Liji Achankunju Ommen vs Prabhu K. Rajan

Basant, J.—The Appellant/wife has come to this Court with this appeal claiming to be aggrieved by the impugned order passed by the Family court rejecting her claim for divorce under Sections 10(1) (ix) & 10 (1)(x) of the Divorce Act.

The averments in the petition filed by the Appellant before the court below shows that the marriage between her and the Respondent had taken place in accordance with the religious rites of the Christian community on 31/12/1998 at Marthoma Syrian Church, Umayattukara. They lived together as husband and wife. Prior to their marriage, they were allegedly in love and this affair prior to the marriage had led to the marriage of the spouses on 31/12/1998. They resided together till 15/4/2005. According to the Appellant/Petitioner, during this period, the Respondent/husband was guilty of matrimonial cruelty of the contumacious variety. From 15/4/2005, there was wanton neglect and desertion on the part of the Respondent. The Respondent did not enquire about the Petitioner nor visit her after 15/4/2005. A male child was born in the wedlock on 4/10/2001. It is, in these circumstances, that the Appellant went before the Family court with O.P.(Div) No. 537/2009 claiming divorce under Sections 10(1)(ix) and 10(1)(x) of the Divorce Act on the ground of matrimonial cruelty and desertion.

The Respondent/husband was served. He appeared before the court below through counsel. No counter statement was filed. The Appellant/Petitioner tendered oral evidence as PW1. Ext.A1 marriage certificate issued by the church was also produced as a document.

The court below considered the unchallenged evidence tendered by the Appellant as PW1. The learned Judge proceeded to hold that the evidence tendered is insufficient to prove matrimonial cruelty of the contumacious variety contemplated under Sections 10(1)(ix) and 10(1)(x) of the Divorce Act. The court further came to the conclusion that the MAT APPEAL 120/2010 -3-allegation of desertion and neglect has not been satisfactorily established.

The Appellant has come before this Court aggrieved by the impugned order. The learned Counsel for the Appellant submits that the court below had taken an unreasonable and hyper technical stand. Sufficient materials to establish the ground for divorce under Sections 10(1)(ix) and 10(1)(x) of the Divorce Act had been placed before court and the unchallenged testimony of PW1 amply establishes the ground for divorce, it is contended.

Before this Court, by way of abundant caution, the Appellant/Petitioner has filed an application under Order XLI Rule 27 of the CPC to receive additional evidence. That application, I.A. No. 2123/2010 is allowed and the additional affidavit filed by the Appellant is received in evidence. The same shall be read in continuation of her unchallenged evidence before the court below as PW1.

The Respondent, who was served before the court below and had chosen not to resist the prayer for divorce and who had remained ex parte, was served in this appeal also. But the Respondent/husband has not chosen to appear before this Court in this appeal also.

The short question that arises for consideration is whether the unchallenged evidence tendered as PW1 before the court below supplemented by the additional affidavit filed by her before this Court is sufficient to establish matrimonial cruelty and desertion of the contumacious variety contemplated under Sections 10(1)(x) and 10(1)(ix) of the Divorce Act as to justify an order of dissolution of marriage

We have gone through the evidence tendered. The evidence clearly indicates that prior to 15/4/2005, there was matrimonial cruelty which was sufficient to raise a reasonable apprehension in the mind of the petitioning spouse/wife that it would be harmful and injurious for her to continue to live with the Respondent. We are satisfied further that the evidence clearly establishes that after 15/4/2005 till the date of filing of the petition for divorce in 2009, there has been actionable neglect and desertion on the part of the Respondent towards the Appellant.

The above findings lead us to the conclusion that the Appellant/Petitioner is eminently entitled a decree for dissolution of marriage under Sections 10(1)(ix) and 10(1)(x) of the Divorce Act.

In the result,

a) this appeal is allowed.

b) The impugned order is set aside.

c) O.P.(Div) No. 537/2009 is allowed and the marriage between the Appellant and the Respondent solemnised in accordance with the customary rites of the Christian community on 31/12/1998 at Marthoma Syrian Church, Umayattukara is hereby dissolved.