You are currently viewing PRABIN GOPAL VS MEGHNA on 18 May 2021 , KERALA HC

Mat.Appeal.No.523 OF 2019

The husband in a marital dispute is the appellant. The original petition filed by him against his wife (respondent) for divorce on the ground of cruelty was dismissed by the Family Court, Thrissur (for short ‘the court below’) vide impugned order.

Para 2. The marriage between the appellant and the respondent was solemnized on 27/12/2009 at Sree Krishna Temple, Guruvayoor as per the Hindu religious rites. In the wedlock, a daughter named, Diya Prabin, was born on 9/3/2011.

Para 3. The appellant was working at Singapore as a bank manager at the time of marriage. After a few days of marriage, the respondent went to Singapore along with the appellant and both of them resided together there. According to the appellant, immediately after the commencement of the marital relationship, serious matrimonial problems developed between them, which despite his earnest and sincere effort, kept growing and intensified. It was alleged that the respondent was extremely bad tempered and belligerent in nature, constantly using filthy language and arguing with the appella showed complete disinterest in all household functions and refused to attend her duties as a wife. Not only was the respondent distancing himself from the appellant, but there were regular instances of outrage and resentment, causing serious mental agony and pain to him, it was alleged.

Para 4. The appellant further alleged that the respondent refused to show any signs of love and care towards his parents especially his ailing father and other family members which caused deep mental pain and misery on him. He highlighted an instance wherein the father of the respondent physically hurt his parents causing serious injuries on the hand of his mother which resulted in registration of a criminal case against the respondent and her father at the Town West Police Station, Thrissur. As a counterblast to the same, the respondent filed a complaint raising false allegations against the appellant and his parents resulting in registration of a crime against them. On hearing about the same, the father of the appellant suffered a sudden paralytic stroke and was admitted to the hospital. The intention of the respondent and her parents was only to harass, cause loss, mental agony and pain to the appellant and his family, it was alleged. 5. The appellant and the respondent made a short visit for 12 days to their native place in the month of May 2010. According to the appellant, during the said visit, the respondent refused to reside in his residence and when he requested her to reside or even visit his residence, she started to pick up quarrel with him. Thereafter, the respondent became pregnant while they were residing together in Singapore and even at that point of time, the respondent continued her reckless and inattentive behaviour. In December 2010, the appellant and the respondent came to their native place so as to drop the respondent at her residence for delivery as per the local custom. During the said stay, the appellant and his mother regularly attempted to visit the respondent at her residence. However, the respondent and her parents refused to permit them to visit the respondent and tried to detach her from the appellant and his parents. During every such attempt, the respondent and her parents began insulting and quarreling with the appellant and his family which deeply hurt him. It was further alleged that he was informed about the delivery of his own child through his family friends on the date of delivery. Even though he rushed to the hospital, he was not permitted to see the child and forcefully obstructed from entering the hospital by the respondents’ relatives and strangers on the instruction of the respondent and her parents. It was also alleged that the appellant and his parents were completely isolated from the child and the respondent even refused to send a photo of the child. Hence, the parents of the appellant were forced to file a complaint before the District Legal Service Authority, Thrissur and it was only with intervention of the authority, they could see the child. In these circumstances, the appellant filed OP No. 1091/2011 for restitution of conjugal rights and GOP No.154/2012 to get the custody of the child before the Family Court, Thrissur. Even though the respondent came to the residence of the appellant for showing the child to his parents, after counselling in OP No.1091/2011, immediately upon arrival, she began scolding, insulting, abusing and quarreling with his parents leaving them devastated and traumatized, it was alleged.

Para 24 ……………. Mere filing of compromise petition would not amount to condonation of cruelty unless and until 4the matrimonial life was restored. There is nothing on record to show that the matrimonial life was restored. There was no cohabitation admittedly. Thus, we have no hesitation to conclude that neither the pleading nor the evidence indicate any bilateral act or conduct so as to record a finding that there was forgiveness and restoration between the parties amounting to condonation of the cruelty on the part of the appellant. Therefore, the conclusion of the court below on this ground is not legally sustainable. The subsequent conduct of cruelty on the part of the respondent revived the earlier conduct of proved cruelty and completely negated the condonation.

Para 25  On an overall appreciation of the pleadings and evidence, we find that the appellant and the respondent were at loggerheads right from the inception of their marriage. The marriage never took off. Regardless of the subsistence of the marriage for the last twelve years, the couple was unable to patch up their differences. The marriage is virtually shattered and has become a dead wood. The allegations and counter allegations levelled against each other establish that there is no further chance of a rapprochement. The appellant has pleaded and proved specific instances of cruelty meted out on him by the respondent which have been discussed in the preceding paragraphs. Admittedly, they are residing separately since January, 2011. The Supreme Court of India in Samer Ghosh v. Jaya Ghosh [(2007) 4 SCC 511] has held that the insistence by one spouse to preserve the dead marriage could be treated as an act of cruelty. It was observed thus:

“Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situation, it may be true mental cruelty.”

Para 26. The upshot of the above discussions is that the appellant has made out a case for granting a decree for dissolution of marriage on the ground of cruelty u/s 13(1)(a) of the Act. The court below went wrong in dismissing his original petition for dissolution of marriage.

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