IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN THURSDAY, THE 19TH FEBRUARY 2009 / 30TH MAGHA 1930 Mat.Appeal.No. 100 of 2004() ---------------------------- OP.671/1997 of FAMILY COURT,THRISSUR .................... PETITIONER(S): APPELLANT/PETITIONER IN O.P.671/97. -------------------- PRADEEP, S/O.PUTHENPURAKKAL KESAVAN, AGED39 YEARS, PUTHENPURAKKAL HOUSE, ADATT VILLAGE AND DESOM, THRISSUR TALUK. BY ADV. SRI.P.GOPAKUMARAN NAIR SRI.C.S.DIAS SRI.P.MURALEEDHARAN (THURAVOOR) RESPONDENT(S): RESPONDENT IN 671/97. ------------------------------------ SUJATHA, D/O.EDAKKATTIL APPUKUTTY, AGED 36 YEARS, EDAKKATTIL HOUSE, KUNNAMKULAM VILLAGE, KANIYAMPAL DESOM, THALAPPILLY TALUK, THRISSUR DISTRICT. ADV. SRI.K.J.SAJI ISAAC FOR R1 THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 19/02/2009, ALONG WITH MA NO.101 OF 2004, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.R.RAMAN & P.S.GOPINATHAN, JJ. ------------------------------- MAT Appeal Nos.100 & 101 of 2004 ------------------------------- Dated this the 19th February, 2009 J U D G M E N T Raman, J. The appellant in Mat.Appeal No.100 of 2004 is the petitioner in O.P.No.671 of 1997, on the file of Family Court, Thrissur. That is a petition for divorce filed by the husband under Sections 13(1)(ib) & 13(1-A)ii of the Hindu Marriage Act, 1955, (hereinafter referred to as 'the Act' for short) on the ground that there was no restitution of conjugal rights as between the parties for a period of one year or more than one year after passing of the decree. In this case, admittedly, a petition for restitution of conjugal rights filed by the husband as O.P.No.213 of 1995 was decreed on 31.8.1995. Thereafter, the present original petition was filed on 20.10.1997. Therefore, there is no dispute that the statutory period of more than year required to pass a decree under Section 13(1-A)ii of the Act is Mat.Appeal.Nos. 100 & 101 of 2004 2 satisfied, provided, it is proved that there has been no restitution of conjugal rights as between the parties. It was contended by the husband, appellant herein, that he is entitled to get a decree for divorce under Section 13(1-A)ii of the Act, since the wife failed to comply all the conditions for restitution of conjugal rights. Though in Ext.B5 reply notice given by the wife to the notice issued by the husband, Ext.B3, the wife asserted that she was ready to resume cohabitation and further alleged that it was the husband who was not willing to resume cohabitation. 2. The court below noticed that the husband had no case that he has taken any steps for restitution of decree for conjugal rights in terms of Order XXI Rule 33 of the Code of Civil Procedure. But after the decree obtained by the husband for restitution of conjugal rights, wife had expressed her willingness for cohabitation, but the husband never filed execution of the decree. Therefore, the court below thought that the husband cannot seek divorce on the plea of failure to resume cohabitation, even though his conduct would unambiguously made clear his Mat.Appeal.Nos. 100 & 101 of 2004 3 intention in not to have resumption of cohabitation. It is the only ground on which it was held that he was not entitled to get a decree for divorce. The court below also went to hold that husband obtained a decree for restitution of conjugal rights ex parte, there is no ground to deny maintenance to wife and maintenance was ordered. That part of the order granting maintenance was not the subject matter in this appeal, and in the absence of any such contention, it is not necessary to consider the relief granted regarding the maintenance. Therefore, the finding is that though the statutory period required for granting a divorce decree in terms of Section 13(1-A)ii of the Act is satisfied in this case, it is presumed that in spite of reply noticed by the wife, Ext.B5, to resume cohabitation, the appellant- husband did not favourably responded, nor did he seek to execute the decree of restitution of conjugal rights by filing any execution petition. In other words, in the order obtained by him earlier for restitution of conjugal rights, if as a matter of fact the wife was at default, the appellant could have taken steps to Mat.Appeal.Nos. 100 & 101 of 2004 4 execute the order and the failure to take such steps to execute the order is considered to be an important factor to show that the default was on the part of the appellant. 3. It is pointed out by the learned counsel appearing for the appellant that Ext.B3 is a notice issued by him earlier to the petition filed for restitution of conjugal rights, and Ext.B5 was the reply sent by his wife. Therefore, reference to Exts.B3 and B5 in the present proceedings to draw any inference against the appellant may not be correct. It is true that the appellant did not take any steps for executing the decree of restitution of conjugal rights. The court below entered a specific finding, as to the conduct of the parties, after obtaining the decree for restitution of conjugal rights, that either of them or both of them were not prepared to cohabitate. But the allegation of the wife is that she remained to reside away from the husband even before filing the earlier proceedings, is due to the cruelty meted out to her by him. The fact remains that prior to the filing of the petition of restitution of conjugal rights or even Mat.Appeal.Nos. 100 & 101 of 2004 5 after obtaining a decree, the parties were residing separate. Thus, for the past several years, there was no re-union or cohabitation. This long distance of time is a clear indication that the matrimonial tie has irretrievably broken and that no purpose will be served by imposing continuance of such relationship, as held by the Apex Court in Naveen Kohli v. Neelu Kohli (2006 (4) SCC 558) . It was held by the Apex Court that when parties are living separately for a sufficient length of time and one of them brings a petition for divorce decree, it can be presumed that marriage has broken down irretrievably. It will be against the interest of both the parties as well as against interest of the society to refuse to grant decree for divorce in such cases. 4. Yet another ground on which divorce is refused is that when the appellant was at fault in not taking steps for cohabitation pursuant to the decree for restitution of conjugal rights, he cannot take advantage of his own fault and seek for divorce under Section 13(1-A)ii of the Act . But such contention has been negatived by the Apex Court in Smt.Saroj Rani. v. Mat.Appeal.Nos. 100 & 101 of 2004 6 Sudarshan Kumar Chadha (AIR 1984 SC 1562) and Dharmedra Kumar v. Usha Kumar (1977 (4) SCC 12), wherein it was held that failure on the part of the appellant to execute the decree for restitution of conjugal rights will not dis- entitle him for a decree of divorce. (Also see this Court's decision in Radhakumari v. Dr.K.M.K.Nair (AIR 1988 Kerala 235) At the same time, as held by the Apex Court in Hirachand Srinivas Managaonkar v. Sunanda (AIR 2001 SC 1285), it is equally not mandatory or compulsory to grant a decree for divorce merely on the allegation of fulfillment of the condition under Section 23 of the Hindu Marriage Act. 5. On a careful consideration of the above decisions , in the light of the facts and circumstances pointed out above, we are however satisfied that the marriage tie is broken as both sides are not prepared to resume cohabitation and it will be penalising to compel the tie alone to continue and it will be against the interest of the society to do so. Mat.Appeal.Nos. 100 & 101 of 2004 7 6. In the result, Mat. Appeal 100 of 2004 is allowed and the order passed by the Family Court, Thrissur, in O.P.No.671 of 1997, is set aside and we decree the suit as prayed for. Divorce granted. 7. Mat.Appeal. 101 of 2004 arises out of an order passed by the Family Court in a claim for return of the gold ornaments and money by the wife and also for past maintenance. The court below by the impugned order under appeal, O.P.No.459/1998, allowed the claim, directing the appellant herein to pay past maintenance at the rate of Rs.400/= per month for the last 36 months from the date of filing the petition, and to pay the value of the gold ornaments to a tune of Rs.55,000/= and Rs.10,000/= by the husband. 8. We have gone through the judgment and heard the arguments of the learned counsel appearing on either side. The court below has meticulously considered the evidence on record and it is only thereafter that the findings were made. Mat.Appeal.Nos. 100 & 101 of 2004 8 Though 15 sovereigns was ordered to be returned, only Rs.55,000/= is calculated as its value. Even otherwise, while granting a divorce decree, under Section 35 of the Hindu Marriage Act, the court is entitled to pass a decree for maintenance. In such circumstances, we do not find, it is a fit case for interference. Accordingly, Mat.Appeal.No.101 of 2004 is dismissed. In the result, Mat.Appeal No.100 of 2004 is allowed and Mat.Appeal No.101 of 2004 is dismissed. P.R.RAMAN, JUDGE P.S.GOPINATHAN, JUDGE. nj.