Geethalakshmi Amma @ Geetha Pillai v. P.G. Dharmarajan

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE`** ``` & THEHONOURABLEMRS.JUSTICESOPHYTHOMAS MONDAY,THE26[TH]DAYOFJUNE2023/5THASHADHA,1945 MAT.APPEALNO.68OF2014 ``` ``` AGAINSTTHEORDER/JUDGMENTINOPHMA1369/2011OFFAMILY COURT,KOLLAM ``` ## **`APPELLANT/RESPONDENT:`** ``` GEETHALAKSHMIAMMA@GEETHAPILLAI, AGED53YEARS, D/O.LAKSHMIKUTTYAMMA,65,HARTLEYAVENUE, E6INU,LONDON,U.K.,FROMKPIII386, LEKSHMIVIHAR,KALLUVATHUKKALP.O., NADAKKALVILLAGE,KOLLAMTALUK,REPRESENTED THROUGHHERPOWEROFATTORNEYHOLDER JIJESH,S/O.VALSARAJAN,SUMABHAVAN, ADUTHALAP.O.,KOLLAM. ``` ``` BYADVS. SRI.C.RAJENDRAN SRI.N.SREEDHARAN ``` ## **`RESPONDENT/PETITIONER:`** ``` P.G.DHARMARAJAN S/O.GOPALAPILLAI,PALAYILVEEDU,SMRA 257,MULANKANDAKAMWARD,KOLLAMWEST VILLAGE,KOLLAMTALUK, KOLLAMDISTRICT-691001. BYADVS. SMT.MAREEJAMOOSA SRI.B.RAGHUNANDANAN SRI.SREELALN.WARRIER ``` ``` THISMATRIMONIALAPPEALHAVINGBEENFINALLYHEARDON 26.06.2023,THECOURTONTHESAMEDAYDELIVEREDTHE FOLLOWING: ``` Mat.Appeal No.68 of 2014 2 # **A.MUHAMED MUSTAQUE & SOPHY THOMAS, JJ.** **-------------------------------------------------** ## **Mat.Appeal No.68 of 2014** **-------------------------------------------------** Dated this the 26[th] day of June, 2023 ## **J U D G M E N T** ## Sophy Thomas, J. The wife who suffered a decree of divorce in OP(HMA) No.1369 of 2011 on the file of Family Court, Kollam, is before us, challenging the judgment and decree dated 09.07.2013. 2. The husband filed OP(HMA) No.1369 of 2011 for dissolution of marriage on the ground of cruelty and desertion. Their marriage was solemnised on 10.07.2005 and it was the second marriage of both. The appellant/wife was a permanent resident in U.K and the respondent/husband was a retired Professor and Head of Department of Commerce in Fathima Matha National College, Kollam. After marriage, the respondent expended huge amounts for completing construction of a residential building in the property of the appellant on condition that, she would repay that amount. On 13.05.2006, the respondent went to London, expending his own money, and they Mat.Appeal No.68 of 2014 3 started living together in the house of the appellant. She received his entire salary, and she demanded rent from him, to stay in her house. She even denied food to him. On 05.12.2007, though the respondent became eligible for visa for permanent residence in UK, the appellant did not sign the application, and she insisted him to purchase a separate residential building in U.K, after disposing his properties in his native town. She never discharged her duties as a wife and treated him with utmost cruelty. She even strangulated him while sleeping and threatened him with poisoning. He became ill due to the hazardous works undertaken by him in UK and so, he returned to his native place, for the purpose of treatment. The appellant was not even enquiring about his health conditions. She was interested only in his money and property. They are living separate since 03.08.2007. So, he approached the Family Court, Kollam for dissolving their marriage. 3. The appellant/wife opposed that petition denying the allegations of cruelty and desertion. According to her, the respondent misappropriated her gold ornaments and money. She is admitting that, she did not sign the visa application of the respondent for getting a visa for permanent residence. He left his Mat.Appeal No.68 of 2014 4 job and residence in UK on his own will and there was no threat or ill-treatment from the part of the appellant. She never tried to snatch away his money or properties. The appellant had to spend 38000 pounds for the respondent when he reached UK. So, she claimed compensation of Rs.2 crores for the liabilities and inconvenience caused to her by the respondent. 4. The Family Court formulated necessary issues and thereafter, the parties were asked to adduce their evidence. No oral evidence was adduced from either side. Exts.A1 to A9 were marked from the side of the husband. 5. Now let us see whether there is any illegality, irregularity or impropriety in the impugned judgment warranting interference by this Court. 6. Heard learned counsel for the respondent, and there was no representation for the appellant. 7. The impugned judgment shows that, though the husband filed proof affidavit, the wife was never ready for cross examination. In the appeal also, there was no representation for the appellant/wife. Mat.Appeal No.68 of 2014 5 8. Now let us have a scrutiny of the available facts and evidence to see whether the decree of divorce obtained by the husband, is sustainable or not. 9. The pleadings of the parties are to the effect that, since the date of marriage on 10.07.2005, they never had a cordial relationship, and there were constant vagaries in their life on financial as well as emotional matters. Though the respondent/husband reached U.K, there also their life was not smooth. The parties are making allegations and counter allegations against each other. Admittedly, they are separated since 03.08.2007. After these long separation of 16 years, nothing fruitful happened in their life, enabling them for a reunion. Moreover, it is an admitted fact that, on 05.12.2007, the respondent/husband became eligible for visa, for permanent residence in UK. The appellant/wife ought to have signed the papers to get him visa. The wife is admitting that, she refused to sign the papers. That itself will show that she had decided to break their nuptial tie, and she didn’t like his presence in UK. Even then, she vehemently opposed the divorce petition filed by her husband. Her opposition was just a formality as evident from Mat.Appeal No.68 of 2014 6 the manner in which she defended the O.P before the Family Court. She was never ready to cross examine the husband. When the case was taken up for disposal, she filed a petition for permission to cross examine him. But, that petition was dismissed for non prosecution. Those facts will speak against her bonafides. 10. In _**Samar Ghosh** vs._ _**Jaya Ghosh**_ [(2007) 4 SCC 511], the Hon’ble Apex Court, while considering the impact and impropriety of refusing to sever the marriage tie, despite the irretrievable break down, held that, 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 situations, the refusal may lead to mental cruelty. 11. In _**Naveen Kohli** vs._ _**Neelu Kohli**_ [(2006) 4 SCC 558], in paragraphs 75 and 76, the Hon’ble Apex Court held as follows: “75. Public interest demands not only that the married status should, as far as possible, as long as possible, and whenever possible, be maintained, but Mat.Appeal No.68 of 2014 7 where a marriage has been wrecked beyond the hope of salvage, public interest lies in the recognition of that fact. 76. Since there is no acceptable way in which a spouse can be compelled to resume life with the consort, nothing is gained by trying to keep the parties tied forever to a marriage that in fact has ceased to exist”. 12. In _**Beena** vs._ _**Shino G Babu**_ (2022 (2) KLT 139), a Division Bench formed by us held that, if the court is able to form an opinion that due to incompatibility, the marriage failed and one of the spouses was withholding consent for mutual separation, the court can very well treat that conduct itself as cruelty. If one of the spouses is refusing to accord divorce on mutual consent after having convinced of the fact that the marriage failed, it is nothing but cruelty to spite the other spouse. No one can force another to continue in a legal tie if the relationship is deteriorated beyond repair. 13. On applying the ratio in the decisions cited supra to the facts in the case on hand, we have no hesitation to hold that, their marriage is irretrievably broken and has become a deadwood. The parties are living separate for the last 16 years, without showing any symptoms of reunion. Both parties are alleging cruelty against each other. But, the appellant is not ready for a divorce on Mat.Appeal No.68 of 2014 8 mutual consent. It amounts to cruelty, if at all the respondent could not prove the allegations of cruelty pleaded in his petition. So, we find no reason to maintain the marital status between the appellant and respondent, which is proved to be wrecked beyond any hope of salvage. Hence, the appeal is liable to be dismissed, upholding the decree of divorce granted by the Family Court. In the result, the appeal is dismissed. No order as to costs. Sd/- ## **A.MUHAMED MUSTAQUE JUDGE** Sd/- **SOPHY THOMAS JUDGE** smp