JUDGMENT : 1. The appellant in the above appeals is the husband of the respondent. The marriage between them took place at Chennai on 21.02.2000 as per Hindu Customs and ceremonies. Out of the wedlock, a son was born on 07.08.2001. On 09.08.2001 the respondent was discharged from the hospital and from there she went to her parental home. At the end of September 2001, she was taken by the appellant to the matrimonial home. On 18.05.2002 the respondent left the matrimonial home to her parental home. Contending that though the respondent and his family members were affectionate towards the respondent and the child and she was treated well by them, at the pressure and influence of her parents, she had left the matrimonial home without any sufficient cause, the appellant filed O.P.No.697 of 2003 under Section 9 of the Hindu Marriage Act, 1955 before the Principal Family Court, Chennai, for Restitution of Conjugal Rights. 2. Pending OP No.697 of 2003, the respondent / wife filed O.P.No.1601 of 2003 under Section 13 (1) (i)(a) of the Hindu Marriage Act, seeking a decree of divorce or in the alternative grant a decree for judicial separation under Section 10 of the said Act. In her petition, the wife alleged the following acts of cruelty against her husband in the above appeal:- (i) The appellant and his family members demanded and harassed her to bring more dowry. (ii) Even on the date of marriage itself the mother of the appellant demanded that the appellant and the respondent should be sent for their honeymoon to a foreign country. (iii) The husband / appellant is a drunkard. (iv) The appellant suspected the respondent's chastity and character and she was subjected to undergo AIDS test (HIV Test). (v) The appellant restrained his wife / respondent from interacting with her parents and relatives. (vi) The appellant masturbated in her presence and denied to have intimacy with her which amounted to cruelty. (vii) The appellant did not care for her and the child in not bringing her back to the matrimonial home immediately after delivery. 3. The appellant / husband specifically denied all the aforesaid acts of cruelty alleged by the wife. The Principal Family Court, Chennai, dismissed O.P.No.697 of 2003 filed by the husband for Restitution of Conjugal Rights and allowed O.P.No.1601 of 2003 filed by the wife for divorce. 3. The appellant / husband specifically denied all the aforesaid acts of cruelty alleged by the wife. The Principal Family Court, Chennai, dismissed O.P.No.697 of 2003 filed by the husband for Restitution of Conjugal Rights and allowed O.P.No.1601 of 2003 filed by the wife for divorce. Being aggrieved by that, the husband has filed the above appeals. CMA No.180 of 2010 is directed against dismissal of O.P.No.697 of 2003 and CMA No.181 of 2010 is directed against the decreeing of O.P.No.1601 of 2003. 4. The case of the appellant in O.P.No.697 of 2003 is as follows:- (i) The marriage between the appellant and the respondent was solemnized as per Hindu Rites and customs on 21.02.2000 at Chennai. After marriage, both of them were living together at the appellant's house. On 07.08.2001, a male child was born and he was named as 'Ronak'. Their marriage life started off with a happy note. Both of them enjoyed their happy moments in the initial stage of marriage. They went on honeymoon to Calcutta, Dargeeling, Moonar, Kodai, Mumbai in the first one year and they also visited their respective relatives' houses. While so, the father-in-law of the appellant started intervening with the personal life of the appellant and the respondent and he attempted to separate them in order to keep a separate residence for them, which greatly disturbed the appellant's mind. The respondent's father visited the appellant's house and shouted at the appellant's younger sister without any rhyme or reason. In June 2000, the respondent's father called up the appellant's mother over phone and abused her in all sorts of language, though knowing fully well that in Jain community, the men of the other family will not talk to the female members of other family. (ii) It is the case of the appellant that as far as the respondent is concerned, she has got great love and affection towards the appellant and similarly he is having love and affection towards the respondent and their child. The respondent was also visiting her parent's house and whenever she came back from there, she appeared very depressed and when questioned, she used to say that she was under terrible pressure and she requested the appellant not to send her to her parent's house any more. The respondent was also visiting her parent's house and whenever she came back from there, she appeared very depressed and when questioned, she used to say that she was under terrible pressure and she requested the appellant not to send her to her parent's house any more. It is the further case of the appellant that his younger sister was married to a person at Bangalore and there was some marital problem between them and in connection with that, the appellant and his father went to Bangalore to bring her back to Chennai and on the same day, the respondent's father contacted the appellant's mother over phone and directed her to send the respondent immediately to his house and the respondent's father also threatened that if she is not sent back immediately to his house, he would use force to take her back. Hence the appellant's mother asked the respondent's father to take her to his house for a short stay. The respondent left the matrimonial home in May 2002 and till the filing of the petition she had not returned to the matrimonial home. Right from the date of separation the appellant had been making attempts to meet the respondent, but all his efforts were in vain, as he was not permitted to meet the respondent and the child, but the appellant was insulted by the family members of the respondent. (iii) It is the further case of the appellant that even the request of the appellant to meet the child on his birthday which fell on 07.08.2002 was refused, but the prizes sent by the appellant's father alone was accepted. Inspite of several meetings arranged at the intervention of well-wishers and close friends, there was no re-union as the respondent's father refused to send the respondent to matrimonial home. In March 2003 the appellant went to the respondent's parent's house to arrange the child to be put in a play school, but the very idea was rejected. According to the appellant, if a separate counseling is given to the appellant and the respondent, the matter would be settled. The parents of the appellant are unable to see their grand child. According to the appellant, the respondent has no justifiable and sufficient cause to leave the matrimonial home. With the aforesaid averments, the appellant has sought for Restitution of Conjugal Rights. 5. The parents of the appellant are unable to see their grand child. According to the appellant, the respondent has no justifiable and sufficient cause to leave the matrimonial home. With the aforesaid averments, the appellant has sought for Restitution of Conjugal Rights. 5. In the counter filed by the respondent, the respondent / wife interalia contended as follows:- (i) Only because of the persistent demands for dowry made by the appellant and his family, she had withdrawn from the society of her husband and living separately. For extracting dowry, they have subjected her to severe harassment and mental cruelty. Because of their harassment she even attempted to commit suicide on one occasion. The respondent left the appellant's home only to safeguard her son and herself. She has also filed a complaint with W-8 Secretariat Colony Police Station against the appellant and his family members for dowry harassment. (ii) In the year 2000, when the marriage proposal was initiated by elders, there was no specific demand for dowry by the appellant's family. At the time of marriage, the respondent took with her about 1600 grams of gold, a diamond set of about 4.25 carets, 16 Kilograms of silver jewellery and articles, and cash of Rs.60,000/-. The entire marriage expenses was borne by the respondent's family. (iii) At the marriage ceremony itself, the appellant's mother demanded the respondent's father to sponsor a honeymoon for the couple to a foreign country, which could not be acceded to by her father. At the very first night of the marriage the appellant entered the room in an intoxicated state and the appellant tried to force her to consume alcohol, but she stoutly refused to consume, as she is a teetotaler. Thereafter, they proceeded to Moonar and Kodaikanal for their honeymoon. At the honeymoon, the appellant clearly stated that he decided to run a jewellery store in Chennai and for that a minimum of Rs.12 to 15 lakhs is needed and he is unable to mobilise such funds and hence he decided to marry her presuming that he could start the said business with the dowry brought at the time of marriage, but the dowry that was brought was not sufficient and so he was disappointed and unhappy. After their return to Chennai, the appellant and his mother demanded that her father should establish a jewellery store for the appellant, but the said demand was politely refused by the respondent's father, as he could not afford to set up a separate jewellery shop. Thereafter the appellant started openly calling the respondent as his “name sake wife”. The appellant as well as his family members started applying pressure for her on obtaining more dowry and the appellant would deliberately lose his temper at her even for minor issues and would also physically assault her. Knowing fully well that she dislikes alcohol, the appellant harassed her by returning home at night in an intoxicated condition. (iv) It is further alleged by the respondent that as his demand for further dowry was refused, he started refusing any intimate contact with her and when she sought an explanation, the appellant started claiming that she was suffering from AIDS. This wild allegation humiliated her and pained her. Under extreme pressure, the appellant agreed to undergo necessary AIDS test and the AIDS test was done at Diagnostic Center at Burkit Road, T.Nagar, and reports were negative, and in September 2000, totally upset by the above conduct of the appellant, she went to her parental home and took an overdose of Alprex tablets in an attempt to commit suicide. Since she was immediately taken to the nearby hospital and treated there, she was saved and she returned back to the matrimonial home, but even thereafter the harassment and nagging did not stop. (v) According to the respondent, the appellant directed that she should not interact with her family any more and he refused permission to her to visit them and directed not to contact her parents even over telephone. Even if the respondent's family members tried to contact her over phone, she was not allowed to talk with them. Around this time, she became pregnant and when the same was informed to the appellant, he immediately doubted her fidelity and he even commented that he had not done anything to cause pregnancy. Only when she threatened to undergo paternity test, the harassment stopped. As per the tradition, at the seventh month of the pregnancy, the appellant directed that a function be held and he demanded to send money and gifts by her family and the function was to be held around May – June 2001. Only when she threatened to undergo paternity test, the harassment stopped. As per the tradition, at the seventh month of the pregnancy, the appellant directed that a function be held and he demanded to send money and gifts by her family and the function was to be held around May – June 2001. As per the tradition, her family sent atleast 200 gift articles and about 50 boxes of sweets, but they refused to send further cash. This totally enraged the appellant and the function itself was called off by the appellant. It is alleged by the respondent that the appellant often came home late at night totally intoxicated merely to harass her. On First of July 2001, she was allowed to go to her parent's home for delivery and on 07.08.2001 a male child was born. Even after being informed about the birth of the son, he refused to visit the respondent, but only at the advise of elders and common family friends, he came to hospital to see her and the child. In the First Week of December 2001, the sister of the appellant was to be married and the respondent's presence was necessary to perform certain rituals and under pressure, the appellant took her and the son to the matrimonial home in the first week of September 2001. On 29.11.2001, the respondent's parents and family met with an accident and the said news was conveyed over phone to the appellant, who in turn informed the respondent, but the respondent was not allowed to leave the home to see her parents and after great persuasion, she was permitted to visit them. After returning to the matrimonial home, the respondent tried to reason out the appellant, but the appellant reiterated that he would not permit her to maintain any contact with her family until she brought the dowry demanded. (vi) The appellant started losing his temper more often and physically assaulted her at every given opportunity. She was insulted in the presence of her family members. The appellant totally refused any intimacy with her and with an intention of harassing her, he was deliberately masturbating in her presence. The conduct of the appellant put her to severe embarrassment and torture. She was insulted in the presence of her family members. The appellant totally refused any intimacy with her and with an intention of harassing her, he was deliberately masturbating in her presence. The conduct of the appellant put her to severe embarrassment and torture. When the respondent resisted the behaviour of the appellant, he stated that he would stop this type of behaviour only if she brought the dowry to set up a jewellery store. Until about mid May 2002, she remained in the matrimonial home hoping that there will be a change in the appellant's attitude, but the appellant did not change his attitude and on 18.05.2002 the respondent's parents sought permission of the appellant to take her home to a family function and the respondent sought leave of the appellant, without any provocation the appellant slapped her in her face in the presence of rest of the family and stated that she should leave the matrimonial home immediately and she should never ever return. Totally hurt and emotionally upset, the respondent left the matrimonial home on 18.05.2002. According to the respondent, the appellant and his family members never attempted to reconcile with her or bring her back to the matrimonial home. The attempts made by the elders of the Jain community and the common friends of the two families to reconcile the parties also failed to reunite them. According to the respondent, the marriage between her and the appellant has irretrievably broken down. The withdrawal of the respondent from the matrimonial home is only as a result of the aforesaid conduct of the appellant. The respondent had even lodged a Police Station with W-8 Secretariat Colony Police Station, Chennai, against the appellant and his family members in respect of the dowry harassment meted out by her. According to the respondent, she is afraid for her life and safety and if she is directed to stay with the appellant and his family, they would cause permanent harm or hurt to her. (vii) It is further alleged by the respondent that the appellant would deliberately take the child away from her for long hours in order to restrain her from feeding the child on time and this was done only to coerce her to bring dowry from her parents. (vii) It is further alleged by the respondent that the appellant would deliberately take the child away from her for long hours in order to restrain her from feeding the child on time and this was done only to coerce her to bring dowry from her parents. If Restitution is ordered, the appellant may make use of the child as a means to coerce her to withdraw the criminal complaint lodged against him and his family. (viii) The respondent has denied various allegations made by the appellant in his petition. According to the respondent, her family members never ever attempted to influence or intervene the matrimonial affairs of the couple. She has stated that the allegation that she was unhappy whenever she went to her parental home or that she was depressed is totally false. The attempts made by family elders and friends to reunite the couple is admitted, but, according to the respondent, only because of the persistent demand for dowry by the appellant, such attempts failed. On the aforesaid contentions, the respondent has sought for dismissal of the petition for Restitution of Conjugal Rights and has prayed for divorce. 6. The allegations in the counter statement filed in O.P.No.697 of 2003 are repeated in her petition for divorce filed in O.P.No.1601 of 2003. In the counter statement filed by the appellant each and every one of the allegations regarding demand for dowry, the alleged harassment and various acts of cruelty alleged against the appellant have been denied. The appellant had reiterated the contents of his petition in O.P.No.697 of 2003. The appellant stated in his counter statement that neither he assaulted the respondent nor refused to have intimacy with her. The appellant had also denied the allegation that he masturbated in the presence of the respondent. According to him, the said charge is most vicious, sick and perverted in content. The appellant had stated that it is wrong to allege that he used the child to blackmail the appellant in bringing more dowry. The allegation that the appellant took the child and kept the child for long hours preventing the respondent from feeding the child on time is denied. The appellant had specifically denied that he never assaulted her, as narrated by the respondent. The allegation that the appellant took the child and kept the child for long hours preventing the respondent from feeding the child on time is denied. The appellant had specifically denied that he never assaulted her, as narrated by the respondent. According to the appellant, although the respondent was very much in love with the appellant, it seems that she was beginning to become mentally disturbed perhaps as a result of the incessant and relentless emotional coercion of the respondent's father. The allegation that the appellant told her that she should leave the matrimonial house immediately and never return is totally false. On the other hand, the respondent's father very clearly took the respondent away while the appellant and his father had gone to Bangalore despite the vehement protests made by the appellant's mother. After return from Bangalore, the appellant immediately went to the respondent's father's house, but while the respondent was eager to come back, her father threatened to commit suicide if she went back. According to the appellant, it is only the wily and cruel father-in-law prevailed over the respondent to stay away from the appellant and consequently the respondent very reluctantly refused to come back with the appellant. According to the appellant, the petition for divorce is a counter blast to the petition filed by the respondent seeking Restitution of Conjugal Rights. On the aforesaid contentions, the appellant had sought for dismissal of the Divorce Petition and ordering of the petition for Restitution of Conjugal Rights. 7. Before the Family Court, on the side of the wife / respondent, she was examined as P.W.1 and her uncle, one, Prakash Bhandari, was examined as P.W.2 and Exs.P-1 to P-17 have been marked. On the side of the husband / appellant, he was examined as R.W.1 and Exs.R-1 to R-70 have been marked. On a consideration of the evidence available on record, the Family Court granted a decree for divorce and dismissed the petition for Restitution of Conjugal Rights. As aforesaid, being aggrieved by that, the appellant has filed the above appeals. 8. On the side of the husband / appellant, he was examined as R.W.1 and Exs.R-1 to R-70 have been marked. On a consideration of the evidence available on record, the Family Court granted a decree for divorce and dismissed the petition for Restitution of Conjugal Rights. As aforesaid, being aggrieved by that, the appellant has filed the above appeals. 8. During the hearing of appeals, we summoned the parties to be present before us and tried out best to persuade them to live together, but while the appellant / husband wanted to live with his wife and stubbornly refused to give his consent for divorce, the respondent / wife was stubborn and adamant and refused to join with the appellant. Having failed in our attempt to re-unite them, we heard the appeals on merit. 9. Heard the learned counsel on either side. 10. Mr.T.Murugesan, learned senior counsel, appearing on behalf of Mrs.Pushpa Sathyanarayanan, for the appellant in both the appeals made the following submissions:- (a) The allegation that the appellant and his family members harassed the respondent demanding huge dowry from her parents and because of such harassment, she suffered mental cruelty has not been established by acceptable evidence; though in the Divorce Petition and in the counter filed in the Restitution Petition and in her evidence, the respondent had deposed that the appellant demanded her to get Rs.12 to 15 lakhs from her parents to set up a jewellery shop, the same has not been mentioned in Ex.P-3-complaint lodged by her against the appellant; Ex.P-3 is the first document, wherein the respondent had mentioned her grievances, but even so, in Ex.P-3, there is no specific mention about the amount of dowry demanded; Ex.P-3 complaint was given by the respondent on 04.06.2003, the petition in O.P.No.1601 of 2003 was filed on 14.08.2003 and her counter in O.P.No.697 of 2003 was filed on 17.10.2003; having not mentioned any details and the instances when the alleged demand for dowry was made in Ex.P-3, on legal advise and as an after thought only, such false allegations and false details have been mentioned in O.P.No.1601 of 2003 and in the counter filed in O.P.No.697 of 2003. (b) As far as the alleged demand of dowry is concerned, except the oral testimony of P.W.1 there is no other corroborative evidence; though P.W.2, her paternal uncle, has been examined, he has not deposed anything regarding the alleged demand of dowry. Learned senior counsel submitted that neither the father nor the mother of the respondent have been examined; neither in the Divorce Petition nor in the counter filed in the Restitution Petition nor in her oral evidence, P.W.1 has deposed that she informed either her parents or her other family members about the alleged harassment meted out to her by the appellant and his family members demanding more dowry; it is strange that if really such harassment had actually taken place, the respondent would have kept quiet without informing her parents and other family members. (c) According to the learned senior counsel, the respondent was not even having a passport on the date of her marriage and that being so, the question of sending the appellant and the respondent on a foreign trip for honeymoon would not have arisen, therefore the allegation that the mother of the appellant demanded that the couple should be sent for honeymoon to a foreign country is false. He further submitted that the entire allegation regarding the demand of dowry has not been proved. As far as the allegation of the respondent that the appellant is a drunkard is concerned, the learned senior counsel submitted that except the oral evidence of P.W.1, there is no other acceptable evidence to come to the conclusion that the appellant was a drunkard; the Court below has also not recorded any such finding. He further submitted that not even a single averment has been made in the Divorce Petition and in the counter statement filed in the Restitution Petition by the respondent alleging that under the influence of alcohol the respondent ill-treated her or harassed her; even assuming that the appellant used to consume alcohol that itself will not amount to mental cruelty, unless it is proved that under the influence of alcohol, the appellant either misbehaved with her or ill-treated her or harassed her. (d) As far as the allegation of the respondent that unable to bear the ill-treatment and harassment, she even attempted to commit suicide is concerned, the learned senior counsel submitted that there is absolutely no evidence to prove the allegation. (d) As far as the allegation of the respondent that unable to bear the ill-treatment and harassment, she even attempted to commit suicide is concerned, the learned senior counsel submitted that there is absolutely no evidence to prove the allegation. He further submitted that in Ex.P-3-police complaint, the respondent has stated that she was totally frustrated and was not able to bear the ill-treatment given by her in-laws and husband and she even tried to commit suicide and due to her good family background and good sense, she has not done it and tolerated all his nonsensical attitudes; the said allegations show that she has not attempted to commit suicide, but contrary to that, in paragraph 10 of her Divorce Petition, she has stated as follows:- “... in September 2000 the Petitioner returned to her parental home for a function and totally upset at the conduct of the Respondent decided to end her life. She took an overdose of Alprex tablets in a bid to commit suicide. However she was immediately taken to the nearby hospital and given necessary medication. but in her evidence, she has stated as follows:- “I submit that in September 2000 I came to my parent's house for a function and since I was totally upset about the conduct of the respondent decided to end my life for once for all. However I was prevented by doing so.” He submitted that the aforesaid mutually contradictory case put forth by the respondent itself will falsify the said allegation. He submitted that in September 2000, no such incident took place as alleged by the respondent, but on 13.09.2000, the respondent was admitted to Zubeda Hospitals, Chetpet, Chennai – 31, for Acute Gastritis with Dehydration and after two days, i.e., on 15.09.2001, she was discharged from hospital, as is evident from Ex.R-4; Ex.R-4 is the discharge summary issued by Zubeda Hospitals; in Ex.R-4 under column 'Diagnosis' it is stated “Acute Gastritis with Dehydration”. Therefore, the learned senior counsel submitted that only to prejudice the mind of the Court and to get Divorce, such a false allegation has been made; there is absolutely no evidence to substantiate the said allegation. Therefore, the learned senior counsel submitted that only to prejudice the mind of the Court and to get Divorce, such a false allegation has been made; there is absolutely no evidence to substantiate the said allegation. (e) As far as the allegation of the respondent that her husband suspected her fidelity and character and she was subjected to undergo HIV test to find out as to whether she had contracted AIDS is concerned, the learned senior counsel submitted that such a serious allegation has been made only to maline the appellant and to get divorce from him and except the oral evidence of P.W.1, there is no other corroborative evidence to substantiate the said allegation. He further submitted that in paragraph 9 of the Divorce Petition, she has made the said allegation and she has also stated therein that the test was conducted at Diagnostic Centre, Burkit Road, T.Nagar and the reports were negative; after test, the appellant specifically warned her that he would kill himself and blame her for the same if she informed her family about the test. He further submitted that no documentary evidence has been produced to substantiate the said allegation and the respondent could have summoned the records from the Diagnostic Centre, if really such a test was conducted; Ex.R-3 series reports furnished by the Laboratory where she had undergone tests does not reveal that she was subjected to AIDS test; in her oral evidence, she has stated that the appellant had not produced all the reports; a perusal of Ex.R-3 series does not show that she was subjected to AIDS test, therefore, according to the learned senior counsel, the said allegation has not been proved. (f) As far as the allegation of the respondent that she was restrained from interacting with her parents and relatives is concerned, the learned senior counsel submitted that the said allegations has not been proved and even P.W.2 has not corroborated P.W.1 on this aspect. (f) As far as the allegation of the respondent that she was restrained from interacting with her parents and relatives is concerned, the learned senior counsel submitted that the said allegations has not been proved and even P.W.2 has not corroborated P.W.1 on this aspect. He submitted that even P.W.1 in her evidence has stated that on several occasions, she had gone to her parent's house and returned back to the matrimonial home, she had gone to the marriage of her cousin Boomika at Coimbatore, which will show that the respondent was permitted to go to her parent's house and also she was permitted to take part in the functions held in the parent's house as well as in her relatives' place, therefore, the said allegation is false and the same has not been proved. (g) As far as the allegation of the respondent that the appellant, with an intention to embarrass and harass her, indulged in masturbating in her presence and he refused to have intimate relationship with her is concerned, the learned senior counsel submitted that the said allegation is not only false but the same has been falsified by the fact that she delivered a male child and thereafter she became pregnant for the second time and the same is proved by Ex.R-25, dated 06.02.2002; Ex.R-25 is the ultra-sound report relating to the respondent given by Dr.Metha's Nursing Home Private Limited; in the said report, under the column-'Uterus' it is stated as follows:- “Measures 9.9 X 5.1 X 6.9 cms. Fluid filled sac with decidual reaction, Suggestive of Gestational sac noted. It measures 9.8 cms corresponding to approx 4 weeks. Fetal pole not delineated.” and under the column “Impression”, it is stated as follows:- “Fluid filled sac noted in fundus s/o gestational sac. To correlate with Gravindex test. Its size corresponds to approx 4 wks. Gestational age according to LMP (19-12-01) corresponds to approx 7 wks. It measures 9.8 cms corresponding to approx 4 weeks. Fetal pole not delineated.” and under the column “Impression”, it is stated as follows:- “Fluid filled sac noted in fundus s/o gestational sac. To correlate with Gravindex test. Its size corresponds to approx 4 wks. Gestational age according to LMP (19-12-01) corresponds to approx 7 wks. Fetal pole not delineated – suggested follow up.” The learned senior counsel submitted that Ex.R-25, ultrasound report, clearly shows that the last mensuration period of the respondent was 19.12.2001 and the gestational age corresponds to approximately seven weeks, which clearly shows that the respondent was pregnant for the second time, which itself will show that the appellant and the respondent had sexual intercourse and therefore the allegation of the respondent that the appellant refused to have intimate relationship with her is false; when the appellant had cohabited with her and because of that she became pregnant, the allegation that the appellant used to masturbate in her presence just to harass her is only an imaginary allegation just made only to serve the purpose of the petition. (h) Learned senior counsel submitted that Ex.R-20 which is the translated copy of the Diary entries of the respondent shows that the appellant and the respondent were leading a happy married life; a perusal of Ex.R-20 shows that the husband and the wife were affectionate to each other; in the said Diary, on 17.04.2002, the following has been written by the respondent:- “Earlier, Raju who could know everything without me telling. Nowadays, does not look at me properly but whenever I am depressed he would enquire why? I have seen his love for me in his eyes when Ronak was born in hospital. and further down, it is written as follows:- “... I had seen love for me during Ronak's birth at Hospital”. The entry relating to 18.04.2002 in Ex.R-20 shows her expectations from the appellant and on 19.04.2002 she has written in the Diary as follows:- “I am not able to keep Raju physically and mentally happy that is why he is not Romantic and does not like to share his tension with me”. On 22.04.2002, the following writing has been made in her Diary:- “As per my wish Raju had put sindoor for me but I felt that his love was not the same during which he had put Sindoor on the earlier two times”. On 22.04.2002, the following writing has been made in her Diary:- “As per my wish Raju had put sindoor for me but I felt that his love was not the same during which he had put Sindoor on the earlier two times”. Learned senior counsel submitted that nowhere in Ex.R-20 she had made any mention about the demand for dowry either by the appellant or by his family members or about the alleged harassment and ill-treatment meted out to her. He submitted that if really there was any demand for dowry and ill-treatment and harassment of the respondent, the respondent would have certainly written about that in her diary, when she has got the habit of writing diary; the fact that the respondent had not mentioned anything regarding the demand of dowry or about her harassment and ill-treatment will itself show that there was no demand for dowry and there was no harassment and ill-treatment as alleged by the respondent. (i) He further submitted that the Family Court has not recorded a clear finding regarding mental cruelty; the court below has not recorded a finding that the acts of cruelty alleged by the respondent have been proved; the Family Court has not at all discussed the evidence, but has straight-away after referring to the pleadings and the evidence has come to the conclusion. He further submitted that the Family Court has observed that as the appellant and the respondent are separated from each other since May 2002 till date, such living separately will itself amount to desertion; the finding of the Family Court that the respondent and the child were deserted by the appellant for a long number of seven years is erroneous. He further submitted that the Family Court has observed that as the appellant and the respondent are separated from each other since May 2002 till date, such living separately will itself amount to desertion; the finding of the Family Court that the respondent and the child were deserted by the appellant for a long number of seven years is erroneous. He further submitted that the respondent had not pleaded that she had been deserted by her husband; the relief is also not sought for on the ground of desertion and that being so, the Family Court erred in recording such a finding; the Family Court has observed that the matrimonial relationship has irretrievably broken down and there is no chance of re-union; the Family Court has held that the desertion will amount to physical and mental cruelty; without even recording a finding as to whether the allegation of the respondent that the appellant masturbated in front of her in order to harass her without having cohabitation, the Family Court held that such unnatural sexual behaviour in front of the young wife during night hours by the husband has caused mental cruelty to the respondent; the Family Court without even discussing the evidence and recording a finding has straight-away come to the conclusion that the respondent was deprived of cohabitation after the birth of the child and as if the appellant has caused physical and mental cruelty to the respondent and on the said ground, the respondent is entitled for the dissolution of the marriage as prayed for. He further submitted that the aforesaid findings recorded by the Family Court is not only against the evidence available on record, but is totally perverse and therefore, the same is liable to be set-aside. (j) Learned senior counsel submitted that the appellant has nowhere in his petition or in his evidence or in the course of cross-examination of P.W.1 made any allegation against the respondent / wife and through out he has been affectionate towards his wife and the child and he was and is always desirous of living with the respondent, but it is the respondent, who is refusing to join with the appellant under the pressure and bad influence of her parents and her junior paternal uncle. He further submitted that in the order, dated 14.11.2008 passed in Contempt Petition No.812 of 2007 by Mr.Justice M.Jeyapaul, the learned Judge has observed as follows:- “... The second respondent, who has nothing to do with the lis between the parties, has unnecessarily poked his nose and gave a different interpretation to the orders of this court” and submitted that the second respondent in that contempt petition is Prakash Bhandari, the junior paternal uncle of the respondent and who has been examined as P.W.2; the aforesaid observation made by this Court itself shows that it is only at the instance of the parents and the junior paternal uncle of the respondent, the respondent is refusing to join with the appellant. He further submitted that the above appeals have to be allowed. (k) In support of the said contentions, the learned senior counsel based reliance on the following decisions:- (I) (2010) 4 Supreme Court Cases 339 (MANISHA TYAGI v. DEPAK KUMAR). In the said decision, in paragraph 27, the Apex Court has held that it would be sufficient to show that the conduct of one of the spouses is so abnormal and below the accepted norm that the other spouse could not reasonably be expected to put up with it. The conduct is no longer required to be so atrociously abominable which would cause a reasonable apprehension that it would be harmful or injurious to continue the cohabitation with the other spouse. However, continued ill-treatment, cessation of marital intercourse, studied neglect, indifference of one spouse to the other may lead to an inference of cruelty. Learned senior counsel submitted that none of the aforesaid tests have been established in this case. (II) (2010) 4 Supreme Court Cases 476 (RAVI KUMAR v. JULMIDEVI). In the said decision, in paragraph 17, the Apex Court has held as follows:- “Therefore, in exercise of its power, the first appellate court can come to a finding different from the one which has been arrived at by the trial court especially in a case where appreciation of evidence by the trial court is not proper. Learned senior counsel submitted that in this case the Family Court has not at all appreciated the evidence on record and the finding of the Family Court is perverse and therefore this Court is empowered to set-aside the orders of the Family Court. (III) 2009-2-L.W.195 (SC) (Vishnu Dutt Sharma v. Manju Sharma). Learned senior counsel submitted that in this case the Family Court has not at all appreciated the evidence on record and the finding of the Family Court is perverse and therefore this Court is empowered to set-aside the orders of the Family Court. (III) 2009-2-L.W.195 (SC) (Vishnu Dutt Sharma v. Manju Sharma). In the said decision, in paragraph 7, the Apex Court has held as follows:- “7. On a bare reading of Section 13 of the Act, reproduced above, it is crystal clear that no such ground of irretrievable breakdown of the marriage is provided by the legislature for granting a decree of divorce. This Court cannot add such a ground to Section 13 of the Act as that would be amending the Act, which is a function of the legislature. Learned senior counsel submitted that this Court is not empowered to grant divorce on the ground that the marriage has irretrievably broken down. 11. Countering the said submissions, Mrs.Hema Sampath, learned senior counsel for Mrs.K.Bhawatharani, learned counsel for the respondent in both the appeals made the following submissions:- (i) When admittedly the appellant had filed several petitions before the Family Court, this Court and the Apex Court, he is not entitled to seek Restitution of Conjugal Rights. According to the learned senior counsel, all the petitions were filed by the appellant only to harass the respondent and therefore that itself will amount to mental cruelty and hence the Divorce Decree granted by the Family Court may not be interfered with. She submitted that from the averments contained in the petition and P.W.1's evidence only the case of the respondent has to be decided. According to the learned senior counsel, P.W.1's evidence has not been discredited in her cross-examination and therefore her evidence should be accepted. She further submitted that there is no contradiction between the averments contained in the petition and her evidence regarding the attempt of suicide by the respondent. According to the learned senior counsel, P.W.1's evidence has not been discredited in her cross-examination and therefore her evidence should be accepted. She further submitted that there is no contradiction between the averments contained in the petition and her evidence regarding the attempt of suicide by the respondent. She submitted that when the respondent lodged Ex.P-3-complaint it is no doubt true that in the said complaint, she had not made detailed allegations regarding the demand for dowry and the ill-treatment meted out to her, but that does not mean that there was no such demand for dowry or there was no ill-treatment or harassment; simply because, the allegations have not been made in detail in Ex.P-3, it cannot be contended by the appellant that the allegations contained in the Divorce Petition and in the counter filed in the Restitution Petition are false or exaggerated. (ii) Learned senior counsel submitted that when admittedly the appellant and the respondent are living separately for nearly eight years, it will show that the marriage has broken down irretrievably and therefore no purpose will be served in ordering Restitution of Conjugal Rights; even if Restitution of Conjugal Rights is ordered, the respondent is not willing to join with the appellant and therefore no purpose will be served; whereas if the decree for divorce is confirmed, both the parties can lead their own life independently and happily; any further continuance of the marriage between the appellant and the respondent will amount to mental cruelty to the respondent; in support of her aforesaid contentions, the learned senior counsel relied upon the following decisions:- (I) 2007 (3) CTC 464 (SC) (Samar Ghosh v. Jaya Ghosh). In the said decision, in paragraph 102, the Apex Court has laid down various tests for guidance in dealing with the cases of mental cruelty, which reads as follows:- “102. 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. 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 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 each 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) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse. (vi) Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty. (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) The conduct must be much more than jealousy, selfishness, possessiveness, which causes unhappiness and dissatisfaction and emotional upset may not be a ground for grant of divorce on the ground of mental cruelty. (ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day to day life would not be adequate for grant of divorce on the ground of mental cruelty. (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. 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) If a husband submits himself for an operation of sterilization without medical reasons and without the consent or knowledge of his wife and similarly if the wife undergoes vasectomy or abortion without medical reason or without the consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty. (xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty. (xiii) 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 the 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.” (II) 2002 (1) CTC 354 (SC) (Kameswara Rao, G.V.N. v. G.Jabilli). In the said decision, in paragraph 12, the Apex Court has laid down as follows:- “12. The Court has to come to a conclusion whether the acts committed by the counter-petitioner amount to cruelty, and it is to be assessed having regard to the status of the parties in social life, their customs, traditions and other similar circumstances. Having regard to the sanctity and importance of marriages in a community life, the Court should consider whether the conduct of the counter-petitioner is such that it has become intolerable for the petitioner to suffer any longer and to live together is impossible, and then only the Court can find that there is cruelty on the part of the counter-petitioner. This is to be judged not from a solitary incident, but on an overall consideration of all relevant circumstances. In the very same decision, the Apex Court has held that short temper, rudeness of language and occasional outburst of anger, may not amount to cruelty. (III) AIR 1994 710 = (1994) 1 Supreme Court Cases 337 (V.BHAGAT v. D.BHAGAT). This is to be judged not from a solitary incident, but on an overall consideration of all relevant circumstances. In the very same decision, the Apex Court has held that short temper, rudeness of language and occasional outburst of anger, may not amount to cruelty. (III) AIR 1994 710 = (1994) 1 Supreme Court Cases 337 (V.BHAGAT v. D.BHAGAT). In our considered view the said decision has no relevance to the facts of this case. (IV) (2007) 2 Supreme Court Cases 220 (SANGAMITRA GHOSH v. KAJAL KUMAR GHOSH). In this decision, by taking into consideration of the fact that the marriage between the parties has become totally dead and beyond repair of solvage, it is in public interest and in the interest of all concerned and since despite Court's persuasion, parties failed to amicably settle their difference of opinion and live together, the Apex Court granted a decree for divorce on the basis of the petition jointly filed by the parties before the Apex Court for grant of a decree of divorce by mutual consent, by exercising its jurisdiction under Article 142 of the Constitution of India. In the said decision, the Apex Court granted the relief as the marriage has irretrievably broken down and the parties have filed a petition seeking divorce by mutual consent. The said decision has absolutely no relevance to the facts of this case. The power under Article 142 of the Constitution of India is available only to the Apex Court and not to this Court. (V) 2008-3-L.W.864 (Dr. Gopal Ramanathan V. Jayashree) (DB). The Division Bench of this Court taking into consideration of the fact that the husband and the wife were living separately since the year of marriage for two decades, the Division Bench dissolved the marriage. The facts of that case and the facts of the case on hand are totally different and therefore the said decision is not applicable to the facts of this case. 12. We have considered the aforesaid submissions made by the learned counsel on either side and perused the materials available on record. 13. A perusal of the petition in O.P.No.1601 of 2003 filed by the respondent / wife seeking divorce shows that the respondent has alleged the following acts of cruelty said to have been committed by the appellant:- (i) The appellant and his family members demanded and harassed her to bring more dowry. 13. A perusal of the petition in O.P.No.1601 of 2003 filed by the respondent / wife seeking divorce shows that the respondent has alleged the following acts of cruelty said to have been committed by the appellant:- (i) The appellant and his family members demanded and harassed her to bring more dowry. (ii) Even on the date of marriage itself the mother of the appellant demanded that the appellant and the respondent should be sent for their honeymoon to a foreign country. (iii) The husband / appellant is a drunker. (iv) The appellant suspected the respondent's chastity and character and she was subjected to undergo AIDS test (HIV Test). (v) The appellant restrained his wife / respondent from interacting with her parents and relatives. (vi) The appellant masturbated in her presence and denied to have intimacy with her which amounted to cruelty. (vii) The appellant did not care for her and the child in not bringing her back to the matrimonial home immediately after delivery. 14. The aforesaid allegations have to be considered in the light of the following admitted facts. The marriage between the appellant and the respondent was solemnized at Chennai on 21.02.2000. On 07.08.2001, a male child was born out of the wedlock. On 09.08.2001, she was discharged from the hospital and from there she gone to her parental home; by the end of September 2001, she and the child were taken to the matrimonial home by the appellant; on 18.05.2002, the respondent left the matrimonial home; on 11.04.2003, the appellant / husband filed O.P.No.697 of 2003 under Section 9 of the Hindu Marriage Act seeking Restitution of Conjugal Rights. On 04.06.2003, the respondent / wife filed a Police Complaint-Ex.P-3 against her husband and in-laws before W-8 Secretariat Colony Police Station, Chennai. On 14.08.2003, the wife filed O.P.No.1601 of 2003 seeking divorce. On 17.10.2003, the wife filed her counter statement in O.P.No.697 of 2003. In the police complaint Ex.P-3 no specific dates have been mentioned as to when she was harassed demanding dowry by her father-in-law and mother-in-law. After leaving the matrimonial home, on 18.05.2002, she has taken more than one year to lodge Ex.P-3-complaint. In the complaint-Ex.P-3 only bald and vague allegations have been made. The bald allegations made against her father-in-law seemed to suggest the anxiety of the respondent to rope in the other senior members of her husband's family. After leaving the matrimonial home, on 18.05.2002, she has taken more than one year to lodge Ex.P-3-complaint. In the complaint-Ex.P-3 only bald and vague allegations have been made. The bald allegations made against her father-in-law seemed to suggest the anxiety of the respondent to rope in the other senior members of her husband's family. In Ex.P-3-complaint, as rightly contended by the learned senior counsel for the appellant, she has not specifically mentioned the exact amount demanded as dowry and has only stated that from the day one her husband and his family members started abusing her for not bringing sufficient dowry and her husband started beating her, harassing her abusing her along with his family. Whereas in her petition and evidence she has stated as if they demanded further dowry of Rs.12 to 15 lakhs to start a jewellery shop by the appellant. In Ex.P-3-complaint she has alleged that she tried to commit suicide, but due to her family background she had not done that. She has further stated that her husband and in-laws came to see her in the hospital, but a perusal of Ex.R-20, the translated copy of the Diary shows that on 17.04.2002 she had written as follows:- “I have seen his love for me in his eyes when Ronak was born in hospital Again she has repeated that she had seen love for her during Ronak's birth at hospital. When she has written, as above, in her diary, the allegation that even after being informed, her husband and his parent's did not come to the hospital to see her and the child and only at the intervention of the elders they came to hospital cannot be believed. Nowhere in the diary entries, she has mentioned anything about the alleged dowry harassment. If really there was any such dowry harassment as alleged by the respondent she would have definitely mentioned about it in her diary. When she has referred to the conduct of her husband and about his temperament she has nowhere mentioned about the dowry harassment either by the appellant or his parents. Therefore the allegations of dowry harassment appears to have been made purposely to get divorce. 15. When she has referred to the conduct of her husband and about his temperament she has nowhere mentioned about the dowry harassment either by the appellant or his parents. Therefore the allegations of dowry harassment appears to have been made purposely to get divorce. 15. A perusal of the divorce petition shows that the allegations of dowry demand, harassment and ill-treatment of the respondent by the appellant and his parents is only stated vaguely without specifying the time, date and month on which such events happened. A person, who is in the habit of writing diaries, could have easily mentioned the specific dates on which such demands and ill-treatment took place. It is also pertinent to point out that though the respondent had left the matrimonial home, on 18.05.2002, she had chosen to file Ex.P-3 complaint after the appellant filed O.P.No.697 of 2003 seeking Restitution of Conjugal Rights on 11.04.2003 and that too on 04.06.2003 i.e., nearly more than one-and-half-months from the date of filing of the OP. Thus it appears that the respondent had filed Ex.P-3-complaint only as a counter blast to O.P.No.697 of 2003. P.W.1 in her evidence has stated that she left the matrimonial home in May 2002 along with her child and the appellant filed a false complaint against her and her parents and made the police officials to come to her house and only thereafter as reciprocation to the respondent's complaint she also gave a complaint against the respondent and his family members before W-8 All Women Police Station at Secretariat Colony. Thus her own admission shows that only as a counter blast to the complaint said to have been given by the appellant, Ex.P-3-complaint has been given. Therefore, it raises a serious doubt in our mind whether the allegations in Ex.P-3-complaint and in the divorce petition are really true and invented for the purpose of this case. 16. The writings in the diary, namely, Ex.R-20, between January 2002 to April 2002 does not reveal any demand for dowry or harassment of the respondent, whereas, it shows only the cordial relationship between the appellant and the respondent. Whereas in the divorce petition and in her evidence she has deposed as if the seventh month ceremony itself was called off as the respondent's parents refused to accede the demand of dowry. Whereas in the divorce petition and in her evidence she has deposed as if the seventh month ceremony itself was called off as the respondent's parents refused to accede the demand of dowry. Similarly, she has deposed that after she delivered the child on 07.09.2001, when the appellant came to hospital, he deliberately made a comment that he has come to see the child and not her. After discharge from the hospital, she went to her parent's house and the appellant never turned up to see her and the child. She has also deposed that whenever she called him over phone and requested to take her back, he demand dowry and unless she brings the dowry, he has nothing to do with her. Similarly, when the respondent's sister was engaged and the marriage was due to be solemnized during First Week of December 2001, as the respondent, as the sister-in-law was to do certain ceremonies and to avoid unpleasantness before community members, she was taken to the matrimonial home. She has further deposed that the appellant came to pick up from the parent's house, the appellant told her that she is being taken to the house only at the instance of the elders of the community and to avoid embarrassment during the time of marriage of his sister and he informed her that he has no affection or interest towards her. This deposition of P.W.1 is falsified by the Diary entry in Ex.R-20 made on 04.01.2002 and the subsequent writings. 17. In the cross examination of P.W.1 she had deposed that her husband had demanded dowry in writing in his own hands and the same is available with her, but since the same is required for some other purpose, the same has not been produced before the Court and she has also deposed that she has produced before the Apex Court as a document and she has said that she is ready to produce the xerox copy of the same, but she has neither produced the original nor the xerox copy of the same, which not only falsifies her evidence but for having withheld such best evidence an adverse inference can be drawn against the respondent. 18. 18. As rightly contended by the learned senior counsel for the appellant, except the oral evidence of P.W.1, there is no other corroborative evidence to prove the allegations of demand of dowry and harassment and ill-treatment. The parents of P.W.1 have not been examined and even P.W.2, the junior paternal uncle has not spoken about the alleged demand of dowry. Learned senior counsel submitted that these aspects have not at all been considered by the Family Court. 19. After judgments were reserved in these appeals, the learned counsel for the respondent had filed an affidavit of the respondent wherein it is stated that in C.C.No.25 of 2004 on the file of the Chief Metropolitan Magistrate, Egmore, Chennai, the appellant has been convicted for six months imprisonment under Section 498-A of IPC and to pay a fine of Rs.5,000/- and six months imprisonment was imposed for the offence under Section 406 IPC together with the fine of Rs.2,000/- by judgment, dated 27.09.2011. It has to be pointed out that the appellant is entitled to file an appeal and thereafter, he is also entitled to file a revision and therefore when the judgment of the Chief Metropolitan Magistrate has not become final, the same cannot be relied upon to come to the conclusion that the appellant has ill-treated the respondent and demanded dowry. 20. In the decision reported in (2009) 11 Supreme Court Cases 545 (SETH RAMDAYAL JAT v. LAXMI PRASAD), in paragraph 20, it is laid down as follows:- “20. It is now almost well settled that save and except for Section 43 of the Evidence Act which refers to Sections 40, 41, 42 thereof, a judgment of a criminal court shall not be admissible in a civil suit. What, however, would be admissible is the admission made by a party in a previous proceeding.” In this case, it is not the case of the respondent that the appellant has made any admission before the criminal court in the criminal proceedings. Therefore, the judgment of the criminal court is not admissible in these proceedings. Further, it is settled law that civil proceedings cannot be determined on the basis of the judgment of the Criminal court. The judgment of the criminal court is not binding on the civil court. 21. Therefore, the judgment of the criminal court is not admissible in these proceedings. Further, it is settled law that civil proceedings cannot be determined on the basis of the judgment of the Criminal court. The judgment of the criminal court is not binding on the civil court. 21. The aforesaid contentions of the learned senior counsel for the appellant have not been effectively answered by Mrs.Hema Sampath, learned senior counsel for the respondent. Mrs. Hema Sampath, learned senior counsel for the respondent, is unable to point out as to why the said contentions should not be accepted. She only contended that the allegations of demand of dowry and harassment should be decided only based on the averments contained in the divorce petition and her evidence, since nothing has been elicited during the cross examination of P.W.1 to discredit her evidence. Even if nothing has been elicited during her evidence to discredit her, still her evidence and the allegations in the divorce petition have to be considered in the light of the aforesaid other materials available on record. If her evidence is considered in the light of Ex.P-3, Ex.P-20, the delay in filing Ex.P-3 complaint and her own admission that only as a counter blast to the complaint said to have been filed by the appellant against her and her family members, Ex.P-3 complaint was given by her, then it could be seen that the allegations made by the respondent are only invented for the purpose of this case. When the alleged harassment over dowry demand has started, according to P.W.1, even from the first day, it had taken her more than one year from 18.05.2002 when she has left the matrimonial home to file Ex.P-3 complaint. The complaint itself has been filed more than one and half months after the husband filed the petition seeking Restitution of Conjugal Rights. 22. From all these facts, we have no hesitation to hold that the allegations have been invented only for the purpose of obtaining a divorce from the appellant. Further, as pointed out above, these allegations have not been proved by acceptable evidence. 23. 22. From all these facts, we have no hesitation to hold that the allegations have been invented only for the purpose of obtaining a divorce from the appellant. Further, as pointed out above, these allegations have not been proved by acceptable evidence. 23. The respondent in her petition and evidence has alleged that even on the first day of marriage, the mother of the appellant demanded that the newly married couple should be sent for a honeymoon to a foreign country, but, admittedly, the respondent was not having a passport at that time and therefore such a demand would not have been made. Further, the said allegation has not been mentioned in Ex.P-3 complaint. It has to be pointed out that when the complaint of dowry harassment is made before the Police Authorities normally the complainant would narrate all the instances of harassment. The non-mentioning of the aforesaid demand raises a serious doubt regarding the said allegation. Therefore, we are of the view that the said allegation has not been established by acceptable evidence. 24. The further allegation of the respondent is that the husband is a drunkard. For that there is no other corroborative evidence. As rightly contended by the learned senior counsel for the appellant, simply because a person consumes alcohol frequently, he cannot be termed as a drunkard and further, assuming that the appellant used to take alcohol that alone will not amount to cruelty, unless it is proved that under the influence of alcohol the appellant had ill-treated the respondent or had harassed her. It is pertinent to point out that it is not the case of the respondent that under the influence of alcohol the appellant either ill-treated her or harassed her and therefore even if the appellant used to drink frequently that alone will not amount to causing mental cruelty. 25. As far as the allegation of the respondent that the appellant suspected her chastity and fidelity and she was subjected to undergo HIV test for AIDS is concerned, the said allegation has not been substantiated by acceptable evidence. Ex.R-3-reports do not reveal that she was subjected to HIV test and the explanation offered by the respondent is that the entire report was not given to her by her husband. If that is so, the respondent could have summoned the records from the Diagnostic Center, where she was allegedly subjected to HIV test. Ex.R-3-reports do not reveal that she was subjected to HIV test and the explanation offered by the respondent is that the entire report was not given to her by her husband. If that is so, the respondent could have summoned the records from the Diagnostic Center, where she was allegedly subjected to HIV test. Admittedly both of them had gone for honeymoon and thereafter to several hill stations and spent their days happily and they had happy marital relationship and that being so, it is hard to believe that the appellant would have subjected the respondent to undergo HIV test. When such a serious allegation has been made, she would have definitely informed atleast to her mother if not to her father. She would have made a mention in her diary about this and she could have very well produced the diary and further no corroborative evidence is available and therefore we are of the considered view that the said allegation has not been proved. 26. As far as the allegation of the respondent that the appellant restrained her from interacting with her family members and relatives is concerned, there is no corroborative evidence, but the respondent could have examined her parents as to whether the respondent visited them frequently and was having conduct with the relatives or not and if so due to what reason. 27. In her petition, in paragraph 19, it is stated that on 29th November 2001 the petitioner's (respondent herein) family met with an accident and her brother telephoned the petitioner but the appellant did not permit the respondent to talk to him and only at 11.30 pm she was permitted to visit her parents. In her cross-examination, P.W.1 has deposed that her husband permitted her to go to her parent's house to see them. She has further deposed that her husband himself took her to her mother's house, which is contrary to the averments in the petition. As far as the alleged accident to her family members in September 2001 is concerned, P.W.1 has not even whispered a single word about that. Therefore, there is absolutely no corroborative evidence to substantiate the allegation of the respondent. Therefore the said allegation has not been proved. 28. As far as the alleged accident to her family members in September 2001 is concerned, P.W.1 has not even whispered a single word about that. Therefore, there is absolutely no corroborative evidence to substantiate the allegation of the respondent. Therefore the said allegation has not been proved. 28. As far as the allegation of the respondent that just to humiliate, harass and cause mental cruelty to her the appellant used to masturbate in her presence and refused to have sexual intercourse with her and intimacy was denied to her is concerned, it has to be pointed out that in her cross-examination she has stated that the appellant used to masturbate in bedroom and during such time, sometimes, the bedroom door was open. The said evidence of P.W.1 is unbelievable. No sane person will indulge in such acts by keeping the bedroom door open. It has been proved beyond doubt from Ex.R-25-ultra sound report, dated 06.02.2002 relating to the respondent which has been issued by Dr.Metha's Nursing Home Private Limited that the respondent's last mensuration period was on 19.12.2001 and she was pregnant approximately by four weeks. When for the second time the respondent had became pregnant, it is preposterous on the part of the respondent to allege that the appellant refused to have sexual intercourse with her and intimacy was refused and the appellant was indulging in masturbating just to harass her. Even in the light of Ex.R-25 the respondent has gone to the extent of denying the pregnancy. It has been alleged by the appellant that without the knowledge of the appellant, the respondent had aborted the pregnancy, but the said allegation has not been proved by the appellant. Therefore, we are of the considered view that the said allegation made against the appellant by the respondent has not been proved. 29. A general allegation has been made by the respondent against the appellant that the appellant had not cared for her or the child, but, as pointed out above, the diary entries in Ex.R-20 falsifies this allegation. It has to be pointed out that in the Diary, on 17.04.2002, the following has been written by the respondent:- “Earlier, Raju who could know everything without me telling. Nowadays, does not look at me properly but whenever I am depressed he would enquire why? It has to be pointed out that in the Diary, on 17.04.2002, the following has been written by the respondent:- “Earlier, Raju who could know everything without me telling. Nowadays, does not look at me properly but whenever I am depressed he would enquire why? I have seen his love for me in his eyes when Ronak was born in hospital and further down, it is written as follows:- “... I had seen love for me during Ronak's birth at Hospital The entry relating to 18.04.2002 in Ex.R-20 shows her expectations from the appellant and on 19.04.2002 she has written in the Diary as follows:- “I am not able to keep Raju physically and mentally happy that is why he is not Romantic and does not like to share his tension with me. On 22.04.2002, the following writing has been made in her Diary:- “As per my wish Raju had put sindoor for me but I felt that his love was not the same during which he had put Sindoor on the earlier two times. In the light of the above, the aforesaid allegation of the respondent that the appellant had not cared for her or the child cannot be believed. 30. As far as the allegation of the attempted suicide is concerned, in our considered view, the said allegation has not been proved by acceptable evidence. In this context, it is pertinent to point out that the respondent has made mutually contradictory averments in Ex.P-3-complaint, in her divorce petition and in her evidence regarding her attempt to commit suicide. In Ex.P-3-complaint, the respondent has stated that she was totally frustrated and was not able to bear the ill-treatment given by her in-laws and husband and she even tried to commit suicide and due to her good family background and good sense, she has not done it and tolerated all his nonsensical attitudes; the said allegations show that she has not attempted to commit suicide, but contrary to that, in paragraph 10 of her Divorce Petition, she has stated as follows:- “... in September 2000 the Petitioner returned to her parental home for a function and totally upset at the conduct of the Respondent decided to end her life. She took an overdose of Alprex tablets in a bid to commit suicide. in September 2000 the Petitioner returned to her parental home for a function and totally upset at the conduct of the Respondent decided to end her life. She took an overdose of Alprex tablets in a bid to commit suicide. However she was immediately taken to the nearby hospital and given necessary medication but in her evidence, she has stated as follows:- “I submit that in September 2000 I came to my parent's house for a function and since I was totally upset about the conduct of the respondent decided to end my life for once for all. However I was prevented by doing so. The aforesaid mutually contradictory case put forth by the respondent itself will falsify the said allegation. Further, it has to be pointed out that in September 2000, no such incident took place as alleged by the respondent, but on 13.09.2000, the respondent was admitted to Zubeda Hospitals, Chetpet, Chennai – 31, for Acute Gastritis with Dehydration and after two days, i.e., on 15.09.2001, she was discharged from hospital, as is evident from Ex.R-4; Ex.R-4 is the discharge summary issued by Zubeda Hospitals; in Ex.R-4 under column 'Diagnosis' it is stated “Acute Gastritis with Dehydration”. Therefore, it is clear that the case of the appellant that the respondent never attempted to commit suicide is to be accepted. We are of the considered view that only to prejudice the mind of the Court and to get divorce such a false allegation has been made by the respondent and there is absolutely no evidence to substantiate the said allegation. 31. P.W.2 has deposed in support of P.W.1 on several aspects except the demand of dowry, but he has not deposed that P.W.1 used to inform him about the alleged acts of cruelty as and when the same took place either in person or by phone. Similarly, P.W.1 has not deposed that she used to inform the alleged acts of cruelty to P.W.2 or to her parents. When P.W.1 herself has not spoken so, it is un-understandable as to how P.W.1 had come to know about the same. For these reasons also, P.W.2's evidence cannot be accepted. 32. P.W.1 in her evidence has stated that Exs.R-6 to R-8 photos were taken on the occasion of Rakki festival. When P.W.1 herself has not spoken so, it is un-understandable as to how P.W.1 had come to know about the same. For these reasons also, P.W.2's evidence cannot be accepted. 32. P.W.1 in her evidence has stated that Exs.R-6 to R-8 photos were taken on the occasion of Rakki festival. In Ex.R-6-photo the female child of the respondent's sister-in-law is there and Ex.R-8-photo shows that sister-in-law of the respondent is holding the son of the respondent. She has also admitted that after the birth of her son, the family members of her husband visited her and saw the child. 33. It has been suggested to P.W.1 that as a result of the marital relationship and sexual relationship she had with her husband she became pregnant and hence even assuming that there was any acts of cruelty committed by the appellant and her family members, the same has been condoned by her, but P.W.1 has denied it. The fact that the respondent became pregnant for the second time in January 2002 would show that she was leading a normal life with her husband and as rightly contended by the learned senior counsel for the appellant, the past acts of cruelty, if any, though the same have not been established, will amount to condoning the same. The said contention has got some force. 34. It is pertinent to point out that according to the respondent she left the matrimonial home on 18.05.2002. In paragraph 24 of the Divorce Petition it is averred that on 18.05.2002 her parents sought permission of the appellant and his parents to take the respondent to their home to attend a family function and when she sought permission of the appellant he slapped her in the presence of the family members without any provocation and the appellant stated that she should leave the matrimonial house immediately and should never ever return and totally hurt and emotionally upset, the respondent left the matrimonial home on 18.05.2002. But the same has not been mentioned in Ex.P-3 complaint. But the same has not been mentioned in Ex.P-3 complaint. In Ex.P-3 complaint she has stated that neither her husband nor her in-laws were interested in her and her son and hence she left the house in the middle of May 2002, but P.W.2 in his sworn affidavit, which is treated as the chief examination itself, he has stated as follows:- “During 18th May 2002, there was a frantic call from Rekhaa stating that unless and until we come at once to take her, her life is at risk in the hands of Rajesh and his family members. Realizing the seriousness, I asked her to be calm and I informed her that within an hour or so, I will be there in her house to sort out the things. Accordingly I along with Rekhaa's father went to her house and we could notice on her cheeks had finger marks. Rajesh's mother was also using abusive language on her. When it was informed to Mr.Rajesh and her mother that we would like to take her home, in front of us Rajesh Slapped her once again and said if she is going then she can go out of the house along with the son once for all. Rekhaa left the matrimonial home with the child leaving behind all her belongings. This is contrary to the averments contained in the petition filed by the respondent seeking divorce and contrary to the evidence of P.W.1 and the same is also contrary to the counter statement filed in the OP filed for Restitution of Conjugal Rights. Thus it is seen that P.Ws.1 and 2 have given different versions as to under what circumstances P.W.1 left the matrimonial home on 18.05.2002. Therefore, the allegations of the respondent that she was sent out of the matrimonial home by the appellant and his family members on 18.05.2002 cannot be accepted. 35. When the respondent has not proved by acceptable evidence the various acts of cruelty alleged against the appellant and his family members, the only inference that could be drawn is that she has not left the matrimonial home for the reasons alleged by her. 35. When the respondent has not proved by acceptable evidence the various acts of cruelty alleged against the appellant and his family members, the only inference that could be drawn is that she has not left the matrimonial home for the reasons alleged by her. When admittedly the respondent has left the matrimonial home on 18.05.2002 and she has not joined with the appellant and even now she is living separately from him and when the respondent had not established by acceptable evidence that she had sufficient cause to leave the matrimonial home, the appellant / husband is entitled to seek Restitution of Conjugal Rights. When the alleged acts of cruelty have not been proved by the respondent, she is not entitled to get a decree for divorce. 36. When we have come to the conclusion that the very acts of cruelty alleged against the appellant and his family members have not been proved by the respondent, the question of considering as to whether such acts of cruelty will amount to mental cruelty does not arise. Therefore, the decisions relied upon by the learned counsel for the respondent are not discussed. 37. The submission of the learned senior counsel for the respondent that since the appellant and the respondent are living separately for a long number of years and the marriage has broken down irretrievably and as laid down in the decisions referred to by her and the marriage has been dissolved by the Apex Court on the ground of irretrievable breaking down of marriage, this Court may confirm the divorce decree granted by the Family Court is concerned, it has to be pointed out that such a relief has been granted by the Apex Court in the exercise of their power under Article 142 of the Constitution of India which power is not available to this Court. Further, it has to be pointed out that in the decision reported in 2009-2-L.W.195 (SC) (referred to supra), the Apex Court has laid down that on a bare reading of Section 13 of the Act, reproduced above, it is crystal clear that no such ground of irretrievable break down of the marriage is provided by the legislature for granting a decree of divorce. This Court cannot add such a ground to Section 13 of the Act as that would be amending the Act, which is a function of the legislature. This Court cannot add such a ground to Section 13 of the Act as that would be amending the Act, which is a function of the legislature. Therefore, the said submission of the learned senior counsel for the respondent cannot be countenanced. 38. It has to be pointed out that the Family Court has not at all discussed the evidence on record for coming to the conclusion that the appellant had treated the respondent in such a manner as would cause mental cruelty to the respondent. As the findings of the Family Court are not supported by evidence on record and the same are perverse, such findings are liable to be set-aside and accordingly set-aside. Hence, the decree, dated 15.12.2009, for divorce granted in favour of the respondent in O.P.No.1601 of 2003 and the order, dated 15.12.2009, passed in O.P.No.697 of 2003 refusing Restitution of Conjugal Rights to the appellant by the Principal Family Court, Chennai, are hereby set-aside. O.P.No.697 of 2003 filed by the appellant seeking Restitution of Conjugal Rights is allowed and O.P.No.1601 of 2003 filed by the respondent seeking divorce is dismissed. 39. For the aforesaid reasons, the above Civil Miscellaneous Appeals are allowed. However there will be no order as to costs.