Judgment : Civil Miscellaneous Second Appeal No. 25 of 2006 is filed challenging the order and decree dated 4. 2006 made in H.M.C.M.A. No. 53 of 2005 on the file of I Addl. District Court, Tirunelveli reversing the order and decree dated 29. 2005 made in H.M.O.P. No. 66 of 2003 on the file of I Addl. Subordinate Court, Tirunelveli. 2. Civil Miscellaneous Second Appeal No. 26 of 2006 is filed challenging the order and decree dated 4. 2006 made in H.M.C.M.A. No. 54 of 2005 on the file of I Addl. District Court, Tirunelveli reversing the order and decree dated 29. 2005 made in H.M.O.P. No. 72 of 2003 on the file of I Addl. Subordinate Court, Tirunelveli. 3. The following are the allegations contained in the petition in H.M.O.P. No. 66 of 2003 by the respondent under Section 13 (ia) and (i)(b) of the Hindu Marriage Act 25 of 1965. 3(a) The marriage of both the parties was solemnized as per the Hindu rites on 28. 1987 at Meenakshi Chokkanathar Temple at Aruppukottai, Virudhunagar District the receiption was held on 20.8.1987 at Somasundariammal Trust Kalyana Mandapam at Palayamkottai. During their living in Tamil Nadu Housing Board Colony, Maharaja Nagar, the wife’s attitude towards the husband changed and she began to quarrel for no reason besides making baseless allegations against the husband. She went away and after exchange of notices and after intervention of Ex-Speaker Chellapandian, a compromise was made and thereafter they lived together. 3(b) The husband obtained loan and purchased Plot No. 61, N.G.O. New Colony and constructed a house. Both the parties moved to the new house. The wife started quarreling and began to suspect him without any basis. She also abused him as impotent drunkard and womanizer. Her behaviour totally changed and she looked like a psyche. When the husband met his mother and sister, she began to abuse him in filthy language stating that he has illicit intimacy with them. She refused to cook or provide food. In November 1998, she threw away the bed and looked the door and directed him to live in the upstairs and she never resumed for cohabitation. 3(c) She is working at a scientific assistant in Forensic Laboratory in Tirunelveli Medical College. She refused to cook or provide food. In November 1998, she threw away the bed and looked the door and directed him to live in the upstairs and she never resumed for cohabitation. 3(c) She is working at a scientific assistant in Forensic Laboratory in Tirunelveli Medical College. She did not disclose her income and how she spents but insisted him to give all his earnings and wished that he should not maintain his parents. In January 1999, she came to the upstairs portion and demanded him to transfer the house in her name. She refused to perform her marital obligations and duties for the past three years. She has willfully neglected and deserted the petitioner. She continued to be a sadistic woman without any affection towards him and is always causing mental agony to him. Now, the relationship totally impaired beyond reproach. Hence, a decree may be passed dissolving the marriage which took place between the parties on 28. 1978 by a decree of divorce. 4. In the counter filed by the wife, the following are stated- 4(a) The petition is not bona fide. It is filed mainly for the reason that there is no issue for her and also to marry another lady. His parents, brothers and sisters are also instigating him to get divorce any marry another lady. He with the help of his brother, parents and sisters had married one Subbulakshmi and he is leading an adulterous life with her. He abruptly went away from the house on 14. 2003. While leaving, he also removed the telephone connecting and took away the instrument also and shifted the connection to his new house at Vannarapettai. 4(b) It is false to state that she abused him that he is a impotent fellow, drunkard and womanizer. It is also incorrect to state that he had illicit intimacy with his mother and sister and that the wife refused to cook or provide food to them. It is also false to state that in November 1998, she threw away the bed and locked the door and directed him to live in the upstairs portion. She spent more than six lakhs for construction of the house and allowed the house to be in the name of her husband. He contributed only Rs. 1 ½ lakhs for the construction of the house. She spent more than six lakhs for construction of the house and allowed the house to be in the name of her husband. He contributed only Rs. 1 ½ lakhs for the construction of the house. 4(c) After exchange of notices, it was stated that the husband should give her atleast Rs.500/- per month for household expenses, it is not correct to state that in January 1999, she demanded him to transfer the house in her name. The upstairs portion was occupied by tenants. It is further stated that both of them went to Madras alongwith his parents from 212. 2000 to 212. 2000 by availing the LTC. It is false to state that her attitude and behaviour caused mental agony and cruelty to him. It is also denied that the refused to perform her marital obligations and duties for the past three years. She did not neglect or desert him. As a matter of fact, throughout she has been very affectionate and obliging the marital life till the end. The respondent never caused any mental or physical cruelty to him. Hence, the petition may be dismissed. 5. In the petition filed by the wife in H.M.O.P. No. 72 of 2003 under Section 9 of the Hindu Marriage Act, the following allegations are available (in addition to the averments contained in the counter for divorce petition, she has further averred thus): On 14. 2003 morning, the husband was cordially talking to her. Her elder sister spoke from Virudhunagar to him requesting him to send the question papers for her daughter who is studying at Siddha Meidcal College, Munjirai in Kanyakumari District thereby he contacted her sister’s daughter by name Ambika and he wished her best of luck. Subsequently, she left for her work. When she returned back at 6.45 p.m., the house was locked. Both of them used to have one key each for the house. She opened the door and found that he has removed the articles such as Cot, Bureau 2 in one, two tables, five chairs, two ceiling fans, iron box, chappathi maker and teapoy belonging to him. He also removed gold jewels weighing 30 sovereign from her bureau. She took loan from GPF and thrift loan from Co-operative Society and also had pledged her jewels for her family expenses and investments. Despite of these weakness, she had shown all love and affection towards him. He also removed gold jewels weighing 30 sovereign from her bureau. She took loan from GPF and thrift loan from Co-operative Society and also had pledged her jewels for her family expenses and investments. Despite of these weakness, she had shown all love and affection towards him. She seriously wishes to live with her husband. Hence, the petition has been filed for restitution of conjugal rights. 6. In the counter statement filed by husband, the following have been alleged (in addition to the allegations in H.M.O.P. No. 66 of 2003, he mentioned further as follows): 6(a) The exchange of notices would clearly reveal her true conduct and character. AT times, she used to declare that she would either end her life or his life. She also declared that she would give a false complaint to the police as if he demanded dowry from him. After desertion of the wife, he is living with his parents in a rental house in V.M. Chatram. The allegation that she got GPF loan from thrift Co-operative Society is false. It is false to state that he married one Subbulakshmi. She is his employee and the statements are defamatory. She came to office and abused the said Subbulakshmi in filthy language. She also wrote complaint to his higher authorities and thus caused mental agony. 6(b) She gave a false complaint on 30.4.2003 before Inspector of Police (women wing) and also F.I.R. under Section 498A and 406 IPC was registered and the case is pending in Judicial Magistrate Court No. 1, Tirunelveli. He is now on bail. She pushed his father down on 13. 2003 and he was treated in Tirunelveli Medical College Hospital. The contrary allegations are denied in detail. Hence, the petition may be dismissed. 7. Thelearned First Additional Subordinate Judge, Tirunelveli, after considering the oral evidence, pleading and materials on record, dismissed the petition filed by the husband and allowed the petition filed by the wife which was for restitution of conjugal rights. Aggrieved against this, the husband preferred appeals in H.M.C.A. Nos. 53 and 54 of 2005 and the said appeals were allowed by the learned First Additional District Judge, Tirunelveli after hearing both sides on 4. 2006. The wife has preferred these CMSAs challenging the common judgment passed in the appeals by the First Appellate Court. 8. Aggrieved against this, the husband preferred appeals in H.M.C.A. Nos. 53 and 54 of 2005 and the said appeals were allowed by the learned First Additional District Judge, Tirunelveli after hearing both sides on 4. 2006. The wife has preferred these CMSAs challenging the common judgment passed in the appeals by the First Appellate Court. 8. On hearing the arguments of the learned counsel for both sides, this Court framed the following points for determination in their presence: .(1) Whether the wife perpetrated cruelty upon the husband? .(2) Whether she deserted him so as to enable the Court to grant decree of divorce in favour of her husband? .(3) Whether the marriage between the spouses could be dissolved on the ground of Irretrievable breakdown of marriage? Point No. 1: 9. Even though both the petitions and appeals were flooded with various facts and circumstances, in order to have a candid and concise discussion and decision on the points, this Court does not widen the scope of the matter. Suffice it, to highlight and indicate essential certaining the entitlement of the parties for the reliefs sought for. It is admitted that both of them lived in New NGO Colony at Tirunelveli and they got separated and at the intervention of elders, they again lived together. Thereafter, love lost arose between them which has made cleavage between them that continued for a long time separating them without re-union. 9(a) As far as the ground cruelty is concerned, the respondent/husband puts forth two circumstances. One is that she abused him that he was impotent, drunkard and womanizer. Another one is that the allegation that he contracted second marriage with one Subbulakshmi. As far as the allegations leveled by the wife that he was impotent, drunkard and womanizer, they were denied in her counter. Though he deposed in his chief examination about these allegations, they were not denied in his cross examination. Even in her proof affidavit for chief examination, she has not denied these allegation in clear terms. The above said non-denial of these allegations on the part of the wife would lead to an inference that what are all available in the chief examination of a witness, when not contraverted, state as an admissible evidence. Such a wordly abuse by the wife would amount to mental cruelty. The above said non-denial of these allegations on the part of the wife would lead to an inference that what are all available in the chief examination of a witness, when not contraverted, state as an admissible evidence. Such a wordly abuse by the wife would amount to mental cruelty. 9(b) As regards the allegation of second marriage is concerned, it is strongly denied by the husband. She brought her brother D.W.2 to say about this aspect. He says that on 24. 2003, he went to the house of the husband and knocked at the door who had worn a new yellow cord (mangalasutra) that while he asked him, the husband replied that he married Subbulakshmi and on his further enquiry that he might come to live with his sister, he responded that he did not like his sister and that he would live with Subbulakshmi. He further added that the husband also threatened him with men and that while the neighbours were enquired, they said that about four days back, an auspicious function took place and from that time, she was living there In the cross examination, he says that he has not seen any he did not lodge any complaint with the police for the alleged threatening by the brother-in-law. Even though D.W.2 was examined on behalf of the wife, she has not mentioned either in her pleadings or in her evidence that her brother D.W.2 went over to the house where her husband was living with Subbulakshmi, enquired and informed the same to him. 9(c) D.W.3 is the auto driver who also supports the version of the wife by stating that he happened to see both the husband and Another lady in an apartment in wannarapettai. Excepting the evidence of D.W.2 and 3, there is no other convincing materials to show that he married Subbulakshmi. Their oral evidence are not trust worthy. Factually, there is no proof to establish the alleged second marriage. In this context, the learned counsel for the appellant/wife Mr. S.S. Sundar cited three decisions in which it is held that mere making allegations that a spouse is living in adultery, would not constitute a ground of cruelty. They are as follows- .(a) Madan Mohan Manna v. Chitra manna AIR 1993 Cal. 33 (DB) .(b) Saikumari, S. v. Mohanasundaram, P. AIR 1995 1 LW. S.S. Sundar cited three decisions in which it is held that mere making allegations that a spouse is living in adultery, would not constitute a ground of cruelty. They are as follows- .(a) Madan Mohan Manna v. Chitra manna AIR 1993 Cal. 33 (DB) .(b) Saikumari, S. v. Mohanasundaram, P. AIR 1995 1 LW. 201(DB): (1995) 1 MLJ 66 .(c) M. Lakshmi v. K. Seethapathy AIR 1997 (III) CTC 718 .(d) K.R. Manjunath v. Veena AIR 1999 Kar 64 (DB) 9(d) The observations in the above aid decisions would go to the effect that if an allegation is made against a man that he is living with any woman in adultery, that will not by itself amount to cruelty. But, the facts available on this case are distinguishable. The wife did not stop with making allegations, but attempted to prove the same by examining DW2 and DW3 but in vain. Hence, there is not mere allegation is to the adultery but she ha failed in her attempt to prove the same. 9(e) She laid a complaint with All Women Police Station, Tirunelveli which was registered under Sections 498-A and 406 of I.P.C. and a case in No. 217 off 2003 was also tried against him before the Judicial Magistrate No. 1, Tirunelveli. The learned Judiciail Magistrate, after the trial acquitted him of the charges. Thereupon, he filed a Criminal Revision Case (MD) No. 104 of 2007 before the Madurai Bench of Madras High Court and the same is pending. 9(f) Further during the pendency of the appeals before this Court, she preferred a complaint before the Deputy Superintendent of Police, Cheranmahadevi that her husband is living with Subbulakshmi with a girl baby in Door No. 11/64 F1, State Bank Colony, R.S. Colony in Ambasamudram, that they and their neighbours have to be examined and to get a certificate evidencing from a Village Administrative Office as to their co-habitation may be obtained, that he has been threatening her to withdraw the appeals filed by her before the High Court and that her husband may be advised to live with her. 9(g) On receipt of the compliant, the Deputy Superintendent of Police made an enquiry and has given a report stating that while the neighbours of the house were examined, they told that they do not know anything about the occupants of 11/164F1 in Ambasamudram State Bank Colony and the said house was locked. It is also mentioned that the respondent/husband was warned that he should not make any hindrance to his wife. It appears that while the appeals were pending before this Court, she made efforts to get evidence to establish the alleged co-habitation of her husband and Subbulakshmi through police. 9(h) The above said attitude on the part of the wife would indicate that she has been continuously entertain intention to perpetrate harassment in the mind of her husband. During the pendency of the appeals before this Court, she preferred complaint before the top police officials and tried to secure additional evidence through them. In the enquiry conducted by the Superintendent of Police, the husband gave a statement controverting the allegations contained in their complaint. He has also stated therein that for past four years, his wife has been pressurizing him and threatening through some persons to transfer the house in NGO New Colony at Tirunelveli and that the allegations of his intimacy with Subbulakshmi are false. He has also undertaken that he would not make any problem to his wife. 9(i) In this context, the learned counsel appearing for the husband would cite a decision of the New Delhi High Court in Narinder Kumar v. Suresh Kumar AIR 1988 Delhi 222 wherein it is held that when the wife not only filed complaints it is held that when the wife not only filed complaints with the police but sent similar complaints to the employer of the husband of harassment, it may be observed that it would establish the ground of cruelty. 9(j) The learned counsel for the appellant/wife also relied upon a Division Bench decision in Ms. Avis Katherine Niblett v. Mr. Robert Howard Niblett AIR 1935 Oudh 133 in which it is held that in matrimonial cases, evidence of husband or wife alone is never to be accepted without corroboration either by witnesses or atleast by strong surrounding circumstances. The abuse as regards the potency and moral characters would stand a good ground to establish mental cruelty. This point is answered in the affirmative. The abuse as regards the potency and moral characters would stand a good ground to establish mental cruelty. This point is answered in the affirmative. Point No. 2: 10. It is stated that the wife deserted the husband. The allegation in both the petitions and counters filed there for would indicate that after February 1998, the relationship between them got strained and there has been difference of opinions between them. The husband says that he was driven from the ground floor and was made to live in the upstairs alone. But, the wife says that he did not reside in the upstairs portion and the same was occupied by tenant. Exhibit R-12 is a letter given by one kishore Kumar in which he says that he was residing in the upstairs portion. The said Kishore Kumar was not examined as a witness and hence no credence could be attached to Exhibit R-12. However, the husband has stated in the cross examination that the said Kishore Kumar had not been living for a long time but for a short period he was residing there. The only allegation of desertion is that the husband was driven by the wife in November 1998 with throwing away his bed outside the house and thereafter he proceeded to upstairs and stay there. This objection was denied in the cross examination. The materials available in this case do not show that the husband was deserted by the wife. 10(a) Both the parties have leveled allegation as to their contribution to the construction of the house. They do not in any way improve the case anybody else. However, they would show that they were in cordial relationship with each other during relevant period. They are all earlier to 2001. Exhibit R-3 and R-4 series are the letters written by the husband to wife indicating that he was affectionate to her. The learned counsel for the wife would say that they would show that they were in cordial terms. But, they pertain to the year 1994. By means of Exhibit P-1 to P-3, in transpires that from 1989 onwards there had been love lost between them. The preponderance of probabilities in this case, on the careful scrutiny of the evidence would show that the allegation of desertion leveled by the husband has not been established. This point is answered in negative. Point No. 3: 11. By means of Exhibit P-1 to P-3, in transpires that from 1989 onwards there had been love lost between them. The preponderance of probabilities in this case, on the careful scrutiny of the evidence would show that the allegation of desertion leveled by the husband has not been established. This point is answered in negative. Point No. 3: 11. Much was said about the grant of divorce on the ground of irretrievable breakdown of marriage. Hindu Marriage Act does not contain this ground for granting decree of divorce. However, by invoking the powers under Article 142, the Hon’ble Supreme Court has been granting divorce on his ground while the circumstances warrant such relief. The Apex Court has granted divorce on this ground in the following cases: .(1) Naveen Kohli v. Neelu Kohli 2006 (2) CTC 510: (2006) 2 LW 606 .(2) Satish Sitole v. Ganga (2008) 7 SCC 734 : (2009) 2 LW 191 .(3) Sangamitra Ghosh v. Kajal Kumar Ghosh (2007) 2 SCC 220 .(4) Sujata Uday Patil v. Uday Madhukar Patil (2006) 13 SCC 272 .(5) Manjula v. K.R. Mahesh (2006) 5 SCC 461 : (2007) 2 LW 340 .(6) Vinita Saxena v. Pankaj Pandit (2006) 3 SCC 778 : (2006) 2 LW 419 .(7) Durga Prasanna Tripathy v. Arudhati Tripathy (2005) v. Arudhati Tripathy (2005) 7 SCC 353 : (2006) 1 LW.162 .(8) Praveen Mehta v. Inderjit Mehta (2002) 5 SCC 706 .(9) Ashok Hurra v. Rupa Bipin Zaveri (1997) 4 SCC 226 : (1997) 2 LW 101 .(10) V. Bhagat v. D. Bhagat (1994) 1 SCC 337 : (1994) 1 LW 27 11(a) In addition, the two Full bench Judgments of Supreme Court in A. Jayachandra v. Aneel Kaur AIR 2005 SC 534 : (2005) 2 SCC 22 : (2005) 2 LW 149 and in Samar Ghosh v. Jaya Ghosh (2007) 4 SCC 511 : (2007) 2 MLJ 1185, also identical view has been taken and divorce was granted on this ground. 11(b) In a later decision, the Hon’ble Supreme Court has expressed its view that power of granting of divorce under this ground is available to the Supreme Court alone under Article 142 of Constitution and even the High Courts do not have power similar to those exercised by the Supreme Court under Article Civil Courts nor even the High Courts can, therefore pass orders before the periods prescribed under relevant provisions of the Act or on the grounds not provided for in Sections 13 and 13-B as in the decision in Anil Kumar Jain v. Maya jain (2009) 8 MLJ 405. The Honourable Supreme Court is of the opinion that the Courts are not empowered to dispense with the statutory period of six months provided under Section 13(B) of the Act. 11(e) In view of the said pronouncement of the Apex Court, it is not open to the High Courts and the Civil Courts to grant a decree for divorce on the ground of irretrievable break down of marriage. This question is answered accordingly. 12. In the light of the discussions, inferences and observations as adverted to supra, this Court is of the considered view that the grounds of cruelty and desertion have been established by the respondent which would entitle him to get the decree for divorce. The relief for restitution of conjugal rights cannot be granted. Mental cruelty perpetrated against the husband has been ascertained on the careful evaluation of the evidence on record. Hence, there is no valid ground to interfere with the observations and findings in the judgment and decree of the first Appellate Court which deserve to be confirmed and they are accordingly confirmed. These appeals have to fail. 13. In the result, both the civil miscellaneous second appeals are dismissed. No costs.