IMPORTANT POINT
Divorce – Although irretrievable breakdown of marriage is not a separately enumerated ground under the Act, prolonged separation of over 14 years between parties is a significant factor that cannot be ignored.

JUDGMENT (COMMON)

Dr. A.D. Maria Clete, J.—This Civil Miscellaneous Appeals are filed by the husband who is petitioner in divorce petition challenging the common order dated 23.02.2021 passed by the Additional Family Court, Coimbatore in H.M.O.P. No. 423 of 2013 seeking divorce on the ground of cruelty, and H.M.O.P. No. 1228 of 2014 filed by the wife for restitution of conjugal rights. The Family Court negatived the prayers made in both petitions and instead granted a decree for judicial separation by invoking section 13A of the Hindu Marriage Act 1955.

2. The Case in brief: The marriage between the appellant (husband) and the respondent (wife) was solemnized on 06.06.2011. It was the second marriage for both parties. The appellant/husband filed H.M.O.P. No. 423 of 2013 seeking divorce under Section 13(1)(ia) of the Hindu Marriage Act, 1955 on the ground of cruelty, detailing various instances of mental and physical cruelty, including false accusations, constant quarrels, humiliation in the presence of others, and unfounded allegations that affected his dignity and peace of mind. The respondent/wife, on the other hand, filed H.M.O.P. No. 1228 of 2014 seeking restitution of conjugal rights under Section 9 of the Act.

3. Upon full-fledged trial, the Family Court held that the allegations of cruelty and desertion were not proved to the required standard, nor was the wife entitled to restitution. However, on the premise that the relationship between the parties had deteriorated, the Family Court, invoking its discretionary power, granted a decree of judicial separation in both matters by invoking Section 13A of the Hindu Marriage Act 1955.

4. While the Hindu Marriage Act empowers the Court to grant a decree of judicial separation in a petition filed for divorce, no such power is contemplated in a petition filed for restitution of conjugal rights. In the present case, when the Family Court rejected the prayer for restitution of conjugal rights in H.M.O.P. No.1224 of 2024, it ought to have dismissed the petition as such, rather than granting judicial separation under that petition. The Family Court, however, proceeded to grant judicial separation in both the petitions, including one where the statutory framework does not permit such relief. It is also relevant to note that although the Family Court declined to grant restitution of conjugal rights, the respondent-wife has not filed any appeal challenging that finding.

5. The learned counsel for the appellant contended that the Family Court committed a legal error in granting a relief that was not sought by either party, namely, judicial separation, instead of adjudicating upon the specific reliefs prayed for — dissolution of marriage by the husband under Section 13(1)(ia) of the Hindu Marriage Act on the ground of cruelty, and restitution of conjugal rights by the wife under Section 9 of the Act. In examining the prayer for divorce, the Family Court noted that the appellant-husband had alleged that the respondent-wife frequently quarrelled with him without any provocation, used abusive language, and once inflicted physical cruelty by scratching his face with her fingernails. He also alleged that the respondent assaulted his aged parents, causing them physical injury, and neglected and disrespected them on multiple occasions. However, the Family Court held that the appellant failed to substantiate these allegations with cogent and independent evidence. Specifically, the Court observed that the parents of the appellant, though central to the allegations of cruelty, were not examined as witnesses, thereby weakening the appellant’s case.

6. The Family Court further took note of the appellant’s accusations that the respondent was arrogant and frequently left the matrimonial home without his knowledge or consent, and behaved in an insulting manner towards him and his family members. Nevertheless, the Court concluded that such allegations, even if assumed to be true, did not rise to the leve