Point of Law: Matrimonial dispute – Cruelty - once-too-frequent apologies do not reflect genuine contrition but were merely impromptu device to tide over crisis temporarily – Condonation means forgiveness of the matrimonial offence and the restoration of offending spouse to the same position as he or she occupied before the offence was committed. – To constitute condonation there must be, therefore, two things : forgiveness and restoration

JUDGMENT :

S. Kannammal, J.

(Prayer: Civil Miscellaneous Appeal filed under Section 39 of Special Marriage Act, Hindu Marriage Act, to set aside the fair and decreetal order, dated 18.04.2015 made in S.M.O.P.No.194 of 2011 on the file of the Principal District Judge, Kanyakumari at Nagercoil.)

1. This Civil Miscellaneous Appeal is preferred against the judgment and decree passed in S.M.O.P. No.194 of 2011, dated 18.04.2015 by the Principal District Judge, Kanyakumari at Nagercoil.

2. The case of the appellant/husband is that the marriage between him and the respondent/wife was solemnized on 02.01.1991 at Sri Ram Marriage Hall, Thiruvattar and was registered at Thiruvattar Sub Registrar Office. Right after the marriage, they lived at Vettoornimadam, Nagercoil and the marital life has gone smoothly until the respondent failed to conceive and was not able to deliver a child due to her impotency. Despite the appellant taking the respondent to undergo treatments in various hospitals, the impotency of the respondent was not cured. Even though the appellant was cordial towards the respondent, the respondent alleged vague allegation against the appellant and used unparliamentary words against him in the presence of strangers. The respondent went to the extent of threatening to kill the appellant by poisoning his food, if the appellant whispered about the impotency. The cruel acts of the respondent were so horrible to the appellant to run the family life with her. The respondent, also filed frequent police complaints against the appellant amounting to mental cruelty for him. The respondent was appointed as a teacher at Salvation Army High School, Valliyoor, which empowered the respondent to take decisions individually and eventually caused miserable situation in the family life. The appellant was unable to tolerate cruel acts of the respondent furthermore which led to filing of the divorce petition.

3. The respondent/wife denied the allegations and contended that the appellant and the respondent had normal sexual relationship in a very pleased and cordial manner during their twenty years of marriage. The respondent conceived three times, however it was spontaneously aborted due to the weakness of her uterus. On 04.06.2001, the respondent was admitted in Kuzhithurai Government Hospital for two weeks pregnancy treatment but unfortunately that was also spontaneously aborted. The appellant had taken the respondent to various hospitals for treatment and the allegation that the impotency was not cured is utter false. The respondent also never used unparliamentary and filthy words against the appellant in the presence of strangers and she never threatened to kill the appellant by poisoning his food. The appellant and the respondent are residing in the same house. The appellant had illicit relationship with a lady despite her repeated advise, due to which there is misunderstanding between the appellant and the respondent. There is no cause of action to file the petition. Hence, the respondent prayed for dismissal of the petition.

4. In the trial Court, on the side of the appellant, the appellant was examined as PW1 and one Paulraj was examined as PW2 and the Marriage Invitation, Photo, Copy of suit notice sent by the appellant to the respondent, Acknowledgment Card signed by the respondent, Registered marriage deed entered into between the appellant and respondent, Acceptance receipt for complaint, Compromise deed entered into between the appellant and respondent were marked as Ex.P1 to Ex.P7 respectively. On the side of the respondent, the respondent was examined as RW1 and one Major J.John F.Kennedy was examined as RW2 and the Fitness Certificate issued by the Medical Board to the respondent, Temporary Appointment order and Sunday Class Register for the year 2009 were marked as Ex.R1 to Ex.R3.

5. The learned District Judge, Kanyakumari Division at Nagercoil, after perusing the materials available on record, both oral and documentary, has dismissed