Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE P.D.RAJAN TUESDAY,THE26H DAY OF NOVEMBER20135TH AGRAHAYANA, 1935 Mat.Appeal.No. 733 of 2013 () ------------------------------ AGAINST THE ORDER
IN OP2722011 of FAMILY COURT,THRISSUR DATED1408-2013 APPELLANT(S)/PETITIONER: ---------------------------------------------- GEORGE K.ITOOP AGED62YEARS KONDUKULANGARA HOUSE, PARAPUR P.O., CHALLAKKAL VILLAGE DESOM, THRISSUR TALUK, THRISSUR DISTRICT KERALA STATE. BY ADV. SMT.PRABHA R.MENON RESPONDENT(S)/PETITIONER: -------------------------------------------------- ALPHONSA, AGED62YEARS D/O.JOSEPH, ARIMBUR HOUSE, KANZHANY P.O. KANZHANY VILLAGE, DESOM, THRISSUR TALUK THRISSUR DISTRICT, KERALA STATE. THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON2611-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: acd ANTONY DOMINIC & P.D. RAJAN, JJ.
------------------------------------------- Mat. Appeal No.733 of 2013 ---------------------------------------------- Dated this the 26th day of November, 2013 JUDGMENT
ANTONY DOMINIC,J.
This appeal is filed against the judgment of the Family Court, Thrissur dismissing O.P.No.272/2011 filed by the appellant. His marriage with the respondent was on 6.5.1980. According to him, the marriage survived only for 25 days. He contended that the respondent has deserted him thereafter and that during the period when the marriage survived, she was cruel and rude to him. It is with this allegation he filed the O.P. seeking divorce.
2. On the other hand, the case of the respondent was that the appellant himself wanted to give an end of the marital life for the reason that he wanted to continue his illicit relationship with another lady. It was stated that it was only to legitimise that relationship that the petitioner filed the O.P. She also denied the allegation that the marriage was not Mat. Appeal No.733/13 2 consummated and that she was cruel and rude to him.
3. Before the Family Court, the evidence was tendered by examining themselves as PW1 and RW1. Exts.A1 and B1 to B3 were also marked by the parties. Finally, the Family Court dismissed the O.P.
4. Insofar as the desertion pleaded by the appellant is concerned, admittedly, the appellant is now residing with another lady by name Rosakutty in whom he has children also. Their marriage is also governed by Ext.B3 registered document. This probabilised the case of the respondent that he had an affair with that lady even prior to the marriage and that it was on account of that, the marriage did not survive.
5. In such circumstances, the Family Court was fully justified in concluding that the separate residence of the respondent from the appellant was not without justifiable cause. There was also no evidence that the respondent left the matrimonial house with an intention to put an end to their cohabitation.
6. As far as the cruelty pleaded by the appellant is concerned, while the appellant contended so, it was denied by the respondent. Therefore, as rightly found by the Family Mat. Appeal No.733/13 3 Court, it was an assertion against assertion and in such circumstances, the Court could not have acted upon solicitory evidence of the appellant.
7. The learned counsel for the appellant contended that the marital relationship was irretrievably broken down and that therefore, the party should be allowed a divorce. However, in the absence of such a ground available in the Indian Divorce Act, we are unable to accept that ground alone for granting divorce on that basis.
8. We are not satisfied that the Family Court has committed any illegality justifying interference of this Court. Therefore, the appeal will stand dismissed. ANTONY DOMINIC, JUDGE P.D. RAJAN, JUDGE. acd Mat. Appeal No.733/13 4 Mat. Appeal No.733/13 5