The
Indian Penal Code, 1860 - Sections 498-A and 406 IPC read with Section 34 - The
very filing of the case on the premise that there is matrimonial cruelty
demanding dowry by itself may not be a reason to arrive at a conclusion that
the wife had committed cruelty.
Filing
complaint on the premise that there is matrimonial cruelty demanding dowry by
itself may not be a reason to arrive at a conclusion that the wife had
committed cruelty. That apart, the petitioner had not adduced any evidence to
prove that the wife behaved in a cruel manner. Therefore, the Family Court was
justified in denying divorce on the ground of cruelty.
Divorce - Ground of Desertion - there is no specific reason for the
wife to remain away from the company of the Husband. The wife was unable to
prove that she was living away from the matrimonial home on account of a
reasonable cause. When a lawyer's notice was issued, despite her offer in
evidence that she will come and reside with him, she did not send any reply.
This itself would indicate that all alone she had no specific reason to remain
away from the matrimonial home. She had no genuine interest to live with the
petitioner. Therefore, this is a clear case in which the respondent had
deserted the petitioner. That apart, after having separated in 1999, their
matrimonial life was irretrievably broken and there is no chance of reunion.
Under such circumstances, the divorce can be granted on the ground of
desertion.
Facts of the Case
The parties got married as per Hindu religious rites and ceremonies. According to the petitioner, she left the matrimonial home and did not come back. Later, she filed a complaint under Section 498-A IPC against the petitioner as well as against his parents and brother. The said case was acquitted. The learned Magistrate had clearly found that there is no matrimonial cruelty demanding any dowry. The very filing of the case, according to him, amounts to cruelty.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE
A.M.SHAFFIQUE & THE HONOURABLE MR. JUSTICE ASHOK MENON
FRIDAY
,THE 15TH DAY OF MARCH 2019 / 24TH PHALGUNA, 1940
Mat.Appeal.No.
158 of 2010 OP 545/2007 of FAMILY COURT, PALAKKAD
APPELLANT / PETITIONER:
VIJAYAN
BY
ADVS. SRI.SANTHEEP ANKARATH SRI.V.C.MADHAVANKUTTY
RESPONDENT / RESPONDENT:
RADHAMANI
BY
ADVS. SRI.MANSOOR.B.H. SRI.P.P.THAJUDEEN
THIS
MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 15.03.2019, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
J U D G M E N T
A.M. Shaffique,J.
This
appeal is filed by the petitioner in O.P.No.545/2007 on the files of the Family
Court, Palakkad by which the petition for divorce on the ground of cruelty and
desertion has been dismissed.
2. The
parties got married as per Hindu religious rites and ceremonies on 07.02.1999.
According to the petitioner, she left the matrimonial home on 26.09.1999 and
did not come back. Later, she filed a complaint under Section 498-A IPC against
the petitioner as well as against his parents and brother. The said case was
acquitted as per Ext.A1 judgment dated 30.03.2007 in C.C.No.705/2003. The
learned Magistrate had clearly found that there is no matrimonial cruelty demanding
any dowry. The very filing of the case, according to him, amounts to cruelty.
That apart, lawyer's notice was issued on 04.06.2007 calling upon her to come
back to the matrimonial home. Though she received the notice, there was no reply.
It is submitted that she is remaining away from the matrimonial home without
any reasonable cause, from 26.09.1999 onwards and hence he sought for divorce
on the ground of desertion as well as cruelty. The respondent denied the
allegations. According to her, the petitioner as well as his family members had
committed severe acts of cruelty demanding more dowry and that is the reason
why she had to remain away from the matrimonial home and she had not committed
any act of cruelty as alleged. She had filed a case under Sections 498-A and
406 IPC read with Section 34 IPC. That by itself does not indicate that she had
inflicted any cruelty on the respondent and no case of desertion has been made
out. Before the Family Court, the petitioner was examined as PW1. He placed
reliance on Exts.A1 to A4. The respondent was examined as RW1. The Family Court
dismissed the case on a finding that neither a case of cruelty nor a case of
desertion had been made out.
3. Ofcourse,
the cruelty alleged by the petitioner is regarding the filing of the complaint
on certain other aspects. Filing complaint on the premise that there is
matrimonial cruelty demanding dowry by itself may not be a reason to arrive at
a conclusion that the wife had committed cruelty. That apart, the petitioner
had not adduced any evidence to prove that the wife behaved in a cruel manner.
Therefore, the Family Court was justified in denying divorce on the ground of cruelty.
4. However,
it could be seen that the wife left the matrimonial home on 26.09.1999. While
evidence was taken before the Magistrate Court in C.C.No.705/2003 she had
clearly stated that she wants to live with her husband. But he was not willing
to take her. The learned Magistrate found that her version that she was ready
and willing to live with her husband itself indicates that there is no cruelty
on the part of the husband. When such a statement had been given by the wife
stating that she was always willing to live with her husband and she does not complain
about any matrimonial cruelty, what was the actual reason for her to remain
away from the matrimonial home ought to be considered. In this case, other than
stating that there was matrimonial cruelty by the husband and his relatives
which she does not project when she gave evidence before the learned
Magistrate, no other reason had been stated. In other words, there is no
specific reason for her to remain away from the company of the respondent. She
was unable to prove that she was living away from the matrimonial home on
account of a reasonable cause.
5. That
apart, when a lawyer's notice was issued as Ext.A2 after disposal of
C.C.No.705/2003, despite her offer in evidence that she will come and reside
with him, she did not send any reply. This itself would indicate that all alone
she had no specific reason to remain away from the matrimonial home. She had no
genuine interest to live with the petitioner. Therefore, we are of the view
that this is a clear case in which the respondent had deserted the petitioner.
6. That
apart, after having separated in 1999, their matrimonial life was irretrievably
broken and there is no chance of reunion. Under such circumstances, we are of
the view that the divorce can be granted on the ground of desertion.
Accordingly,
the Mat.Appeal is allowed. The judgment in O.P.No.545/2007 of the Family Court,
Palakkad, is set aside. The Original Petition is allowed. The marriage between
the petitioner and the respondent shall stand dissolved by a decree for
divorce. No costs.