Judgment : Common Judgment: (Vilas V. Afzulpurkar, J.) Both these appeals are preferred by the wife under Section 19 of the Family Court Act against the common order passed by the learned Judge, Family Court, Hyderabad in OP Nos. 13 of 1998 and 259 of 1998, dated 20.8.2001. The appellant is the wife and the respondent is the husband in both these appeals and they are being referred to as "the wife" and "the husband". OP No. 13 of 1998 was filed under Section 9 of the Hindu Marriage Act, 1955 (for short "the Act") by the husband on 5.1.1998 seeking restitution of conjugal rights, whereas OP No. 259 of 1998 was filed by the wife on 3.4.1998 seeking divorce on the ground of cruelty. Both the said OPs were tried together and by common order, while OP for restitution of conjugal rights was allowed, the divorce OP was dismissed. Hence the wife has assailed the said common order in both these appeals. We have heard Sri R. Satyanarayana Reddy, learned counsel for the appellant-wife and Sri Ch. Dhanamjaya, learned counsel for the respondent-husband, in both these appeals. The learned counsel for the appellant-wife questions the impugned order by contending that the court below has not appreciated the pleadings and evidence adduced on behalf of the wife in a proper perspective manner, keeping in view the facts situation. The learned counsel also contends that though the wife tolerated the humiliation, torture and demands of the husband for a considerable length of time from the date of marriage i.e., 25.11.1984 till she parted with the company of the husband in February, 1997, her evidence has been ignored by merely observing that there are no specific acts of cruelty alleged by the wife. The learned counsel, therefore, contends that in the matter of this nature the totality of the circumstances ought to have been taken into consideration by the court below. The learned counsel, therefore, contends that in the matter of this nature the totality of the circumstances ought to have been taken into consideration by the court below. The learned counsel also contends that there is neither any pleading nor any evidence to show that the husband is financially unsound and requires maintenance from his wife and as such he contends that the court below has committed an error in granting the maintenance to the husband as a permanent alimony under Section 25 of the Act which has a charge on the house property of the appellant covered under Ex.P4-sale deed as well as on other house and he also objects to the condition imposed by the court below in the operative portion of the order while ordering restitution of conjugal rights. The learned counsel also contends that the order of restitution of conjugal rights is wholly unwarranted on the facts and circumstances of this case, inasmuch as the cruelty having been established by the wife, it categorically proves that the wife has reasonable apprehension and is justified in staying separately. The learned counsel also contends that admittedly the appellant and the respondent are staying separately from February, 1997 i.e., past more than 11 years. The proceedings of this Court in these appeals dated 8.7.2002 also recorded that the attempts for reconciliation have not yielded any results. The learned counsel for the respondent-husband contends that there are no specific averments pleaded by the wife substantiating the cruelty and as such there is no justification for grant of divorce and he supports the order of the court below. In addition, the learned counsel also contends that the husband has lost business and has no income of his own, whereas the wife is a Central Government employee and as such the order granting maintenance to husband as a permanent alimony under section 25 of the Act is justified. Both the learned counsel have taken us through the pleadings and the evidence on record and we have given our anxious consideration to the facts and circumstances of the case. The pleadings of the parties in both the OPs are almost similar. Both the learned counsel have taken us through the pleadings and the evidence on record and we have given our anxious consideration to the facts and circumstances of the case. The pleadings of the parties in both the OPs are almost similar. It is not in dispute that there are no children born to the parties and while the wife was working in Food Corporation of India, the husband was running a plastic industry and he claims to have purchased immovable property in the name of his wife. There is evidence led on behalf of the wife that various immovable properties and house hold articles were purchased by her from her salary and she was paying instalments thereof. The findings of the court below also support that the house property and movables were purchased by the wife by spending her own funds and the salary slips showing deductions as well as cash memo for purchasing the movables were exhibited under Exs. P4 to P15. The husband who claims that he has lost the business and he is having medical problem has exhibited Exs.R1 to R4 which are in the nature of medical prescriptions, expenditure and receipts for the years 1984 to 1987. The averments in the divorce OP No. 259 of 1998 filed by the wife are that while the couple was living together for eight years after marriage, her marital life was not happy on account of the attitude and behaviour of the husband. He used to humiliate, torture mentally and bodily and insult frequently for the purpose of getting money to meet his bad habits. Though the wife tolerated and tried to adjust with the husband with the hope that he would realize his mistake one day or the other, but the husband never changed his attitude and did not stop harassing and demanding money from her. She further alleged that the husband never discharged his matrimonial obligations as a responsible husband at any point of time and he always had indifferent attitude towards her and she alone used to manage the house hold expenditure with her salary and she alone purchased the house hold articles such as steel almirah, dressing table, two steel cots, colour T.V., electronic items etc. It is, therefore, alleged that the husband never gave love and affection to his wife and always made her feel frustrated. It is, therefore, alleged that the husband never gave love and affection to his wife and always made her feel frustrated. It is also alleged that there were attempts by the relatives and elders who advised the husband to change his attitude and behave properly with his wife, but he ignored their advice and continued to misbehave in the same way and being apprehensive and having lost the hopes, she was constrained to leave the house in February, 1997 and was staying in her brother's house as there was no other alternative way. The husband filed a counter denying that they were not happy during the eight years of stay. He also denied the harassment, torture and humiliation as alleged by the wife. He also asserted that he discharged all the marital obligations and he managed the house hold expenditure and purchased the house hold articles. He further asserted that he had extended all his love and affection to his wife and claimed that he purchased a plot in the name of his wife at Jiyaguda and also developed a plot at B.N. Reddy colony. The wife was examined as P.W.1 in support of her claim wherein she reiterated the allegations made in the divorce petition. However, certain portions of her cross-examination are relevant, which are extracted hereunder, "Till my husband filing OP No. 13 of 1998 for restitution of conjugal rights by my husband I was made to leave his company by his harassment by way of abusing me and questioning me about my salaries and beating me and driving me out from the house. I cannot say the exact date of instances every time. I am residing along with my eldest brother, witness again says all my brothers are under one roof in joint. I have four brothers. There are about ten issues to my brothers and I have no sisters. My parents are no more. It is not true to say that I am deposing falsehood as if my husband beating and abusing and driving out and asking about my salaries. I have no issues out of our wedlock. It is not true to say that my brothers making quarrels in between my husband and myself. It is not true to say that to swallow my salaries and other things my brothers are making quarrels between my husband and me. I have no issues out of our wedlock. It is not true to say that my brothers making quarrels in between my husband and myself. It is not true to say that to swallow my salaries and other things my brothers are making quarrels between my husband and me. I am suffering this harassment since last 14 years. It is not true to say that my husband never harassed me and treated me well with reverence always. It is not true say that the respondent has no bad habits like drinking and that I falsely averred the same for my petition purpose. It is not true to say that I deposed false averred as if I was paying monies to my husband for his vices. It is not true to say that he was having plastic factory. Witness adds that it was only 1996 or so with my money he started running a plastic factory. I paid him Rs.50,000/- in 1996. I do not know what was the amount he invested for that business. I did not mention in my pleadings my giving of Rs.50,000/- in 1996. I do not know for how long he runs the factory after I left him..............He was partner to the plastic factory business whose names I cannot say. I have not seen the plastic factory business. It is not true to say that I have gone through to the factory once at night because I was suspecting him that he was moving with other women. It is not true to say unable bear with my mental torture and harassment he could not run the factory and business resulted in its closer. It is not true to sya that at the time of running plastic factory my husband purchased a plot at Jiyaguda in my name. .................It is not true to say that in our fourteen years marital life I harassed him for not fault of him despite he was treating me well. It is not true to say that I beat him in 1986 and caused injury. It is not true to say that the mediations were taken place only to create a scene and to blame him even though without his fault. ........I obtained a loan from my employer at BN Reddy Nagar at Vanasthalipuram. It is not true to say that my husband incurred amounts for its improvements and additions. It is not true to say that the mediations were taken place only to create a scene and to blame him even though without his fault. ........I obtained a loan from my employer at BN Reddy Nagar at Vanasthalipuram. It is not true to say that my husband incurred amounts for its improvements and additions. I am now drawing salary of Rs.7800/- PM. I could not remember the salary in 1986. I was not maintaining any accounts in respect of my salary in 1986. The Ex.R-2 is the expenditure and receipts written by me during December, 1984 to August, 1987. It is not true to say that my husband is maintaining the house and I was only contributing to the house Rs.500/- from my salary I purchased Konrk TV through Bank Loan............" As mentioned above, P.W.1 exhibited various documents being Exs.P4 to P15 showing that she paid the instalments for various house hold articles as well as against loans for purchase of house site and for construction of house at Jiaguda as well as in B.N. Reddy colony and it is suggested to P.W.1 that the plot covered by Ex.P4 and other movables were purchased by her husband with his money. The husband who was examined as R.W.1 stated in his evidence that his wife was quarreling with him for petty causes and she left his company for her parents' house. Her brothers were instigating her as they were interested to knock away her house property at B.N. Reddy colony and they were creating problems in their matrimonial life as they had no children. He asserts that he purchased immovable and movable properties. He also claims that he was running a partnership business in manufacture of polythin bags in S.S.I. unit. He, however, admitted in his cross-examination that he did not file any documents pertaining to house hold articles to show that he purchased those articles. He also admitted that he does not have any documentary evidence to show that the house at B.N. Reddy colony and the house at Jiaguda were purchased by him. He further stated that he was earning Rs.8,000/- to Rs.10,000/- per month in 1997. He further admitted that his wife was working in Food Corporation of India and obtained loan from her employer for purchasing house site at B.N. Reddy colony. He further stated that he was earning Rs.8,000/- to Rs.10,000/- per month in 1997. He further admitted that his wife was working in Food Corporation of India and obtained loan from her employer for purchasing house site at B.N. Reddy colony. The pleadings and the evidence on record, therefore, clearly point out that the wife, out of her own earnings, was maintaining the house hold expenditure and purchased house hold articles and house property out of her own earnings. The point for consideration is therefore whether the appellant-wife has established the ground of cruelty for claiming the divorce? As mentioned above, her specific case in the pleadings and evidence is that for eight years she adjusted herself to the humiliation, torture and insult made by her husband and she was constantly harassed for money by the husband and in the fond hope that the husband's attitude would be changed, she continued the matrimonial life bearing all the humiliation and torture. It is, therefore, clearly probable that after loosing all hopes she was constrained to leave the matrimonial house in February, 1997 as she says that there was no other alternative way. The wife, therefore, cannot be said to have acted contrary to the expectations that of a Hindu wife. She had best adjusted with her husband and when the situation became unbearable, she had to leave the matrimonial house and stay with her brothers. The counter filed by the husband to the divorce OP which is briefly extracted above merely asserts that the husband alone had contributed to the matrimonial home in all respects, but the husband failed to substantiate any of the said allegations made in the counter. Further except general denial, there is hardly any averment by the husband in reply to the divorce OP filed by the wife. During evidence also the husband was unable to substantiate any of his contentions. The cross-examination of the wife including the suggestions given on behalf of the husband which are extracted above would also show that the husband was running a plastic industry and being in business there is no fixed income, and therefore it is quite probable that there were constant demands by him on the wife for money. The cross-examination of the wife including the suggestions given on behalf of the husband which are extracted above would also show that the husband was running a plastic industry and being in business there is no fixed income, and therefore it is quite probable that there were constant demands by him on the wife for money. The Court below has proceeded to disbelieve the allegations of cruelty made by the wife and ignored her statement by merely observing that she was unable to give specific instances of cruelty. Exact dates of instances at every time cannot be given by her and the substance of her claim is that for eight to ten years during which they were staying together there were quarrels between them which is also not disputed by the husband. All the facts and circumstances taken together, therefore, probablise the allegations of the wife that the husband treated her with cruelty and she was justified in her reasonable apprehension that it would not be safe to continue the matrimonial life and left the matrimonial house without taking her bag and baggage, documents relating to properties and other valuables and she had taken shelter at the house of her brothers. All this shows that she was constrained to leave the house which established cruelty as alleged by the wife. In addition to the above, the fact that both of them are not living from February, 1997 i.e., past 11 years and her assertion that there is no chance of reunion between the parties coupled with the fact that all attempts of reconciliation even in this court made in the year 2002 have failed clearly shows that the marriage of the appellant and the respondent is irretrievably broken down. Both the wife and husband are in advance age, the wife is now approximately 52 years, and the husband is 54 years, There is no chance of saving the marriage. The Apex Court has considered the question as to what amounts to 'cruelty' in the recent decisions which are necessary to notice while deciding this case. In a decision reported in Sujata Uday Patil Vs. Uday Madhukar Patil ((2006) 13 Supreme Court Cases 272) the Hon'ble Supreme Court has interpreted the provisions of sub-section (1) of Section 13 of the Hindu Marriage Act and also several sub-clauses thereunder. In a decision reported in Sujata Uday Patil Vs. Uday Madhukar Patil ((2006) 13 Supreme Court Cases 272) the Hon'ble Supreme Court has interpreted the provisions of sub-section (1) of Section 13 of the Hindu Marriage Act and also several sub-clauses thereunder. It will be apt to extract the following passages from the said judgment, ".... Therefore, a liberal approach has to be adopted in dealing with various clauses of sub-section (1) of Section 13 of the Act and full meaning should be given to the words used by the legislature. 7. The word "cruelty" and the kind or degree of "cruelty" necessary which may amount to a matrimonial offence has not been defined in the Act. What is cruel treatment is to a large extent a question of fact or a mixed question of law and fact and no dogmatic answer can be given to the variety of problems that arise before the court in these kind of cases. The law has no standard by which to measure the nature and degree of cruel treatment that may satisfy the test. It may consist of a display of temperament, emotion or pervasion whereby one gives vent to his or her feelings, without intending to injure the other. It need not consist of direct action against the other but may be misconduct indirectly affecting the other spouse even though it is not aimed at that spouse. It is necessary to weigh all the incidents and quarrels between the parties keeping in view the impact of the personality and conduct of one spouse upon the mind of the other. Cruelty may be inferred from the facts and matrimonial relations of the parties and interaction in their daily life disclosed by the evidence and inference on the said point can only be drawn after all the facts have been taken into consideration. Where there is proof of a deliberate course of conduct on the part of one, intended to hurt and humiliate the other spouse, and such a conduct is persisted, cruelty can easily be inferred. Neither actual nor presumed intention to hurt the other spouse is a necessary element in cruelty." "10. Matrimonial disputes have to be decided by courts in a pragmatic manner keeping in view the ground realities. Neither actual nor presumed intention to hurt the other spouse is a necessary element in cruelty." "10. Matrimonial disputes have to be decided by courts in a pragmatic manner keeping in view the ground realities. For this purpose a host of factors have to be taken into consideration and the most important being whether the marriage can be saved and the husband and wife can live together happily and maintain a proper atmosphere at home for the upbringing of their off springs. This the court has to decide in the fact and circumstances of each case and it is not possible to lay down any fixed standards or even guidelines." There is another decision of the Hon'ble Supreme Court reported in Samar Ghosh Vs. Jaya Ghosh ((2007) 4 Supreme Court Cases 511) and the paragraphs 98 to 102 are relevant for our case which are extracted hereunder, "98. On proper analysis and scrutiny of the judgments of this Court and other courts, we have come to the definite conclusion that there cannot be any comprehensive definition of the concept of "mental cruelty" within which all kinds of cases of mental cruelty can be covered. No court in our considered view should even attempt to give a comprehensive definition of mental cruelty. 99. Human mind is extremely complex and human behaviour is equally complicated. Similarly human ingenuity has no bound, therefore, to assimilate the entire human behaviour in one definition is almost impossible. What is cruelty in one case may not amount to cruelty in other case. The concept of cruelty differs from person to person depending upon his upbringing, level of sensitivity, educational, family and cultural background, financial position, social status, customs, traditions, religious beliefs, human values and their value system. 100. Apart from this, the concept of mental cruelty cannot remain static; it is bound to change with the passage of time, impact of modern culture through print and electronic media and value system, etc. etc. What may be mental cruelty now may not remain a mental cruelty after a passage of time or vice versa. There can never be any straitjacket formula or fixed parameters for determining mental cruelty in matrimonial matters. The prudent and appropriate way to adjudicate the case would be to evaluate it on its peculiar facts and circumstances while taking aforementioned factors in consideration. 101. There can never be any straitjacket formula or fixed parameters for determining mental cruelty in matrimonial matters. The prudent and appropriate way to adjudicate the case would be to evaluate it on its peculiar facts and circumstances while taking aforementioned factors in consideration. 101. No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of "mental cruelty". The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive: (i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty. (ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party. (iii) Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable. (iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty. (v) .......... (vi) ......... (vii) Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty. (viii) ......... (ix) ......... (x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty. (xi) ......... (xii) ........ (xiii) ......... (xiv) 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. (xi) ......... (xii) ........ (xiii) ......... (xiv) 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. (Relevant sub-paras of para-101 are extracted above) 102. When we take into consideration aforementioned factors along with an important circumstance that the parties are admittedly living separately for more than sixteen-and-a-half years (since 27-8-1990) the irresistible conclusion would be that matrimonial bond has been ruptured beyond repair because of the mental cruelty caused by the respondent. In the light of the above legal position, if we examine the facts and circumstances of the present case, and the cruelty as alleged by the wife would certainly fall in the description where she speaks of mental pain, agony and suffering for a considerable long length of time and she had to tolerate the indifference and neglect and the feeling of deep frustration and disappointment. Thus keeping in view the overall situation and liberal approach required to be adopted in dealing with such a cause, we are satisfied that the wife has made out a case for divorce on the ground of cruelty meted out to her by the husband. Keeping in view the over all facts and circumstances of the case, therefore, we are satisfied that OP No. 259 of 1998 deserves to be allowed by granting a decree of divorce between the parties as prayed for. So far as OP No. 13 of 1998 filed by the husband for restitution of conjugal rights is concerned, it was filed in January, 1998 on account of the wife leaving the matrimonial home in February, 1997 as stated above. In the said OP the substance of the claim of the husband is that he was running the matrimonial home, all movable and immovable properties were purchased by him out of his own funds and in order to enjoy the income of the wife, her brothers were instigating her and as such he claims that efforts of the mediators having failed, he approached the Court under Section 9 of the Act. The wife filed a counter to the said OP wherein she asserts almost the same allegations which were made by her in divorce OP and she states that the husband never gave love and affection and made her frustrated and in spite of her best efforts to put up with him, he never reciprocated and always harassed her mentally and physically day in and day out. Therefore, she apprehended danger and insecure to her life and separated from the company of her husband and was constrained to file the OP for divorce. She further alleges that the intention behind the filing of the OP for restitution of conjugal rights is to extract money from her which is evident from the fact that he claims monthly maintenance from her to harass the wife through court litigation. She denied the ill-health alleged by the husband. The evidence on record which has been discussed above therefore clearly shows that the husband was carrying on his own avocation of running a plastic industry and in fact, he has asserted in the pleadings as well as in the evidence that he has purchased all the movables and house properties out of his own funds and that he was running the house hold expenditure himself. Further it is significant to notice that there are no pleadings by the husband much less any evidence warranting any order under Section 25 of the Act for permanent alimony as ordered by the court below. The primary claim for restitution of conjugal rights under Section 9 of the Act as pleaded by the husband would become unsustainable in view of the finding above that the wife had reasonable apprehension and was justified in leaving the matrimonial home and staying with her brother's house. The fact that the husband seeks restitution of conjugal rights contradicts his claim that he needs to be maintained by his wife. Both the said positions taken by the husband are mutually contradictory. It is significant that if really the wife intended to desert her husband, she would not leave without bag and baggage and without documents relating to her properties in her matrimonial house and she has merely walked out of the house to take shelter in her brother's house. Both the said positions taken by the husband are mutually contradictory. It is significant that if really the wife intended to desert her husband, she would not leave without bag and baggage and without documents relating to her properties in her matrimonial house and she has merely walked out of the house to take shelter in her brother's house. It cannot be, therefore, said that the desertion of the matrimonial home by the wife is without any reason and cause and consequently the relief under Section 9 of the Act cannot be granted on that ground. The Court below has not appreciated any of these aspects and while rejecting the divorce application of the wife on the ground that she has not given specific instances of acts of cruelty, the court below has allowed the OP for restitution of conjugal rights. Therefore, OP No.13 of 1998 is liable to be dismissed as the wife had reasonable and justifiable cause for taking her separate residence. So far as the order of permanent alimony under Section 25 of the Act granted by the Court below is concerned, as referred to above, there is no pleading nor is there any admissible evidence on the part of the husband to substantiate his claim for alimony either for interim or permanent. The suggestions in the cross-examination of P.W.1 show that he was running a plastic industry. Further merely on the basis of medical prescriptions and receipts for the years 1984-87 cannot be said to be established that the husband's health is not sound while considering the OPs of 1998. No evidence of the existing income or the health of the husband as alleged has been produced before the Court below and as such merely because the wife was working in Food Corporation of India would not automatically entitle the husband to claim permanent alimony from her. The Court below has relied on a decision of this Court reported in Jayakrishna Panigahi Vs. Smt. Surekha Panigrahi (AIR 1996 ANDHRA PRADESH 19). The learned counsel for the respondent also relied upon the same judgment particularly paragraph-14 thereof to justify the order of the court below for granting alimony under Section 25 of the Act, although there are no pleadings. Smt. Surekha Panigrahi (AIR 1996 ANDHRA PRADESH 19). The learned counsel for the respondent also relied upon the same judgment particularly paragraph-14 thereof to justify the order of the court below for granting alimony under Section 25 of the Act, although there are no pleadings. It is to be appreciated that in the said decision it was brought on record that the wife had already filed a suit for maintenance being OS No. 35 of 1990 in the Court of the Subordinate Judge at Berhampur and she was already granted interim maintenance in pursuance of the orders of the Court in that suit and the arrangement with respect to permanent alimony was only based upon grant of additional sum, if any. In that context this Court had taken into consideration the overall conduct of the parties and evidence on record that proceedings for maintenance were pending in which orders were passed by the Court and taking that into consideration permanent alimony was made by the court. The facts of the present case are totally different and there is nothing on record to warrant an order of maintenance as passed by the court below. We are, therefore, satisfied that the impugned order of the Court below to the extent of granting permanent alimony to the husband deserves to be interfered with and is accordingly set aside. In the result, therefore these appeals are allowed and OP No. 259 of 1998 is allowed and OP No. 13 of 1998 is dismissed. However, there shall be no order as to costs.