Roy Thomas vs Molikutty Francis

Krishna Kumar, J.

A petition filed by the husband under Sections 25(i) and 27(b) and (d) of the Special Marriage Act, seeking a declaration of nullity of the marriage or, in the alternative, dissolution of the marriage, was dismissed by the Family Court, Kottayam. The petitioner assails the said judgment in this appeal.

The parties shall hereinafter be referred to as they were arrayed in the original petition. The petitioner married the respondent on 09.09.2008 in accordance with the provisions of the Special Marriage Act. It was the second marriage of both parties. At the time of the marriage, the respondent was working abroad and, therefore, the petitioner accompanied her to New Zealand. The petitioner alleges that, right from the inception of the marriage, the respondent treated him with cruelty. According to him, she always behaved like a maniac and relentlessly humiliated him on several occasions. It is alleged that the petitioner was compelled to spend many nights outside the home and was even subjected to physical torture. According to the petitioner, the marriage was not consummated owing to the non-cooperation of the respondent. Eventually, the petitioner returned to Kerala on 03.05.2010, and since then, the parties have been living separately. The petitioner, therefore, seeks the reliefs stated above.

The respondent refuted the aforesaid allegations and contended that the marriage had been consummated and that she had never treated the petitioner with cruelty. According to the respondent, the petitioner never showed any love or affection towards her, instead treated her as a cash cow. The respondent further alleged that the petitioner returned to Kerala to lead a lazy life by misutilising her funds. Since, according to her, the marital relationship had not irretrievably broken down, she attempted to restore the relationship by sending a lawyer notice dated 25.04.2014, calling upon the petitioner to resume cohabitation. However, the petitioner did not cooperate, it is contended.

The evidence of the petitioner consists of his oral testimony as PW1 and Exts.A1 and A2. On the side of the respondent, she was examined as RW1 and Ext.B1 was marked. The trial court, by the impugned judgment, while denying the reliefs sought, concluded that the petitioner failed to prove that the marriage had not been consummated and that he had been ill-treated by the respondent.

We have heard the learned counsel appearing on either side.

During the course of hearing, the learned counsel appearing for the petitioner confined his submissions to the ground of cruelty alone and, accordingly, did not press the claim for a decree of divorce on the ground of non-consummation of marriage.

The point for consideration in this appeal is whether the petitioner is entitled to a decree of divorce on the ground of cruelty.

The petitioner has narrated several instances of cruelty in his chief affidavit. When examined as RW1, the respondent denied all those allegations and stated that their relationship had always been cordial and that she had always been ready to resume cohabitation.

According to the petitioner, he was severely ill-treated by the respondent while they were living together in New Zealand. The respondent had initially been working in New Zealand and thereafter in Australia as a nurse. As noticed earlier, this was the second marriage of both parties.

On an analysis of the oral evidence of both parties, it is evident that they have been living separately since 03.05.2010. This aspect is not in dispute. Since then, more than 16 years have elapsed. The parties lived together for only about a year. Though it is contended that the respondent issued a notice in 2014 calling upon the petitioner to resume the marital relationship, she admittedly did not initiate any proceedings for restitution of conjugal rights. The original petition for divorce was filed in the year 2016, and ten years have elapsed thereafter as well. Pertinently, the respondent has not satisfactorily explained the actual circumstances in which the petitioner left her company and returned to Kerala, though she contended that he came back to Kerala because he was too lazy to work there. But for sending a notice seeking restitution, no proceedings were initiated for the same. Anyhow, we are convinced that at this distance of time there is not even a remote chance of reunion.

It is well settled that prolonged separation, in the circumstances of a particular case, may itself amount to cruelty to the spouse. [See: Naveen Kohli v. Neelu Kohli (2006 (4) SCC 558), Samar Ghosh v. Jaya Ghosh (2007 (4) SCC 511), K. Srinivas Rao v. D.A. Deepa (2013 (5) SCC 226), N.P. Leelamma v. M.A. Moni (2017 (3) KLJ 311), R. Srinivas Kumar v. R. Shametha (2019 (9) SCC 409), Shri Rakesh Raman v. Smt. Kavita (AIR 2023 SC 2144)]. During the pendency of this appeal, the parties were referred to the Family Counselling Centre, High Court of Kerala, on more than one occasion. However, they could not arrive at an amicable settlement. In view of all the aforesaid circumstances, we are constrained to conclude that the petitioner is entitled to a decree of divorce.

In the result, the appeal is allowed. The marriage between the petitioner and the respondent is dissolved by a decree of divorce.