2023/KER/55324

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
MONDAY, THE 18TH DAY OF SEPTEMBER 2023 / 27TH BHADRA, 1945
MAT.APPEAL NO. 578 OF 2015
AGAINST THE JUDGMENT DATED 15.10.2014 IN OP 238/2012 OF
FAMILY COURT, IRINJALAKUDA
APPELLANT/PETITIONER:

SREEDHARAN, AGED 53 YEARS, S/O.VELAYUDHAN,

BY ADV SRI.P.NARAYANAN

RESPONDENT/RESPONDENT:

AHSA, AGED 48 YEARS, D/O.KOCHUMON

BY ADVS.
G.SREEKUMAR (CHELUR)
N.L.BITTO

THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON

24.08.2023, THE COURT ON 18.09.2023 DELIVERED THE
FOLLOWING:
 2023/KER/55324

MAT.APPEAL NO. 578 OF 2015

..2..

A.MUHAMED MUSTAQUE & SOPHY THOMAS, JJ.

------------------------------------------
Mat. Appeal No.578 of 2015
------------------------------------------
Dated this the 18th day of September, 2023

J U D G M E N T
A. Muhamed Mustaque, J
This appeal was preferred by the husband, who was

unsuccessful before the Family Court, to obtain divorce

on the grounds of cruelty.

2. The marriage between the parties was on

29.01.2002 in accordance with the Hindu religious rites

and ceremonies. Two children were born in wedlock. The

children are now major. The Appellant-husband was in

Muscat and now came down to India and settled. The

allegation of cruelty has been narrated in the pleadings.

The appellant alleges that the respondent-wife hails from

a poor family and was more interested in extracting money

from him. It is submitted that the entire money sent by

him from Muscat was misused and even the money sent for

construction of house was squandered away. The appellant

also alleged that the respondent had an illicit

relationship with the husband of her sister. The neglect

and apathy towards him are one of the cruelty alleged in

 2023/KER/55324

MAT.APPEAL NO. 578 OF 2015

..3..

the petition for divorce. The appellant-husband also

claimed that differences in the family emerged when a

dispute arose between the respondent's family with the

widow of respondent's brother namely, Anitha, as the

appellant supported the case of Anitha. The respondent

denied all the allegations of cruelty raised by the

appellant.

3. The constant bickering in marital life, lack of

mutual respect, detachment etc. would make the

reconciliation impossible. We find nothing in this case

which would ensure that the parties to the marriage to

stay together. We see, in these types of cases, the

parties are trying the court and not the court trying the

parties. The appellant has now become a senior citizen.

The original petition filed for divorce was filed in the

year 2011. Many sunsets have re-dawn but life is yet to

reset. Attempts for settlement have been failed. The

husband offered Rs.10 lakhs and ten cents of land to the

respondent to secure her life. Respondent raised her

demand, which the appellant is not willing to accept. As

we mentioned earlier, though we tried the parties the

parties are not mending their ways for a way out. More

than a decade has lapsed through the corridors of the

Court. It appears that parties are living under the same

roof. The learned counsel for the respondent submits

 2023/KER/55324

MAT.APPEAL NO. 578 OF 2015

..4..

that the respondent has no objection in continuing with

the appellant and therefore, this case cannot be treated

as a fit case where the Court can hold that the marriage

has become irrecoverably broken down.

4. We are not referring to the pleadings and

evidence to hold the allegation of cruelty. We are sure

that mutual consent for divorce failed in this matter as

the bargaining could not meet the level of expectation.

The court rooms cannot be replaced to allow the parties

for a battle for grooming their egos and idiosyncratic

behaviour, The Court is established for genuine people

who honestly dispute on the cause. If they cannot live

together even by sharing residence for more than a

decade, it can be presumed that sense is lost on both.

The idea of no fault divorce is making the people to

realise that there is a sensible way of parting on a

mutually agreed terms. Withholding mutual consent in a

failed marriage is nothing but cruelty.

5. This Court in Beena M.S v. Shino G. Babu [2022

(2) KHC 11] held as follows:

“The law on divorce recognises both fault and
consent as a cause for separation. When both the
parties are unable to lead a meaningful
matrimonial life due to inherent differences of
opinion and one party is willing for separation
and the other party is withholding consent for
mutual separation, that itself would cause mental
agony and cruelty to the spouse who demands
separation. The purpose of marriage is to hold
 2023/KER/55324

MAT.APPEAL NO. 578 OF 2015

..5..

matrimonial ties lifelong, respecting mutual

obligations and rights. The companionship of
spouses creates oneness of the mind to walk
together. It is through mutual respect and
Courtship, the companionship is built and
fortified. The modern jurisprudence of
irretrievable break down to allow divorce is
premised on the fact that the spouses can never
remain together on account of their differences.”

6. The Apex Court in K. Srinivas Rao v. D.A Deepa

(2013) 5 SCC 226 held as follows:

“30. It is also to be noted that the appellant
husband and the respondent wife are staying apart
from 27-4-1999. Thus, they are living separately
for more than ten years. This separation has
created an unbridgeable distance between the two.
As held in Samar Ghosh [(2007) 4 SCC 511] , if we
refuse to sever the tie, it may lead to mental
cruelty.

31. We are also satisfied that this marriage has

irretrievably broken down. Irretrievable
breakdown of marriage is not a ground for divorce
under the Hindu Marriage Act, 1955. But, where
marriage is beyond repair on account of
bitterness created by the acts of the husband or
the wife or of both, the courts have always taken
irretrievable breakdown of marriage as a very
weighty circumstance amongst others necessitating
severance of marital tie. A marriage which is
dead for all purposes cannot be revived by the
court's verdict, if the parties are not willing.
This is because marriage involves human
sentiments and emotions and if they are dried up
there is hardly any chance of their springing
back to life on account of artificial reunion
created by the court's decree.

32. In V. Bhagat [(1994) 1 SCC 337] this Court

noted that divorce petition was pending for eight
years and a good part of the lives of both the
parties had been consumed in litigation, yet the
end was not in sight. The facts were such that
there was no question of reunion, the marriage
having irretrievably broken down. While
dissolving the marriage on the ground of mental
cruelty this Court observed that: (SCC p. 351,
para 21)

“21. … Irretrievable breakdown of the marriage is

not a ground by itself. But, while scrutinising
the evidence on record to determine whether the
ground(s) alleged is/are made out and in
determining the relief to be granted, the said
circumstance can certainly be borne in mind.”
 2023/KER/55324

MAT.APPEAL NO. 578 OF 2015

..6..

33. In Naveen Kohli [(2006) 4 SCC 558] , where

the husband and wife had been living separately
for more than 10 years and a large number of
criminal proceedings had been initiated by the
wife against the husband, this Court observed
that: (SCC p. 582, para 86)

“86. … The marriage has been wrecked beyond the

hope of salvage [and] public interest and
interest of all concerned lies in the recognition
of the fact and to declare defunct de jure what
is already defunct de facto.”

It is important to note that in Naveen Kohli case

[(2006) 4 SCC 558] this Court made a
recommendation to the Union of India that the
Hindu Marriage Act, 1955 be amended to
incorporate irretrievable breakdown of marriage
as a ground for the grant of divorce.

34. In the ultimate analysis, we hold that the

respondent wife has caused by her conduct mental
cruelty to the appellant husband and the marriage
has irretrievably broken down. Dissolution of
marriage will relieve both sides of pain and
anguish. In this Court the respondent wife
expressed that she wants to go back to the
appellant husband, but, that is not possible now.
The appellant husband is not willing to take her
back. Even if we refuse decree of divorce to the
appellant husband, there are hardly any chances
of the respondent wife leading a happy life with
the appellant husband because a lot of bitterness
is created by the conduct of the respondent wife.

35. In Vijaykumar [(2003) 6 SCC 334] , it was

submitted that if the decree of divorce is set
aside, there may be fresh avenues and scope for
reconciliation between parties. This Court
observed that judged in the background of all
surrounding circumstances, the claim appeared to
be too desolate, merely born out of despair
rather than based upon any real, concrete or
genuine purpose or aim. In the facts of this case
we feel the same.

36. While we are of the opinion that decree of

divorce must be granted, we are alive to the
plight of the respondent wife. The appellant
husband is working as an Assistant Registrar in
the Andhra Pradesh High Court. He is getting a
good salary. The respondent wife fought the
litigation for more than 10 years. She appears to
be entirely dependent on her parents and on her
brother, therefore, her future must be secured by
directing the appellant husband to give her
permanent alimony. In the facts and circumstance
 2023/KER/55324

MAT.APPEAL NO. 578 OF 2015

..7..

of this case, we are of the opinion that the

appellant husband should be directed to pay a sum
of Rs 15,00,000 (Rupees fifteen lakhs only) to
the respondent wife as and by way of permanent
alimony.”

7. The Apex Court in the concluding paragraph in

Samar Ghosh v. Jaya Ghosh (2007) 4 SCC 511 held that long
separation and one party refused to serve the matrimonial

tie itself would constitute cruelty. The relevant

paragraph is extracted herein.

“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
tfor the feelings and emotions of the parties, in
such like situation, it may lead to mental
cruelty.”

8. We, thus, realise that this fight is not for

any justifiable cause but to win the egos and to wreak

vengeance against other spouse. In recent judgment of

the Apex Court in Civil Appeal No.5454 of 2023 (2023 Live

Law sc 727), it was held that keeping parties together

despite irretrievable break down of marriage amounts to

cruelty on both sides.

9. We are, thus, of the view that this appeal has

to be allowed and the marriage has to be dissolved.

However, we direct the appellant to pay a sum of Rs.10

Lakhs towards permanent alimony and 10 cents of land to

 2023/KER/55324

MAT.APPEAL NO. 578 OF 2015

..8..

the respondent. The appellant-husband is directed to

produce the sketch earmarking the ten cents of land

within a period of one week. The respondent shall

signify before this Court regarding her willingness to

accept the 10 cents of land offered by her husband within

a further period of one week.

This appeal is, accordingly, allowed.

Sd/-
A.MUHAMED MUSTAQUE
JUDGE

Sd/-
SOPHY THOMAS
JUDGE
PR