IN THE HIGH COURT OF KERALA AT ERNAKULAM
Mat Appeal No. 386 of 2006()
1. V.GEETHA, AGED 39 YEARS,
... Petitioner
Vs
1. O.K.RADHAKRISHNAN,
... Respondent
For Petitioner :SRI.M.SASINDRAN
For Respondent :SRI.K.RAMACHANDRAN
The Hon'ble MR. Justice KURIAN JOSEPH
The Hon'ble MR. Justice HARUN-UL-RASHID
Dated :19/03/2008
O R D E R
KURIAN JOSEPH & HARUN-UL-RASHID, JJ.
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MAT. APPEAL NO.386 OF 2006
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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