IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT :
THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID
TUESDAY, THE 1ST JULY 2008 / 10TH ASHADHA 1930
MFA.No. 212 of 2001(A)
---------------------(JUDGMENT IN O.S. NO.149 OF 1992 OF FAMILY COURT, TIRUVANANTHAPURAM)
APPELLANT/DEFENDANT:
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N.FIROZ, S/O. P.S.N.ROWTHER, CRESENT, T.C.9/232, JAWAHAR NAGAR, SASTHAMANGALAM, THIRUVANANTHAPURAM.
BY ADVS. SRI.S.V.BALAKRISHNA IYER (SR.) SRI.P.B.KRISHNAN
RESPONDENT/PLAINTIFF:
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SOFIA;, T.C.41/2362, ANUGRAHA, 1ST FLOOR, MANACAUD, THIRUVANANTHAPURAM.
BY ADV. SRI.K.L.NARASIMHAN
THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 23/6/2008, THE COURT ON 01/07/2008, DELIVERED THE FOLLOWING:
ORDER IN C.M.P. NO.2417 OF 2001 IN M.F.A. NO.212 OF 2001.
## DISMISSED
1.7.2008 Sd/-(KURIAN JOSEPH, JUDGE) Sd/-(HARUN-UL-RASHID, JUDGE)
## **KURIAN JOSEPH & HARUN-UL-RASHID, JJ.**
## **---------------------------------------------------------------M.F.A.NO. 212 OF 2001 ----------------------------------------------------------------**
Dated this 1st day of July, 2008
## **JUDGMENT**
## **Harun-Ul-Rashid, J.**
The appellant is the defendant in O.S. No.149 of 1992 on the file of the Family Court, Thiruvananthapuram. By the impugned judgment dated 30.1.2001, the Family Court held that there are sufficient grounds to grant a decree of divorce in favour of the plaintiff as per Section 2(ii)(iv) of the Dissolution of Muslim Marriage Act,1939. The Family Court, therefore, decreed the suit and dissolved the marriage between the plaintiff and the defendant.
2. Parties to this appeal are referred to as the plaintiff and the defendant as in the suit. The marriage between the parties was solemnised on 9.11.1985. The complaint of the plaintiff/wife is that her husband never allowed her to share his bed, that she was tortured mentally and physically and that she was humiliated and treated with inhuman cruelty. According to the plaintiff, the defendant failed to discharge his marital obligations towards her. The plaintiff delivered a male child on 19.7.1988
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and even after that the relationship between her and the defendant continued to be strained without any chance of reconciliation. The plaintiff, therefore, shifted her residence to her parental house on 27.11.1990 and from January, 1991 onwards started residing separately along with her child. The defendant filed a written statement denying the allegations levelled against him.
3. From the evidence on record, it is proved that the relationship between the parties got strained from the year 1990 onwards. They are living separately since 27.11.1990. The plaintiff as PW.1 levelled allegations against the defendant. The defendant did not adduce any evidence before the court below. The Family Court on an evaluation of the oral testimony of the plaintiff held that the defendant treated his wife with cruelty, both mentally and physically. The Family Court also took note of the fact that the plaintiff was brutally manhandled by the defendant and he behaved badly towards her demanding money. Relying on the solitary evidence adduced by the plaintiff, the court below concluded that the defendant tortured his wife physically on several occasions. Taking all the facts and circumstances into consideration, the court below held that there are sufficient grounds to grant a decree of divorce.
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4. Learned counsel appearing for the appellant/husband challenging the finding of the court below submitted that the court below relied on the interested testimony of PW.1 for the purpose of granting a decree and that the matter was not decided on merits after giving an opportunity to the defendant to substantiate his case. According to the learned counsel, the matter has to be remanded for affording an opportunity to the defendant to adduce evidence.
5. It is not known as to what prevented the defendant from adducing evidence in this case. There was no option for the court below other than to evaluate the evidence of PW.1 for a decision. Be that as it may, the fact remains that the parties are living separately for the last more than 17 years. Inspite of the notice issued by this Court for personal appearance, the appellant did not turn up. The respondent who was present submitted before this Court that the parties are living separately for the last more than 17 years and that there is no purpose in continuing the relationship which is dead long back. In the facts and circumstances narrated above, we also feel that there is no necessity for remanding the case and that continuance of the litigation will not serve any purpose.
6. It is an admitted fact that the respondent/wife left the
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matrimonial home on 27.11.1990 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 27.11.1990 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.
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 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.
8. Irretrievable breakdown of marriage is not a ground by itself for
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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.
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
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by a decree of divorce to put an 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 judgment and decree passed on the ground of cruelty is set aside. At the same time, the judgment and decree for dissolution of marriage is sustained for the reasons stated above. The appeal is accordingly dismissed. There will be no order as to costs.
## **(KURIAN JOSEPH, JUDGE)**
## **(HARUN-UL-RASHID, JUDGE)**
## **sp/**
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**KURIAN JOSEPH & HAURN-UL-RASHID, JJ.**
**M.F.A. NO. 212/2001**
**JUDGMENT**
**1ST JULY, 2008**
M.F.A. NO.212/2001 8
