Alli v. Babu @ Abraham

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** ## **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** ## **&** **THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN TUESDAY, THE 25[TH] DAY OF JULY 2023 / 3RD SRAVANA, 1945 MAT.APPEAL NO. 549 OF 2015** **JUDGMENT DATED 31.05.2013 IN OP 165/2010 OF FAMILY COURT, KALPETTA** ## **APPELLANT/PETITIONER:** ALLI, AGED 36 YEARS, D/O.ELDO, THEKKUMPURATHU VEEDU, KALLOOR, NOOLPPUZHA AMSAM DESAM, SULTHAN BATHERY TALUK, WAYANAD DISTRICT. BY ADV SMT.PREETHY R. NAIR ## **RESPONDENT/RESPONDENT:** BABU @ ABRAHAM, AGED 43 YEARS, S/O.PAILY, KARIKKATTIL VEEDU, MOONNANADU AMSAM, NELLIMADU, AMBALAMOOLA, GOOLALLUR TALUK, TAMIL NADU STATE. PIN-600 018. BY ADV SRI.R.V.SUJIT KUMAR THIS MATRIMONIAL APPEAL HAVING COME UP FOR FINAL HEARING ON 25.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MAT.APPEAL NO. 549 OF 2015 **==> picture [31 x 8] intentionally omitted <==** ## **JUDGMENT** ## SHOBA ANNAMMA EAPEN, J. The wife, who lost her case for divorce, is the appellant herein, challenging the order of the Family Court, Kalpetta. She seeks divorce on the grounds of cruelty and constructive desertion under Section 10(1)(IX) and (X) of the Divorce Act, 1869. 2. The appellant and the respondent are husband and wife, who were married on 23.02.2003 as per christian religious rites and custom, and a child was born in the wedlock. They lived together as husband and wife till 2008; and since the appellant felt that her life at respondent's house was in danger, on 26.09.2008, the appellant took the child and left for her parental house. During this time, she obtained a decree for maintenance in MC No.52 of 2007 on the file of the Judicial First Class Magistrate–I, Sulthan MAT.APPEAL NO. 549 OF 2015 **==> picture [31 x 8] intentionally omitted <==** Bathery, however, no maintenance was paid by the respondent. She also filed OP No.165 of 2010 before the Family Court, Kalpetta, for dissolution of marriage on the grounds of desertion and cruelty. 3. The respondent opposed the petition, contending that he has not treated the appellant with mental or physical cruelty. According to him, the appellant was not willing to stay with him and it is a cooked up false story that the respondent and the in-laws had treated the appellant with cruelty. The appellant is living separate from the company of the respondent by complaining that there are no amenities in the rented house. 4. The Family Court formulated necessary issues and thereafter, the parties went on trial. On the side of the appellant, PW1 & PW2 were examined and Exts.A1 to A7 were marked. On the side of the respondent, RW1 & RW1 were examined MAT.APPEAL NO. 549 OF 2015 **==> picture [31 x 8] intentionally omitted <==** and Exts.B1 to B10 were marked. 5. After elaborate consideration of the available facts and evidence, the Family Court found that the appellant could not prove her case of cruelty and desertion and accordingly, the OP was dismissed. Hence, the wife is before us, challenging the order of the Family Court. 6. We are called upon to find out whether there is any illegality, irregularity or impropriety in the impugned order, warranting interference in appeal. 7. Heard learned counsel for the appellant and learned counsel for the respondent. 8. PW1, the appellant/wife, deposed before the court that the respondent/husband slapped on her face, which impaired the hearing capacity of her right ear, and that he was misbehaving with her and treating her with cruelty from day one of their marriage and due to the cruelty emitted out by the respondent, the appellant had to leave the MAT.APPEAL NO. 549 OF 2015 **==> picture [31 x 8] intentionally omitted <==** matrimonial house in 2005. Later, in the year 2007, though the disputes were settled in the presence of their relatives, within a couple of days, while living together, again difference of opinion arose between them and she had to leave matrimonial house in 2008. Thereafter, several litigations were filed by the appellant as well as the respondent, during which time, the appellant had filed the original petition for divorce on the grounds of cruelty and desertion. 9. The respondent, on the other hand, opposed the claim of divorce put forward by the appellant, stating that there was no desertion or cruelty on the part of the respondent or his family members towards the appellant and since the appellant did not want to stay with the respondent at the matrimonial home, she left the house. However, it is admitted that they are living separate from 2008 onwards. 10. The marital relationship is built over MAT.APPEAL NO. 549 OF 2015 **==> picture [31 x 8] intentionally omitted <==** the period based on harmonious combination of difference in taste, outlook, attitude etc. The initial phase of marriage lays a strong foundation for the marriage. The relationship and understanding, that is built during the initial days of the married life, enable the parties to resolve the differences, which they may encounter in a later stage of marriage. From the evidence adduced, it is seen that from day one of the marriage, the appellant and the respondent were having difference of opinion and issues between them. Instead of trying for a solution, they were finding problems between them and no effective steps were taken on the part of the appellant or the respondent to repair their relationship and to have a reunion. 11. Even after a long separation from 2008 onwards, the appellant and the respondent are not amenable for a joint petition for divorce though they are living separate. In **Rakesh Raman** v. MAT.APPEAL NO. 549 OF 2015 **==> picture [31 x 8] intentionally omitted <==** **Kavitha** [2023 SCC OnLine SC 497], it has been held that though in a given case, cruelty as a fault may not be attributable to one party alone and hence, despite irretrievable breakdown of marriage, keeping the parties together amounts to cruelty on both sides. Similarly, in **Shilpa Sailesh** v. **Varun Sreenivasan** [2023 SCC OnLine SC 544], it has been held that where there is irretrievable breakdown of marriage, then, dissolution of marriage is the only solution. In a recent decision of the apex court in Civil Appeal No.5454 of 2023 [2023 LiveLaw (SC) 727], it has been held that keeping the parties together despite irretrievable breakdown of marriage amounts to cruelty on both sides. It was further held therein that continued bitterness, dead emotions and long separation, in the given facts and circumstances of a case, can be construed as a case of “irretrievable breakdown of marriage” and when there is irretrievable MAT.APPEAL NO. 549 OF 2015 **==> picture [31 x 8] intentionally omitted <==** breakdown of marriage, then, dissolution of marriage is the only solution. In **Beena** v. **Shino** **G. Babu** [2022 (2) KLT 139] rendered by one among us [AMM(J)], it has been held that incompatibility is a factor that can be reckoned while considering the ground for cruelty if one of the spouses withholds the consent of mutual separation, though incompatibility is not recognized as a ground for divorce. 12. In this case, the respondent is not willing to accord divorce after having convinced of the fact that the marriage failed. It is nothing, but, cruelty to spite the other's choice. No one can force another to continue in a tie if the relationship deteriorated beyond repair. The parties are now aged 43 and 50 respectively and they are living separate since 2008. In the facts and circumstances of the case, we do not find any reason to maintain the marital status between the appellant and the respondent, MAT.APPEAL NO. 549 OF 2015 **==> picture [31 x 8] intentionally omitted <==** which has been proved to be irreparable. Therefore, the appeal is liable to be allowed. In the result, the appeal is allowed, dissolving the marriage between the appellant and respondent solemnized on 23.02.2003. No order as to costs. **SD/-** ## **A. MUHAMED MUSTAQUE** **JUDGE** **SD/-** **SHOBA ANNAMMA EAPEN** **JUDGE** bka/-