V.K.K. Joise v. Sheela Korah and Thomas John @ Laiju

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 18TH MARCH 2008 / 28TH PHALGUNA 1929 MFA.No. 302 of 2001() --------------------OP(DI.125/1998 of FAMILY COURT, KOTTAYAM .................... APPELLANT/PETITIONER: ----------- V.K.K. JOISE, VAZHAKKALA HOUSE, TRIKKOTHAMANGALAM, VAKATHANAM. BY ADV. SRI.RAJEEV V.KURUP RESPONDENTS/COUNTER PETITIONERS: ------------- - 1.SHEELA KORAH, KANGALATHU HOUSE, KUTTAMPUZHA, THIRUVALLA -3. - 2.THOMAS JOHN @ LAIJU, - VAZHAKKALA PULIMOOTTHILL HOUSE, TRIKKOTHAMANGALAM, VAKATHANAM. BY ADVS. SRI.MATHEW JOHN (K) -R1 - SRI.BABY THOMAS THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 18/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **KURIAN JOSEPH & HARUN-UL-RASHID, JJ.** **---------------------------------------------------------------M.F.A. NO. 302 OF 2001** **----------------------------------------------------------------** Dated this the 18[th] day of March, 2008 ## **JUDGMENT** ## **Harun-Ul-Rashid, J.** This appeal is filed by the petitioner/husband against the dismissal of O.P.(Div.) No.125 of 1998 on the file of the Family Court, Kottayam. The parties herein are referred to as the petitioner and first respondent as in the Original Petition. 2. The marriage between the parties was solemnised on 1.7.1984 and three children were born in the wedlock. The petitioner alleged that during his absence in Kerala, the first respondent had illicit relationship with the second respondent and other persons in the locality and that she was having regular sexual relationship with the second respondent. He further alleged that in order to put an end to such relationship, he took the first respondent to Doha where he was employed, but even there she continued illicit relationship with other persons. After returning from Doha, the first respondent continued her illicit relationship with the second respondent inspite of several warnings. The parties are living separately M.F.A.NO.302/2001 2 since 1995 and according to the petitioner, the first respondent deserted him in the year 1995 and she is still leading an adulterous life. 3. The first respondent filed a written statement denying the allegation of illicit relationship with the second respondent and others. According to her, the petition was filed in collusion with the second respondent. She prayed for dismissal of the petition. The second respondent also filed a written statement denying the relationship with the first respondent as alleged by the petitioner. Before the Family Court, the petitioner was examined as PW.1 and three other witnesses were examined as PWs.2 to 4 and Exts.A1 and A8 were marked. The first respondent was examined as CPW.1 and Exts.B1 and B2 were marked on her side. 4. The testimony of PWs.1 to 4 and Exts.A1 to A8 were not relied on by the Family Court. The allegations of the petitioner/husband stand unproved. We have gone through the oral evidence of PWs.1 to 4 and Exts.A1 to A8 and we find that the circumstances stated by the witnesses are neither convincing nor satisfactory to arrive at a conclusion that the first respondent had illicit relationship with the second respondent and others. After an elaborate discussion, the trial court rightly held that the evidence tendered by PWs.2 and 3 is nothing but the result of an after M.F.A.NO.302/2001 3 thought and, therefore, cannot be believed. The circumstances also bring to light that PW.3, the father of the petitioner wanted to see that the marital tie between the petitioner and the first respondent is severed. The Family Court also took note of the fact that even if it is assumed that the first respondent had committed acts of adultery, it is condoned by the petitioner and as such, the petitioner is not entitled to seek the relief on the ground of adultery. No reasons or grounds are made out to take a different view in the facts and circumstances of the case. 5. It is an admitted fact that the parties are separated since 1995. For more than 12 years, they are living separately without any contacts. There is no chance whatsoever to expect them to reside together and to lead a normal marital life. The facts and circumstances of the case establish conclusively that the parties are living separately with the intention to end the marital life. The subsequent 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. More than 12 years have elapsed since the petitioner and the first respondent have been separated. We find that there is no possibility of M.F.A.NO.302/2001 4 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. 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. 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 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 M.F.A.NO.302/2001 5 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 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. M.F.A.NO.302/2001 6 In the result, the appeal is allowed. 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/** M.F.A.NO.302/2001 7 **KURAIN JOSEPH & HAURN-UL-RASHID, JJ.** **M..F.A. NO.302/2001** **JUDGMENT** **18TH MARCH, 2008**