Anoop Surendran v. Dr. Gopika Prasad

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **&** ## **THE HONOURABLE MRS. JUSTICE SOPHY THOMAS** ## **WEDNESDAY, THE 27[TH] DAY OF SEPTEMBER 2023 / 5TH ASWINA, 1945** ## **MAT.APPEAL NO. 766 OF 2019** ## **AGAINST THE ORDER IN OP 1359/2016 dt 22/6/2019 OF FAMILY COURT,THRISSUR** ## **APPELLANT/S:** ANOOP SURENDRAN AGED 40 YEARS S/O. SRI SURENDRAN, CHOZHIYATTIL THIYATH VEETTIL, RESIDING AT PARADISE AVENUE, AVINISSERY VILLAGE, THRISSUR - 680 027 BY ADVS. SRI.N.K.SUBRAMANIAN SMT.B.BINDU SMT.MARIA ELIZABETH WILSON ## **RESPONDENT/S:** DR.GOPIKA PRASAD AGED 40 YEARS D/O. SHIR RAGHAVAN RAJENDRA PRASAD, R.R.VILLA, T.C. 27/1023(1), VANCHIYOOR P. O., THIRUVANANTHAPURAM - 695 035. BY ADV SRI.G.SREEKUMAR (CHELUR) THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 27.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` Mat.Appeal No.766/2019 ``` -:2:- ## **`J U D G M E N T`** ``` A.Muhamed Mustaque, J. ``` ``` This appeal is filed challenging dismissal of a petition for divorce. The appellant is an Engineer by profession. The respondent is a medical doctor by profession. The marriage was solemnised on 9/11/2014 in accordance with the Hindu ceremonies and rites. The appellant is the husband, and the respondent is the wife. The appellant’s first wife passed away. The respondent’s earlier marriage was dissolved legally. The appellant filed divorce petition in the year 2016. He claimed divorce on the ground of cruelty. Both of them went to Gulf country after the marriage. According to the appellant, respondent was not interested in the appellant having a good relationship with the family of his first wife. The respondent often questioned the appellant’s relationship with his first wife’s family. According to him, the bickering started when they came down to his native place and made a chance to visit the house of his first wife. It is stated by the appellant that when the respondent found a photograph of his first wife inside their bedroom, she quarrelled with him. The respondent’s version is that the appellant was more interested in talking about his sexual life with his first wife and ``` ## **`Mat.Appeal No.766/2019`** ## -:3:- ``` his mobile contains around thousand photographs and videos with his first wife. It is further stated that the first wife’s belongings were kept in the bedroom and other portions of the residence, causing mental stress to the respondent. According to her, the appellant is under the control of his parents, and he refuses to go out with her and spend time with her. It is also pointed out by her that the appellant insisted her to resign from her job. ``` ``` 2. The evidence in this matter consists of oral evidence of parties as well as documentary evidence. The Family Court could not find any facts constituting ‘cruelty’ to dissolve the marriage. The Family Court is of the view that trivial irritations, quarrels etc., are not sufficient to hold cruelty. ``` ``` 3. We scanned the pleadings and evidence. We note that short- lived marriage never was happy for either of them. Nowhere in the counter pleadings of the wife, we could find that the parties have happily lived at least for a short while. On the other hand, the respondent herself raised the pleadings, faulting the husband for the cause of deteriorative relationship. She even went on to state that the husband is under the control of his parents. According to her, the appellant’s likeness to his first wife had resulted in mental stress to her. ``` ## **`Mat.Appeal No.766/2019`** ## -:4:- ``` 4. We are not here to forensically analyse the pleadings and evidence to come to a conclusion that a cause is made out for divorce on any factors attributable to the respondent-wife. We made several attempts for settlement. Many options were generated but nothing got fructified. Pleadings on both sides clearly establish the deteriorating relationship and the marriage is dead for all practical purposes. May be the respondent-wife having separated from first marriage legally, does not want to look forward to another divorce. The societal compulsion portraying one in a continuous failure of marriage might have stared her. If marriage failed for all practical purposes, we are not able to understand, why she is withholding her consent for mutual separation. It is obvious that she is fearing societal reactions. One has to live with the reality that human problems will have to be addressed practicallyto live for the moment and for the future. If we fall into the prey of societal compulsions on a parochial thinking, the life of such parties alone would be affected. We are sure that on the interest of both, the marriage need not be retained. ``` ``` 5. This Court in Beena M.S v. Shino G. Babu [2022 (2) KHC 11] held as follows: ``` ``` “The law on divorce recognises both fault and consent as a cause for separation. When both the parties are unable to lead a meaningful matrimonial ``` ``` Mat.Appeal No.766/2019 ``` ## -:5:- ``` life due to inherent differences of opinion and one party is willing for separation and the other party is withholding consent for mutual separation, that itself would cause mental agony and cruelty to the spouse who demands separation. The purpose of marriage is to hold matrimonial ties lifelong, respecting mutual obligations and rights. The companionship of spouses creates oneness of the mind to walk together. It is through mutual respect and Courtship, the companionship is built and fortified. The modern jurisprudence of irretrievable break down to allow divorce is premised on the fact that the spouses can never remain together on account of their differences.” ``` ## `6. The Apex Court in` **`K. Srinivas Rao v. D.A Deepa [(2013) 5 SCC 226]`** `held as follows:` ``` “30. It is also to be noted that the appellant husband and the respondent wife are staying apart from 27-4-1999. Thus, they are living separately for more than ten years. This separation has created an unbridgeable distance between the two. As held in Samar Ghosh [(2007) 4 SCC 511], if we refuse to sever the tie, it may lead to mental cruelty. ``` ``` 31. We are also satisfied that this marriage has irretrievably broken down. Irretrievable breakdown of marriage is not a ground for divorce under the Hindu Marriage Act, 1955. But, where marriage is beyond repair on account of bitterness created by the acts of the husband or the wife or of both, the courts have always taken irretrievable breakdown of marriage as a very weighty circumstance amongst others necessitating severance of marital tie. A marriage which is dead for all purposes cannot be revived by a court's verdict, if the parties are not willing. This is because marriage involves human sentiments and emotions and if they are dried up there is hardly any chance of their springing back to life on account of artificial reunion created by the court's decree. ``` ## **`Mat.Appeal No.766/2019`** ## -:6:- `32. In V. Bhagat [(1994) 1 SCC 337] this Court noted that divorce petition was pending for eight years and a good part of the lives of both the parties had been consumed in litigation, yet the end was not in sight. The facts were such that there was no question of reunion, the marriage having irretrievably broken down. While dissolving the marriage on the ground of mental cruelty this Court observed at para.21 that:` (SCC p. 351, para 21) ``` “21. … Irretrievable breakdown of the marriage is not a ground by itself. But, while scrutinising the evidence on record to determine whether the ground(s) alleged is/are made out and in determining the relief to be granted, the said circumstance can certainly be borne in mind.” ``` ``` 33. In Naveen Kohli [(2006) 4 SCC 558], where the husband and wife had been living separately for more than 10 years and a large number of criminal proceedings had been initiated by the wife against the husband, this Court observed that: (SCC p. 582, para 86) ``` ``` “86. … The marriage has been wrecked beyond the hope of salvage [and] public interest and interest of all concerned lies in the recognition of the fact and to declare defunct de jure what is already defunct de facto.” ``` ``` It is important to note that in Naveen Kohli case [(2006) 4 SCC 558] this Court made a recommendation to the Union of India that the Hindu Marriage Act, 1955 be amended to incorporate irretrievable breakdown of marriage as a ground for the grant of divorce. ``` ``` 34. In the ultimate analysis, we hold that the respondent wife has caused by her conduct mental cruelty to the appellant husband and the marriage has irretrievably broken down. Dissolution of marriage will relieve both sides of pain and anguish. In this Court the respondent wife expressed that she ``` ``` Mat.Appeal No.766/2019 ``` ## -:7:- ``` wants to go back to the appellant husband, but, that is not possible now. The appellant husband is not willing to take her back. Even if we refuse decree of divorce to the appellant husband, there are hardly any chances of the respondent wife leading a happy life with the appellant husband because a lot of bitterness is created by the conduct of the respondent wife. ``` ``` 35. In Vijaykumar [(2003) 6 SCC 334], it was submitted that if the decree of divorce is set aside, there may be fresh avenues and scope for reconciliation between parties. This Court observed that judged in the background of all surrounding circumstances, the claim appeared to be too desolate, merely born out of despair rather than based upon any real, concrete or genuine purpose or aim. In the facts of this case we feel the same. ``` ``` 36. While we are of the opinion that decree of divorce must be granted, we are alive to the plight of the respondent wife. The appellant husband is working as an Assistant Registrar in the Andhra Pradesh High Court. He is getting a good salary. The respondent wife fought the litigation for more than 10 years. She appears to be entirely dependent on her parents and on her brother, therefore, her future must be secured by directing the appellant husband to give her permanent alimony. In the facts and circumstance of this case, we are of the opinion that the appellant husband should be directed to pay a sum of Rs 15,00,000 (Rupees fifteen lakhs only) to the respondent wife as and by way of permanent alimony.” ``` ``` 7. The Apex Court in the concluding paragraph in Samar Ghosh v. Jaya Ghosh [(2007) 4 SCC 511] held that long separation and one party refusing to sever the matrimonial tie itself would constitute cruelty. The relevant paragraph is extracted herein. ``` ``` Mat.Appeal No.766/2019 ``` ## -:8:- ``` “Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties, in such like situation, it may lead to mental cruelty.” ``` ``` 8. In a recent judgment of the Apex Court in Civil Appeal No.5454 of 2023 (2023 Live Law SC 727), it was held that keeping parties together despite irretrievable break down of marriage amounts to cruelty on both sides. ``` ``` We, therefore, dissolve the marriage between the parties and allow this appeal. ``` ``` Sd/- ``` ``` A.MUHAMED MUSTAQUE, JUDGE ``` ``` Sd/- ``` ``` ms ```