Nickson v. Neetha

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ## **`THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE`** ``` & ``` ``` THEHONOURABLEMRS.JUSTICESOPHYTHOMAS THURSDAY,THE15[TH]DAYOFJUNE2023/25THJYAISHTA,1945 MAT.APPEALNO.992OF2017 ``` ``` AGAINSTTHEORDER/JUDGMENTINOP(DIV)826/2013OFFAMILY COURT,TRIVANDRUM ``` ## **`APPELLANT/PETITIONER:`** ``` NICKSON AGED40YEARS S/O.JOSEPH,J.C.COTTAGE,ERAVIPURAM,KOLLAM. BYADVS. SRI.ALEX.M.SCARIA SMT.SARITHATHOMAS ``` ## **`RESPONDENT/RESPONDENT:`** ``` NEETHA AGED32YEARS,D/O.BASTIANNISHANTH, ELANGATHUVELINAGAR,MADAYILJUNCTION, THIRUMULLAVARAMP.O.,KOLLAM-691012. ``` ``` BYADVSRI.GEORGEJOHNSON ``` ``` THISMATRIMONIALAPPEALHAVINGBEENFINALLYHEARDON 15.06.2023,THECOURTONTHESAMEDAYDELIVEREDTHE FOLLOWING: ``` Mat.Appeal No.992 of 2017 2 # **A.MUHAMED MUSTAQUE & SOPHY THOMAS, JJ.** ## **-------------------------------------------Mat.Appeal No.992 of 2017** **--------------------------------------------** Dated this the 15[th] day of June, 2023 ## **J U D G M E N T** ## Sophy Thomas, J. The husband, who lost his case for divorce, is before us, challenging the judgment and decree of the Family Court, Kollam in OP (Div) No.826 of 2013. 2. The appellant married the respondent on 29.08.2005 as per Christian religious rites and custom. They lived together as husband and wife till 2008, and a child was born in their lawful wedlock. According to the appellant, his matrimonial life was miserable due to the adamant, arrogant and violent behaviour of the respondent. In the year 2008, they were separated and thereafter, the respondent and the child were residing at her paternal house. Till 2012, nothing was heard about her. But, in the year 2012, she started to file complaints one after another Mat.Appeal No.992 of 2017 3 against the appellant and his parents. He filed OP (Div) No.826 of 2013 before Family Court, Kollam, to dissolve their marriage as it was not possible for him to continue his matrimonial life with the respondent. The respondent/wife opposed that petition contending that, it was the appellant who was subjecting her to cruelty. Himself and his parents withdrew the amounts deposited in her name before its maturity and they misused her gold ornaments. They cheated the respondent by purchasing a property in the name of the mother of the appellant in violation of the promise given to the respondent and her parents. According to her, only because of the matrimonial cruelties meted out to her by the appellant, she was compelled to reside at her paternal house. 3. Learned Family Court formulated necessary issues and thereafter the parties went on trial. PW1 was examined and Exts.A1 to A9 were marked from the side of the appellant/husband and RWs 1 and 2 were examined and Exts.B1 to B14 were marked from the side of the respondent/wife. Mat.Appeal No.992 of 2017 4 4. On analysing the available facts and evidence, learned Family Court found that, the appellant could not prove his case of matrimonial cruelties against the respondent and so, that O.P was dismissed. The husband is before us, challenging that judgment and decree. 5. We are called upon to find out whether there is any illegality, irregularity or impropriety in the impugned judgment warranting our interference. 6. Heard learned counsel for the appellant and learned counsel for the respondent. 7. PW1, the husband, deposed before court that the respondent/wife was indifferent towards him throughout their marital life. She was not attending household affairs, and her abnormal behaviour invited complaints from neighbours. They lived together only for three years and the birth of the child could not make any change in her character. They got separated in the year 2008. For the next four years, nothing was heard from her. But, in the year 2012, she began to file complaints against him Mat.Appeal No.992 of 2017 5 and his parents. She agreed to dissolve their marriage on mutual consent, on receipt of the gold ornaments and cash entrusted with the appellant. Though he returned everything, she withdrew from her promise to agree for divorce on mutual consent. Moreover, after four years of separation, she filed a criminal case against the appellant and his parents under Section 498A of IPC. The respondent was alleging that, the appellant and his parents demanded dowry from her family during the period 2008-2010. But, in fact, in the year 2008 itself, they were separated, and they never cohabited thereafter. According to the appellant, filing false cases against him and his parents, after long years of separation, will amount to cruelty from the part of the wife. 8. Though the wife opposed the claim of divorce put forward by the husband, she is admitting that, they are living separate from 2008 onwards. She is also admitting receipt of gold ornaments and money which were entrusted with the appellant/husband. She is not disputing the fact that, in the year Mat.Appeal No.992 of 2017 6 2012, she filed criminal complaints against the appellant and his parents. 9. When the husband says that the wife was indifferent throughout, without attending the affairs of the husband and family, we cannot expect any independent evidence to support his contention, especially when the parties were living in a flat in Bangalore. Anyway, the available facts are sufficient to show that, the parties fell apart in the year 2008 and they are living separate for the last more than 13 years. Though the wife is opposing divorce, no effective steps are seen taken by her, to repair their relationship to have a reunion. Even after long separation of 13 years, still she is not amenable for a joint petition for divorce, though the parties have proved themselves that the chances of a reunion is too remote. 10. 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 Mat.Appeal No.992 of 2017 7 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 emotions of the parties. In such situations, the refusal may lead to mental cruelty. 11. 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”. Mat.Appeal No.992 of 2017 8 12. 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 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. 13. 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 13 years, without showing any symptoms of reunion. Both parties are alleging cruelty against each other. But, the respondent is not ready for divorce on mutual consent. It amounts to cruelty, if at all the appellant could not prove the allegations of cruelty Mat.Appeal No.992 of 2017 9 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 appeal is liable to be allowed for dissolving their marriage. In the result, the appeal is allowed, dissolving the marriage between the appellant and respondent solemnised on 29.08.2005. No order as to costs. Sd/- **A.MUHAMED MUSTAQUE JUDGE** Sd/- **SOPHY THOMAS JUDGE** smp