Divorce can be granted on the ground of irretrievable breakdown of marriage, as interpreted and supported by relevant case law.

1. The husband is the appellant. He filed a petition for divorce on the ground of desertion.

2. The case of the appellant was that the marriage took place on 5.7.1971 and within a few months from the date of marriage, the respondent left the matrimonial home without any justifiable cause, to her parents house and then she returned to the matrimonial home after request made by the appellant and thereafter in November 1972 she again left the matrimonial home without any reasonable and justifiable cause. A female child was born in February 1973 and the appellant and his parents were not permitted to see the child. The respondent also refused to come and live with the appellant. The respondent also filed O.S.No.364 of 1974 for maintenance and maintenance was ordered. Even for the daughter's marriage, he was not invited. As the respondent is living separately without reasonable and justifiable cause from 1972 onwards, the petition was filed for divorce.

3. The respondent denied the allegations made in the petition and stated that she was driven away from the house by the appellant and his parents and they demanded 50 sovereigns and even after the birth of the child, they did not come and take back the respondent and therefore, there is no desertion on her part.

4. The Trial Court held that the conduct of the respondent in living away from the appellant without any reasonable and justifiable cause will amount to mental cruelty and granted divorce.

5. The first appellate court reversed the finding and held that the respondent was prevented from living with the appellant by reason of cruelty meted out to her by the appellant and his parents and therefore, the finding of the Trial Court that the respondent was guilty of desertion and she has treated the appellant cruelly cannot be sustained and allowed the appeal.

6. Aggrieved by the same, this second appeal is filed.

7. At the time of admission, the following substantial questions of law were framed by this court:-

"1) Whether the lower appellate court is correct in holding that the appellant has treated the respondent with cruelty in the absence of any evidence to that effect.

2) Whether the lower appellate court is right in reversing the decree of divorce when admittedly, the parties are living separately since 1972 and the marriage has irretrievably broken."

8. Mr.K.S.Jeyaganeshan, learned counsel for the appellant submitted that, admittedly, the parties are not living together and the respondent is living separately from the year 1972 and the appellant was prevented from attending the marriage of his daughter and the appellant was also not informed about the marriage and no reasonable excuse was given for staying away from the husband and these facts would prove that the respondent treated the appellant with cruelty and she has wilfully deserted the appellant and in any event, the marriage has irretrievably broken and there is no purpose in keeping the marriage alive and hence, the appeal must be allowed.

9. It is further submitted by the learned counsel for the appellant that, admittedly, the parties are living separately from 1972 onwards and even in mediation also it was made clear that they are not ready to settle the matter and therefore, no useful purpose will be served and the marriage has been irretrievably broken down and therefore, divorce can be granted on the ground of irretrievable break down of the marriage. He also relied upon the decision in DURGA PRASANNA TRIPATHY v. ARUNDHATI TRIPATHY (2005(4) CTC 287) in support of his contention.

10. On the other hand, the learned counsel for the respondent submitted that even though the parties are living separately for the past thirty years, that cannot be a reason for dissolving the marriage and the marriage cannot be dissolved on the ground that the marriage has been irretrievably broken and the Honourable Supreme Court has also held that unless the statute is amended introducing a clause for divorce on the ground