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2000 DIGILAW 298 (KAR)

D. PARTHASARATHY v. VINAYAPRABHA

2000-04-06

ASHOK BHAN, V.G.SABHAHIT

body2000
SABHAHIT, J. ( 1 ) THESE two appeals under Section 19 (1) of the Family Courts act, 1984 arise out of the common judgment passed by the I Additional Principal Judge, Family Court, Bangalore, in mc. Nos. 318/93 and 586/1996 dated 24. 7. 1999. ( 2 ) THE parties would be referred to with reference to the rank in MC. No. 318/93 before the Family Court. ( 3 ) THE facts of the case in brief leading up to these appeals are as follows: the petitioner-husband filed a petition under Section 13 (1) (ia) of the Hindu Marriage Act seeking dissolution of the marriage with the respondent performed on 8. 3. 1992 on the ground of cruelty. It is averred in the petition filed on 23. 4 1993 that the petitioner and respondent were married on 8. 3. 1992 at Bangalore. The petitioner has studied upto SSLC, and respondent has studied upto B. A. It is averred that, after marriage petitioner and respondent went to the house of the respondent. During night, respondent asked the petitioner regarding the educational qualitication and the petitioner told her that he had studied upto SSLC and the respondent asked the petitioner to pursue his studies and when the petitioner told that he cannot do at that stage, respondent warned him not to go near her and told that she does not like the petitioner and that she is loving some other boy. It is further averred that on 9. 3. 92 respondent told the petitioner that she was not willing to marry her and it was only on account of the force of her father she had married him. Further, on 10. 3. 1992 when the petitioner asked his father-in-law as to why he has told that he has studied upto B. A. , his father-in-law told he lied to get her married. The petitioner requested his father- in-law to send the respondent to his house, for which he refused and when the petitioner called the respondent to go with him to their house, she also refused saying that she cannot go to that place which is a slum. Again petitioner requested the respondent to go with him to his house on 11,3. 92 and respondent told him that she cannot even put her left foot in his house and without any reason she removed her mangalasutra and threw it away. Again petitioner requested the respondent to go with him to his house on 11,3. 92 and respondent told him that she cannot even put her left foot in his house and without any reason she removed her mangalasutra and threw it away. It is further averred that the house of the petitioner was vacant and respondent refused to live with the petitioner in the said house and as advised by his father-in-law the petitioner let-out the house. Further the respondent insisted that petitioner should close-down his book selling business and accordingly petitioner closed his business which caused loss of rs. 40,000/- which he had invested in the said business. It is further averred that the nuptial ceremony was performed during the month of June, 1992, the respondent did not allow the petitioner to go panchayat was convened and as per the decision of the panchayat, respondent was asked to stay with the petitioner in his brother's house and as they could not live together there also, on 18. 11. 1992 respondent returned to her father's place. It is further averred that one day after four months after the marriage, the petitioner was invited to the house of the respondent for tiffin. While he was eating tiffin his mother-in-law came and teased. him and respondent also joined her. It is further averred that the respondent did not permit the petitioner to accompany her to Dharmasthala, the petitioner was not even invited to the Gowri festival as per custom and despite all efforts made by Prof. Hiriyannaiah and his wife to settle the matter amicably, the respondent refused to live with the petitioner. It is further averred that on 25. 12. 1992 at about 7. 30 pm ten goondas who were drunked attempted to kill the petitioner and tried to forcibly take away the petitioner's car. However, the petitioner has ascaped from the danger due to the timely help of neighbours and friends. He lodged a complaint on 29. 12. 1992 with Kamakshipalya police and he gave an endorsement that the dispute is of a civil nature. It is further averred that on 5. 1. 1993 and 6. 1. However, the petitioner has ascaped from the danger due to the timely help of neighbours and friends. He lodged a complaint on 29. 12. 1992 with Kamakshipalya police and he gave an endorsement that the dispute is of a civil nature. It is further averred that on 5. 1. 1993 and 6. 1. 1993, petitioner, respondent and relatives were called to the Basaveshwarnagar Police Station and the Circle Inspector asked then to live amicably and petitioner and respondent stayed in the house of his brother D. Narayanappa in separate rooms and respondent did not permit the petitioner to enter her room and threatened that she will consume poison and commit suicide throwing the blame on the petitioner. During the said period of stay, she never cooked or served the food to her husband and she had no regard to him and finally on 24. 1. 1993 the father of the respondent took her back, since then she was residing with her parents. It is further averred that the respondent never treated the petitioner like a dutiful hindu wife, the marriage has not been consummated, she never treated him as a husband. Respondent and her family members have treated the petitioner with utmost cruelty and it is impossible for them to live together as husband and wife and wherefore the petitioner sought for dissolution of marriage by granting decree of divorce. ( 4 ) THE respondent-wife appeared and filed objections to the petition for divorce denying the averments made in the petition regarding the alleged conduct of the respondent and her father and the alleged incidents dated 8. 3. 1992, 9. 3. 1992, 10. 3. 1992, 11. 3. 1992 and 15. 5. 1992 and other allegations made in the petition and she denied each and every allegation made in the petition regarding the conduct of the respondent and her father and about the alleged cruel treatment and further averred that the marriage between the respondent and petitioner was solemnised on 8. 3. 1992 and the respondent's father gave cash of Rs. 25,000/-, a gold chain, and gold ring to the petitioner and golden ornaments amounting to Rs. 40,0007- to the respondent. Respondent's father had purchased a site in the name of the respondent. Respondent's father paid advance of Rs. 26000/- for taking the said house on lease on 27. 6. 92. The respondent's father has also paid a sum of Rs. 25,000/-, a gold chain, and gold ring to the petitioner and golden ornaments amounting to Rs. 40,0007- to the respondent. Respondent's father had purchased a site in the name of the respondent. Respondent's father paid advance of Rs. 26000/- for taking the said house on lease on 27. 6. 92. The respondent's father has also paid a sum of Rs. 19,500/- towards purchase of colour TV and it was the respondent's father who paid the rent of the house for all the months. It is further averred that the petitioner was assaulting the respondent and was also abusing her in filthy language. The harassment is for the purpose of extracting a car and site at Basaveshwaranagar from the respondent and her father. The illtreatment continued by the petitioner and his brother- narayanappa and the respondent was subjected to cruel treatment so as to cause reasonable apprehension in the mind of the respondent. The more serious mental cruelty was inflicted. The respondent was thrown out of the house by physically and mentally tormenting her and without any other alternative she has taken shelter in her father's house. The intention of the petitioner is to cause suffering to the respondent. The averments made in the petition do not make out cruelty by the respondent on her father and wherefore, the petition is liable to be dismissed. ( 5 ) DURING the pendency of the petition, the respondent-wife filed M. C. No. 586/1996 before the Family Court under Section 9 of the hindu Marriage Act, seeking restitution of conjugal rights, apart from making the averment which has been made in the objection statement of the petition M. C. No. 318/1993. The respondent-wife averred that the petitioner has deserted her without any reasonable cause. She is ready and willing to lead marital life with him. Inspite of repeated demands and requests, he has failed to take her back. Hence, the petition for restitution of conjugal rights. ( 6 ) THE petitioner-husband has filed objection statement to the said petition making same averments as made in the petition for divorce and further averred that the respondent has deserted him on 8. 3. Inspite of repeated demands and requests, he has failed to take her back. Hence, the petition for restitution of conjugal rights. ( 6 ) THE petitioner-husband has filed objection statement to the said petition making same averments as made in the petition for divorce and further averred that the respondent has deserted him on 8. 3. 1992 on the day on which the marriage was solemnised and it was due to the folly on the part of the wife and now she is willing to lead marital life because they are trying to celebrate the marriage of their next son and all efforts made to join the petitioner and the respondent, they have become futile. ( 7 ) ON the basis of the above pleadings, the parties lead evidence before the Family Court. The petitioner-husband examined himself and examined his brothers PW. 4-Narayanappa and PW. 5-Krishnappa. He also examined PW. 3-Ramakrishnappa his brother-in-law, PW. 6- gangadharamurthy his matemaluncle and another witness Kannaiah- pw. 2 as his witnesses, and got marked Exs. P1 to P13. On behalf of the respondent-wife, she examined herself as RW. 1 and her father was examined as RW. 2, No documentary evidence was produced on behalf of the respondent. ( 8 ) AFTER considering the pleadings of the parties and oral and documentary evidence on record, the learned Judge has framed the following points for consideration: 1) Whether the petitioner proves that the respondent treated him with cruelty? 2) Whether the respondent proves that the petitioner withdrew his society from her without any reasonable cause? 3) Who is entitled for the relief? 4) To what order and decree in MC. 318/93 and to what order and decree in MC. 586/96? and by her order dated 24. 7. 1999 answered the above points as follows: 1) In the negative 2) In the affirmative 3) Respondent/wife 4) As per the final order and accordingly passed the final order dismissing the petition MC. 318/93 filed by the petitioner for divorce and decreed MC. 586/96 filed by respondent-wife for restitution of conjugal rights. ( 9 ) THAT being aggrieved by the judgment and decree passed by the Family Court, the petitioner-husband has preferred MFA. 3625/ 99 against the order of the Family Court decreeing the application for restitution of conjugal rights and he has preferred MFA. 586/96 filed by respondent-wife for restitution of conjugal rights. ( 9 ) THAT being aggrieved by the judgment and decree passed by the Family Court, the petitioner-husband has preferred MFA. 3625/ 99 against the order of the Family Court decreeing the application for restitution of conjugal rights and he has preferred MFA. 3624/ 1999 against the judgment and decree dismissing his application for dissolution of marriage by divorce in MC. No. 318/1993. Both the parties were secured before this Court and attempt was made for reconciliation, which was not been proved to be successful. ( 10 ) SINCE both the appeals arise out of the common judgment passed by the Family Court, they are disposed of by this common order. ( 11 ) WE have heard the learned Counsel appearing for the petitioner-husband and the learned Counsel appearing for the respondent-wife. ( 12 ) THE learned Counsel appearing for the petitioner-husband submitted that the material on record clearly shows that there was no consummation of marriage and the respondent-wife has failed to perform matrimonial obligation which will amount to cruelty. He also submitted that the act of the respondent-wife in throwing away the thali which is considered by the hindus would also amounted to cruelty. He further submitted that the conduct of the respondent as revealed in the evidence of the parties clearly shows that respondent is guilty of having treated the petitioner with cruelty it would constitute a ground for dissolving the marriage and granting decree for divorce under Section 13 (1) (a) of the Hindu Marriage Act ( 13 ) ON the other hand, learned Counsel appearing for the respondent-wife submitted that the petitioner has failed to prove that he was treated with cruelty by the respondent and the respondent's evidence and the evidence of her father clearly shows that it was the petitioner who subjected the respondent to cruelty and there was justifiable ground for the respondent to stay away from the petitioner and he further submitted that in the absence of any justifiable cause for the petitioner for failure to perform matrimonial obligation, the application for restitution of conjugal rights has been rightly allowed by the Family Court. ( 14 ) HAVING regard to the above contention of the parties, the points that arise for consideration in these appeals are: 1} Whether the Family Court was justified in holding that the petitioner-husband has failed to prove that respondent treated him with cruelty and that he is not entitled to decree for divorce on the ground of cruelty? 2) Whether the Family Court was justified in holding that the petitioner-husband has withdrawn from the society of the respondent without reasonable excuse and wherefore, the respondent-wife is entitled to decree for restitution of conjugal rights? 3) Whether the judgment and decree passed by the Family court in MC. 318/93 and 586/96 call for interference in these appeals? ( 15 ) WE answer the above points as follows: Point No. 1 - In the affirmative. Point No. 2 - In the affirmative. Point No. 3 - In the negative for the following reasons:- ( 16 ) POINTS I to III: I) It is the case of the petitioner-husband that the respondent-wife has treated him with cruelty and wherefore he is entitled to a decree for divorce under Section 13 (1) (ia) of the hindu Marriage Act. The said Section 13 (1) (ia) states that: 13 (1): Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party- (ia) has, after the solemnization of the marriage, treated the petitioner with cruelty. The legal conception of cruelty and the kind of degree of cruelty necessary to amount to a matrimonial offence has not been defined by any statute of the Indian Legislature relating to marriage and divorce. The categories of cruelty are never closed. Prior to the Hindu marriage Amendment Act, 1976 cruelly had been defined under section 10 (1) Clause (b): "has treated the petitioner with such cruelty as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful and injurious for the petitioner to live with the other party". These words have been deleted and what is required to be proved is that the opponent has treated the petitioner with cruelty. These words have been deleted and what is required to be proved is that the opponent has treated the petitioner with cruelty. It was seen, the object was to give a definition exclusive or inclusive which will amply meet every particular act or conduct and not fail in some circumstances. The legislature therefore must by amendment be understood to have left to Courts to determine on facts and circumstances of each case whether the conduct amounts to cruelty. This is just as well since actions of men are so diverse and infinite that it is almost impossible to expect a general definition which could be exhaustive and not fail in some cases. ( 17 ) IN the case of V. BHAGAT vs D. BHAGAT, Hon'ble Supreme Court had an occasion to consider as lo what constitutes cruelty a ground for divorce under Section 13 (1) (ia) of the Hindu Marriage act and Hon'ble Supreme Court has laid down in the said decision as follows:-"17. Mental cruelty in Section 13 (1) (ia) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put-up with such conduct and continue to live with the other party. It is not necessary to prove 1. AIR 1994 SC 710 that the mental cruelty is such as to cause injury to the health of the petitioner. While arriving at such conclusion, regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set-out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must be also had to the context in which they were made. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must be also had to the context in which they were made. " ( 18 ) IN that case the Hon'ble Supreme Court has referred to the decision of SHOBHA RANI vs MADHUKAR REDDY wherein Hon'ble supreme Court has laid down as follows: -"section 13 (1) (ia) uses the words "treated the petitioner with cruelty" has not been defined. In deed it could not have been defined. It has been used in relation to human conduct or human behaviour. It is the conduct in relation to or in respect of matrimonial duties and obligations. It is a course of conduct of one which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. If it is physical the Court will have no problem to determine it. It is a question of fact and degree. If it is mental, the problem presents difficulty. First, the enquiry must begin as to the nature of the cruel treatment. Second the impact of such treatment on the mind of the spouse. Whether it caused reasonably apprehension that it would be harmful or injurious to live with the other Ultimately, it is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. There may, however, be cases where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or the injuries effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted. " ( 19 ) THE Hon'ble Supreme Court has also laid down in the above referred decision as follows:-"another circumstance to be kept in mind is that even where the marriage has irretrievably broken down, the Act, even after the 1976 (Amendment) Act does not permit dissolution of marriage on that ground. This circumstance may have to be kept in mind while ascertaining the type of cruelty contemplated by Section 13 (ia ). This circumstance may have to be kept in mind while ascertaining the type of cruelty contemplated by Section 13 (ia ). " ( 20 ) IN view of the above said law laid-down by the Hon'ble Supreme Court, it has to be considered as to whether the Family court was justified in holding that the petitioner-husband has failed to prove that the respondent-wife has treated him with cruelty by considering as to whether the respondent-wife is guilty of such conduct amounting to cruelty that petitioner cannot reasonably be expected to live with the respondent. ( 21 ) WE have gone through the oral and documentary evidence on record. The evidence on behalf of the petitioner-husband comprise of the evidence of himself and his two brothers, his brother-in-law, his maternal uncle and another witness and documentary evidence produced by him comprises mainly of the endorsement issued by the police, copy o. f the complaint, marriage invitation card and lease agreement. On behalf of the respondent-wife the respondent is examined as RW. 1 and her father is examined as RW. 2 and no documentary evidence is produced on her behalf. We have gone through the judgment of the Family Court. ( 22 ) IT is clear from the oral and documentary evidence on record that the family of petitioner and the respondent were not new to each other and they were inter-related. The evidence of PW. 2 is not helpful to substantiate any contention of the petitioner as he has only stated that, he knew both the parties and their family members and he has participated in the engagement ceremony and he does not know as to whose failure there is incompatibility of their relationship. The evidence of the petitioner himself and his brothers pw. 4 and PW. 5 and PW. 3-the brother-in-law of the petitioner shows that there was marriage engagement ceremony and both the parties are inter-related and the families knew about the educational qualification of the petitioner and the respondent. PW. 3 has clearly stated in his evidence that both the families knew about the educational qualification of the petitioner and the respondent. PW. 4 has also stated accordingly that they knew about the educational qualification of the petitioner and the respondent. PW. 3 has clearly stated in his evidence that both the families knew about the educational qualification of the petitioner and the respondent. PW. 4 has also stated accordingly that they knew about the educational qualification of the petitioner and the respondent. Wherefore, in view of this evidence on record, the averments made by the petitioner that on the very first night of the marriage the respondent made enquiry about his educational qualification falls to ground as they knew already about the educational qualification of each other and under these circumstances the evidence of PW. 1 that respondent asked him about his qualification and told him that his qualification was not sufficient and that he should continue his studies. Wherefore, there is no merit in the contention of the learned Counsel appearing for the petitioner that because of the educational qualification of the respondent and the petitioner, petitioner was treated cruelly by the respondent and in the evidence of PW. 1 it is elicited in his cross- examination that the reason for filing this petition is that, respondent told him to study BA and then approach her. In view of the above said evidence on record, it is clear that the say of the petitioner that respondent told him to study BA and then approach him is not at all probable and wherefore the very reason for filing the petition would become baseless. ( 23 ) THE evidence of PW. 3, PW. 4 and PW. 5 shows that after the marriage the petitioner was taken to the respondent's parent's house, they stayed for two days and returned from the house of PW. 4 for the feast arranged for the in-laws and these witnesses do not speak anything about the incident spoken to by the petitioner on 9. 3. 1992 and 10. 3. 1992. ( 24 ) THE learned Counsel appearing for the petitioner-husband submitted that mangalasutra (Thali) is a sacred ornament for a Hindu wife and the said mangalasutra is tied by the husband during marriage and the said mangalasutra is to be always worn by the wife and in the instant case the incident in which the respondent wife has thrown away the mangalasutra would show that she has scant respect for the marriage and this would also amount to treating the petitioner with cruelty. There is no merit in this contention. There is no merit in this contention. Though there is averment in the petition that the respondent threw away the mangalasutra on the incident that occurred on 11. 3. 1992 and during the month of June, 1992 when nuptial ceremony had been arranged, the only person who has spoken to about the said incident is the petitioner himself and this evidence before the Court does not substantiate the averment made in the petition that the respondent tore and threw away the thali twice as averred in the petition. PW. 1 has stated in his evidence that on the next day of marriage he asked his wife to come with him to the wife, the wife said that she would not come with him and so throwing the mangalasutra and tore it away. However, this version has been given a go-bye in the cross-examination of PW. 1, as he has stated in the cross-examination that respondent did not remove her mangalasutra on the next day of his marriage as deposed by him in the examination-in-chief. The pw. 1 has further stated in his evidence that for the first time respondent tore the mangalasutra on the nuptial day arranged during june and until then she was wearing thali. After it was torn, he did not tie back, she might have tied back and he does not remember when the respondent had thrown the thali for the second time. However, this version of PW. 1 is also rendered highly improbable in view of the fact that thali and gold jewels belonging to the respondent has been recovered from the house of PW. 1 by the police, they were produced before the Addl. CMM. , and the respondent taken said jewels and mangalasutra through the Court and PW. 1 has admitted in his cross-examination that Police seized gold jewels and managalasutra from their house, the same was produced before the addl. CMM. , Court and the respondent has received the jewels through the Court, wherefore under these circumstances, the petitioner-husband has miserably failed to prove that he was treated cruelly by the respondent by tearing the thali and throwing it away as alleged in the petition. ( 25 ) THE petitioner has also stated in his evidence that the respondent asked him to close-down his book-shop and he closed his book-shop and suffered loss of Rs. 40,000/ -. ( 25 ) THE petitioner has also stated in his evidence that the respondent asked him to close-down his book-shop and he closed his book-shop and suffered loss of Rs. 40,000/ -. However, in the cross-examination he has stated that he has no document to show that he suffered the said loss and hence this allegation would not probabalise the version of the petitioner that he was treated cruelly by the respondent. ( 26 ) THE allegation of the petitioner against the respondent is that, he was treated cruelly by the respondent by the respondent refusing to perform her marital obligation. According to the petitioner there was no consummation of marriage at all as from the very first night of the marriage the respondent refused to perform her marital obligation. The evidence on records shows that this averment of the petitioner-husband made in the petition is rendered highly improbable by the evidence of the petitioner and his witnesses and that of the respondent on record. Though P. W. 1 states that the marriage was not consummated and PW. 4 and PW. 5 state that petitioner informed them that the marriage was not consummated, the evidence of these witnesses clearly shows that this is highly improbable and the version of the respondent-wife that marriage was consummated is probabalised by the evidence of the petitioner and his witnesses. So far as PW. 3 is concerned, it is elicited in his cross-examination that the petitioner did not inform him directly about his personal affairs, he informed to his sister i. e. wife of PW. 3 and PW. 3 was informed by his wife. However, wife of PW. 3 has not been examined and therefore the evidence of PW. 3 will also be not helpful to the petitioner. It is clear from the evidence of PW. 3, PW. 4 and PW. 5 that after the marriage the petitioner has taken to the parents house of the respondent, they stayed together for two days and thereafter they came to the house of PW. 4 for the feast which had been arranged for the in-laws. Further, the material on record clearly shows that petitioner and the respondent have stayed together for more than one occasion. PW. 3, PW. 4 and PW. 4 for the feast which had been arranged for the in-laws. Further, the material on record clearly shows that petitioner and the respondent have stayed together for more than one occasion. PW. 3, PW. 4 and PW. 5 have stated in their evidence that after the petitioner and respondent returned from respondent's house for feast, they stayed there for two days and thereafter respondent went away to her parents house. They have, further stated that during Panchayat it was agreed that respondent has to stay with the petitioner in the house of Narayanappa-PW. 4 nd respondent has also agreed for the same and they lived in the house of PW. 4, though they said that they were living separately. PW. 1 has also stated in his evidence that there was panchayat in the Prashanthnagar house and it was decided that himself and respondent should stay in the house of his elder brother, his wife came to the house of his elder brother, but they did not stay together in one room, the stayed in separate rooms. Further, the evidence of the witnesses PW. 3 to PW. 5 also shows that after a complaint had been lodged with the Basaveshwara Nagar Police, basaveshwaranagar police Inspector advised both the petitioner and the respondent to live together and thereafter they have lived together for some days in the house of PW. 4 and it is elicited in the cross-examination of PW. 5 that there was cordiality between the two families till the date of nuptial ceremony and further it is elicited in the cross-examination of PW. 1 himself that subsequent to the advise of the Police they lived for two days and subsequent to advise by the Police there was no further fight between them and there was no quarrel between their families also. Further the evidence on record clearly shows that neptual ceremony was arranged with the consent of the parties in June, 1992 and this would also clearly bely the version of the petitioner that the respondent was not willing to perform her marital obligation. The respondent has clearly stated that she is willing to perform her matrimonial obligation and the material on record shows that it is the petitioner who is now stating that he is not ready to perform the marital obligation with the respondent. The respondent has clearly stated that she is willing to perform her matrimonial obligation and the material on record shows that it is the petitioner who is now stating that he is not ready to perform the marital obligation with the respondent. Though he has denied the suggestion of the respondent in the cross-examination that from the beginning respondent was willing to cohab. it with him and she was expressing her willingness, he was not performing the marital obligation, to specific question "are you ready to cohabit with her, if she is willing to join you?" the answer of the petitioner - PW. 1 is: " I am not ready". Further, he has added, since she humiliated him initially. He has further admitted that he lodged the complaint first before the Police and thereafter the complaint was filed by the respondent. It is also further elicited that, he has no consent to lead marital life with the respondent- Wherefore, the above said material on record clearly shows that the contention of the petitioner that respondent did not perform her marital obligation and there was no consummation is highly improbable and has not at all been proved by the petitioner. ( 27 ) THE learned Counsel appearing for the petitioner-husband submitted that the respondent has filed a criminal case against the petitioner alleging that she was subjected to cruelty by demanding dowry and this allegation itself would amount to treating the petitioner with cruelty. There is no merit in this contention. PW. 1 has admitted in his cross-examination that criminal complaint was filed by him first and the case initiated on the basis of the complaint of the respondent alleging dowry harassment is still pending before the court as is clear from the evidence on record. Moreover, the evidence on record shows that the Prashanthnagar house advance amount was paid by the respondent's father and the allegation made in the complaint by the respondent are to be substantiated in the criminal court and wherefore, the veracity of it is to be decided by the Court. Mere filing of complaint would not amount to mental cruelty to the petitioner. Mere filing of complaint would not amount to mental cruelty to the petitioner. ( 28 ) IN view of the above, it is clear that the petitioner has failed to prove that he was subjected to cruelty by the respondent and wherefore, the Family Court has rightly held that he is not entitled to decree of divorce by dissolving the marriage as claimed by the petitioner-husband in M. C. No. 318/1993. However, the above said material on record clearly shows that the respondent and petitioner are living separately and in view of the fact that respondent has failed to show that he had any balid cause for not performing the marital obligation and has withdrawn from the society of the respondent without reasonable excuse and in view of the specific answer given by the petitioner in his evidence as P. W. 1 that he is not ready to cohabit with the respondent if she is willing to join him and that he has no consent to lead marital life with the respondent, the Family Court has rightly held that the respondent-wife is entitled to an order of restitution of conjugal rights under Section 9 of the hindu Marriage Act as sought for by the respondent-wife. Accordingly, we answer point Nos. 1 and 2 in the affirmative, and in view of our finding on Points 1 and 2, we hold that the judgment and decree passed by the Family Court in MC. 318/1993 and 586/1996 dated 24. 7. 1999 does not call for interference in these appeals and the said judgment and decree are entitled to be confirmed. Accordingly, we pass the following order: the judgment and decree passed in MC. Nos. 318/1993 and 586/1996 dated 24. 7. 1999 is confirmed and both the appeals are dismissed. No costs. --- *** --- .