Hena Jeshin Mohan v. Sreejith (Mat.Appeal Nos. 332 of 2011 and 641 of 2011)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **&** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **FRIDAY, THE 30TH DAY OF AUGUST 2019 / 8TH BHADRA, 1941** **Mat.Appeal.No.332 OF 2011** **AGAINST THE ORDER IN OP 387/2010 OF FAMILY COURT, KOZHIKODE** ## **APPELLANT:PETITIONER:-** **HENA JESHIN MOHAN, AGED 28 YEARS, D/O.MOHANAN, RESIDING AT VILAKUMADAM HOUSE, P.O.VENGALAM, KORAPUZHA, KOZHIKODE.** **BY ADV. SRI.K.N.CHANDRABABU** ## **RESPONDENT:RESPONDENT :-** **SREEJITH, AGED 32 YEARS, S/O.BHARATHAN, C/O.SOBHANA, 'ARIYATT', NEAR USHAS HOUSE, ARIYALLUR, THALAKULATHUR, P.O.ANDIKODE, KOZHIKODE-679637.** **BY ADV. SRI.ARJUN SREEDHAR BY ADV. SMT.C.G.PREETHA BY ADV. SRI.P.S.SREEDHARAN PILLAI** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 21-08-2019, ALONG WITH Mat.Appeal.641/2011, THE COURT ON 30-08-2019 DELIVERED THE FOLLOWING:** Mat.A.Nos.332 & 641 of 2011 :-2-: # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **&** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **FRIDAY, THE 30TH DAY OF AUGUST 2019 / 8TH BHADRA, 1941** **Mat.Appeal.No.641 OF 2011** **AGAINST THE ORDER IN OP 1086/2010 DATED 31-05-2011 OF FAMILY COURT, KOZHIKODE** ## **APPELLANTS:PETITIONERS :-** **1 HENA JESHIN MOHAN AGED 28 YEARS, D/O. MOHANAN, RESIDING AT VILAKUMADAM HOUSE, P.O.VENGALAM, KORAPUZHA, KOZHIKODE.** **2 KASHVI, AGED 3½ YEARS (MINOR) REP. BY NATURAL GUARDIAN AND MOTHER 1ST APPELLANT HENA JESHIN MOHAN, -DO- -DO-** **BY ADV. SRI.K.N.CHANDRABABU** ## **RESPONDENT:RESPONDENT :-** **SREEJITH, AGED 32 YEARS, S/O.BHARATHAN, C/O.SOBHANA, "USHAS" HOUSE, ARIYATTU, THALAKULATHUR, P.O. ANDIKODE, KOZHIKODE.** **BY ADV. SMT.C.G.PREETHA BY ADV. SRI.P.S.SREEDHARAN PILLAI BY ADV. SRI.ARJUN SREEDHAR** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 21-08-2019, ALONG WITH Mat.Appeal.332/2011, THE COURT ON 30-08-2019 DELIVERED THE FOLLOWING:** Mat.A.Nos.332 & 641 of 2011 :-3-: ## **JUDGMENT** ## **[ Mat.Appeal.332/2011, Mat.Appeal.641/2011 ]** ## **N.ANIL KUMAR,J:** The appellant is the wife and the respondent is the husband respectively in O.P.No.387/2010 on the file of the Family Court, Kozhikode. Their marriage was solemnised on 28[th] December,2006 at the wife's residence in accordance with the custom prevailing among the Hindus. A female child was born in the wedlock on 23[rd] April,2008. The wife filed OP 387/2010 before the Family Court, Kozhikode seeking a decree of judicial separation on the ground of cruelty shown by the husband towards her. In the very same proceedings, the husband raised a counter claim seeking divorce on the ground of cruelty and desertion. By order dated 29.1.2011, the Family Court, Kozhikode granted a counter decree of divorce dissolving the marriage between the parties and dismissing the claim for judicial separation made by the wife. Feeling aggrieved, the petitioner/wife filed Mat.A.No.332/2011. 2. Subsequent to the filing of OP 387/2010 before the Family Court, Kozhikode, the petitioner- wife filed OP NO.1086/2010 claiming past and future maintenance for herself and her child from the respondent-husband. The court below granted past maintenance for a period 30 months at the rate of Mat.A.Nos.332 & 641 of 2011 :-4-: Rs.750/- per month from the respondent-husband and also ordered that the child was entitled to receive Rs.1000/- per month for her future maintenance from the respondent from the date of petition. The claim of the petitioner-wife for past and future maintenance was declined on the ground that she had left her matrimonial home voluntarily without being driven out by her husband. The court below is of the view that when a wife left her matrimonial home for no justifiable reasons without her husband's consent and against his wish is not entitled to get maintenance under the provisions of Sections 18 and 20 of the Hindu Adoption and Maintenance Act,1956. Feeling aggrieved, the petitioner-wife filed Mat.A.No.641/2011 before this Court. 3. Parties are hereinafter referred to as 'the petitioner' and 'the respondent' according to their status in OP No.387/2010 before the Family Court, Kozhikode unless otherwise stated. Since the issue involved in both the cases is one and the same, the Matrimonial Appeals are taken up for disposal by a common judgment. 4. Admittedly, parties have been residing separately since 3.11.2007. According to the petitioner, the respondent has been cruel to her and it is not possible for her to live with the respondent any more. Hence, she seeks judicial separation. Mat.A.Nos.332 & 641 of 2011 :-5-: She has testified that she does not want a divorce as she would not like to live as a divorcee among the right thinking members of the society. In other words, she has a feeling that living as a divorcee is a stigma for herself and her daughter. Hence, she would like to live separately without dissolving her marriage. 5. On the other hand, the respondent stated that he cannot lead a marital life with the petitioner as they cannot adjust with each other. According to him, the wife assaulted him several times. He stated that she underwent psychological and psychiatric treatment several times and she used to pick up quarrels always and that too for silly reasons. He maintained that he did not neglect or desert her as alleged. He went to the extent of saying that the only course available to him is to commit suicide. 6. In OP No. 387/2010, PWs.1 to 5 were examined and marked Exts.A1 to A4 on petitioner's side and RW1 was examined and marked Ext.B1 on the side of the respondent. In OP 1086/2010, PW1 was examined on petitioner's side and marked Exts.A1 and A2 series. RW1 was examined and marked Exts.B1 to B4 on the respondent's side. 7. After analysing the entire evidence in detail, the court below is of the view that the marital relationship between Mat.A.Nos.332 & 641 of 2011 :-6-: PW1 and RW1 has been broken down irretrievably. The court below made several attempts to unite the parties through mediation and conciliation. Hence, the court below is of the view that even if there was a reunion between the parties, it was not possible for the parties to lead a peaceful life as they are often at loggerheads with each other. Both the parties are living separately since 3.11.2007 with full hatred for each other. Hence, the question arising for consideration is as to whether the court below was justified in granting divorce instead of granting judicial separation to maintain dignity of the petitioner among the right thinking members of the society. 8. Judicial separation is a sort of a last resort before the actual legal break up of marriage. Ordinary wear and tear of every day life and the strain of living together may not result in abrupt break up of a marital relationship. In other words, there is no effect of a decree for judicial separation on the continuance of the legal relationship of marriage between the parties. The law allows an opportunity to the couple to think about the continuance of their relationship, while at the same time directing them to live separate, thus allowing them the much needed space to choose their future path. Section 10 of the Hindu Marriage Act, 1955 provides that a decree for judicial Mat.A.Nos.332 & 641 of 2011 :-7-: separation can be sought on all those grounds on which decree for dissolution of marriage can be sought. 9. Assailing the order of the court below, learned counsel for the petitioner submits that the court below had acted in total contradiction to the provisions of law regarding judicial separation and therefore, the order cannot be sustained. The learned counsel further submits that the petitioner has never been cruel to the respondent as alleged. On the other hand, the learned counsel for the respondent submits that the court below rightly held that the parties have been living apart and there is no question of their re-union in the coming future. 10. We heard Adv.M.Pramod Kumar, the learned counsel for the appellant and Sri.P.S.Sreedharan Pillai, the learned counsel for the respondent and perused the documents and materials placed on record. 11. On going through the evidence of PW1, it is clear that the marriage between the petitioner and respondent was solemnised on 28.12.2006 and the same was registered with the local authority on 1.2.2007. On 3.11.2007, the petitioner left the matrimonial home and has been living with her parents. In the wedlock, a female child was born on 23.4.2008. The child has been under the custody and protection of the petitioner. Mat.A.Nos.332 & 641 of 2011 :-8-: 12. From the averments and contentions in the counter claim made by the respondent, it is seen that dissolution of marriage is sought on the ground of cruelty and desertion by the respondent. Though the first petitioner denied the averments contained in the counter claim, she had admitted that she left the matrimonial home on 3.11.2007 onwards on account of cruelty by the respondent and his relatives. Therefore, the conclusion is that there was never any attempt on the part of the first petitioner to live with her husband. Practically, she has chosen to adopt a course of conduct which proves desertion on her part. The only apprehension on her part is that in case divorce is effected, she would be branded as a divorcee among the public. 13. In the case at hand, both the parties have been residing separately since 3.11.2007 onwards. In other words, parties in the entire married life of nearly 12 years have lived separately. This long period of separation has not resulted in any rethinking on the part of either of the parties. Though the matter was referred to the Mediation Centre for settlement, no positive result was achieved. The husband in a matrimonial relation is not expected to remain silent through out his life under the expectation that the wife will turn up to his life after a Mat.A.Nos.332 & 641 of 2011 :-9-: rethinking. If the case of the petitioner is accepted, the net result is that the husband should wait forever in anticipation of his wife's arrival later in life. Living separately for a very long time and not being able to live together, is an indication that the marriage has been broken down irretrievably. 14. PW1 adduced evidence before the court below to show that she was not able to live with the respondent. Per contra, RW1 adduced evidence to show that he would prefer to commit suicide rather than living with the petitioner. Both parties are adamant. They are not willing to live together. Considering the facts and circumstances of the case, we are of the view that the desertion on the part of the wife was without a reasonable cause. The conduct of the petitioner for a considerable long period of time would indicate that she is not interested in the matrimonial life and she would prefer to protect her dignity among the right thinking members of the society under the cover of judicial separation. 15. Since the parties have been living separately for the last more than 11 years, we have no doubt in our mind that the marriage between the parties has been irretrievably broken down. We are also satisfied that there is no chance, whatsover of their living together. It is true that the marriage status as far Mat.A.Nos.332 & 641 of 2011 :-10-: as possible should be maintained to the extent possible. However, when the marriage is dead, no purpose would be served by trying the husband and wife tied forever to a marriage which in fact has ceased to exist. Keeping in view of the above legal principle, the Supreme Court in **Samar Ghosh** v. **Jaya Ghosh** [(2007)4 SCC 511 (SC)] held as follows:- “95. Once the parties have separated and separation has continued for a sufficient length of time, and one of them had presented a petition for divorce, it can well be presumed that the marriage has broken down. The court, no doubt, should seriously make an endeavour to reconcile the parties; yet, if it is found that the breakdown is irreparable, then divorce should not be withheld. The consequence of preservation in law of the unworkable marriage which has long ceased to be effective and are bound to be source of greater misery for the parties.” ## 16. Considering the facts and circumstances involved in the case, we are of the view that the marriage between the petitioner and the respondent has been irretrievably broken down. Under the circumstances, no purpose could be achieved by keeping the matrimonial relationship alive. We do not find any possibility for the couple to reunite. We are of the view that the court below granted a decree of divorce in the interest of the petitioner and the respondent however also leaving liberty to the parties to take an appropriate decision in accordance Mat.A.Nos.332 & 641 of 2011 :-11-: with their wish. 17. In OP No. 1086/2010, ultimately the trial court decreed the suit granting past and future maintenance to the child born out of the wedlock at the rate of Rs.750/- per month for a period of 30 months and after that, an amount of Rs.1000/- per month respectively. Challenging the decree, this appeal is filed. A wife should be free from blemish before claiming maintenance, but in this case, the wife was held to be guilty of cruelty and desertion as against her husband. Hence the court below rejected the claim for maintenance under the provisions of Hindu Adoption and Maintenance Act. The learned counsel for the appellant/petitioner contends that even a divorced wife is entitled to get maintenance and the court below has wrongly rejected the claim of the petitioner on technical grounds. The claim is made under the provisions of Hindu Adoption and Maintenance Act, which has no nexus or connection with the claim for maintenance under Section 125 of the Criminal Procedure Code. So far as a deserted wife whose status as wife has come to an end by a decree of divorce, we are of the view that the court below, on well founded reasons, has rejected the claim for maintenance under the provisions of Hindu Adoption and Maintenance Act. In no way, the aforesaid Mat.A.Nos.332 & 641 of 2011 :-12-: judgment is erroneous. Regarding the claim of the petitioner for maintenance under the provisions of the Cr.P.C., the matter is left open. It is also within the realm of the petitioner and the child born out of the wedlock to claim appropriate maintenance or enhanced claim from the respondent, if deemed necessary, in accordance with law. 18. It is well settled law that in an appeal seeking to set aside the judgment of the trial court, the High Court does not in the absence of perversity upset factual findings arrived at by the trial court. In our view, the findings arrived at by the court below in OP No. 387/2010 and OP No.1086/2010 are logical and reasonable. Under the circumstances, it is not proper for the appellate court to reanalyse and reinterpret the entire evidence on record in a case where the trial court has come to a probable conclusion. We have tested the judgments in appeal under the touchstone of preponderance of probability and we are of the view that no interference is warranted. In the result, Mat.Appeals stand dismissed. Sd/- **A.M.SHAFFIQUE, JUDGE** sd/- MBS/ **N.ANIL KUMAR, JUDGE**