The irretrievable breakdown of marriage cannot be used to benefit the party responsible for its collapse, and maintenance must be ensured for the welfare of the child.

JUDGMENT :

(G.R. SWAMINATHAN, J.)

The marriage between S.Arivazhahan and B.Gayathri (parties herein) was solemnised on 23.05.2007 as per Hindu rites and customs. A girl child was born through the wedlock on 10.11.2008. Arivazhahan was employed as a teacher in Kendriya Vidhyala. He was then employed in Chennai. Since Arivazhagan was employed in Chennai during the year 2007, the matrimonial home was in Chennai. According to him, his wife left the matrimonial home in March 2008 itself. Alleging that the acts of the wife amounted to cruelty under Section 13(1)(i-a) of the Hindu Marriage Act, Arivazhahan filed divorce petition before the Family Court at Chennai. Gayathri filed petition under Section 9 of the Act seeking restitution of conjugal rights. Both the OPs. were transferred to the Family Court, Thiruchirappalli and renumbered as H.M.O.P.Nos.106 of 2017 and 105 of 2017. Arivazhagan was the petitioner in H.M.O.P.No.106 of 2017, while Gayathri was the petitioner in H.M.O.P.No.105 of 2017. Both the OPs. were tried together. Arivazhahan examined himself as P.W.1 and marked Ex.P.1 to Ex.P. 16. Gayathri examined herself as R.W.1 and Ex.R.1 to Ex.R.7 were marked. After hearing both the parties and after considering the evidence on record, the learned Family Judge, Thiruchirappalli vide common order dated 31.03.2021 allowed H.M.O.P.No.105 of 2007 and dismissed H.M.O.P.No.106 of 2017. Questioning the same, Arivazhagan filed these two civil miscellaneous appeals.

2. The learned counsel appearing for the appellant reiterated all the contentions set out in the memorandum of grounds of appeal. He emphasized the fact that the parties have been residing separately for the last several years and the marriage has suffered an irretrievable break down. According to him, this itself would constitute cruelty and prayed for severance of the marital tie.

3. Per contra, the learned counsel appearing for the respondent submitted that the impugned judgment is well reasoned and that it does not call for any interference.

4. We carefully considered the rival contentions and went through the evidence on record.

5. The points for determination are as follows:-

(i) Whether the appellant had proved that the acts of the respondent constitute cruelty within the meaning of Section 13(1)(i-a) of the Hindu Marriage Act, 1955 ?

(ii) Whether the marriage between the parties should be dissolved on the ground that the parties have been residing apart from each other for the last several years?

6. The appellant examined himself as P.W.1. The allegations made against the respondent are as follows:-

(a) The respondent never took part in household chores such as cooking. As a result, the appellant had to often take food outside.

(b) She often threatened to return to her parents' house or commit suicide.

(c) She expressed disgust in handling the articles of the appellant.

(d) She had taken back all the jewellery given at the time of marriage.

(e) The respondent did not even inform the appellant about the birth of the girl child.

(f) The respondent was utterly indifferent towards the appellant.

7. The appellant was cross examined. The appellant admitted that his wife conceived and suffered abortion for which treatment was taken in Best Hospital, at Kodambakkam, Chennai. He also admitted that within six months, she conceived again. Since the wife wanted to wear her jewellery, at her request the appellant handed over the jewels which were kept in bank locker.

8. The Court below took note of the conduct of the appellant. Though the appellant was employed as a Teacher in Kendriya Vidhyalaya and was earning close to a lakh of rupees, he was not maintaining his family. Therefore, the wife had to file M.C.No. 23 of 2015. She also sought interim maintenance. In the said case, the appellant filed I.A. for subjecting the child to DNA / paternity test. The results of the paternity test confirmed that it was the appellant who was the father of the girl child.

9. From this single circumstance, we woul