The main legal point established in the judgment is that when a marriage is irretrievably broken down and the parties have been living separately for an extended period, it is just and necessary to grant a decree of divorce, as compelling both parties to live together would serve no purpose and would be a greater source of misery for the parties.

This Civil Miscellaneous Second Appeal is filed against the judgment and decree of the learned Additional District-cum-Sessions Judge/Fast Track Court No. II, Thoothukudi in C.M.A. No. 47 of 2005 dated 14.02.2006 confirming the judgment decree of the learned Subordinate Judge, Thoothukudi in H.M.O.P. No. 60 of 2002, dated 09.01.2004. The husband who had filed the H.M.O.P. for divorce is the appellant before this Court.

2. Petition was filed by the appellant for divorce under Section 13(i)(b) of Hindu Marriage Act 1955. The marriage between the appellant and the respondent took place on 09.04.2000 at Thoothukudi according to the customs and rites prevailing in their community. At the time of marriage, the respondent/wife was working as Assistant in Tirunelveli Collector Office and even in the first night itself, the respondent insisted the petitioner to settle at Palayamkottai at the mercy of her parents. The petitioner refused to accept her demand as such the respondent picked up quarrel and the marriage was not at all consummated. Within a week after the marriage, the respondent joined duty at Tirunelveli and stayed with her parents. During weekends, she used to visit the petitioner but continued her demand to stay with her parents. After 5 + months from marriage, the petitioner got a job at Coimbatore in “Bimetal Bearings” as Deputy Sales Manager and as such he decided to shift his residence to Coimbatore, but the respondent refused to accompany him in spite of the appellant arranged a rental house at Coimbatore and it was remained unoccupied for more than 5 months as the respondent refused to reside there. The respondent has no intention to live with the petitioner and the marriage was irretrievably broken and emotionally dead and hence the petitioner filed the petition for divorce on the ground that the marriage is not consummated and on the ground of willful desertion, causing mental cruelty.

3. In the counter filed by the respondent by denying the various allegations in the petition contended that she had given a Police complaint on 21.05.2002 at All Women Police Station, Thoothukudi for dowry harassment. Further she contended that on 07.02.2001 when the petitioner’s brother’s marriage was took place, she had attended the marriage and as she refused to give her jewelleries to the petitioner, when he has demanded the same for discharging his debts he got anger and filed the petition. Further pursuant to the police complaint, the petitioner brought the respondent to Coimbatore and lived for 6 days and thereafter sent back to Palayamkottai. Only to escape from the police enquiry, the petition came to be filed and she was ready to live with the petitioner. Further it has been reiterated in the counter that till 24.06.2002 the husband and wife relationship was existing between the petitioner and the respondent.

4. On consideration of the oral and documentary evidences, the trial Court held that though there were misunderstanding between the husband and wife, and the wife sought apologies to the husband under EX.A1 letter, regretting her mistake and as such those misunderstandings are only the usual wear and tear of marital relationship and which are all not sufficient enough to grant a decree for divorce. Challenging the said judgment and decree of trial Court, the petitioner preferred an appeal and the appellate Court also confirmed the views of the trial Court and dismissed the appeal.

5. The following substantial questions of law have been framed for consideration at the time of admission of the above appeal :

A. When the marriage has been irretrievably broken, is the learned District Judge correct in dismissing the petition filed by the appellant/husband for divorce?

B. When the constant nagging amounting to cruelty is a ground for divorce, is the learned District Judge is correct in dismissing the petition for divorce?

C. When the respondent, herself was not willing to join the husband and deserted the matrimonial home,