The subjective determination of cruelty, consideration of irretrievable breakdown of marriage, and the practical and pragmatic approach required in matrimonial issues.

JUDGMENT :

S.M. SUBRAMANIAM, J.

Prayer: Civil Miscellaneous Second Appeal is preferred under Section 13(1)(1A) of the Hindu Marriage Act 25 of 1955 r/w Section 100 of the Code of Civil Procedure against the judgment and decree dated 14.02.2006 made in CMA No. 7 of 2003 on the file of the Principal District Court, Namakkal, reversing the judgment and decree dated 10.08.2001 made in HMOP No. 69 of 1995 on the file of the Sub-Court, Sankari.

1. The judgment and decree dated 14.02.2006 passed in CMA No. 7 of 2003 on the file of the Principal District Court, Namakkal, reversing the judgment and decree dated 10.08.2001 passed in HMOP No. 69 of 1995 on the file of the Sub-Court, Sankari, are under challenge in the present Civil Miscellaneous Second Appeal.

2. The facts in nutshell to be considered for the purpose of deciding the present Civil Miscellaneous Second Appeal are that the marriage between the appellant and the respondent was solemnized on 12.09.1993 in Arulmighu Ayyappasamy Prayer Hall, Komarapalayam as per Hindu Rights and Customs. Unfortunately, the spouses left the matrimonial home on account of indifferences between them on 24.01.1994. Admittedly, from 24.01.1994 onwards, both the appellant and the respondent have lived separately for the past 26 years.

3. On 15.07.1994, a girl child was born from and out of the wedlock between the spouses. In view of the fact that the appellant and the respondent left the matrimonial home and were living separately, a legal notice was issued by the appellant on 02.08.1995 and a reply notice was sent by the respondent on 11.08.1995. Subsequently, the appellant-husband filed HMOP No. 69 of 1995 on 20.09.1995 before the Sub-Court, Sankari for divorce under Section 13(1)(ia) of the Hindu Marriage Act, 1955 on the ground of cruelty.

4. The Sub-Court, Sankari granted divorce on 10.08.2001 on the following grounds:-

(i) Respondent had refused for physical relationship even on the nuptial date on the reason of aversion.

(ii) Continuous refusal of respondent to perform her marital obligation towards her husband.

(iii) Respondent had suppressed the factum of fracture of pelvic bone and the medical treatment given to her.

(iv) Attempted to commit suicide on two occasions i.e. 08.12.1993 and 24.01.1994.

(v) Skin disease suffered by respondent was not disclosed.

(vi) False criminal complaint was given against the husband.

(vii) Respondent left the matrimonial home without any justifiable cause and failed to take any steps for reunion.

5. Challenging the said order of resolution of marriage passed by the Sub-Court, Sankari, the respondent-wife filed CMA No. 7 of 2003 and the said Civil Miscellaneous Appeal was allowed by the learned Principal District Judge on the following grounds:-

(i) Mild skin eruptions and cured after treatment.

(ii) Husband did not take steps for reunion.

(iii) Suicide attempt has not been proved. Wife was suffering from pregnancy related issues and took tablets.

(iv) PW-2 is an employee of the appellant and his evidence cannot be believed.

(v) Father of the husband was not examined. Hence, it is fatal.

(vi) No medical test was conducted to find out pelvic bone fracture.

(vii) Respondent/wife gave birth a child, therefore, they had physical relationship.

(viii) Police complaint was given only to prevent the appellant from getting second marriage.

6. The said judgment and decree of the Principal District Judge is now under challenge in the present Civil Miscellaneous Second Appeal.

7. The facts are not disputed between the parties. The questions of law raised by the appellant in the present Civil Miscellaneous Second Appeal are as follows:-

(a) Whether the attempt to commit suicide, sexual non-cooperation, incurable skin disease, quarrel in the first night, suppression of fracture in the pelvic bone, giving false police complaint, failure to do matrimonial obligation, disrespect shown, frustration etc., would amounts “Cruelty” under Section 13(1)(ia) of the Hindu Marriage Act, 1955, if so whether the