IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 6TH AUGUST 2008 / 15TH SRAVANA 1930 Mat.Appeal.No. 326 of 2005() ---------------------------- OPHMA.672/2002 of FAMILY COURT, KOTTAYAM AT ETTUMANOOR .................... APPELLANT/PETITIONER -------------------------------- SREEKUMAR, AGED 41, S/O.KRISHNAN NAIR, KRISHNA VIHAR, KUMARAKOM VILLAGE, KOTTAYAM. BY SRI.SREEKUMAR(PARTY IN PERSON) RESPONDENTS/RESPONDENTS: ------------- 1. SMT.S.REKHA, AGED 35, D/O. KOCHUKUNJU PILLAI, KUNNEL HOUSE, NEERVILAKOM, KIDANGANNUR VILLAGE, KOZHENCHERRI TALUK, PATHANAMTHITTA DISTRICT. 2. C.V.JAYAPRAKASH, AGED 34, S/O.P.V.VELAYUDHAN, CHACKULAPARAMBIL HOUSE, EROOR WEST P.O., THRIPUNITHURA, ERNAKULAM DISTRICT. BY ADVS. SRI.M.NARENDRA KUMAR FOR R1 SMT.LEENA KRISHNAN FOR R1 THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 06/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: KURIAN JOSEPH & HARUN-UL-RASHID, JJ. ---------------------------------------------------------------- MAT. APPEAL NO. 326 OF 2005 ---------------------------------------------------------------- Dated this the 6th day of August, 2008 JUDGMENT Harun-Ul-Rashid, J. The petitioner in O.P.(H.M.A.) No.672 of 2002 on the file of the Family Court, Kottayam at Ettumanoor is the appellant. The petition for divorce filed by him under Sections 13(1)(i), 13(1)(i-a) and 13(1)(i-b) of the Hindu Marriage Act, 1955 was dismissed by the Family Court holding that the petitioner is not entitled to get dissolution of marriage on the ground of cruelty, desertion and adultery. Hence, this appeal. The parties herein are referred to as petitioner and respondents as in the Original Petition. 2. The marriage between the petitioner and the first respondent was solemnised on 4.9.1994. It is the case of the petitioner that the first respondent/wife was indifferent towards him , that she behaved like a strange woman and avoided sexual intercourse under one pretext or another. He further alleged that the first respondent did not perform her wifely duties and used to leave the matrimonial home without his consent. Mat. Appeal No.326/2005 2 She was very particular not to live in the matrimonial home and lead a happy marital life. According to the petitioner, the strange behaviour of the first respondent caused severe mental pain to him. He also stated an incident that happened on 4.10.1994 when his mother who was replacing tiles was pulled down by the first respondent as a result of which his mother fell on the asbestos ceiling and from there to the ground which caused fracture on her ribs and hand and she was hospitalised at Medical College Hospital, Kottayam. The petitioner further contended that while he was working in Bombay, the first respondent, without his knowledge and consent and against his desire and with an intention to end the marital relationship for ever, deserted him on 18.12.1994. Thereafter, they never lived together and that she did not come back inspite of his request. The petitioner then filed O.P. No.31 of 1997 before the Sub Court, Kottayam and a joint petition, I.A. No.3188 of 1998 under Section 13 B of the Hindu Marriage Act for dissolution of marriage. It is further contended that upon filing the above interlocutory application, the first respondent returned the thalimala and received the gold ornaments and Rs.10,000/- given at the time of marriage towards marriage expenses. Thereafter, the first respondent did not attend the court and that resulted in the dismissal of the Original Petition and thus his marital life is in a dilemma. He also contended that he came to know of the birth of the child only when the Mat. Appeal No.326/2005 3 first respondent filed M.C. No.184 of 1998 for maintenance. It is also alleged that the child is not born in the wedlock and is a result of the adulterous life of the first respondent. 3. The first respondent filed objection denying all the allegations levelled against her about cruelty, desertion and adultery. According to her, she never left the matrimonial home without the consent of the petitioner and his parents. She denied the allegation the she pulled down her mother-in-law from the roof. She also denied the allegation that she deserted the petitioner on 18.1.2.1994 or on any date prior to that or even after that. She admitted the fact that she had signed the joint petition filed under Section 13 B of the Hindu Marriage Act in O.P. No.31 of 1997, but the same was withdrawn for the reason that that the petitioner was not willing to comply with the terms and conditions of the compromise. She further contended that the allegation that she was leading an adulterous life and that she avoided sexual intercourse are false statements. It is also pleaded by the first respondent that she is ready and willing to continue the marital relationship with the petitioner. 4. The evidence in this case consists of the oral evidence of the petitioner and first respondent who were examined as PW.1 and RW.1 Mat. Appeal No.326/2005 4 respectively. Exts.A1 to A5 were marked on the side of the petitioner and Exts.B1 to B8 were marked on the side of the first respondent. It is the common case that the petitioner and first respondent lived together till 18.12.1994 in the residence of the petitioner. The allegations raised in the petition for divorce was examined in detail by the Family Court. The Family Court observed that there is no proof regarding the allegations and that such vague allegations are not sufficient enough to invite a decree of divorce on the ground of cruelty. The Family Court also observed that the parties had filed Ext.A2 joint petition under Section 13 B of the Hindu Marriage Act in O.P. No.31 of 1997 before the Sub Court, Kottayam whereupon the first respondent returned her thalimala and received the gold ornaments and Rs.10,000/- given to her at the time of marriage and issued receipt for the same and that thereafter the first respondent retracted from the compromise and withdrew her consent. The said Original Petition was transferred to the Family Court and renumbered as O.P.(H..M.A.) No.268 of 1998. 5. The averments in Ext.A2 would show that for the past more than three years the parties are living separately and that they have mutually agreed to dissolve their marriage. PW.1 deposed before the court below that there was no cordial relationship between the parties as husband and Mat. Appeal No.326/2005 5 wife right from the beginning. He further deposed that his wife left the matrimonial home with the intention to end the marital relationship. The first respondent on the other hand contended that she was taken to her parental house on 18.12.1994 by the petitioner's father. In the earlier Original Petition also, the grounds raised for dissolution of marriage are cruelty and desertion. The petitioner also filed I.A. No.333 of 2000 for impleading the second respondent as additional respondent in that Original Petition. The said application was dismissed by the Family Court and O.P. (H.M.A.) No.268 of 1998 was permitted to be withdrawn at the request of the petitioner with liberty to file fresh Original Petition. 6. It is contended that though the marriage has been consummated, the parties have been abstaining from sexual relationship. The Family Court held that if the allegations of cruelty levelled against the first respondent are correct, the petitioner could have examined his mother. The Family Court also held that the evidence on record would not show that the first respondent/wife deserted the petitioner/husband on 18.12.1994. Regarding the ground of adultery, the Family Court held that as per Section 112 of the Evidence Act, the presumption of legitimacy is highly in favour of the child and it is necessary that proof of non-access must be clear and satisfactory and that the petitioner failed to prove non- Mat. Appeal No.326/2005 6 access. 7. The facts and circumstances borne out from the pleadings and evidence point out unmistakably the fact that the parties did not maintain their relationship as husband and wife during the period they lived together. The marriage between the parties was solemnised on 4.9.1994. It is the admitted case of both parties that they lived together as husband and wife only till 18.12.1994, for a period of three and odd months. Various allegations are levelled against the first respondent/wife. Both sides have no case that they lived happily even for a short stint. The very fact that they have decided to end their relationship by filing an application under Section 13 B of the Hindu Marriage Act evidently shows that they were not happy together and did not want to continue the relationship as husband and wife, the reasons for which are seen from their respective pleadings. According to the petitioner, he expected the first respondent to be a dutiful wife and that he could not continue the marital life due to the strange behaviour of his wife. Marital life is possible only if the atmosphere is congenial. Strange behaviour and non co-operation of one spouse always will lead to breaking of the bondage and that amounts to mental cruelty. Infliction of mental cruelty of such a nature may not be intentional, but if the other party finds it difficult to adjust due to the Mat. Appeal No.326/2005 7 incompatible temperament of his spouse, the parties cannot be asked to live together and suffer such course of events for ever. This is a case where the petitioner/husband says that he finds it difficult to live with his wife on account of her strange behaviour and incompatible temperament. We also find, from the facts and circumstances, that the parties have decided to put an end to their marital relationship even before the filing of the petition. The very fact that the parties lived together for only three and odd months shows that their relationship was not cordial and that the behaviour of one of the parties caused much mental pain and agony to the other leading to separation within a short stint. Whatever may be the reasons for separation, we find that the factum of separation and the reasons leading to it, no doubt, inflicted mental cruelty on the petitioner/husband. We also note that though the first respondent went to her house on 18.12.1994, she never made any attempt to go back to her marital home. Even though there is no evidence to prove desertion and adultery, the facts and circumstances leading to the long separation show that the parties started living separately on account of the mental pain and agony suffered by them which is sufficient to hold that the ground of cruelty is attracted. Therefore, the appellant/petitioner is entitled to a decree of divorce. Mat. Appeal No.326/2005 8 8. There is yet another reason for granting divorce in this case. The parties are living separately for the last 14 years. It is an admitted fact that the first respondent/wife left the matrimonial home in 1994 and she is residing separately since then. Fourteen years have lapsed since the petitioner and first respondent are separated. It is also an admitted fact that the first respondent did not return to her matrimonial home and did not resume co-habitation after she left the house in the year 1994. The facts and circumstances of the case proved conclusively that the parties are living separately with the intention to end the marital life. 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. The parties cannot in the background of their disputes at this stage reconcile themselves and live together forgetting their past. 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 Mat. Appeal No.326/2005 9 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. 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 Mat. Appeal No.326/2005 10 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 impugned order is set aside and the appeal is allowed. The marriage between the appellant/petitioner and first respondent is dissolved with effect from today. There will be no order as to costs. (KURIAN JOSEPH, JUDGE) (HARUN-UL-RASHID, JUDGE) sp/ Mat. Appeal No.326/2005 11 KURIAN JOSEPH & HAURN-UL-RASHID, JJ. MAT.APPEAL NO. 326/05 JUDGMENT 6th August, 2008 Mat. Appeal No.326/2005 12