Prolonged separation without justification constitutes desertion, sufficient for divorce under family law.

JUDGMENT

Ashok Menon, J.

The petitioner in O.P.No.139/2008 on the file of the Family Court, Kozhikode, seeking divorce on the grounds of desertion, cruelty and adultery, is in appeal before us impugning the judgment dated 06.01.2009, dismissing his petition. His wife too had filed an application seeking maintenance for herself and for her child, as M.C.No.204/2007, which was taken up with the divorce petition, and vide the aforesaid common judgment, allowed. Appeal is only against the dismissal of the divorce petition.

2. The facts in brief are thus:

The appellant/petitioner got married to the respondent on 29.05.1994 as per the Hindu rites and religious ceremonies. It was his second marriage. His first wife, who was suffering from some mental ailments, committed suicide after a son was born in that wedlock. After his wedding to the respondent, they lived together, and begot two children in the wedlock. The allegation is that, on 20.06.2004 the respondent left the matrimonial home for no valid reason, abandoning her step son, to whom, she was a proverbial step-mother, and also deserted the appellant. Thereafter, she has not returned to her matrimonial home. The specific allegation is that she lead an adulterous relationship with several persons, and with Narangali Bhaskaran and Anto in particular, with the connivance of her brother, an alcoholic. It is alleged that the respondent was promiscuous girl even from her school days, when she had eloped with a man. On being questioned about her promiscuity, she instigated her brother to assault and abuse the petitioner.

3. The respondent denied all the allegations in the petition. We heard both sides, and perused the records.

4. The evidence before the Family Court consists of oral testimony of the petitioner examined as PW1 and another person examined as PW2 to prove that the respondent had gone to her parental home and never returned. The respondent was examined as RW1, and her brother is RW2. Exts.A1 to A24 were the produced produced for the petitioner, which mainly pertains to his expenses incurred for treating his son and mother, his income and some complaints, intended to thwart the claim of maintenance put forth by the respondent. No document is produced for the respondent. The petitioner would contend that the respondent has no valid reason, whatsoever, to stay apart. Although she has raised certain contention regarding his being of suspicious mind, and doubting her chastity, there is no specific contention alleged or proved by her. It is found that the respondent has been residing in her parental home continuously with effect from 20.06.2004 and has not taken any evince or interest to return to her matrimonial home.

5. The Court below rejected the plea of desertion on the ground that there is contradiction in the petitioner's pleading and testimony regarding the date on which the respondent had left her matrimonial home. Staying apart without any valid reasons would definitely amount to desertion. She has no proven valid grounds to stay apart, and therefore, even though the petitioner has not been successful in precisely proving cruelty and adultery as grounds for divorce, we are of the opinion that the respondent has been residing separately for a fairly long period without any valid reasons, which would amount to deserting the matrimonial home. Therefore, the petition ought to have been allowed on that ground.

6. The Court below went wrong in not allowing the petition for divorce on the ground of desertion. The impugned judgment to that extent needs to be reversed.

In the result, this Mat.Appeal is allowed, the order of dismissal in O.P.No.139/2008 is set aside and the Original Petition is allowed. The marital tie between the petitioner and the respondent stands dissolved on the ground of desertion. No order as to costs.

A.M.SHAFFIQUE JUDGE