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2023 Supreme(Online)(KER) 8623
HIGH COURT OF KERALA
A. Muhamed Mustaque, SOPHY THOMAS, JJ
NICKSON – Appellant
Versus
NEETHA – Respondent
Mat.Appeal 992 2017
SRI.ALEX.M.SCARIA, SMT.SARITHA THOMAS, SRI.GEORGE JOHNSON
Prolonged separation without reconciliation may entitle a party to dissolve a marriage, even amidst allegations of mutual cruelty.
Headnote:
Divorce - Matrimonial Cruelty - Indian Penal Code - Sections 498A - The court determined that prolonged separation and failure to reconcile indicated an irretrievable breakdown of marriage, interpreting such circumstances as justifying the dissolution of the marital bond in light of the facts presented.
Fact of the Case:
The husband sought divorce citing cruelty due to the wife's behavior. The wife countered his arguments, claiming her treatment resulted from his cruelty. The Family Court dismissed the husband's petition, leading to his appeal.
Issues: Whether the court should intervene in the Family Court's dismissal of the divorce petition based on claims of cruelty and the long-term separation of the parties.
Ratio Decidendi: The ruling emphasized that prolonged separation without any attempts at reconciliation can constitute grounds for granting a divorce, as the marriage's continuance becomes a source of mental cruelty.
Final Decision: The appeal was allowed, dissolving the marriage between the parties.
J U D G M E N T
Sophy Thomas, J.
The husband, who lost his case for divorce, is before us, challenging the judgment and decree of the Family Court, Kollam in OP (Div) No.826 of 2013.
2. The appellant married the respondent on 29.08.2005 as per Christian religious rites and custom. They lived together as husband and wife till 2008, and a child was born in their lawful wedlock. According to the appellant, his matrimonial life was miserable due to the adamant, arrogant and violent behaviour of the respondent. In the year 2008, they were separated and thereafter, the respondent and the child were residing at her paternal house. Till 2012, nothing was heard about her. But, in the year 2012, she started to file complaints one after another against the appellant and his parents. He filed OP (Div) No.826 of 2013 before Family Court, Kollam, to dissolve their marriage as it was not possible for him to continue his matrimonial life with the respondent. The respondent/wife opposed that petition contending that, it was the appellant who was subjecting her to cruelty. Himself and his parents withdrew the amounts deposited in her name before its maturity and they misused her gold ornaments. They cheated the respondent by purchasing a property in the name of the mother of the appellant in violation of the promise given to the respondent and her parents. According to her, only because of the matrimonial cruelties meted out to her by the appellant, she was compelled to reside at her paternal house.
3. Learned Family Court formulated necessary issues and thereafter the parties went on trial. PW1 was examined and Exts.A1 to A9 were marked from the side of the appellant/husband and RWs 1 and 2 were examined and Exts.B1 to B14 were marked from the side of the respondent/wife.
4. On analysing the available facts and evidence, learned Family Court found that, the appellant could not prove his case of matrimonial cruelties against the respondent and so, that O.P was dismissed. The husband is before us, challenging that judgment and decree.
5. We are called upon to find out whether there is any illegality, irregularity or impropriety in the impugned judgment warranting our interference.
6. Heard learned counsel for the appellant and learned counsel for the respondent.
7. PW1, the husband, deposed before court that the respondent/wife was indifferent towards him throughout their marital life. She was not attending household affairs, and her abnormal behaviour invited complaints from neighbours. They lived together only for three years and the birth of the child could not make any change in her character. They got separated in the year 2008. For the next four years, nothing was heard from her. But, in the year 2012, she began to file complaints against him and his parents. She agreed to dissolve their marriage on mutual consent, on receipt of the gold ornaments and cash entrusted with the appellant. Though he returned everything, she withdrew from her promise to agree for divorce on mutual consent. Moreover, after four years of separation, she filed a criminal case against the appellant and his parents under Section 498A of IPC . The respondent was alleging that, the appellant and his parents demanded dowry from her family during the period 2008-2010. But, in fact, in the year 2008 itself, they were separated, and they never cohabited thereafter. According to the appellant, filing false cases against him and his parents, after long years of separation, will amount to cruelty from the part of the wife.
8. Though the wife opposed the claim of divorce put forward by the husband, she is admitting that, they are living separate from 2008 onwards. She is also admitting receipt of gold ornaments and money which were entrusted with the appellant/husband. She is not disputing the fact that, in the year
2012, she filed criminal complaints against the appellant and his parents.
9. When the husband says that the wife was indifferent throughout, without attending the affa
