Kothapalli Satish Babu v. Kothapalli Nagalakshmi

THE HON'BLE SRI JUSTI CE C.V.NAGARJUNA REDDY AND THE HON'BLE SRI JUSTI CE M.S.K.JAI SWAL CI VI L MI SCELLANEOUS APPEAL No.786 of 2005 Between:

Kothapalli Satish Babu ..Appellant And Kothapalli Nagalakshmi ..Respondent Counsel for the appellant: Mr.K.Gopal for Mr.P.Durga Prasad Counsel for the respondent: Mr.Y.Ramatirtha The Court made the following:

JUDGMENT: (Per the Hon'ble Sri Justice C.V.Nagarjuna Reddy) This civil miscellaneous appeal arises out of the order and decree, dated 19.07.2005, in H.M.O.P.No.36 of 2002 on the file of the Senior Civil Judge, Machilipatnam, whereby he has dismissed the said O.P. filed by the appellant for dissolution of the marriage under Section 13(1)(ia) and (ib) of the Hindu Marriage Act, 1955.

2.

We have heard the learned counsel for both the parties and perused the record.

3.

The marriage of the appellant and the respondent took place on 04.03.1995 according to the Hindu rites and a male child was born to the couple in 1996. As serious disputes crept in in the matrimonial life of the spouses, the respondent has left the company of the appellant in the month of February, 2000. The appellant averred that in spite of the best efforts put in by him through the elders of the village, the respondent declined to join his company. The appellant got Ex.A-1 - registered legal notice, dated 11.12.2000, issued to the respondent requesting her to join his company, which was acknowledged by the respondent under Ex.A-2. The respondent neither responded to the said notice nor joined the company of the appellant. In support of his case, the appellant examined himself as P.W.1 and also examined P.W.

2, who was a retired Additional District Medical and Health Officer, Machilipatnam, and known to both the parties. P.W.2 deposed that the father of the appellant has requested him to approach the father of the respondent to send his daughter to the appellant, who is interested to live with her, but the father of the respondent bluntly refused to send his daughter to stay with the appellant. The respondent examined herself as R.W.1.

and that only due to the behaviour of the appellant, she was constrained to stay away from him. She, however, admitted that she did not give any Police complaint against the appellant for demanding dowry. Purporting to appreciate the oral and documentary evidence, the lower Court has rendered a finding that the appellant failed to prove that the respondent treated him with cruelty and that she herself deserted her husband without any reason or cause.

4.

On a careful examination of the evidence on record, we are of the opinion that the lower Court has committed a serious error in appreciating the evidence from proper perspective. As could be seen from the evidence of P.W.2, his efforts to mediate failed on account of the blunt refusal of the respondent's father to send his daughter to the matrimonial home. No reason worth-mentioning has been assigned by the respondent for her leaving the matrimonial home in February, 2000, except making an unsubstantiated allegation that the appellant was persistently demanding dowry.

5.

From the facts that no Police complaint was ever given by the respondent and that her sole testimony was not lent corroboration by any other witness would prove without any cavil of doubt that the respondent herself has left the company of the appellant without any just and reasonable cause and her action clearly constitutes desertion. Therefore, the lower Court has committed a grievous error in arriving at the conclusion that the appellant failed to prove the allegation of desertion. 6.

The fact that the respondent has been living separately from the appellant for the last sixteen years is not in dispute. In Samar Ghosh

Vs. Jaya Ghosh1, the Supreme Court held that once the parties are separated and the separation has continued for a sufficient length of time and one of them has presented a petition for divorce, it can well be presumed that the marriage has broken down and that the Court, no doubt, would seriously make an endeavour to reconcile the parties; yet, if it is found that the breakdown is irreparable, then divorce should not be withheld. It has further held that the consequences of preservation in law of the unworkable marriage which has long ceased to be effective are bound to be a source of greater misery for the parties. The Supreme Court referred to and relied upon its earlier judgment in Kohli Vs. Neelu Kohli2, wherein it is held as under:

"We have been principally impressed by the consideration that once the marriage has broken down beyond, repair, it would be unrealistic for the law not to take notice of the fact, and it would be harmful to society and injurious to the interests of the parties. Where there has been a long period of continuous separation, it may fairly be surmised 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.

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.

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 for ever to a marriage that in fact has ceased to exist.

1 2007 (3) ALT 62 (SC) 2 (2006) 4 SCC 558

Some jurists have also expressed their apprehension for introduction of irretrievable breakdown of marriage as a ground for grant of the decree of divorce. In their opinion, such an amendment in the Act would put human ingenuity at a premium and throw wide open the doors to litigation, and will create more problems then are sought to be solved. The other majority view, which is shared by most jurists, acceding to the Law Commission Report, is that human life has a short span and situations causing misery cannot be allowed to continue indefinitely. A halt has to be called at some stage. Law cannot turn a blind eye to such situations, nor can it decline to give adequate response to the necessities arising there from.

When we carefully evaluate the judgment of the High Court and scrutinize its findings in the background of the facts and circumstances of this case, it becomes obvious that the approach adopted by the High court in deciding this matter is far from satisfactory."

7.

In the aforementioned facts and circumstances of the case and in view of the principles laid down by the Supreme Court in the decisions referred to supra, we are of the opinion that the lower Court has committed a serious error in dismissing the O.P. for divorce. 8.

Hence, the order, dated 19.07.2005, in H.M.O.P.No.36 of 2002 on the file of the Senior Civil Judge, Machilipatnam is set aside and H.M.O.P.No.36 of 2002 is decreed. The Civil Miscellaneous Appeal is, accordingly, allowed.

___________________________ C.V.NAGARJUNA REDDY, J ______________________ M.S.K.JAI SWAL, J 30th December, 2016 GHN