Thampi v. Rajamma and Ravi

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 17TH JULY 2008 / 26TH ASHADHA 1930 Mat.Appeal.No. 25 of 2003() --------------------------OPHMA.692/2001 of FAMILY COURT,TRIVANDRUM .................... APPELLANT/APPLICANT: -------------------------------- THAMPI, KATTUVILA VEEDU, VILAYILMOOLA DESOM, KEEZHATTINGAL VILLAGE, CHIRAYINKIL TALUK. BY ADVS. SRI.M.BALAGOVINDAN SRI.P.M.JOSEPH RESPONDENTS: RESPONDENTS: ------------------------- 1. RAJAMMA, KANAKAKUNNUVILAKOM HOUSE, AND ALSO HAVING HOUSE AT PALLIVIAL, MELKADAKKAVOOR, CHIRAYINKEEZHU VILLAGE. 2. RAVI, KANAKAKUNNUVILAKOM HOUSE, AND ALSO HAVING HOUSE AT PALLIVILA, MELKADAKKAVOOR CHIRAYINKEEZHU VILLAGE. BY ADV. SRI.K.B.PRADEEP FOR R1 THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 17/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **KURIAN JOSEPH & HARUN-UL-RASHID, JJ.** **---------------------------------------------------------------MAT. APPEAL NO.25 OF 2003 ----------------------------------------------------------------** Dated this the 17th day of July, 2008 ## **JUDGMENT** ## **Harun-Ul-Rashid, J.** The petitioner/husband in O.P.(HMA) No.692 of 2001 on the file of the Family Court, Thiruvananthapuram is the appellant. The said Original Petition was filed praying for grant of a decree of divorce on the ground of adultery. The Family Court dismissed the Original Petition and hence, this appeal. The parties herein are referred to as the petitioner and respondents as in the Original Petition. 2. The marriage between the petitioner and first respondent was solemnised on 10.4.1975 as per the custom prevalent in the Hindu Community. Three children were born in the wedlock. It is the case of the petitioner/husband that his wife/first respondent is maintaining illicit relationship with other men and she is leading an adulterous life with the second respondent. The petitioner had filed O.P.(HMA) No. 73 of 1988 on an earlier occasion before the Sub Court, Attingal for the very same relief. The alleged adulterer in that Original Petition was another person. Mat. Appeal No.25/2003 2 The court below dismissed the said Original Petition on 24.7.1990. The appeal, M.F.A. No.306 of 1991, preferred against the dismissal of O.P. (HMA) No. 73 of 1988 was also dismissed without prejudice to the right of the parties to file a joint petition before this Court. The petitioner contended that the first respondent is living in adultery till the date of filing the present petition and that she has refused to file a joint petition for divorce. 3. The first respondent opposed the petition. She denied the allegation of adultery levelled against her and contended that the second petition seeking a decree of divorce on the very same ground is not maintainable. 4. The parties have been living separately for the last more than 19 years as on the date of filing O.P. No.692 of 2001. It is not disputed that the marital relationship between the petitioner and the first respondent got strained. The Family Court held that the earlier Original Petition, O.P.No.73 of 1988 seeking a decree of divorce on the ground of desertion and adultery having been dismissed, the present Original Petition filed for the very same relief is barred by res judicata. The learned Family Court Judge failed to take note of the fact that the earlier Original Petition Mat. Appeal No.25/2003 3 originated in the year 1988 and the present Original Petition was filed in the year 2001 stating that the first respondent/wife is continuing to live in adultery. The Original Petition is maintainable on the basis of the cause of action which arose subsequent to the filing of the earlier petition. Therefore, the finding of the Family Court that the present Original Petition filed by the petitioner is barred by res judicata is not sustainable in law. The proper course open to this Court is to remit the case for reconsideration on merits. But, we find that the parties separated in the year 1984. They have been living separately for the last 24 years. 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/petitioner 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. 5. It is an admitted fact that the first respondent/wife left the matrimonial home in 1984 and she is residing separately since then. Twenty-four years have lapsed since the petitioner and first respondent had separated. It is also an admitted fact that the first respondent did not return to her matrimonial home and did not resume co-habitation after she left the house in the year 1984. The facts and circumstances of the case Mat. Appeal No.25/2003 4 proved conclusively that the parties are living separately with the intention to end the marital life. For the last 24 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. 6. Twenty-four years have elapsed since the petitioner and first 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. 7. 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 Mat. Appeal No.25/2003 5 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. 8. 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 by a decree of divorce to put an end to the agony and bitterness of the parties. 9. 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 Mat. Appeal No.25/2003 6 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 appeal is allowed and the judgment and decree under appeal is set aside. The marriage between the petitioner and the first respondent is dissolved with effect from today. There will be no order as to costs. ## **(KURIAN JOSEPH, JUDGE)** **(HARUN-UL-RASHID, JUDGE)** ## **sp/** Mat. Appeal No.25/2003 7 **KURIAN JOSEPH & HAURN-UL-RASHID, JJ.** **MAT.APPEAL NO.25/2003** **JUDGMENT** **17th July, 2008** Mat. Appeal No.25/2003 8