IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 27TH MAY 2008 / 6TH JYAISHTA 1930 MFA.No. 1324 of 2001() ---------------------- OP.128/2000 of FAMILY COURT, MALAPPURAM .................... APPELLANT: ----------- BABY JALAJA 36 YEARS D/O KARI KARUVAKKOTTIL QUARTERS KOTTAKKAL AMSOM THOKKAMPARA KOTTAKKAL P.O BY ADV. SRI.BABU S. NAIR RESPONDENTS: ---------------- 1. THELAPPURATH SANKUNNI NAIR'S SON UNNIKRISHNAN, 40 YEARS KOTTAKKAL AMSOM, TIRUR 2. M.VIJAYAN, S/O MANIYAM VEETTIL VELAYUDHAN CHETTIYAR MANIYAM VEETTIL HOUSE PANDAMANGALAM, KOTTAKKAL. BY ADV. SRI.P.S.SREEDHARAN PILLAI FOR R SRI.SURESH SUKUMAR FOR R SRI.RENJITH B.MARAR FOR R2 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 27/05/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: KURIAN JOSEPH & HARUN-UL-RASHID, JJ. ------------------------------------------ M.F.A. No. 1324 of 2001 ------------------------------------------- Dated this the 27th day of May 2008 JUDGMENT Harun-Ul-Rashid,J The petitioner is the 1st respondent in the original petition No. 128/2000 on the file of the Family Court, Manjeri. The Original Petition was filed by the 1st respondent under Section 13 of the Hindu Marriage Act for a decree of divorce, was allowed and the marriage between the petitioner and the 1st respondent was dissolved. Aggrieved by the decree and judgment, the 1st respondent/wife has come up in appeal The parties to this appeal are referred hereinafter as petitioner (husband) and 1st respondent (wife) 2. The parties got married by a registered agreement executed on 27.10.1982. They have two male children . According to the petitioner his wife had eloped with the 2nd respondent and that the respondents are living in a rented house as husband and wife. 3. The averments in the petition was denied by the 1st respondent /wife. The 1st respondent /wife contended that the petitioner and she lived together for 15 years after the marriage. The marriage was conducted in accordance with the religious rights and ceremonies of the M.F.A. No. 1324/2001 -2- parties. She denied the averment that she had any relation ship with the 2nd respondent. According to her, her husband, his mother and brother had harassed and ill-treated her. The petitioner tendered oral and documentary evidence as PW1. PWs 2 and 3 were examined. Ext. A1 to A7 were marked. The 1st respondent was examined as RW1 . RW2 to RW3 were examined on her side. The Family court held that from the nature of the relationship between the petitioner/husband and 1st respondent /wife presupposes the marital relationship in accordance with law between the parties. The Family Court held on findings that the 1st respondent is the legally wedded wife of the petitioner. 4. The Family court noticed the fact that the 1st respondent admitted that she had left the house of the petitioner along with her second child on 21.8.1999. From the evidence on record it is apparent that the 1st respondent left the matrimonial home with her younger son There are also circumstances indicating that the 1st respondent /wife had left the house on earlier occasions without reasonable and proper cause. The Family court relied on the oral evidence of the petitioner/husband, his elder son who was examined as PW2 ,and PW3 an independent witness . The Family court held that no direct evidence regarding the alleged act of the 1st respondent is not available but the circumstantial evidence sufficiently proved the case of the petitioner the she is leading M.F.A. No. 1324/2001 -3- an adulterous life with the 2nd respondent. 5. We have heard the counsel for the petitioner and 1st respondent. According to the 1st respondent wife the Family court went wrong in not considering the evidence tendered by RWs 2 to 3 in the proper perspective. The evidence tendered by her younger son as RW3 was discarded for no good reasons. The evidence tendered on the wife's side will disclose the fact that there are many difference of opinion between the husband and wife and the finally lead the 1st respondent wife to leave the matrimonial home on 21.8.1999 The counsel for the 1st respondent submits that PW3 being a collegue of PW1 placing reliance on his testimony in the circumstances is not proper. According to the counsel there is neither direct evidence nor circumstantial evidence to prove the case of the adultery. On going through the evidence tendered by the parties we are also of the view that the evidence adduced by the petitioner/husband is not sufficient enough to conclude that the 1st respondent/wife is leading an adulterous life. At the same time we find that the facts and circumstances will go to show that the 1st respondent wife had deserted the petitioner/husband on 21.8.1999 and that the parties are living separately from the date till date. Therefore we find that the petitioner/husband is entitled to a decree of divorce on the ground of desertion. M.F.A. No. 1324/2001 -4- 6. It is an admitted fact that the 1st respondent/wife left the matrimonial home on 21.8.1999 and she is residing separately since then. Nine years have lapsed since the petitioner/husband and 1st respondent/wife had separated. It is also an admitted fact that the 1st respondent did not return to her matrimonial home and did not resume co- habitation after she left the house on 21.8.1999. The facts and circumstances of the case proved conclusively that the parties are living separately with the intention to end the marital life. For the last 9 years, the husband and wife are living separately. The conduct of the parties and the facts and circumstances of the case reveal that the parties have made up their mind to put an end to the marital relation and co-habitation permanently. 7. Desertion is an act which implies abandonment against the wish of the person charging it. In this case, the 1st respondent left the matrimonial home and started residing separately. The question raised is will the conduct amount to desertion on the part of the respondent. The Supreme Court in the decision reported in Bipinchandra Jaisingbhai Shah Vs. Prabhavati , AIR 1957 SC 176 held that where the wife is forcibly turned out of her marital home by the husband, the husband is guilty of constructive desertion. The test is not who left the matrimonial M.F.A. No. 1324/2001 -5- home first. If one spouse by his words and conduct compels the other spouse to leave the marital home, the former would be guilty of desertion, though it is the latter who is physically separated from the other and has been made to leave the marital home. There is no evidence in this case to find that the wife was forcefully turned out of her matrimonial home by the husband. The available evidence discussed above shows that the 1st respondent/wife had put an end to the marital relationship and co- habitation. 8. Nine years have elapsed since the petitioner and 1st respondent have been separated. We find that there is no possibility of the parties resuming normal marital life. There has been an irretrievable breakdown of marriage between the husband and the wife. A workable solution is certainly not possible. The parties cannot in the background of their disputes at this stage reconcile themselves and live together forgetting their past. Because of the irretrievable breakdown of the marriage, the marriage between the parties has been rendered a dead wood. Learned counsel appearing for the 1st respondent/wife submitted before us that no purpose will be served by keeping such a marriage alive on paper which would only aggravate the agony of the parties. M.F.A. No. 1324/2001 -6- 9. Irretrievable breakdown of marriage is not a ground by itself for divorce. But, while scrutinising the evidence on record to determine whether the grounds alleged are made out and in determining the relief to be granted, the said circumstance can certainly be borne in mind, as held by the Supreme Court in the decision reported in Durga Prasanna Tripathy v. Arundhati Tripathy (2005) 7 SCC 353. The Supreme Court in the above decision, on finding that 14 years have elapsed since the husband and wife had separated, held that there has been irretrievable breakdown of marriage between the parties and that reunion was impossible and that the parties cannot at this stage reconcile themselves and live together forgetting their past. The Supreme Court, therefore, held that there is no other option except to allow the appeal and set aside the judgment of the High Court and affirm the order of the Family Court granting decree of divorce. 10. We are convinced that no useful purpose will be served by keeping such a marriage alive on paper, it would only aggravate the agony of the parties. In Anjana Kishore Vs. Puneet Kishore( 2002 (10) SCC 194) and in Swati Verma Vs. Rajan Verma (2004 (1) SCC123 ) the Supreme court held that the marriage between the parties has irretrievably broken down and has been rendered a dead wood. M.F.A. No. 1324/2001 -7- Exigency of the situation demands the dissolution of such a marriage by a decree of divorce to put an end to the agony and bitterness of the parties. 11. The Supreme Court observed that once the parties have separated and the separation has continued for sufficient length of time and one of them has presented a petition for divorce, it can well be presumed that the marriage has been broken down beyond repair. It would be unrealistic for the law not to take notice of that fact and it would be harmful to the society and injurious to the interests of the parties. In the result, the finding of the Family court granting divorce on the ground of adultery is set aside. The decree for divorce is sustained on the ground of desertion and irretrievable breakdown of the marriage There will be no order as to costs. KURIAN JOSEPH, JUDGE HARUN-UL-RASHID, JUDGE es