Preservation Of Unworkable Marriage Causes Great Misery, Marital Bond Should Be Severed On Irretrievable Breakdown : Kerala High Court

The Kerala High Court recently, while dismissing a Matrimonial Appeal, observed that when a marriage has broken down beyond repair, the law should take notice of the fact as refusing to serve the legal tie of such marriages would be injurious to the interest of the parties as well as the society.Division Bench Consisting of Justice Anil K Narendran and Justice C S Sudha observed that nothing is gained by trying to keep the parties tied for ever to a marriage that in fact has ceased to exist. The marriage becomes a fiction, though supported by a legal tie. By refusing to sever that tie, the law in such cases do 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.The marriage between the petitioner and the respondent was solemnized in January 209 and the petition for dissolution of marriage is filed within 10 months from the marriage. A decree of dissolution of marriage was granted by the Lower Court under section 10(vii) of the Indian Divorce Act i.e., non-consummation of marriage. Aggrieved by this decree of dissolution of marriage granted under section 10(vii), the Matrimonial Appeal was filed by the husband. In the appeal memorandum, it was alleged that the below on an incorrect appreciation of the facts, evidence and law, has erroneously concluded that the marriage has not been consummated and so granted the petitioner/wife a decree of dissolution under Section 10(vii) of the Act.The Counsel appearing for the Respondent/Husband, Advocates Thushara James and Amal Darshan, contended that the point framed itself is incorrect, because, unless the petitioner pleads and proves willful abstinence/refusal by the respondent to consummate the marriage, she cannot succeed. However, the court below never went into the said aspect. Further, it was submitted that in the petition originally filed, the petitioner never had a case of non-consummation of marriage. It was also pointed out that there are no sufficient pleadings to establish the grounds under section 10(vii) of the Act. However, it was submitted by the Counsel appearing for the Petitioner, Advocate K.P. Sreeja, that the omission of the incorporation of the ground under Section 10(vii) in the petition initially filed was an inadvertent mistake on the part of the council. Further, the counsel contended that necessary pleadings have been brought in by way of the amendment carried out, which amended pleadings contain the necessary ingredients to make out a case under Section 10(vii) of the Act. The Petitioner/Wife in the appeal filed by the Respondent/Husband also challenged the findings of the lower court rejecting the ground of cruelty raised under Section 10(x) of the Act. The Counsel appearing for the Petitioner submitted that Order XLI Rule 24 and Rule 33 give ample power to this Court to "resettle the issues and determine the case for meeting the ends of justice" and the Court answered in affirmative. In the present case, the marriage between the parties was solemnized in January 2009 and the petition for dissolution of marriage is filed within 10 months from the marriage. Almost 14 years have elapsed since the filing of the present petition. The couple still continues to be separated and is hotly contesting the matter. The attempts of the Court to reconcile the parties by sending them to mediation also. The Court observed that the matrimonial bond between the parties seems to be beyond repair and the marriage between the parties is only in name. Since the marriage has been wrecked beyond the hope of salvage, public interest and interest of all concerned lies in the recognition of the fact, the Court opined that to keep the sham is obviously conducive to immorality and potentially more prejudicial to the public interest than a dissolution of the marriage bond.The Court observed that even though the irretrievable breakdown of marriage is not a ground for dissolution of marriage, once the parties have 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.Furthermore, the Court observed that the consequence of preservation in the law of the unworkable marriage which has long ceased to be effective is bound to be a source of greater misery for the parties. Relying heavily on the Apex Court decision in the case of Naveen Kohli v. Neelu Kohli, the Court observed that it is the obligation of the court and all concerned that the marriage status should, as far as possible, as long as possible and whenever possible, be maintained, but when the marriage is totally dead, in that event, nothing is gained by...

Preservation Of Unworkable Marriage Causes Great Misery, Marital Bond Should Be Severed On Irretrievable Breakdown : Kerala High Court

Athira Prasad

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