Anida, Ani Bail v. K.N. Prasad

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 17TH JULY 2008 / 26TH ASHADHA 1930 MFA.No. 1238 of 1999(A) ----------------------OPHMA.94/1994 of FAMILY COURT,KOLLAM .................... APPELLANT/RESPONDENT: ----------- ANIDA, ANI BAIL, THONDALIL, MAYYANADU. BY ADVS. SRI.R.RAJESH KORMATH SMT.K.KUSUMAM SRI.ANISH S.AMBADY SMT.BIJIMOL JOSE SRI.RAM MOHAN.G. SRI.G.P.SHINOD SRI.MANU V. RESPONDENT/PETITIONER: ------------- K.N.PRASAD, NADESA BHAVAN, KONGAL, PARAVUR. BY // THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 17/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **KURIAN JOSEPH & HARUN-UL-RASHID, JJ.** **---------------------------------------------------------------M.F.A.NO. 1238 OF 1999 ----------------------------------------------------------------** Dated this the 17th day of July, 2008 ## **JUDGMENT** ## **Harun-Ul-Rashid, J.** The respondent in O.P.(HMA) No. 94 of 1994 on the file of the Family Court, Kollam is the appellant. The said Original Petition was filed by the husband/respondent herein for a decree of divorce on the ground of cruelty and desertion. The Family Court allowed the Original Petition and granted divorce on the ground of desertion. Hence, this appeal. The parties herein are referred to as the petitioner and respondent as in the Original Petition. 2. The marriage between the petitioner and respondent was solemnised on 25.10.1981 as per the custom prevalent in the community. A male child was born in the wedlock on 2.4.1983. According to the petitioner, the respondent/wife is not willing to reside with him, that she continues to live with her parents and he is denied consortium. The petitioner contended that all his efforts to take the respondent to his house failed. The respondent/wife opposed the Original Petition denying the M.F.A.1238/1999 2 allegations levelled against her. According to her, due to the misconduct of the petitioner, she and her child were forced to reside in her ancestral home. She contended that she never refused to reside with the petitioner and that even though she expressed her desire to return to the matrimonial home, the petitioner under one pretext or other put off the date of her return. The respondent further contended that after 5.10.1986, the petitioner stopped visiting her and the child and also neglected to provide for them. Before the Family Court, the petitioner and two other witnesses were examined as PWs.1 to 3 and Ext.A1 was marked. The respondent and another witness were examined as RWs.1 and 2 and Exts.B1 to B3 were marked on her side. 3. It is not disputed that the parties started residing separately since 5.10.1986. The petitioner stopped visiting his wife and child and failed to maintain them from the said date. The Family Court believed the version of PWs.1 to 3 and disbelieved the version of RWs.1 and 2 to hold that the respondent without sufficient reason had deserted the petitioner for a continuous period of more than two years preceding the petition. The oral evidence adduced by the parties support their respective contentions. The very fact that from 7.6.1984 to 5.10.1986 the petitioner used to visit his wife and child shows that they continued the relationship till M.F.A.1238/1999 3 5.10.1986. If the petitioner had no intention to put an end to the marital relationship permanently, he would have continued to visit his wife and child. The reasons stated by the court below in paragraph 11 of the order are not convincing. From the oral evidence tendered by both sides stating the circumstances that transpired during the relevant time, it is not possible to conclude that the respondent/wife alone contributed for the separation. There is no reason as to why the petitioner/husband waited for eight years to file a petition for divorce on the ground of desertion. 4. On going through the evidence on record, we find that there is no sufficient material to find that the respondent had any intention to end the marital life permanently. The evidence adduced by the parties do not prove that the respondent had animus deserendi. Therefore, the finding entered by the court below granting a decree of divorce on the ground of desertion is not sustainable. But, we find that the parties are separated since 1986. They have been living separately for the last 22 years. Because of the irretrievable breakdown of the marriage, the marriage between the parties has been rendered a dead wood. 5. It is an admitted fact that the respondent/wife left the matrimonial home on 7.6.1984 and that the petitioner/husband had not visited her and M.F.A.1238/1999 4 the child since 5.10.1986. Twenty-two years have lapsed since the petitioner and respondent had separated. It is also an admitted fact that the respondent did not return to her matrimonial home and did not resume co-habitation after 1986. The facts and circumstances of the case proved conclusively that the parties are living separately with the intention to end the marital life. For the last 22 years, the husband and wife are living separately. 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. The parties cannot in the background of their disputes at this stage reconcile themselves and live together forgetting their past. 6. 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 M.F.A.1238/1999 5 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. 7. 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) 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. 8. The Supreme Court observed that once the parties have 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 M.F.A.1238/1999 6 would be harmful to the society and injurious to the interests of the parties. In the result, the appeal is dismissed. We confirm the decree of divorce granted by the court below on the ground of long separation and irretrievable breakdown of marriage. There will be no order as to costs. ## **(KURIAN JOSEPH, JUDGE)** **(HARUN-UL-RASHID, JUDGE)** **sp/** M.F.A.1238/1999 7 **KURIAN JOSEPH & HAURN-UL-RASHID, JJ.** **M.F.A.NO. 1238/1999** **JUDGMENT** **17th July, 2008** M.F.A.1238/1999 8