Baby v. C.T. Sathi (W/o Baby)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 27TH MARCH 2008 / 7TH CHAITHRA 1930 Mat.Appeal.No. 5 of 2003(F) --------------------------OP.464/1997 of FAMILY COURT,ERNAKULAM .................... APPELLANT/PETITIONER -------------------------------- BABY, S/O. KRISHNAN, FLOOR NO.51, R.B.TRADERS TEA MERCHANT, WILLINGTON, ISLAND, KOCHI. BY ADV. SRI.T.O.XAVIER RESPONDENT: RESPONDENT ----------------------- C.T.SATHI W/O. BABY, REVATHY, HOUSE NO.8/106, CHERANELLOOR, COCHIN-34. BY ADVS. SRI.E.D.GEORGE SRI.K.VINU RAJ THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 27/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **KURIAN JOSEPH & HARUN-UL-RASHID, JJ.** **---------------------------------------------------------------MAT. APPEAL NO.5 OF 2003** **----------------------------------------------------------------** Dated this the 27[th] day of March, 2008 ## **JUDGMENT** ## **Harun-Ul-Rashid, J.** This appeal is filed by the petitioner/husband against the order of the Family Court, Ernakulam in O.P. No.464 of 1997. The Original Petition was filed for dissolution of marriage between the petitioner and the respondent. 2. The marriage between the parties was solemnised on 12.11.1972 and they are the parents of two children who were aged 19 and 15 at the time of filing of the Original Petition. According to the petitioner/husband, the respondent/wife started behaving cruelly towards him and instigated the children to cultivate hostile attitude towards him. According to the petitioner, difference of opinion and incompatible temperament on the part of the wife began after about 15 years of their marriage and that the constant mental and physical ill treatment and torture for no reasons affected his official life. He was abused in filthy language and this continued as a common pattern. The petitioner/husband _Mat. Appeal No.5/2003_ 2 also alleged that on several occasions, the respondent tried to poison him by mixing poison in the milk. On these allegations, the petitioner/husband sought a decree of divorce. In the objection filed by the respondent/wife, she denied the entire incidents of cruelty narrated in the Original Petition. She alleged cruelty on the part of the petitioner/husband as a result of which she was compelled to file a complaint before the Cheranelloor Police Station. 3. Before the Family Court, the petitioner/husband was examined as PW.1 and four other witnesses were examined as PWs.2 to 5 and Exts.A1and A2 were marked. The respondent/wife and another witness were examined as RWs.1 and 2. The Family Court after examining the evidence found that the petitioner failed to prove his case. The Family Court examined each and every incident and held that there was no substantive evidence to prove the commission of any such acts by the respondent/wife. The Family Court also disbelieved the evidence of PWs.1 to 5,finding it unconvincing and not reliable and hence, dismissed the Original Petition. 4. The parties got married on 12.11.1972 and their children are now aged more than 29 and 25 years. The parties started separate residence in _Mat. Appeal No.5/2003_ 3 the year 1996. This Court had, on several occasions, issued directions to the parties to be present before this Court in order to thrash out a settlement. The appellant appeared before this Court on 7.10.2006, on subsequent days during 2006 and 2007 and also on 19.2.2008, but the respondent did not appear. Finally we issued notice by special messenger directing the respondent/wife to be present before this Court on 17.3.2008. Though efforts were made to resolve the dispute between the parties, due to the continued absence of the respondent, the same could not be materialised. 5. It is an admitted fact that the parties are separated since June, 1996. For more than 11 years, they are living separately without any contacts. There is no chance whatsoever to expect them to reside together and to lead a normal marital life. The facts and circumstances of the case establish conclusively that the parties are living separately with the intention to end the marital life. The subsequent 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. 6. More than 11 years have elapsed since the petitioner and the _Mat. Appeal No.5/2003_ 4 respondent have been separated. 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. A workable solution is certainly not possible. The parties cannot in the background of their disputes 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 served by keeping such a marriage alive on paper which would only aggravate the agony of the parties. 7. 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 _Mat. Appeal No.5/2003_ 5 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. 8. 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. 9. The Supreme Court observed that once the parties are separated and the separation has continued for sufficient length of time and one of them has presented a petition for divorce, it can very 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 would be harmful to the society and injurious to the interests of the _Mat. Appeal No.5/2003_ 6 parties. In the result, the appeal is allowed. The marriage between the petitioner and the respondent is dissolved with effect from today. There will be no order as to costs. ## **(KURIAN JOSEPH, JUDGE)** **(HARUN-UL-RASHID, JUDGE)** **sp/** _Mat. Appeal No.5/2003_ 7 **KURAIN JOSEPH & HAURN-UL-RASHID, JJ.** **MAT.APPEAL NO.5/2003** **JUDGMENT** **27TH MARCH, 2008**