IN THE HIGH COURT OF KERALA AT ERNAKULAM
MFA No. 1261 of 1999(B)
1. KRISHNAN VENUGOPALAN
... Petitioner
Vs
1. SREEDEVI @ SRIMATHI
... Respondent
For Petitioner :SRI.M.P.KRISHNAN NAIR
For Respondent :SRI.J.OM PRAKASH
The Hon'ble MR. Justice KURIAN JOSEPH
The Hon'ble MR. Justice HARUN-UL-RASHID
Dated :12/02/2008
O R D E R
KURIAN JOSEPH & HARUN-UL-RASHID, JJ.
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M.F.A. NO. 1261 OF 1999
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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.