IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 19TH MARCH 2008 / 29TH PHALGUNA 1929 Mat.Appeal.No. 386 of 2006() ---------------------------- OP.108/2004 of FAMILY COURT, KANNUR .................... PETITIONER: APPELLANT --------------------- V.GEETHA, AGED 39 YEARS, D/O.MUKUNDAN NAMBIAR, 'PANCHAMI', P.O.PILATHARA, KANNUR DISTRICT. BY ADVS. SRI.M.SASINDRAN SRI.M.V.BIPIN RESPONDENT/RESPONDENT: ------------- O.K.RADHAKRISHNAN, AGED 47 YEARS, S/O.SANKARAN NAIR, O.K.HOUSE, OTHAYAMMADAM, P.O.CHERUKUNNU, KANNUR DISTRICT. BY ADVS. SRI.K.RAMACHANDRAN SRI.K.T.SHYAMKUMAR SMT.R.MEERA SMT.A.R.DIVYA THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 22/02/2008, THE COURT ON 19/03/2008 DELIVERED THE FOLLOWING: KURIAN JOSEPH & HARUN-UL-RASHID, JJ. ---------------------------------------------------------------- MAT. APPEAL NO.386 OF 2006 ---------------------------------------------------------------- Dated this the 19th day of March, 2008. JUDGMENT Harun-ul-Rashid, J. The petitioner in O.P. No.108 of 2004 on the file of the Family Court, Kannur is the appellant. O.P. No.108 of 2004 was filed under Section 13(1)(ia)and (ib) of the Hindu Marriage Act, 1955 (hereinafter referred to as "the Act") for dissolution of the marriage between the petitioner and the respondent on the grounds of desertion and cruelty. The above grounds canvassed for a decree of divorce were negatived by the Family Court. Hence, this appeal. 2. The parties herein are referred to as the petitioner and respondent as in the Original Petition. The brief facts pleaded in the petition for divorce are as follows: The marriage between the parties was solemnised on 29.8.1993. They lived together as husband and wife for 2-3 months. During this time, the petitioner begot a child and immediately, the respondent took her to her parental house and left her there. The petitioner gave birth to a female child on 25.9.1994 and after five months of the delivery, the respondent took the petitioner and the child to his house. Her stay in the Mat. Appeal No.386/2006 2 matrimonial home for the second time lasted only for a few days and she was again taken to her parental home. It is the case of the petitioner that for the last ten years, she is living separately. According to the petitioner, her stay in the matrimonial home was tense and that her husband and his relatives behaved very badly and rudely towards her. It is her further case that the respondent/husband did not take care of her and the child and that it was her father who used to attend to her needs. The respondent turned a blind eye to her needs and evaded his duties and responsibilities as a husband and father. It is further alleged by the petitioner that the respondent is residing in his own house for the last ten years without discharging his obligations and that he has deserted her. According to her, there is no meaning in continuing the marital relationship and, therefore, filed the application for divorce under Section 13(1)(ia)and (ib) of the Act. 3. The respondent denied the allegations of the petitioner/wife inter alia contending that the petitioner wanted to reside along with her parents and since he was not agreeable to this, she started residing separately on her own accord. According to the respondent, for over two months, he had to suffer the adamant attitude of the petitioner and finally he had to prevail upon his mother to get permission to take the petitioner to her Mat. Appeal No.386/2006 3 house. The respondent further contended that after the petitioner started residing separately, he used to visit her twice a week and used to take her to the doctor whenever the need arose. The petitioner has been residing in her family house for the past ten years and the respondent was making his weekly visits till recently. He denied the allegation that he had no love or affection towards the petitioner or that he was unconcerned about her welfare. The respondent also denied the allegation that he was not providing her maintenance. He further contended that he intents to continue the marital relationship with the petitioner and that no valid grounds are made out by the petitioner for seeking divorce. 4. The petitioner and the respondent were examined as AW.1 and RW.1 respectively in support of their respective contentions and Exts.B1 and B2 were marked on the side of the respondent. The Family Court found that the petitioner failed to establish the grounds of desertion and cruelty. The Family Court further found that there is no proper pleadings and evidence on the part of the petitioner to substantiate the ground of cruelty. The Family Court also noticed that the facts spoken to by the petitioner are only touching the wear of a normal marital life. On the basis of the above findings, the Family Court held that the petitioner was not entitled to get a decree of divorce. Mat. Appeal No.386/2006 4 5. The marriage between the parties was solemnised on 29.8.1993. The petitioner lived with her husband only for two to three months and she became pregnant during the said period. The petitioner as AW.1 testified that the doctor had advised her to take bed rest and prolonged treatment and that on coming to know about the advice given by the doctor, the respondent/husband took her to her house. According to the petitioner, the respondent was not prepared to attend to her during the period she was advised to take bed rest and that was the reason for taking her to her house. The respondent, according to the petitioner, was not dutiful in attending her and that it was her father who used to take her to the hospital. She also deposed that her daughter is physically disabled due to an abnormal growth of bone and that the child also requires continuous and permanent medical treatment. She further deposed that the respondent is not maintaining her and the child and that she and her child are under the care and protection of her father and their expenses are also met by her parents for the past several years. The petitioner also spoke about her mental tension and cruelty of her husband during the period of three months that they resided together. According to her, the mother of the respondent and other family members were bent upon making quarrels and that they abused her many times using filthy language. She also stated that her life Mat. Appeal No.386/2006 5 in her matrimonial home was full of misery. She further testified that she was unable to get along with the atmosphere in her matrimonial home due to the bad behaviour of her husband and the other family members. She explained several instances of mental cruelty meted out to her. According to her, she developed a feeling that her husband is not able to protect her and their child. Therefore, after marriage she continued her studies and passed B.A., M.A., B.Ed and M.Phil. courses. She also testified that the respondent had not given her any amount towards her education or other expenses. Since the said state of affairs continued for about ten years, according to her, she was constrained to send a lawyer's notice for ending the marital life. She also deposed that on coming to know about the filing of the petition for divorce, the respondent/husband filed O.P. No.539 of 2004 seeking custody of the child. The petitioner has stated that her daughter is suffering from a peculiar disease of abnormal growth of bone which requires regular treatment. She has been continuously attending to her child who is suffering from excrutiating pain. She has dedicated her life for attending and protecting her child. The Original Petition filed by the respondent for custody of the child after ten years itself is a cruel conduct. 6. The fact that the parties are living separately for the last 14 years Mat. Appeal No.386/2006 6 and the fact that the respondent was not performing the duties of a husband as well as father are sufficient to establish animus deserendi for granting divorce in favour of the appellant. During the period of separation,the respondent/husband never attempted or offered to have a joint living as husband and wife. This Court made every effort for a reconciliation. The appellant and her daughter attended the Lok Adalat on 20.2.2007 as directed by this Court and the Lok Adalat after conciliaton on 20.2.2007 and 5.3.2007reported that there is no possibility for settlement. This Court, therefore, directed the parties to be present on 1.6.2007. This Court found that reunion was not possible due to the attitude of the parties. For the last 14 years, the parties are living separately. The facts and circumstances of the case conclusively prove that the parties are living separately with the intention to end the marital life. 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. 7. Desertion is an act which implies abandonment against the wish of the person charging it. In this case, the respondent 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 Mat. Appeal No.386/2006 7 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. The available evidence discussed above shows that the respondent/wife had put an end to the marital relationship and co-habitation. 8. Fourteen years have elapsed since the petitioner and respondent have been separated. 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. A workable solution is certainly not possible. The parties cannot in the background of their disputes 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 Mat. Appeal No.386/2006 8 will be 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 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) Mat. Appeal No.386/2006 9 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. 11. The Supreme Court observed that once the parties are 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 also be harmful to the society and injurious to the interests of the parties. In the result, the appeal is allowed. The marriage between the petitioner and the respondent is dissolved with effect from today. There will be no order as to costs. (KURIAN JOSEPH, JUDGE) (HARUN-UL-RASHID, JUDGE) sp/ Mat. Appeal No.386/2006 10 KURAIN JOSEPH & HAURN-UL-RASHID, J.J MAT APPEALNO.386/2006 JUDGMENT 19TH MARCH, 2008