BASANT, J

1. Does the concept of matrimonial cruelty vary in accordance with the religious persuasions of individuals? Is a spouse bound to suffer greater amount of matrimonial cruelty because the spouses belong to a religion which considered marriage as indissoluble? Can the secular constitutional republic recognize and accept the existence of different varieties of matrimonial cruelty -Hindu cruelty, Christian cruelty, Muslim cruelty and secular cruelty? Should not matrimonial cruelty entitling a spouse for divorce yield to a uniform conceptualization notwithstanding the different semantics employed in different pieces of matrimonial legislations applicable to different religions? Should not the courts take inspiration from Art.44 of the Constitution and attempt to understand the concept of matrimonial cruelty in a uniform manner to ensure that the right to life under Art.21 is made effective and meaningful under the matrimonial roof and to liberate spouses from a marital life in perpetual fear of contumacious cruelty? These questions arise before us in these appeals.

2. These appeals are directed against a common judgment under which three original petitions were disposed of by the Family Court, Ernakulam.

3. The parties are spouses. Their marriage took place in accordance with the Christian religious rites on 20.1.2001. The marriage is admitted. After marriage, the spouses set up residence at Mumbai. They resided together till 14.5.2004. On that day, the respondent/wife returned from the matrimonial home and took up residence along with her sister at Bangalore. She issued Ext.A1 notice demanding divorce and return of properties on 14.12.2004. The same was served on the appellant. There was no response to Ext.A1. Thereafter, the appellant filed a petition for restitution of conjugal rights before the Family Court, Bandra on 30.12.2004. Later, the same was transferred to Family Court, Ernakulam as per order of the Supreme Court and the same was renumbered as O.P.399 of 2006. The wife filed O.P.69 of 2005 before Family Court, Ernakulam claiming divorce on the ground of cruelty and non consummation of marriage. Wife had further filed O.P.68 of 2005 claiming return of gold ornaments, money etc. The husband/appellant herein in O.P.68 of 2005 had staked a counter claim for return of ornaments, money etc allegedly due to him. All the three original petitions along with the counter claim were taken up for trial together by the court below.

4. The wife examined herself as PW1, her mother as PW2 and her brother in law as PW3. Exts.A1 to A9 were marked on her side. The husband examined himself as RW1 and two friends of his as Rws 2 and 3. Exts.B1 to B10 were marked.

5. The learned Judge of the Family Court, by the impugned common order, came to the conclusion that the wife was entitled for a decree for divorce on the ground of cruelty under Section 10(1)(x) of the Divorce Act. The claim of the wife for divorce under Section 10(1)(vii) on the ground of refusal to consummate the marriage was rejected by the Family Court. O.P.69 of 2005 was thus allowed. Husband's prayer for restitution of conjugal rights in O.P.399 of 2006 was turned down by Family Court. The claim for return of money in O.P.68 of 2005 was allowed in part. The counter claim of the husband was rejected.

6. Both parties appear to have accepted the decree/order in O.P.68 of 2005 and the counter claim. No appeal is seen preferred against the said part of the impugned order by either spouse. The appellant/husband has preferred these appeals to assail the decree for divorce on the ground of cruelty under Section 10(1)(x) and the rejection of his claim for a decree for restitution of conjugal rights under Section 32 of the Divorce Act.

7. We have heard the learned counsel for the appellant and the respondent. The learned counsel for the appellant assails the impugned order on the following grounds.

i) The court below has significantly omitted to record a specific fin