IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 27TH AUGUST 2008 / 5TH BHADRA 1930 MFA.No. 1177 of 2000() ---------------------- OP.39/1998 of SUB COURT, KASARAGOD .................... APPELLANT/PETITIONER: ----------- Y.V. PRAKASH, S/O. Y.S. VENKATRAMANA BHAT, AGED 34 YEARS, HINDU BRAHMIN, RESIDING AT DOOMUNHIMOOLE, KARADKA VILLAGE, P.O.MOVVAR, KASARAGOD TALUK AND DISTRICT. BY ADV. SMT.SUMATHY DANDAPANI (SR.) RESPONDENT/RESPONDENT: ------------- SMT. KASTURI, D/O. LATE A. PURUSHOTHAMA BHAT, AGED 28 YEARS, RESIDING AT AJAKALAMOOLE OF PADRE VILLAGE, P.O. VANINAGAR, KASARAGOD TALUK AND DISTRICT. BY ADVS. SRI.V.V.ASOKAN SRI.K.I.MAYANKUTTY MATHER THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 27/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: KURIAN JOSEPH & HARUN-UL-RASHID, JJ. ---------------------------------------------------------------- M.F.A.NO. 1177 OF 2000 ---------------------------------------------------------------- Dated this the 27th day of August, 2008 JUDGMENT Harun-Ul-Rashid, J. The appellant is the petitioner in O.P.No. 39 of 1998 on the file of the Sub Court, Kasaragod. The Original Petition was filed by the appellant under Section 13(1) of the Hindu Marriage Act, 1955 for a decree of divorce. The court below as per order dated 6.9.2000 dismissed the Original Petition holding that the petitioner failed to prove the grounds alleged. Hence, this appeal. The parties herein are referred to as the petitioner and respondent as in the Original Petition. 2. The parties are Hindus. Their marriage was solemnised on 16.7.1993 as per the custom prevalent in the community. A female child was born in the wedlock on 15.5.1994. It is alleged by the petitioner that the matrimonial life between him and the respondent was not a happy one and that the respondent and the child left the matrimonial home on 11.5.1996 and since then the parties are living separately. According to the petitioner/husband, his wife was not responding to his love and M.F.A. NO.1177/2000 2 affection and that even on the first night he was hurt by the repulsive conduct of the respondent. He contended that the respondent showed no interest in the marriage, that she withdrew from his company and that even during the first month of the marriage he had sex with the respondent only by persuading her. He further contended that the respondent was totally indifferent and non co-operative and that day by day she was becoming more and more aggressive and their life became very unpleasant. The petitioner pleaded that the respondent was provocative, that she insulted him and abused him in the presence of others and even accused him of being immoral and interested in other women. He also pleaded that even though he and the respondent were living under the same roof, there was no cohabitation. It is further contended by the petitioner/husband that the respondent even neglected the child born to them and did not even care to feed the child. The respondent never cooked food for him, she was totally opposed to sex and frequently attacked him physically. It is further alleged that the respondent used to threaten the petitioner that she would commit suicide and put the blame on him and thereby teach him a lesson. It is further pleaded that during the third week of April, 1996 he found the respondent trying to commit suicide by holding a rope in her hand after tying one end of the rope to a beam of the roof. On observation it was found that her abnormal conduct was due to a hallucination that the M.F.A. NO.1177/2000 3 petitioner was having affairs with other women. The petitioner also contended that on 11.5.1996, the respondent went to her parental house with the child and on 12.2.1997, the parties went to see Dr. K.S. Shetty, a Psychiatrist who prescribed medicines for the respondent and informed that the respondent is a paranoid and is suffering from personality problems and it would not be possible for her to lead a normal wedded life. It is stated that the marriage between the petitioner and the respondent is irretrievably broken and the petitioner cannot reasonably be expected to live with the respondent. The petitioner thus filed the petition for divorce on the ground of cruelty and desertion and also on the ground that the respondent/wife is suffering from an incurable mental illness. 3. The respondent/wife filed a counter denying all the allegations in the petition. According to her, she is a dutiful wife and was responding to all the marital obligations. She contended that she has not withdrawn from the society of the petitioner and that she is prepared to live with the petitioner. The respondent opposed the petition for divorce. 4. Before the court below, the petitioner was examined as PW.1. Three other witnesses were examined on his side as PWs.2 to 4 and Exts.A1 to A5 were marked. The respondent and two other witnesses M.F.A. NO.1177/2000 4 were examined as RWs.1 to 3 and Ext.B1 was marked on her side. Ext.X1 is the out patient register maintained by Father Muller's Hospital, Mangalore. PW.1, tendered evidence to the effect that the respondent/wife used to assault him with the broom stick and even threatened to commit suicide. He also narrated an incident which took place during April, 1996. He further deposed that on another occasion, the respondent had scratched his face with her nails. He stated that the respondent accused him of having sexual relationship with other women. He also admitted having taken the respondent to Dr.Shetty on more than one occasion and that though it was suggested that the respondent should continue the treatment, she did not agree to it. According to PW.1, the respondent started living separately from 11.5.1996. 5. Dr. Shetty was examined as PW.2. He proved Ext.A1 out patient ticket issued to the respondent by Father Muller's Hospital and Ext.X1 out patient register. He deposed before the court that the respondent is emotionally impulsive and immature, paranoid and has personality problems and hence cannot adjust with marital life. He testified that the respondent would get excited very easily and that it can be minimised to a great extent with drugs and counselling, but cannot be completely cured. PW.3 is a neighbour of the petitioner/husband. He was examined to prove M.F.A. NO.1177/2000 5 the cruelty meted out to the petitioner. PW.4 is a relative of the petitioner as well as the respondent and he had made attempts for reconciliation between the parties. He deposed that the respondent/wife told him that the petitioner had illicit relationship with other women. He also deposed that the respondent was completely indifferent to the child and that during her stay at his house, it was his mother and wife who had taken care of the child. He further testified that the family members of the respondent told him that the respondent was not willing to undergo treatment. 6. The respondent/wife who was examined as RW.1 testified in terms of her case and denied the allegations levelled against her. Finding that RWs.2 and 3 were interested witnesses, the court below did not place reliance on their evidence. The court below examined the evidence tendered by the parties and observed that the cruelty alleged and proved against the respondent can only be the repercussion of the fact that she is suffering from some mental disorder. The court below further observed that the case of desertion also could only be due to the fact that the respondent was not able to reconcile with her husband due to her mental problem. 7. It is a proved fact that the respondent/wife was not willing to M.F.A. NO.1177/2000 6 undergo treatment for her mental disorder and she refused to take the medicines prescribed by the doctor. Though the ground of desertion was found in favour of the petitioner, the petitioner was non suited for the reason that desertion was due to the mental disorder suffered by the respondent. The cruelty and desertion alleged by the petitioner will continue unless and until the respondent agrees for medical treatment. Till date, the respondent is not amenable for treatment. That being so, the petitioner cannot be asked to suffer the cruelty throughout his life. It may be true that the respondent is suffering from some kind of mental disorder, but the petitioner cannot be expected to live with her. Therefore, the dismissal of the Original Petition by the court below on the ground that the cruelty and desertion alleged against the respondent are the repercussion of her mental illness cannot stand. 8. It is in evidence that the behaviour of the respondent/wife was unbecoming of a dutiful wife, often putting him to humiliation and misery. The petitioner/husband had testified that he had endured all these so as to avoid a scandal that his marriage was not a success. He had in detail explained the attitude and behaviour of his wife. PW.3, a neighbour of the petitioner had also testified that there were always problems in the house of the petitioner, that the respondent/wife was solely responsible for the M.F.A. NO.1177/2000 7 problems and that he had seen the respondent beating the petitioner with a broom stick. PW.4 who is related to both the parties also testified about the abnormal and strange behaviour of the respondent. It has also come out in evidence that the respondent used to abuse the petitioner of having illicit relationship with other women including her brother's wife. 9. On an evaluation of the materials on record, we are of the view that the petitioner/husband is put to severe hardship and he suffered cruelty both physical and mental due to the behaviour of his wife. It is not in dispute that the parties are living separately since 11.5.1996. Even assuming, as found by the court below, that the cruelty alleged and proved against the respondent/wife is only the repercussion of her mental illness, the same reason cannot be attributed to desertion also. It is an admitted fact that the respondent/wife deserted the petitioner/husband for no fault of the petitioner and they are living separately for the last 12 years. It is also an admitted fact that the respondent/wife is not willing to undergo treatment. It is also a fact that the respondent deserted the petitioner for reasons only known to her. It may be true that the cruelty was not deliberate, but only due to the mental illness suffered by the respondent. But the petitioner is entitled to a decree of divorce on the ground of desertion. The parties are separated since 1996. It is also an admitted M.F.A. NO.1177/2000 8 fact that the respondent did not return to her matrimonial home and did not resume co-habitation after 1996. Because of the irretrievable breakdown of the marriage, the marriage between the parties has been rendered a dead wood. 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. 10. 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 M.F.A. NO.1177/2000 9 judgment of the High Court and affirm the order of the Family Court granting decree of divorce. 11. 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. 12. 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. M.F.A. NO.1177/2000 10 In the result, the judgment and decree of the court below is set aside. The appeal is allowed. The marriage between the petitioner and respondent is dissolved with effect from today. There will be no order as to costs. (KURIAN JOSEPH, JUDGE) (HARUN-UL-RASHID, JUDGE) sp/ M.F.A. NO.1177/2000 11 KURIAN JOSEPH & HAURN-UL-RASHID, JJ. M.F.A. NOS.1177/2000 JUDGMENT 27h August, 2008