IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 14TH AUGUST 2008 / 23RD SRAVANA 1930 Mat.Appeal.No. 22 of 2003(F) ---------------------------- OPHMA.150/1998 of FAMILY COURT, KOTTAYAM .................... APPELLANT/RESPONDENTS --------------------------------- 1. ASHA DEVI.R., D/O.R.K.PANICKAR, AGED 26 YEARS, ASHOK NIVAS, KUZHIMATTOM P.O., KOTTAYAM. 2. R.K.PANICKER, ASHOK NIVAS, KUZHIMATTOM P.O., KOTTAYAM. BY ADVS. SRI.SAJAN MANNALI SRI.JAMES MATHEW KADAVAN SRI.M.P.JAYAKUMAR SMT.SUMEEDA. M.S RESPONDENT: PETITIONER ----------------------- K.N.MOHANAN NAIR, AGED 35 YEARS, S/O.LATE NARAYANAN NAIR, KADAPPATH HOUSE, AYROOR SOUTH P.O., PATHANAMTHITTA DISTRICT. BY ADVS. SRI.SUBAL J.PAUL SMT.SHEEBA SUBAL THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 14/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: KURIAN JOSEPH & HARUN-UL-RASHID, JJ. ---------------------------------------------------------------- MAT. APPEAL NO. 22 OF 2003 ---------------------------------------------------------------- Dated this the 14th day of August, 2008 JUDGMENT Harun-Ul-Rashid, J. The respondents in O.P. (H.M.A.) No.150 of 1998 on the file of the Family Court, Kottayam at Ettumanoor are the appellants. The appeal is directed against the order dated 18.10.2002 in the said Original Petition whereby the marriage between the petitioner and the first respondent was annulled by a decree of nullity with effect from the date of the order. The parties herein are referred to as the petitioner and respondents as in the Original Petition. 2. The marriage between the petitioner and the first respondent was solemnised on 16.9.1997 as per the custom prevalent in the community. It is the case of the petitioner/husband that the first respondent/wife behaved abnormally towards him and that due to the strange behaviour of the first respondent, the marriage was not consummated. It is his further case that the first respondent left the marital home on 18.10.1997 and did not come back. The petitioner, therefore, filed the Original Petition under Section Mat. Appeal No.22/2003 2 12(1)(a) and (b) of the Hindu Marriage Act, 1955. The respondents filed objection denying the allegations in the Original Petition. The second respondent is the father of the first respondents. According to the first respondent, the marriage was consummated and that she became mentally deranged due to the strange behaviour and ill treatment of the petitioner/husband. She also stated that the petitioner tortured her physically and mentally and took her to her parental home on 18.10.1997. The evidence in the case consisted of the oral evidence of the petitioner and the first respondent who were examined as PW.1 and RW1. respectively. The petitioner also produced Ext.A1. The Family Court on evidence passed the impugned order annulling the marriage between the petitioner and the first respondent by a decree of nullity. 3. Heard both sides. Learned counsel appearing for the appellant submitted that considering the age of the first appellant, the finding entered by the court below annulling the marriage is painful and that it will affect her future prospects in life. Counsel, therefore, requested that the said finding be set aside and to grant divorce on any other ground. The respondent also did not seriously oppose the said request. 4. The marriage between the petitioner and the first respondent was Mat. Appeal No.22/2003 3 solemnised on 16.9.1997. Their relationship did not last long. The parties resided together only for two months and the marital relationship ended thereafter. Ten years have lapsed since the petitioner and the first respondent had 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 18.10.1997. 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 ten 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. The parties cannot in the background of their disputes at this stage reconcile themselves and live together forgetting their past. 5. 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 Mat. Appeal No.22/2003 4 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. 6. 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. 7. 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 Mat. Appeal No.22/2003 5 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 appeal is dismissed. The findings recorded by the Family Court for annulling the marriage under Section 12(1)(a) and (b) of the Hindu Marriage Act are set aside and a decree of divorce is granted on the ground of irretrievable breakdown of marriage and long separation. There will be no order as to costs. (KURIAN JOSEPH, JUDGE) (HARUN-UL-RASHID, JUDGE) sp/ Mat. Appeal No.22/2003 6 KURIAN JOSEPH & HAURN-UL-RASHID, JJ. MAT.APPEAL NO.22/2003 JUDGMENT 14th August, 2008