JUDGMENT : K. Kalyanasundaram, J. [Prayer: Civil Miscellaneous Appeal filed under Section 19 of the Family Court Act, 1984 against the order dated 30.12.2019 passed by the Vth Additional Judge, Family Court, Chennai in O.P.No.2820 of 2015.] This appeal is directed against the Judgment and Decree passed in O.P.No.2820 of 2015. 2. The facts which are necessary for disposal of the Appeal are as follows:- The appellant is the wife of the respondent. The marriage between the appellant and the respondent was solemnized on 27.11.2009 at New Shree Balaji Thirumana Mandabam, Ponneri, Thiruvallur District. A son was born to them on 18.01.2011 and he was named as Kartheeswar. The respondent filed O.P.No.2820 of 2015 for dissolution of the marriage under Section 13 (1-a) of Hindu Marriage Act. The appellant filed M.C.No.267 of 2017 under Section 125 of Criminal Procedure Code praying for maintenance of Rs.15,000/- per month for her and Rs.10,000/- for her son. Both the cases were tried together and by a common order, Vth Additional Family Court, Chennai granted divorce, while dismissing the Maintenance Case No.267 of 2017. 3. The case of the respondent is that from the date of marriage, the appellant started to quarrel with him and scolded in filthy language and used unparliamentary words. She was working at Bangalore, Chennai in IT companies before the marriage. She used to spend money beyond the limits of his earning. She often used to talk with many persons continuously for several hours who were not not known to him. When he questioned the same, she refused to reveal the details. She often goes to her mother's house at Ponneri without his knowledge. He spoke to his mother-in-law, elder members of the family and with some middle men on several times, but all the attempts ended in vain. On 23.04.2013, she along with minor son went to her mother's house without his knowledge. Immediately, he made attempts to bring them back, but she did not even allow him to see his child and also used filthy and unparliamentary words. He further stated that his wife is working in IT Company and earns Rs.75,000/- per month. He sent legal notice on 24.11.2014 calling them to join with him within a period of one week, but she refused to come. 4. He further stated that his wife is working in IT Company and earns Rs.75,000/- per month. He sent legal notice on 24.11.2014 calling them to join with him within a period of one week, but she refused to come. 4. It is alleged that his wife is leading an adulteress life with one Udayakumar, who is a married man and having two girl children. The said Udayakumar informed him that he helped his wife to sell jewels, including thali which was tied by him at the time of marriage. He also informed that when their son joined in the school, she forged his signature. Hence, he is entitled for divorce. 5. In the counter, the appellant denied the allegations made in the original petition. She is a B.Sc. Computer Science Degree holder, whereas her husband studied only upto 12th standard. But, she agreed for the marriage as it was an arranged one and conducted with the consent and blessings of their parents. After the marriage, from the day one, the husband behaved in a suspicious mind. Ever since the marriage, her life has been very much affected. He opined that she had not possessed a good and intact character, hence, she suffered from mental agony. It is further alleged that during the 6th month of pregnancy, her husband and his parents behaved violently and used filthy words against her. She was also physically assaulted, however, due to intervention of one Natarajan, who is the relative of her husband, the matter was pacified. In short, it is her case that she did not leave the matrimonial home on her own and she was forced to go to her mother's home along with the child. He did not take care of the child. She has further stated that she is unemployed and unable to maintain herself and the minor child. 6. The Family Court had framed the following points for consideration:- "(i) Whether the husband is entitled for the relief of dissolution of marriage; and (ii) Whether the wife and minor son are entitled for monthly maintenance from the respondent." 7. The appellant examined herself as P.W.1 and marked Exs.P1 to P13. The respondent examined himself as R.W.1 and produced Exs.R1 to R12. After analyzing the evidence, as aforesaid, the Family Court allowed the O.P. filed by the respondent and dismissed the maintenance case filed by the appellant. The appellant examined herself as P.W.1 and marked Exs.P1 to P13. The respondent examined himself as R.W.1 and produced Exs.R1 to R12. After analyzing the evidence, as aforesaid, the Family Court allowed the O.P. filed by the respondent and dismissed the maintenance case filed by the appellant. Questioning the divorce granted in the O.P., the present appeal has been filed. 8. The learned counsel appearing for the appellant Ms. K. Chandra submitted that the divorce petition was filed on the sole ground of desertion, but the Family Court granted divorce on the ground of desertion and cruelty. She further added that even as per the case of the respondent, the wife left the matrimonial home only on 23.04.2013, and the divorce petition was filed within a period of 18 months, hence, the ground of desertion has to fail. 9. We have carefully considered the submission of the learned counsel for the appellant and perused the materials available on record. 10. In the instant case, admittedly, the marriage between the appellant and the respondent was performed on 27.11.2009 and a child was born to them on 18.01.2011. The divorce petition was filed alleging that the appellant used to quarrel with him often and she also used filthy and unparliamentary words. It is his further case that his wife was talking with men for several hours and she refused to tell the details and she is living in adultery with one Udayakumar. The trial Court found that the allegations of the husband that the wife used to talk in mobile phone to many persons continuously for several hours was not specifically denied in the counter. Although the respondent did not seek divorce on the ground of adultery, but in the counter filed to the maintenance case, he has specifically stated that his wife is leading adultery life with one Udayakumar. The appellant did not file any reply to the counter filed by her husband. In the course of trial, the respondent produced Ex.R5 photographs, Ex.P10-phone conversation copies in CD and Ex.P11-CD for colour photos. The trial Court on perusal found that she was standing very close to another person and she had placed her head on his chest and those photographs were taken even when they were young. In the course of trial, the respondent produced Ex.R5 photographs, Ex.P10-phone conversation copies in CD and Ex.P11-CD for colour photos. The trial Court on perusal found that she was standing very close to another person and she had placed her head on his chest and those photographs were taken even when they were young. For the legal notice Ex.R1, a reply was given under Ex.R2, wherein she state that there was no good family set up in the matrimonial home. Ex.R3 shows that the respondent lodged a complaint with the Police for their reunion, but it was not fruitified. 11. P.W.1 in her cross examination admitted that one Udayakumar worked with her in a Company, but she is unable to recognize whether the male person in Ex.R5 is the said Udayakumar. She has further admitted that she is working as an Administrative Officer in RD Associated Company and that she can maintain her husband, when he pleaded that he suffered from kidney related problems, intestinal infections and nerve related issues. 12. From the perusal of the records, it is evident that the appellant and the respondent are living apart for more than 9 years. The allegations and admissions made in the evidence clearly establish that there is no possibility for reunion and the mediation process exercised by the Family Court failed. 13. The Hon'ble Supreme Court in the case of Naveen Kohli Vs. Neelu Kolhi [ (2006) 4 SCC 558 ], has held as follows:- "83. Even at this stage, the respondent does not want divorce by mutual consent. From the analysis and evaluation of the entire evidence, it is clear that the respondent has resolved to live in agony only to make life a miserable hell for the appellant as well. This type of adamant and callous attitude, in the context of the facts of this case, leaves no manner of doubt in our minds that the respondent is bent upon treating the appellant with mental cruelty. It is abundantly clear that the marriage between the parties had broken down irretrievably and there is no chance of their coming together, or living together again. 84. It is abundantly clear that the marriage between the parties had broken down irretrievably and there is no chance of their coming together, or living together again. 84. The High Court ought to have appreciated that there is no acceptable way in which the parties can be compelled to resume life with the consort, nothing is gained by trying to keep the parties tied forever to a marriage that in fact has ceased to exist. 85. Undoubtedly, it is the obligation of the court and all concerned that the marriage status should, as far as possible, as long as possible and whenever possible, be maintained, but when the marriage is totally dead, in that event, nothing is gained by trying to keep the parties tied forever to a marriage which in fact has ceased to exist. In the instant case, there has been total disappearance of emotional substratum in the marriage. The course which has been adopted by the High Court would encourage continuous bickering, perpetual bitterness and may lead to immorality. 86. In view of the fact that the parties have been living separately for more than 10 years and a very large number of aforementioned criminal and civil proceedings have been initiated by the respondent against the appellant and some proceedings have been initiated by the appellant against the respondent, the matrimonial bond between the parties is beyond repair. A marriage between the parties is only in name. The marriage has been wrecked beyond the hope of salvage, public interest and interest of all concerned lies in the recognition of the fact and to declare defunct de jure what is already defunct de facto. To keep the sham is obviously conducive to immorality and potentially more prejudicial to the public interest than a dissolution of the marriage bond. 87. The High Court ought to have visualised that preservation of such a marriage is totally unworkable which has ceased to be effective and would be greater source of misery for the parties. 88. The High Court ought to have considered that a human problem can be properly resolved by adopting a human approach. In the instant case, not to grant a decree of divorce would be disastrous for the parties. 88. The High Court ought to have considered that a human problem can be properly resolved by adopting a human approach. In the instant case, not to grant a decree of divorce would be disastrous for the parties. Otherwise, there may be a ray of hope for the parties that after a passage of time (after obtaining a decree of divorce) the parties may psychologically and emotionally settle down and start a new chapter in life." 14. The Division Bench of Kerala High Court in the case of Beena Vs. Shino G. Babu [2022 SCC online Ker 778] following the decisions of the Hon'ble Apex Court in the case of Naveen Kohli Vs. Neelu Kolhi (supra) and in the case of Samar Ghosh Vs. Jaya Ghosh [ (2007) 4 SCC 511 ], has held as follows:- 5. ........ The Apex Court in Naveen Kohli v. Neelu Kohli [ (2006) 4 SCC 558 ], opined that if the parties cannot live together on account of obvious differences, one of the parties is adamant and callous in attitude for having divorce on mutual consent, such attitude can be treated as the cause of mental cruelty to other spouses. The Apex Court in Samar Ghosh v. Jaya Ghosh [ (2007) 4 SCC 511 ] also considered such act as cruelty in the following words: “Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie the law in such cases does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty.” 6. The law on divorce recognises both fault and consent as a cause for separation. When both the parties are unable to lead a meaningful matrimonial life due to inherent differences of opinion and one party is willing for separation and the other party is withholding consent for mutual separation, that itself would cause mental agony and cruelty to the spouse who demands separation. The purpose of marriage is to hold matrimonial ties lifelong, respecting mutual obligations and rights. The companionship of spouses creates oneness of the mind to walk together. The purpose of marriage is to hold matrimonial ties lifelong, respecting mutual obligations and rights. The companionship of spouses creates oneness of the mind to walk together. It is through mutual respect and courtship, the companionship is built and fortified. The modern jurisprudence of irretrievable break down to allow divorce is premised on the fact that the spouses can never remain together on account of their differences. If the court is able to form an opinion that due to incompatibility, the marriage failed and one of the spouses was withholding consent for mutual separation, the court can very well treat that conduct itself as cruelty. If one of the spouses is refusing to accord divorce on mutual consent after having convinced of the fact that the marriage failed, it is nothing but cruelty to spite the other spouse. No one can force another to continue in a legal tie and relationship if the relationship deteriorated beyond repair. The portrayal of such conduct through manifest behaviour of the spouse in a manner understood by a prudent as 'cruelty' is the language of the lawyer for a cause before the court. This case is also not different. The behavioural disorder pointed out against the appellant in the petition for divorce was essentially reflection of incompatibility that existed between the parties. The husband wants to get out of the struggled relationship, on the projected cause of cruelty with reference to the incidents of misbehaviour. Incompatibility is a factor that can be reckoned while considering the ground for cruelty, if one of the spouses withholds the consent of mutual separation, though incompatibility is not recognised as ground for divorce. 7. The parties are young. They are living separately since 2017. We, in such circumstances, are of the view that for the reasons stated above, the order of the Family Court granting divorce has to be sustained." 15. In the instant case, as pointed out supra, the parties are living separately for more than 9 years. The endeavour to bring re-conciliation between the parties failed, resultantly, the marriage is dead, both emotionally and practically. Continuance of the relationship for namesake is prolonging the agony and affliction would be a cruelty to both the parties. Therefore, we are of the considered opinion that the marriage between the parties has broken down irretrievably and the parties could no longer live together as husband and wife. Continuance of the relationship for namesake is prolonging the agony and affliction would be a cruelty to both the parties. Therefore, we are of the considered opinion that the marriage between the parties has broken down irretrievably and the parties could no longer live together as husband and wife. The respondent is entitled to succeed in the O.P. 16. In such view of the matter, the appeal fails and the same stands dismissed confirming the decree of divorce granted in O.P.No.2820 of 2015 by the Vth Additional Family Court, Chennai. No costs. Consequently connected miscellaneous petition is closed.