============================
Dated this the 13th day of April, 2018
JUDGMENT
Shircy V., J.
Marriage is a sacrosanct relationship between a man
and a woman. But unfortunately if the relationship is
strained, one may some how or other find out reasons to
get rid of his or her partner. This case is a classic example
for the same. The husband who failed to get a decree for
divorce against his wife filed this appeal challenging the
order of the Family Court, Ernakulam dated 26.03.2005 in
O.P.895/2003.
2. The marriage of the appellant with the respondent
was solemnized as per the rites and ceremonies of Hindu
Marriage Act on 12.11.1995. A child was born to them in
the wedlock. But the respondent /wife had treated him with
MA 260/2006 2
cruelty and made his life miserable. She was not behaving
well with him right from the inception of the marriage. She
also deserted him without any reasonable cause. There were
constant fights between them and on 18.5.1998 she had
broken her thali chain and thrown towards him and left his
company. Therefore, he was constrained to prefer the
petition for divorce on the ground of cruelty and desertion,
is the case of the appellant.
3. On the other hand though the respondent had
admitted her marriage with the appellant/husband had
denied the alleged incident on 18.5.1998 as well the
allegations that she had deserted him and treated him with
cruelty. But she contended that in fact she was presented
with 20 sovereigns of gold ornaments and an amount of
Rs.20,000/- at the time of her marriage with the appellant.
He appropriated the same and harassed her for more
money. Her life with the appellant at her matrimonial home
MA 260/2006 3
was miserable because of the habit of the appellant picking
up quarrel with his brothers and so they were compelled to
shift their residence to a rented building. However, he
continued to ill treat her demanding an amount of
Rs.50,000/-but still they were residing together. During the
month of January 1998 she was taken along with the child
to her paternal house to attend the marriage of her brother.
But he abandoned them there and did not care to take
them back to his house. He failed to provide anything for
the maintenance of herself and her child. While so in the
year 1998 itself he left abroad without even intimating her.
Thereafter, she preferred a claim for maintenance as
M.C.No. 217/2003 and a petition as O.P.No.333/2003 for
recovery of money and value of her gold ornaments and she
was compelled to do so as she had no source of income.
Infuriated by the same imputing false allegations against
her he preferred the Original Petition for divorce.
MA 260/2006 4
4. Before the trial court both the divorce petition and
the petition for recovery of money were tried together and
disposed of by a common judgment. Before the court below,
the appellant was examined as PW1 and two more
witnesses were examined as PWs.2 and 3 and Ext.A1 was
marked on his side. The wife was examined as RW1.The
learned Family Court dismissed both the O.Ps. filed by the
parties. The appellant husband aggrieved by the dismissal of
his petition for divorce has preferred this appeal.
5. We have heard the learned counsel for the appellant
as well the learned counsel for the respondent elaborately
and perused the records.
6. Admittedly the marriage of the couple was
solemnized as per the custom of the Hindu Marriage Act on
12.11.1995. A child was born to them in their wedlock. The
pleadings reveal that their life as husband and wife was only
for a short while and from 1998 on wards they are living
MA 260/2006 5
separately. The main contention raised by the
appellant/husband against the respondent is that she had
treated him with cruelty and deserted him for no reason and
hence he was compelled to approach the court for divorce.
As the appellant has sought for divorce on the ground of
cruelty and desertion, it is apposite to quote the relevant
section for easy reference, which reads as follows:
“Section 13 (1)of the Hindu Marriage Act :
13. Divorce- (1) Any marriage solemnized, whether
before or after the commencement of the Act, may, on
a petition presented by either the husband or the wife,
be dissolved by a decree of divorce on the ground that
the other party
(i) xx xx xx
(ia) has, after the solemnization of the marriage,
treated the petitioner with cruelty; or
(ib) has deserted the petitioner for a continuous period
of not less than two years immediately preceding the
presentation of the petition.
(ii) xxx
(iii) xxx
(iv) xxx
MA 260/2006 6
(v) xxx
(vi) xxx
(vii) xxx
Explanation – In this sub-section, the expression
“desertion” means the desertion of the petitioner by the
other party to the marriage without reasonable cause
and without the consent or against the wish of such
party, and includes the wilful neglect of the petitioner
by the other party to the marriage, and its grammatical
variations and cognate expressions shall be construed
accordingly.”
7. It is pertinent to note that the main allegation
levelled against the wife is that she had deserted him for no
reason, against his wish since 18.5.1998 and he waited till
2003 for her return, but she did not return to him and
therefore he approached the court with the petition for
divorce. He asserted that on 18.5.1998 as usual she picked
up quarrel with him and broken her thali chain and thrown
towards him and left him and thereafter never returned to
MA 260/2006 7
him. But on 13.8.2003 she entered into his house and
created all sorts of nuisance and troubles and left the place
and she is residing away from him without any valid reason.
Therefore, he is entitled for a decree of divorce on the
ground of desertion under section 13(1)(ib) of the Act.
8. However, it has come out in evidence that he left
abroad on 20.5.1998 and worked there for a period of two
years and came back on 25.5.2000 and again returned to
Gulf and continued there till 2003. But it is significant that
he has no case that he had provided maintenance to the
respondent and their child during the said period or even
tried to contact her. As mentioned above he has no case
that he had taken any steps to bring back his wife so as to
continue with the marital life though he alleged that she left
him without any reason. But his definite case is that the
respondent has withdrawn from his company without
reasonable excuses for a continuous period of about five
MA 260/2006 8
years with the intention to bring the marital life to an end.
The respondent stoutly denied the allegation and contended
that though her marital life was not happy because of his illtreatment
towards her she had no intention or desire to put
an end to their marital life but was compelled to live at her
paternal house with her minor child without any source of
income for maintenance just because of his willful neglect.
She pleaded her pathetic condition and it is her contention
that on 16.1.1998 her husband had taken her to her
residence to attend the marriage function of her brother
with an understanding that they will return after three days,
but he failed to take them back and his attitude had caused
much pain and sufferings to her and so her relatives
approached him and requested to take her back. But he did
not care to do so and without giving any information he
left the country and proceeded to Gulf in the month of
March, 1998 and thereafter returned only in the year 2003.
MA 260/2006 9
He did not contact her since he left her at her residence
and failed to provide maintenance to her and their minor
child. When she came to know about his return from Gulf
from outside source she approached him and requested to
take her back to his residence but he did not care to do so.
In fact, he has totally neglected and deserted her and
practically shut the doors of her matrimonial home and
thereafter imputing false and baseless allegations preferred
the petition for divorce and hence he is not entitled for a
divorce, is the definite stand taken by her .
9. It is well settled that in order to get a decree for
divorce on the ground of desertion, the party who approach
the court alleging desertion is supposed to prove that the
opposite party willfully stayed away from him/her company
and abstained from cohabitation without any reason that
too with the intention to put an end to the marital
relationship. So the intention to put a full stop to the
MA 260/2006 10
marital relationship without any reasonable cause for a
continuous period of not less than two years since the date
of petition would surely tantamount to desertion. The mere
fact of staying away by one party from the company of the
other without any intention to put an end to the marital
relationship is not sufficient to infer that there is desertion.
So also there must be evidence to show that the opposite
party was having the intention or desire not to continue
with the relationship and had totally neglected or discarded
the party who approached the court and that the separation
was without any reasonable cause and also without the
consent. The word ‘desertion’ is explained in the Act as
desertion by the other party to the marriage without
reasonable cause, without the consent or against the wish of
such party, which includes willful neglect of the party whom
the allegation is levelled against. The mere fact of residing
separately from the company of the spouse for some
MA 260/2006 11
reason or other cannot be termed as desertion. The party
alleging desertion must able to prove that against his/her
consent /wish the spouse left the company that too for no
reason and he/she do not wish to cohabit and reside
together at any point of time in future and also totally
neglected or avoided the marital relationship, for ever.
10. In our society marriage is a highly treasured and
sacred relationship between a man and woman, living
together sharing happiness, sorrow, love, affection, care,
company, sex and everything in life. In such a relationship if
one withdrew on one fine morning without any reasonable
cause and continue to stay away for a continuous period
of at least two years definitely the opposite party is entitled
to seek for a divorce as the bond they shared was snapped
for ever. But the party approaching the court is burden with
the task to prove before the court that his/her spouse has
completely deserted or neglected the marital relationship
MA 260/2006 12
with the intention to put an end permanently without
reasonable cause and without consent. Desertion is
definitely a matter of inference to be drawn from the facts
and circumstances of each case.
11. It is borne out from the factual aspects that the
appellant left abroad in the month of March 1998 without
informing the respondent and returned only in the year
2003. There is no evidence to show that he paid any
amount as maintenance to his wife or his child during the
entire period he stayed in Gulf in connection with his
employment and has no case that he contacted her at
any time during the period of five years. But according to
the respondent when she came to know about his return
from Gulf from out side source in the year 2003 she
approached him with a request to take her back along with
his child. But there was no positive approach from his side
and he willfully neglected to provide even maintenance to
MA 260/2006 13
them. She pleaded that when she was fully convinced that
she was totally neglected by him, she filed a petition for
maintenance and the original petition for return of gold
ornaments and money.
12. It is pertinent to note that he has no case that he
had ever tried to contact her during the period of five years
and there is no evidence to show that he had provided
maintenance to her and her minor child during the long
period of about five years though there was a vague
attempt on his side to show that he offered money through
his brother while he was abroad. No such statement was
pleaded in the petition filed by him though he deposed so
when he was examined before the trial court. So also his
brother was not examined as a witness to substantiate that
part of his contention. It is pertinent to note that a careful
scrutiny of the materials placed on record would reveal that
the appellant had totally neglected to provide maintenance,
MA 260/2006 14
protection, love and care expected from the side of a
husband and without any valid reason he had approached
the court alleging desertion against his wife. Hence, it
could correctly be concluded that the court below has rightly
evaluated the materials on record and found that the
petitioner could not succeed in his attempt to establish that
the respondent has deserted him without any reasonable
cause, against his wish so as to entitle him to get a decree
for divorce on the ground of desertion.
13. In short, we find that the appellant failed to
prove that the respondent has deserted him without any
reasonable cause with the intention to bring cohabitation
permanently to an end coming within the meaning of
Section 13(1) (ib) of the Act so as to get a decree of
divorce in his favour. Rather, it is the appellant who has
deserted her without any reasonable cause.
14. Now the question to be looked into is whether
MA 260/2006 15
he is entitled to get a decree for divorce on the ground of
mental cruelty suffered because of the behaviour pattern
of the respondent towards him. On going through the
relevant provisions of law, it could be seen that cruelty has
not been defined in the Act. But it is well settled by judicial
pronouncement that cruelty can be either mental and
physical. But to prove mental cruelty the party alleging the
same has to convince the court that the circumstances
narrated made his life miserable, difficult, inconvenient and
impossible for him to continue with the marital life. It is
well settled that mental cruelty is a state of mind and that
the feeling of deep anguish, disappointment, frustration,
humiliating treatment, indifference, selfishness,
possessiveness etc of one spouse may cause discomfort and
difficulties and render the life miserable for the other
spouse. However, no straight jacket formula can be adopted
and no uniform standard can be laid for guidance to
MA 260/2006 16
determine mental cruelty in matrimonial matters and it all
differs from person to person, of varying degrees depending
upon various reasons. It is sure that minor quarrels,
arguments between spouses, difference of opinion etc are
only normal wear and tear in a married life when two
individuals from different families and mostly from different
backgrounds are living together. But when continuous
torture or harassment either physical or mental cross the
limits and makes the life of the spouse miserable and
horrible definitely he/she is entitled for a divorce on the
ground of cruelty.
15. According to him, the respondent was in the habit
of threatening him that she would commit suicide and on
two occasions she had consumed poison and attempted to
commit suicide and due to the timely intervention of his
neighbours, her life was saved. She was also in the habit of
picking up quarrel quite often with her in-laws and abuse
MA 260/2006 17
them in filthy language and because of her peculiar
character they had to shift their residence from the family
house to a rented building. He has also a case that she used
to pick up quarrel quite often with their neighbours also for
no reason and so there were complaints which caused
much mental agony and anguish to him and in fact his
status was lowered before them. Though he deposed so,
none of the neighbours who alleged to have made
complaints against the respondent about her misbehavior or
nuisance created due to her quarrelsome nature, had been
examined as a witness to prove his case. So also he could
not adduce convincing evidence to prove that she had
attempted to commit suicide by consuming poison and
somehow she was saved by the intervention of neighbors.
16. He has also asserted that she always used to keep
poison with her and threaten that she would commit
suicide. He has narrated an incident in which she had once
MA 260/2006 18
attempted to commit suicide by jumping into a river
nearby. PW2 was also examined by him in support of his
case that she was saved by him. Of course, PW2 had
deposed that one day he happened to see the respondent
jumping into a nearby river and he saved her from
drowning. But there is no pleading in his petition that it
was PW2 who saved her from drowning. If such an incident
had happened and PW2 had saved her from drowning,
definitely that would find a place in the pleadings and
of-course in his deposition before the Court. His mere
statement without pleading that PW2 saved her, itself would
show that it was a story cooked up by him to support or
strengthen his case and the examination of PW2 was only
an afterthought to substantiate his case that she was in the
habit of threatening him that she would commit suicide and
had even attempted for the same so as to make him panic
causing heavy mental torture.
MA 260/2006 19
17. The other incident narrated by the petitioner to
prove cruelty against the respondent is the allegation that
one day she quarelled with him for no reason and had
even thrown her thali chain towards him and left the place.
He has mentioned the date as 18.5.1998 in the petition filed
by him in the year 2003. As PW1 also he has mentioned the
date as 18.5.1998. But the respondent has a case that she
has gone to her own house along with the petitioner on
16.1.1998 in connection with the marriage of her brother
and thereafter she was never taken back by the petitioner to
his house and he left abroad in the month of March 1998
without informing her. Though he admitted that he left
abroad in the year 1998 he has not mentioned the exact
date when he proceeded for taking up an employment. Like
that he had admitted that he had gone to her house to
attend the marriage of his brother-in-law, which was in the
month of January and later gone abroad in the month of
MA 260/2006 20
May 1998 and returned only in the month of August 2003.
The failure to mention the exact date when he left abroad
itself would indicate that the story narrated by him to
prove cruelty is doubtful especially when the respondent
has a definite case that she was taken to her residence in
the month of January 1998 in connection with the marriage
of her brother. Her case that after the marriage of her
brother she was not taken back to his house appears to be
more probable as it was his burden to prove the alleged
incident by convincing evidence but, no reliable evidence
was adduced by him. All these matters as well his failure
to mention the exact date of his departure to Gulf country
to take up employment would throw cloud to the story
narrated by the petitioner .
18. The examination of the two witnesses procured by
him will not satisfy the requirements and they could not
disclose anything in the nature of mental harassment or
MA 260/2006 21
torture towards the petitioner. He is supposed to prove that
she made his life miserable because of her particular
behavior and conduct towards him. The allegations could
only be one levelled against her to get a decree of divorce
as it was admitted by him in clear terms that after he went
abroad in the month of May 1998 till 2003 he had not
attempted to contact her or to provide maintenance to her
or to their minor child. It is pertinent to note that he has
no case that he had furnished his address to her so as to
have any communication with him. In fact he compelled her
to remain in total darkness during the said period of five
years. She is a lady having no source of income. His
whereabouts were not made known to her during the five
years itself is sufficient to conclude that he failed in
performing his matrimonial duties and obligations. It
appears that he made frivolous and false allegations against
the respondent just to get rid of her from his life. The
MA 260/2006 22
record would also indicate that the efforts made by her
relatives to settle the dispute was not successful as they
were also precluded from having any contact with him while
he was abroad and it is clear that he left abroad without
any intimation to them also. It is also important to note that
the respondent has a case that when she came to know
about his return from Gulf she approached him with her
child with the desire to continue with the marital life. But he
did not permit her to enter into the newly constructed house
by him. His case that she created nuisance and trouble at
his residence on 13.8.2003 also not proved by him by
adducing acceptable evidence. The respondent has a case
that actually he procured the property for construction of
the house utilizing her money and gold ornaments. But
whatever be it Ext.A1 sale deed stands in his name and it
has come out in evidence that he was an employee in FACT
during the period when the property was acquired in his
MA 260/2006 23
name. So also, she could not adduce any independent
evidence to substantiate her case that the property was
purchased utilizing her money and ornaments. Still the
building which belongs to him has to be treated as her
matrimonial house and denial of entry to the house with
her minor child would come within the broad parameters of
mental cruelty on his side. It is clear that she has the desire
to continue with the marital life and that is evident from her
approach with the child after his return from abroad even
after a long period of his silence with her.
19. Therefore, we find that the learned Family Court
analyzed the evidence properly and arrived to the right
conclusion holding that the petitioner could not succeed in
his case that the respondent has willfully abstained from his
company and deserted him totally making no scope for
continuance of a marital life and entitling him for the relief
of dissolution of marriage on the ground of desertion. So
MA 260/2006 24
also there is no evidence to show that he was subjected to
mental cruelty as alleged by him so as to grant a decree for
divorce.
We find no merit to interfere. Dismissed.
K. HARILAL, JUDGE
smm. SHIRCY V., JUDGE