P.M. Gopalakrishnan Nair v. M.G. Radhakumari

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 4TH MARCH 2008 / 14TH PHALGUNA 1929 MFA.No. 1044 of 1999(A) ----------------------OPHMA.104/1993 of ADDL.SUB COURT,KOTTAYAM .................... APPELLANT/PETITIONER: ----------- P.M.GOPALAKRISHNAN NAIR, POWATHU HOUSE, FROM MUDAR THOTTIYIL HOUSE, CHIRAKKADAVU KARA, CHIRAKKADAVU VILLAGE. BY ADV. SRI.RAJEEV V.KURUP RESPONDENT/COUNTER PETITIONER: ------------- M.G. RADHAKUMARI, RESIDING AT POWATHU HOUSE, FROM MUDAR THOTTIYIL HOUSE, CHIRAKKADAVU VILLAGE. CHIRAKKADAVU KARA, BY ADVS. SRI.M.NARENDRA KUMAR SMT.LIJI J.VADAKADAM THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 04/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **KURIAN JOSEPH & HARUN-UL-RASHID, JJ. ----------------------------------------------------------------** ## **M.F.A. NO. 1044 OF 1999** ## **----------------------------------------------------------------** Dated this the 4[th] day of March, 2008 ## **JUDGMENT** ## **Harun-Ul-Rashid, J.** The petitioner in H.M.A. (O.P.) No. 104 of 1993 on the file of the Additional Sub Court, Kottayam is the appellant. The petition for divorce filed by the appellant on the ground of cruelty was dismissed by the impugned judgment. The court below held that the counter petitioner has not treated the petitioner with cruelty so as to entitle him to get a decree for dissolution of marriage. Hence, this appeal. 2. The parties to this appeal are referred to as the petitioner and counter petitioner as in the Original Petition. The short facts necessary for the disposal of the appeal are as follows: The marriage between the parties was solemnised on 14.3.1972 according to Hindu religious rites. Three children were born in the wedlock. The petitioner pleaded that his wife was not obedient and that M..F.A.NO.1044/1999 2 she had behavioural problems from the very beginning. He stated that when he met with an accident on 11.2.1989 and sustained severe injuries, his wife had not taken care of him and that he had to get by standers from outside and had to pay them for looking after him. He also stated that he was in the hospital for more than four months during which period his wife used to abuse him. On 28.8.1991, his wife abused him by saying that he is a mental patient and that the members of his family have mental disease by tradition. The petitioner also stated that his wife and his elder son man- handled him by hitting on his head with a lamp as a result of which he sustained deep injury on his scalp and that on seeing the deep injury his wife left the residence of the petitioner along with their children. According to the petitioner, his wife deserted him on 28.8.1991 and thereafter he has been residing alone in the house. Subsequently, the counter petitioner along with the children trespassed into his house and started residing there and frequently threatened to do away with him. It is further pleaded that the cruel behaviour of his wife is intolerable and that he is afraid to go back to his residence for fear of being man handled. 3. In the objection filed by the counter petitioner/wife, she has denied the contentions raised by the petitioner. According to her, she is a dutiful wife, she had never offended the petitioner or behaved cruelly M..F.A.NO.1044/1999 3 towards him. She stated that she objected to the wayward life of the petitioner. A detailed counter affidavit was filed by the respondent stating the conduct of her husband. She pleaded that the petitioner was leading a wayward life with immoral women, he was cruel to her and that she was all along suffering on account of the cruelties. 4. The court below examined PWs.1 to 5 and DW.1 and marked Exts.B1 series and B2. On an analysis of the oral evidence tendered by the parties, the court below came to the conclusion that the version of the counter petitioner seems to be more probable. The incidents narrated in the Original Petition regarding the cruelty suffered by the petitioner at the hands of his wife are found to be not correct. The irresistable conclusion arrived at by the court below was that the incidents narrated by the petitioner are false and put up for the purpose of his case. The definite case of the counter petitioner was that her husband was leading a wayward life with immoral women and that his intention was to remarry after getting a decree of divorce. The court below noted from Exts.B1 series and B2 that the petitioner had published a news in the Mathrubhumi daily dated 15.8.1992 inviting marriage proposals. The allegation of trespass was also found against for want of proof. The court below also found that the petitioner failed to maintain his children and that one of the sons of the M..F.A.NO.1044/1999 4 petitioner is working as an autorickshaw driver in order to raise income for maintaining the family. The court below further found that the petitioner who had sufficient income is spending the amount on himself without looking after the affairs of his wife and children. The parties started living separately since 1993. In the light of the facts proved, we hold that the conclusion and findings entered by the court below are correct and require no interference. 5. Fourteen years have elapsed since the petitioner and respondent have been separated. We have made some earnest efforts to find whether the parties are willing to reside together. We find that there is no possibility of the parties resuming normal marital life at this stage. There has been an irretrievable breakdown of marriage between the husband and the wife. 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 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. M..F.A.NO.1044/1999 5 6. 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. 7. We also find that the parties cannot at this stage reconcile themselves and live together as husband and wife forgetting their past. Both the parties have crossed the point of no return. Therefore, we are of the considered view that in the interest of justice, the appeal is to be allowed on the ground of long separation and irretrievable breakdown making reconciliation and reunion impossible. M..F.A.NO.1044/1999 6 In the result, the appeal is allowed. A decree of divorce is granted dissolving the marriage between the appellant and the respondent with effect from today. There will be no order as to costs. **(KURIAN JOSEPH, JUDGE)** **(HARUN-UL-RASHID, JUDGE)** **sp/** M..F.A.NO.1044/1999 7 **KURAIN JOSEPH & HAURN-UL-RASHID, JJ.** **M.F.A.NO.1044/1999** **JUDGMENT** **4TH MARCH, 2008**