Irretrievable breakdown of marriage, indicated by prolonged separation and unwillingness to reconcile, can justify divorce irrespective of proven cruelty or desertion.

JUDGMENT

SHOBA ANNAMMA EAPEN, J.

The wife, who lost her case for divorce, is the appellant herein, challenging the order of the Family Court, Kalpetta. She seeks divorce on the grounds of cruelty and constructive desertion under Section 10 (1)(IX) and (X) of the Divorce Act, 1869 .

2. The appellant and the respondent are husband and wife, who were married on 23.02.2003 as per christian religious rites and custom, and a child was born in the wedlock. They lived together as husband and wife till 2008; and since the appellant felt that her life at respondent's house was in danger, on 26.09.2008, the appellant took the child and left for her parental house. During this time, she obtained a decree for maintenance in MC No.52 of 2007 on the file of the Judicial First Class Magistrate–I, Sulthan Bathery, however, no maintenance was paid by the respondent. She also filed OP No.165 of 2010 before the Family Court, Kalpetta, for dissolution of marriage on the grounds of desertion and cruelty.

3. The respondent opposed the petition, contending that he has not treated the appellant with mental or physical cruelty. According to him, the appellant was not willing to stay with him and it is a cooked up false story that the respondent and the in-laws had treated the appellant with cruelty. The appellant is living separate from the company of the respondent by complaining that there are no amenities in the rented house.

4. The Family Court formulated necessary issues and thereafter, the parties went on trial. On the side of the appellant, PW1 & PW2 were examined and Exts.A1 to A7 were marked. On the side of the respondent, RW1 & RW1 were examined and Exts.B1 to B10 were marked.

5. After elaborate consideration of the available facts and evidence, the Family Court found that the appellant could not prove her case of cruelty and desertion and accordingly, the OP was dismissed. Hence, the wife is before us, challenging the order of the Family Court.

6. We are called upon to find out whether there is any illegality, irregularity or impropriety in the impugned order, warranting interference in appeal.

7. Heard learned counsel for the appellant and learned counsel for the respondent.

8. PW1, the appellant/wife, deposed before the court that the respondent/husband slapped on her face, which impaired the hearing capacity of her right ear, and that he was misbehaving with her and treating her with cruelty from day one of their marriage and due to the cruelty emitted out by the respondent, the appellant had to leave the matrimonial house in 2005. Later, in the year 2007, though the disputes were settled in the presence of their relatives, within a couple of days, while living together, again difference of opinion arose between them and she had to leave matrimonial house in 2008. Thereafter, several litigations were filed by the appellant as well as the respondent, during which time, the appellant had filed the original petition for divorce on the grounds of cruelty and desertion.

9. The respondent, on the other hand, opposed the claim of divorce put forward by the appellant, stating that there was no desertion or cruelty on the part of the respondent or his family members towards the appellant and since the appellant did not want to stay with the respondent at the matrimonial home, she left the house. However, it is admitted that they are living separate from 2008 onwards.

10. The marital relationship is built over the period based on harmonious combination of difference in taste, outlook, attitude etc. The initial phase of marriage lays a strong foundation for the marriage. The relationship and understanding, that is built during the initial days of the married life, enable the parties to resolve the differences, which they may encounter in a later stage of marriage. From the evidence adduced, it is seen that from day one of the marriage, the appellant and the respondent were having difference of opinion and issues between them. Instead of trying for a solutio