Samvarghese v. Shibysaravarghese

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE`** ## **`&`** ``` THEHONOURABLEMRS.JUSTICESOPHYTHOMAS THURSDAY,THE20[TH]DAYOFJULY2023/29THASHADHA,1945 MAT.APPEALNO.1189OF2017 OP(DIV)455/2015OFFAMILYCOURT,PATHANAMTHITTA ``` ## **`APPELLANT/PETITIONER:`** ``` SAMVARGHESE AGED42YEARS S/OVARGHESESAMUEL,KANDANKARA THEKKETHIL,VENMONYPO,CHENGANNUR, ALAPPUZHADISTRICT.689509. ``` ``` BYADVS. SRI.GEORGEVARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SRI.P.J.JOEPAUL SRI.MANUSEBASTIAN ``` ## **`RESPONDENT/RESPONDENT:`** ``` SHIBYSARAVARGHESE AGED36YEARS,D/OABRHAMGEORGEKUTTY,SHONY VILLA,KADAMPANADUPO,ADOORTALUK, PATHANAMTHITTADISTRICT.691552. ``` ``` BYADVS. SRI.CHERIANGEEVARGHESE SRI.P.HARIDAS SRI.P.C.SHIJIN SRI.BIJUHARIHARAN SRI.R.B.BALACHANDRAN SRI.RISHIKESHHARIDAS ``` ``` THISMATRIMONIALAPPEALHAVINGBEENFINALLYHEARDON 20.07.2023,THECOURTONTHESAMEDAYDELIVEREDTHE FOLLOWING: ``` ``` Mat.AppealNo.1189of20172 ``` ## **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, Pathanamthitta, in OP (Div.) No.455 of 2015. 2. The marriage between the appellant and respondent was solemnised on 30.08.2003 as per Christian religious rites and custom. No issues were born in that wedlock. Though they consulted Doctors and underwent surgery, the respondent could not conceive a child. Alleging incapacity against the appellant, the respondent always abused him and refused sexual relationship with him. He was ill-treated by the respondent which made their matrimonial life miserable. The respondent had approached a lawyer to get divorce from the appellant. But, she was not ready to file a joint petition for divorce, to dissolve their marriage. So, he approached the Family Court for dissolving their marriage on the ground of matrimonial cruelty. 3. The respondent/wife opposed the allegations of matrimonial cruelties levelled against her. According to her, she ``` Mat.AppealNo.1189of2017 ``` ``` 3 ``` never ill-treated the appellant, and she was cooperating with him to undergo infertility treatment. She is admitting that, since 2014, they are living separate. She further admitted that, she had demanded amounts from the appellant for agreeing for divorce on mutual consent. 4. PWs 1 and 2 were examined and Exts.A1 to A3 were marked from the side of the appellant, and RWs 1 to 3 were examined from the side of the respondent before the Family Court. 5. After analysing the facts and evidence, the Family Court found that the marital relationship between the petitioner and respondent was in a strained state and their relationship in all probability was broken irretrievably. But, the Family Court found that irretrievable breakdown of marriage was not a ground for allowing divorce. As far as the appellant failed to prove the matrimonial cruelties alleged against the respondent, he was found not eligible to get a decree of divorce on that ground. 6. Heard learned counsel for the appellant and learned counsel for the respondent. ``` Mat.AppealNo.1189of2017 ``` ``` 4 ``` 7. Now we are called upon to find out whether there is any illegality, irregularity or impropriety in the impugned judgment warranting interference by this Court. 8. Admittedly, the parties are living separate from 2014 onwards. There is ample evidence to show that the matrimonial life of the appellant and respondent was not smooth. The appellant had a congenital condition of absence of sperm ducts. He underwent a surgery, but even after that, he could not beget a child. According to him, the respondent/wife always insulted and humiliated him on account of his inability to procreate a child. Though the appellant contended that, the respondent was not co-operating with the infertility treatment, the available evidence will show that, she was also co-operating for the treatment. The respondent is admitting that, earlier she had approached an Advocate for getting divorce from the appellant. She further admitted during cross-examination that, she had demanded Rs.30 lakh to agree for divorce on mutual consent. The Family Court also found that, their matrimonial life was irretrievably broken. So, there is no purpose in continuing that relationship, which is ``` Mat.AppealNo.1189of2017 ``` ``` 5 ``` dead and beyond repair. 9. Pending appeal, the appellant paid Rs.17,50,000/- to the respondent/wife and the appellant relinquished his right over three fixed deposits in favour of the wife. Moreover, he agreed to hand over the Pan Card, Aadhar Card, Voters’ ID, IELTS Exam Result Certificate etc. to the respondent. It is submitted from the Bar that, the respondent received two fixed deposits of Rs.40,000/- and Rs.35,000/- respectively, issued from Catholic Syrian Bank, Kadampanadu Branch from the appellant. Another FD receipt in SBI, Thadiyoor Branch, for an amount of Rs.2,61,811/- was also agreed to be transferred into the name of the respondent. So, it seems that the respondent had received the amounts from the appellant, to satisfy her monetary claim. But, even now, she is not willing to sign joint petition for divorce along with the appellant. That itself will amount to cruelty from the part of the wife, if at all the appellant failed to prove matrimonial cruelties alleged against her. 10. In _**Samar Ghosh** vs._ _**Jaya Ghosh**_ [(2007) 4 SCC 511], the Hon’ble Apex Court, while considering the impact and ``` Mat.AppealNo.1189of2017 ``` ``` 6 ``` impropriety of refusing to sever the marriage tie despite the irretrievable break down, held that, where there has been a long 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.AppealNo.1189of2017 ``` ``` 7 ``` 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 nine years, without showing any symptoms of reunion. Though the respondent has received her monetary claims, even now she is not ready to file a joint petition for divorce. As already stated, that will amount to cruelty if at all the appellant could not prove the allegations of matrimonial cruelties pleaded in the OP. So,we find no reason to ``` Mat.AppealNo.1189of2017 ``` ``` 8 ``` 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. In the result, the appeal is allowed, dissolving the marriage between the appellant and respondent solemnised on 30.08.2003. No order is made as to costs. ``` Sd/- ``` ## **A.MUHAMED MUSTAQUE JUDGE** ``` Sd/- ``` **SOPHY THOMAS JUDGE** DSV/smp