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2019 Supreme(Ker) 956
IN THE HIGH COURT OF KERALA AT ERNAKULAM
K.HARILAL, C.S.DIAS, JJ.
Nobby M. George, S/o Georgekutty – Appellant
Versus
Jossy Joseph, D/o Joseph – Respondent
Mat.Appeal.No.166, 76 of 2017
Decided on : 12-12-2019
Advocate Appeared:
For the Appellant : SRI.A.K.ALEX, SRI.P.KURUVILLA JACOB
For the Respondent: SRI.P.C.HARIDAS
IMPORTANT POINTS
If a spouse abandons the other spouse in a state of temporary passion, for example, anger or disgust, without intending permanently the cease cohabitation, it will not amount to desertion. For the offence of desertion so far as the deserting spouse is concerned, two essential conditions must be there. (1) the factum of separation, and (2) the intention of bring cohabitation permanently to an end (animus deserndi). Similarly two elements are essential so far as the deserted spouse is concerned: (1) the absence of consent and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid
Headnote:
Transfer of Property Act - Sections 122 and 123 -The ingredients of desertion -The respondent had filed O.P.866/2011 before the Family Court seeking a decree for return of money and her gold ornaments that were misappropriated by the appellant- By Ext.B1 compromise, the appellant settled one half of his property in favour of the respondent by Ext.B2 settlement deed. The conveyance deed was a registered instrument signed by the appellant and attested by two witnesses, which was accepted by the respondent, fulfilling the ingredients under Sections 122 and 123 of the Transfer of Property Act.
Statement of facts:
The appellant is aggrieved by the common judgment passed by the Family Court, dismissing O.P. No.617/2014 and allowing O.P.No.1692/2014
Mat.Appeal No.76 of 2017::- The appellant had filed O.P. No.617/2014 seeking a decree of divorce to dissolve his marriage with the respondent on the ground that the respondent treated him with cruelty as provided under clause (x) of sub-section (1) of Section 10 of the Divorce Act, 1869.
Mat.Appeal No.166 of 2017::-The respondent filed O.P No.1692/2012 before the Family Court to set aside the cancellation deed executed by the appellant cancelling the settlement deed
• Whether the appellant was justified in cancelling Ext.B2 settlement deed pursuant to Ext.B1 compromise?
• Whether the Family Court was right in allowing O.P. No.1692/2012?
Finding of the court:
The appellant on the very same day the respondent left for the U.S.A. i.e. on 17.7.2012, purchased the stamp papers and executed Ext.B3 cancellation deed on 24.7.2012, for which he had no legal right and the same was in hostile breach of Ext.B1 compromise. The appellant has not pleaded or proved that there were any vitiating circumstances compelling him to executed Ext.B3. His only plea was that the respondent in violation of Ext.B1 compromise went away to U.S.A, which point we have already held against the appellant, and further find was not a valid ground to execute Ext.B3.
Result: Mat. Appeal Nos.76/2017 and 167/2017 are dismissed
JUDGMENT :
Dias, J.
The appellant in these appeals is the petitioner in O.P.617/2014 and the respondent in O.P. No.1692/2012 on the files of the Family Court, Kottayam at Ettumanoor. The respondent herein is the respondent in the former case and the petitioner in the latter case.
2. The appellant is aggrieved by the common judgment passed by the Family Court, dismissing O.P. No.617/2014 and allowing O.P.No.1692/2014. The parties are for the sake of convenience referred to as “appellant” and “respondent”, as per their status in the appeals.
Mat.Appeal No.76 of 2017
3. The appellant had filed O.P. No.617/2014 seeking a decree of divorce to dissolve his marriage with the respondent on the ground that the respondent treated him with cruelty as provided under clause (x) of sub-section (1) of Section 10 of the Divorce Act, 1869.
4. It was his case before the Family Court that he got married to the respondent on 9.8.2008 as per religious rites and customs of their community, and a daughter named Joanna was born in their wedlock on 24.10.2009.
5. According to the appellant, the couple began co-habitation at the appellant's parental home at Changanassery. The marital relationship, right from the inception, was miserable. The respondent did not permit the appellant to enquire about his family and prevented him from sending money for his parents and that she admonished his parents. The appellant had to mortgage his property for raising funds to conduct the marriage of his sister, which was vehemently objected by the respondent.
6. The appellant further averred that the respondent boycotted the betrothal and marriage functions of his sister, which caused mental agony to him. After the marriage of the appellant's sister, the respondent denied a conjugal relationship to him. She demanded him to clear the mortgage, which the appellant was unable to do, for which the respondent tortured him.
7. The appellant further pleaded that the child's baptism ceremony was conducted against his wishes. The respondent did not even show the courtesy to inform the appellant's parents or sister about the function. The respondent refused to visit the appellant's father while he was ailing. After the appellant's father expired, the respondent demanded a share in the appellant's paternal properties.
8. The appellant also pleaded that the respondent filed O.P. No.868/2011 before the Family Court, inter alia, seeking a decree for recovery of patrimony. A compromise was arrived at between the couple, whereby the appellant executed a gift deed in favour of the respondent, settling half his share in his properties in her favour. Thereafter, the couple resumed cohabitation on 10.7.2012.
9. The appellant further pleaded that the respondent under the guise of visiting her relatives, without the consent and knowledge of the appellant, left the matrimonial home on 17.7.2012. The appellant was constrained to file W.P (Crl)376/2012 before this Court. The respondent's relatives filed an affidavit in the writ petition, informing that the respondent had left for the U.S.A. with the child. The writ petition was closed.
10. The appellant then filed O.P. No.986/2012 before the Family Court seeking permanent custody of his daughter. The original petition was allowed granting the appellant's visitation rights. Despite the order, the respondent did not provide visitation rights. In the above compelling circumstances, the appellant was constrained to file O.P. No.617/2014, seeking a decree of divorce to dissolve his marriage with the respondent.
11. The respondent appeared in the case and filed a written objection. She refuted the allegations in the original petition. According to her, on 31.7.2004, on the date of betrothal, her father had entrusted an amount of Rs.3 lakh to the appellant's parents, as her share in her parental properties. The appellant's mother accepted the money and held it as a trustee. The respondent was also given 70 sovereigns of gold ornaments, which she adorned at the ti
