Noting that “marriage is totally dead” and that there would be nothing to be gained by trying to keep the parties forever bound to a marriage that has in effect ceased to exist, the Karnataka High Court recently granted a divorce to a couple who had lived apart for 21 years old.
A dividing bench of Justice B Veerapa and Justice KS Hemalekha noted,
“Once the parties have separated and the separation has continued for a sufficient period of more than 21 years and one of them has filed a petition for divorce, the marriage can well be presumed to have been broken.”
He added, “The Court, no doubt, should make a serious effort to reconcile the parties; however, if the rupture is found to be irreparable, the divorce should not be refused. The consequences of preservation in marriage law inapplicable which has long since ceased to be effective are sure to be a source of greater misery for the parties.”
Background of the case:
The 56-year-old couple married in 1999. The husband claimed that in the same year the woman retired from her business and moved to her parents. Even after several requests made by him and other family members, she did not return home. Therefore, in 2003, he filed a petition under Section 13(1)(1b) of the Hindu Marriage Act, seeking a divorce on grounds of abandonment.
The family court issued an ex parte order granting the divorce in 2004 and following which the husband married a second time and had two children. The wife challenged the same thing before the high court which granted the request for divorce which had just been returned to the family court. In 2012, the husband’s petition for divorce was denied. This order has just been challenged before the High Court by the husband.
The lawyer for the husband asserted that the judgment and the decree issued by the court of first instance were erroneous and contrary to the elements of the file. The appellant married a second time after the ex parte decree and there is no possibility of reconciling the marriage. It is irretrievably severed and they reside separately for a period of 21 years.
The wife objected to the plea:
It was said that the appellant insisted that she bring an extra dowry from her parents and that she was unwilling to give an extra dowry since at the time of her marriage gold ornaments and money had already been given to the appellant and that all wedding expenses were covered. by his parents.
The appellant, who intended to marry second, forced her to consent to the divorce and also sent many people to her house to force her to consent. Since she and her parents were not in agreement to consent to the divorce, the appellant developed ill will towards her and began to trouble her. The appellant was never provided with food or necessities and was starved to death.
Considering that several attempts at reconciliation had failed, the court declared, “In view of the fact that the parties are 56 years old and have resided separately for more than 21 years, although this Court has attempted to persuade the parties of a settlement, settlement has not been successful.”
He added, “Appellant/husband has already married for the second time after an ex parte judgment of divorce granted by the family court and has two children outside of said marriage. Respondent/wife has not filed any petition for restitution marital patrimony.There is no possibility of reconciliation.Therefore, we are of the opinion that there is no possibility of settlement between the parties and that there is no chance that the parties will live together and the marriage has broken down irretrievably. case to grant a decree of divorce.”
Considering that the wife filed a civil suit to prevent the husband from a second marriage until she is alive, the court observed that the respondent/wife does not want a divorce or permanent alimony.
From the analysis and evaluation of all the documents in the file, it is clear that the respondent/wife has decided to live in agony and to make life miserable and hellish, not only for herself- itself but also for the appellant. This kind of categorical and callous attitude, given the facts and circumstances of the case, leaves no doubt in our minds that the respondent is determined to treat the appellant with mental cruelty.
He observed, “It is quite clear that the marriage between the parties has broken down irretrievably and that there is no chance of reuniting them. Without a doubt, it is the obligation of the Court and all parties concerned that the marital status should, as far as possible, for as long as possible and whenever possible, be maintained, but when the marriage is totally dead, then there is nothing to be gained by trying to maintain the parties bound forever to a marriage which, in fact, has ceased to exist.”
Interfere with the family court order, the bench said, “The course which has been adopted by the family court would encourage continued bickering, perpetual bitterness and could lead to immorality. Therefore, we are of the considered opinion that it is proper to grant a judgment of divorced.”
Accordingly, he overturned the trial court’s order and granted the couple a divorce. He ordered the husband to pay permanent alimony of 30 lakhs to the respondent/wife, within four months.
Case title: K Mallikarjuna vs HA Sudha Mallikarjuna
Case no: Miscellaneous First call 4314/2012.
Order date: November 16, 2021.
Quote: 2022 LiveLaw (Kar) 15
Appearance: Lawyer B Bopanna for the petitioner; Lawyer C Sadashiva for the Respondent