IMPORTANT POINT
(1) Divorce—A spouse willfully avoiding another spouse to have sexual intercourse without sufficient reason, act would amount to mental cruelty to such spouse.
(2) Divorce—A dead marriage should not be prolonged and must be given a decent quietus.

JUDGMENT (COMMON)

V. Sivagnanam, J.—The Appellant Major Frank Ralston Samuel Raj who is the husband of the respondent filed O.P.No.648 of 2009 for dissolution of marriage, whereas the respondent Kezia Padmini Swarna Pandian who is the wife of the appellant filed O.P.No.3497 of 2015 before the II Additional Family Court, for restitution of conjugal rights.

2. After hearing both parties, the trial Court, by its common order dated 20.09.2016 had dismissed the petition filed by the husband/appellant herein and allowed the petition filed by the wife/respondent herein.

3. Challenging the common order passed by the learned II Additional Family Court, Chennai, the appellant has filed the Civil Miscellaneous Appeals to set aside the order of the Family Court rejecting the petition filed for dissolution of marriage and to set aside the order allowing the petition filed for the restitution of conjugal rights.

4. The learned counsel for the appellant submitted that the marriage of the appellant and the respondent was solemnized on 26.10.2007 at CSI St.George Cathedral Church, Chennai. The appellant is working as a Major in Indian Army and the respondent is a house wife. The appellant and respondent had the first night programmed at Hotel GRT Grand, Chennai. But, unfortunately, the respondent avoided the sexual act/coitus. On the next day, the appellant and the respondent went to the respondent’s house, that night also she refused the coitus under the guise of tiredness and the next day they went to the appellant’s house at Anna Nagar. But, that night also she refused on the same reason.

5. He further added that on 29.10.2007 the appellant took his wife to Andaman and Nicobar Island for honeymoon and stayed there for seven days. In all those days, the respondent refused to share the bed and avoided coitus with the appellant. The appellant and the respondent returned to Chennai on 04.07.2007 here also the respondent refused coitus with the appellant. It is further contended that from the date of marriage the respondent was not inclined to have conjugal relationship with the appellant and postponing their coitus for one reason or the other. It continued for about five months and then, the appellant advised the respondent to go for a medical check up, for which the respondent refused. Thereafter, the respondent intentionally avoided the appellant and stayed in her brother’s place. Thereafter, the respondent refused to join matrimonial home. The appellant lastly approached the Family Court for divorce on the ground of willful refusal to consummate the marriage and cruelty. The respondent after appearance in the proceedings filed application seeking maintenance till the disposal of the petition and also filed O.P.No. 3497 of 2015. The respondent sent letters to Army Wives Welfare Association and other senior Army Officer to degrade the reputation of the appellant. The activities of the respondent had created severe hardship and mental agony to the appellant.

6. According to the learned counsel, the acts would clearly amount to cruelty. The marital life of the appellant has been totally spoiled and the marriage has been irretrievably broken down between the appellant and the respondent. There is absolutely no emotional bond between the appellant and the respondent and no scope for reconciliation. But, the family Court failed to appreciate the evidence and the fact properly. He reiterated other grounds raised in the grounds of appeal and pleaded to set aside the order passed by the family Court for restitution of conjugal rights in O.P.No.3497 of 2015 and grant decree of divorce. By allowing both the appeals. The learned counsel for the appellant in support of his argument placed reliance on the following decisions reported in Naveen Kohli v. Neelu Kohli [(2006) 4 SCC 558] and Beena M.S. v. Shino G.Babu, [2022 SCC online Ker 778].

7. The learned counsel for the respondent supported the order of the trial court. It is his submission that the respon