K.K. Unnikrishnan v. T.K. Savithri (Mat.Appeal Nos. 391 of 2013; 1162 of 2014; RP (FC) No. 192/2013)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **&** **THE HONOURABLE MRS. JUSTICE SOPHY THOMAS TUESDAY, THE 6[TH] DAY OF JUNE 2023 / 16TH JYAISHTA, 1945 MAT.APPEAL NO. 391 OF 2013** **AGAINST THE JUDGMENT IN OP 489/2011 OF FAMILY COURT, KANNUR APPELLANT/PETITIONER:** K.K. UNNIKRISHNAN AGED 60 YEARS S/O. GOPALAN NAIR, KOYIPRA, VELLORA VILLAGE, VELLORA AMSOM AND DESOM, TALIPARAMBA TALUK, KANNUR DISTRICT. BY ADVS. SRI.O.V.MANIPRASAD SRI.SAJU J PANICKER ## **RESPONDENT/RESPONDENT:** T.K. SAVITHRI AGED 55 YEARS D/O. KRISHNAN NAIR, THEKKEKOTTARATHIL, KRISHNA KRIPA BHASKAR NIVAS, RAMANTHALI VILLAGE, RAMANTHALI AMSOM AND DESOM, TALIPARAMBA TALUK, KANNUR DISTRICT, RAMANTHALI P.O., PIN-670 308. BY ADV MAHESH V RAMAKRISHNAN THIS MAT.APPEAL HAVING COME UP FOR ADMISSION ON 06.06.2023, ALONG WITH Mat.Appeal.1162/2014 AND R.P. (FC).No.192/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **&** **THE HONOURABLE MRS. JUSTICE SOPHY THOMAS TUESDAY, THE 6[TH] DAY OF JUNE 2023 / 16TH JYAISHTA, 1945 MAT.APPEAL NO. 1162 OF 2014** **AGAINST THE JUDGMENT IN OP 773/2011 OF FAMILY COURT, KANNUR** ## **APPELLANT/RESPONDENT:** K.K.UNNIKRISHNAN AGED 60 YEARS S/O.GOPALAN NAIR,KOYIPRA,VELLORA VILLAGE,VOLLORA AMSOM AND DESOM,TALIPARAMBA TALUK,KANNUR DISTRICT. BY ADVS. SRI.O.V.MANIPRASAD SRI.SAJU J PANICKER ## **RESPONDENT/PETITIONER:** T.K.SAVITHRI AGED 55 YEARS D/O.KRISHNAN NAIR,THEKKEKOTTARATHIL,KRISHNA KRIPA BHASKAR NIVAS,RAMANTHALI VILLAGE,RAMANTHALI AMSOM AND DESOM,TALIPARAMBA TALUK,KANNUR DISTRICT670308 BY ADV SRI.MAHESH V RAMAKRISHNAN THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 06.06.2023, ALONG WITH Mat.Appeal.391/2013 AND CONNECTED CASE, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: # **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **&** **THE HONOURABLE MRS. JUSTICE SOPHY THOMAS TUESDAY, THE 6[TH] DAY OF JUNE 2023 / 16TH JYAISHTA, 1945 RPFC NO. 192 OF 2013** **AGAINST THE JUDGMENT IN MC 384/2011 OF FAMILY COURT, KANNUR** ## **REVISION PETITIONER/RESPONDENT:** K.K.UNNIKRISHNAN, AGED 60 YEARS, S/O.GOPALAN NAIR, KOYIPRA, VELLORA VILLAGE, VELLORA AMSOM AND DESOM, TALIPARAMBA TALUK, KANNUR DISTRICT. BY ADVS. SRI.O.V.MANIPRASAD SRI.SAJU J PANICKER ## **RESPONDENT/PETITIONER:** T.K.SAVITHRI, AGED 55 YEARS, D/O.KRISHNAN NAIR, THEKKEKOTTARATHIL, KRISHNA KRIPA BHASKAR NIVAS, RAMANTHALI VILLAGE, RAMANTHALI AMSOM AND DESOM, TALIPARAMBA TALUK, RAMANTHALI P.O, KANNUR DISTRICT, PIN 670 308. BY ADV SRI.MAHESH V RAMAKRISHNAN THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 06.06.2023, ALONG WITH Mat.Appeal.391/2013 AND CONNECTED CASE, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.MUHAMED MUSTAQUE & SOPHY THOMAS, JJ. ------------------------------------------Mat.Appeal Nos.391 of 2013 & 1162/2014 & R.P.(FC).No.192/2013 ------------------------------------------Dated this the 6th day of June, 2023 ## J U D G M E N T A.Muhamed Mustaque, J. These matters are between the same parties. The appellant in all these matters is the husband of the respondent. Their marriage was solemnized on 18/6/1979 in accordance with the Hindu Community rituals and ceremonies. In the wedlock, they have grown up children. The appellant is now nearing 70 years. But his vigour to fight this case has not been lost. Several rounds of attempts for settlement have been failed. They have been living separately for more than two decades. The lead case, Mat. Appeal 391/2013 is related to the claim for divorce. The claim for divorce made by the appellant has been dismissed by the Family Court. Mat.Appeal No.1162/2014 was filed challenging a decree granted in favour of his wiferespondent to recover past maintenance of Rs.54,000/-. The revision petition No.192/2013 was filed challenging the award of maintenance at the rate of Rs.2,000/- in favour of the respondent. The divorce petition was filed by the appellant-husband on the ground of cruelty and desertion. Mat.Appeal Nos.391 of 2013 & 1162/2014 & R.P.(FC).No.192/2013 ## **-:2:-** The Family Court has negatived the claim of the appellant on both of these grounds, namely, cruelty and desertion. 2. The appellant-husband accused the respondent of having an illicit relationship with her own uncle. Marriage was solemnized in the year 1979. The parties moved to Bombay after one year of marriage. According to the appellant, it was then the respondent developed an illicit relationship with her uncle. They appear to have lived apart for more than 9 years before 1990. In the year 1990, with the intervention of their family members, they decided to live together and the second child was born. The appellant left for the Gulf country in the year 1994 and came back in the year 2011. It seems that they never lived together after 2011. The appellant-husband is portraying his wife as unchaste to get rid of the marriage on the ground of cruelty. He also seeks a divorce on the ground of desertion stating that after the construction of the new house in the year 2008, his wife deserted him and she never came to reside in the new house with their children. 3. On a reading of the pleadings and evidence as a whole, it can be seen that the marriage was turbulent from the initial phase itself. They hardly lived together. The Mat.Appeal Nos.391 of 2013 & 1162/2014 & R.P.(FC).No.192/2013 **-:3:-** appellant accused her of being unchaste. It appears that constant bickering and discontentment forced the respondent to stay away from the appellant. The new house was constructed in the year 2008. They could not mend their ways to live together. Now it appears that, for more than 25 years, they are living separately. In Beena M.S. v. Shino G. Babu, [2022 SCC OnLine Ker 778] this Court after referring to Naveen Kohli v. Neelu Kohli [2006 4 scc 558] and Samar Ghosh v. Jaya Ghosh [(2007) 4 SCC 511] in para.6 held as follows: 6. 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 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. 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 Mat.Appeal Nos.391 of 2013 & 1162/2014 & R.P.(FC).No.192/2013 ## **-:4:-** one can force another to continue in a legal tie and relationship if the relationship deteriorated beyond repair. The portrayal of such conduct through manifest behaviour of the spouse in a manner understood by a prudent as ‘cruelty’ is the language of the lawyer for a cause before the court. This case is also not different. The behavioural disorder pointed out against the appellant in the petition for divorce was essentially reflection of incompatibility that existed between the parties. The husband wants to get out of the struggled relationship, on the projected cause of cruelty with reference to the incidents of misbehaviour. Incompatibility is a factor that can be reckoned while considering the ground for cruelty, if one of the spouses withholds the consent of mutual separation, though incompatibility is not recognised as ground for divorce. 4. The 25 years of separation and more than one decade of litigation need a quietus. We are sure that this is a failed marriage in toto. Nothing remains with us to revive this dead marriage. We are also sure that the respondent-wife is withholding mutual consent fearing stigma. We, in such circumstances, are of the view that the marriage is to be dissolved. Withholding consent to dissolve a failed marriage itself amounts to cruelty. We, accordingly, dissolve the marriage between the parties by declaring divorce. Mat.Appeal No.391/2013 is, therefore, allowed. 5. The challenge made by the appellant against past maintenance requires no interference. The appellant was Mat.Appeal Nos.391 of 2013 & 1162/2014 & R.P.(FC).No.192/2013 ## **-:5:-** admittedly earning. The respondent has claimed maintenance for three years from 5/11/2008 to 5/11/2011. The evidence would go to show that the appellant was having enough income. He was also getting income from rubber plantations. The court below awarded only Rs.1500/- per month for the period of three years. The appellant also failed to prove that he had discharged the claim. In such circumstances, the challenge in Mat. Appeal No.1162/2014 fails and is only to be dismissed. Accordingly, it is dismissed. 6. The revision petition 192/2013 was filed against the order of maintenance. The family court awarded only Rs.2000/- per month to the respondent. We also have found that the appellant is having sufficient income. Hence, maintenance awarded is moderate. Thus, the revision petition fails and is accordingly dismissed. Sd/- A.MUHAMED MUSTAQUE, JUDGE Sd/- SOPHY THOMAS, JUDGE ms