Point of Law : Divorce - One party cannot unilaterally decide to walk out of a marriage, when sufficient grounds are not there justifying a divorce, under the law which governs them, saying that due to non-co-habitation for a considerable long period, their marriage is dead practically and emotionally.

JUDGMENT :

Sophy Thomas, J.

This appeal is filed by the wife challenging the judgment and decree in O.P.No.2395 of 2016 on the file of the Family Court, Thiruvananthapuram, by which her prayer for divorce on the ground of matrimonial cruelty and desertion was rejected.

2. The appellant/wife is a Ph.D. holder, working as Assistant Professor and Head of the Department of Sociology at S.N. College, Chempazhanthi. The respondent/husband is a Dentist, running his own clinic and also a Consultant at Ananthapuri Hospital. Both of them hail from high profile families with well- educated parents and high social status.

3. The summary of the case is as follows:

The marriage between the appellant and the respondent was solemnized on 07.05.1999 as per Hindu religious rites and customs and a male child was born in their wedlock on 16.09.2001. After marriage, the appellant was staying at her matrimonial home. She was subjected to matrimonial cruelties demanding more dowry. She was not permitted to pursue her higher studies. She was totally neglected by the husband and he even alleged extra-marital relationship against her. Since the property of her mother was not given to the respondent as demanded by him, he tortured her mentally, and when her father enquired about the same with the father of the respondent, she was asked to vacate their house, and accordingly in the year 2011, she shifted her residence to the flat given by her mother. Due to the intervention of friends and relatives, the respondent also started living with the appellant in the flat. After one month of peaceful residence there, he started making unwarranted allegations against her, and on 27.09.2011, he left the flat after threatening the appellant, to take away the child with him. Then, she filed petitions for divorce, return of gold ornaments, custody of the child, and also a petition under Protection of Women from Domestic Violence Act against him. In turn, he filed petition for restitution of conjugal rights. Subsequently, after taking evidence in those cases, on compulsion from everyone close to the appellant, she agreed for a reunion, and withdrew all the cases filed by her, and the respondent started living with her in the flat, from 29.05.2015 onwards. Even after the reunion, there was no physical intimacy or mental unity between them, and he failed to maintain his wife and child. He practically neglected the appellant and she had to undergo medical counselling for the mental trauma she had suffered at his hands. They are living separately for more than two years. Their marital relationship is irretrievably broken and there is no possibility of a further reunion. It is not possible to continue her matrimonial life with the respondent without compromising her dignity and individuality as a woman.

4. The respondent/husband denied all the allegations of matrimonial cruelties and desertion, and according to him, he was a loving husband and a caring father. He assisted and motivated his wife to achieve all her dreams in life. Himself or his parents never demanded dowry from the appellant or her parents. In fact their parents were friends, and their fathers were Doctors in health service. They never received or misused her gold ornaments. The allegation of neglect levelled against him is false. Since the appellant wanted to enjoy flat life, both of them shifted their residence to the flat in February, 2011. On 10.10.2011, he was asked by her mother to stay separately for some time, due to some astrological reasons, and he readily obeyed. But, thereafter the appellant filed cases one after the other against the respondent. Later, the appellant withdrew all the cases and they resumed cohabitation in the flat in May 2015. They were leading a normal family life, till December, 2016. Thereafter she began to behave in a rude manner and with an intention to send him out, packed all his belongings and sent it to his paternal house, after informing him over telephone. Subsequently, the