The judgment emphasizes the need for substantial evidence of cruelty and desertion in divorce cases, and the importance of considering the willingness of parties to reconcile.

1. Both the Civil Miscellaneous Second Appeals are filed by the petitioner/wife in H.M.C.P. Nos.47 of 2000 and 2 of 2005 before the Sub-Judge, Sankari, Salem District against the common order dated 20.9.2007 passed in C.M.A. Nos.13 of 2005 and 39 of 2006 by the I Additional District Judge, Salem reversing the judgment and decree dated 24. 2005 passed by the Subordinate Judge, Sankari in H.M.O.P. No.47 of 2000 and H.M.O.P No.2 of 2005.

2. The facts which are necessary to dispose of both the Appeals are as under:

The appellant in both the Appeals (hereinafter referred to as wife) filed H.M.O.P. No.47 of 2000 against the respondent in both the Appeals (hereinafter referred to as husband) under Section 13(1)(ia)(ib) of the Hindu Marriage Act, 1955.

3. The case of the wife in H.M.O.P. No.47 of 2000 is that the marriage between her husband and herself took place on 18. 1994 and a child by name Sahana was born to them during the course of their wedlock. While so, the husband was afflicted with paralytic attack and therefore, he was taking treatment in the hospital for his disease. The wife was attending to him in the hospital as well as in residence. At that time, the husband and the parent of her husband committed cruelty on her and therefore, she left the matrimonial house along with her daughter. When her relatives approached the husband and requested him to take her back and resume the matrimonial life, the husband refused to do. On her part, on 19. 2000, she approached her husband and asked him to take her back and to resume the married life. That attempt was also in vain, due to the refusal of her husband. Hence, she filed H.M.O.P. No.47 of 2000 praying for a decree of divorce.

4. The husband filed a counter statement wherein it is stated by him that both of them had a very good life after the marriage and only after his health conditions deteriorated, he has to spend enormously for his medical treatment, which resulted in selling his house as well as the Borewell lorries owned by him. Only at the instance of her parents, the wife refused to join and he was always ready and willing to resume the married life. After treatment, now, he is able to speak and walk and as such, he very much wants to join his wife and daughter. He also referred to the H.M.O.P. No.2 of 2005 filed by him under Section 9 of the Hindu Marriage Act, for restitution of conjugal rights. The husband has also stated in his counter that now, the wife has become an I.A.S. Officer, and it is her duty to take care of him and to stand by him at the time of his sufferings. Hence, he prayed for the dismissal of the Divorce Petition.

5. In H.M.O.P. No.2 of 2005, it is stated by the husband that the wife has filed Divorce Petition at the instance of her parents and there are no merits in the Petition filed by the wife for divorce and to dismiss thee Restitution Petition filed by the husband. Aggrieved by the same, husband filed C.M.A. No.13 of 2005 and C.M.A. No.39 of 2006 against the common judgment of the Trial Court. The Lower Appellate Court on 20.9.2007 allowed both the Appeals by setting aside the orders of the Trial Court and aggrieved by the same, the wife has filed the above Appeals under Section 100 of C.P.C.

6. The above Petitions were admitted on 112. 2007 by this Court and at the time of admission, the following substantial questions of law were considered by this Court.

1. Whether in law the Lower Appellate Court was right in reversing the well considered judgment of the Trial Court and directing restitution of conjugal rights while declining to grant a decree for divorce as sought by the appellant, when from the facts and the evidence it is clear that the marriage between the parties had broken down irretrievably?

2. Whether in law the Lower Appellate Court was not wrong in failing to see that the Appellant had to leave due to the respondents fault and that his acts of cruelty justify the grant of divorce vide Samar Ghosh v. Jaya Ghosh, 2007 (3