IMPORTANT POINT
Divorce – A defaulting husband cannot be rewarded with decree of divorce.

JUDGMENT

RMT. Teekaa Raman, J.—This Civil Miscellaneous Appeal is directed against the fair and decreetal order dated 13.10.2017 made in H.M.O.P.No.780 of 2014 by the Family Court Judge, Tiruchirappalli.

2. The appellant is the wife and the respondent is the husband. For the sake of convenience, the parties are referred to as ‘husband’ and ‘wife’.

3. The husband filed HMOP No.780/2014 for dissolution of marriage on the ground of cruelty and under Section 13(1)(ia) of the Hindu Marriage Act. The wife filed counter statement stating that due to civil dispute in respect of undivided share in the house at the instance of the brother of the husband, the case has been filed and MC No.11 of 2015 and maintenance was awarded to her and two daughters, however, the husband has not paid the same.

4. Before the trial Court, the husband examined himself as P.W.1 and marked Ex.P1 marriage invitation, Ex.P2 – legal notice and Ex.P3-postal acknowledgment. The wife examined herself as R.W.1, however, she has not marked any documents.

5. On considering both the oral and documentary evidence, the family Court, Trichy has come to the conclusion that the parties are living separately for more than 12 years and she has made false allegation that the husband is having an illicit relationship with one of his co-employee by name Chamundeeswari working in a particular department and also uttered that he is also having another relationship with another lady by name Senthilvadivu and hence, the family Court observed that levelling allegation of illicit relationship against the husband or spouse, as the case may be, amounts to mental cruelty and granted the relief on the ground of irretrievable breakdown of the marriage.

6. The wife has preferred the appeal primarily on the ground that irretrievable breakdown of marriage is not a ground stated under the Hindu Marriage Act, instead, contended that the High Court in exercise of its power under Article 142 of the Constitution of India can do so. Furthermore, the plea of desertion was not taken by the husband, however, the family Court has chosen to discuss the same in detail and further stated that the reason of levelling of allegation of illicit relationship with two named persons in the railway department, where the husband works is not the case of the petitioner, however, the same was taken as a ground only by the judicial officer for granting the relief.

7. The learned counsel for the respondent/husband made submissions in support of the order passed by the family Court dated 13.10.2017.

8. Heard the learned counsel for the appellant and the learned counsel for the respondent and perused the materials available on record.

9. After hearing both sides, we find that the respondent/husband filed HMOP No.780/2014 seeking dissolution of marriage, which was solemnized between the parties on 13.09.2000. They begotten two children in the year 2001 and 2004 respectively. As the elder daughter attained puberty, as per the family customs, they have arranged for a function, in which, it is alleged that there was a quarrel ensued between the parties, which was resulted in filing of the above petition on the ground of cruelty. Certain averments were also made regarding desertion and that they are living separately for about 12 years.

10. Wife filed counter stating that she is willing to join with the husband and hence, sought for counter relief of restitution of conjugal rights in the very same petition. We have perused Ex.P2 - legal notice. The legal notice was issued on behalf of the husband on 12.06.2014. The submissions made in Ex.R2 - notice is that the wife is living separately for about 12 years in Boothalur village and she had converted her religion to Protestant and also pressurizing to convert the family members of the husband to Christianity and thereby they are subjected to cruelty.

11. The husband as P.W.1 in the cross-examination had admitted as follows:—

(Matter in Other Language)

12. We find from the adm