The main legal point established in the judgment is that a long period of continuous separation can amount to mental cruelty, justifying the grant of divorce under Section 13(1)(a) of the Hindu Marriage Act.

JUDGMENT

(Prayer: This Civil Miscellaneous Appeal is filed under Section 19 of the Family Courts Act, against the judgment and decree made in HMOP.No.766 of 2006 dated 02.03.2009 on the file of the family Court, Coimbatore.)

S. Sounthar, J.

1. Aggrieved by the dismissal of the petition for divorce filed on the ground of desertion and cruelty, the petitioner/husband has come up with this appeal.

2. The appellant/petitioner/husband filed HMOP.No.766 of 2006 on the file of the Family Court, Coimbatore, seeking divorce on the ground of desertion and cruelty. The marriage between husband and the respondent was solemnised on 23.01.1998. According to appellant after marriage, he and respondent lived together only for two months. Out of wedlock a male child was also born to them on 14.11.1998. It was stated by the appellant in his petition that at the time of marriage, the respondent promised that she would get transfer from Mumbai to Coimbatore, the home town of appellant in order to have a meaningful matrimonial life and she also promised to resign the job in case of difficulty in getting the transfer. It was further averred that the respondent had not taken any meaningful steps to get transfer to Coimbatore, instead she got transfer to Kolkatta. It was further averred that at the time of marriage of appellant's sister in November 1999, the respondent came to the marriage function just like a 3rd person and left to Kolkatta immediately. It was further averred that the respondent had no intention to join with the appellant in matrimonial home and she has no attachment in family life. It was further submitted that the respondent came to the matrimonial home in the month of May 2006 and lived together for only one day and suddenly, she left out of the matrimonial home during night hours. The attempt of the appellant for reunion met with a failure and hence the appellant constrained to file a divorce application on the ground of desertion and cruelty.

3. The respondent filed a counter denying various allegations of the appellant in his petition for divorce. She averred that in-spite of her efforts to get transfer, she could not get transfer order immediately and she used to visit the appellant's residence during the vacation days. It was also averred that when appellant was working in Mumbai from 2001 to 2003, the respondent used to visit appellant's residence there during week end. She further stated during May 2006, when respondent visited appellant's house, the relatives of appellant insisted her to resign her job and she explained to them her inability to resign the job and promised them to get transfer order to Coimbatore within few months. It was also averred that the brother of the appellant abused the respondent and in view of the painful happenings, she left the matrimonial home. In general the respondent expressed her willingness to live with the appellant and sought for dismissal of the petition for divorce.

4. Before the Family Court, the appellant was examined as P.W.1 and Exs.P1 to P13 were marked on his side and the respondent was examined as R.W.1 and Exs.R1 to R18 were marked on her side.

5. The Family Court after consideration of oral and documentary evidences found that the appellant failed to prove both the grounds of desertion and cruelty pleaded by him and consequently dismissed the divorce application. Aggrieved by the same the present appeal is filed and thereafter there is no meaningful cohabitation between them.

6. The learned counsel for appellant submitted that casual visit to the matrimonial home for one or two days cannot be treated as a cohabitation in true sense. She further submitted that after May 2006, the respondent has not visited the matrimonial home of the appellant. Therefore, the marriage has become a fiction and it is practically dead for all the purpose. The learned counsel for the appellant also submitted that as counter blast to petition for divorce, the respondent filed a petition for restitution of