The evidence must support the grounds for divorce, and the failure to seek restitution of conjugal rights despite the other party's willingness to reconcile may impact the validity of a divorce petition.

JUDGMENT :

G. Chandrasekharan, J.

(Prayer: This Civil Miscellaneous Appeal is filed under Section 19 of the Family Court Act against the judgment and decree dated 23.03.2016 passed in HMOP No.2940 of 2010 by the learned Principal Family Court Judge at Chennai.)

1. This Civil Miscellaneous Appeal is filed against the order of the learned Principal Family Court Judge, Chennai in HMOP No.2940 of 2010.

2. The respondent, as the petitioner, filed HMOP No.2940 of 2010 under Section 13(1)(ia)(ib) of the Hindu Marriage Act, 1955, for dissolution of the marriage held on 12.07.2000 between the respondent and appellant on the grounds of cruelty and desertion. A male child R.P.Rengarajan was born out of this wedlock. The appellant was a pampered child at her parental home and therefore, she behaved in an authoritative manner with the respondent and his relatives. She was not doing any household work including the cooking. She did not give any respect to respondent’s mother and abused her in filthy language. Inspite of arranging a separate kitchen for the appellant, she used to abuse the respondent’s mother and threatened to kill her and during 2005, she left the matrimonial home and stayed with her parents for nine months. Therefore, the respondent issued legal notice on 10.11.2005, in reply thereto, the appellant sent a response expressing apology for her acts, but she did not keep up her promise. The respondent starting cooking for himself alone, thus deserted the respondent from 30.05.2005. The respondent sent a legal notice dated 10.06.2005 and 11.06.2007 for restitution of conjugal rights, but the appellant did not come to live with him. Therefore, this petition was filed for divorce.

3. This case of the respondent is refuted by the appellant on the ground that it was the respondent and his parents, who insulted and abused the appellant and her family members. In fact, the appellant was doing all the household works including cooking. The respondent and his family members were torturing the appellant and they did not provide her food. Appellant was taking care of her son. Due to the violent behaviour by the respondent, their son was mentally affected. During September 2004, the respondent had severely beaten up the appellant and drove her from matrimonial home. She sent a reply to the respondent asking him to take her back to the matrimonial home as she was willing to join with the respondent. Accordingly, prayed for dismissal of the petition for divorce.

4. During the enquiry, respondent was examined as PW.1 and the appellant was examined as RW.1. Exs.P1 to P8 and Exs.R1 and R2 were marked. Considering the oral and documentary evidence, the learned Family Court Judge allowed the petition and granted divorce under Section 13(1)(ia)(ib) of the Hindu Marriage Act, 1955, by dissolving the marriage between the appellant and respondent. Against this order, this Civil Miscellaneous Appeal is filed.

5. The learned counsel for the appellant submitted that the order impugned was passed without properly considering the evidence. The findings reached by the learned Family Court Judge is against the evidence available in this case. The findings that the respondent had been living separately for more than 10 years is not a ground for granting divorce. The appellant was always ready and willing to live with the respondent. Though the respondent issued notice seeking restitution of conjugal rights, he had not filed a petition for restitution of conjugal rights, but filed a petition for divorce on false and unfounded grounds. The grounds of cruelty and desertion have not been proved by acceptable evidence. On the other hand, it is proved from the evidence of respondent that the respondent had alone caused cruelty against the appellant by physically assaulting and abusing her. Therefore, the learned counsel for the appellant prayed for setting aside the order of the learned Family Court Judge and dismissal of the divorce petition.

6. Per contra, the learned