Kerala High CourtKalamani vs M.Muraleedharan on 22 July, 2011Author:C.K.Abdul RehimBench:C.K.Abdul RehimIN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT:

               THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
                                   &
               THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN

         TUESDAY, THE 14TH DAY OF JULY 2015/23RD ASHADHA, 1937

                    Mat.Appeal.No. 754 of 2011 ( )
                    --------------------------
         AGAINST THE JUDGMENT IN OP 358/2010 of FAMILY COURT,
                       PALAKKAD, DATED 22-07-2011


APPELLANT(S)/PETITIONER:
------------------------


       KALAMANI, W/O.M.MURALEEDHARAN,
       DEEPIKKA, KODIYIL VEEDU, PARALI P.O.,
       PALAKKAD.

       BY ADV. SRI.A.R.GANGADAS



RESPONDENT(S)/RESPONDENT:
------------------------


       M.MURALEEDHARAN, S/O.SATHYABHAMA,
       SREENILAYAM, PALASSERY, ODANOOR,
       PARALI P.O., PALAKKAD DISTRICT-678 612.



         THIS MATRIMONIAL APPEAL      HAVING BEEN FINALLY HEARD  ON
14-07-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:


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                            C.K. ABDUL REHIM &
                           K. RAMAKRISHNAN, JJ.
       --------------------------------------------------------------------------------
                         Mat. Appeal No.754 of 2011
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                   Dated this the 14th day of July, 2015


                                     JUDGMENTK. Ramakrishnan, J




           Petitioner in O.P.No.358/2010 on the file of the

Family Court, Palakkad, is the appellant herein. The

petition was filed by the petitioner herein for dissolution of

marriage under Section 13(1-A) [Section was wrongly

quoted as 13(1-a)] ofHindu Marriage Act.2.       It is alleged in the petition that the

respondent married the petitioner on 06.04.1984 at

Guruvayoor Temple and lived as husband and wife.

Thereafter they started residing separately. So respondent

filed O.P.No.46/1984 before the Sub Court, Palakkad, underSection 10of the Hindu Marriage Act for a decree for

judicial separation. The application was allowed and a

decree for judicial separation was passed between the

petitioner and respondent on 10.07.1986. They wereMat. Appeal No.754 of 20112residing separately even prior to the petition for judicial

separation. There has been no resumption of co-habitation

between the petitioner and respondent for a period of one

year prior and after the decree for judicial separation till

the date of filing of the petition for divorce. So the

petitioner is entitled to get the marriage dissolved,

solemnized between them on 06.04.1984.3.     Though respondent was served with notice,

he did not appear in the proceedings. The petitioner was

examined as PW1 and Ext.P1 was marked on her side and

she filed proof affidavit also reiterating the averments

mentioned in the petition. After considering the evidence,

court below dismissed the application on the ground that,

the delay in filing the application has not been explained.

Aggrieved by the same, the present appeal has been

preferred by the appellant / petitioner before the court

below.4.     Though notice was served on the respondent,

he did not appear in the case.Mat. Appeal No.754 of 201135.     Heard the counsel for the appellant.6.     The counsel for the appellant submitted that

the decree for judicial separation was passed as early as on

10.07.1986 and thereafter there is no co-habitation and they

were living separately even prior to that. If there is no co-

habitation between the petitioner and the respondent even

after one year of passing of the decree for judicial

separation, that is a ground for granting divorce. The delay

in filing the application is not a ground for rejecting the

application. So the court below ought to have allowed the

application.7.     It is an admitted fact that the marriage

between the appellant and respondent was solemnized on

06.04.1984 from Guruvayoor Temple and thereafter they

were living together as husband and wife. It is also an

admitted fact that, respondent herein who is the husband of

the appellant filed O.P.No.46/1984 before the Sub Court,

Palakkad, underSection 10of the Hindu Marriage Act for a

decree for judicial separation and the Sub Court had passedMat. Appeal No.754 of 20114a decree for judicial separation between the petitioner and

respondent on 10.07.1986. It is also mentioned in the

petition itself that, even prior to the petition in that case

they were living separately and even after the disposal of

the case, there was no co-habitation between them and the

separation continued till the filing of the present petition.

The fact that the respondent did not appear in that case

also will go to show that, he does not want to resume co-

habitation with the petitioner.8.Section 13(1-A) of Hindu Marriage Actreads

as follows:[(1A) Either party to a marriage, whether solemnised
      before or after the commencement of this Act, may also
      present a petition for the dissolution of the marriage by a
      decree of divorce on the ground-(i)    that there has been no resumption of
      cohabitation as between the parties to the marriage for a
      period of [one year] or upwards after the passing of a
      decree for judicial separation in a proceeding to which
      they were parties; or(ii) that there has been no restitution of conjugal
      rights as between the parties to the marriage for a
      period of [one year] or upwards after the passing of a
      decree for restitution of conjugal rights in a proceeding
      to which they were parties.]
      (2) A wife may also present a petition for the dissolution
      of her marriage by a decree of divorce on the ground,-(i)    in the case of any marriage solemnised
      before the commencement of this Act, that the husbandMat. Appeal No.754 of 20115had married again before such commencement or that
      any other wife of the husband married before such
      commencement        was   alive  at  the   time   of  the
      solemnisation of the marriage of the petitioner.(ii)   that the husband has, since the solemnisation
      of the marriage, been guilty of rape, sodomy or
      [bestiality;or](iii)  that in a suit under section 18 of the Hindu
      Adoptions and Maintenance Act, 1956 (78 of 1956), or in
      a proceeding under section 125 of the Code of Criminal
      Procedure, 1973 (2 of 1974) [or under the corresponding
      section 488 of the Code of Criminal Procedure, 1898 (5
      of 1898)], a decree or order, as the case may be, has
      been passed against the husband awarding maintenance
      to the wife notwithstanding that she was living apart and
      that since the passing of such decree or order,
      cohabitation between the parties has not been resumed
      for one year or upwards; or(iv)   that her marriage (whether consummated or
      not) was solemnised before she attained the age of
      fifteen years and she has repudiated the marriage after
      attaining that age but before attaining the age of
      eighteen years]9.     If there is no resumption of co-habitation

between the parties for a period of one year or upwards

after the passing of the decree for judicial separation, then

that itself is a ground for dissolving the marriage between

the parties under that Section. Mere delay in filing the

application is not a ground to dismiss the application. So

the court below had erred in dismissing the application for

dissolution of the marriage on the ground that the delay inMat. Appeal No.754 of 20116filing the application for divorce, though the decree for

judicial separation was passed in the year 1986 is

unsustainable in law and the same is liable to be set aside

and the petitioner is entitled to get a decree for dissolution

of marriage between the petitioner and the respondent

solemnized on 06.04.1984.So the appeal is allowed, the decree and judgment

passed by the court below, dismissing the application is set

aside and the O.P. is allowed dissolving the marriage

between the appellant and respondent solemnized on

06.04.1984 at Guruvayoor Temple.Sd/-C.K. Abdul Rehim, Judge


                                             Sd/-K. Ramakrishnan, Judge

                             // True Copy//

                                                     P.A. to Judge
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