High Court of KeralaDivision Bench2018-05-21Appeal allowed; decree of divorce set aside.

Pushpa Valli v. Chandran

Case / Petition Number:Mat.Appeal No. 587 of 2008

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Harilal
A. M. Babu
Judgment Date: 2018-05-21
Court Decision / Holding: The appeal is allowed; the decree of divorce granted by the Family Court on the ground of irretrievable breakdown of marriage is set aside. The High Court notes that irretrievable breakdown is not a ground provided by the Hindu Marriage Act, anddistinguishes contrary authorities. The court declines to tax the respondent with costs, and leaves the parties in their relationship as defined by law.
Final Disposition: Appeal allowed; decree of divorce set aside.

Parties to the Case

Appellants / Petitioners

Pushpa Valli

Respondents

Chandran

Legal Representation & Advocates

Counsels for Petitioners

• Sri V.G. Arun
• Sri T.R. Harikumar

Counsels for Respondents

• Sri A. Ranjith Narayanan
• Sri S.K. Saju

Case Synopsis & Summary

This matrimonial appeal arises from a Family Court decree dissolving the marriage between Pushpa Valli (wife/appellant) and Chandran (husband/respondent). The couple married on 29 April 1979 and had a child. After delivery, the wife reportedly left the matrimonial home, returning briefly following a settlement in O.P.24/1981 for restitution of conjugal rights, but she again departed in 1982. The husband filed O.P.34/1985 for restitution of conjugal rights, and later sought a divorce. The parties’ evidence was evaluated by the Family Court, which ultimately granted a decree of divorce on the ground of irretrievable breakdown of the marriage—a ground not expressly recognized under the Hindu Marriage Act. The court relied on the Supreme Court’s Naveen Kohli v. Neelu Kohli (AIR 2006 SC 1675) for permitting divorce on irretrievable breakdown under Article 142 of the Constitution, and contrasted it with other authorities. The appellant argued that cruelty and desertion by the husband justified separation, while the respondent contended that the marriage had irretrievably broken down and relied on precedents suggesting endorsement of such a remedy. The Kerala High Court, while noting the Supreme Court decisions, held that irretrievable breakdown is not a legislatively recognized ground for divorce under the Hindu Marriage Act and distinguished contrary Madhya Pradesh authority, ultimately setting aside the Family Court’s decree without awarding a divorce.

Provisions of Law Cited

Sec.125 Cr.P.C.Sec.13 Hindu Marriage ActExplanation to Sec.13 Hindu Marriage ActArticle 142, Constitution of India

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contends that her life with the respondent was marred by cruelty, alcoholism and ill-treatment; after delivery she left the matrimonial home and had to reside separately. Although a settlement followed in O.P.24/1981, the respondent allegedly continued cruelty and later contracted a second marriage, resulting in two children with another woman. She asserts that the petitions for restitution of conjugal rights were dismissed on grounds reflecting the husband’s cruelty. She maintains that divorce on the ground of irretrievable breakdown is not a valid ground under the Hindu Marriage Act and that reliance on extraneous precedents to justify such a decree is improper; she also challenges the argument that desertion was proven and disputes the motive alleged by the respondent.

Contentions of Respondents

The respondent contends that the parties have been living separately since 1982 and that the marriage has irretrievably broken down; he sought divorce on the grounds of desertion and relies on precedents suggesting permissible relief for irretrievable breakdown, notably Naveen Kohli v. Neelu Kohli. He contends that a decree of divorce on irretrievable breakdown was previously granted by courts relying on Supreme Court authority, a position the appellant disputes. The respondent cites Madhya Pradesh decisions as supporting authority for such relief under broader constitutional powers, which the High Court ultimately disputes.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Naveen Kohli v. Neelu Kohli	AIR 2006 SC 1675	Distinguished	The High Court relies on Visnu Dutt Sharma to hold that irretrievable breakdown is not a ground under the Hindu Marriage Act; it distinguishes Naveen Kohli as not applicable under the statutory framework.
Visnu Dutt Sharma v. Manju Sharma	AIR 2009 SC 2254	Positive	The Supreme Court in Visnu Dutt Sharma held that irretrievable breakdown of marriage is not provided by the legislature as a ground for divorce, supporting the High Court’s view.
Kamal Singh Sisodia v. Rama Sisodia	2015 KHC 2303	Distinguished	MP High Court’s decision granting divorce on irretrievable breakdown is expressly disagreed with and distinguished by the Kerala High Court.

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Extracted Judgment Text

Exact text extracted from official judgment records.

IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MR. JUSTICE A.M.BABU MONDAY, THE 21ST DAY OF MAY 2018 / 31ST VAISAKHA, 1940 Mat.Appeal.No. 587 of 2008 OP 373/2006 of FAMILY COURT,KOZHIKODE DATED 07-01-2008 APPELLANT/RESPONDENT. PUSHPA VALLI, D/O.APPU, AREEKKAL VEEDU, PERUMANNA, KOZHIKODE. BY ADVS.SRI.V.G.ARUN SRI.T.R.HARIKUMAR RESPONDENT/PETITIONER: CHANDRAN, S/O.RARUKUTTY, KIZHAKKETHODIYIL VEEDU, THAZEKKODE, KOZHIKODE. BY ADV. SRI.A.RANJITH NARAYANAN BY ADV. SRI.S.K.SAJU THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 21-052018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.HARILAL & A.M.BABU, JJ. - - - - - - - - - - - - - Mat.Appeal No.587 of 2008 - - - - - - - - - - - - - - Dated : 21[st] May, 2018 - - - - - - - - - - - - - ## JUDGMENT A.M.Babu, J - 1.Appeal is against a decree directing dissolution of marriage. Appellant is the wife. - 2.The case of the respondent may be briefly stated as under : His marriage with the appellant was solemnized on 29.4.1979. A child was born in the wedlock. The appellant was living according to her own free will. After her delivery she did not come back. He then filed O.P.24/1981 against her for restitution of conjugal rights. The issues were settled and she came back to him. Even thereafter she deserted him. Despite the issuance of a lawyer notice, she did not come back. He filed O.P.34/1985 for restitution of conjugal rights. She raised false allegations in her statement of objections. The said petition for restitution of conjugal rights was dismissed. She filed an application **Mat.Appeal.587/2008** 2 under Sec.125 of Cr.P.C and obtained an order for maintenance. The appellant left the company of the respondent on 11.5.1982 without any reason. The marriage is therefore liable to be terminated on the ground of desertion. - 3.The appellant raised the following contentions : Her life in the company of the respondent was miserable. He was alcoholic. He was cruel too. She was unable to tolerate his cruel treatments. Therefore she had no go but to go to her house and live there. Even after the settlement subsequent to the filing of O.P.24/1981, he continued to treat her with cruelty. His second petition for restitution of conjugal rights was dismissed. It was dismissed accepting her case of cruelty at his end. He contracted a second marriage with one Radhamani. He has two children in that relationship. The only intention behind seeking a decree of divorce is to see that she does not receive the family pension in the event of his death. 3 ## **Mat.Appeal.587/2008** - 4.Both parties adduced evidence before the family court. The husband and wife gave evidence as PW1 and RW1 respectively. Exts A1 and A2 were marked on the side of the husband. - 5.The family court having considered the evidence adduced by the parties was pleased to grant a decree of divorce on a ground strictly not sought. A decree of divorce was granted on the ground of irretrievable break down of marriage. - 6.Heard Sri.V.G.Arun, the learned counsel for the appellant and Sri.Ranjith Narayanan, the learned counsel for the respondent. - 7.Divorce was sought on the ground of desertion. Divorce was granted not on that ground. It was granted on a ground not stated in the Hindu Marriage Act. The family court allowed the petition for divorce on the ground of irretrievable break down of marriage. In order to do so the family **Mat.Appeal.587/2008** 4 court relied on the decision of the apex court in Naveen Kohli v. Neelu Kohli (AIR 2006 SC 1675) . That was a case where divorce was sought under Sec.13 of the Hindu Marriage Act. The supreme court granted divorce on the ground of irretrievable break down of marriage. It was granted by the supreme court under its special power under article 142 of the Constitution of India. The family court or even this court cannot grant a decree of divorce on the ground of irretrievable break down of marriage as it is not a ground under the Hindu Marriage Act. The learned counsel for the respondent relied on the decision of the Madhya Pradesh high court in Kamal Singh Sisodia v.Rama Sisodia (2015 KHC 2303) . The Madhya Pradesh high court relying on another decision of the supreme court granting divorce on the ground of irretrievable break down of marriage granted divorce on that ground. We are in respectful disagreement with the decision of the Madhya Pradesh high court. For, we repeat, it is not a ground for divorce. We get support on this point **Mat.Appeal.587/2008** 5 from a decision of the apex court. The decision is Visnu Dutt Sharma v. Manju Sharma (AIR 2009 SC 2254) . The apex court holds that irretrievable break down of marriage is not provided by the legislature as a ground for granting a decree of divorce. It is also held that the court cannot add such a ground to Sec.13 as that would amount to amending the Act which is the function of the legislature. It was held that a mere direction of the supreme court without considering the legal position would not amount to a precedent. The decree of divorce granted by the family court on the ground of irretrievable break down of marriage is liable to be set aside. We do so. - 8.We should next consider whether the respondent could prove the desertion taken by him as a ground for divorce. He filed two petitions for restitution of conjugal rights. The first one was settled between the parties and they lived together. They fell apart thereafter. His second petition for restitution of conjugal rights was dismissed on **Mat.Appeal.587/2008** 6 merits. Ext A1 is a certified copy of the order in the said petition, O.P.34/1985. The petition was dismissed finding that the husband was cruel to the wife. Cruelty of the husband is indeed a ground for the wife to live away from him. It has also come out in evidence that the respondent is living with a concubine and that he has two children in that woman. He himself admitted that fact. That too is a ground justifying the separate stay of the wife. The explanation to Sec.13 states that the expression 'desertion' means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage and its grammatical variations and cognate expressions shall be construed accordingly. It cannot be said that the alleged desertion by the wife was without reasonable cause inasmuch as the husband has been cruel to her and has been living with a concubine in whom he has two children. The stay away of the appellant from the respondent is **Mat.Appeal.587/2008** 7 not desertion within the meaning of the explanation to Sec.13 of the Hindu Marriage Act. The respondent is not entitled to get the decree of divorce obtained by him retained. - 9.The appeal is allowed. The decree of divorce granted by the family court is set aside. Considering the man and wife relationship between the parties, we do not tax the respondent with costs. K.HARILAL Judge Sd/A.M.BABU Judge Mrcs/21.5. /True copy/ P.S.To Judge