(Prayer: Civil Miscellaneous Appeal filed under Section 19 of Family Courts Act, against the Judgment and Decree as made in H.M.O.P.No. 715 of 2009 dated 17.09.2016 on the file of Principal Judge, Family Court, Coimbatore.)

C.V. Karthikeyan, J.

1. The petitioner in H.M.O.P.No. 715 of 2009 on the file of the Family Court at Coimbatore is the appellant herein.

2. The Appeal had been filed aggrieved by the dismissal of the said Original Petition which had been filed seeking divorce under Section 13(1) (ia) and 13(1)(ib) of Hindu Marriage Act 1955, by Judgment dated 07.09.2016.

3. In the petition in H.M.O.P.No. 715 of 2009, the appellant stated that the marriage between him and the respondent was solemnised on 26.11.2001 and a female child was born on 13.11.2004. It had been contended that though the appellant was employed in Government Department, the respondent treated him as a slave in the family. It was stated that she pressurised him to take a house of rent near her sisters residence. She had also refused to lead a normal marital life with the appellant. She did not care for the child. The appellant had to look after the day to day needs of the child. It was also stated that the respondent also disregarded his parents, who are senior citizens of advanced age and suffer from various ailments. It was also contended that she often degraded him in the presence of his friends and relatives. It was further contended that she deserted him and went away from the matrimonial home on and from 04.05.2007. The appellant had given a complaint to the Singanallur Police Station on 05.05.2009 but the respondent did not co-operate during the enquiry and did not come forward to settle the issues. It was under those circumstances that the petition had been filed seeking divorce on the ground of cruelty and desertion.

4. A counter affidavit had been filed by the respondent denying and disputing all the allegations. It was contended that she cared for the appellant and also for the child. She denied all allegations raised against her. It was contended that she had also given a complaint against the appellant at R.S.Puram All Women Police Station and the appellant had given an undertaking that he would continue to take care of her and her child. She stated that she was prevented from having access to the child. She contended that she was ready and willing to live with the appellant. She stated that the petition should be dismissed.

5. The appellant filed a reply statement again reiterating the averments made in the petition. He also denied the statements made in the counter statement. He contended that the respondent had deserted the matrimonial house. He stated that the petition should be allowed.

6. The matter then went to trial. The appellant examined himself as PW-1 and examined his brother as PW-2. The wedding photographs were marked as Ex.P-1 and the ration card was marked as Ex.P-2. The respondent examined herself as RW-1 and examined her brother as RW-2. The driving license of RW-2 was marked as Ex.R1.

7. The trial Court while analysing the evidence observed that both the appellant and the respondent had levelled allegations against each other. It was found that the appellant had not proved that on and from the year 2009, the respondent had deserted the matrimonial house. It was further found that the appellant had failed to prove the specific allegations of cruelty levelled against the respondent. Holding as above, by Judgment dated 17.09.2016, H.M.O.P.No. 715 of 2009 was dismissed. Challenging that Judgment, the present Appeal had been filed.

8. The learned counsel for the appellant took the Court through the facts of the case and drew the attention of the Court to the admissions made by the respondent in her cross examination. The learned counsel contended that the respondent had not taken any steps to come back to the matrimonial home and to reside with the appellant. She had also not filed any application seeking restitution of conjugal rights. She had admitted that the child was with the appellant from the year 2009 and that she had not filed any application seeking custody of the child. She stated that she had filed a Domestic Violence case in DAV No. 9 of 2011. She further admitted that the said application was dismissed for non prosecution in the year 2015. She had not filed any appeal against the said order. She had also not taken any steps to restore the said application.

9. During her cross examination, she further stated that at the time of her cross examination, the child was studying in 7th standard but did not know the school where the child was studying. She also admitted that during the panchayat, a discussion arose whether if personal belongings and gold jewellery are handed over to her, she would grant for divorce. She however stated that she had not initiated any judicial proceedings seeking return of the jewellery.

10. Pointing out the above admissions, during cross examination of the respondent, the learned counsel for the appellant argued that the respondent had voluntarily left the matrimonial house and had not taken any steps to reunite with the appellant and had also not taken any care to seek custody of the child. The learned counsel argued that all these constituted mental cruelty and urged that the Judgment of the trial Court should be reversed and the Appeal should be allowed.

11. There is no appearance by the learned counsel for the respondent.

12. We have perused the materials available on record. A perusal of the notes papers show that the learned counsel for the respondent was also not present in the earlier hearing dates on 09.01.2025 and again on 01.09.2025.

13. The records clearly reflect that the respondent had failed to take care of the child atleast from the year 2009 onwards. The child was born in the year 2004. The child has been in the custody of the appellant from the time she was 5 years old. This very act of the respondent in not even taken care of the child can be categorised as mental cruelty. During her cross examination, the respondent had stated that she did not even know the name of the school where the child is studying. She also admitted that she did not take any steps to seek custody of the child or even visitation rights. She admitted that during the panchayat, discussions were held that if her jewels and personal belongings were returned to her, she would grant consent for divorce. All these aspects only indicate that the respondent is not interested in continuing with the marital life with the appellant herein. Even during the cross examination of the appellant, no suggestion had been put that the respondent was willing to live with him inspite of the petition filed seeking divorce on the ground of desertion and cruelty. Even in her proof affidavit, the respondent had not stated that she was willing to reunite with the appellant. She had only stated that the petition had been filed with false reasons to obtain divorce and that the petition should be dismissed. But there was no categorical statement that she was willing to reunite with the appellant herein.

14. All these factors would make it clear that the acts of the respondent constituted continuous mental cruelty. The primary fact that the respondent had not come forward as a mother to look after the child from the year 2009 onwards till date for the past nearly 16 years would clearly show that she is not interested in living in the matrimonial house. This itself is an act of cruelty. On that one ground, we hold that the Judgment and Decree of the trial Court requires to be interfered with and has to be necessarily set aside.

15. In the result, the Appeal stands allowed. The marriage between the appellant and the petitioner solemnised on 26.11.2001 stands dissolved. No order as to costs.