Prolonged separation and proven cruelty can justify the dissolution of marriage under the Hindu Marriage Act, despite the absence of restitution of conjugal rights.

JUDGMENT :

J. Nisha Banu, J.

This Civil Miscellaneous Appeal has been filed, seeking to set aside the judgment and decree dated 15.03.2017 made in H.M.O.P.No.269 of 2015 by the Family Court, Erode, in and by which, the Family Court had refused to dissolve the marriage held between the appellant and the respondent herein.

Facts of the case in nutshell as put forth by the appellant:

2. The marriage between the appellant and the respondent was solemnized on 11.09.2011 as per Hindu rites and customs in Thalaiya Nallur Ponkaliyamman Temple at Sivagiri and the expenses for the marriage was equally shared by both families. Both the appellant and the respondent had initially led the family life in the native place of the appellant and thereafter, for employment purpose, the appellant moved to Bangalore along with his wife, where their family life ran into rough weather. There were frequent quarrels taken place between them, as a result of which, there was no consummation of marriage.

3. The respondent used to continuously harass the appellant in front of others and posed threat of committing suicide and lodging false and frivolous complaint against him and his family members, thereby, caused mental agony to him. She had also not given respect to her in-laws and brushed aside their advices, saying that their advice no longer requires to her. She was not at all interested in registering their marriage with the Registrar's office and had the habit of wandering in the city of Bangalore during night hours without informing the appellant.

4. In the year 2013, the appellant had the opportunity of employment in U.S.A. and when it was intimated to the respondent/wife, she had left the matrimonial house 15 days prior to his departure. On account of her refusal to register their marriage, the appellant was not in a position to take her to the alien country. Whenever the appellant contacted her from U.S.A., there was no change in her attitude and she had always been threatening him of lodging Police complaint and sending him to jail. When the appellant was in India during vacation in 2014 and attempted to meet her, she was not inclined to meet him. She filed a Police complaint in the year 2013 against the appellant and his family members before the Superintendent of Police, Erode and from 2013, she has been living separately, besides harassing him over phone and not allowing him to work abroad peacefully.

5. Though the appellant had taken steps for reunion, it was not fructified and therefore, he had filed H.M.O.P.No.269 of 2015 before the Family Court, Erode for dissolution of marriage. However, the Family Court declined to grant divorce on the ground that there was no attempt made by the appellant for restitution of conjugal rights. The appellant had examined 3 witnesses and exhibited 6 documents. On the side of the accused, 7 documents were marked and one witness was examined.

6. The respondent/wife had filed a counter affidavit before the Family Court, wherein it has been stated as follows:

i) At the first blush, the petition for divorce itself is not maintainable, as the same had been filed by a Power Agent nominated by the appellant. The appellant frequently avoided the presence of the respondent and flew to various countries without even informing the respondent. He had not led a happy marital life and he used to get angry quite often and had been taking sleeping pills. He insisted the respondent to stay away from him and had been scolding her without any rhyme or reason.

ii) In the year 2013, the appellant called the respondent over phone, when she was in her in-laws house and informed about her journey to U.S.A., which was not informed to her prior to that. Her father-in-law requested the re