IMPORTANT POINT
Irretrievable breakdown of marriage, characterized by prolonged separation and lack of cohabitation, can constitute cruelty under Section 13(1)(ia) of the Hindu Marriage Act, 1955, justifying the grant of a divorce.

JUDGMENT :

(M. Zothankhuma, J)

Heard Mr. S Sarma, learned counsel for the appellant as well as Mr. R Phukan, learned counsel for the respondent.

2. This matrimonial appeal has been preferred by the husband, who is aggrieved with the judgment and order dated 06.04.2019, passed by the learned Principal Judge, Family Court, Dhubri in FCTS(D) Case No. 119/2018, dismissing the divorce suit filed by the appellant.

3. The case projected by the appellant is that the marriage between the appellant, who is a Librarian in Dhubri Law College and the respondent, who is Junior Assistant Sub-Divisional Librarian (Government servant), was solemnized on 01.05.2014 by way of an arranged marriage. Prior to the marriage between the appellant and the respondent, the parents of the appellant had met the respondent and her parents. The appellant having agreed to the marriage, the marriage was solemnized on 01.05.2014. The grievance of the appellant is that after solemnization of the marriage on 01.05.2014, the parties started their conjugal life from 02.05.2014 till 07.05.2014. On 08.05.2014, the appellant and the respondent went to her parental home for the athmongla function. After the athmongla function, the respondent refused to come back to the matrimonial home and live with the appellant.

4. The further case of the appellant is that the arranged marriage between the appellant and the respondent had been made by suppressing the real age of the respondent, who was actually 7 years older than the appellant. However, prior to the marriage, the respondent had informed the appellant that she was 32 years old, while the appellant was 34 years of age at the time of their marriage. The appellant thereafter found out the real age of the respondent through an RTI dated 22.09.2015, wherein the respondent’s age was found to be 7 years older than the appellant. The appellant’s further case is that due to the respondent refusing to come back with the husband to the matrimonial home, after the athmongla ceremony and also in view of the fact that the respondent had suppressed her real age prior to her marriage with the respondent, the same amounted to cruelty. The appellant filed TS(D) No. 80/2015 before the Court of the District Judge, Dhubri, wherein he prayed for grant of a divorce decree under Section 13 of the Hindu Marriage Act, 1955. The same was transferred to the court of the learned Principal Judge, Family Court, Dhubri wherein it was renumbered and registered as FCTS(D) Case No. 119/2018.

5. The respondent submitted her written statement in FCTS(D) Case No. 119/2018 opposing the prayer of the appellant for granting a divorce decree.

6. After the pleadings were complete, the learned Trial Court framed 5 (five) issues and one additional issue, which are as follows:-

“1. Whether there is cause of action in the suit?

2. Whether the suit is maintainable under section 13 of Hindu Marriage Act?

3. (a) Whether the respondent conceal her real age?

(b) Whether the concealment of real age materially interface with the material life of the petitioner and cause irreparable lose to him..

(c) Whether such concealment of real age amounts to cruelty against the petitioner.

4. Whether the respondent has lost the child bearing capacity due to over age.

5. Whether the fertility of respondent has totally declined due to her over age

Additional Issue :-

1. To what relief, reliefs, if any, the parties are entitled to?”

7. The learned Trial Court decided issue Nos. 1 and 2 in favour of the appellant. Issue Nos. 4 & 5 were decided in the favour of the respondent.

8. Issue No. 3, which was divided into three sub issues was decided against the appellant and consequently, the additional issue was also decided against the appellant, vide the impugned judgment dated 06.04.2019, passed in FCTS(D) Case No. 119/2018.

9. Being aggrieved with the impugned judgment dated 06.04.2019, passed by the learned Family Court, the present appeal has been filed by the appellant/husband on two counts. Firstly, th