M.F.A. No. 595 of 1998

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 14TH FEBRUARY 2008 / 25TH MAGHA 1929 MFA.No. 595 of 1998() --------------------OPHMA.1/1997 of SUB COURT, PALA .................... ## APPELLANT/PETITONER -------------------------E.N.KARTHIKEYAN, S/O NARAYANAN EZHAVER VAYALIL HOUSE NEDUBHAGAM VILLAGE, MEENACHIL TALUK BY ADV. SRI.N.SUGATHAN SRI.AVR.PANICKER ## RESPONDENT/ COUNTER PETITIONER ----------------------------------------- N.G.GEETHA D/O N.K.GOPALAN NEELIYANIKUNNEL HOUSE THEGHAKKAL, VANDIPERIYAR IDUKKI DISTRICT BY ADV. SRI.T.P.VARGHESE SRI.PHILIP T.VARGHESE THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 14/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **KURIAN JOSEPH & HARUN-UL-RASHID, JJ. -----------------------------------------M.F.A. No. 595 of 1998** ## **------------------------------------------Dated this the day of February 2008** ## **JUDGMENT** ## **Harun-Ul-Rashid ,J** The appellant is the petitioner in O.P (HMA) 1/1997 on the file of the Sub court Pala. The respondent in the O.P is the petitioner's wife. The petition for divorce was filed on the ground of cruelty and desertion. 2. By the impugned judgment and decree the Court below held that the petitioner failed to prove the ground alleged in the petition and accordingly the petition for divorce was dismissed . Aggrieved by the judgment and decree the petitioner/ appellant has come up in this appeal. The parties herein after are referred to as appellant and respondent. 3. The marriage between the parties was solemnised on 12-41987 The petitioner is a thanthri working in temples After the marriage they resided together in the house of the appellant. The case of the appellant is that, after three months from the date of marriage, the respondent left the marital home without the permission of the petitioner . She thereafter returned to the home along with the child only after one year. The birth of the child was not informed to the petitioner in the appropriate time. After the period of six months, the respondent again left ## _**M.F.A. No.595 of 1998**_ _**-2-**_ the marital house along with the child without the permission of the petitioner. She again returned the house after a lapse of three years. It is also pleaded that she did not perform her marital obligations during these periods and refuses to have co-operate for congenial atmosphere in the matrimonial home. It is also pleaded that on 20-12- 1993 the respondent/ wife after quarrelling with the appellant threw away the sacred 'thali' and shouted that the marital relationship was ceased and she would not return. According to the appellant thereafter the respondent never returned. She is deserted the appellant and the marriage has irretrievably broken. It is also alleged that the respondent/ wife is of quarreling nature and treated him with cruelty. 4. The respondent in her objection refuted all the allegations. She also contended that there she left the matrimonial house with the knowledge and consent of the appellant. . She also alleged in the petition that the appellant was leading a loosed moral life. His service as ' thanthri' was terminated in two temples due to that reason . She also alleged that the appellant is having some illicit relationship with two women. The trial court examined PW1 to 4, RW 1 to 3 and marked Ext.A1 and B1 to B10, 5. According to the appellant the judgment and decree under appeal is illegal for the reason that the averments of cruelty and desertion ## _**M.F.A. No.595 of 1998**_ _**-3-**_ has been proved and therefore a decree ought to have been granted as prayed for. It is contended before us that there is no impartial that proper analysing of the evidence available on record and that evidence was in fact analysed perversely causing serious prejudice to the appellant. 6. It is an admitted fact that the respondent\ wife did not return to her matrimonial home and did not resume co-habitation after she left the house on 20-12-1993. PW2 & PW4 also had spoken about the incident that happened on 20-12-1993. We are of the view that the evidence let in by PW1 to PW4 was not properly and objectively appreciated by the court below . The factum of separation was admitted by the respondent before this court. The facts and circumstances proved conclusively that the respondent was living separately with an intention to end the marital life. So it has been concluded that for the last 14 years the husband and wife are living separately . The conduct of the parties and the facts and circumstances of the case reveals that the parties have made up their mind to put and end to the marital relation and co-habitation permanently for the last 14 years. 7. Desertion is an act which implies abandonment against the wish of the person charging it. In this case, it was the respondent who left the matrimonial home and started residing separately. The question raised is will the conduct amount to desertion on the part of the respondent. The ## _**M.F.A. No.595 of 1998**_ _**-4-**_ Supreme Court in the decision reported in **Bipinchandra Jaisingbhai Shah v. Prabhavati, AIR 1957 SC 176** held that where the wife is forcibly turned out of her marital home by the husband, the husband is guilty of constructive desertion. The test is not who left the matrimonial home first. If one spouse by his words and conduct compels the other spouse to leave the marital home, the former would be guilty of desertion, though it is the latter who is physically separated from the other and has been made to leave the marital home. There is no evidence in this case to find that the wife was forcefully turned out of her matrimonial home by the husband. The available evidence discussed above shows that the respondent/wife had left the matrimonial home without reasonable and sufficient cause and that she had put an end to the marital relation and co-habitation. Under these circumstances, the respondent is to be blamed for the desertion which constitutes a ground for divorce. 8. Fourteen years have elapsed since the petitioner and respondent 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. The husband had proved before the Family Court both the factum of separation as well as animus deserendi which are the essential elements of desertion. A workable solution is certainly not possible. The parties cannot at this stage reconcile themselves and live together forgetting their past. Because of the irretrievable breakdown of the marriage, the marriage between the ## _**M.F.A. No.595 of 1998**_ _**-5-**_ 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. 9. 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 granting decree of divorce. 10. The counsel for the appellant brought to our notice in paragraph 7 of the objection filed by the respondent /wife imputing false allegations detailing the morality of her husband without any supporting ## _**M.F.A. No.595 of 1998**_ _**-6-**_ proof. In pragraph 7 it is stated that _Thanthri at Mahadeva Temple at Kottayam and Palluruthy Bhuvaneswary temple the authorities forced to terminate his service due to his loosed moral life. Now the respondent apprehends that the petitioner is having some other alliance which he wanted to legalise after dissolving this matrimonial contract._ 11. When the petitioner was examined it was suggested to him about the allegation that the petitioner was dismissed from two temples on the ground of loosed moral life and that the petitionerwas having illicit relationship with two women by name Kunjomana and Geetha. The question for consideration is whether such an allegation which finds a place in the objection of the respondent/wife as well as in the examination of the respondent can be treated as cruelty so as to grant a decree for divorce. The respondent's witness as RW2 deposed that a relative of the petitioner namely Kunjumol began to reside in the house after the respondent has left his residence. RW2 also deposed that the petitioner brought another lady by name Geetha to his house. We also find that the RW2 was failed to adduce any evidence to prove the imputations levelled against against the petitioner. 12. It being well-settled by authorities that, false, defamatory, scandalous, malicious, baseless and unproved allegations made against the spouse in the written statement can amount to cruelty. The ## _**M.F.A. No.595 of 1998**_ _**-7-**_ irresponsible insinuation and allegations which were made during the course of litigation against the wife cannot be brushed aside such a view was taken by the Rajastan High Court in the decision reported in **Parihar Vs. Parihar AIR 1978 Rajastan 140. Pushparani Vs. Krishan lal AIR 1982 Delhi 107** is a case where the wife had in her written statement alleged that an illicit relationship existed between her husband and one Smt. Bindra Devi. When the husband appeared in the witness box the said statement was directly suggested to him in the cross-examination. This imputation was not a ground pleaded in the petition by the husband It was held by the Delhi High Court that the allegations of adultery made by the wife at the time of cross- examination and in her deposition could be taken into consideration for giving a finding of cruelty. The learned judge had followed the principle that cruelty subsequent to the institution of the petition could be taken into account to prevent multiplicity of proceedings. 13. The Supreme Court in the decision reported in **Vijay Kumar Ramchandra Bhate Vs. Neela Vijaykumar Bhate (2003 (6) SCC 334** ) considered the question whether character assassination in or during divorce proceedings amounts to cruelty. In that case in the written statement filed by the husband, in which allegations are made against wife branding her as unchaste woman keeping illicit relations- sexually and otherwise with a neighbour's son. Subsequently the husband sought to withdraw those allegations by amendment of the written statement. The _**M.F.A. No.595 of 1998**_ _**-8-**_ amendments were allowed and were actually carried out by the trial court. The Supreme Court held that levelling disgusting accusations of unchastity and indecent familiarity with a person outside wedlock and allegations of extra marital relationship constitute grave assault on the character, honour, reputation, status as well as the health of the wife. It is held that such aspersions of perfidiousness attributed to the wife viewed in the context of an educated indian wife and judged by Indian conditions and standards would amount to worst form of insult and cruelty sufficient by itself to substantiate cruelty in law, warranting the claim of the wife being allowed. The Supreme Court further held that such allegations made in the written statement or suggested in the course of examination and by way of crossexamination satisfy the requirement of law. Such disgusting accusations certainly will cause mental pain, agony and suffering amounting to the reformulated concept of cruelty in matrimonial law causing profound and lasting disruption and driving the wife to feel deeply hurt and reasonably apprehend that it would be dangerous for her to live with the husband who was taunting her like that and rendered the maintenance of matrimonial home impossible. The Supreme Court also held that it is futile to claim by the husband that the withdrawal of allegations unilaterally by the husband by filing an application for amendment of the written statement wiped out completely all those allegations for all those purposes and that the amendments carried out subsequently does not absolve the husband from being held liable for having treated the wife with cruelty by making ## _**M.F.A. No.595 of 1998**_ _**-9-**_ earlier such injurious reproaches and statements due to their impact when made and continued to remain on record. 14. These assertions refused about cannot but constitute mental cruelty of such a nature that the petitioner cannot reasonably asked to live with the respondent thereafter. The husband in the position of the petitioner herein would be justified in saying that it is not possible for him to live with her in view of the said allegations. Despite all that the wife says that she wants to live with the petitioner. The obvious conclusion is that she has resolved to live in agony only to make life a miserable hell for the petitioner as well. This type of callous attitude in the context of the facts of this case leaves no doubt that the respondent bent upon treating the petitioner with mental cruelty 15. We find in the interest of both the parties the unusual step can be resorted to only to clear up an insoluble mess. The Supreme Court also had occasion to consider whether the averments made in the written statement had constituted mental cruelty in the decision reported in **V.Bhagat Vs.D.Bhagat (1994 (1) SCC 337)** The Supreme Court held that the allegations of “ paranoid disorder” “mental patient” “needs psychological treatment to make him act a normal person” and the statement by the wife that her husband and all the members of his family are lunatics are assertions cannot but constitute mental cruelty of such a nature that the husband cannot reasonably be asked to live with the wife ## _**M.F.A. No.595 of 1998**_ _**-10-**_ thereafter. The Supreme Court also held that the husband in the position of the petitioner herein would be justified in saying that it is not possible for to live with the wife in view of the said allegations. 16. We are also convinced that no useful purpose will be served getting such a marriage alive on paper, in 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 and end to the agony and bitterness 17. The Supreme Court observed that once the parties have separated and the separation has continued for sufficient length of time and one of them has presented a petition for divorce decree it can 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 society and injurious to the interests of the parties. 18. In the light of the reasons stated supra, we are of the view that the appellant/husband is succeeded in proving the grounds of desertion and cruelty and therefore entitled to a decree of divorce. The _**-11-**_ ## _**M.F.A. No.595 of 1998**_ marriage between the parties is dissolved with effect from today. 19. In the result, we allow this appeal The decree and judgment under appeal are set aside. There will be no order as to costs. **KURIAN JOSEPH, JUDGE** **HARUN-UL-RASHID, JUDGE** es