Allowed

Suja George v. Varghese George

Kerala HC26 Jun 2023Mat.Appeal/86/2017

Case brief

AI extract

What is this about?

In a matrimonial appeal, the High Court held that a marriage solemnized on 17.12.2001 had become irretrievably broken due to continuous separation since 2010, mutual allegations of cruelty, and the husband's refusal to grant divorce on mutual consent. The court allowed the appeal, dissolving the marriage.

What did the court decide?

The appeal was allowed and the marriage solemnized on 17.12.2001 between the appellant and respondent is dissolved.

Suja George Vs Varghese George — Matrimonial and Divorce | Kerala HC (2023)

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INTHEHIGHCOURTOFKERALAATERNAKULAM
PRESENT
THEHONOURABLEMR.JUSTICEA.MUHAMEDMUSTAQUE
&

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THEHONOURABLEMRS.JUSTICESOPHYTHOMAS
MONDAY,THE26THDAYOFJUNE2023/5THASHADHA,1945
MAT.APPEALNO.86OF2017
AGAINSTTHEORDER/JUDGMENTINOPDIVNo.986/2011OFFAMILY
COURT,KOTTARAKKARA
APPELLANT/PETITIONER:

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SUJAGEORGE
D/O.SUSAMMAGEORGEKUTTY,CHARUVILAVEEDU,
UMMANNOORP.O.,UMANNOORVILLAGE,KOTTARAKKARA
TALUK(REPRESENTEDBYPOWEROFATTORNEYHOLDER
BINUALEXANDER,S/O.T.K.ALEXANDER,
KALEELAZHIKATHUVEEDU,UMMANNOORP.O.,
PAZHINJAM,UMMANNOORVILLAGE,KOTTARAKARA
TALUK).

¶4

BYADVS.
JACOBP.ALEX
JOSEPHP.ALEX(K/1-C/2002)
MANUSANKARP.(K/000823/2018)
AMALAMIRALI(K/000773/2019)

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RESPONDENT:

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VARGHESEGEORGE
S/O.GEEVARGHESEGEORGE,ALUVILAVEEDU,MANIAKKALA
P.O.,KUNNIKODU,PATHANAPURAMTALUK,REPRESENTED
BYPOWEROFATTORNEYHOLDERK.JOSEMON,
S/O.KUNCHANDI,CHARUVILAPUTHENVEEDU,
PARANKIMAMMUKAL,MANJAKKALA,TALAVOORVILLAGE,
PATHANAPURAMTALUK,KOLLAMDISTRICT,KERALA
STATE-689695.
BYADVSRI.JOHNSONGOMEZ

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THISMATRIMONIALAPPEALHAVINGBEENFINALLYHEARDON
26.06.2023,THECOURTONTHESAMEDAYDELIVEREDTHE
FOLLOWING:

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Mat.Appeal No.86 of 2017

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A.MUHAMED MUSTAQUE &

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SOPHY THOMAS, JJ.

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Mat.Appeal No.86 of 2017

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Dated this the 26^th day of June, 2023

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J U D G M E N T

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Sophy Thomas, J.

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The wife who lost her case for divorce before the Family

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Court, Kottarakara, is the appellant herein.

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The marriage between the appellant/wife and the respondent/husband was solemnised on 17.12.2001 according to Christian rites and custom. On 11.06.2007, triplet children were born to them. The matrimonial life of the appelant was miserable due to continuous torture and ill-treatment from the part of the husband. She had to make a complaint about his torture before Sharjah Police. They are living separate since 25.10.2010. As she wanted to get divorce, she filed OP(Div.) No.986 of 2011 before Family Court, Kottarakkara.

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The respondent/husband opposed her petition contending that, he was a loving husband, and all the allegations

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Mat.Appeal No.86 of 2017 3

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of ill-treatment were denied by him. He had spent huge amount for her treatment in connection with her delivery. It is true that he objected the visit of other person in his house during his absence. The appellant did not like that restriction and so, she wanted to avoid him.

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The Family Court formulated necessary issues and thereafter the parties went on trial by examining PWs 1 and 2 from the side of the appellant, RWs 1 and 2 from the side of the respondent. Exts.A1 to A4 and B1 to B4 were marked. On analysing the facts and evidence, the Family Court dismissed her petition, finding that, petty quarrels in a family life cannot be considered as cruel treatment. Challenging dismissal of her O.P, she has come up with this appeal.

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Now let us see whether there is any illegality, irregularity or impropriety in the impugned judgment warranting interference by this Court.

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

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On going through the evidence from either side, it could

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Mat.Appeal No.86 of 2017 4

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be seen that, both of them were not happy in their matrimonial life. The appellant was alleging ill-treatment both physical and mental from the part of the husband. The respondent was admitting that, he was not happy with other persons coming to his house in his absence, indirectly questioning her fidelity. The appellant would say that, when she was tortured, she had even complained before Sharjah Police, though no documents were produced in support. Admittedly, the parties are living separate since 2010. For the last 13 years, nothing good came out of their strained relationship to resume cohabitation. That itself will suggest that, their relationship is practically dead, and the appellant is firm in her decision that she cannot continue her matrimonial life with the respondent any more. The available facts will show that, the husband was doubting her chastity. In that situation, the denial of divorce prayed for by the wife will only work out injustice to the parties.

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In Samar Ghosh vs. Jaya Ghosh [(2007) 4 SCC 511], the Hon’ble Apex Court, while considering the impact and impropriety of refusing to sever the marriage tie despite the

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Mat.Appeal No.86 of 2017 5

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irretrievable break down, held that, 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 situations, the refusal may lead to mental cruelty.

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In Naveen Kohli vs. Neelu Kohli [(2006) 4 SCC 558],

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in paragraphs 75 and 76, the Hon’ble Apex Court held as follows:

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“75. Public interest demands not only that the married status should, as far as possible, as long as possible, and whenever possible, be maintained, but where a marriage has been wrecked beyond the hope of salvage, public interest lies in the recognition of that fact.

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Since there is no acceptable way in which a spouse can be compelled to resume life with the consort, nothing is gained by trying to keep the parties tied forever to a marriage that in fact has ceased to exist”.

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10. In Beena vs. Shino G Babu (2022 (2) KLT 139),

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a Division Bench formed by us held that, if the court is able to

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Mat.Appeal No.86 of 2017 6

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form an opinion that due to incompatibility, the marriage failed and one of the spouses was withholding consent for mutual separation, the court can very well treat that conduct itself as cruelty. If one of the spouses is refusing to accord divorce on mutual consent after having convinced of the fact that the marriage failed, it is nothing but cruelty to spite the other spouse. No one can force another to continue in a legal tie if the relationship is deteriorated beyond repair.

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There is no doubt that levelling disgusting accusation of unchastity and attributing aspersions of perfidiousness to the wife would undoubtedly amount to mental cruelty which a wife cannot tolerate. When the husband is admitting that, other persons were coming to his house in his absence and he had warned his wife regarding such visit, that is sufficient to show that he was doubting her chastity. When no materials were made available to substantiate his contention, it is to be treated as a baseless allegation, which amounts to mental cruelty.

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On applying the ratio in the decisions cited supra to the

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facts in the case on hand, we have no hesitation to hold that,

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Mat.Appeal No.86 of 2017 7

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their marriage is irretrievably broken and has become a deadwood. The parties are living separate for the last 13 years, without showing any symptoms of reunion. The wife is alleging cruelty against the husband and the husband is alleging unchastity against the wife. But, even then he is not ready for divorce on mutual consent. So, we find no reason to maintain the marital status between the appellant and respondent, which is proved to be wrecked beyond any hope of salvage. Hence, the appeal is liable to be allowed for dissolving their marriage.

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In the result, the appeal is allowed and the marriage between the appellant and respondent solemnised on 17.12.2001 is hereby dissolved. No order as to costs.

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Sd/-

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A.MUHAMED MUSTAQUE JUDGE

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Sd/-

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SOPHY THOMAS JUDGE

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smp

Suja George v. Varghese George

Case brief

What is this about?

What did the court decide?

Suja George v. Varghese George

Case brief

What is this about?

What did the court decide?

What the court decided

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