Kavitha v. K.P. Satheesan and Anilkumar

``` 2025:KER:28647 ``` ``` Mat.A.No.987 of 2016 ``` **==> picture [57 x 57] intentionally omitted <==** `:-` 1 `:-` ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE SATHISH NINAN ``` ``` & THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN FRIDAY, THE 4[TH] DAY OF APRIL 2025 / 14TH CHAITHRA, 1947 MAT.APPEAL NO. 987 OF 2016 ``` ``` AGAINST THE COMMON JUDGMENT DATED 06.11.2015 IN OP NO.352 OF 2013 OF FAMILY COURT, PALA ``` ## **`APPELLANT/1st RESPONDENT:`** ``` KAVITHA ``` ``` W/O. K.P. SATHEESAN, KRISHNAKAVIL HOUSE, R.P.C. P.O.., ERUMELY NORTH VILLAGE, KANJIRAPPALLY TALUK, KOTTAYAM DISTRICT. ``` ``` BY ADVS. SRI.LIJI.J.VADAKEDOM SMT.REXY ELIZABETH THOMAS SRI.RAJEEV JYOTHISH GEORGE ``` ## **`RESPONDENTS/PETITIONER & 2nd RESPONDENT:`** ``` 1K.P. SATHEESAN S/O. K.N. PANICKER, KRISHNAKAVIL HOUSE, R.P.C. P.O. ERUMELY NORTH VILLAGE, KANJIRAPPALLY TALUK, KOTTAYAM DISTRICT REPRESENTED BY HIS MOTHER AND POWER OF ATTORNEY HOLDER SANINTHINI, W/O. P.N. PANICKER, KRISHNAKAVIL HOUSE, R.P.C. P.O, ERUMELY NORTH VILLAGE, KANJIRAPPALLY TALUK, KOTTAYAM DISTRICT PIN- 686 513 ``` ``` 2ANILKUMAR S/O. SUDHAKARAN, KURAVANPARAMBIL HOUSE, R.P.C.P.O KARINILAM KARA, ERUMELY NORTH VILLAGE, KANJIRAPPALLY VILLAGE, KOTTAYAM DISTRICT, PIN- 686 513. ``` ## **`BY ADV A.K.HARIDAS.`** ``` THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 26.03.2025, THE COURT ON 04.04.2025 DELIVERED THE FOLLOWING: ``` ``` 2025:KER:28647 ``` ``` Mat.A.No.987 of 2016 ``` **==> picture [57 x 57] intentionally omitted <==** `:-` 2 `:-` # **SATHISH NINAN & SHOBA ANNAMMA EAPEN, JJ.** **—---------------------------------** ## **Mat.A.No. 987 of 2016** **—--------------------------------Dated this the 4[th ] day of April, 2025** **J U D G M E N T** ## **SHOBA ANNAMMA EAPEN, J:** The above appeal is filed by the wife, challenging the decree of divorce passed in O.P.No.352/2013 by the Family Court, Pala, dissolving the marriage between the parties. The original petition was filed by the husband. For the sake of convenience, the parties are referred to as ‘husband’ and ‘wife’. ## 2. According to the husband, the marriage between the parties was solemnised on 13.05.2001 and a child was born in their wedlock. After marriage, in April, 2007, the husband went abroad and returned in July 2008 and thereafter, again he went abroad. During the time, the wife was working with one Anilkumar-the second respondent **==> picture [57 x 57] intentionally omitted <==** ``` 2025:KER:28647 ``` ``` Mat.A.No.987 of 2016 ``` `:-` 3 `:-` herein in his electronic shop. According to the husband, she fell in love with him and was residing with him. The husband raised several allegations against the wife, accusing her of having an illicit relationship with the second respondent and sought divorce on the grounds of adultery and cruelty. 3. The date of marriage, according to the wife, is on 13.09.2001 and not on 13.05.2001 as alleged by the husband. The wife contended that due to the husband’s excessive liquor consumption and her mother-in-law’s unbearable behaviour, forced them to shift their residence to a rented house. She also contended that after completing her computer course, she secured employment with the second respondent, a close friend of her husband. The mother-in-law, who was allegedly of not good character, had attempted to coerce her into immoral activities, leading to a strained relationship. The wife contended that the husband treated her with cruelty, **==> picture [57 x 57] intentionally omitted <==** ``` 2025:KER:28647 ``` ``` Mat.A.No.987 of 2016 ``` `:-` 4 `:-` without telling the dates of his return from abroad. According to the wife, the husband deserted her in September 2011 and is not taking care of the wife and their child. The Family Court, after consideration of the entire evidence on board, allowed the original petition filed by the husband for divorce. Challenging the same, the wife has come up in appeal. 4. We have heard Sri.Liji.J.Vadakkedom, the learned counsel for the appellant and Sri.A.K.Haridas, the learned counsel for the respondents. 5. The husband has alleged that while he was abroad, his wife was having an illicit relationship with the second respondent. To prove the same, other than the oral evidence of PWs.1 to 3, no evidence has been adduced to prove that adultery was committed by the wife with the second respondent. The allegation raised by the husband is that he had seen his wife and the second respondent in his house in a compromising position. PW3, mother-in-law ``` 2025:KER:28647 ``` **==> picture [57 x 57] intentionally omitted <==** ``` Mat.A.No.987 of 2016 ``` `:-` 5 `:-` was residing with her while the husband was abroad. PW3 also deposed that the second respondent was a frequent visitor to the house even during night. It was further sworn to by the mother-in-law that during daytime, she has seen the wife and the second respondent indulging in sexual activities, which was informed to her son. PW2 is the wife’s father’s brother. He also testified that the wife was having an affair with the second respondent. The wife had categorically denied the allegation of adultery and cruelty alleged by the husband and further contended that no evidence other than the evidence of interested witnesses has been adduced by the husband to prove the allegations of cruelty and adultery. 6. On a perusal of the records, it is seen that other than his own evidence and the evidence of PWs. 2 and 3, who are interested witnesses and no satisfactory evidence has been adduced by the husband to prove the adultery alleged against the wife. As regards the **==> picture [57 x 57] intentionally omitted <==** ``` 2025:KER:28647 ``` ``` Mat.A.No.987 of 2016 ``` `:-` 6 `:-` evidence of PW2, who is the wife’s father’s brother, he had admitted during cross examination that a complaint was given against PW2 before the Legal Services Authority by wife’s brother. In all probabilities, father’s brother may not give evidence against the brother’s daughter unless he has some hatred towards them. Hence, his evidence cannot be relied upon. PW3 is the mother-in-law, who is an interested witness. Her evidence can also not be relied upon. We find that the evidence adduced by the husband is not sufficient enough to prove the allegations of adultery and cruelty raised against the wife. **7.** It is an admitted fact that due to strained relationships, both are living separately from 2011 onwards and there was no cohabitation since then. The original petition was filed in the year 2013. Ten years after marriage they lived together. Since 2013, due to discord in the marital life, they have been living apart. The marital bond between them has completely ``` 2025:KER:28647 ``` **==> picture [57 x 57] intentionally omitted <==** ``` Mat.A.No.987 of 2016 ``` `:-` 7 `:-` disintegrated, leaving no emotional connection or affection in their relationship. Under these circumstances, refusal to grant a decree of divorce would only prolong unnecessary suffering, misery and emotional distress to the parties. The husband and wife have been living separate and apart for an extended period. 8. In **Rakesh Raman v. Kavitha** [2023 SCC OnLine SC 497], it has been held that though in a given case, cruelty as a fault may not be attributable to one party alone and hence, despite irretrievable breakdown of marriage, keeping the parties together amounts to cruelty on both sides. Similarly, in **Shilpa Sailesh v. Varun Sreenivasan** [2023 SCC OnLine SC 544], it has been held that where there is irretrievable breakdown of marriage, then, dissolution of marriage is the only solution. In a recent decision of the apex court in **Rajib Kumar vs. Sushmita Saha** [2023 LiveLaw (SC) 727], it has been held that keeping the parties together despite irretrievable ``` 2025:KER:28647 ``` ``` Mat.A.No.987 of 2016 ``` **==> picture [57 x 57] intentionally omitted <==** `:-` 8 `:-` breakdown of marriage amounts to cruelty on both sides. 9. Since 2011 the parties have been living separately. Even now, they do not have a case that there was any cohabitation after 2011. She had been keeping away from the company of her husband for a long period and there is no chance of a reunion. Therefore, we are inclined to uphold the decree of dissolution of the marriage, though for varying reasons from that held by the Family Court. Accordingly, this Mat.Appeal is dismissed. sd/- **SATHISH NINAN JUDGE** sd/- **SHOBA ANNAMMA EAPEN JUDGE** MBS/