J U D G M E N T

This appeal has been filed against judgment dated 03.02.2021 made in H.M.C.M.A.No.10 of 2018 on the file of the II Additional District Court, Vellore @ Ranipet confirming the order and decree dated 07.08.2017 made in H.M.O.P.No.33 of 2015 on the file of the Sub Court, Arakkonam.

2.The marriage between the appellant/husband and the respondent/wife was solmenised on 07.12.1998 as per Hindu rites and customs and out of their wedlock a female child was born on 10.11.2001. Due to some misunderstanding between them, they got separated. Thereafter, the appellant/husband filed a divorce petition in H.M.O.P.No.33 of 2015 on the file of the Sub Court, Arakkonam under Section 13(ia) of Hindu Marriage Act, 1955 on the ground of cruelty and the said petition was dismissed. Then, he preferred an appeal in H.M.C.M.A.No.10 of 2018 on the file of the II Additional District Court, Vellore @ Ranipet, which also came to be dismissed. Aggrieved by the same, the present second appeal has been preferred by the appellant/husband.

3. At the time of admission of the appeal, the following substantial question of law was formulated by this Court :

''Whether the Courts below were right in not granting a decree of divorce under the ground of marriage between the appellant and respondent was irretrievably break down because they were living separately for more than two decades ?''

4. The learned counsel for the appellant/husband submitted that the respondent/wife voluntarily left the matrimonial home without any valid reasons. The respondent frequently, picked up unnecessary quarrel with the appellant and his parents. Whenever, the appellant advised her, she scolded them with filthy language and left the matrimonial home. On 10.11.2001, she begotten a child. Even the birth of the child was also not informed to them. Subsequently, she did not return back to her matrimonial home, despite all efforts were taken by the appellant. The appellant/husband and the respondent/wife were residing separately, from 2001 onwards. Hence, the appellant filed divorce petition on the ground of cruelty.

5. The learned counsel for the appellant further submitted that in order to prove the case of the appellant, before the Court below, the appellant examined himself as P.W.1 and two of his relatives were examined as P.W.2 and P.W.3. Before the Court below, the appellant has substantiated his allegations levelled in the petition, however, the respondent/wife did not turn up and no oral and documentary evidence was produced to prove her case. He further submitted that after the separation, the respondent did not come back to her matrimonial home and also she did not file any petition seeking restitution of conjugal rights or maintenance. Further, now the child grown up and got married. Even the marriage of his daughter was not informed to him. They are living separately from 2001 onwards. Such long and continuous separation between them amounted to mental cruelty, and hence, on this ground itself divorce may be granted. However, both the Courts below failed to appreciate the entire materials and held that the allegations levelled in the petition have not been substantiated and proved by the appellant in the manner known to law and dismissed the petitions. He further submitted that more than two decades they were living separately and the marriage between the appellant and the respondent was break down irretrievably.

6. In support of his contention, the learned counsel for the appellant placed reliance on the judgment of the Apex Court in the case of Poonam Vs. Surender Kumar (Civil Appeal No.9545 of 2010) reported in MANU/SC/1098/2021 and the judgment of this Court in the case of G.Kesavan Vs. P.Visalakshi (C.M.S.A.No.29 of 2010) reported in MANU/TN/0496/2018.

7. Heard the learned counsel for the appellant and perused the materials available on record. Despite service of notice, there is no representation for the respondent either in person or through counsel.

8. Admitted