Mahesan v. Shobhana

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 MFA.No. 1373 of 2001() ---------------------OPHMA.49/2000 of ADDL.SUB COURT, ALAPPUZHA .................... APPELLANT/PETITIONER: ----------- MAHESAN, S/O. LATE DIVAKARAN, RESIDING AT PADINJARETHAYIL OF PUNNAPRA MURI AND VILLAGE. BY ADVS. SRI.K.S.HARIHARAPUTHRAN SRI.P.J.JOSEPH RESPONDENT/CR. PETITIONER: ------------- SHOBHANA, D/O. PRASAD, RESIDING AT SHOBHANAPURAM, KARUMADY P.O., AMBALAPPUZHA. BY // THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 27/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **KURIAN JOSEPH & HARUN-UL-RASHID, JJ. ---------------------------------------------------------------M.F.A. NO.1373 OF 2001 ----------------------------------------------------------------** Dated this the 27[th] day of March, 2008 ## **JUDGMENT** ## **Harun-Ul-Rashid, J.** This appeal is preferred against the judgment and decree dated 31.7.2001 in O.P.(H.M.A.)No. 49 of 2000 on the file of the Additional Sub Court, Alappuzha by which the petition filed under Section 13(1)(a) of the Hindu Marriage Act was dismissed. The appellant is the petitioner in the above Original Petition. The parties to this appeal are referred to as the petitioner and counter petitioner as in the Original Petition. 2. The marriage between the petitioner and the counter petitioner was solemnised on 9.3.1989. The petitioner is employed in a Gulf country. It is alleged by the petitioner that during his absence, the counter petitioner/wife frequently picked up quarrels with his parents and used to go to her uncle's house who is in inimical terms with the petitioner and his family despite his protests. He further alleged that whenever he came on M.F.A.NO.1373/2001 2 leave, the counter petitioner used to quarrel with him and behaved cruelly towards him and even threatened to commit suicide. Under the circumstances, it is alleged that he is unable to live with the counter petitioner and, therefore, prayed for dissolution of their marriage by a decree of divorce. 3. The counter petitioner denied the allegations in the Original Petition. According to her, she was not in the habit of picking up quarrels with the petitioner and that it was the petitioner who continuously ill treated her for the reason that no issues were born in the wedlock. She further alleged that the petitioner and his parents found fault with her for not having conceived, that the petitioner used to call her as impotent and declared his intention to marry some other lady capable of conceiving. She also contended that the petitioner used to torture her mentally and physically and subjected her to untold miseries and hardship. It is also submitted that in June, 1994, the petitioner and his parents had taken her to her house and thereafter the parties are residing separately. 4. The evidence in the case consists of the oral evidence of the petitioner and another witness who were examined as PWs.1 and 2 and that of the counter petitioner and another witness examined as RWs.1 and M.F.A.NO.1373/2001 3 2. After considering the facts and circumstances of the case, the court below found that the petitioner/husband failed to establish the cruelty alleged in the petition. The court below also made reference to the efforts made on several occasions at the Lok Adalat and counselling centre for a reunion between the parties. The court below also observed that the parties have co-habited only for 133 days together. 5. It is an admitted fact that the parties are separated since June, 1994. For more than 13 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 13 years have elapsed since the petitioner and the counter petitioner 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. M.F.A.NO.1373/2001 4 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 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 M.F.A.NO.1373/2001 5 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 parties. In the result, the appeal is allowed. The marriage between the M.F.A.NO.1373/2001 6 petitioner and the counter petitioner is dissolved with effect from today. There will be no order as to costs. **(KURIAN JOSEPH, JUDGE)** **(HARUN-UL-RASHID, JUDGE)** **sp/** M.F.A.NO.1373/2001 7 **KURIAN JOSEPH & HAURN-UL-RASHID, JJ.** **M.F.A.NO.1373/2001** **JUDGMENT** **27TH MARCH, 2008**