IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 4TH JUNE 2008 / 14TH JYAISHTA 1930 MFA.No. 965 of 2002() ------------------------------ OP(HMA)NO.271/1998 of ADDL. DISTRICT COURT, PATHANAMTHITTA .................... APPELLANT/ PETITIONER IN OP ---------------------------------------------- VISALAKSHI N. D/O. NARAYANAN, PALAMUTTATHU HOUSE, THENGAMOM (SOUTH) P.O., PALLICKAL VILLAGE,ADOOR TALUK. BY ADV. SRI.N.UNNIKRISHNAN RESPONDENT/ RESPONDENT IN OP -------------------------------------------------- DHARMARAJAN K., CHEKKOORAPADINJATTATHIL THENGAMON P.O., PALLICKAL VILLAGE, ADOOR TALUK. BY ADV. SRI.C.B.SREEKUMAR THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 04/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.Koshy & P.N.Ravindran, JJ. ===================== M.F.A.No.965 of 2002 ===================== Dated this the 4th day of June, 2008. JUDGMENT Ravindran,J. This appeal arises from the order passed by the Court of the Additional District Judge, Pathanamthitta in O.P.(H.M.A.)No.271 of 1998, a petition filed by the appellant herein under Section 13 (1) (ia) and 13(1)(ib) of the Hindu Marriage Act, 1955, seeking a decree dissolving her marriage with the respondent. By the order under challenge, the court below dismissed the petition. Hence, this appeal. The brief facts of the case are as follows: 2. The marriage between the appellant and the respondent was solemnised on 23.6.1994. After the marriage, they were residing in the respondent's house. The appellant is employed as a teacher at Vadakara in Kozhikode District. It is alleged that after the marriage, the respondent started abusing and torturing the appellant and had no love and affection towards her. The appellant alleges that 15 sovereigns of gold ornaments belonging to her were taken away and sold by the respondent and that MFA 965/02 -: 2 :- when his attitude and behaviour towards her become unbearable, she returned to her house on 27.8.1996. The petition for divorce was thereupon filed apprehending that her life will be in danger if she continues to live with the respondent. 3. The respondent resisted the petition contending inter alia that after the marriage, the appellant resided with him only for 10 days and thereafter, she left for Vadakara, her place of employment. He also averred that as the appellant was employed far away, they could not live together as husband and wife and that the appellant used to visit him during summer, Onam and X'mas vacations. He also stated that occasionally he used to go over Vadakara and stay with the appellant. He denied the allegation of the appellant that he was abusing and torturing her. According to him, the appellant used to state that he is uneducated and has no regard for her and very often the appellant used to tell him that there were many other good proposals seeking her hand in marriage. He also denied the allegation that he had taken away and sold the gold ornaments belonging to the appellant. 4. In the court below, the appellant was examined as PW1 MFA 965/02 -: 3 :- and a near relation of hers was examined as PW2. Ext.A1 is an agreement entered into between the appellant and the respondent on 6.11.1998 whereby they agreed to separate. On the side of the respondent, no evidence was adduced. By the order under challenge, the court below held that the appellant has not made out a case for divorce either on the ground of cruelty or desertion and that no credence can be placed on Ext.A1. The petition was accordingly dismissed. 5. We heard Sri.N.Unnikrishnan, the learned counsel appearing for the appellant and Sri.C.B.Sreekumar, the learned counsel appearing for the respondent. The learned counsel for the appellant contended that the court below was not justified in ignoring Ext.A1 and that having regard to the fact that the appellant and the respondent are admittedly residing separately since August, 1996, the court below ought to have accepted Ext.A1 and granted a decree of divorce. The learned counsel for the appellant further submitted that as the respondent had not chosen to enter the box or to dispute the validity or genuineness of Ext.A1, the court below ought to have granted a decree of divorce dissolving the marriage between the appellant and the MFA 965/02 -: 4 :- respondent. Per contra, the learned counsel appearing for the respondent contended that on the evidence on record it is not possible to hold that the appellant has made out the grounds alleged in the petition for divorce. 6. We have considered the submissions made at the Bar. It is common case that since August, 1996, the parties to the marriage are residing separately. It has also come out in evidence that there were several attempts at mediation thereafter. Though we concur with the findings of the court below that the appellant has not made out grounds alleged in the petition for divorce, it is evident that the attempts at reconciliation have failed. As noticed earlier, the respondent had not chosen to enter the box and challenge the validity and genuineness of Ext.A1. From the admitted facts of the case and the recitals in Ext.A1, it is crystal clear that the marriage between the appellant and the respondent has broken down and that ever since August 1996, the appellant and the respondent are residing separately. In our view, the evidence on record including the recitals in Ext.A1 establish that the marriage between the appellant and the respondent has irretrievably broken down. MFA 965/02 -: 5 :- Though the parties were present before the Lok Adalat held on 14.6.2000 the attempt at re-conciliation failed. From the materials on record and the attendant circumstances, we are satisfied that the marriage between the appellant and the respondent has irretrievably broken down and that it will not be desirable to continue their relationship. The Apex Court has in Naveen Kohli v. Neelu Kohli - AIR 2006 S.C. 1675 and Samar Ghosh v. Jaya Ghosh - 2007(4) S.C.C. 511 held that if attempt for re-conciliation is not possible, it is not desirable to compel the parties to live together. In such circumstances, we set aside the order under challenge and grant the appellant a decree of divorce dissolving her marriage with the respondent on the ground that the marriage between them has irretrievably broken down. The appeal is allowed as above. No costs. J.B.Koshy, Judge. P.N.Ravindran, Judge. ess 9/6