Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE AMIT RAWAL & THE HONOURABLE MRS. JUSTICE C.S. SUDHA TUESDAY, THE 31ST DAY OF OCTOBER 2023 / 9TH KARTHIKA, 1945 AGAINST THE JUDGMENT IN OPHMA 371/2017 OF FAMILY COURT, CHAVARA APPELLANT/RESPONDENT: NISHA AGED 35 YEARS D/O. SURENDRAN, SULAJA BHAVAN, IVERKALA KIZHAKKU P.O, KUNNATHOOR TALUK, KOLLAM DISTRICT, PIN - 690540 P.T.SHEEJISH PARVATHY S. KRISHNAN SREERAM P. HARIKIRAN G.RAMANATHAN RESPONDENT/PETITIONER: BIJU AGED 39 YEARS S/O. VIVEKANANDAN, BIJU BHAVANAM, IVERKALA KIZHAKKU P.O, KUNNATHOOR TALUK, KOLLAM DISTRICT, PIN - 690540 Sadchith P Kurup C.P.ANIL RAJ(K/872/2007) SIVA SURESH(K/2688/2022) RENI A. MATHEW(K/524/2022) THIS MATRIMONIAL APPEAL HAVING COME UP FOR HEARING ON 31.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
JUDGMENT
Amit Rawal, J.
1. The present matrimonial appeal is directed against the
judgment dated 23.10.2018 rendered in OP (HMA) No.371 of 2017
whereby the divorce sought by the husband on the ground of adultery, cruelty and desertion, an ex parte judgment and decree has been ordered in his favour on the ground of only adultery and cruelty. It is the said judgment, which is being sought to be set aside by virtue of the present appeal instead of availing the remedy of Order 9 Rule 13.
2. The marriage between the parties was solemnized on
11.12.2006 at Keechappalli Devi Temple, Iverkala as per the custom prevailing in their community. They were living together and out of the wedlock a son was born. However, the relationship between the two deteriorated owing suspicion in the mind of the husband regarding his wife. It was alleged that on 8.2.2016, wife went to her parental home without any reasonable cause along with her belongings. Appellant wife entered appearance, attended mediation and counselling thereafter did not turn up or contest the proceedings and proceeded as ex parte. In the ex parte evidence husband brought on record Ext.A1 marriage certificate. Unrebutted evidence led the Family court to form an opinion that it was a ground of adultery and cruelty but not desertion and granted the divorce, which was figment of imagination.
3. On the other hand, learned counsel appearing on behalf
of the respondent husband submitted that after the divorce, husband performed another marriage in the year 2020 and a child as per the birth certificate handed over to the court was born on 7.9.2020.
4. We have heard the learned counsel for the parties and appraised the paper book. It is imperative for asserter to implead adulterer with whom the alleged relationship had been alleged.
5. On perusal of the memo of parties, there is no such
compliance. Trial / Family Court remained oblivious of such provisions and thus could not have in the absence of direct or cogent evidence, even if it was an ex parte, granted the divorce on the ground of adultery. No criminal action has been actuated on behalf of the wife. The parties have agreed that they do not want to live together and sustain the marriage except for the ground of adultery. We are of the view that the judgment and decree of the trial court requires to be modified to the extent that it will be a dissolution of marriage on the ground of cruelty and desertion but
not on the ground of adultery. With the aforementioned modification, the judgment and decree is upheld. Mat. Appeal stands disposed of in the aforementioned manner. AMIT RAWAL sab C.S. SUDHA