Kerala High Court
M.K. Sreej vs Hima. T on 23 June, 2025
Author: Sathish Ninan
Bench: Sathish Ninan
Mat.Appeal No.1191/2018
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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
MONDAY, THE 23RD DAY OF JUNE 2025 / 2ND ASHADA, 1947
MAT.APPEAL NO. 1191 OF 2018
AGAINST THE JUDGMENT AND DECREE DATED 08.10.2018 IN OP
NO.782 OF 2016 OF FAMILY COURT, KANNUR
APPELLANT/PETITIONER:
M.K. SREEJ, AGED 45 YEARS
S/O. P.K. SAHADEVAN, RESIDING AT SWARG,
PANNENPARA, P.O.CHALAD, CHALAD AMSOM, DESOM,
KANNUR TALUK, KANNUR DISTRICT.
BY ADVS.
SRI.V.R.KESAVA KAIMAL
SMT.C.DEVIKA RANI KAIMAL
RESPONDENT/RESPONDENT:
HIMA. T, AGED 34 YEARS
D/O.RAVEENDRAN, RESIDING AT UNNUKATTIL HOUSE,
NAMBIANCHERY KAVU, THULICHERY P.O,
PALLIKKUNNU, PUZHATHI AMSOM,
PUZHATHI DESOM, KANNUR TALUK,
KANNUR DISTRICT-670004.
BY ADV SHRI.M.SASINDRAN
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
18.06.2025, THE COURT ON 23.06.2025 DELIVERED THE FOLLOWING:
Mat.Appeal No.1191/2018
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SATHISH NINAN & P.KRISHNA KUMAR, JJ
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Mat.Appeal No.1191 of 2018
--------------------------------------
Dated this the 23rd day of June, 2025
JUDGMENT
P.Krishna Kumar.J
The appellant, the husband of the respondent, filed
a petition for divorce under Section 13(1)(ia) and (ib) of
the Hindu Marriage Act before the Family Court, Kannur. By
the judgment impugned in this appeal, the Family Court
dismissed the petition, holding that the appellant had
failed to establish matrimonial cruelty or desertion on the
part of the respondent.
2. The marriage between the appellant and the
respondent was solemnised on 11.02.2014 according to Hindu
religious rites. At the time of marriage, the appellant was
41 years old and employed abroad, while the respondent was
31 years old. Shortly after the wedding, the appellant
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returned to his workplace overseas. Before departing, he
requested the respondent to reside at his parental home
until he could arrange a family visa for her. Nevertheless,
it is alleged that the respondent left the matrimonial home
merely 12 days later without informing the appellant,
despite the fact that the appellant used to contact her two
or three times a day through phone calls. Subsequently, the
respondent's family members allegedly began insisting that
the appellant should reside separately from his parents.
When the appellant expressed his concern over their
attitude, to his surprise, the respondent supported their
demand. Moreover, it is alleged that the respondent
frequently referred to the appellant as "a man with no
backbone," which caused him considerable emotional distress.
When the appellant voiced his disapproval of such remarks,
the respondent's father repeated the same phrase to the
appellant's mother.
3. Later, the appellant learned from a third party
that the respondent had undergone a medical check-up and
discovered that she was pregnant. Upon attempting to contact
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her for clarification, she avoided his calls. However, due
to the appellant's persistent efforts, the respondent
eventually returned to the matrimonial home. At one point,
the appellant's mother allegedly noticed discrepancies and
corrections in the respondent's horoscope, suggesting a
deliberate concealment of certain facts. When confronted,
the respondent got offended and on 28.06.2014, she left the
matrimonial home once again, without the appellant's
knowledge or consent, and has not returned since. On
13.11.2014, the respondent gave birth to a child, but the
appellant claims he was not informed of the birth. Despite
making several attempts, the appellant contends that the
respondent refused to resume cohabitation. He asserts that
the respondent's conduct amounts to matrimonial cruelty and
desertion, thereby entitling him to a decree of divorce.
4. The respondent denied all the allegations made
by the appellant and contended that after the appellant left
for abroad--19 days after their marriage--his relatives began
to treat her with cruelty. When it became known that the
respondent had conceived in the early days of marriage, the
appellant's relatives expressed doubts about her chastity.
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They subjected her to a medical test to determine the age of
the foetus. Due to some confusion arising from the scan
report--though there was no actual discrepancy--the
appellant's relatives harassed and mentally tortured the
respondent, alleging that she was carrying a child not
fathered by the appellant.
5. In September 2014, while on leave, the appellant
returned to India and filed a petition seeking annulment of
the marriage, alleging that the respondent had become
pregnant through an illicit relationship with another man.
In fact, the respondent gave birth to a child within 269
days of marriage, which led the appellant to harbor
suspicion regarding the child's paternity, but this
suspicion stemmed from the appellant's ignorance and thus he
subsequently withdrew the petition after realising that the
child was indeed his. In the meantime, the respondent claims
to have suffered mental cruelty at the hands of the
appellant.
6. Upon evaluating the evidence presented by both
parties, the Family Court concluded that the appellant's act
of filing a petition for nullity--on the ground that the
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respondent was pregnant by another person at the time of
marriage--and his subsequent withdrawal of the same upon
discovering that the child was his, amounts to cruelty and
therefore, a person who has subjected the other spouse to
such treatment cannot be granted divorce on the grounds of
cruelty or desertion.
7. We have heard Sri, V.R.K.Kaimal, the learned
counsel appearing for the appellant and Sri.M.Sasindran,
the learned counsel appearing for the respondent.
8. During the course of the proceedings, the
appellant took the stand that he had not signed the
petition for nullity of marriage and that he had not
authorised any lawyer to file such a petition on his
behalf. However, in the impugned judgment, the trial court
referred to an admission made by PW1, the appellant
himself, wherein he stated that his doubts regarding the
paternity of the child stemmed from his lack of medical
knowledge, and that it was under such circumstances that
he decided to withdraw the case. These facts indicate that
the appellant did not maintain a consistent position and
that his suspicion against his wife lacked a valid basis.
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9. At the same time, we are also concerned with
certain other peculiar aspects of this case. From the very
beginning of their marriage, disputes arose--primarily due
to the misgivings harboured by the appellant and his
family members regarding the respondent's pregnancy. The
confusion appears to have originated from a scan report
which seemed to indicate that the gestational age was
inconsistent with the duration of the marriage. However,
the appellant later came to understand that that report
was prepared based on the date of the respondent's last
menstrual period, rendering the perceived inconsistency
irrelevant. Consequently, he withdrew the petition.
Another point of contention arose concerning the
respondent's horoscope. The appellant produced Exts. A2 to
A4 in an attempt to show that the original horoscope given
by the respondent contained corrections. He also produced
another horoscope as furnished by the respondent's brother
later, which did not contain any alterations. All these
indicate that the appellant had some grounds, at least
from his perspective, to raise concerns regarding the
respondent's pregnancy and the authenticity of her
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horoscope, although those concerns were ultimately found
unfounded.
10. It is also pertinent to note that the respondent
in her testimony, categorically stated that the appellant
never subjected her to cruelty. She further admitted that
she left the matrimonial home without informing the
appellant. Pertinently, she further conceded that he never
questioned the paternity of the child. According to her,
the issues in the marriage primarily arose due to the ill-
behaviour and interference of her in-laws. The relevant
portion of her cross-examination is extracted below:
"ചടങ ൻ സമയ ന ക ൻ ജ തക ൻക ണ ന യന ഴ ണ
തർക ഉണ യത. 2014 ജ ൺ 28 എൻ ഹർജ ക രൻ വ$ട ൽ
ഇറക വ ടത ണ. അവ ൻട ഇറങ യന*ഷ ഞ ൻ
വ$ട ൽ വ വര അറ യ ച ത ടർ എൻ ഏടൻ വ . ഏടൻ
ക ൻട ഞ ൻ എൻ വ$ട ന/ക ന യ . 28.06.2014 ഹർജ ക രൻ
വ$ട / ണ യ ര ല. ശ*$ജ അല എൻ ഇറക വ ടത. അമയ
ൻ ങള ആണ. ഇങൻ ൻയ ര ശ ശസ6 മയത ങൾ
ഭർത വ ൻ വ ള നച (Q) ആ സമയ വ ള ക ൻ റ യ ല. അ
ര വ ൻ/യ തന/ ര ശത യ വ ള ച സ സ ര ച ര . ങൾ
ന കൻ ട ല എ നല ശ*$ജ റഞത (Q) ന ക ത
എത ർ റഞ ട ണ യര ല. ഞൻ രമ വധ
അവ ടതൻ ട ച ൽക യര ഭർത വ
റഞ ര ത. ഭർത വ ൻറ ഭ ഗത ണയ
ൻതറ ക റങൾ ൻക ണല ഞ ൻ വ$ട വ ട ന നകണ വ ത. ഞ ൻ
ന ക സമയത ഗർഭ ണ യ ൻണ ഭർത വ അറ യ .
ഞ ൻ ഗർഭ ണ യ യത ഉതരവ ദ ഭർത വല എ അന?ഹ
ഇത വൻര റഞ ട ല. ഇറങ ന ക ൻ നവണ മ ശത എന ണ
ങൾക ഉണ യ $ഡ (Q). ഗർഭ ണ യ യത ഉതരവ ദ
ഭർത വല എ യര അവര ൻട ആനര ണ , ഇത മ ശതമല
/ ക രണങള റഞ ട ണ എൻ ഇറക വ ടത.
ഗർഭ ണ യ യ ൽ ഭർത വ ന ട ള attachment ക ട എ ത ണ
അവര ൻട സ *യ . എ ൻറ നചച യ ഭർത വ വ$ട എട ത
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ത മസ ക ത ഞങള ൻട തറവ ട വ$ട റമ / ണ.
അവ ൻടതൻ വ$ൻടട ത ത മസ കണ എ യര
ങള ൻട വ$ട ക ര ൻട ത ൽ രD അനല (Q) അത കളവ ണ
അങൻ ൻയ ര ത ലര F D ഇല. ഞ ൻ ഗർഭ ണ യ യ സH ൻ റ ന ർട
ഞ ൻ ശ*$ജ ൻമയ ൽ ൻചയJ ൻക ട ത ര . അത ശ നതDക ച
ക രണൻമ മ ല ഭർത വ യത ൻക ണ അയച ൻക ട ത
എ മ ശത . ഭർത വ ആവ*Dൻ ട ര ല."
From the above statement, it is evident that the respondent
did not have any specific grievances against the appellant
himself. If that is the case, she is responsible for the
desertion. Although she claimed that she was willing to
continue the marital relationship, she did not take any
legal steps in that direction, such as filing a petition for
restitution of conjugal rights, during all these years.
Thus, we are of the view that the appellant is entitled to
get a decree of divorce on the ground of desertion.
11. In light of the evidence adduced by the
appellant, we find considerable merit in the argument
advanced by the learned counsel for the appellant that the
continuance of a peaceful and meaningful marital life
between the appellant and the respondent is practically
impossible. In these circumstances, compelling the
appellant to continue in such a strained relationship
would amount to inflicting further mental cruelty upon
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him. It is evident that the marriage between the appellant
and the respondent has, for all practical purposes,
irretrievably broken down. The parties have been living
separately since 2014, and several attempts at
reconciliation have proved unsuccessful. Despite various
efforts, including mediation and conciliation, the
relationship failed to improve. The prolonged separation,
coupled with the unending discord and the hostile
environment portrayed through the pleadings and testimony,
clearly establishes that the marital bond has broken down
irretrievably. The Apex Court in Samar Ghosh v. Jaya Ghosh
[(2007) 4 SCC 511) observed that the marriage becomes a
fiction, though it is supported by a legal tie, when there
is continuous separation and loss of essential bond
between the couple. It was further held that, if there has
been a long period of continuous separation, it is fair to
conclude that the matrimonial bond is beyond repair.
12. 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
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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
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
dlk/20.06.
