{"id":40226,"date":"2008-03-19T00:00:00","date_gmt":"2008-03-18T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/v-geetha-vs-o-k-radhakrishnan-on-19-march-2008"},"modified":"2018-11-25T17:45:14","modified_gmt":"2018-11-25T12:15:14","slug":"v-geetha-vs-o-k-radhakrishnan-on-19-march-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/v-geetha-vs-o-k-radhakrishnan-on-19-march-2008","title":{"rendered":"V.Geetha vs O.K.Radhakrishnan on 19 March, 2008"},"content":{"rendered":"
Kerala High Court<\/div>\n
V.Geetha vs O.K.Radhakrishnan on 19 March, 2008<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nMat Appeal No. 386 of 2006()\n\n\n1. V.GEETHA, AGED 39 YEARS,\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. O.K.RADHAKRISHNAN,\n                       ...       Respondent\n\n                For Petitioner  :SRI.M.SASINDRAN\n\n                For Respondent  :SRI.K.RAMACHANDRAN\n\nThe Hon'ble MR. Justice KURIAN JOSEPH\nThe Hon'ble MR. Justice HARUN-UL-RASHID\n\n Dated :19\/03\/2008\n\n O R D E R\n              KURIAN JOSEPH & HARUN-UL-RASHID, JJ.\n           ----------------------------------------------------------------\n                     MAT. APPEAL NO.386 OF 2006\n           ----------------------------------------------------------------\n\n                  Dated this the 19th day of March, 2008.\n\n                                  JUDGMENT\n<\/pre>\n
Harun-ul-Rashid, J.\n<\/p>\n
      The petitioner in O.P. No.108 of 2004 on the file of the Family<\/p>\n
Court, Kannur is the appellant. O.P. No.108 of 2004 was filed under<\/p>\n
Section 13(1)(ia)and (ib) of the Hindu Marriage Act, 1955 (hereinafter<\/p>\n
referred to as “the Act”) for dissolution of the marriage between the<\/p>\n
petitioner and the respondent on the grounds of desertion and cruelty. The<\/p>\n
above grounds canvassed for a decree of divorce were negatived by the<\/p>\n
Family Court. Hence, this appeal.\n<\/p>\n<\/p>\n
      2. The parties herein are referred to as the petitioner and respondent<\/p>\n
as in the Original Petition. The brief facts pleaded in the petition for<\/p>\n
divorce are as follows:\n<\/p>\n
      The marriage between the parties was solemnised on 29.8.1993.<\/p>\n
They lived together as husband and wife for 2-3 months. During this<\/p>\n
time, the petitioner begot a child and immediately, the respondent took her<\/p>\n
to her parental house and left her there. The petitioner gave birth to a<\/p>\n
female child on 25.9.1994 and after five months of the delivery, the<\/p>\n
respondent took the petitioner and the child to his house. Her stay in the<\/p>\n
Mat. Appeal No.386\/2006                  2<\/span><\/p>\n
matrimonial home for the second time lasted only for a few days and she<\/p>\n
was again taken to her parental home. It is the case of the petitioner that<\/p>\n
for the last ten years, she is living separately. According to the petitioner,<\/p>\n
her stay in the matrimonial home was tense and that her husband and his<\/p>\n
relatives behaved very badly and rudely towards her. It is her further case<\/p>\n
that the respondent\/husband did not take care of her and the child and that<\/p>\n
it was her father who used to attend to her needs. The respondent turned a<\/p>\n
blind eye to her needs and evaded his duties and responsibilities as a<\/p>\n
husband and father.       It is further alleged by the petitioner that the<\/p>\n
respondent is residing in his own house for the last ten years without<\/p>\n
discharging his obligations and that he has deserted her. According to<\/p>\n
her, there is no meaning in continuing          the marital relationship and,<\/p>\n
therefore, filed the application for divorce under Section 13(1)(ia)and (ib)<\/p>\n
of the Act.\n<\/p>\n<\/p>\n
      3. The respondent denied the allegations of the petitioner\/wife inter<\/p>\n
alia contending that the petitioner wanted to reside along with her parents<\/p>\n
and since he was not agreeable to this, she started residing separately on<\/p>\n
her own accord.      According to the respondent, for over two months, he<\/p>\n
had to suffer the adamant attitude of the petitioner and finally he had to<\/p>\n
prevail upon his mother to get permission to take the petitioner to her<\/p>\n
Mat. Appeal No.386\/2006                3<\/span><\/p>\n
house.   The respondent further contended that after the petitioner started<\/p>\n
residing separately, he used to visit her twice a week and used to take her<\/p>\n
to the doctor whenever the need arose. The petitioner has been residing in<\/p>\n
her family house for the past ten years and the respondent was making his<\/p>\n
weekly visits till recently. He denied the allegation that he had no love or<\/p>\n
affection towards the petitioner or that he was unconcerned about her<\/p>\n
welfare.   The respondent also denied the allegation that he was not<\/p>\n
providing her maintenance.       He further contended that he intents to<\/p>\n
continue the marital relationship with the petitioner and that no valid<\/p>\n
grounds are made out by the petitioner for seeking divorce.<\/p>\n
      4. The petitioner and the respondent were examined as AW.1 and<\/p>\n
RW.1 respectively in support of their respective contentions and Exts.B1<\/p>\n
and B2 were marked on the side of the respondent. The Family Court<\/p>\n
found that the petitioner failed to establish the grounds of desertion and<\/p>\n
cruelty.      The Family Court further found that there is no proper<\/p>\n
pleadings and evidence on the part of the petitioner to substantiate the<\/p>\n
ground of cruelty. The Family Court also noticed that the facts spoken to<\/p>\n
by the petitioner are only touching the wear of a normal marital life. On<\/p>\n
the basis of the above findings, the Family Court held that the petitioner<\/p>\n
was not entitled to get a decree of divorce.\n<\/p>\n
Mat. Appeal No.386\/2006               4<\/span><\/p>\n
      5. The marriage between the parties was solemnised on 29.8.1993.<\/p>\n
The petitioner lived with her husband only for two to three months and she<\/p>\n
became pregnant during the said period. The petitioner as AW.1 testified<\/p>\n
that the doctor had advised her to take bed rest and prolonged treatment<\/p>\n
and that on coming to know about the advice given by the doctor, the<\/p>\n
respondent\/husband took her to her house. According to the petitioner, the<\/p>\n
respondent was not prepared to attend to her during the period she was<\/p>\n
advised to take bed rest and that was the reason for taking her to her house.<\/p>\n
The respondent, according to the petitioner, was not dutiful in attending<\/p>\n
her and that it was her father who used to take her to the hospital.     She<\/p>\n
also deposed that her daughter is physically disabled due to an abnormal<\/p>\n
growth of bone and that the child also requires continuous and permanent<\/p>\n
medical treatment.      She further deposed that the respondent is not<\/p>\n
maintaining her and the child and that she and her child are under the care<\/p>\n
and protection of her father and their expenses are also met by her parents<\/p>\n
for the past several years.   The petitioner also spoke about her mental<\/p>\n
tension and cruelty of her husband during the period of three months that<\/p>\n
they resided together. According to her, the mother of the respondent and<\/p>\n
other family members were bent upon making quarrels and that they<\/p>\n
abused her many times using filthy language. She also stated that her life<\/p>\n
Mat. Appeal No.386\/2006                5<\/span><\/p>\n
in her matrimonial home was full of misery. She further testified that she<\/p>\n
was unable to get along with the atmosphere in her matrimonial home due<\/p>\n
to the bad behaviour of her husband and the other family members. She<\/p>\n
explained several instances of mental cruelty meted out to her. According<\/p>\n
to her, she developed a feeling that her husband is not able to protect her<\/p>\n
and their child. Therefore, after marriage she continued her studies and<\/p>\n
passed B.A., M.A., B.Ed and M.Phil. courses. She also testified that the<\/p>\n
respondent had not given her any amount towards her education or other<\/p>\n
expenses. Since the said state of affairs continued for about ten years,<\/p>\n
according to her, she was constrained to send a lawyer’s notice for ending<\/p>\n
the marital life. She also deposed that on coming to know about the filing<\/p>\n
of the petition for divorce, the respondent\/husband filed O.P. No.539 of<\/p>\n
2004 seeking custody of the child. The petitioner has stated that her<\/p>\n
daughter is suffering from a peculiar disease of abnormal growth of bone<\/p>\n
which requires regular treatment. She has been continuously attending to<\/p>\n
her child who is suffering from excrutiating pain. She has dedicated her<\/p>\n
life for attending and protecting her child. The Original Petition filed by<\/p>\n
the respondent for custody of the child after ten years itself is a cruel<\/p>\n
conduct.\n<\/p>\n<\/p>\n
       6. The fact that the parties are living separately for the last 14 years<\/p>\n
Mat. Appeal No.386\/2006                 6<\/span><\/p>\n
and the fact that the respondent was not performing the duties of a husband<\/p>\n
as well as father are sufficient to establish animus deserendi for granting<\/p>\n
divorce in favour of the appellant.     During the period of separation,the<\/p>\n
respondent\/husband never attempted or offered to have a joint living as<\/p>\n
husband and wife. This Court made every effort for a reconciliation. The<\/p>\n
appellant and her daughter attended the Lok Adalat on 20.2.2007 as<\/p>\n
directed by this Court and the Lok Adalat after conciliaton on 20.2.2007<\/p>\n
and 5.3.2007reported that there is no possibility for settlement.      This<\/p>\n
Court, therefore, directed the parties to be present on 1.6.2007. This Court<\/p>\n
found that reunion was not possible due to the attitude of the parties. For<\/p>\n
the last 14 years, the parties are living separately.        The facts and<\/p>\n
circumstances of the case conclusively prove that the parties are living<\/p>\n
separately with the intention to end the marital life. The conduct of the<\/p>\n
parties and the facts and circumstances of the case reveal that the parties<\/p>\n
have made up their mind to put an end to the marital relation and co-<\/p>\n
habitation permanently.\n<\/p>\n<\/p>\n
      7. Desertion is an act which implies abandonment against the wish<\/p>\n
of the person charging it. In this case, the respondent left the matrimonial<\/p>\n
home and started residing separately. The question raised is will the<\/p>\n
conduct amount to desertion on the part of the respondent. The Supreme<\/p>\n
Mat. Appeal No.386\/2006               7<\/span><\/p>\n
Court in the decision reported in Bipinchandra Jaisingbhai Shah v.<\/p>\n
Prabhavati, AIR 1957 SC 176 held that where the wife is forcibly turned<\/p>\n
out of her marital home by the husband, the husband is guilty of<\/p>\n
constructive desertion. The test is not who left the matrimonial home first.<\/p>\n
If one spouse by his words and conduct compels the other spouse to leave<\/p>\n
the marital home, the former would be guilty of desertion, though it is the<\/p>\n
latter who is physically separated from the other and has been made to<\/p>\n
leave the marital home. There is no evidence in this case to find that the<\/p>\n
wife was forcefully turned out of her matrimonial home by the husband.<\/p>\n
The available evidence discussed above shows that the respondent\/wife<\/p>\n
had put an end to the marital relationship and co-habitation.<\/p>\n
       8. Fourteen years have elapsed since the petitioner and respondent<\/p>\n
have been separated.     We find that there is no possibility of the parties<\/p>\n
resuming normal marital life. There has been an irretrievable breakdown<\/p>\n
of marriage between the husband and the wife.       A workable solution is<\/p>\n
certainly not possible.  The parties cannot in the background of their<\/p>\n
disputes at this stage reconcile themselves and live together forgetting<\/p>\n
their past. Because of the irretrievable breakdown of the marriage, the<\/p>\n
marriage between the parties has been rendered a dead wood. Learned<\/p>\n
counsel appearing for the appellant submitted before us that no purpose<\/p>\n
Mat. Appeal No.386\/2006                8<\/span><\/p>\n
will be served by keeping such a marriage alive on paper which would<\/p>\n
only aggravate the agony of the parties.\n<\/p>\n<\/p>\n
      9. Irretrievable breakdown of marriage is not a ground by itself for<\/p>\n
divorce.    But, while scrutinising the evidence on record to determine<\/p>\n
whether the grounds alleged are made out and in determining the relief to<\/p>\n
be granted, the said circumstance can certainly be borne in mind, as held<\/p>\n
by the Supreme Court in the decision reported in Durga Prasanna<\/p>\n
Tripathy v. Arundhati Tripathy<\/a> (2005) 7 SCC 353. The Supreme Court<\/p>\n
in the above decision, on finding that 14 years have elapsed since the<\/p>\n
husband and wife had separated, held that there has been irretrievable<\/p>\n
breakdown of       marriage between the parties and that reunion was<\/p>\n
impossible and that the parties cannot at this stage reconcile themselves<\/p>\n
and live together forgetting their past. The Supreme Court, therefore, held<\/p>\n
that there is no other option except to allow the appeal and set aside the<\/p>\n
judgment of the High Court and affirm the order of the Family Court<\/p>\n
granting decree of divorce.\n<\/p>\n<\/p>\n
      10.    We are convinced that no useful purpose will be served by<\/p>\n
keeping such a marriage alive on paper, it would only aggravate the<\/p>\n
agony of the parties. In Anjana Kishore Vs. Puneet Kishore( 2002 (10)<\/p>\n
Mat. Appeal No.386\/2006                 9<\/span><\/p>\n
SCC 194) and in Swati Verma Vs. Rajan Verma (2004 (1) SCC123 )<\/p>\n
the Supreme court      held     that the marriage between the parties has<\/p>\n
irretrievably broken    down     and   has been rendered a     dead wood.<\/p>\n
Exigency of the situation demands the dissolution of such a marriage<\/p>\n
by a decree of divorce to put an end to the agony and bitterness of the<\/p>\n
parties.\n<\/p>\n
       11.    The Supreme Court observed that        once the parties   are<\/p>\n
separated and the separation has continued for sufficient length of time<\/p>\n
and one of them has presented a petition for divorce, it can well be<\/p>\n
presumed that the marriage has been broken down beyond repair. It<\/p>\n
would be unrealistic for the law not to take notice of that fact and it<\/p>\n
would also be harmful to the society and injurious to the interests of the<\/p>\n
parties.\n<\/p>\n
             In the result, the appeal is allowed. The marriage between the<\/p>\n
petitioner and the respondent is dissolved with effect from today. There<\/p>\n
will be no order as to costs.\n<\/p>\n<\/p>\n
                                   (KURIAN JOSEPH, JUDGE)<\/p>\n
                                   (HARUN-UL-RASHID, JUDGE)<\/p>\n
sp\/<\/p>\n
Mat. Appeal No.386\/2006    10<\/span><\/p>\n
                               KURAIN JOSEPH &
\n                               HAURN-UL-RASHID, J.J<\/p>\n
                               MAT APPEALNO.386\/2006<\/p>\n
                                  JUDGMENT<\/p>\n
                               19TH MARCH, 2008<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court V.Geetha vs O.K.Radhakrishnan on 19 March, 2008 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-40226","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nV.Geetha vs O.K.Radhakrishnan on 19 March, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/v-geetha-vs-o-k-radhakrishnan-on-19-march-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"V.Geetha vs O.K.Radhakrishnan on 19 March, 2008 - 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