Kerala High Court
P.K.Sreekumar vs K.Preetha on 12 June, 2025
Author: Sathish Ninan
Bench: Sathish Ninan
Mat.Appeal No.1127 of 2016
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR
THURSDAY, THE 12TH DAY OF JUNE 2025 / 22ND JYAISHTA, 1947
MAT.APPEAL NO. 1127 OF 2016
AGAINST THE JUDGMENT DATED 26.09.2016 IN OP(DIV) NO.1139
OF 2013 OF FAMILY COURT, PATHANAMTHITTA
APPELLANT/PETITIONER:
P.K.SREEKUMAR
AGED 55 YEARS, S/O. G.KUNJIRAMAN,
(PLATHARETHUVEEDU), SIVAKRIPAYIL,ERATHU MURI,
ERATHUY VILLAGE,ADOOR TALUK.
BY ADV SHRI.LEGY ABRAHAM
RESPONDENT/RESPONDENT:
K.PREETHA
D/O. KESAVANSASTHRI,MALAYILPARAMBILVEETTIL,
PULLADU PO., PULLADU, KOIPURAM VILLAGE,
THIRUVALLA TALUK - 689 645
BY ADV SRI.C.P.SAJI
THIS MATRIMONIAL APPEAL HAVING COME UP FOR HEARING ON
30.05.2025, THE COURT ON 12.06.2025 DELIVERED THE FOLLOWING:
Mat.Appeal No.1127 of 2016
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SATHISH NINAN & P. KRISHNA KUMAR, JJ.
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Mat.Appeal No.1127 of 2016
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Dated this the 12th day of June, 2025
JUDGMENT
P.Krishna Kumar, J.
A petition for divorce was filed by the husband before
the Family Court, Pathanamthitta, under Section 13(1)(ia)
and 13(1)(ib) of the Hindu Marriage Act, 1955, against his
wife, alleging matrimonial cruelty and desertion. The Family
Court rejected the petition, finding that the husband failed
to prove the grounds set up by him. The said order is
challenged in this appeal.
2. The appellant married the respondent on 1.5.1996
as per the Hindu religious rites. They have a daughter in
that wedlock. The appellant was a Development Officer in
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Life Insurance Corporation, and the respondent was an
Assistant Manager in the KSFE. According to the appellant,
the respondent never loved, cared for, or respected him, and
she had been evading her duties as a wife. She frequently
left for her parental home, leaving the appellant alone in
their matrimonial home. The respondent always treated him
with disrespect and often attempted to tease and ridicule
him in front of others, which caused him grave mental agony.
The respondent showed no interest in maintaining a sexual
relationship with the appellant after the birth of the
child, and she intentionally avoided physical intimacy with
him. On 5.5.2010, she expressed her unwillingness to share
the bed with him. The appellant complained about the conduct
of the respondent to her mother on 8.5.2010, but it was in
vain. At last, on 10.05.2010, the respondent left her
matrimonial home with their child while the appellant was
absent. Even on 01.10.2013, when the appellant tried to
contact the respondent through telephone, she asserted that
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she was unwilling to resume her marital obligations. The
marriage is irretrievably broken down, and finding that a
reunion is not possible, the appellant decided to proceed
with divorce, after three years, it is contended.
3. The respondent stated that she had always
discharged her duties as a wife, respected the appellant,
and denied the allegation of refusing sexual relations. The
appellant is a quarrelsome, inebriate and irresponsible
person who failed to cooperate even in providing medical
care to their child. The appellant had misappropriated the
entire wealth of the respondent and purchased a house in his
name. He ill-treated the respondent, demanding more gold
ornaments. The appellant consistently objected to the
respondent visiting her parental home. The respondent was
expelled from the matrimonial home by the appellant along
with their child, it is contended.
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4. After considering the evidence of PW1 and RW1 and
Exts.A1 to A4 and B1 and B2, the Family Court found that the
evidence on record is insufficient to find matrimonial
cruelty or desertion from the part of the respondent.
5. We have heard the learned counsel appearing on
both sides.
6. Upon considering the evidence on record, we have
noted that the prime grievance of the appellant is in
respect of the respondent's attitude and her defiant
reaction to his demands. According to him, his wife used to
belittle him in front of others, and she had never taken
care of his affairs sincerely. He felt the loss of love and
a lack of oneness in their relationship. The wife had been
denying his conjugal rights throughout the years after the
birth of their child. On some of the occasions, the wife
expressed the same even verbally. At last, she left for her
parental home together with the child, deserting her
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husband. Even after a scorching cross-examination, the above
version remains unshaken.
7. RW1, the respondent in her evidence, reiterated
her contentions. According to her, she never refused sexual
relations during the time they lived together, and on the
contrary, she had always been harassed by the appellant. It
was the appellant who expelled her from the matrimonial
home, she stated. However, during cross-examination, she
conceded that many of the allegations in her written
objection were incorrect. She admitted that the statement in
the counter that she was subjected to cruelty was incorrect.
She also stated that the appellant did not take any of her
gold ornaments, nor did he demand the same. Though she has
stated in the proof affidavit that she was expelled from the
matrimonial home in May 2012, during cross-examination, she
said it happened in May 2010. Significantly, she did not
state the month or the year in her written objection. She
further stated that the appellant had been paying school
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fees for the child, and he also met a substantial part of
the medical expenses of the child. For the above reasons, we
find it difficult to accept her oral evidence in preference
to the appellant. Making such false claims, by themselves,
amounts to cruelty. The evidence of the appellant clearly
establishes that he was subjected to cruelty and desertion
by the respondent. The family court omitted to consider the
above aspects. The court relied on certain allegations made
by the respondent in her proof affidavit which were not
founded upon pleadings.
8. The learned counsel appearing for the respondent,
relying on the decisions in Latha Kunjamma v. Anil Kumar
(2008(2) KLT 545), Shyam Sunder Kohli v. Sushma Kohli (2004
KHC 1212), Capt. Rohith C.G. v. Indira C.R.(2023 KHC 4645),
Savitri Pandey v. Prem Chandra Pandey (2002 KHC 265),
Ramanuj Kumar v. Priyanka (MANU/SC/0540/2025) and in Samar
Ghosh v. Jaya Ghosh [(2007) 4 SCC 511] contended that, when
the husband treated the wife with cruelty and became
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responsible for desertion, he should not be granted the
relief of divorce on the ground of cruelty or desertion.
9. On analysing the evidence adduced by both sides,
we find no reason to hold that the appellant treated the
respondent with cruelty or that he is a party to the
desertion. Indeed, the evidence adduced by him to
substantiate his contentions is not corroborated by any
independent witnesses. At the same time, the defence set up
by the respondent contains embellishments and exaggerations.
At any rate, we find no factual basis for holding that the
appellant was also guilty of matrimonial cruelty. As
observed above, the adverse findings of the trial court on
this aspect lack factual foundation.
10. Apart from that, the evidence on record clearly
suggests that the marital tie between the parties has been
irretrievably broken down, and they have been living
separately for the last 15 years. Even though the wife
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claimed that she had not deserted the husband and was always
ready and willing to resume their marital life, she never
instituted a proceeding for restitution of the conjugal
rights. In the course of hearing, our attention was also
drawn to the petition instituted by the wife before the
Family Court, Thiruvalla, as O.P.No.174/2025. The main
reliefs in the said petition are for recovery of gold, money
and marital expenses of the child. There is no relief for
restitution.
11. In Shilpa Sailesh v. Varun Sreenivasan [2023 SCC
OnLine SC 544], it has been held that where there is an
irretrievable breakdown of marriage, then dissolution of
marriage is the only solution. In Rajib Kumar vs. Sushmita
Saha [2023 LiveLaw (SC) 727], the Apex Court held that
keeping the parties together despite an irretrievable
breakdown of marriage amounts to cruelty on both sides. Such
a long separation without any intention to resume
cohabitation amounts to cruelty to the spouse. After
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considering all the above aspects, we are of the view that
the marriage between the parties could be dissolved on the
said ground as well.
Resultantly, the appeal is allowed. The marriage
between the parties will stand dissolved by a decree of
divorce. No costs.
Sd/-
SATHISH NINAN
JUDGE
Sd/-
P. KRISHNA KUMAR
JUDGE
sv
