IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE A.K.BASHEER MONDAY, THE 10TH MARCH 2008 / 20TH PHALGUNA 1929 Mat.Appeal.No. 435 of 2007() ---------------------------- OP.513/2004 of FAMILY COURT,TRIVANDRUM .................... APPELLANT/PETITIONER: --------------------- SINDHU SIMON, D/O LILLY SIMON, SINDOORAM, KALPAKA GARDENS, PAPPANAMCODE, NEMOM, THIRUVANANTHAPURAM DIST. BY ADV. SRI.SUMAN CHAKRAVARTHY RESPONDENT/RESPONDENT: ----------------------- LIJO VINCENT, S/O TITUS, CHITHANYA, THAMPURAN JUNCTION, VADAKEVILA MADAN NADA, KOLLAM. BY ADV.SRI.M.V.THAMPAN THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 10/03/2008 ALONGWITH MAT.A.NO.445/2007, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: J.B.KOSHY & A.K.BASHEER, JJ. ------------------------------- Mat.Appeal.Nos.435 & 445 OF 2007 (E) ----------------------------------- Dated this the 10th day of March, 2008 J U D G M E N T KOSHY,J. These two appeals are filed against the common judgment passed by the Family Court. Appellant married the respondent according to Christian rites on 7.5.2003. After the marriage, both of them started living at the residence of the appellant and later for some time at the residential house of the respondent at Kollam. It is an admitted case that they did not live together after 27.10.1993. Even before 27.10.1993, they lived together for few days only as working place of the husband was away in Wayand. Respondent husband was an M.Tech Degree holder. At the time of marriage, he was a Lecturer in Government Engineering College, Wayanad. Later he was promoted and he is working as Assistant Professor at Trivandrum. Appellant is a M.Sc. Mathematics Degree holder and she was employed in Marian Engineering College at the time of marriage. Now she is doing her Ph.D research. M.A.435 & 445/07 (E) 2 According to the appellant, respondent was misbehaving with her and had never shown any love and affection and he used to pick up quarrels. It is also stated that he used to insult her and he came to the college on more than one occasion and abused her in front of her friends and colleagues. Appellant is also threatened that bed room photos would be shown to the public. There is a house in the name of appellant's father at Trivandrum and husband wanted to transfer that house in his name and since that demand was not accepted, she was continuously threatened and harassed. Even during marriage proposals, such a demand was made. Later only when such demand was dropped, marriage proposal was agreed and on the 2nd day of marriage itself, husband began to harass her demanding the house. Even during the short stay, according to the appellant, their life was miserable and she was mentally tortured. Therefore, she filed an application for divorce as well as for return of money given at the time of marriage and gold ornaments. The Family Court rejected the petition for return of money and gold ornaments for lack of positive evidence. Petition for dissolution of marriage was also dismissed. Respondent husband filed an application for restitution of M.A.435 & 445/07 (E) 3 conjugal rights. That was allowed. According to the court below, if both parties can make some adjustments, peaceful marriage life will be possible. That is the reason for ordering restitution of conjugal rights and dismissal of the divorce petition. When the appeal was filed, for having a settlement, we have called the parties before this Court. Appellant stated that she was continuously harassed and respondent husband was demanding the house at Trivandrum to be transferred to his name and it is better to end her life than to decide to live with him whereas husband stated that he can live with her and he wanted reconciliation and he denied the allegations of torturing. It is further stated that she is not living with him because of the insistence of appellant's father and mother. She stated that her father and mother are not interfering at all though they were worried about the matter. From the evidence on record, we are satisfied that there is mental torture by the husband and she was compelled to leave the matrimonial house due to mental strain. As held by the Full Bench in Princy v. Varkey (2000 (1) KLT 756 (F.B.)) constant mental torture also is cruelty justifying dissolution of marriage under Section 10 of the Indian Divorce Act. She is M.A.435 & 445/07 (E) 4 30 years old. Both are well qualified people. Counsel for the appellant submits that they are mentally so apart that a marriage life is not possible at all, and, if divorce is granted, at this age, both can find appropriate partners. Love cannot be obtained by force. From the evidence and discussions, we are convinced that wife's love towards her husband is lost for ever. When love of one of the parties is lost and deep rooted hatred or mistrust is formed and matrimonial bond is permanently affected, dissolution of marriage shall be granted as held by the Apex Court in Sanghamitra Ghosh v. Kajal Kumar Ghosh (2006 AIR SCW 5983). In such circumstances, if they are compelled to live with such incompatibility cruelty can be physical or mental. In physical cruelty, there can be tangible and direct evidence but in case of mental cruelty, there may not be a direct evidence. Concept of proof beyond reasonable doubt is not expected in matrimonial dispute as held by the Apex Court in Smt.Mayadevi v. Jagdish Prasad (2007 AIR SCW 1803). In this connection we also refer to the decision of this Court in Lini Mohan John v. Mohan John (AIR 2001 Kerala 309). M.A.435 & 445/07 (E) 5 2. According to the appellant, respondent is objecting to the divorce application only to harass her so that she will not get married. We have considered the matter in detail. Both are educated people and after discussions with them, we are of the opinion that marriage has been irretrievably broken and reconciliation is no more possible. Learned counsel for the respondent fairly submitted that even after the last date of hearing, conciliation was conducted by the local priest but that also was a failure. They lived only for a short time and they have no issues out of the marriage. She also stated that she will not file any appeal against the dismissal of the claim for return of money given at the time of marriage and gold ornaments and will not claim for maintenance and anything from him. If the evidence of appellant is accepted, there is cruelty and harassment on the part of the husband. If the evidence of respondent is accepted, there is desertion on the part of the wife without valid reasons which is cruelty on the part of the wife. Considering the totality of the evidence, we are of the view that this is a fit case where marriage can be dissolved on mutual consent and as marriage is irretrievably broken and in view of the compatibility, they cannot live M.A.435 & 445/07 (E) 6 together. In this connection we refer to the decision of the Supreme Court in Naveen Kohli v. Neelu Kohli (AIR 2006 SC 1675) and in these circumstances, we set aside the order of restitution of conjugal rights and we allow the prayer for dissolution of marriage. Hence decree for dissolution of marriage is granted under Section 10 (x) of the Indian Divorce Act, 1869. Both appeals are allowed to the above extent. J.B.KOSHY, JUDGE A.K.BASHEER, JUDGE prp J.B.KOSHY & K.HEMA, JJ. -------------------------------------------------------- M.F.A.NO. OF 2006 () --------------------------------------------------------- J U D G M E N T --------------------------------------------------------- 4th March, 2008