IMPORTANT POINTS
(1) Divorce—If wife has a reason to reside separately due to conduct of husband, husband cannot take advantage of his own conduct and behaviour to disadvantage of wife.
(2) Cancellation of gift deed—When a person is not a party to written instrument, he cannot seek a relief to cancel such written instrument on the ground that it is void or voidable.

JUDGMENT

A. Muhamed Mustaque, J.—These matrimonial appeals are between same parties. The parties are referred to as per their marital status.

2. Mat.Appeal No.623/2016: This appeal is at the instance of the husband, who challenges dismissal of a petition for divorce. The husband filed a petition for divorce under Section 13(1) (ib) of the Hindu Marriage Act, 1955. This ground relates to divorce on the plea of desertion. The parties married according to the Hindu customs and ceremonies on 10/7/1985. One female child was born in the wedlock, who is now married and settled. The husband had filed a petition for divorce as O.P.(HMA)No.387/2001 on the ground of cruelty. He was unsuccessful before the Family Court as well as in the appeal before this Court. The appeal was disposed of by this Court on 25/6/2009. The present petition for divorce was filed on 25/10/2011 alleging that from 20/4/2001, there has been no marital relationship and the wife deserted the husband without any intention to resume cohabitation. The wife countered the allegation of desertion contending that she was forced to shift her residence for congenial upbringing of the daughter and also on account of cruel attitude of the husband. The Family Court, noting the observations by this Court in the judgment related to divorce sought by the husband on the ground of cruelty, found that the husband failed to make out a case of desertion.

3. The marriage was solemnised on 10/7/1985. The parties were in Dubai for 10 years and, thereafter, they returned to Thiruvananthapuram and settled there. The husband filed the divorce case on the ground of cruelty in the year 2001. That ended in dismissal. The present case of divorce on the ground of desertion was filed on 25/10/2011. Section 13(1)(ib) states, ‘desertion’ as follows:—

(ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition;

In the explanation to Section 13 it is stated as follows:—

Explanation.—In this sub-section, the expression “desertion” means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.

4. No doubt, in this case the parties are living separately for more than two years as on the date of presentation of the case. The wife has also no intention to resume cohabitation. Desertion as a ground for divorce is recognized under law on the basis of the fault of a spouse to the marriage. Under Hindu law, as revealed from the above explanation, if a spouse has a reasonable cause to live separately, such a separate stay or refusal to cohabitation cannot be construed as desertion. Perhaps in this context the relevant observation of this Court in an earlier Mat.Appeal No.16/2005 filed by the husband is worth mentioning, particularly, at paras.13 and 14 which read as follows:—

13. ..On the other hand, there is sufficient evidence to show that the appellant used to ill-treat the respondent due to some mental disorder which can be corrected by taking medicines.. The fact that the marriage has broken down is no reason in itself for a finding of cruelty. In the present case, there are allegations and counter allegations against each other as is evident from the petition and the counter statement which are indications of strain in the relationship between the parties and the same cannot be taken as a circumstance to grant the relief of divorce. The stand taken by the respondent/wife clearly shows that though there is strain in the relationship between the parties, the marriage has not irretrievably broken down yet.

14. After considering the respective contentions of both parties and the arguments advanced by the learned counsel for the appellant-husband as well as the resp