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HIGH COURT OF KERALA
A.M.SHAFFIQUE, P.SOMARAJAN, JJ
BALAKRISHNA – Appellant
Versus
REVATHY – Respondent
MATRIMONIAL APPEAL 296/2010
Restitution - Family Law - Family Court Act, Sections 15, 23 - The court upheld the dismissal of a petition for restitution of conjugal rights on the basis of sufficient cause for separation, noting the lack of intention to reconcile.
Fact of the Case:
The husband appealed against the Family Court's dismissal of his petition for restitution of conjugal rights, asserting that his wife had left their home due to his misconduct, while she claimed abuse and neglect.
Finding of the Court:
The Family Court found justifiable grounds for the wife's departure from the matrimonial home, indicating a lack of reconciliation intent and a prolonged separation period.
Issues: Whether the dismissal of the petition for restitution of conjugal rights was justified based on the circumstances surrounding the parties' separation.
Ratio Decidendi: The inability to order restitution was due to the wife's justified departure and the protracted separation, which negated the possibility of reconciliation.
Final Decision: The appeal is dismissed.
JUDGMENT
SHAFFIQUE, J.
This appeal has been filed by the petitioner/husband challenging the order dated 11.11.2009 in O.P.No.59/2009 of the Family Court, Kasaragod by which the petition filed for restitution of conjugal rights has been dismissed.
2. The petition was filed by the appellant inter alia contending that there is matrimonial dispute between the parties and on account of which the wife had left the matrimonial home. It is stated that the parties were married on 16.03.2006 and they have a child Tejasree who was two years old at the time when the petition was filed.
3. According to the appellant, the wife was not obliging him in any manner and ultimately left the matrimonial house.
4. The respondent/wife contended that she was forced to leave the matrimonial house on account of the fact that she was ill-treated, physically and mentally by her husband and mother-in-law.
5. The Family Court after considering the evidence adduced by either side dismissed the original petition and the application for restitution of conjugal rights on the ground that there is sufficient reason on the part of the respondent/wife to left the matrimonial house. In fact, the parties were on the verge of divorce which matter has been taken note of by the Family Court as well. Now that substantial time had elapsed and parties are living separately for quite a long time.
6. Learned counsel for the appellant apprehends that the parties are living together. Learned counsel for the respondent submits that they are living separately.
Under such circumstances we do not think it necessary to consider the matter again on merits. If the respondent does not intend to live with the appellant and are living separately for more than ten years, there is no reason why such an order be passed for restitution of conjugal rights.
The appeal is therefore dismissed.
A.M.SHAFFIQUE, JUDGE
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