M.F.A. No. 785 of 1998

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 20TH FEBRUARY 2008 / 1ST PHALGUNA 1929 MFA.No. 785 of 1998() --------------------OP.105/1994 of FAMILY COURT,KOZHIKODE .................... APPELLANT/PETITIONER: ----------K. BALAKRISHNAN, AGED 35 YEARS, S/O. APPU PANICKAR, (KIZHAKKEDATH), VELUTHEDATH, P.O. PANNADIPOYIL, VIA BALUSSERY, KOZHIKODE DISTRICT. BY ADVS. SRI.P.V.KUNHIKRISHNAN SMT.R.PADMAKUMARI RESPONDENT/RESPONDENT: ------------- M.V. SHYAMALA, AGED 30 YEARS, (MENTALLY ILL PERSON), D/O. LATE DAMODARA PANICKAR, REPRESENTED BY MOTHER/NEXT FRIEND, SMT. LAKSHMI, W/O. DAMODHARAN PANICKAR, MANAMTHARU VAYAL HOUSE, P.O. KINALUR, KOZHIKODE DISTRICT. BY ADV. SRI.T.G.RAJENDRAN THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 20/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **KURIAN JOSEPH & HARUN-UL-RASHID, JJ. ---------------------------------------------------------------M.F.A. NO. 785 OF 1998** ## **----------------------------------------------------------------** Dated this the 20[th] day of February, 2008 ## **JUDGMENT** ## **Harun-Ul-Rashid, J.** The appellant is the petitioner in O.P.No.105 of 1994 on the file of the Family Court, Kozhikode. The court below found that the petitioner had failed to prove that the respondent is suffering from Schizophrenia or incurable unsound mind and, therefore, the petitioner is not entitled to get a decree of divorce, as prayed for. 2. The parties to this appeal are referred to as the petitioner and respondent as in the Original Petition. The case of the petitioner in brief is as follows: The petitioner married the respondent on 9.7.1980 and a female child was born in the wedlock in 1982. After some period of the marriage, some abnormalities were seen in the behaviour of the respondent. Circumstances became worse in 1990. She made attempts to commit M.F.A.NO.785/1998 2 suicide. The respondent was taken to the Mental Hospital, Kuthiravattom on 21.6.1990 and treated as an out-patient. After examination, the respondent was found to be suffering from acute Schizophrenia which is most dangerous and incurable. Though the doctors advised to admit the respondent in the hospital, her father and relatives were reluctant to do so. It is further alleged that the respondent was suffering from recurrent attacks of insanity even before the marriage and that it is practically impossible to lead a married life with the respondent. 3. The respondent denied the allegations in the petition. According to her, she and the petitioner lived together for ten years in the house of the petitioner and that the petitioner in collusion with his family members were trying to make her a lunatic and seek divorce on that ground. The respondent opposed the petition and prayed for dismissal of the same. 4. The evidence in the case consists of the testimony of PWs.1 to 3 and RW1. Exts.A1 and A2 were also marked. The petitioner as PW.1 gave evidence in terms of the petition. He stated that the respondent is residing separately since 21.6.1990. PW.2 was examined to prove the illness of the respondent. The trial court found that the evidence of PW.3, an 8[th] standard student, who is none other than the daughter of the M.F.A.NO.785/1998 3 petitioner and respondent, is not sufficient to prove that the respondent was suffering from Schizophrenia. The trial court noticed the fact that the respondent left the house of the petitioner with her daughter who was then studying in the second standard and, therefore, the court below refused to place reliance on the evidence of PW.3. After appreciating the evidence on record, the court below rightly held that the petitioner had failed to prove that the respondent is suffering from Schizophrenia or an incurable unsound mind. The finding entered by the court below, therefore, requires no interference. 5. It is an admitted fact that the respondent/wife left the matrimonial home on 21.6.1990 and she is residing separately since then. Seventeen years have lapsed since the petitioner and respondent had separated. It is also an admitted fact that the respondent did not return to her matrimonial home and did not resume co-habitation after she left the house on 21.6.1990 The facts and circumstances of the case proved conclusively that the parties are living separately with the intention to end the marital life. For the last 17 years, the husband and wife are living separately. The 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. M.F.A.NO.785/1998 4 6. Desertion is an act which implies abandonment against the wish of the person charging it. In this case, the respondent 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 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 put an end to the marital relationship and co-habitation. 7. Seventeen 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. A workable solution is M.F.A.NO.785/1998 5 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. 8. 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.785/1998 6 granting decree of divorce. 9. 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 and end to the agony and bitterness of the parties. 10. 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, 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 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.785/1998 7 petitioner and the respondent 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.785/1998 8 **KURAIN JOSEPH & HAURN-UL-RASHID, JJ.** **M.F.A.NO.785/1998** **JUDGMENT** **20TH FEBRUARY, 2008**