Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI SATURDAY, THE5H DAY OF OCTOBER201313TH ASWINA, 1935 Mat.Appeal.No. 145 of 2013 (C) ------------------------------------------- [AGAINST THE ORDER
ORDER
IN O.P.NO. 654/2012 OF THE FAMILY COURT, MALAPPURAM DATED1701-2013] .............. APPELLANT/RESPONDENT: ---------------------------------------- SMITHA .K, D/O.K.PURUSHOTHAMAN, MIDLAND PARK RESIDENCE APARTMENT, OPPOSITE WOODBINE GARDEN RESTAURANT, MANJERI ROAD, KUNNUMMAL, MALAPPURAM DISTRICT, NOW WORKING AS ASSISTANT, PASSPORT OFFICE, KISHAKKETHALA, POST DOWN HILL, MALAPPURAM DISTRICT. BY ADVS.SRI.BABU S. NAIR, SRI.K.RAKESH. RESPONDENT/PETITIONER: ---------------------------------------- P.DEVADAS, S/O.LATE KRISHNAN, FLAT NO.5931, BUILATHIKULAM HOUSING COLONY, ERANHIPALAM P.O, KOZHIKODE DISTRICT-673 006. BY ADV. SRI.A.V.M.SALAHUDIN. THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON0510-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Prv. ANTONY DOMINIC & A.V.RAMAKRISHNA PILLAI, JJ = = = = = = = = = = = = = = = = = Mat. Appeal No.145 of 2013 = = = = = = = = = = = = = = = = = Dated this the 5th day of October, 2013 JUDGMENT
Antony Dominic, J.
This appeal is directed against the order of the Family Court, Malappuram, in O.P No.654 of 2012.
2. The appellant and the respondent were husband and wife and their marriage was registered under the Special Marriage Act on 3.8.2002. In the wedlock, a minor child by name Chameli was born. Both of them were divorced persons and were having children.
3. After marriage, they were living together with their respective children and in the wedlock, a female child was born. Subsequently, the relationship was strained and finally the appellant left the matrimonial home on 25.5.2008. It is thereafter, the respondent husband filed the original petition for divorce, urging grounds of cruelty and desertion as provided under Section 27(b) and (d) of the Special Marriage Act. MA145/13 -:2:- 4. Before the Family Court, the respondent and the appellant were examined as PW1 and RW1 respectively. Respondent produced Exts.A1 to A26 while appellant did not produce any documentary evidence. The Family Court under the impugned order accepted both the grounds pleaded by the respondent and allowed the original petition, and dissolved the marriage by a decree of divorce. It is this order, which is under challenge in this appeal.
5. We heard the learned counsel for the appellant and the learned counsel for the respondent. Both of them reiterated their respective contentions which were raised before the Family Court.
6. Having heard the rival submissions made at the Bar, we confess our inability to accept the contentions of the appellant. Insofar as the ground of cruelty is concerned, it is seen from the impugned order that the appellant had, without any justifiable reason, insisted the respondent to transfer a flat owned by him into her name. This contention of the respondent was proved by Exts.A10, A22 and A23. It was also proved before the Family Court that the appellant had made allegations against the respondent that he was an alcoholic and that he used to ill treat the appellant. MA145/13 -:3:- Insofar as the ill treatment alleged by the appellant is concerned, although she had made such an assertion, the appellant could not produce any evidence in support of this contention nor could she explain why she did not undergo any treatment for injuries she would have suffered. There was yet another allegation that the respondent had locked her and children in a room. Insofar as this allegation is concerned also, no evidence whatsoever was let in by her to substantiate this plea.
7. Insofar as the the plea that the respondent is an alcoholic is concerned, it is seen that when the appellant re-iterated this contention before this Court during the hearing of M.A Nos.327 & 406 of 2009, this Court passed order dated 23.3.2010 referring the respondent to Dr.O.N.Vasudevan. Accordingly Dr.Vasudevan had examined the respondent and submitted Ext.A20 report certifying that he was not addicted to alcohol. Although, the appellant argued before the Family Court that the aforesaid Doctor is a friend of the respondent and that, therefore, Ext.A20 is unreliable, the appellant had not raised such a plea before this Court when the appeals were heard and under such circumstances, the Family Court rightly MA145/13 -:4:- refused to accept this contention also.
8. The Family Court also found that in Ext.A6, the counter statement filed by the appellant in M.A No.327 of 2009, the appellant had raised allegation that the respondent is having extramarital relationship with his brother's wife.
9. Such unfounded and unproved allegations raised by the appellant, as rightly found by the Family Court, itself amounted to mental cruelty. Therefore, the findings of the Family Court that the aforesaid conduct of the appellant amounted to cruelty as provided under Section 27 of the Special Marriage Act, is fully consistent with the evidence available on record. We see no error in the aforesaid conclusion of the Family Court.
10. Insofar as the desertion alleged by the respondent is concerned, respondent's case was that from 25.5.2008 without any justifiable reason, the appellant had deserted him. The fact that she left the matrimonial home as alleged by the respondent was admitted by the appellant when she was examined as RW1. She also confessed that she was not agreeable to resume co-habitation with the respondent. The desertion was also confirmed by the MA145/13 -:5:- appellant Ext.A13 agreement executed by her and the respondent, to which document, her brother himself is also a witness. She could not offer any justifiable reason for her conduct. Under such circumstances, the Family Court was fully justified in concluding that her conduct amounts to desertion as provided in Section 27.
11. Thus, this is a case where both the grounds, viz., cruelty and desertion were established. In such circumstances, we do not see any reason to interfere with the order impugned. In the result, the appeal is dismissed. sd/- ANTONY DOMINIC JUDGE sd/- A.V.RAMAKRISHNA PILLAI JUDGE krj /True Copy/ P.A to Judge