Mat.Appeal No.668 of 2021 & conn. cases

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE`** ``` & THEHONOURABLEMRS.JUSTICESOPHYTHOMAS THURSDAY,THE24[TH]DAYOFAUGUST2023/2NDBHADRA,1945 MAT.APPEALNO.668OF2021 ``` ## **`AGAINST THE ORDER/JUDGMENT IN OP (G&W) 224/2018 OF FAMILY COURT, THIRUVANANTHAPURAM APPELLANT/PETITIONER:`** ``` DR.KIREN.T AGED36YEARS S/O.DR.K.R.THANKAPPAN,RESIDINGATNEW RAYS,E-34,ARCHANANAGAR,PONGUMOODU, MEDICALCOLLEGE.P.O, THIRUVANANTHAPURAM-695011. ``` ``` BYADVMAJIDA.S ``` ## **`RESPONDENT/RESPONDENT:`** ``` DR.DRISYA.D.T.,AGED33YEARS, D/O.DR.V.DIVAKARAN,RESIDINGATA4, DEEPTHAM,PANDITSCOLONY,KOWDIAR.P.O, THIRUVANANTHAPURAM-695003. ``` ``` BYADVS. BABUKARUKAPADATH M.A.VAHEEDABABU P.U.VINODKUMAR ARYARAGHUNATH MUHAMMEDMUSTAQUE KARUKAPADATHWAZIMBABU P.LAKSHMI ``` ``` THISMATRIMONIALAPPEALHAVINGBEENFINALLYHEARDON 24.08.2023,ALONGWITHMat.Appeal.169/2022,721/2022,THE COURTONTHESAMEDAYDELIVEREDTHEFOLLOWING: ``` Mat.Appeal No.668 of 2021 & conn.cases 2 # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE`** ``` & THEHONOURABLEMRS.JUSTICESOPHYTHOMAS THURSDAY,THE24[TH]DAYOFAUGUST2023/2NDBHADRA,1945 MAT.APPEALNO.169OF2022 ``` ``` AGAINSTTHEORDER/JUDGMENTINOP224/2018OFFAMILYCOURT, THIRUVANANTHAPURAM ``` ## **`APPELLANT/RESPONDENT:`** ``` DR.DRISYAD.T AGED37YEARS D/O.DR.V.DIVAKARAN,RESIDINGATTC4/1870(4), A-4(4),DEEPTHAM,PANDITSCOLONY,KOWDIAR - P.O.,THIRUVANANTHAPURAM,PIN695003. ``` ``` BYADVS. M.R.DHANIL SENITTAP.JOJO ``` ## **`RESPONDENT/PETITIONER:`** ``` DR.KIREN.T AGED40YEARS S/O.DR.K.R.THANKAPPAN,RESIDINGATNEW RAYS,E-34,ARCHANANAGAR,PONGUMMOODU, MEDICALCOLLEGEP.O.,THIRUVANANTHAPURAM, - PIN695011. ``` ``` BYADVS. S.MajidaS AJIKHAN.M(K/3192/1999) MUHAMMEDSUHAILK.H.(K/001374/2020) ``` ``` THISMATRIMONIALAPPEALHAVINGBEENFINALLYHEARDON 24.08.2023,ALONGWITHMat.Appeal.668/2021ANDCONNECTED CASES,THECOURTONTHESAMEDAYDELIVEREDTHEFOLLOWING: ``` Mat.Appeal No.668 of 2021 3 & conn.cases ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE & THE HONOURABLE MRS. JUSTICE SOPHY THOMAS THURSDAY, THE 24[TH] DAY OF AUGUST 2023 / 2ND BHADRA, 1945 MAT.APPEAL NO. 721 OF 2022`** ## **`AGAINST THE ORDER/JUDGMENT IN OP 223/2018 OF FAMILY COURT, THIRUVANANTHAPURAM`** ## **`APPELLANT/RESPONDENT AND COUNTER PETITIONER:`** ``` DR.DRISYAD.T. AGED37YEARS D/O.DR.V.DIVAKARAN,RESIDINGAT A4,DEEPTHAM,PANDITSCOLONY,KOWDIAR P.O.,THIRUVANANTHAPURAM., - PIN695003 BYADVS. M.R.DHANIL SENITTAP.JOJO ``` ## **`RESPONDENT/PETITIONER:`** ``` DR.KIRENT. AGED40YEARS S/O.DR.K.R.THANKAPPAN,RESIDINGAT NEWRAYS,E-34,ARCHANANAGAR, PONGUMMOODU,MEDICALCOLLEGEP.O., - THIRUVANANTHAPURAM.,PIN695011. BYADVS. S.MajidaS MUHAMMEDSUHAILK.H.(K/001374/2020) AJIKHAN.M(K/3192/1999) ``` ``` THISMATRIMONIALAPPEALHAVINGBEENFINALLYHEARDON 24.08.2023,ALONGWITHMat.Appeal.668/2021ANDCONNECTED CASES,THECOURTONTHESAMEDAYDELIVEREDTHEFOLLOWING: ``` Mat.Appeal No.668 of 2021 & conn.cases 4 ## **J U D G M E N T** ## Sophy Thomas, J. These appeals arise out of the common judgment in OP No.223 of 2018 and 224 of 2018 on the file of Family Court, Thiruvananthapuram. 2. The dispute is between husband and wife. The husband filed OP No.223 of 2018 for a decree of divorce and OP No.224 of 2018 for getting permanent custody of his minor children. The Family Court, as per judgment dated 29.09.2021, decreed OP No.223 of 2018 dissolving their marriage, and dismissed OP No.224 of 2018 rejecting his prayer for permanent custody of the children. But, at the same time, he was given visitation rights to be exercised once in a week on all Sundays from 10 a.m till 5 p.m. Aggrieved by the rejection of his prayer to get permanent custody of the children, the father preferred Mat.Appeal No.668 of 2021, and aggrieved by the visitation rights granted to the father on every Sunday, the wife filed Mat.Appeal No.169 of 2022. Mat.Appeal No.668 of 2021 & conn.cases 5 Against the decree of divorce granted in favour of the husband, the wife preferred Mat.Appeal No.721 of 2022. 3. Now we are called upon to answer whether there is any illegality, irregularity or impropriety in the impugned judgment warranting interference by this Court. 4. Both the appellant and respondent are medical Doctors. The husband is working in Chennai and the wife is working in Medical College Hospital, Thiruvananthapuram. According to her, she is having duty even on holidays, and so it is very difficult for her to take the child every Sunday, for the father to exercise his visitation rights. Since the father is working in Chennai, it is also difficult for him to reach Trivandrum every week to exercise the visitation rights, that too only during day time. 5. When we interacted with the parties, both of them are amenable that the children could be handed over to the custody of the father at 5 pm on Friday preceding the second Saturday of every month and he can keep custody of the children till 5 pm on Mat.Appeal No.668 of 2021 & conn.cases 6 the following Sunday. During Onam and Christmas vacations, the father can have custody of the children for three days each during the first half, and 15 days during the second half of summer vacation. The venue for exchange of custody of the child shall be the premises of Family Court, Thiruvananthapuram. Since both parties are amenable for such a course, considering the convenience and consensus of the parties, the decree in OP No.224 of 2018 is modified to the extent of granting visitation rights to the father of the children as stated above. So, Mat.Appeal Nos.668 of 2021 and 169 of 2022 are disposed of modifying the impugned judgment to the extent as above. 6. Now coming to the divorce decree granted in favour of the husband, the husband was seeking divorce on the ground of cruelty. According to him, the wife was so cruel to him, even from the very inception of marriage. She was not co-operating with him in sexual matters, and in fact she avoided him. The wife also was making all sorts of allegations against the husband including Mat.Appeal No.668 of 2021 7 & conn.cases sexual perversions. Admittedly, the couple were separated long back and they could not resolve their issues even after separation of about five years. There are no symptoms of reunion from either side, except the wrangling for the children. Having adverted to the facts and circumstances, the available inference is that their matrimony is dead for all practical purposes. Though the wife is opposing the decree of divorce obtained by the husband, she has no case that she ever tried or intended for a reunion. 7. 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 Mat.Appeal No.668 of 2021 & conn.cases 8 emotions of the parties. In such situations, the refusal may lead to mental cruelty. ## 8. 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 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”. 9. 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 Mat.Appeal No.668 of 2021 & conn.cases 9 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. 10. 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 five years, without showing any symptoms of reunion. Both parties are alleging cruelty against each other. But, the wife is not ready for divorce on mutual consent. It amounts to cruelty, if at all the husband 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 Mat.Appeal No.721 of 2022 is liable to be dismissed, upholding the decree of divorce granted by the Family Court. Mat.Appeal No.668 of 2021 & conn.cases 10 11. In the result, Mat.Appeal No.721 of 2022 is dismissed, upholding the decree of divorce granted by the Family Court. Mat.Appeal Nos.668 of 2021 and 169 of 2022 are disposed of, modifying the impugned judgment and decree, granting visitation rights to the father from 5 pm on Friday preceding the second Saturday of every month till 5 pm on the following Sunday. During Onam and Christmas vacations, the father can have custody of the children for three days each during the first half and 15 days during the second half of summer vacation. The venue for exchange of custody of the children shall be the premises of Family Court, Thiruvananthapuram. No order as to costs. ## Sd/- **A.MUHAMED MUSTAQUE JUDGE** Sd/- ## **SOPHY THOMAS JUDGE** smp Mat.Appeal No.668 of 2021 11 & conn.cases ## **`APPENDIX OF MAT.APPEAL 721/2022`** ``` RESPONDENTANNEXURES ``` ``` AnnexureR1TruecopyoftheCompromiseDecreepassedin OP.No.780/2021beforetheFamilyCourt, Trivandrum AnnexureR2TruecopyoftheR.PNo.5/2022inO.PNo. 780/2021 AnnexureR3ThetruecopyofthecommonJudgmentdated 10/11/2022inRP(FC)No.264/2021andRP(FC)No. 13/2022 ```