'The Marriage Is Totally Dead': Karnataka High Court Grants Divorce To Couple Living Separately Since 21 Yrs

A division bench of Justice B Veerapa and Justice K S Hemalekha said,

"Once the parties have separated and the separation has continued for a sufficient length of time of more than 21 years and one of them presented a petition for divorce, it can well be presumed that the marriage has broken down."

It added, "The Court, no doubt, should seriously make an endeavour to reconcile the parties; yet, if it is found that the breakdown is irreparable, then divorce should not be withheld. 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."

Case Background:

The couple who is 56-years old had married in the year 1999. The husband claimed that the same year the wife withdrew herself from his company and went to her parent's home. Even after several requests made by him and other family members she has not returned home. Therefore in the year 2003 he filed a petition under section 13 (1) (1b) of the Hindu Marriage Act, seeking divorce on the ground of desertion.

The family court passed an ex-parte order granting divorce in 2004 and following which the husband married the second time and has two children. The wife challenged the same before the high court which allowed the petition for divorce came to be restored before the family court. In 2012, the petition filed by the husband seeking divorce was dismissed. This order came to be challenged before the high court by the husband.

Husband's Submissions:

The husband's counsel claimed that the judgement and decree passed by the trial court is erroneous and contrary to the material on record. Appellant has got married a second time after the ex-parte decree and there is no possibility of the reconciliation of the marriage. It is irretrievably broken and they are residing separately for a period of 21-years.

Wife opposed the plea:

It was said the appellant was insisting on her to bring further dowry from her parents and she was not prepared to give further dowry since at the time of her marriage, golden ornaments and cash were already given to the appellant and all the marriage expenses were met by her parents.

The appellant with an intention to have a second marriage was forcing her to give consent for divorce and had also sent many people to her house to pressurize her to give consent. Since she and her parents did not agree to give consent for divorce, the appellant developed ill-will towards her and started to trouble her. The appellant never provided food and basic necessities of life and she was made to starve.

Court findings:

Considering that several reconciliation attempts had failed, the court said, "Taking into consideration the fact that the parties are aged 56 years and are residing separately for more than 21 years, though this Court tried to persuade the parties for settlement, the same could not be fructified."

It added, "The appellant/ husband has already got married for the second time after an ex-parte decree of divorce passed by the Family Court and is having two children out of the said wedlock. The respondent/wife has not filed any petition for restitution of conjugal rights. There is no possibility of reconciliation. Therefore, we are of the considered view that there is no scope for settlement between the parties and there is no chance of parties living together and the marriage has irretrievably broken down. Therefore, it is a fit case to grant a decree of divorce."

Considering that the wife has filed civil proceedings to restrain the husband from a second marriage until she is alive, the court observed that the respondent/wife neither wants divorce nor permanent alimony.

From the analysis and evaluation of entire material on record, it is clear that the respondent/wife has resolved to live in agony and make life miserable and hell, not only for herself but also to the appellant as well. This kind of adamant and callous attitude, in the facts and circumstances of the case leaves no doubt in our mind that the respondent is bent upon to treat the appellant with mental cruelty.

It observed, "It is abundantly clear that the marriage between the parties has broken down irretrievably and there is no chance of their reunion. Undoubtedly, it is the obligation on 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 trying to keep the parties tied forever to a marriage which in fact has ceased to exist."

Interfering with the family court order, the bench said, "The course which has been adopted by the Family Court would encourage continuous bickering, perpetual bitterness and may lead to immorality. Therefore, we are of the considered opinion that it is a fit case to grant a decree of divorce."

Accordingly, it set aside the trial court order and granted divorce to the couple. It directed the husband to pay permanent alimony 30 lakhs to the respondent/wife, within a period of four months.

Case Title: K Mallikarjuna v. H A Sudha Mallikarjuna

Case No: Miscellaneous First Appeal 4314/2012.

Date of Order: November 16, 2021.

Citation: 2022 LiveLaw (Kar) 15