Mat.Appeal Nos.893 and 897 of 2022

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE ``` ``` & ``` ``` THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN ``` ``` WEDNESDAY, THE 13[TH] DAY OF SEPTEMBER 2023 / 22ND BHADRA, 1945 ``` ``` MAT.APPEAL NO.893OF 2022 ``` ``` AGAINST THE JUDGMENT IN OP 1410/2017 dt 18/11/2022 OF FAMILY COURT,ERNAKULAM ``` ## **`APPELLANT/S:`** ``` ANN JOY AGED 30 YEARS D/O P.L. JOY, PULLAN HOUSE, NEAR NAAS AUDITORIUM, ANGAMALY VILLAGE, ANGAMALY DESOM, ALUVA TALUK, ERNAKULAM DISTRICT, PIN - 683572 BY ADVS. M.S.UNNIKRISHNAN K.SUNIL ALEENA MARIA JOSE M.ARDRA KRISHNAN KRISHNENDU.D ``` ``` Mat.Appeal Nos.893 and 897 of 2022 ``` ## -:2:- ## **`RESPONDENT/S:`** ``` AKHIL TONY AGED 34 YEARS S/O DR. TONY T.J, THALIATH HOUSE, ST. ANTONY 'S ROAD, THYKOODAM, VYTTILA DESOM, POONITHURA VILLAGE, KANAYANNOOR TALUK, ERNAKULAM DISTRICT - 682 019 AND RESIDENT OF 2ND FLOOR, KOLLANNUR ANTONY SON'S BUILDING, KOPPEN LANE, NEAR PUTHANPALLY, THRISSUR,, PIN - 680103 BY ADVS. G.SREEKUMAR (CHELUR)(K/679/1997)(Caveator) AJITH VISWANATHAN ``` ``` THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 13.09.2023, ALONG WITH Mat.Appeal.897/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Mat.Appeal Nos.893 and 897 of 2022 ``` ## -:3:- ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE ``` ``` & ``` ``` THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN ``` ``` WEDNESDAY, THE 13[TH] DAY OF SEPTEMBER 2023 / 22ND BHADRA, 1945 MAT.APPEAL NO.897OF 2022 ``` ``` AGAINST THE JUDGMENT OP 811/2018 OF FAMILY COURT,ERNAKULAM ``` ``` APPELLANT/S: ``` ``` ANN JOY AGED 30 YEARS D/O P.L. JOY, PULLAN HOUSE, NEAR NAAS AUDITORIUM, ANGAMALY VILLAGE, ANGAMALY DESOM, ALUVA TALUK, ERNAKULAM DISTRICT, PIN - 683572 BY ADVS. M.S.UNNIKRISHNAN K.SUNIL ALEENA MARIA JOSE M.ARDRA KRISHNAN KRISHNENDU.D ``` ``` Mat.Appeal Nos.893 and 897 of 2022 ``` -:4:- ## **`RESPONDENT/S:`** ``` AKHIL TONY AGED 34 YEARS S/O DR. TONY T.J, THALIATH HOUSE, ST. ANTONY 'S ROAD, THYKOODAM, VYTTILA DESOM, POONITHURA VILLAGE, KANAYANNOOR TALUK, ERNAKULAM DISTRICT - 682 019 AND RESIDENT OF 2ND FLOOR, KOLLANNUR ANTONY SON'S BUILDING, KOPPEN LANE, NEAR PUTHANPALLY, THRISSUR,, PIN - 680103 BY ADVS. G.SREEKUMAR (CHELUR) AJITH VISWANATHAN ``` ``` THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 13.09.2023, ALONG WITH Mat.Appeal.893/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Mat.Appeal Nos.893 and 897 of 2022 ``` -:5:- ``` A.MUHAMED MUSTAQUE & SHOBA ANNAMMA EAPEN, JJ. ``` ``` ----------------------------------------- Mat.Appeal Nos.893 and 897 of 2022 ----------------------------------------- ``` ``` Dated this the 13[th] day of September, 2023 ``` ``` J U D G M E N T ``` ``` A.Muhamed Mustaque, J. ``` ``` “If you cannot do good, do not do wrong.” ``` ``` This proverbial thought emanates at large after hearing both sides on several occasions. In a matrimonial dispute of young Christian couple, pleadings have gone overboard. They stigmatized each other rather than helping the Court to adjudicate the dispute in sobriety to understand the human problem that reflected as a cause for the divorce and claim for restitution of conjugal rights. In this jurisdiction, we have seen many cases claiming for divorce on the ground of cruelty. But we have not come across a case like this where the pleadings are set in a bad taste, forgetting the solemnity of nuptial tie and covenant of sacred ``` ``` Mat.Appeal Nos.893 and 897 of 2022 ``` ## -:6:- ``` companionship and stewardship. They did not want to give a chance for a sensible to intervene for an amicable settlement. The pleadings in the matter itself are sufficient cause for us to hold that marriage has become dead and fight now remains to sustain an individual ego. Ego denied them to reflect on self-awareness and control emotions instead forced them to react defensively. ``` ``` 2. The couple got married in accordance with the Christian rites on 25/9/2016 at Little Flower Church, Elamkulam. Both come from a reputed family engaged in jewellery business. The three honeymoons from Maldives to other places could not bring them together. They were steadfast in fighting. We cannot rule out the intervention of their parents in this matter. The husband approached the Family Court for divorce alleging cruelty immediately after one year of their marriage. The wife also filed a petition for restitution of conjugal rights. Both cases were tried together. Husband succeeded and wife failed. In this appeal, the wife questions the decree and judgment of the Family Court. ``` ``` 3. We see voluminous pleadings and evidence adduced as both can afford to fight a litigation for generations. What disturbed us in this matter is the destruction of possible reunion caused by their ``` ``` Mat.Appeal Nos.893 and 897 of 2022 ``` ## -:7:- ``` pleadings. We thought for a moment that the parties can mend their ways. We summoned them and interacted with them. Husband wants divorce and he is not relenting on his demand. The wife expressed her willingness, but on a deeper interaction with her, we understand that she has not forgiven him, and expression of willingness is to spite vengeance against husband rather to continue in the relationship. Her stand is clear. Her deep-rooted belief in Christianity will also not allow to consent for separation. The husband goes on saying in his pleading that the wife was reluctant to have intimacy with him. He further narrates her character and states that she was not interested in having sexual relationship with him and satisfied herself by masturbation after watching porn videos in her mobile. It is alleged that she was addicted to cybersex, and she has suicidal tendency. It is also stated by him that the wife unnecessarily related him with another lady, namely, Anuja, who is a diamond supplier from Mumbai. The constant bickering appears to have resulted them attending counselling sessions and retreat. A Clinical Psychologist was examined from the side of the husband and a few others were also examined to substantiate the allegations against the wife. The husband also narrated certain incidents of violence and assault on him by the wife. The wife has an ``` ``` Mat.Appeal Nos.893 and 897 of 2022 ``` ## -:8:- ``` interesting story to narrate as against her husband. She narrates husband as a person of bad character, a drunkard and homosexual. Her script is more carefully crafted. According to her, her mother-in-law spoke about his proclivity towards same sex and his relationship with his friend, Pratapan. She further states that her mother-in-law engineered friction between them and with an intention to break her relationship with her husband; she told her about his inclination towards homosexuality on an assumption that the daughter-in-law will unilaterally break away from the marriage. ``` ``` 4. We scanned pleadings and counter pleadings. We have no doubt that the pleadings itself are destructive and we do not want to rely on the pleadings or evidence adduced to hold cruelty as against one to the advantage of the other for dissolution of marriage. But we are sure that nothing further remains in this dead marriage and the parties remain in court to vent their egos rather than for a good cause. May be for the reason that the wife has a rooted belief in Christianity, she could not agree for a mutual divorce. All attempts for an amicable parting away faded. We looked at the findings of the Family Court. The Family Court, noting the deteriorative relationship and relying on the judgments of this Court and the Apex Court on granting divorce in a failed marriage, ``` ``` Mat.Appeal Nos.893 and 897 of 2022 ``` ## -:9:- ``` granted decree of divorce as it was of the view that it would be harmful and injurious for both to continue such a relationship. But in that process, the Family Court found fault with the wife. We have no hesitation to hold that both are at fault and have harmed each other enough to have a cause for separation. Withholding mutual consent in a failed marriage is nothing but cruelty. ``` ``` 5. In a recent judgment of this Court in Mat.Appeal No.578/2015 dated 18/9/2023, we have held as follows: ``` ``` We are not referring to the pleadings and evidence to hold the allegation of cruelty. We are sure that mutual consent for divorce failed in this matter as the bargaining could not meet the level of expectation. The court rooms cannot be replaced to allow the parties for a battle for grooming their egos and idiosyncratic behaviour, The Court is established for genuine people who honestly dispute on the cause. If they cannot live together even by sharing residence for more than a decade, it can be presumed that sense is lost on both. The idea of no fault divorce is making the people to realise that there is a sensible way of parting on a mutually agreed terms. Withholding mutual consent in a failed marriage is nothing but cruelty. ``` ``` 6. This Court in Beena M.S v. Shino G. Babu [2022 (2) KHC 11] held as follows: ``` ``` Mat.Appeal Nos.893 and 897 of 2022 ``` ## -:10:- ``` “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.” ``` ## `7. The Apex Court in` **`K. Srinivas Rao v. D.A Deepa [(2013) 5 SCC 226]`** `held as follows:` ``` “30. It is also to be noted that the appellant husband and the respondent wife are staying apart from 27-4-1999. Thus, they are living separately for more than ten years. This separation has created an unbridgeable distance between the two. As held in Samar Ghosh [(2007) 4 SCC 511], if we refuse to sever the tie, it may lead to mental cruelty. ``` ``` 31. We are also satisfied that this marriage has irretrievably broken down. Irretrievable breakdown of marriage is not a ground for divorce under the Hindu Marriage Act, 1955. But, where marriage is beyond repair on account of bitterness ``` ``` Mat.Appeal Nos.893 and 897 of 2022 ``` ## -:11:- ``` created by the acts of the husband or the wife or of both, the courts have always taken irretrievable breakdown of marriage as a very weighty circumstance amongst others necessitating severance of marital tie. A marriage which is dead for all purposes cannot be revived by a court's verdict, if the parties are not willing. This is because marriage involves human sentiments and emotions and if they are dried up there is hardly any chance of their springing back to life on account of artificial reunion created by the court's decree. ``` `32. In V. Bhagat [(1994) 1 SCC 337] this Court noted that divorce petition was pending for eight years and a good part of the lives of both the parties had been consumed in litigation, yet the end was not in sight. The facts were such that there was no question of reunion, the marriage having irretrievably broken down. While dissolving the marriage on the ground of mental cruelty this Court observed at para.21 that:` (SCC p. 351, para 21) ``` “21. … Irretrievable breakdown of the marriage is not a ground by itself. But, while scrutinising the evidence on record to determine whether the ground(s) alleged is/are made out and in determining the relief to be granted, the said circumstance can certainly be borne in mind.” ``` ``` 33. In Naveen Kohli [(2006) 4 SCC 558], where the husband and wife had been living separately for more than 10 years and a large number of criminal proceedings had been initiated by the ``` ``` Mat.Appeal Nos.893 and 897 of 2022 ``` ## -:12:- ``` wife against the husband, this Court observed that: (SCC p. 582, para 86) ``` ``` “86. … The marriage has been wrecked beyond the hope of salvage [and] public interest and interest of all concerned lies in the recognition of the fact and to declare defunct de jure what is already defunct de facto.” ``` ``` It is important to note that in Naveen Kohli case [(2006) 4 SCC 558] this Court made a recommendation to the Union of India that the Hindu Marriage Act, 1955 be amended to incorporate irretrievable breakdown of marriage as a ground for the grant of divorce. ``` ``` 34. In the ultimate analysis, we hold that the respondent wife has caused by her conduct mental cruelty to the appellant husband and the marriage has irretrievably broken down. Dissolution of marriage will relieve both sides of pain and anguish. In this Court the respondent wife expressed that she wants to go back to the appellant husband, but, that is not possible now. The appellant husband is not willing to take her back. Even if we refuse decree of divorce to the appellant husband, there are hardly any chances of the respondent wife leading a happy life with the appellant husband because a lot of bitterness is created by the conduct of the respondent wife. ``` ``` 35. In Vijaykumar [(2003) 6 SCC 334], it was submitted that if the decree of divorce is set aside, there may be fresh avenues and scope for reconciliation between parties. This Court ``` ``` Mat.Appeal Nos.893 and 897 of 2022 ``` ## -:13:- ``` observed that judged in the background of all surrounding circumstances, the claim appeared to be too desolate, merely born out of despair rather than based upon any real, concrete or genuine purpose or aim. In the facts of this case we feel the same. ``` ``` 36. While we are of the opinion that decree of divorce must be granted, we are alive to the plight of the respondent wife. The appellant husband is working as an Assistant Registrar in the Andhra Pradesh High Court. He is getting a good salary. The respondent wife fought the litigation for more than 10 years. She appears to be entirely dependent on her parents and on her brother, therefore, her future must be secured by directing the appellant husband to give her permanent alimony. In the facts and circumstance of this case, we are of the opinion that the appellant husband should be directed to pay a sum of Rs 15,00,000 (Rupees fifteen lakhs only) to the respondent wife as and by way of permanent alimony.” ``` ``` 8. The Apex Court in the concluding paragraph in Samar Ghosh v. Jaya Ghosh [(2007) 4 SCC 511] held that long separation and the refusal of one party to sever the matrimonial tie itself would constitute cruelty. The relevant paragraph is extracted herein. ``` ``` “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 ``` ``` Mat.Appeal Nos.893 and 897 of 2022 ``` ## -:14:- ``` contrary, it shows scant regard for the feelings and emotions of the parties, in such like situation, it may lead to mental cruelty.” ``` ``` 9. In a recent judgment of the Apex Court in Civil Appeal No.5454 of 2023 (2023 Live Law SC 727), it was held that keeping parties together despite irretrievable break down of marriage amounts to cruelty on both sides. ``` ``` We are thus of the view that both the appeals have to be dismissed for the reasons mentioned as above. The appeals are accordingly dismissed. ``` **==> picture [201 x 12] intentionally omitted <==** ``` A.MUHAMED MUSTAQUE, JUDGE ``` ``` Sd/- ``` ``` SHOBA ANNAMMA EAPEN, JUDGE ``` ``` ms ``` ``` Mat.Appeal Nos.893 and 897 of 2022 ``` -:15:- ## **`APPENDIX OF MAT.APPEAL 897/2022`** ``` PETITIONER ANNEXURES Appendix ``` ``` CERTIFIED COPY OF THE JUDGMENT DATED 18.11.2022 IN O.P 811 OF 2018 ON THE FILES OF HON'BLE FAMILY COURT, ERNAKULAM. ``` ``` Mat.Appeal Nos.893 and 897 of 2022 ``` -:16:- ## **`APPENDIX OF MAT.APPEAL 893/2022`** ``` PETITIONER ANNEXURES Annexure ``` ``` CERTIFIED COPY OF THE JUDGMENT DATED 18.11.2022 IN O.P. NO.1410 OF 2017 BEFORE THE HON'BLE FAMILY COURT, ERNAKULAM ```