Kerala HC | Whether husband going abroad for employment amount to desertion and cruelty? HC decides

Kerala High Court

Kerala High Court: The Division Bench comprising A. Muhamed Mustaque and Sophy Thomas, JJ., held that cruelty has to be assessed from the perspective of a spouse, i.e., how he/she would perceive the conduct of the other spouse.

Reversing the impugned judgment of the Family Court, the Court held,

“Mere attempt by the mediators cannot save the laches which otherwise looms large to strain such relationship. She had felt neglect and a sense of insecurity which prompted her to seek divorce.”

Factual Matrix

The marriage between the appellant-wife and the respondent-husband was solemnised on 17-03-2010. It was the case of the appellant that they have lived as husband and wife only for 24 after which the respondent left for his employment in Abu Dhabi. The appellant contended that after reaching Abu Dhabi, the respondent never cared to contact her nor inquired about her well-being.

Further, the appellant alleged that the respondent always suspected her chastity and fidelity; and had even asked her to keep her mobile phone on loudspeaker mode to enable him to listen to the incoming calls. On the contrary, the respondent denied all the allegations and contended that though they had lived as husband and wife only for 24 days, it was the appellant who left the matrimonial home of her own volition and failed to return to the matrimonial home in spite of intervention of many well-wishers.

Findings of the Family Court

The Family Court found that the appellant failed to make out a case for divorce on the ground of cruelty and desertion. The Family Court relied on an excerpt of the diary of the appellant, wherein she had written:

“I always like his presence. His absence pains me. I pray that Sun will not rise today, with the Sunset I remain alone without his presence, without his smile and soft look.”

Thus, the Family Court held that the diary entries did not reflect any bitter experience by the appellant from her husband and that those are the words of the wife who is craving for the presence of her loved husband. Consequently, the Family Court refused to believe the case of cruelty.

The Family Court also noted that the appellant left the matrimonial home for employment and therefore, it could not be construed as desertion. Hence, the case of divorce was dismissed also on the ground of desertion.

Analysis and Findings

Whether the husband going abroad for employment amounts to desertion?

Concurring with the finding of the Family Court dismissing the petition on the ground of desertion, the High Court noted that the respondent left for Abu Dhabi for his job. He had no intention to abandon the marriage. He had also not refused to cohabit with the appellant. The Court expressed,

“There must be an element on the part of the party alleging to be deserted either to abandon the marriage or to forsake the cohabitation permanently. In the absence of those elements, any sort of separation cannot be construed as a ground constituting desertion.”

Cruelty as a Ground for Divorce

Referring to the diary entries, the High Court opined that it portrayed reflection of the mind of a person who felt isolated for want of the presence of her husband. The Court observed,

“Being a lady, she appears to be one who was looking forward to the care and love of her beloved husband. There was no contact from the side of the respondent.”

The Court noted that the diary itself would show that the appellant was longing to live with her husband which never happened and no attempt was made by the respondent to be in her company. Opining that one would not refuse to return to the matrimonial home for no reason, the Court held that there must be some reason that persuaded the appellant to remain at the parental house.

With regard to the ground canvassed by the appellant as cruelty, the Court noted that it was not a singular incident of misconduct that mattered for consideration, but the approach should be to consider the whole conduct of the spouse to analyse if cruelty is meted out or not.

The appellant had a case that she was promised that she would be taken to gulf country and, on that pretext, gold ornaments belonging to her were collected by the respondent. It was only when her hope to live together came to an end, that she decided to have a separation.

Resultantly, the Court held that cruelty has to be assessed from a perspective in which a spouse would perceive the relationship with the other spouse. The Court remarked,

If he cannot nurse the feelings of the spouse and live up to her expectation, that would result in mental frustration.

Conclusion

In the backdrop of above, the Court concluded that since the parties had been living separately for more than a decade, the marriage had become deadwood for all practical purposes. Consequently, the appeal was allowed and the impugned judgment was set aside. The marriage between the petitioner and the respondent was declared dissolved.

[Subhi N. v. Sreeraj E., 2021 SCC OnLine Ker 12117, decided on 25-11-2021]


Advocates who appeared in this case :

Cibi Thomas, Advocate, for the Appellant;

Bindumol Joseph and Advocate B.S. Syamanthak, Advocates, for the Respondent;


*Kamini Sharma, Editorial Assistant has reported this brief.

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