Long-term separation and failure to reunite can substantiate irretrievable breakdown of marriage, justifying divorce under Hindu Marriage Act.

[Order of the Court was made by Dr.G.JAYACHANDRAN., J.]

The Civil Miscellaneous Appeal have been filed by the appellant/husband seeking to set aside H.M.O.P.No.57 of 2011 and H.M.O.P. No.775 of 2012 on the file of the learned Principal Judge, Family Court, Coimbatore dated 30.09.2016.

2. The petition filed by the husband under Section 13 (1)(ia) of the Hindu Marriage Act , seeking a decree of divorce on the ground of cruelty. The marriage between the parties was solemnized on 07.07.2008 as per the Hindu rites and customs. Both parties are graduates, well educated and employed. The husband alleged that the wife, within four months of the marriage, without any information left the matrimonial home and in spite of several requests, she did not turn back to the matrimonial home.

3. It is further contended by the husband that he came to know that his wife conceived and got admitted in the hospital for delivery. However, even after delivery of a male child, wife did not return back to the matrimonial home and join with him. The husband also stated in the divorce petition that he had constructed a new house and invited his wife for the housewarming ceremony fixed on 07.09.2009. The wife, however, refused to attend the function and without her presence housewarming ceremony was celebrated. Later during the month of November 2011, in the presence of elders, a compromise talk was held, wherein efforts were made for the wife to rejoin the petitioner. However, she failed to do so. Citing these instances along with a few other allegations of cruelty, the husband filed the petition for divorce and contested.

4. The wife, who is the respondent herein specifically denied the allegations of cruelty. She asserted that in fact her husband failed to take care of their child, who was suffering congenital illness. She further contended that despite her and the child being unwell, the husband compelled to attend the housewarming ceremony. Even after she informed about the tonsuring and ear-boring ceremony of the child, the husband and the family members did not attend and no steps were being taken by the husband to call her back to the matrimonial fold. Instead based on a false allegations of cruelty, he filed the petition seeking divorce.

5. While H.M.O.P.No.57 of 2011, the petition for divorce under Section 13 (1)(ia) of the Hindu Marriage Act , filed by the husband pending, wife had filed petition under Section 9 of , seeking restitution of conjugal rights, which was taken on file in H.M.O.P.No.775 of 2012. The Family Court at Coimbatore, conducted a joint trial and passed a common order, dismissing the divorce petition filed by the husband and allowed the petition for restitution of conjugal rights filed by the wife. 6. Being aggrieved, the husband filed C.M.A.No.2768 of 2016 challenging the dismissal of his divorce petition in H.M.O.P.No.57 of 2011 and C.M.A.No.2769 of 2016 challenging the judgment and decree passed in favour of his wife in H.M.O.P.No.775 of 2012.

7. The learned counsel appearing for the appellant/husband submitted that the trial Court failed to take note of the fact that the wife's willful refusal to attend the housewarming ceremony and her failure to intimate about the tonsuring and ear-boring of their child, tantamount to mental cruelty. The respondent, in the cross-examination, admitted that in a panchayat held in the presence of the elder by name Shanthalingam, she agreed to reunion with the husband, but the reasons best known refused to reunion her husband. Her willful desertion also has to be construed as cruelty. Though a specific plea f