Judgment :- R. Banumathi, J. 1. Appellants, who are wife and son of the Respondent, have filed Appeal in A.S. No.547 of 2005 against the Judgment and decree dated 10. 2004 made in O.S. No.12 of 1999, whereby the Family Court declined to order maintenance. C.M.A. No.960 of 2005 has been filed by the wife against the Judgment and decree dated 10. 2004 made in H.M.O.P. No.410 of1999, where by the Family Court, Coimbatore has allowed the petition for divorce filed by the husband/Respondent on the ground of adultery and cruelty. 2. The Suit O.S.No.12 of 1999 was filed by the 1st Appellant/wife and her son claiming maintenance of Rs.1,500/- per month to herself and Rs.1,350/- to the son till he attains majority and for creation of charge over the suit schedule property viz., 2400 sq.ft or 5 cents and 222 sq.ft. i.e., house site and a house building thereon bearing Door No.10/11 and New No.10/77 in S.F.No.209 of Kuniamuthur, Coimbatore Taluk for enforcing the maintenance decree. Case of Appellants is that the marriage between the 1st Appellant and the Respondent was solemnised on 20.1.1976 at Palani, Sri Palaniandavar temple as per Hindu rites and customs. After the marriage the 1st Appellant and Respondent started their marital life at Karur, Servaikkaranpatti village. Out of the wedlock, a female child by name Rohini was born on 12. 1978 and a male child – 2nd Appellant was born on 10. 1984. The martial life between the 1st Appellant and Respondent was smooth going until the family shifted to Coimbatore in 1986. As the Respondent was owner-cum-driver of a tanker lorry, he used to visit the family once in a week or twice and keep the family in good health and humour. In the year 1994, family purchased a house plot. According to 1st Appellant, she handed over her jewels given to her at the time of her marriage for purchase of house plot. With the sale proceeds of the said jewels along with contributions made by the Respondent, the suit schedule property was purchased as a vacant site in the name of Respondent by registered Sale Deed dated 33. 1994. The house in the suit schedule property was built with joint contributions made by 1st Appellant and Respondent and the family was living there. 1994. The house in the suit schedule property was built with joint contributions made by 1st Appellant and Respondent and the family was living there. In December 1995, Respondent, without any justifiable cause developed misunderstanding, and left the Appellants and another daughter Rohini and had not taken care of their food, shelter and education. Since 1995, Respondent never came to suit schedule property to see and take care of his family and he settled at Madras. The efforts of Appellants to bring the Respondent to matrimonial home went in vain. The 1st Appellant was looking out for coolie job and maintaining the family. With great hardship out of saved money and contributions from her parents side, the 1st Appellant performed marriage of her daughter with one Vasu of Sundarapuram and purposely Respondent avoided to attend the marriage. Due to harassment and mental sufferings of Respondent, the 1st Appellant is bed ridden and does not have any source of income. She is striving hard to meet the day to day basic needs. The 2nd Appellant has now joined in VIII Standard and the 1st Appellant has to borrow amounts so as to educate, provide food and clothing to the 2nd Appellant. 3. The further case of Appellants is that Respondent, being owner of tanker lorry, is earning Rs.15,000/-per month and purposely deserted the Appellants. Subsequently, 1st Appellant came to know that the Respondent is living in adultery with one Rajakumari @ Mary Rajam at Chennai through Arumugam Pillai and others of Karur and Rajendran. The Appellants resisted their action by filing Suit for permanent injunction against them in O.S.No.79 of 1998 on the file of Vacation Civil Judge, Coimbatore, which was re-numbered as O.S.No.939 of 1998 on the file of District Munsif’s Court, Coimbatore. As the Respondent deserted Appellants and making attempts to dispose off the suit schedule property, the Appellants filed the present Suit claiming maintenance of Rs.1,500/- for wife and Rs.1,350/- for son till he attains majority. 4. Respondent filed Written Statement denying the plaint averments inter alia contending that the suit property was purchased as his self-acquisition by virtue of registered Sale Deed dated 33. 1994 as a vacant site and constructed the house by spending his own money. 4. Respondent filed Written Statement denying the plaint averments inter alia contending that the suit property was purchased as his self-acquisition by virtue of registered Sale Deed dated 33. 1994 as a vacant site and constructed the house by spending his own money. Respondent averred that because of 1st Appellant’s attitude of lodging false Complaint thereby showing unwillingness to join with the Respondent, the Respondent had not taken any action against the 1st Appellant through Court of law of through Police. According to the Respondent, he has been waiting with a found hope that the 1st Appellant may change her bad activities, but in vain. According to the Respondent, since the 1st Appellant has deserted him and refused to live with him, the Appellants are not entitled to claim any maintenance from the Respondent. 5. The Respondent filed H.M.O.P.No.410 of 1999 before the Family Court for dissolution of marriage between the 1st Appellant and Respondent. Case of Respondent is that after two months from the date of marriage, the Respondent and 1st Appellant were residing with the 1st Appellant’s parents at Servaikaranpatti and the 1st Appellant was leading a bad life. They got three children out of the wedlock and among them one was died. The other two children resided with the 1st Appellant. The Respondent tolerated all the bad activities of 1st Appellant and he did not take any legal action against the 1st Appellant. The 1st Appellant is residing in the suit schedule terraced building constructed by him. Without his consent, the 1st Appellant sent out their daughter along with one Vasu and they got married and residing at Sundarapuram. When questioned, 1st Appellant deserted the Respondent and left to her son in law’s house at Sundarapuram in the month of December 1994 and she is residing now at No.16/A, Kallukadai Thottam, Gandhiji Road, Sundarapuram, Coimbatore -23. Thereafter the 1st Appellant did not turn back to lead life with Respondent and also forcibly took the children. The 1st Appellant deserted the Respondent without any valid reason and resided with her son-in-law’s house for about 4 years. The Respondent has sent lawyer’s notices dated 28. 1999 and 19. 1999 to the 1st Appellant to give her consent to get divorce through Court of law. The Respondent filed the Petition for divorce under Section 13(1)(i-a) and 13(1)(i-b) of Hindu Marriage Act on the ground of cruelty and desertion. 6. The Respondent has sent lawyer’s notices dated 28. 1999 and 19. 1999 to the 1st Appellant to give her consent to get divorce through Court of law. The Respondent filed the Petition for divorce under Section 13(1)(i-a) and 13(1)(i-b) of Hindu Marriage Act on the ground of cruelty and desertion. 6. Reiterating the averments made in O.S.No.12 of 1999, the 1st Appellant filed Counter Affidavit contending that since 1995, the Respondent has deserted the 1st Appellant and the 1st Appellant learnt that the Respondent is living in adultery with one Rajakumari @ Mary Rajam at Chennai. The 1st Appellant further averred that even though Respondent is owning a tanker lorry and earning a sum of Rs.15,000/- per month, the Respondent is not maintaining the Appellants and putting them to starvation. In the Counter Affidavit, the 1st Appellant has also referred to the other civil litigations and contended that granting decree of divorce in favour of Respondent would amount to allowing the Respondent to take advantage of his own wrong and prayed for dismissal of the Petition. 7. Before the Family Court, the 1st Appellant examined herself as P.W.1, 2nd Appellant- their son was examined as P.W.2 and mother of P.W.1 was examined as P.W.3 and Exs.A.1 to A.18 were marked. On the side of Respondent, Respondent examined himself as D.W.1 and Sankar, Baladhandapani and Selvam were examined as D.Ws.2 to 4 and Exs.B.1 to B.21 were marked. Through the witness, Ex.X.1 was marked. Upon consideration of oral and documentary evidence, the Trail Court held that there was no evidence to show that the 1st Appellant had contributed for purchase of house and that the problem arose between the spouses only in respect of enjoyment of property and that there was no proof regarding the second marriage. The Trail Court further held that entries in Ex.A.18- Voters List would not lead to the conclusion that the Respondent is living in adultery with Rajakumari @ Mary Rajam and that he married her. Holding that the 1st Appellant has left the matrimonial house on her own and that she has not cohabited for more than two years, the Trail Court granted decree of divorce mainly on the ground of desertion. Holding that the 1st Appellant has left the matrimonial house on her own and that she has not cohabited for more than two years, the Trail Court granted decree of divorce mainly on the ground of desertion. The Trail Court inter alia held that not informing the marriage of the daughter to the respondent and also lodging of Complaints would amount to cruelty and on those findings allowed the petition for divorce. The Trail Court further held that the Appellants are living away on their own accord and that the Respondent was maintaining them till the 1st Appellant left the matrimonial house and as such the Appellants are not entitled to maintenance and dismissed the Suit- O.S.No.12 of 1990. 8. Challenging the findings of the Trail court, learned Counsel for the Appellants submitted that in or about 1995, the husband has left Coimbatore and shifted his business to Chennai and only in 1996 the 1st Appellant came to know that the husband has got a daughter Priya and son Jagan Prabhu through Mary Rajam, which fact was proved by filing Ex.A.18- Voters List, which is a public document and the Trail Court erred in brushing aside Ex.A.18. It was further contended that when the Respondent/husband is living in adultery with the said Rajakumari @ Mary Rajam and got two children through her and only Respondent/husband has deserted the wife, the findings of the Family Court are erroneous and without any sound reasonings. Placing reliance upon Naveen Kohli v. Neelu kohli, 2006 (2) CTC 510 (SC): 2006 (4) SCC 558 : 2006 (2) Supreme 627 : 2006 (2) CTC 510; Sujata Uday Patil v. Uday Madhukar Patil, 2007 (1) CTC 266; and Sulochana v. Rajaopal, 1996 (2) MLJ 625 ; Saikumari v. Mohanasundaram, 1995 (2) MLJ 66; and Jayakumari v. Balachander, 2010 (3) CTC 785 , it was contended that host of factors have to be taken into consideration to analyse the conduct of the parties whether it constitutes cruelty and without any substantive evidence, the Trail Court passed the decree for divorce. 9. Learned Counsel for Respondent Mr. N. Manokaran contended that the 1st Appellant/wife has voluntarily deserted the husband and living separately from 1994 and the conduct of the 1st Appellant in not informing the marriage of the daughter to the Respondent has caused cruelty to the Respondent. 9. Learned Counsel for Respondent Mr. N. Manokaran contended that the 1st Appellant/wife has voluntarily deserted the husband and living separately from 1994 and the conduct of the 1st Appellant in not informing the marriage of the daughter to the Respondent has caused cruelty to the Respondent. It was further contended that the 1st Appellant is very much interested in the property of the Respondent and never cared about her matrimonial obligation and the conduct of the 1st Appellant in giving Criminal Complaint on 18. 1998 and character assassination against the 1st Appellant are without any basis and the Trial Court rightly granted divorce on the ground of desertion and cruelty and findings of Trail Court warrant no interference. In support of his contention, the learned Counsel placed reliance upon Jayachandra v. Annel Kaur, 2005 (2) SCC 22 ; Samar Ghosh v. Jaya Ghosh, 2007 (3) CTC 464 (SC): 2007 (4) SCC 511 ; and Naveen Kohli v. Neelu Kohli, 2006 (2) CTC 510. 10. Before analysing the evidence, we may firstly refer to the facts, which are not in dispute. The solemnization of marriage on 20.1.1976 and birth of daughter on 12. 1978 and son- Prakash (2nd Appellant) on 10. 1984 are not in dispute. It is also not in dispute that in 1986, the family shifted to Coimbatore for the purpose of education of children. The Respondent was owner–cum-driver of a tanker lorry. In 1994, under Ex.A.1 – Sale Deed (33. 1994) they have purchased 2400 sq.ft in Kuniamuthur, Coimbatore for Rs.90,720/- and they have constructed the house. According to the 1st Appellant, she has contributed the amount for purchase of the plot by selling her jewels and also that her parents have contributed the amount. 11. The family had purchased plot measuring an extent of 1775 sq.ft in Karur under Ex.B.1-Sale Deed dated 2. 1989 for Rs.9,500/- in the name of 1st Appellant. They have also purchased 864 sq.ft. in Kotanatham village, Servaikaranpatti under Ex.B.2 – Sale Deed (210. 1993) for Rs.7,700/- in the name of the Respondent. By the copy of the Sale Deed dated 13. 2009 produced before us, it was seen that the property purchased under Ex.B.1 in the name of 1st Appellant has been sold to son-in-law- S. Vasu by a Sale Deed dated 13. 2009 for Rs.1,36,900/-. 1993) for Rs.7,700/- in the name of the Respondent. By the copy of the Sale Deed dated 13. 2009 produced before us, it was seen that the property purchased under Ex.B.1 in the name of 1st Appellant has been sold to son-in-law- S. Vasu by a Sale Deed dated 13. 2009 for Rs.1,36,900/-. It was also stated that the property purchased under Ex.B.2 in Servaikaranpatti had also been sold. Insofar as the house property in Coimbatore, there are number of litigations between the parties. According to the Respondent, he mortgaged the property by executing a mortgage deed on 22. 1998 in favour of one Dravidamani. 12. Further case of Respondent is that on 18. 1998, 1st Appellant and her henchmen have attempted to take forcible possession of the suit property by giving false Complaint to the Police Station and in spite of the said Dravidamani’s objection, the 1st Appellant with her henchmen had taken possession of the house property on 19. 1998. The said Dravidamani filed O.S.No.1173 of 1998 on the file of I Additional Sub-Court, Coimbatore against the 1st Appellant, Respondent and 27 others. 13. There are number of litigations, complaints and counter complaints over the enjoyment of house property in Coimbatore and both parties are hotly contesting the matter. The core differences between the spouses appear to be regarding the enjoyment of property. Even though the 1st Appellant has alleged that the Respondent is living in adultery with one Rajakumari @ Mary Rajam at Chennai, the root cause for differences between the spouses appear to be regarding the enjoyment of the property in Kuniamuthur, Coimbatore. 14. Regarding the right and title of the house property in Coimbatore, there are serious disputes between the parties. According to the 1st Appellant, she has contributed the amount for purchase of plot and also contributed the amount from out of the amount given by her parents for construction of the house. Contribution of money by the 1st Appellant is denied by the Respondent. The learned Trail Judge has elaborately dealt with the evidence regarding the purchase of plot and construction of house in these Matrimonial proceedings and maintenance Suit. The contribution of amount by the 1st Appellant for purchase of suit schedule property is substantially in issue and the right and title of the parties is the subject matter of dispute/issue in the Civil Suit. The contribution of amount by the 1st Appellant for purchase of suit schedule property is substantially in issue and the right and title of the parties is the subject matter of dispute/issue in the Civil Suit. In our considered view, in the matrimonial proceedings, the learned Trial Judge was not right in analysing in depth the evidence regarding the contribution of the amount or otherwise by the 1st Appellant for purchase of plot and construction of the house. 15. Leaving the nitty-gritty, the main point falling for consideration in these Appeals are: (i) Whether the Respondent has proved the cruelty and desertion and whether the decree of divorce granted by the Trial Court is sustainable; and (ii) Whether the Appellants are entitled to maintenance? If so, what is the quantum of maintenance to which they are entitled? 16. The Trial Court granted divorce mainly on the grounds of (i) desertion, and (ii) cruelty. The Trial Court took the view that the 1st Appellant has left the matrimonial house without any reasonable cause and deserted the Respondent. In her evidence, P.W.1 has stated that Respondent has left the matrimonial house in December 1995 and thereby deserted her and the children and that thereafter the Respondent stayed in Chennai. Evidence of P.W.1 is strengthened by the evidence of P.Ws 2 and 3. 17. Per contra, in his evidence, D.W.1 has stated that in 1996, their daughter – Rohini had gone away with one Vasu of Sundarapuram, Coimbatore and married him and only the 1st Appellant had facilitated the marriage. D.W.1 has further stated that after the marriage of their daughter – Rohini with the said Vasu, the 1st Appellant had left the matrimonial house and living with the daughter and son-in-law in 16/A, Kallukadai Thottam, Sundarapuram, Coimbatore. Thereafter, the 1st Appellant has not rejoined. D.W.1 has also deposed that the 1st Appellant has compelled the 2nd Appellant to live with the daughter and thereafter the Appellants never joined him and the 1st Appellant is guilty of desertion. 18. The Trial Court accepting the evidence of D.W.1 faulted the 1st Appellant for not taking any steps for re-joining her husband. The Trial Court failed to keep in view the evidence of P.W.1 that the Respondent left the matrimonial house even in December 1995 and stayed in Chennai. 18. The Trial Court accepting the evidence of D.W.1 faulted the 1st Appellant for not taking any steps for re-joining her husband. The Trial Court failed to keep in view the evidence of P.W.1 that the Respondent left the matrimonial house even in December 1995 and stayed in Chennai. If really the 1st Appellant had so gone out of the matrimonial house, the Respondent could have taken steps for re-union. The Respondent has neither issued any legal notice for restitution of conjugal rights nor taken any efforts to bring back the 1st Appellant. In our considered view, the Trial Court was not right in brushing aside the evidence of P.W.1 and faulting her that she has not taken any steps. 19. The conduct of the Respondent in leaving the matrimonial house and not taking any efforts to rejoin has to be examined in the light of the evidence of P.W.1 and Ex.A.18. In her evidence, P.W.1 has stated that after the Respondent has left the matrimonial house, she has learnt that the Respondent is living in Chennai with one Rajakumari @ Mary Rajam and that is why he left the matrimonial house. In her evidence, she has further stated that on coming to know about the same, she has taken steps for mediation through one Arumugam Pillai and Rajendran. Absolutely, we do not find any reason for discarding the evidence of P.W.1. 20. The evidence of P.W.1 is probablised by Ex.A.18. Ex.A.18 is the Voters List -2003 of Satyamurthy Nagar, South Bogh Street, T. Nagar, Chennai. By perusal of Ex.A.18, it is seen that the names of Respondent, Rajam and their children – Priya and Jagan Prabhu are stated in J.9. The relevant entries in Ex.A.18 reads as under: TAMIL It is evident from entries in Ex.A.18 – Voters List that the Respondent is living with the said Rajakumari @ Mary Rajam in J-9. The age of Priya (Vairamuthu) is stated as 20, which means that she must have been born in 1983. In her evidence, P.W.1 has stated that she came to know about the Respondent’s living together with Mary Rajam only in 1995. When the Respondent is living with another woman, the 1st Appellant cannot be expected to continue to live in the matrimonial house. In fact, only the Respondent appears to have left the matrimonial house to live with the said Mary Rajam in Chennai. 21. When the Respondent is living with another woman, the 1st Appellant cannot be expected to continue to live in the matrimonial house. In fact, only the Respondent appears to have left the matrimonial house to live with the said Mary Rajam in Chennai. 21. The Trial Court mainly granted divorce on the ground of desertion by the 1st Appellant. Insofar as Ex.A.18, Trial Court held that merely because the name of the Respondent is found in Ex.A.18 in Sl. No.567 and that of Rajam in Sl.No.568, it will not lead to an inference that the Respondent is living in adultery with the said Mary Rajam. Ex.A.18-Voters List is a public document, which is a strong piece of evidence showing that the Respondent is living along with Rajam. The names of Priya and Jagan Prabhu, who are living in the same house and their father’s name shown as Vairamuthu, in Ex.A.18 is yet another strong piece of evidence probablising the case of the 1st Appellant. While so, the Trial Court erred in brushing aside the evidence in Ex.A.18 on the flimsy ground that the entries in J-9, South Bogh Road, T.Nagar cannot be correlated to the Respondent. The Trial Court has ignored the admission of D.W.1 stating that he is living in J-9, South Bogh Road, T. Nagar, Chennai. In fact, for giving evidence of chief examination, by an Affidavit, the Respondent has given his address as “J-9, South Bogh Road, T.Nagar”. The Trial Court erred in brushing aside the fact that the Respondent has admitted to be living in J-9, South Bogh Road, T. Nagar. The Trial Court erred in finding that the entries in Ex.A.18 cannot be correlated to the Respondent and erred in brushing aside the same. 22. The Trail Court has granted divorce on the ground of desertion. For proving desertion, under Section 13(1) (ib) of Hindu Marriage Act, the Respondent herein has to prove (i) that there was desertion for a continuous period of two years immediately preceding the presentation of the Petition; (ii) the desertion was without reasonable cause and without the consent or against the wish of the Respondent herein. The desertion requires four important elements viz., (i) factum of separation, (ii) necessary intention to put an end to matrimonial consortium and cohabitation permanently, (iii) want of reasonable cause, and (iv) want of consent or against the wish of the other spouse. The desertion requires four important elements viz., (i) factum of separation, (ii) necessary intention to put an end to matrimonial consortium and cohabitation permanently, (iii) want of reasonable cause, and (iv) want of consent or against the wish of the other spouse. In Lachhman Uttam Chand Kirpalani v. Meena, AIR 1964 SC 40 , the Supreme Court has held that mere leaving the matrimonial home is not sufficient. Animus deserendi at the time of leaving the matrimonial home has to be proved. 23. “Desertion” for the purpose of seeking divorce under the Act, means the intentional permanent forsaking and abandonment of one spouse by the other without that other’s consent and without reasonable cause. In otherwords, it is a total repudiation of the obligations of marriage. Desertion is not the withdrawal from a place but from a state of things,. Desertion, therefore, means withdrawing from the matrimonial obligations i.e., not permitting or allowing and facilitating cohabitation between the parties. The proof of desertion has to be considered by taking into consideration the concept of marriage which in law legalises the sexual relationship between man and woman in the society for the perpetuation of race, permitting lawful indulgence in passion to prevent licentiousness and for procreation of children. Desertion is not a single act complete in itself, it is a continuous course of conduct to be determined under the facts and circumstances of each case. The party seeking divorce on the ground of desertion is required to show that he or she was not taking the advantage of his or her own wrong. (vide Savitri Pandey v. Prem Chandra Pandey, 2002 (2) SCC 73 ). 24. The Trial Court ought to have been that the Respondent had no animus deserendi in leaving the matrimonial house. Merely because of some internal differences, she left the matrimonial house and she was living for some time with her daughter and son-in-law. Merely because she was living in Sundarapuram, Coimbatore along with her daughter and son-in-law, it cannot be said that she had the animus deserendi in deserting her husband and putting an end to the matrimonial relationship. In fact, only the Respondent had left the matrimonial house in December 1995 and thereafter in 1998 created usufructuary mortgage in favour or Dravidamani creating a compelling situation. In fact, only the Respondent had left the matrimonial house in December 1995 and thereafter in 1998 created usufructuary mortgage in favour or Dravidamani creating a compelling situation. Having regard to the entries in Ex.A.18 and that the Respondent is living with Mary Rajam, in our considered view, the Appellant cannot be faulted in leaving the house in 1996. However, the 1st Appellant has come back to the matrimonial house and is stated to be residing there. The approach of the Trial Court in granting divorce on the ground of desertion cannot be countenanced and the same is liable to be set aside. 25. Insofar as the allegations of cruelty, the Trial Court has not dealt with the same in detail. In the averments in the Petition and in his evidence, the Respondent has contended cruelty mainly on the following grounds: the wife is interested in the property of the husband and never cared about her matrimonial obligations; that wife has not only given Criminal Complaint dated 18. 1998 to the police and also filed Civil Suits against the Respondent. The character assassination against the husband without any basis; In 1996, wife performed the marriage of the daughter without informing the husband and purposely avoided the husband. 26. The Trial Court held that the 1st Appellant has not informed about the marriage of the daughter, which must have caused mental cruelty to the Respondent. Since the Trial Court proceeded to grant divorce mainly on the ground of desertion, the Trial Court has not elaborated upon the aspect of cruelty. 27. Insofar as the allegation that the wife is interested only in the property, it is pertinent to note that the parties are fighting out the litigation in the Civil Suit. Admittedly, the said Dravidamani has filed the Civil Suit in O.S.No.1173 of 1998 and the same was withdrawn as settled out of Court as seen from Ex.B.19. Alleging that the mother and sister of Respondent are attempting to interfere with the possession of the property, the 1st Appellant filed O.S.No.79 of 1998 on the file of Vacation Civil Judge, Coimbatore, which was re-numbered as O.S. No.939 of 1998 on the file of District Munsif’s Court, Coimbatore. The said Suit was decreed by judgment dated 4. 2002. By perusal of Ex.B.18 (11. 2003), it is seen that the Respondent had sold the suit property in Kuniamuthur under Ex.B.18-Sale Deed dated 11. The said Suit was decreed by judgment dated 4. 2002. By perusal of Ex.B.18 (11. 2003), it is seen that the Respondent had sold the suit property in Kuniamuthur under Ex.B.18-Sale Deed dated 11. 2003 in favour of one S. Manivel. 28. Since the parties are hotly contesting the Civil Suits, we do not propose to express our views regarding the right and title of the parties in the house property in Kuniamuthur, Coimbatore. Suffice it to note that merely because the 1st Appellant is interested in the house property, it cannot be said to have caused mental cruelty to the Respondent. 29. In a judgment of Division Bench of this Court in Jayakumari v. Balachander, 2010 (3) CTC 785 , to which one of us (R. Banumathi, J.) was a member, it was held as under: “ 30. The term ‘cruelty’ consists of unwarranted and unjustifiable conduct on the part of Defendant causing other spouse to endure suffering and distress thereby destroying peace of mind and making living with such spouse unbearable, completely destroying real purpose and object of matrimony. It would of course be difficult to define the expression cruelty’. There cannot be any hard and fast rule in interpreting the same. As pointed out, the word cruelty cannot be put in a strait-jacket of judicial definition. It must be judged on the facts of each case having regard to the surrounding circumstances. Whether one spouse is guilty of cruelty is essentially a question of fact and previously decided cases have little, if any, value. The term ‘cruelty’ is not defined in the Act. It is to be judged by taking into consideration the status of life, the standard of living, the family background and the society in which the parties are accustomed to move because particular behaviour may amount to cruelty in one set of circumstances and may not be so in other set of circumstances.” 30. Holding that to constitute cruelty, the conduct complained of should be “grave and weighty” and it must be something more serious than “ordinary wear and tear of married life”, in Jayachandra v. Annel Kaur, 2005 (2) SCC 22 , the Supreme Court has held as under: “13. Holding that to constitute cruelty, the conduct complained of should be “grave and weighty” and it must be something more serious than “ordinary wear and tear of married life”, in Jayachandra v. Annel Kaur, 2005 (2) SCC 22 , the Supreme Court has held as under: “13. The Court dealing with the Petition for divorce on the ground of cruelty has to bear in mind that the problems before it are those of human beings and the psychological changes in a spouse’s conduct have to be borne in mind before disposing of the Petition for divorce. However insignificant or trifling, such conduct may cause pain in the mind of another. But before the conduct can be called cruelty, it must touch a certain pitch of severity. It is for the Court to weigh the gravity. It has to be seen whether the conduct was such that no reasonable person would tolerate it. It has to be considered whether the complainant should be called upon to endure as a part of normal human life. Every matrimonial conduct, which may cause annoyance to the other, may not amount to cruelty. Mere trivial irritations, quarrels between spouses, which happen in day-to-day married life, may also not amount to cruelty. Cruelty in matrimonial life may be unfounded variety, which can be subtle or brutal. It may be words, gestures or by mere silence, violent or non-violent. 14. The foundation of a sound marriage is tolerance, adjustment and respecting one another. Tolerance to each other’s fault to a certain bearable extent has to be inherent in every marriage. Petty quibbles, trifling differences should not be exaggerated and magnified to destroy what is said to have been made in heaven. All quarrels must be weighed from that point of view in determining what constitutes cruelty in each particular case and as noted above, always keeping in view the physical and mental conditions of the parties, their character and social status. A too technical and hypersensitive approach would be counter-productive to the institution of marriage. The Courts do not have to deal with ideal husbands and ideal wives. It has to deal with a particular man and woman before it. The ideal couple or a mere ideal one will probably have no occasion to go to Matrimonial Court. [See N.G. Dastane (Dr.) v. S. Dastane, 1975 (2) SCC 326 : AIR 1975 SC 1534 ]”. 31. It has to deal with a particular man and woman before it. The ideal couple or a mere ideal one will probably have no occasion to go to Matrimonial Court. [See N.G. Dastane (Dr.) v. S. Dastane, 1975 (2) SCC 326 : AIR 1975 SC 1534 ]”. 31. Elaborately considering the conduct of parties in matrimonial matters and that the conduct complained of should be grave and weighty, in Naveen Kohli v. Neelu Kohli, 2006 (4) SCC 558 : 2006 (2) CTC 510 (SC): 2006 (2) Supreme 627 , the Supreme Court has observed as under: “36. The Court had an occasion to examine the pre-1976 Amendment position in N.G. Dastane v. S. Dastane, 1975 (2) SCC 326 : AIR 1975 SC 1534 . The Court noted that – “The enquiry has to be whether the conduct charged as cruelty is of such a character as to cause in the mind of the Petitioner a reasonable apprehension that it will be harmful or injurious for him to live with the Respondent”. …. 47. In the case of Sobha Rani v. Madhukar Reddi, 1988 (1) SCC 105 , this Court had an occasion to examine the concept of cruelty. The word ‘cruelty” has not been defined in the Hindu Marriage Act. It has been used in Section 13 (1) (i) (a) of the Act in the context of human conduct or behavior in relation to or in respect of matrimonial duties or 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, it is a question of fact and degree. If it is mental, the enquiry must begin as to the nature of the cruel treatment and then as to the impact of such treatment on the mind of the spouse. Whether it caused reasonable apprehension that it would be harmful or injurious to live with the other, ultimately, 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 injurious effect on the other spouse need not to be enquired into or considered. 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 injurious effect on the other spouse need not to be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted. The absence of intention should not make any difference in the case, if by ordinary sense in human affairs, the act complained of could otherwise be regarded as cruelty. Intention is not a necessary element in cruelty. The relief to the party cannot be denied on the ground that there has been no deliberate or willful ill-treatment. 50. In V. Bhagat v. D. Bhagat, 1994 (1) SCC 337 , this Court had occasion to examine the concept of “mental cruelty”. This Court observed as under: “16. Mental cruelty in Section 13 (1)(i-a) 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 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 also be had to the context in which they were made.” ……… 54. This Court in Gananath Pattnaik v. State of Orissa, 2002 (2) SCC 619 observed as under: “7. If it is a case of accusations and allegations, regard must also be had to the context in which they were made.” ……… 54. This Court in Gananath Pattnaik v. State of Orissa, 2002 (2) SCC 619 observed as under: “7. The concept of cruelty and its effect varies from individual to individual, also depending upon the social and economic status to which such person belongs. ‘Cruelty’ for the purposes of constituting the offence under the aforesaid section need not to be physical. Even mental torture or abnormal behavior may amount to cruelty and harassment in a given case.” 55. This Court in Parveen Mehta v. Inderjit Mehta, 2002 (5) SCC 706 , defined cruelty as under: “21. Cruelty for the purpose of Section 13(1) (i-a) is to be taken as a behaviour by one spouse towards the other, which causes reasonable apprehension in the mind of the latter that it is not safe for him or her to continue the matrimonial relationship with the other. Mental cruelty is a state of mind and feeling with one of the spouses due to the behaviour or behavioural pattern by the other. Unlike the case of physical cruelty, mental cruelty is difficult to establish by direct evidence. It is necessarily a matter of inference to be drawn from the facts and circumstances of the case. A feeling of anguish, disappointment and frustration in one spouse caused by the conduct of the other can only be appreciated on assessing the attending facts and circumstances in which the two partners of matrimonial life have been living. The inference has to be drawn from the attending facts and circumstances taken cumulatively. In case of mental cruelty it will not be a correct approach to take an instance of misbehaviour in isolation and then pose the question whether such behaviour is sufficient by itself to cause mental cruelty. The approach should be to take the cumulative effect of the facts and circumstances emerging from the evidence on record and then draw a fair inference whether the Petitioner in the Divorce Petition has been subjected to mental cruelty due to conduct of the other.” …. 56. In Chetan Dass v. Kamla Devi, 2001 (4) SCC 250 , this Court observed that the matrimonial matters have to be basically decided on its facts. In the words of the Court: “14. 56. In Chetan Dass v. Kamla Devi, 2001 (4) SCC 250 , this Court observed that the matrimonial matters have to be basically decided on its facts. In the words of the Court: “14. Matrimonial matters are matters of delicate human and emotional relationship. It demands mutual trust, regard, respect, love and affection with sufficient play for reasonable adjustments with the spouse. The relationship has to confirm to the social norms as well. The matrimonial conduct has now come to be governed by statute framed, keeping in view such norms and changed social order. It is sought to be controlled in the interest of the individuals as well as in broader perspective, for regulating matrimonial norms for making of a well-knit, healthy and not a disturbed and porous society. The institution of marriage occupies an important place and role to play in the society, in general. Therefore, it would not be appropriate to apply any submission of ‘irretrievably broken marriage’ as a straitjacket formula for grant of relief of divorce. This aspect has to be considered in the background of the other facts and circumstances of the case.” 57. In Sandhya Rani v. Kalyanram Narayanan, 1994 Supp. (2) SCC 588, this Court reiterated and took the view that since the parties are living separately for the last more than three years, we have no doubt in our minds that the marriage between the parties has irretrievably broken down. There is no chance whatsoever of their coming together. Therefore, the Court granted the decree of divorce. 58. In Chandrakala Menon v. Vipin Menon, 1993 (2) SCC 6 , the parties had been living separately for so many years. This Court came to the conclusion that there is no scope of settlement between them because, according to the observation of this Court, the marriage has irretrievably broken down and there is no chance of their coming together. This Court granted the decree of divorce. 59. In Kanchan Devi v. Promod Kumar Mittal, 1996 (8) SCC 90 , the parties were living separately for more than 10 years and the Court came to the conclusion that the marriage between the parties had to be irretrievably broken down and there was no possibility of reconciliation and therefore the Court directed that the marriage between the parties stands dissolved by a decree of divorce. 63. 63. Again in A. Jayachandra v. Aneel Kaur, 2005 (2) SCC 22 , a Three-Judge Bench of this Court observed that: “ 10. the expression ‘cruelty’ has not been in the Act. Cruelty can be physical or mental. Cruelty which is a ground for dissolution of marriage may be defined as wilful and unjustifiable conduct of such character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such a danger. The question of mental cruelty has to be considered in the light of the norms of marital ties of the particular society to which the parties belong, their social values, status, environment in which they live. Cruelty, as noted above, includes mental cruelty, which falls within the purview of a matrimonial wrong. Cruelty need not be physical. If from the conduct of the spouse same is established and/or an inference can be legitimately drawn that the treatment of the spouse is such that it causes an apprehension in the mind of the other spouse, about his or her mental welfare then this conduct amounts to cruelty. In a delicate human relationship like matrimony, one has to see the probabilities of the case. The concept, proof beyond the shadow of doubt, is to be applied to Criminal trials and not to Civil matters and certainly not to matters of such delicate personal relationship as those of husband and wife. Therefore, one has to see what are the probabilities in a case and legal cruelty has to be found out, not merely as a matter of fact, but as the effect on the mind of the complainant spouse because of the acts or omissions of the other. Cruelty may be physical or corporeal or may be mental. In physical cruelty, there can be tangible and direct evidence, but in the case of mental cruelty there may not at the same time be direct evidence. In cases where there is no direct evidence, the Courts are required to probe into the mental process and mental effect of incidents that are brought out in evidence. It is in this view that one has to consider the evidence in matrimonial disputes. 11. The expression ‘cruelty’ 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 in this view that one has to consider the evidence in matrimonial disputes. 11. The expression ‘cruelty’ 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. Cruelty is a course or 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 in determining it. It is a question of fact and degree. If it is mental, the problem presents difficulties. First, the enquiry must begin as to the nature of cruel treatment, second the impact of such treatment in the mind of the spouse, whether it caused reasonable 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. However, there may be a case where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or injurious 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. (See Shobha Rani v. Madhukar Reddi, 1998 (1) SCC 105) 32. In the light of the above well settled principles, it has to be examined whether the mere allegations about the character of the Respondent would amount to cruelty warranting granting of divorce. As discussed earlier, in view of entries in Ex.A.18, reasonable doubts would arise as to the cohabitation of Respondent with Mary Rajam. Any complaint lodged by the 1st Appellant has to be examined in the light of the cohabitation of Respondent with said Mary Rajam. 33. When the 1st Appellant is taking efforts to rejoin her husband, in her anxiety, she might have given the Complaint before the police. Mere filing of Criminal Complaint against husband by itself would not amount to cruelty. It is to be seen that the Complaint came to be filed only subsequent to the strained relationship between the parties after the Respondent has left the house. 34. As held by the Supreme Court, cruelty cannot fall under any straight jacket formula. Mere filing of Criminal Complaint against husband by itself would not amount to cruelty. It is to be seen that the Complaint came to be filed only subsequent to the strained relationship between the parties after the Respondent has left the house. 34. As held by the Supreme Court, cruelty cannot fall under any straight jacket formula. Each case has to be judged on its own merits so as to enable the Court to determine on the facts and circumstances of individual cases as to whether there was actual cruelty or not. 35. Admittedly, in 1996 daughter – Rohini married one Vasu of Sundarapuram. The grievance of the Respondent is that the 1st Appellant sent out the daughter along with one Vasu of Venkateswara Traders and they got married and residing in Sundarapuram and when that being questioned, the 1st Appellant left to her son-in law’s house. 2nd Appellant (P.W.2) has stated that his elder sister- Rohini had voluntarily gone with Vasu and got married. Per contra, P.W.1 has stated that she has arranged for her daughter’s marriage with Vasu and the marriage was solemnised in 1994 and inspite of invitation the Respondent had not attended the marriage. The evidence of P.W.1 reads as under: TAMIL 36. Solemnising the marriage of daughter without informing the father would quite naturally cause mental agony to the Respondent. When daughter’s marriage was solemnised in 1994, the Respondent was with the family and was taking care. While so, the wife’s conduct in solemnising the marriage of the daughter without informing the Respondent has to be seen in the light of bitter feelings. By her conduct in not informing about the marriage, in our considered view, the 1st Appellant-wife has to be held to have treated her husband with disCourtesy which might have caused cruelty to the Respondent. But such cruelty is only a solitary act. Since it was a solitary act of cruelty, finding of Trial Court granting divorce on the ground of cruelty under Section 13 (1) (i-a) is liable to be set aside. 37. Learned Counsel for the Respondent Mr. Manokaran contended that the parties are living separately for more than 14 years (since 1996) and that the marriage between the parties was irretrievably broken down. 37. Learned Counsel for the Respondent Mr. Manokaran contended that the parties are living separately for more than 14 years (since 1996) and that the marriage between the parties was irretrievably broken down. It was further contended that the Criminal cases and Civil disputes are pending between the parties and with a view to give quietus to all the litigations between the parties and not to leave any room for future litigation and to enable the spouses to leave the matrimonial house, the marriage could be dissolved on the ground that the marriage has irretrievably broken down. Contending that when reconciliation is not possible, the marriage could be dissolved on the ground that the marriage was irretrievably broken down, learned Counsel placed reliance upon Naveen Kohli v. Neelu Kohli, 2006 (2) CTC 510 (Paras 56, 57 and 58) and Samar Ghosh v. Jaya Ghosh, 2007 (3) CTC 464 (SC): 2007 (4) SCC 511 . It is the Respondent, who left the matrimonial house. Dissolution of marriage on the ground of irretrievably broken down would amount to allowing the Respondent to take advantage of his won wrong. 38. Insofar as the maintenance, as per Section 18(e) of Hindu Adoption and Maintenance Act, when the husband is living with another woman in Chennai, if the husband keeps a concubine, either in the same house or habitually resides with another woman elsewhere, wife is entitled to maintenance. When the Respondent has sought divorce before the Family Court to see that the 1st Appellant is thrown out of the house, the conduct of the Respondent would amount to cause justifying the 1st Appellant to claim maintenance. 39. The amount of maintenance will have to be fixed by taking a rationale and balanced view. The Court has to bear in mind the status of the parties and reasonable wants of the Appellants, the income and property of the Appellants as well as Respondent/husband. It is important to ensure that the maintenance amount ordered is sufficient to maintain the 1st Appellant/wife and son. The respondent is owner – cum – driver of the tanker lorry. P.W.1 has stated in her evidence that the Respondent is earning Rs.15,000/- per month. The Respondent has stated that he has sold the tanker lorry and that he is working only as a driver. 40. The respondent is owner – cum – driver of the tanker lorry. P.W.1 has stated in her evidence that the Respondent is earning Rs.15,000/- per month. The Respondent has stated that he has sold the tanker lorry and that he is working only as a driver. 40. Having regard to the status and family background of the parties and other circumstances, the Respondent can be directed to pay maintenance of Rs.1,000/- to the 1st Appellant and Rs.500/- to the 2nd Appellant per month from the date of suit till the 2nd Appellant-son attains majority and the Respondent shall also pay the arrears of maintenance to the Appellants. 41. In the Maintenance Suit, the Appellants have prayed for creating charge over the house plot and the house property. The maintenance suit was filed on 25. 1998. Even when the suit for maintenance was pending, the Respondent sold the suit property at Kuniyamuthur under Ex.B.18-Sale Deed dated 11. 2003. In our considered view, during the pendency of the suit, even though the suit property has been sold, which is legally not sustainable as it is hit by Doctrine of lis pendens, to secure the maintenance claim, it is necessary to create charge over the suit property for payment of maintenance. 42. In the result, the judgment of the Trail Court in H.M.O.P.No.410 of 1999 on the file of Family Court, Coimbatore is set aside and the C.M.A. No.960 of 2005 is allowed and H.M.O.P.No.410 of 1999 is dismissed. The judgment made in O.S.No.12 of 1999 on the file of Family Court, Coimbatore is set aside and the Appeal – A.S. No.547 of 2005 is allowed. Respondent is directed to pay maintenance of Rs.1,000/- per month to the 1st Appellant and Rs.500/- per month to the 2nd Appellant till the 2nd Appellant attains majority. The Respondent is directed to pay arrears of maintenance to the Appellants within a period of three months from the date of receipt of copy of this judgment. The Respondent shall pay future maintenance on or before 15th of every succeeding English calendar month. The payment of future maintenance shall commence from the month of July, 2010. For payment of arrears of maintenance and also for payment of future maintenance, charge is created over the suit property. In view of circumstances of the case and relationship of the parties, both parties are directed to bear their respective costs. The payment of future maintenance shall commence from the month of July, 2010. For payment of arrears of maintenance and also for payment of future maintenance, charge is created over the suit property. In view of circumstances of the case and relationship of the parties, both parties are directed to bear their respective costs. Consequently, the connected Miscellaneous Petitions are closed.