IMPORTANT POINT
Long separation and absence of cohabitation can constitute cruelty under the Hindu Marriage Act, justifying divorce.

JUDGMENT :

J. NISHA BANU, J.

Prayer: Civil Miscellaneous Appeals are filed under Section 19 of the Family Court Act praying to set aside the common judgment and decree in O.P.Nos.1417 of 2020 & 3780 of 2019, dated 21.07.2022 passed by the learned VII Additional Family Court at Chennai.

1. Since the issue involved in both the cases are one and the same, they are disposed of by this common judgment. These Civil Miscellaneous Appeals have been preferred as against the common order passed in O.P.Nos.1417 of 2020 and 3780 of 2019 on the file of the learned VII Additional Family Judge at Chennai dated 21.07.2022.

2. The appellant/husband herein has filed a petition in O.P. No. 1417 of 2020 seeking divorce on the ground of mental disorder and cruelty and the respondent/wife herein has filed a petition in O.P. No. 3780 of 2019 under Section 9 of the Hindu Marriage Act, 1955, seeking restitution of conjugal rights.

3. The trial Court dismissed the petition filed by the appellant/husband seeking divorce and allowed the petition filed by the respondent/wife seeking restitution of conjugal rights. Aggrieved by the above said orders, the aggrieved husband has preferred the present Civil Miscellaneous Appeals, thereby challenging the dismissal of the petition seeking divorce and allowing the petition granting decree of restitution of conjugal rights granted in favour of the respondent/wife before this Court.

4. The case of the appellant/husband is that the marriage between him and the respondent was solemnized on 17.04.2017 at H.P.M. Thirumana Mandapam, Ambattur at Chennai as per the Hindu rites and customs. After the marriage, they lived as the husband and wife, and no child was born out of the wedlock. According to the appellant, from the beginning of the marriage, the respondent acted indifferently, and claiming herself to be a Doctor, she never performed her duty as dutiful wife.

4.1. In the late night, she used to sleep under the bed and kept away from the company of the appellant. When the said activities were questioned by the appellant, the respondent/wife used filthy language and threatened him of committing suicide by leaving a suicidal note, implicating the names of the appellant and his family members. As the behavior, character and activities were all different from normal human being, one day, on an occasion due to wordy quarrel, she removed her Thali and threw on the face of the appellant. According to the appellant, the respondent was suffering from mental disorder and the respondent refused to take medicine and thereafter, the appellant lodged a complaint before the Inspector of Police, All Women Police Station, Thirumangalam on 09.09.2018 and they enquired the matter and gave counselling to her but that also ended in vain. Therefore, the appellant/husband came forward with a petition seeking divorce.

5. The case of the respondent is that the marriage between the parties is admitted but she denied the allegations that were made against her in respect of her mental capacity. She is a Medical Practitioner in Dental Science. The incidents narrated in the divorce petition, have been purposely created with a view to find a cause of action for filing the divorce petition. She never quarrelled with the appellant and his parents at any point of time. But the appellant and his parents only tortured and humiliated her.

5.1. The appellant, without understanding the psychological report with proper perspective, called her parents and insisted them to take her daughter back by wrongly assuming that she has mental illness. According to the respondent, she completed her Medical Science in dental and always willing to live with the appellant and thereby, she filed a petition for restitution of conjugal rights.

6. Before the trial Court, both the petitions were tried jointly. On the side of the appellant, the appellant himself examined as PW-1 and one Balaji as PW-2 and they marked 11 exhibits Ex.P1 to Ex.P11. On the side of the respondent, the respo