Long separation and refusal to cohabit constitute cruelty under the Indian Divorce Act, allowing for divorce without proving adultery post-2019 amendment.

JUDGMENT :

G. JAYACHANDRAN, J.

1. The appellant, being aggrieved by the dismissal of his divorce petition by the Family Court, Dindigul is before this Court to set aside the dismissal order and to grant divorce.

2. The appellant and first respondent belongs to Christianity.Their marriage was solemnized as per Christian rites and customs on 1.12.2016. A child was born to the first respondent on 20.09.2017. Even before that, the appellant had knocked the doors of the Court by filing a petition under Section 10(1)(x) of Indian Divorce Act on the ground of cruelty and adutlery. The second respondent is the named adulteror. According to the appellant, the first respondent had affair with the second respondent even before the marriage. Soon after the marriage, within few days, she left the matrimonial home and went to her parental house and continued the affair with the second respondent. This was brought to the notice of the Village Panchayat and on their advise, the first respondent joined the appellant for a brief period. She gave birth to a male child on 20.09.2017 and remain at her parental house. The appellant had made allegations against the first respondent that she had been torturing him mentally and she refused to consumate the marriage and continued her affair with her boy friend, who is the second respondent. It is also alleged in the petition that the telephonic conversation of the first respondent with the second respondent was recorded and the same retrieved subsequently through her husband, who would disclose her extra marital affair.

3. After service of notice, both the first and second respondents appeared through their counsel and filed the counter. Based on the counter, the trial Court framed the following issues for consideration:

(1) Whether the first respondent had committed adultery and cruelty, apprehends danger to the life of the appellant or not?(sic)

(2) Whether the marriage of the appellant with the first respondent shall be dissolved or not?

4. The appellant mounted the witness box and examined as P.W.1 and one Yuvaraj was examined as P.W.2. He was cross-examined by the first respondent. In support of his case, four documents were marked by the appellant which are the marriage invitation, the marriage certificate, the Petition given by the appellant to the Superintendent of Police regarding desertion and cruelty of the first respondent and the the compact disc containing the alleged conversation of the first respondent with the second respondent. The first respondent is the wife of the appellant, who remained absent before the Court below. Subsequently, she was set exparte on 14.3.2019. No evidence, both oral and documentary, was adduced on the side of the first respondent. The trial Court, on considering the evidence placed before it, disbelieved the case of the appellnt and dismissed the Petition for divorce. Being aggrieved, the present Civil Miscellaneous Appeal is filed on the ground that the Court below failed to draw adverse inference against the respondents, who did not adduce any evidence to disprove the case of adultery alleged against him. Unjustified separation by the first respondent and refusal to have sexual relationship with him is a cruelty which is a ground to grant divorce. The copy of the complaint given by the appellant to the Superintendent of Police- Ex.P3, was disbelieved by the Court below without any explanation.

5. The learned counsel for the appellant relying upon the judgment of this Court rendered in T. Tamilarasan vs. Arokkiasamy and others, 2007 (3) CTC 59 submitted that the party who entered the witness box to substantiate the contentions made in the pleading has to suffer adverse inference against him. The learned counsel would submit that the above judgment is based on the dictum laid down by the Honourable Supreme Court in Vidhyadhar vs. Mankikrao, AIR SCW 1129. The Honorable Supreme Court, in the case cited supra, has held as below:

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