IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 12TH FEBRUARY 2008 / 23RD MAGHA 1929 MFA.No. 1261 of 1999(B) ----------------------- OPHMA.30/1998 of ADDL.SUB COURT, ALAPPUZHA .................... APPELLANT/PETITIONER: ----------- KRISHNAN VENUGOPALAN, RESIDING AT KATTUNKAL THAIPARAMBU VEETTIL, VAZHYCHERRY WARD, ALAPPUZHA. BY ADV. SRI.M.P.KRISHNAN NAIR RESPONDENT/COUNTER PETITIONER: ------------- SREEDEVI @ SRIMATHI, RESIDING AT CHALE VELII, CHARAMANGALAM, S.N. PURAM, CHERTHALA. BY ADV. SRI.J.OM PRAKASH THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 12/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: KURIAN JOSEPH & HARUN-UL-RASHID, JJ. ---------------------------------------------------------------- M.F.A. NO. 1261 OF 1999 ---------------------------------------------------------------- Dated this the 12th day of February, 2008 JUDGMENT Harun-Ul-Rashid, J. This appeal is directed against the judgment dated 16.6.1999 in O.P. (HMA) No.30 of 1998 on the file of the Additional Sub Court, Alappuzha. The petitioner in the Original Petition is the appellant. The petition filed by the petitioner/husband under Section 13(1) of the Hindu Marriage Act, 1955 for a decree of divorce was dismissed by the trial court holding that the petitioner is not entitled to get a decree of divorce on the grounds stated in the petition. 2. The parties herein are referred to as the petitioner and respondent as in the Original Petition. The parties belong to Ezhava community. They got married on 15.4.1976 in accordance with the custom and ceremonies prevalent in the community. After marriage, they resided together till the end of 1980 and three children were born in the wedlock. The first two children who are twins were born on 20.2.1977 and the third M.F.A.NO.1261/1999 2 child was born on 1.9.1978. It is pleaded that subsequent to the second delivery, the respondent started behaving cruelly towards the petitioner, spoiling the peaceful domestic atmosphere, that she maintained illegal connection with strangers in the absence of the petitioner, that she treated the petitioner with contempt and made use of all opportunities to ridicule him before his friends and relatives, that she failed to discharge the obligations of marriage and look after the affairs of the petitioner and the children and that by the end of 1980, the respondent left the house of the petitioner with the female child and continued her illegal connection with strangers. Thereafter, the respondent filed M.C. No.42 of 1981 before the Judicial First Class Magistrate's Court, Cherthala claiming maintenance for herself and the female child. The said petition was allowed by the learned Magistrate. The daughter was given in marriage by the respondent on 13.4.1998 without informing the petitioner. It is also alleged that it is impossible for the petitioner to have a life with the respondent under any circumstances. The petitioner also suspects that his life itself would be in danger in case he happened to live with the respondent. 3. The respondent resisted the petition for divorce contending inter alia that it was the petitioner who had taken her and the child to her house on 20.12.1980. She further contended that though the petitioner used to M.F.A.NO.1261/1999 3 visit her every week, subsequently he stopped visiting her and it was thereafter that she filed the petition for maintenance. The petition was allowed finding that the petitioner/husband failed to maintain his wife and daughter without any reasonable cause. The respondent also denied the allegation that she behaved cruelly to the petitioner and that she maintained illegal connection with strangers. She pleaded that she had not treated the petitioner with contempt nor had she deserted him as alleged in the petition. 4. The court below examined three issues: (i) whether the respondent had treated the petitioner with cruelty, (ii) whether the assertions of immorality made against the respondent are true and (iii) whether the respondent had deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the Original Petition. 5. The evidence in this case consists of the oral evidence of the petitioner, his son and the respondent who were examined as PWs.1 and 2 and RW.1 respectively. Exts.A1 to A4(a) were marked on the side of the petitioner. The court below found that no satisfactory material has been adduced even prima facie to support the assertions of immorality, that the M.F.A.NO.1261/1999 4 petitioner did not implead the persons with whom the respondent had allegedly been living in adultery as co-respondents, that the evidence adduced in this case is not sufficient to come to the conclusion that the respondent had committed physical and mental cruelty to the petitioner and that the petitioner had not succeeded in showing that the respondent had deserted him. On the basis of these findings, the court below held that the petitioner is not entitled to a decree for divorce and dismissed the petition. 6. It is an admitted fact that the respondent left the residence of the petitioner along with the female child in the year 1980 and they have been living separately since then. As PW.1, the petitioner deposed that there has not been any co-habitation or joint residence between the parties subsequent to the departure of the respondent from the residence of the petitioner. The respondent gave evidence stating that the petitioner failed to visit her house subsequent to their separation and that she filed M.C. No.42 of 1981 for maintenance. Admittedly, the petitioner and the respondent had been living separately since the end of 1980. The court below disbelieved the evidence of the respondent that the petitioner used to visit her after she began to reside in her house by the end of 1980. So, it has to be concluded that for the last 27 years, the husband and wife are M.F.A.NO.1261/1999 5 living separately. The conduct of the parties and the facts of the case reveal that the parties had made up their minds to put an end to the marital relation and co-habitation permanently, at least for the last two and a half decades. 7. Desertion is an act which implies abandonment against the wish of the person charging it. In this case, it was the respondent who left the matrimonial home and started residing separately. The question raised is will the conduct amount to desertion on the part of the respondent. The Supreme Court in the decision reported in Bipinchandra Jaisingbhai Shah v. Prabhavati, AIR 1957 SC 176 held that where the wife is forcibly turned out of her marital home by the husband, the husband is guilty of constructive desertion. The test is not who left the matrimonial home first. If one spouse by his words and conduct compels the other spouse to leave the marital home, the former would be guilty of desertion, though it is the latter who is physically separated from the other and has been made to leave the marital home. There is no evidence in this case to find that the wife was forcefully turned out of her matrimonial home by the husband. Exts.A4 and A4(a) would show that the respondent had received amounts sent towards maintenance by the petitioner. The evidence of PW.2, the son of the parties shows that the respondent, his M.F.A.NO.1261/1999 6 mother, had never visited the house where he and his father were residing. He had also deposed that he is now aged 21 years and that he had seen the respondent only once after she left the matrimonial home. The available evidence discussed above shows that the respondent/wife had left the matrimonial home without reasonable and sufficient cause and that she had put an end to the marital relation and co-habitation. Under these circumstances, the respondent is to be blamed for the desertion which constitutes a ground for divorce. 8. Twenty-seven years have elapsed since the petitioner and respondent have been separated. We have made some earnest efforts to find whether the parties are willing to reside together. We find that there is no possibility of the parties resuming normal marital life. There has been an irretrievable breakdown of marriage between the husband and the wife. The husband had proved before the Family Court both the factum of separation as well as animus deserendi which are the essential elements of desertion. A workable solution is certainly not possible. The parties cannot at this stage reconcile themselves and live together forgetting their past. Because of the irretrievable breakdown of the marriage, the marriage between the parties has been rendered a dead wood. Learned counsel appearing for the appellant submitted before us that no purpose will be M.F.A.NO.1261/1999 7 served by keeping such a marriage alive on paper which would only aggravate the agony of the parties. 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 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 also find that the parties cannot at this stage reconcile themselves and live together as husband and wife forgetting their past. Both the parties have crossed the point of no return. Therefore, we are of M.F.A.NO.1261/1999 8 the considered view that in the interest of justice, the appeal is to be allowed setting aside the impugned judgment. In the result, the appeal is allowed. A decree of divorce is granted dissolving the marriage between the appellant and the respondent with effect from today. There will be no order as to costs. (KURIAN JOSEPH, JUDGE) (HARUN-UL-RASHID, JUDGE) sp/ M.F.A.NO.1261/1999 9 KURAIN JOSEPH & HAURN-UL-RASHID, J.J M.F.A.NO1261/1999 JUDGMENT 12TH FEBRUARY, 2008.