BY AD vs SRI.GEORGIE SIMON

The marriage between the parties was solemnised on 24/5/2004. There are no children born in their wedlock. According to the husband, he was working as a contractor under the KSEB, and the wife was employed at Delhi and thereafter, in a private hospital at Kozhikode. Even during the initial days of marriage, there was difference of opinion between the parties. The wife was not willing to adjust with the husband or his family Mat.A.No.1028 of 2014 :-3-: members. The wife insisted for a separate residence which the husband did not adhere to. Without considering the agony suffered by the husband, the wife used to go for employment and also to her parental home as she liked. The wife’s parents were supporting her cruelties. On 20/01/2006, she left the matrimonial home abandoning the husband. Thereafter, she did not come back to the matrimonial home. The husband filed a petition for restitution of conjugal rights, but she did not join with the husband. Thereafter, the husband filed a petition for divorce on 26.03.2009. The same was settled between the parties and they decided to live together. Thereafter, again on 25.09.2009, the wife left the matrimonial home and stayed away from the husband. Though several attempts were made, she was not ready and willing to come to the matrimonial home. Hence, the husband has filed a petition under Section 10(1)(ix) and (x) of the Divorce Act.

3. The wife contended that after marriage, she lived with the husband for a period of five months. The younger sister of the husband used to quarrel with her and therefore, the husband himself had instructed the wife to Mat.A.No.1028 of 2014 :-4-: go to Delhi for employment. On 02.02.2005, she returned to the matrimonial home. The marriage of the younger sister was conducted on 16.01.2006 and the husband demanded the wife to give the gold ornaments to the younger sister. Thereafter on 20.01.2006, the husband took the wife to her parental home and deserted her. Due to the intervention of mediators, she again came back to the house. The wife had suffered all sorts of cruelties for continuing the marital life with the husband. On

21.03.2011, the husband along with his parents and younger sister quarrelled with the wife and the wife was brought back to her parental home. There is no reason for dissolving the marriage. The wife prayed for the dismissal of the petition.

4. The Family Court, after elaborate consideration of the case, dismissed the petition filed by the husband. Challenging the above, the husband has come up with this appeal.

5. We have heard Sri.George Simon, the learned counsel for the appellant and Smt.R.Anjana, the learned counsel for the respondent. Mat.A.No.1028 of 2014 :-5-:

6. The marriage between the parties was solemnised on 24/05/2004. The divorce petition was filed under Section 10(1)(ix) and (x) of the Divorce Act. Section 10(1)(ix) and (x) reads as follows:- “10. Grounds for dissolution of marriage.— (1) Any marriage solemnized, whether before or after the commencement of the Indian Divorce (Amendment) Act, 2001 (51 of 2001), may, on a petition presented to the District Court either by the husband or the wife, be dissolved on the ground that since the solemnization of the marriage, the respondent— (i) xxxx xxxx xxxx (ii) xxxx xxxx xxxx (ix) has deserted the petitioner for at least two years immediately preceding the presentation of the petition; or (x) has treated the petitioner with such cruelty as to cause a reasonable apprehension in the mind of the petitioner that it would be harmful or injurious for the petitioner to live with the respondent.” It is for the husband to prove that the wife had deserted him for at least two years and that he was treated with cruelty.

7. On going through the evidence adduced and the contentions raised, no cruelty of any sort can be found. The case of the husband is that the wife was interested to stay away from the husband and she was not willing to Mat.A.No.1028 of 2014 :-6-: enjoy the company of the husband, whereas the wife had contended that she cannot live in the matrimonial home since the sister as well as the parents were quarrelling with her. During cross-examination, the wife had deposed that it is not possible for her to stay in the matrimonial home since the husband’s sister is residing in the very same house. It is true that the husband’s sister got married on 16/01/2006. During cross- examination, the husband had deposed as follows:- “.....ഞങള ഒരമ(cid:8)ച ജ(cid:11)വ(cid:8)ച.ആ ക(cid:15)ലത സഹ(cid:20)(cid:15)ദര(cid:8) വ(cid:11)ട(cid:8)ല(cid:8)ല(cid:15)യ(cid:8)രന.ആ അഹല(cid:15)(cid:20)(cid:29)(cid:30) വ(cid:11)ട(cid:8)ല സമയത ഒനമ(cid:8)ല(cid:15)യ(cid:8)രന.പ(cid:8)ന(cid:11)ട" സഹ(cid:20)(cid:15)ദര(cid:8) കഞമ(cid:15)യ(cid:8) ത(cid:8)ര(cid:8)ച വന. തടരന(cid:15)ണ" ഈ ഹകസ(cid:8)ന(cid:15)സദമ(cid:15)യ സ(cid:30)ഭവങള ഉണ(cid:15)യത".....” Due to the interference of the mediators, the dispute between the parties was settled and they were residing together. According to the wife, again she left on

21.03.2011 due to the quarrel between the husband, his parents and the younger sister. No evidence has been adduced by the husband to prove that the wife had deserted the husband without any reason. The evidence would suggest that it was the other way round, that the husband had deserted the wife. The ground of desertion is Mat.A.No.1028 of 2014 :-7-: not proved.

8. In order to satisfy the ingredients in Section 10(1)(x) of the Divorce Act, the husband has to prove cruelty on the part of the wife. On going through the evidence adduced by the husband, it is seen that he has failed to prove cruelty alleged on the part of the wife. Other than the husband and wife, nobody else was examined in order to prove the desertion or cruelty on the part of the wife as alleged by the husband.

9. The husband had also alleged that, while he was hospitalised, the wife did not care to nurse him. But during cross-examination the wife deposed that she was not informed about the hospitalisation of the husband and when she came to know about the accident, she rushed to the hospital, but the husband was discharged from there. Though in the proof affidavit, the husband had stated that the wife was informed about his accident and hospitalisation through his friends, no one was examined to prove the same. Other than the proof affidavit, there is no evidence adduced to substantiate the said allegation. Hence, the case of the husband that the wife Mat.A.No.1028 of 2014 :-8-: did not render any assistance or did not take care of him cannot be accepted.

10. The Family Court, after elaborate consideration of the issue, had found that the husband had failed to prove the cruelty alleged against the wife and dismissed the petition. We do not find any reason to interfere with the findings of the Family Court. Accordingly, the same is dismissed. Sd/- SATHISH NINAN JUDGE sd/- SHOBA ANNAMMA EAPEN JUDGE MBS/