Judgment : 1. Being aggrieved by the concurrent judgments and decrees of the Courts below, directing maintenance and creating a charge over the properties, husband has filed the present appeal. For sake of convenience, the parties are addressed as per the litigative status in the lower Court. 2. The plaint averments are as follows: The plaintiff is the legally wedded wife of the defendant. The marriage between the parties took place on 28.08.1985. It is the case of the plaintiff that at the time of marriage, her father had given 30 sovereigns of jewels and Rs.20,000/- as Sridhana. A female child was born out of the wedlock, in the year 1986. Thereafter, the defendant began to treat the plaintiff cruelly, by asking her to bring a motorcycle from her parent’s house, but the demand could not be complied with, by the parents of the plaintiff. On 15.04.1994, the defendant took away jewels and money from the plaintiff and started a finance business, at Dharapuram. Subsequently, the plaintiff conceived twice. As the scan report revealed a female child, the plaintiff was forced by the defendant to abort the child. Lastly, on 30.08.1997 in an intoxicating mood, the defendant drove away the plaintiff from the matrimonial house. Thereafter, the defendant filed a petition for divorce before the Sub Court, Dharapuram, in H.M.O.P. No.34 of 1997 and that the same was allowed. Being aggrieved by the same, the plaintiff preferred an appeal and that the same was pending before the District Court, Erode, when the present suit for maintenance was filed. It is the case of the plaintiff that the defendant owns 20 acres of land and running a poultry farm. He is earning Rs.50,000/- per annum. He has also taken away 30 sovereigns of jewels, worth about Rs.1,20,000/- and cash of Rs.20,000/-. In the abovesaid circumstances, the plaintiff has filed the present suit, claiming past and future maintenance, value of the jewels and cash. She has also prayed for a charge over the properties. 3. The defendant in his written statement, has admitted marriage, but denied the contention that the plaintiff was given 30 sovereigns of jewels and Rs.20,000/- cash, by her father. He has denied the contention that he had taken away jewels and money and was running a finance business. He has also submitted that the plaintiff never conceived twice and that there was no abortion. He has denied the contention that he had taken away jewels and money and was running a finance business. He has also submitted that the plaintiff never conceived twice and that there was no abortion. According to him, on 30.08.1997, the plaintiff, on her own accord, neglected the defendant, his aged parents, the female child born out of the wedlock and went to her parental house. As several efforts taken by the defendant to bring back the plaintiff to the matrimonial house, failed and since she did not take any care even to maintain the female child, the defendant was constrained to file a petition for divorce, on the file of the learned Sub Judge, Dharapuram, which was also allowed. The defendant has denied the contention that he is having 20 acres of land and earning Rs.50,000/- per annum. According to him, it is difficult to maintain even his aged parents and the female child. He has also denied that he is running a poultry farm at Dharapuram. On the contrary, he has submitted that the plaintiff has acquired 10 acres of land from her parents and cultivating the same. as she has means to maintain herself and for the reasons stated supra, he has prayed to dismiss the suit for maintenance. 4. On the above pleadings, the trial Court framed the following issues for consideration. (i) Whether the plaintiff is entitled to receive Rs.1,500/- as maintenance from the defendant? (ii) To what relief, she is entitled to? 5. The plaintiff examined herself as PW.1 and marked as Ex.A1. The defendant examined himself as DW.1 and marked Exs.B1 to B5. On analysis of oral and documentary evidence, the learned trial judge, decreed the suit, granting Rs.1,200/- as monthly maintenance to the plaintiff and ordered a charge over the properties in S.F.Nos.146/6, 147/3 and 149/1 of kolinjivadi Village, S.F.Nos.1822 to 1824 of Kolathupalayam Village and S.F.Nos.5/2, 5/4, 16/2 and 4 of Ponnivadi Village. 6. Being aggrieved by the decree, awarding maintenance and charge over the properties, the defendant has preferred an appeal in A.S.No.125 of 2003, on the file of the learned Principal District Judge, Erode. Upon consideration of the material on record, the lower appellate court has confirmed the decision stated supra. 6. Being aggrieved by the decree, awarding maintenance and charge over the properties, the defendant has preferred an appeal in A.S.No.125 of 2003, on the file of the learned Principal District Judge, Erode. Upon consideration of the material on record, the lower appellate court has confirmed the decision stated supra. Hence, the present second appeal, which has been entertained on the following substantial questions of law, “When the only ground put forward by the wife before the Court below to live separately and yet claim maintenance being that her husband forced her to abort, does it not require medical evidence to prove that the wife underwent abortion and in the absence of the same, can a decree for maintenance be granted?” 7. Assailing the correctness of the judgments and decrees of the Courts below, on the substantial questions of law and referring to Section 18(2)(b) of the Hindu Adoptions and Maintenance Act, 1956, Mr. M.V. Krishnan, learned counsel for the defendant submitted that both the Courts below have failed to consider that there was no proof of cruelty, inflicted on the plaintiff, so as to cause any reasonable apprehension in her mind, that it would be harmful or injurious to her, to live with the defendant and that there is not even an allegation in the plaint to that effect. In this context, he took this Court through the plaint averments. 8. Learned counsel for the defendant/appellant further submitted that in the absence of any discussion or recording a specific finding, as to whether abortion of the foetus, was at the behest of the defendant, against her wish or by force, a cruel act, which caused a reasonable apprehension in the mind of the plaintiff, not to live with the defendant, on the ground, that it would be harmful or injurious to her, the concurrent decision of the lower Courts in awarding maintenance, is wholly erroneous and that it does not satisfy the requirements of the statute. In this context, he also took this Court through the observation of the lower appellate Court that only because of the misunderstanding between the spouses, the plaintiff had chosen to live separately in her parental house. 9. Learned counsel for the defendant/appellant further submitted that misunderstanding between spouses, is common, in all the families and that alone, would not amount to mental cruelty. 9. Learned counsel for the defendant/appellant further submitted that misunderstanding between spouses, is common, in all the families and that alone, would not amount to mental cruelty. He further submitted that in every wedlock, there would be a wear and tear. According to him, tolerance is the foundation of a sound marriage. Reiterating that misunderstanding between the spouses, as found by the lower appellate Court, cannot be a valid reason, to arrive at the conclusion, that there was justifiable cause for the plaintiff to have a reasonable apprehension, and that it would be harmful or injurious to her, to live with her husband, learned counsel submitted that both the Courts below have conceptually erred in understanding the meaning attached to the word, ‘cruelty’, coupled with the burden of proving the reasonable cause, for living separately. He further submitted that if the plaintiff-wife had taken a decision to live in her parental house, due to misunderstanding, then the husband cannot be said to have failed and neglected to maintain her and consequently, be held liable to pay maintenance. On the aspect of cruelty, reliance has been placed on a decision of the Bombay High Court in Dr. Keshaorao Krishnaji Londhe v. Mrs. Nisha Londhe reported in AIR 1984 Bombay 413(1). 10. Without prejudice to his main contention that the plaintiff has not made out a case with reference to the statutory provision and legal principles which defined the term, “cruelty”, by referring to Section 20 of the Hindu Adoptions and Maintenance Act, 1956 learned counsel for the defendant further submitted that as per the statutory provision, the defendant is bound to maintain his aged parents, school going daughter, born out of the wedlock, and not cared by the plaintiff, from out of his earnings, which the Courts below have failed to consider in proper perspective. 11. 11. Inviting the attention of this Court to the particulars of the suit schedule properties, for which, a charge decree has been sought for and to the finding of the lower appellate Court that the respondent-wife, has not adduced any evidence to substantiate her contention that the appellant-husband owned 20 acres of land and also by running a poultry farm, derived income of Rs.50,000/- per annum and to the contents of documents, Exs.B1 to B5, filed by the husband, learned counsel for the appellant further submitted that when the respondent-wife has prayed for a charge over the suit properties, it is for her to let in sufficient documentary evidence to prove that the defendant-husband owned properties and derived income. Assailing the findings recorded by the lower Court and as confirmed by the lower appellate Court, creating charge over the property, on the ground that the survey numbers mentioned in the documents, Exs.B1 to B6, produced by the husband, claiming that the lands mentioned in the above exhibits belong to his parents, did not co-relate with the survey numbers mentioned in the suit schedule and that therefore, the plaintiff-wife is entitled to the charge over the properties in S.F.Nos.146/6, 147/3 and 149/1 of Kolinjivadi Village, S.F.Nos.1822 to 1824 of Kolathupalayam Village, S.F.Nos.5/2, 5/4, 16/2 and 4 of Ponnivadi Village, he submitted that the approach of the Courts below is wholly erroneous, for the reason that it is for the plaintiff to prove that the husband owned the said lands and derived income. 12. Though the appellant has not raised any substantial question of law, regarding the above contention in the memorandum of grounds of appeal, during the course of hearing, learned counsel for the appellant-defendant has filed a memo, under Section 100(5) CPC, raising a substantial question of law, as to whether the Courts below have erred in creating a charge over the properties, when the defendant is not the owner of the same. For the abovesaid reasons, learned counsel for the appellant/defendant submitted that the plaintiff has failed to establish a case for maintenance and charge over the properties, prayed to set aside the judgments and decrees. 13. Per contra, Mr. For the abovesaid reasons, learned counsel for the appellant/defendant submitted that the plaintiff has failed to establish a case for maintenance and charge over the properties, prayed to set aside the judgments and decrees. 13. Per contra, Mr. N. Manoharan, learned counsel for the respondent-wife, submitted that the aspect of cruelty in forcing the respondent-wife to abort the foetus, on account of compulsion by the appellant-husband, had already been decided by this Court, in an earlier proceedings between the same parties, in C.M.S.A.No.28 of 2001, dated 27.11.2003, while confirming the judgment and decree made in C.M.A.No.26 of 2000, dated 22.12.2000 passed by the Second Additional District Court, Erode, reversing the decree for divorce granted by the lower Court, in favour of the husband and that therefore, it is not open to the appellant-husband to contend that there was no cruelty, warranting, separate living in the parental house of the respondent-wife. 14. Refuting to the contention that there were no specific averments in the plaint, alleging that there was cruelty, which caused a reasonable apprehension in the mind of the wife and that it would be harmful or injurious to live with her husband and explaining the circumstances, which forced the respondent-wife to live separately and the finding of this Court, in favour of the respondent, in an earlier litigation, between the parties, relating to divorce, in C.M.S.A.No.28 of 2001, dated 27.11.2003, wherein, the appellant-husband had alleged desertion and willful refusal on the part of the wife to live with him, learned counsel for the respondent submitted that the decision made in the above proceeding itself is a conclusive proof of cruelty. He further submitted that there are sufficient pleadings in the plaint, regarding cruelty. He also submitted that only in the case, where the wife is unchaste or ceases to be Hindu, by conversion to another religion, she is disentitled to claim maintenance and in this context, placed reliance on a decision of this Court in Manivannan v. Thenmozhi reported in 2011 (5) CTC 109 . He also submitted that the right of wife for maintenance is an incident of status and that a Hindu husband is under a moral and legal obligation to maintain his wife, during her lifetime and in this context, referred to sub-Section (3) of Section 18 of the Hindu Marriage Act. 15. He also submitted that the right of wife for maintenance is an incident of status and that a Hindu husband is under a moral and legal obligation to maintain his wife, during her lifetime and in this context, referred to sub-Section (3) of Section 18 of the Hindu Marriage Act. 15. Placing reliance on a decision in Sadhu Singh v. Gurdwara Sahib Narike reported in 2006 (8) SCC 75 =2007-2-L.W.541, learned counsel for the respondent-wife submitted that under Section 18 of the Hindu Adoption and Maintenance Act, a Hindu wife is entitled to be maintained by her husband, during her lifetime, subject to the only ground of not incurring any disqualification, provided for in sub-Section (3) of that Section and in all other respects, she is entitled to claim maintenance. Decision of this Court in A. Bhagavathi Ammal v. Sethu reported in AIR 1987 Mad. 224 =(1987) 100 L.W.419, was also pressed into service on this point. 16. He also placed reliance on a decision of Punjab and Haryana High Court in Smt. Satya v. Sri Ram reported in AIR 1983 P & H 252, and submitted that termination of pregnancy, at the instance of the husband itself amounts to cruelty. On the aspect as to what constitutes “cruelty” and the proof required, he submitted that cruelty has to be adjudged, taking into consideration the entire facts and circumstances of the case and not by any pre-determined rigid formula. He also submitted that the attitude and approach of the parties in the matrimonial relationship is relevant and if the conduct of one of the parties is so abnormal and below accepted norm, that the other spouse could not reasonably be expected to put up with it, are factors to be considered, while adjudging cruelty and that, it is not necessary to establish physical violence alone to prove a reasonable apprehension in the mind of the wife, that it would be harmful and injurious to live with her husband. 17. In this context, learned counsel for the respondent-wife drew the attention of this Court, as to how the Supreme Court has explained the meaning of the words “mental cruelty”, by referring to the relevant passages in A. Jayachandra v. Aneel Kaur reported in 2005 (2) SCC 22 , Manisha Tyagi v. Deepak Kumar reported in 2010 (4) SCC 339 -2010-2-L.W.223 and Ravi Kumar v. Julmidevi reported in 2010 (4) SCC 476=2010-3-L.W.10. 18. Learned counsel for the respondent-wife further submitted that Section 18 of the Hindu Adoptions and Maintenance Act, is a special provision, which gives a right to the wife to live separately from her husband, without forfeiting her right to claim maintenance, if she is otherwise eligible and not disqualified under sub-Section (3) of Section 18 and in this regard, also referred to the views expressed by a renowned author, Mulla. He submitted that the respondent-wife has established her case for maintenance and that both the Courts below, on appreciation of evidence, has rightly awarded, only a meager amount of Rs.1,200/- per month, as maintenance, which does not require any interference. 19. He also submitted that though the lower appellate Court has recorded the fact that the respondent-wife had conceived twice and that she had undergone abortion, it has misconstrued that only because of a misunderstanding between the spouses and on account of abortion, the wife was forced to live separately in her parental house and that should not taken to mean that there was no cruelty. Pointing out that the lower appellate Court’s finding that filing of the divorce petition by the husband would also amount to mental cruelty, he submitted that the finding recorded by the lower appellate Court, with reference to both, abortion and filing of the divorce petition by the husband, would categorically establish that there was a justifiable cause for the apprehension of the wife to live separately. 20. Refuting the contention of the learned counsel for the appellant that the plaintiff-wife had not established that the suit properties in Survey Nos.14 and 16/2 belong to the defendant-husband, he drew the attention of this Court to the cross-examination of the plaintiff that, when a specific suggestion was posed to her, as to whether the properties in Survey Nos.14 and 16/2, corresponding to Old Survey nos.1549 and 1550, in Ponnivadi Village, alone were joint family properties, the plaintiff-wife has specifically denied the same and that therefore, the decree creating a charge over the said properties cannot be said to be erroneous. 21. 21. Learned counsel for the respondent-wife further submitted that though the defendant has attempted to dislodge thee claim for the charge over the suit schedule properties, by producing Exs.B1 to B5, the Survey Numbers contained in the abovesaid documents do not co-relate with the plaint schedule properties owned by the defendant and therefore, it cannot be said that the charge created over the properties is erroneous. According to him, the respondent-wife, has proved that the properties belong to the husband. 22. Denying the contention of the appellant-husband that the respondent had sufficient means to maintain herself and that her parents possessed properties, learned counsel for the respondent-wife submitted that the maintenance awarded at the rate of Rs.40/-per day, is wholly insufficient for food, shelter and clothing. Though it is true that the female child is living with the husband, according to the learned counsel for the wife, the Courts below having taken into consideration the financial position of both the parties, the requirement for sustenance and awarded only a meager maintenance, which does not require reduction or interference. 23. Inviting the attention of this Court to the admission of the defendant in his cross-examination that as husband that he is bound to provide food, shelter, clothing and maintenance, learned counsel for the respondent-wife submitted that considering the beneficial legislation enabling the wife to exercise her right of separate living, without forfeiting her claim for maintenance and having regard to the concurrent finding of fact of the husband’s liability to maintain his wife, under the statute, he prayed to sustain the judgments and decrees of the Courts below and dismiss the second appeal. 24. By way of reply, Mr. M.V. Krishnan, learned counsel for the appellant-husband, submitted that the judgment in C.M.S.A.No.28 of 2001, dated 27.11.2003, has not been marked as a document in the proceedings for maintenance and therefore, no relevance need be placed on it. 24. By way of reply, Mr. M.V. Krishnan, learned counsel for the appellant-husband, submitted that the judgment in C.M.S.A.No.28 of 2001, dated 27.11.2003, has not been marked as a document in the proceedings for maintenance and therefore, no relevance need be placed on it. On the contra, it is submitted on behalf of the respondent-wife, that even if the said judgment has not been marked as evidence, in the maintenance proceedings, it is always open to this Court to call for the entire records in the above C.M.S.A., and consider the findings of the fact arrived at between the same parties, in the earlier proceedings relating to divorce for the purpose of adjudicating, as to whether there was any cruelty on the part of the appellant-husband, which caused a reasonable appreciation in the mind of the respondent-wife not to live with him. Heard the learned counsel for the parties and perused the materials available on record. 25. What constitutes cruelty and the standard of proof required to establish the charge of cruelty, nature of evidence to be let in, have been explained in Dr. N.G. Dastane v. Mrs. Dastane reported in AIR 1975 SC 1534 =(1976) 89 L.W.110. It was a case, arising out of a matrimonial dispute, by which, a petition was filed by the husband for annulment of his marriage with the wife or alternatively for divorce or judicial separation. Annulment was sought for on the ground of fraud, divorce on the ground of unsoundness of mind and judicial separation on the ground of cruelty. The ground on which, judicial separation was sought for is under Section 10(1)(b) of the Hindu Marriage Act, 1955, which states that, “10(1). Either party to a marriage, whether solemnized before or after the commencement of this Act, may present a petition to the district Court praying for a decree for judicial separation on the ground that the other party- (b) has treated the petitioner with such cruelty as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other party.” 26. On the aspect of nature of burden to establish the case or cruelty, the Supreme Court, at Paragraph 23 of the judgment, held that “First, as to the nature of burden of Proof which rests on a petitioner in a matrimonial petition under the Act. On the aspect of nature of burden to establish the case or cruelty, the Supreme Court, at Paragraph 23 of the judgment, held that “First, as to the nature of burden of Proof which rests on a petitioner in a matrimonial petition under the Act. Doubtless, the burden must lie on the petitioner to establish his or her case for, ordinarily, the burden lies on the party which affirms a fact, not on the party which denies it. This principle accords with commonsense as it is so much earlier to prove a positive than a negative. The petitioner must therefore prove that the respondent has treated him with cruelty within the meaning of section 10 (1) (b) of the Act. But does the law require, as the High court has held, that the petitioner must prove his case beyond a reasonable doubt? In other words, through the burden lies on the petitioner to establish the charge of cruelty, what is the standard of proof to be applied in order Lo judge whether the burden has been discharged?” 27. On the aspect as to how the Courts have to consider as to whether the facts pleased have been establish, the Supreme Court, at Paragraph 24, held as follows: “The normal rule which governs civil proceedings is that a fact can be said to be established if it is proved by a preponderance of probabilities. This is for the reason that under the Evidence Act, section 3, a fact is said to be proved when the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. The belief regarding the existence of a fact may thus be founded on a balance of probabilities. A prudent man faced with conflicting probabilities concerning a fact-situation will act on the supposition that the fact exists, if on weighing the various probabilities he finds that the preponderance is in favour of the existence of the particular fact. As a prudent man, so the court applies this test for finding whether a fact in issue can be said to be proved. The first step in this process is to fix the probabilities, the second to weigh them, through the two may often intermingle. As a prudent man, so the court applies this test for finding whether a fact in issue can be said to be proved. The first step in this process is to fix the probabilities, the second to weigh them, through the two may often intermingle. The impossible is weeded out at the first stage, the improbable at the second, within the wide range of probabilities the court has often a difficult choice to make but it is this choice which ultimately determines where, the preponderance of probabilities lies. Important issues like those which affect the status of parties demand a close scrutiny than those like the load on a promissory note ”the nature and gravity of an issue necessarily determines the manner of attaining reasonable satisfaction of the truth of the issue” (1); or as said by Lord Denning, “the degree of probability, depends on the subject-matter. In proportion as the offence, is grave, so ought the proof to be clear”(2). But whether the issue is one of cruelty or of a loan on a promote, the test to apply is whether on a preponderance of probabilities the relevant fact is proved. In civil cases this, normally, is the standard of proof to apply for finding whether the burden of proof is discharged.” 28. The principles of law laid down by the Supreme Court, on the standard of proof required in Matrimonial proceedings, particularly, with reference to the specific ground that one of the parties to the marriage has treated the other with cruelty, so as to cause a reasonable apprehension in the mind of the petitioner, that it would be harmful or injurious for the petitioner to live with the other is dealt with in Paragraphs 25 to 28 in the above reported case and they are extracted hereunder: “25. Proof beyond reasonable doubt is proof by a higher standard which generally governs criminal trials or trials involving inquiry into issues of a quasi-criminal nature. A criminal trial involves the liberty of the subject which may not be taken away on a mere preponderance of probabilities. If the probabilities are so’ nicely balanced that a reasonable, not a vascillating, mind cannot find where the preponderance lies, a doubt arises regarding the existence of the fact to be proved and the benefit of such reasonable doubt goes to the accused. If the probabilities are so’ nicely balanced that a reasonable, not a vascillating, mind cannot find where the preponderance lies, a doubt arises regarding the existence of the fact to be proved and the benefit of such reasonable doubt goes to the accused. It is wrong to import such considerations in trials of a purely civil nature. 26. Neither section 10 of the Act which enumerates the grounds on which a petition for judicial separation maybe presented nor section 23 which governs the jurisdiction of the court to pass a decree in any proceeding under the Act requires that the petitioner must prove his case beyond a reasonable doubt. Section 23 confers on the court the power to pass a decree if it is “satisfied” on matters mentioned in clauses (a) to (c) of the section. Considering that proceedings under the Act are essentially of a civil nature, the word “satisfied” must mean “satisfied on a preponderance of probabilities” and not “satisfied beyond a reasonable doubt”. Section 23 does not alter the standard of proof in civil cases. 27. The misconception regarding the standard of proof in matrimonial cases arises perhaps from a loose description of the respondent’s conduct in such cases as constituting a “matrimonial offence”. Acts of a spouse which are calculated to impair the integrity of a marital union have a social significance. To marry or not to marry and if so whom, may well be a private affair but the freedom to break a matrimonial tie is not. The society has a stake in the institution of marriage and therefore the erring spouse is treated not as a mere defaulter but as an offender. But this social philosophy, though it may have a bearing on the need to have the clearest proof of an allegation before it is accepted as a ground for the dissolution of a marriage, has no bearing on the standard of proof in matrimonial cases. 28. In England, a view was at one time taken that the petitioner in a matrimonial petition must establish his case beyond a reasonable doubt but in Blyth v. Blyth (P) [(1966) 1 All. 28. In England, a view was at one time taken that the petitioner in a matrimonial petition must establish his case beyond a reasonable doubt but in Blyth v. Blyth (P) [(1966) 1 All. ER 524 at P.536], the House of lords held by a majority that so far as the grounds of divorce or the bars to divorce like connivance or condonation are concerned, “the case; like any civil case, may be proved by a preponderance of probability”. The High Court of Australia in Wright v. Wright [(1948) 77 CLR 191 at p.210], has also taken the view that “the civil and not the criminal standard of persuasion applies to matrimonial causes, including issues of adultery”. The high Court was therefore in error in holding that the petitioner must establish the charge of cruelty “beyond reasonable doubt”. The high Court adds that “This must be in accordance with the law of evidence”, but we are not clear as to the implications of this observation. 29. As regards inquiry to be made by the Courts, in adjudging as to whether the petitioner, alleging cruelty, has established the fact, the Supreme Court, at paragraphs 30 to 32, held as follows: “30. The inquiry therefore has to be whether the conduct charged a,.-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. It is not necessary, as under the English law, that the cruelty must be of such a character as to cause “danger” to life, limb or health or as to give rise to a reasonable apprehension of such a danger. Clearly, danger to life, limb or health or a reasonable apprehension of it is a higher requirement than a reasonable apprehension that it is harmful or injurious for one spouse to live with the other. 31. If the danger to health arises merely from the fact that the spouses find it impossible to live together as where one of the parties shows an attitude of indifference to the other, the charge of cruelty may perhaps fail. But under section 10(1)(b), harm or injury to health, reputation, the working career or the like, would be an important consideration in determining whether the conduct of the respondent amounts to cruelty. But under section 10(1)(b), harm or injury to health, reputation, the working career or the like, would be an important consideration in determining whether the conduct of the respondent amounts to cruelty. Plainly, what we must determine is not whether the petitioner has proved the charge of cruelty having regard to the principles of English law, but whether the petitioner proves that the respondent has treated him with such cruelty as to cause a reasonable apprehension in his mind that it will be harmful or injurious for him to live with the respondent. 32. One other matter which needs to be clarified is that though under section 10(1)(b), the apprehension of the petitioner that it will be harmful or injurious to live with the other party has to be reasonable, it is wrong, except in the context of such apprehension, to import the concept of a reasonable man as known to the law of negligence for judging of matrimonial relations. Spouses are undoubtedly supposed and expected to conduct their joint venture as best as they might but it is no function of a court inquiring into a charge of cruelty to philosophise on the modalities of married life. Some one may want to keep late hours to finish the day’s work and some one may want to get up early for a morning round of golf. The court cannot apply to the habits or hobbies of these the test whether a reasonable man situated similarly will behave in a similar fashion. “The question whether the misconduct complained of constitutes cruelty and the like for divorce purposes is determined primarily by its effect upon the particular person complaining of the acts. The question is not whether the conduct would be cruel to a reasonable person or a person of average or normal sensibilities, but whether it would have that effect upon the aggrieved spouse. That which may be cruel to one person may be laughed off by another, and what may not be cruel to an individual under one set of circumstances may be extreme cruelty under another set of circumstances.” American Jurisprudence, 2nd Edn. Vol.24 p.206. the court has to deal, not with an ideal husband and ideal wife (assuming any such exist) but with the particular man and woman before it. Vol.24 p.206. the court has to deal, not with an ideal husband and ideal wife (assuming any such exist) but with the particular man and woman before it. The ideal couple or a near-ideal one will probably have no occasion to go to a matrimonial court for, even if they may not be able to drown their differences, their ideal attitudes may help them over-look or gloss over mutual faults and failures. As said by Lord Reid in his speech in Gollins v. Gollins (1936) 2 All. ER 966. “In matrimonial cases we are not concerned with the reasonable man, as we are in cases of negligence. We are dealing with this man and this woman and the fewer a priori assumptions we make bout them the better. In cruelty cases one can hardly ever even start with a presumption that the parties are reasonable people, because it is hard to imagine any cruelty case ever arising if both the spouses think and behave as reasonable people.” 30. What amounts cruelty has been dealt with by various High Courts and Apex Court. Let me consider some judgments, 31. In Naveen Kohli v. Neelu Kohli reported in AIR 2006 SC 1675 , the Apex Court, held that, “To constitute cruelty, the conduct complained of should be “grave and weighty” so as to come to the conclusion that the petitioner spouse cannot be reasonably expected to live with the other spouse. It must be something more serious than “ordinary wear and tear of married life”. The conduct taking into consideration the circumstances and background has to be examined to reach the conclusion whether the conduct complained of amounts to cruelty in the matrimonial law. Conduct has to be considered, as noted above, in the background of several factors such as social status of parties, their education, physical and mental conditions, customs and traditions. It is difficult to lay down a precise definition or to give exhaustive description of the circumstances, which would constitute cruelty. It must be of the type as to satisfy the conscience of the Court that the relationship between the parties had deteriorated to such extent due to the conduct of the other spouse that it would be impossible for them to live together without mental agony, torture or distress, to entitle the complaining spouse to secure divorce. It must be of the type as to satisfy the conscience of the Court that the relationship between the parties had deteriorated to such extent due to the conduct of the other spouse that it would be impossible for them to live together without mental agony, torture or distress, to entitle the complaining spouse to secure divorce. Physical violence is not absolutely essential to constitute cruelty and a consistent course of conduct inflicting immeasurable mental agony and torture may well constitute cruelty within the meaning of Section 10 of the Act. Mental cruelty may consist of verbal abuses and insults by using filthy and abusive language leading to constant disturbance of mental peace of the other party. 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. 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 hyper-sensitive 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 particular man and woman before it.” 32. A too technical and hyper-sensitive 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 particular man and woman before it.” 32. In the above reported case, the Supreme Court, while considering the definition of the word, “cruelty” has extracted some of the earlier judgments, which are reproduced hereunder. “In the case of Shoba Rani v. Madhukar Reddi reported in (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 behaviour 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 par se unlawful or illegal. Then the impact or the injurious effect on the other spouse need not be enquired into or considered. In such case, 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 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. 47. The cruelty alleged may largely depend upon the type of life the parties are accustomed to or their economic and social conditions and their culture and human values to which they attach importance. Each case has to be decided on its own merits. 48. 47. The cruelty alleged may largely depend upon the type of life the parties are accustomed to or their economic and social conditions and their culture and human values to which they attach importance. Each case has to be decided on its own merits. 48. The Court went on to observe as under: “It will be necessary to bear in mind that there has been marked changed in the life around on. In matrimonial duties and responsibilities in particular, we find a sea change. They are of varying degrees from house to house or person to person. Therefore, when a spouse makes complaint about the treatment of cruelty by the partner in life or relations, the court should not search for standard in life. A set of facts stigmatized as cruelty in one case may not be so in another case. The cruelty alleged may largely depend upon the type of life the parties are accustomed to or their economic and social conditions. It may also depend upon their culture and human values to which they attach importance. We, the judges and lawyers, therefore, should not import our own notions of life. We may not go in parallel with them. There may be a generation gap between us and the parties. It would be better if we keep aside our customs and manners. It would be also better if we less depend upon precedents. Lord Denning said in Sheldon v. Sheldon, [1966] 2 All E.R. 257 (CA) ‘the categories of cruelty are not closed’. Each case may be different. We deal with the conduct of human beings who are no generally similar. Among the human beings there is no limit to the kind of conduct which may constitute cruelty. New type of cruelty may crop up in any case depending upon the human behaviour, capacity or incapability to tolerate the conduct complained of. Such is the wonderful (sic) realm of cruelty.” In the case of V. Bhagat v. D. Bhagat reported in (1994) 1 SCC 337 =1994-1.L.W.27, 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. 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 decided 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.” 50. The word ‘cruelty’ has to be understood in the ordinary sense of the term in matrimonial affairs. If the intention to harm, harass or hurt could be inferred by the nature of the conduct or brutal act complained of, cruelty could be easily established. But the absence of intention should not make any difference in the case. There may be instances of cruelty by unintentional but inexcusable conduct of any party. The cruel treatment may also result from the cultural conflict between the parties. Mental cruelty can be caused by a party when the other spouse levels an allegation that the petitioner is a mental patient, or that he requires expert psychological treatment to restore his mental health, that he is suffering from paranoid disorder and mental hallucinations, and to crown it all, to allege that he and all the members of his family are a bunch of lunatics. The allegation that members of the petitioner’s family are lunatics and that a streak of insanity runs though his entire family is also an act of mental cruelty. 51. This Court in the case of Savitri Pandey v. Prem Chandra Pandey reported in (2002) 2 SCC 73 , stated that mental cruelty is the conduct of other spouse which causes mental suffering or feat to the matrimonial life of the other. “Cruelty”, therefore, postulates a treatment of the petitioner with such cruelty as to cause a reasonable apprehension in his or her mind that it would be harmful or injurious for the petitioner to live with the other party. Cruelty, however, has to be distinguished from the ordinary wear and tear of family life. It cannot be decided on the basis of the sensitivity of the petitioner and has to be adjudged on the basis of the course of conduct which would, in general, be dangerous for a spouse to live with the other. 32. In this case, this Court further stated as under: “9. Following the decision in Bipinchandra case [ AIR 1957 SC 176 ] this Court again reiterated the legal position in Lachman Utamchand Kirpalani v. Meena [ AIR 1964 SC 40 ] by holding that in its essence desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that other’s consent, and without reasonable cause. For the offence o desertion so far as the deserting spouse is concerned, two essential condition must be there (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly two elements are essential so far as the deserted spouse is concerned: (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. For holding desertion as proved the inference may be drawn from certain facts which may not in another case be capable of leading to the same inference; that is to say the facts have to be viewed as to the purpose which is revealed by those acts or by conduct and expression of intention, both anterior and subsequent to the actual acts of separation.” 53. In this case, this Court further stated that cruelty can be said to be an act committed with the intention to cause suffering to the opposite party. 54. This Court in the case of Ganath Pattnaik v. State of Orissa reported in (2002) 2 SCC 619 , observed as under: “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 be physical. Even mental torture or abnormal behaviour may amount to cruelty and harassment in a given case.” 55. This Court, in the case of Parveen Mehta v. Inderjit Mehta reported in (2002) 5 SCC 706 , defined cruelty as under: “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 subject to mental cruelty due to conduct of the other.” 56. In this case the Court also stated that so many years have elapsed since the spouses parted company. In this case the Court also stated that so many years have elapsed since the spouses parted company. In these circumstances it can be reasonably inferred that the marriage between the parties has broken down irretrievably. 57. In Chetan Dass v. Kamla Devi reported in (2001) 4 SCC 250 =2001-3-L.W.210, this Court observed that the matrimonial matters have to be basically decided on its facts. In the words of the Court: “Matrimonial 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 conform 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. 58. In Sandhya Rani v. Kalyanram Narayanan reported in (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 mind 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. 59. In the case of Chandrakala Menon v. Vipin Menon reported in (1993) 2 SCC 6 , the parties has 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 decree of divorce. 60. 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 decree of divorce. 60. In the case of Kanchan Devi v. Promod Kumar Mittal reported in (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. 61. In Swati Verma v. Ranjan Verma reported in (2004) 1 SCC 123 , a large number of criminal cases had been filed by the petitioner against the respondent. This Court observed that the marriage between the parties had broken down irretrievably with a view to restore good relationship and to put a quietus to all litigations between the parties and not to leave any room for future litigation, so that they may live peacefully hereafter, and on the request of the parties, in exercise of the power vested in this Court under Article 142 of the Constitution of India, the Court allowed the application for divorce by mutual consent filed before it under Section 13-B of the Hindu Marriage Act and declared the marriage dissolved and granted decree of divorce by mutual consent. 62. In Prakash Chand Sharma v. Vimlesh [1995 Supp (4) SCC 642], the wife expressed her will to go and live with the husband notwithstanding the presence of the other woman but the husband was not in a position to agree presumably because he has changed his position by remarriage. Be that as it may, a reconciliation was not possible. 63. In V. Bhagat v. D. Bhagat (supra), this Court while allowing the marriage to dissolve on ground of mental cruelty and in view of the irretrievable breakdown of marriage and the peculiar circumstances of the case, held that the allegations of adultery against the wife were not proved thereby vindicating her honour and character. 63. In V. Bhagat v. D. Bhagat (supra), this Court while allowing the marriage to dissolve on ground of mental cruelty and in view of the irretrievable breakdown of marriage and the peculiar circumstances of the case, held that the allegations of adultery against the wife were not proved thereby vindicating her honour and character. This Court while exploring the other alternative observed that the divorce petition has been pending for more than 8 years and a good part of the lives of both the parties has been consumed in this litigation and yet, the end is not in sight and that the allegations made against each other in the petition and the counter by the parties will go to show that living together is out of question and rapprochement is not in the realm of possibility. This Court also observed in the concluding part of the judgment that: “Before parting with this case, we think it necessary to append a clarification. Merely because there are allegations and counter allegations, a decree of divorce cannot follow. Nor is mere delay in disposal of the divorce proceedings by itself a ground. There must be really some extra-ordinary features to warrant grant of divorce on the basis of pleading (and other admitted material) without a full trial. Irretrievable breakdown of the marriage is not a ground by itself. But while scrutinishing the evidence on record to determine whether the ground(s) alleged is/are made out and in determining the relief to be granted, the said circumstance can certainly be borne in mind. The unusual step as the one taken by us herein can be resorted to only to clear up an insoluable mess, when the Court finds it in the interest of both parties.” 33. In A. Bhagavathi Ammal v. Sethu reported in AIR 1987 Mad. 224 = (1987) 100 L.W.419, a suit filed by the wife for maintenance, was opposed by the husband. The lower Court ordered maintenance. In the appeal before this Court, while considering the right of maintenance under Section 18 of the Hindu Adoptions and Maintenance Act, a learned Single Judge, at Paragraph 17, held as follows: “Ordinarily, when a wife lives away from her husband for no justifiable reason and without his consent and against his wish, the wife will not be entitled to claim maintenance. This clause merely lays down that the wife does not forfeit her claim to be separately maintained if she has any of the grounds for separate living mentioned in this clause. This clause does not say that if the wife lives separately from her husband and cannot urge any of the grounds mentioned in this clause she does nor does not forfeit her claim to separate maintenance. Cl.(3) of the section which provides for her not being entitled to maintenance mentions only two grounds, namely, unchastity and her conversion to another religion. For a case which does not fall under any of the specific grounds in Cl.(2) or Cl.(3), the answer is to be found in the discretion of the Court to award suitable maintenance dependent upon the circumstances of the particular case.” 34. In Manivannan v. Thenmozhi reported in 2011 (5) CTC 109 , the husband questioned the concurrent decisions of the Court below, whereby, maintenance was ordered. At Paragraphs 11, 12, 14 and 17, this Court held as follows: “11. A cumulative reading of Sub-Sections (2) and (3) of Section 18 of the Act would exemplify and demonstrate, express and expatiate, convey and portray that a wife, who is not guilty of adultery or conversion, cannot be deprived of her right to maintenance. Even though the lower matrimonial Courts rendered findings against her that she was cruel towards her husband and that it was she who deserted her husband, yet finality has not been achieved in the matrimonial proceedings. 12. The object of Sub-Section (3) of Section 18 of the Act is to the effect that a wife who is guilty of desertion or cruelty should not be made to suffer for want of maintenance, if she is not having enough wherewithal to meet her creature comforts. If a lady is not having income of her own and could not keep the wolf from the door; or keep the pot boiling, certainly she should be helped by the husband concerned. Here in fact, the matrimonial proceedings have not been attained finality, as admittedly and indubitably, the C.M.S.A. is pending before this Court. Here it is not the case of the husband that the wife is guilty of adultery or conversion to some other religion from Hindu religion. Here admittedly both are Hindus. 14. Here in fact, the matrimonial proceedings have not been attained finality, as admittedly and indubitably, the C.M.S.A. is pending before this Court. Here it is not the case of the husband that the wife is guilty of adultery or conversion to some other religion from Hindu religion. Here admittedly both are Hindus. 14. It is quite obvious and axiomatic from the admitted circumstances as set out supra that still finality has not been achieved in the divorce proceeding, as the matter is pending before this Court in CMSA; however, that in no way precludes the respondent/plaintiff in claiming maintenance from the appellant herein. Incidentally, I would like to point out that even under Section 25 of the Hindu Marriage Act, the legal position is well settled that simply because a decree of divorce might be granted as against the wife by finding fault with her conduct, she cannot be deprived of her right to maintenance unless there are sound reasons to reject her claim for it. Granting of subsistence allowance even to a divorcee in the form of maintenance is the rule. 16. It is trite proposition of law that a wife is entitled to live incommensurate with the status of her husband. In fact, the Courts below also gave finding of fact that the husband was having sufficient salary income as well as income from his said landed properties and in such a case, the awarding of the sum of Rs.2,500/- per month in favour of the respondent is nothing but a pittance, which could only be termed as subsistence allowance. 17. My discussion supra is mainly focused on the point that even for argument sake if it is taken that the wife had committed mistake in not living with her husband, such awarding of meagre maintenance as subsistence cannot be found fault with. However, in this case, both the Courts below gave a finding on facts that the wife was not at fault in living away from the husband, as the evidence placed before the trial Court was relied on by them to give the finding that because of some dispute between the husband and wife in connection with the giving of their daughter in marriage, there erupted a rift in their matrimonial relationship. It is a trite proposition of law that this Court while exercising powers under Section 100 of C.P.C. need not interfere with such finding of facts. 35. While arriving at the abovesaid conclusion, this Court has also considered a decision of the Supreme in Chand Dhawan (Smt.) v. Jawaharlal Dhawan reported in 1993 (3) SCC 406 , wherein, the Apex Court, at paragraphs 25, 27, 28 and 29, held as follows: “25. We have thus, in this light, no hesitation in coming to the view that when by court intervention under the Hindu Marriage Act, affectation or disruption to the martial status has come by, at that juncture, while passing the decree, it undoubtedly has the power to grant permanent alimony or maintenance, if that power is invoked at that time. It also retains the power subsequently to be invoked on application by a party entitled to relief. And such order, in all events, remains within the jurisdiction of that court, to be altered or modified as future situations may warrant. In contrast, without affectation or disruption of the marital status, a Hindu wife sustaining that status can live in separation from her husband, and whether she is living in that state or not, her claim to maintenance stands preserved in codification under Section 18(1) of the Hindu Adoptions and Maintenance Act. The court is not at liberty to grant relief of maintenance simpliciter obtainable under one Act in proceedings under the other. As is evident, both the statutes are codified as such and are clear on their subjects and by liberality of interpretation inter-changeability cannot be permitted so as to destroy the distinction on the subject of maintenance. 27. This Court has ruled that if the language used in a statute can be construed widely so as to salvage the remedial intendment, the court must adopt it. Of course, if the language of a statue does not admit of the construction sought, wishful thinking is no substitute, and then, not the court but the legislature is to blame for enacting a damp squib statute. These are the observations of V.R. Krishna Iyer, J. in Carew and Co. Ltd., v. Union of India. Towards interpreting statutes, the court must endeavour to see its legislative intendment. These are the observations of V.R. Krishna Iyer, J. in Carew and Co. Ltd., v. Union of India. Towards interpreting statutes, the court must endeavour to see its legislative intendment. Where the language is ambiguous or capable of more than one meaning, the court must sympathetically and imaginatively discover the true purpose and object of the provision by filling gaps, clearing doubts, and mitigating hardships, harshness or unfair consequences, See Motor Owners Insurance Co. Ltd., v. Jadavji Keshavji Modi. These principles were pressed into service by learned counsel for the appellant contending that if the claim of the wife for maintenance was otherwise justified on fact and law, the procedures and the fora should not stand in her way and let her cash on her claim overruling all objections. It was asserted that the Amritsar court had jurisdiction to grant relief, as asked for, because once upon a time it was seisin of the petition for dissolution of marriage by mutual consent, though such petition was withdrawn. 28. On the afore-analysis and distinction drawn between the for a and perceptives, it is difficult to come to the view that a claim which is ancillary or incidental in a matrimonial court under the Hindu Marriage Act cold be tried as an original claim in that court; a claim which may for the moment be assumed as valid, otherwise agitable in the civil court under the Hindu Adoption and Maintenance Act, 1956. As said before, these two enactments keeping apart, the remaining two, i.e., Hindu Succession Act, 1956 and Hindu Minority and Guardianship Act, 1956 are a package of enactments, being part of one socio-legal scheme applicable to Hindus. When distinctive claims are covered distinctly under two different statutes and agitable in the courts conceived of thereunder, it is difficult to sustain the plea that when a claim is otherwise valid, choosing of one forum or the other should be of no consequence. These are not mere procedural technicalities or irregularities, as termed by one line of reasoning by some of the High Courts. These are matters which go to the root of the jurisdiction. These are not mere procedural technicalities or irregularities, as termed by one line of reasoning by some of the High Courts. These are matters which go to the root of the jurisdiction. The matrimonial court, a court of special jurisdiction, is not meant to pronounce upon a claim of maintenance without having to go into the exercise of passing a decree, which implies that unless it goes onwards, moves or leads through, to affect or disrupt the marital status between the parties. By rejecting a claim, the matrimonial court does make an appealable decree in terms of Section 28, but that neither affects nor disrupts the marriage. It certainly does not pass a decree in terms of Section 25 for its decision has not moved or done anything towards, or led through, to disturb the marriage, or to confer or take away any legal character or status. Like a surgeon, the matrimonial court, if operating, assumes the obligation of the post operatives, and when not, leaves the patient to they physician. 29. On the afore-analysis we have been led to the conclusion that the step of the wife to move the court of Additional District Judge, Amritsar for grant of maintenance under Section 25 of the Hindu Marriage Act was ill-advised. The judgment of the High Court under appeal could be no other than the one that it was in the present state of law and the facts and circumstances. It is still open to the wife to stake her claim to maintenance in other fora. The judgments of the High Courts earlier quoted, and others which have been left out, which are not in line with our view are overruled. The earlier and predominant view was the correct one and the later an aberration; something unfortunate from the precedential point of view. The appeals thus inevitably have to and are hereby dismissed, but without any order as to costs.” (emphasis supplied) 36. Sadhu Singh v. Gurdwara Sahib Narike reported in 2006 (8) SCC 75 =2007-2-L.W.541, was not a case on maintenance, but however, the Supreme Court at Paragraph 4, has observed that under Section 18 of the Hindu Adoptions and Maintenance Act, a Hindu wife is entitled to be maintained by her husband, during her lifetime, subject to her not incurring with the disqualification, as provided under sub-Section (3) of that Section. 37. 37. In A. Jayachandra v. Aneel Kaur reported in 2005 (2) SCC 22 , the Supreme Court, while explaining the factors to be taken into consideration for determination of mental cruelty, at paragraphs 10 to 14, held as follows: “10.The expression “cruelty” has not been defined in the Act. Cruelty can be physical or mental. Cruelty which is a ground for dissolution of marriage may be defined as willful 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 his 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 delicate human relationship like matrimony, one has to see the probabilities of the case. The concept, a 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, 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. In cases where there is no direct evidence, 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. 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 maybe 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 Sobh Rani v. Madhukar Reddi, AIR 1988 SC 121 ). 12. To constitute cruelty, the conduct complained of should be “grave and weighty” so as to come to the conclusion that the petitioner spouse cannot be reasonably expected to live with the other spouse. It must be something more serious than “ordinary wear and tear of married life”. The conduct, taking into consideration the circumstances and background has to be examined to reach the conclusion whether the conduct complained of amounts to cruelty in the matrimonial law. Conduct has to be considered, as noted above, in the background of several factors such as social status of parties, their education, physical and mental conditions, customs and traditions. It is difficult to lay down a precise definition or to give exhaustive description of he circumstances, which would constitute cruelty. Conduct has to be considered, as noted above, in the background of several factors such as social status of parties, their education, physical and mental conditions, customs and traditions. It is difficult to lay down a precise definition or to give exhaustive description of he circumstances, which would constitute cruelty. It must be of the type as to satisfy the conscience of the Court that the relationship between the parties had deteriorated to such an extent due to the conduct of the other spouse that it would be impossible for them to live together without mental agony, torture or distress, to entitle the complaining spouse to secure divorce. Physical violence is not absolutely essential to constitute cruelty and a consistent course of conduct inflicting immeasurable mental agony and torture may well constitute cruelty within the meaning of Section 10 of the Act. Mental cruelty may consist of verbal abuses and insults by using filthy and abusive language leading to constant disturbance of mental peace of the other party. 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 of 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. Cruelty in matrimonial life may be of 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 hyper-sensitive 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 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 Dastene v. Dastane, AIR 1975 SC 1534 =(1976) 89 L.W. 110).” 38. In Manisha Tyagi v. Deepak Kumar reported in 2010 (4) SCC 339 =2010-2-L.W.223, the Supreme Court held that to constitute cruelty, it is enough that conduct of one of parties is so abnormal and below accepted norm that other spouse could not reasonably be expected to put up with it. Conduct is no longer required to be so atrociously abominable which would cause reasonable apprehension that it would be harmful or injurious to continue cohabitation with other spouse. Therefore, the Supreme Court held that it is not necessary to establish physical violence. It is sufficient that continued ill-treatment, cessation of marital intercourse, studied neglect, indifference may lead to inference of cruelty. 39. In Ravi Kumar v. Julmidevi reported in 2010 (4) SCC 476=2010-3-L.W.10, the Supreme Court, once again, had an occasion to consider the word “cruelty” in Matrimonial behaviour and at Paragraphs 19 to 22, held as follows: “19. It may be true that there is no definition of cruelty under the said Act. Actually such a definition is not possible. In matrimonial relationship, cruelty would obviously mean absence of mutual respect and understanding between the spouses which embitters the relationship and often leads to various outbursts of behaviour which can be termed as cruelty. It may be true that there is no definition of cruelty under the said Act. Actually such a definition is not possible. In matrimonial relationship, cruelty would obviously mean absence of mutual respect and understanding between the spouses which embitters the relationship and often leads to various outbursts of behaviour which can be termed as cruelty. Sometime cruelty in a matrimonial relationship may take the form of violence, sometime it may take a different form. At times, it may be just an attitude or an approach. Silence in some situations may amount to cruelty. 20. Therefore, cruelty in matrimonial behaviour defies any definition and its categories can never be closed. Whether the husband is cruel to his wife or the wife is cruel to her husband has to be ascertained and judged by taking into account the entire facts and circumstances of the given case and not by any predetermined rigid formula. Cruelty in matrimonial cases can be of infinite variety-it maybe subtle or even brutal and maybe by gestures and words. That possibly explains why Lord Denning in Sheldon v. Sheldon (1968) 2 WLR 993 held that categories of cruelty in matrimonial cases are never closed. 21. This Court is reminded of what was said by Lord Reid in Gollins v. Gollins [1964 AC 644] about judging cruelty in matrimonial cases. The pertinent observations are: (AC p.660) “…In matrimonial cases we are not concerned with the reasonable man as we are in cases of negligence. We are dealing with this man and this woman and the fewer a priori assumptions we make about them the better. In cruelty cases one can hardly ever even start with a presumption that the parties are reasonable people, because it is hard to imagine any cruelty case ever arising if both the spouses think and behave as reasonable people.” The aforesaid passage was quoted with approval by this Court in N.G. Dastane (Dr.) v. S. Dastane (1975) 2 SCC 326 . 22. About the changing perception of cruelty in matrimonial cases, this Court observed in Shobha Rani v. Madhukar Reddi [(1988) 1 SCC 195] at AIR p.123, para 5 of the report: (SCC p.108, para 5) “5. It will be necessary to bear in mind that there has been [a] marked change in the life around us. In matrimonial duties and responsibilities in particular, we find a sea change. It will be necessary to bear in mind that there has been [a] marked change in the life around us. In matrimonial duties and responsibilities in particular, we find a sea change. They are of varying degrees from house to house or person to person. Therefore, when a spouse makes complaint about the treatment of cruelty by the partner in life or relations, the court should not search for standard in life. A set of facts stigmatized as cruelty in one case may not be so another case. The cruelty alleged may largely depend upon the type of life the parties are accustomed to or their economic and social conditions. It may also depend upon their culture and human values to which they attach importance. We, the Judges and lawyers, therefore, should not import our own notions of life. We may not go in parallel with them. There may be a generation gap between us and the parties.” 40. Reverting back to the case on hand, the Court is bound to consider, as to whether the plaintiff-wife has established the case that the husband has committed an act of cruelty, so as to cause a reasonable apprehension in her mind that would be harmful or injurious to live with him. 41. In C.M.S.A.No.28 of 2001, dated 27.11.2003, between the very same parties in this second appeal, the husband/appellant has challenged the judgment and decree made in C.M.A.No.26 of 2000, dated 22.12.2000, on the file of the Second Additional District Court, Erode, reversing the order and decretal order made in H.M.O.P.No.34 of 1997, dated 15.02.2002 on the file of the Sub Court, Dharapuram, by which, he was granted divorce, on the ground that the respondent-wife was frequently quarreling with the husband, left the matrimonial home permanently in the year 1994 and that she had refused to rejoin the husband for more than three years. The defence of the respondent-wife was that the husband has repeatedly demanded motorcycle and cash as dowry, and when the respondent conceived twice, the appellant took her to a lady doctor and made her to abort the female child on both the occasions and imposed, a condition that she should deliver only a male child and finally, she was driven out of the matrimonial home. Dealing with the abovesaid rival contentions, as to whether there was any justifiable cause for the wife to live separately, with reference to the evidence let in by both the parties, this Court in the above CMSA., observed that three documents were filed by the wife to substantiate her case. The first document was the case sheet pertaining to the treatment given to the respondent-wife in a private nursing home at Coimbatore and the second document was a Certificate given by the Lady Doctor, at Dindigul for having treated the respondent and the third document was a Biopsy Report done to the respondent. On consideration of the above material, this Court has observed that the conclusion of the lower appellate Court that the respondent-wife was made to abort the child on account of the compulsion by the appellant and the finding of the lower appellate Court was based on proper appreciation of evidence, and so saying, this Court dismissed the said appeal filed by the appellant herein. Thus, it is evident from the above decision, the fact that there was an abortion at the instance of the husband, without the consent of the wife, has been proved. Aborting a foetus against the will of the wife, amounts to cruelty. Though the lower appellate Court, while considering the above aspect, has very lightly remarked the same, as one of a simple misunderstanding between the parties, and it has lost sight of the fact, that aborting a foetus without the consent of the other spouse, amounts to cruelty. 42. The question as to whether, abortion against the will of the other spouse, amounts to cruelty, has been considered in Chhanda Chakraborty v. Ranjan Chakraborty reported in AIR 2008 Cal.267, wherein, a Division Bench of Calcutta High Court, while considering a case as to whether termination of pregnancy by the wife against the wish of the husband and his family would be a ground for divorce. On the facts and circumstances of the case, at Paragraph 11, held as follows: “The defence of the husband, on the other hand, is that the wife conceived and to get rid of such pregnancy, she went away and terminated the pregnancy against his will. On the facts and circumstances of the case, at Paragraph 11, held as follows: “The defence of the husband, on the other hand, is that the wife conceived and to get rid of such pregnancy, she went away and terminated the pregnancy against his will. An allegation of the husband that the wife against the wish of the husband and his family terminated a pregnancy is a serious one and such fact, if proved, is not only a crime but gives a stigma against the character of the wife. However, if such allegation is found to be a deliberate false one, in such a case, leveling of such an allegation against the wife in the written statement itself would afford a ground of divorce. We, therefore, proceed to examine whether such defence is a deliberate false one or not. We are quite conscious of the position of law that mere inability to prove such defence for want of sufficient evidence will not afford a ground of divorce in favour of the other spouse but if the same is proved to be false, the other spouse may avail of such cruelty as a ground of divorce even if the allegation made in the petition for divorce is not proved.” 43. In Sh. Sushil Kumar Verma v. Usha reported in AIR 1987 Delhi 86, one of the grounds urged by the husband for dissolution for marriage is that the wife aborted the foetus in the first pregnancy, without consent of her husband and it is held as cruelty. 44. The expression cruelty, includes, both (i) mental cruelty and (ii) physical cruelty. With reference to English and Indian Laws, the same have been elaborately considered in Suman Kapur v. Sudhir Kapur reported in 2009 (1) SCC 422 =2009-1L.W.781, wherein, at Paragraphs 43, the Supreme Court reproduced the guidelines given Somar Ghosh v. Jaya Ghosh reported in 2007 (4) SCC 511 and that the same is extracted hereunder: “(i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty. (ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party. (iii) Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable. (iv) Mental cruelty is a state of mind. The felling 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 behavior 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 behavior 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. (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) Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty. (xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty.” 45. In Suman Kapur’s case (cited supra), the wife challenged the decree of divorce granted under Sections 13(1)(i-a) and (i-b) of the Hindu Marriage Act, 1955. Among the reasons for attributing mental cruelty by the wife towards the husband, was termination of pregnancy, without the knowledge and consent of the husband, which was disputed by the wife, asserting that it was done with the knowledge and consent of the husband, the trial Court, after considering the evidence, held that the husband was not entitled to a decree of divorce on the ground that the wife had deserted the husband, for a continuous period of not less than two years, immediately preceding the presentation of the petition, but held that it was fully established by the husband that there was cruelty on the part of the wife and that the wife, without the knowledge and consent of the husband, got her pregnancy terminated twice and that he was also not informed about her natural miscarriage in the year 1989. The trial Court held that the termination of the pregnancy by the wife, without the consent or knowledge of the husband, was in the nature of mental cruelty. Holding that there was cruelty shown by the wife towards her husband, a decree of divorce was granted. The trial Court held that the termination of the pregnancy by the wife, without the consent or knowledge of the husband, was in the nature of mental cruelty. Holding that there was cruelty shown by the wife towards her husband, a decree of divorce was granted. Being aggrieved by the decree passed by the trial Court, the wife preferred an appeal, and the High Court of Delhi also confirmed the decree of divorce. However, the High Court held that it was not necessary for the Court to consider mental cruelty, insofar as termination of pregnancy was concerned, since in the opinion of the High Court, even otherwise from the letters and entries in the diary, it was proved that there was mental cruelty on the part of the wife. The correctness of the findings of the lower Court and the decision of the High Court, were tested in the Supreme Court. After considering a plethora of decisions, on the aspect of cruelty, the Supreme Court also concurred with the finding relating to mental cruelty recorded by the trial Court and confirmed by the High Court. 46. Earlier, this Court has extracted the illustrative cases, which were not exhaustive. In Somar Ghosh v. Jaya Ghosh reported in 2007 (4) SCC 511 , one of the instances, indicating ‘mental cruelty’, was that, “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. 47. The principles laid down by the Apex Court in various decisions give a clear picture of the concept of cruelty, according to the changes and advancement of social concept of standards of living and the matrimonial obligation of the spouse. If the termination of pregnancy by wife, without the knowledge and consent of the husband, amounts to cruelty on the part of the wife, all the more, in the case on hand, termination of pregnancy on the compulsion of the husband, would also amount to mental cruelty. As the mother would not like to terminate the foetus, unless and until, both the spouses on consensus, decide to do so or it could be for some medical reasons. 48. As the mother would not like to terminate the foetus, unless and until, both the spouses on consensus, decide to do so or it could be for some medical reasons. 48. This Court in C.M.S.A.No.28 of 2001, dated 27.11.2003, has already confirmed the findings of the lower appellate Court that abortion was at the instance of the husband and that there was no consent from the wife. The next question to be considered is whether the judgment and decree in C.M.S.A.No.28 of 2001, dated 27.11.2003, on the file of this Court can be taken on record for the limited purpose of this case, for adjudicating the issue, as to whether, abortion of the foetus, was at the behest of the defendant against her wish or by force, was a cruel act, which caused a reasonable apprehension in the mind of the wife not to live with the defendant on the ground that it would be harmful or injurious to her. High Court is a Court of record. The judgment rendered between the same parties in an earlier proceedings for divorce, instituted by the husband on the ground of desertion and refusal to live with him, without any just and reasonable cause, can be taken on record for the limited purpose of ascertaining the findings recorded thereon, even if the said judgment is not marked as evidence in the lower Court, in the subsequent proceedings instituted by the wife for maintenance, so long as the finding has reached its finality. The reason for the respondent-wife to live separately has been held to be valid and justifiable. The case of the appellant-husband, as regards desertion has been rejected. Now the parties are living separately for more than 18 years. 49. Perusal of the plaint averments relating to cruelty, includes abortion, at the instance of the husband shows though evidence has been let in by the parties to the proceedings, the lower Court has failed to frame a specific issue. Now the parties are living separately for more than 18 years. 49. Perusal of the plaint averments relating to cruelty, includes abortion, at the instance of the husband shows though evidence has been let in by the parties to the proceedings, the lower Court has failed to frame a specific issue. Equally, the lower appellate Court, though discussed the evidence, relating to conceiving of the child twice by the respondent-wife, termination of the foetus has misconstrued the same, as if, termination of pregnancy was only a cause, which gave rise to a misunderstanding between the spouses and without adverting to the issue, as to whether such termination, without the will of the mother, at the instance of the husband, would constitute mental cruelty has rendered the judgment. However, the lower appellate Court, while considering, as to whether, filing of divorce petition filed by the husband, would amount to cruelty, has observed as follows: “Further, it is the husband was already filed a petition for divorce and got the order of divorce from the Court. This also amount to mental cruelty to the wife. Unless and until that mental cruelty is alleviated by the husband, then the wife is justifiable in having the apprehension that it would be harmful or injurious to her life to live along with her husband. As such this Court comes to the conclusion that the wife is entitled for a separate living and unless and until, she has got remarried or unless or until it is being proved that she is having sufficient means to maintain herself.” 50. From the above, it could be inferred that the lower appellate court has also considered abortion as an act of cruelty, but failed to record a finding separately. On the above pleadings and evidence, this Court, in exercise of its powers, under Section 100 (5) CPC, formulates a new substantial question of law in this second appeal, “whether the lower Courts have erred in granting maintenance to the respondent-wife, without framing a specific issue, as to whether the appellant-defendant had committed an act of cruelty, in aborting the fetus of the child, without the consent of the wife or on his compulsion? For the forgoing reasons, this Court holds the substantial question of law No.2, in the second appeal, against the appellant-husband. 51. As stated supra, Mr. For the forgoing reasons, this Court holds the substantial question of law No.2, in the second appeal, against the appellant-husband. 51. As stated supra, Mr. M.V. Krishnan, learned counsel for the appellant has filed a memo, under Section 100(5), raising a substantial question of law, whether the Courts below have erred in creating a charge over the suit properties, when the defendant is not the owner of the properties. 52. What the phrase “substantial question of law” occurring in Section 100 of the Civil Procedure Code (before and after the amendment, 1976), as traced in Paragraphs 10 to 12 in Santosh Hazari v. Purushottam Tiwari reported in 2001 (3) SCC 179 = 2001-3-L.W.308, is as follows: “10. At the very outset we may point out that the memo of second appeal filed by the plaintiff-appellant before the High Court suffered from a serious infirmity. Section 100 of the Code, as amended in 1976, restricts the jurisdiction of the High Court to hear a second appeal only on substantial question of law involved in the case. An obligation is cast on the appellant to precisely state in the memorandum of appeal the substantial question of law involved in the appeal and which the appellant proposes to urge before the High Court. The High Court must be satisfied that a substantial question of law is involved in the case and such question has then to be formulated by the High Court. Such questions or question maybe the one proposed by the appellant or may be any other question which though not proposed by the appellant yet in the opinion of the High Court arises as involved in the case and is substantial in nature. At the hearing of the appeal, the scope of hearing is circumscribed by the question so formulated by the High Court. The respondent is at liberty to show that the question formulated by the High Court was not involved in the case. In spite of a substantial question of law determining the scope of hearing of second appeal having been formulated by the High Court, its power to hear the appeal on any other substantial question of law, not earlier formulated by it, is not taken away subject to the twin conditions being satisfied: (i) the High Court feels satisfied that the case involves such question, and (ii) the High Court records reasons for its such satisfaction. 11. 11. Even under the old Section 100 of the Code (pre-1976 amendment), a pure finding of fact was not open to challenge before the High Court in second appeal. However the Law Commission noticed a plethora of conflicting judgments. It noted that in dealing with second appeals, the Courts were devising and successfully adopting several concepts such as, a mixed question of fact and law, a legal inference to be drawn from facts proved, and even the point that the case has not been properly approached by the Courts below. This was creating confusion in the minds of the public as to the legitimate scope of second appeal under S.100 and had burdened the High Courts with an unnecessarily large number of second appeals. Section 100 was, therefore, suggested to be amended so as to provide that the right of second appeal should be confined to cases where a question of law is involved and such question of law is a substantial one. (See Statement of Objects and Reasons). The Select Committee to which the Amendment Bill was referred felt that the scope of second appeals should be restricted so that litigations may not drag on for a long period. Reasons, of course, are not required to be stated for formulating any question of law under sub-section (4) of Section 100 of the Code; though such reasons are to be recorded under proviso to sub-section (5) while exercising power to hear on any other substantial question of law, other than the one formulated under sub-section (4). 12. The phrase substantial question of law, as occurring in the amended Section 100 is not defined in the Code. The word substantial, as qualifying question of law, means-of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with-technical, of no substance or consequence, or academic merely. However, it is clear that the Legislature has chosen not to qualify the scope of substantial question of law by suffixing the words of general importance as has been done in many other provisions such as Section 109 of the Code or Article 133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. In Guran Ditta & anr. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. In Guran Ditta & anr. vs. T. Ram Ditta, AIR 1928Privy Council 172= (1928) 28 L.W.66, the phrase substantial question of law as it was employed in the last clause of the then existing Section 110 of the C.P.C. (since omitted by the Amendment Act, 1973) came up for consideration and Their Lordships held that it did not mean a substantial question of general importance but a substantial question of law which was involved in the case as between the parties. In Sir Chunilal v. Mehta & Sons Ltd. vs. The Century Spinning and Manufacturing Co. Ltd., (1962) Supp.3 SCR 549, the Constitution Bench expressed agreement with the following view taken by a Full Bench of Madras High Court in Rimmalapudi Subba Rao vs. Noony Veeraju, ILR 1952 Madras 264:- “..when a question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal with that question at some length and discuss alternative view, then the question would be a substantial question of law. On the other hand if the question was practically covered by the decision of the highest Court or if the general principles to be applied in determining the question are well settled and the only question was of applying those principles to the particular fact of the case it would not be a substantial question of law, and laid down the following test as proper test, for determining whether a question of law raised in the case is substantial:- The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest Court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law.” 53. Again, at Paragraph 14 of the reported judgment, the Supreme Court, held as follows: “A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be substantial, a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, in so far as the rights of the parties before it are concerned. To be a question of law involving in the case there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis.” 54. In U.P. Virupakshappa v. Sarvamangala reported in 2009 (2) SCC 177, the Supreme Court held that before formulating the substantial questions of law, the parties should have been put to notice. They should have been given an opportunity to meet out the same. The High Court did not record any reason for formulating the additional question. The prayer of the appellant to grant some time to deal with the said question was declined. The High Court has failed to take into consideration the fact that by framing the additional substantial question of law, a new case was sought to be made out. 55. The High Court did not record any reason for formulating the additional question. The prayer of the appellant to grant some time to deal with the said question was declined. The High Court has failed to take into consideration the fact that by framing the additional substantial question of law, a new case was sought to be made out. 55. Reverting back to the case, during the course of argument, assailing the judgments and decrees of the lower Courts, granting a charge decree over the properties, mentioned in the suit schedule, some of which, not being the properties of the husband, the appellant-Husband has filed a memo under Section 100(5) CPC. In response to the same, Mr. M. Manokaran, learned counsel for the respondent-wife, having taken notice, also made submissions. 56. The decisions rendered by the Courts below on the findings of fact that, all the lands, except a few, mentioned in the suit schedule properties, belonged to the appellant-defendant, are without any documentary proof, adduced on the side of the respondent-wife and granting a decree of charge over the properties, is certainly a matter, which requires adjudication and therefore, a substantial question of law, insofar as the rights of the parties, before this Court and for the reason that the Courts have an indefeasible obligation to do justice and to avoid prolongation of life of any lis. In view of the incorrect findings of fact, recorded by the Courts below, without proof of evidence, which can be termed as perversity, i.e., as a case of no evidence and in the light of the provisions of law, laid down in the forgoing paragraphs, this Court is inclined to formulate a new substantial question of law, founded on the pleadings and evidence, adduced. The new substantial question of law raised during the hearing of the appeal, on the aspect as to whether Courts below were right in granting a decree of charge over the properties, not owned by the husband/appellant, is formulated and answered in favour of the appellant/defendant in part. 57. The new substantial question of law raised during the hearing of the appeal, on the aspect as to whether Courts below were right in granting a decree of charge over the properties, not owned by the husband/appellant, is formulated and answered in favour of the appellant/defendant in part. 57. Section 25 of the Hindu Marriage Act deals with permanent alimony and maintenance and it is as follows: “(1) Any court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on application made to it for the purpose by either the wife of the husband, as the case maybe, order that the respondent shall pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to the respondent’s own income and other property, if any, the income and other property of the applicant, the conduct of the parties and other circumstances of the case, it may seem to the court to be just, and any such payment may be secured, if necessary, by a charge on the immovable property of the respondent. (2) If the court is satisfied that there is a change in the circumstances of either party at any time after it has made an order under sub-section (1), it may at the instance of either party, vary, modify or rescind any such order in such manner as the court may deem just. (3) If the court is satisfied that the party in whose favour an order has been made under this section has re-married or, if such party is the wife, that she has not remained chaste, or, if such party is the husband, that he has had sexual intercourse with any woman outside wedlock, it may at the instance of the other party vary, modify or rescind any such order in such manner as the court may deem just.” 58. The Court, while exercising jurisdiction under the Hindu Marriage Act, 1955, is empowered to pass three kinds of decrees, (i) Decrees of Nullity under Section 11, declaring the marriage as null and void on the ground of contravention of anyone of the conditions specified in Clauses (1) (4) and (5) of Section 5; (ii) Decrees of nullity under Section 12 annulling voidable marriages on any of the grounds (including impotency) mentioned in Section 12 and (iii) Decrees, of divorce dissolving validly conducted marriage on the grounds enumerated in Section 13. Besides these three categories of decrees, Courts have the jurisdiction under the Hindu Marriage Act, 1955 to grant decrees for restitution of conjugal rights under Section 9 and judicial separation under Section 19. The expression “at the time of passing any decree or at any time subsequent thereto” occurring in Section 25 of the Hindu Marriage Act, makes it clear that the Courts have jurisdiction to award maintenance either at the time of passing of any decree or at any time subsequent thereto, implying that even after the decree of dissolution, either spouse can seek for maintenance. Status and severance of marital tie between the parties, being irrelevant. Therefore, Section 25 of the Hindu Marriage Act, empowers the Court to award appropriate maintenance, having regard to the respondent’s own income and other property, if any, the income and other property of the applicant, the conduct of the parties and other circumstances of the case, it may seem to the Court to be just. 59. One of the grounds for a decree for divorce under Section 13(1)(i-a) of the Hindu Marriage Act, on a petition presented either by husband or wife, is that the other party has, after solemnization of the marriage, treated the other, with cruelty. There are other grounds as well, which are not required for the purpose of this case. 60. Section 18 of the Hindu Adoptions and Maintenance Act, 1956, has been enacted to provide for a right to separate residence and maintenance under certain circumstances to a Hindu married woman. The said Section enables the wife to exercise her right to live separately from her husband, without forfeiting her right to maintenance, subject to the provisions of the Section. All that the wife has to prove before the Court is whether there is any justifiable cause for her separate living. 61. The said Section enables the wife to exercise her right to live separately from her husband, without forfeiting her right to maintenance, subject to the provisions of the Section. All that the wife has to prove before the Court is whether there is any justifiable cause for her separate living. 61. Unlike the provision under Section 25 of the Hindu Marriage Act, enabling either of the spouse to seek for maintenance, at the time of passing of any decree or any time subsequent thereto, Section 18 of the Hindu Adoptions and Maintenance Act, confers a right on a Hindu wife to seek for maintenance even during he subsistence of the marriage and to live separately from her husband, without forfeiting her claim for maintenance. 62. Right to claim maintenance and live separately from her husband, without forfeiting her claim to maintenance, is solely determined on the conduct of the husband, as set out in sub-Sections 2(a) to 2(f) of Section 18 of the Hindu Adoptions and Maintenance Act and subject to a specific disqualification, provided under sub-Section (3) of Section 18 of the Act, which states that, “A Hindu wife shall not be entitled to separate residence and maintenance from her husband if she is unchaste or ceases to be a Hindu by conversion to another religion.” 63. A combined reading of the provisions stated supra makes it clear that the right to claim maintenance under the Hindu Marriage Act and the right to separate residence under the Hindu Adoptions and Maintenance Act, with a right to claim maintenance are two distinct and different entities. As per sub-Section (1) of Section 18, subject to provisions of the said Section, a Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained by her husband during her lifetime, which makes it clear that the husband is obliged to maintain his wife, during her lifetime and there is no need to sue the husband for a dissolution of marriage or judicial separation. Without forfeiting her claim for maintenance, she is also entitled to live separately, if she satisfies anyone of the enumerated conduct on the part of the husband and if there is any other cause, justifying her living separately, limiting her claim, with a specific disqualification, attached to the conduct of the wife that if she is unchaste or ceases to be a Hindu by conversion to another religion and only in such circumstances, she is not entitled to separate residence and maintenance from her husband. There is a statutory obligation on the part of the husband to provide maintenance subject to the above conditions. 64. Section 18 of the Hindu Adoptions and Maintenance Act, which deals with maintenance of wife, is extracted hereunder: “18. Maintenance of wife-(1) Subject to the provisions of this section, a Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained by her husband during her lifetime. (2) A Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance. (a) if he is guilty off desertion, that is to say, of abandoning her without reasonable cause and without her consent or against her wish, or of willfully neglecting her; (b) if he has treated her with such cruelty as to cause a reasonable apprehension in her mind that it will be harmful or injurious to live with her husband; (c) if he is suffering from a virulent form of leprosy; (d) if he has any other wife living; (e) if he keeps a concubine in the same house in which his wife is living or habitually resides with a concubine elsewhere; (f) if he has ceased to be a Hindu by conversion to another religion; (g) if there is any other cause justifying her living separately. (3) A Hindu wife shall not be entitled to separate residence and maintenance from her husband if she is unchaste or ceases to be a Hindu by conversion to another religion. 65. (3) A Hindu wife shall not be entitled to separate residence and maintenance from her husband if she is unchaste or ceases to be a Hindu by conversion to another religion. 65. Though there is no separate provision in the Hindu Adoptions and Maintenance Act, for grant of maintenance pendent lite, Section 18 of the Hindu Adoptions and Maintenance Act, provides only two exceptions in sub-Section (3) of Section 18 of the Act, which provides for a disqualification or extinguishment of the right of a Hindu wife to separate residence and maintenance, for the specific reasons and having regard to the object of enactment and the obligations of the husband, courts have held that a wife is entitled to interim maintenance also, as she cannot be forced to face starvation, till the attainment of finality of the litigation. 66. Though the proof of cruelty to be the cause for the reasonable apprehension in the mind of the petitioner that it would be harmful or injurious to the petitioner to live with the other party, has been provided only, as a ground for judicial separation under Section 10(1)(b) and not for divorce under Section 13 of the Hindu Marriage Act, as it stood before the amendment Act, 68 off 1976, dated 27.05.1996, by virtue of the amendment, as observed by the Full Bench of the Bombay High Court, in Dr. Keshaorao Krishnaji Londhe v. Nisha Londhe reported in AIR 1984 Bom. 413 , the standard or cruelty has been changed from the doctrine of danger to “reasonable apprehension that it would be harmful or injurious”, as envisaged in old Section 10(1)(b). After the amendment, mere cruelty simpliciter has been made as one of the grounds for both judicial separation under Section 10(1) as well as Divorce under Section 13 of the Hindu Marriage Act. though a contention has been raised before the Full Bench that the intention of the legislature in making about the amendment, was to bring back the concept of cruelty on par with the age old English concept of doctrine of danger and to nullify the effect of Dastane’s case, the Full Bench of Bombay High Court has observed that there was not even a whisper in the Statement of Objects and Reasons, directly of indirectly about Dastane’s case or the view that prevailed before the decision was taken by the legislature. 67. 67. In Smt. Rohini Kumari v. Narendra Singh reported in 1972 (1) SCC 1 , one of the issues considered by the Supreme Court was whether Section 18 of the Hindu Adoption and Maintenance Act, 1956 amends or abrogates the provisions of Section 10 of the Hindu Marriage Act, as stood before the amendment. Answering the said issue, the Supreme Court, at Paragraph 10, held as follows: “The preamble of the Act describes it as one to amend and codify the law relating to marriage among Hindus. It is well known that when a particular branch of law is codified it is intended and the object essentially is that on any matter specifically dealt with by that law it should be sought for in the codified enactment alone when any question arises relating to that matter. Ordinarily when it has been expressly stated that an enactment is meant for codifying the law the court is not at liberty to look to any other law. The Act not only amends but also codifies the law of marriage and it has made fundamental and material changes in the prior law. Section 4 of the Act gives overriding effect to its provisions. Therefore unless in any other enactment there is a provision which abrogates any provision of the Act or repeals it expressly or by necessary implication the provisions of the Act alone will be applicable to matters dealt with or covered by the same. Sections 9 and 10 of the Act provide for restitution of conjugal rights and judicial separation. Section 10 deals with judicial separation and once a decree for judicial separation has been granted a decree for dissolution of marriage can be passed under Section 13(1-A) provided there has been no resumption of cohabitation between the parties to the marriage for a period of two years or upwards after the passing of the decree for judicial separation. It may be mentioned that Section 13 gives several grounds for dissolution of marriage by a decree of divorce and one of the grounds is the one contained in sub-section (1-A) of that section. The Hindu Adoptions and Maintenance Act, 1956, hereinafter called the “Maintenance Act” also amended and codified the law relating to adoptions and maintenance among Hindu. It may be mentioned that Section 13 gives several grounds for dissolution of marriage by a decree of divorce and one of the grounds is the one contained in sub-section (1-A) of that section. The Hindu Adoptions and Maintenance Act, 1956, hereinafter called the “Maintenance Act” also amended and codified the law relating to adoptions and maintenance among Hindu. Section 18(2) provides, inter alia, that the Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance if he is guilty of desertion, that is to say, of abandoning her without reasonable cause and without her consent or against her wish or of willfully neglecting her or if he has any other wife living. Indeed the last clause (g) of Section 18(2) is very general i.e. if there is any other cause justifying her living separately. Section 10 of the Act and Section 18 of the Maintenance Act are quite distinct and one cannot be said to control the other. The former provision deals with the matrimonial offences by either spouse which would justify the grant of a decree for judicial separation. Section 18 provides for grant of maintenance to wife alone. Sub-section (1) says that a Hindu wife shall be entitled to be maintained by her husband during her life time. Sub-section (2) gives her a right to live separately from her husband without forfeiting her claim to maintenance provided any of he conditions mentioned in clauses (a) to (g) exist or are specified. The essential ingredient of desertion, animus deserendi i.e. intention on the part of the deserting spouse to remain separated permanently or to bring cohabitation to an end for ever need not exist in case of a wife who has been given the right to live separately in certain circumstances without forfeiting her claim to maintenance. The Act and Maintenance Act provide different remedies to a wife whose husband has been guilty of desertion. Under the Act she can sue for judicial separation if the conditions laid down in Section 10(1)(a) of the Act read with the Explanation are satisfied. She can without resorting to that remedy choose to live separately from her husband who would be bound to maintain her if it is provided that he has been guilty of desertion and the other conditions laid down in Section 10(2)(a) are satisfied. She can without resorting to that remedy choose to live separately from her husband who would be bound to maintain her if it is provided that he has been guilty of desertion and the other conditions laid down in Section 10(2)(a) are satisfied. It is significant that under Section 13(2) of the Act a wife may present a petition for dissolution of marriage by a decree of divorce on the ground that the husband had married again before the commencement of the Act or that any other wife of the husband married before such commencement was alive at the time of the solemnization of the marriage of the petitioner. But this can be done only if the marriage with the petitioner was also solemnized before the commencement of the Act. For instance in the present case the wife could have asked for dissolution of her marriage under the aforesaid provisions because the marriage of the husband with Countess Rita was preformed before the Act came into force. If she, however, did not choose to resort to that remedy she could decide to live separately under Section 18(2) (d) of the Maintenance Act. This shows the sharp contrast in the provisions of the two enactments. When the wife chooses to live separately under Section 18(2)(d) in the circumstances mentioned before she would be entitled to maintenance from the husband. He could not compel her to return to him so long as his marriage with the other wife is not dissolved but if that marriage is dissolved the husband can call upon the wife to return to him and if she does not return it is very doubtful if she can still claim maintenance from him under Section 18 of the Maintenance Act. However, this is a matter on which we need express no final opinion. All that we are concerned with, in the present case, is whether the provisions of Section 18(2) of the Maintenance Act can affect the matters provided for by Section 10 of the Act. It is quite obvious that Section 18 of the Maintenance Act does not amend or abrogate the provisions of Section 10 of the Act which alone must be looked at for the purpose of disposing of the appeal before us.” 68. It is quite obvious that Section 18 of the Maintenance Act does not amend or abrogate the provisions of Section 10 of the Act which alone must be looked at for the purpose of disposing of the appeal before us.” 68. Section 10(1)(b) of the Hindu Marriage Act, as stood before and after amendment, is as follows: “[Old Act] 10(1) Either party to a marriage, whether solemnized before or after the commencement of this Act, may present a petition to the district Court praying for a decree for judicial separation on the ground that the other party- (a) ….. (b) has treated the petitioner with such cruelty as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious the petitioner to live with the other party. [After amendment] (1) Either party to a marriage, whether solemnized before or after the commencement of this Act, may present petition, praying for a decree for judicial separation on any of the grounds specified in sub-Section (1) of Section 13, and in the case of a wife also on any of the grounds specified in sub-section (2) thereof, as grounds on which a petition for divorce might have been presented. (2) Where a decree for judicial separation has been passed, it shall no longer be obligatory for the petitioner to cohabit with the respondent, but the Court may, on the application by petition of either party and on being satisfied of the truth of the statements made in such petition, rescind the decree if it considers it just and reasonable to do so.” 69. Hindu Adoptions and Maintenance Act is a codified law, dealing with adoptions and maintenance, among Hindus, with the following statements of objects and reasons. “This part of the Hindu Code deals with the subject of adoptions and maintenance among the Hindus. 2. With the passing of the Hindu Succession Act, 1956, which treats sons and daughters equally in the matter of succession, it has now become possible to simplify the law of adoption among Hindus. The Bill provides for the adoption of boys as well as girls. There is no longer any justification for allowing a husband to prevent his wife from taking a child in adoption after his death. The adoption made by a Hindu widow will here after be in her own right. The Bill provides for the adoption of boys as well as girls. There is no longer any justification for allowing a husband to prevent his wife from taking a child in adoption after his death. The adoption made by a Hindu widow will here after be in her own right. No person need be divested of any property which has vested in him by reason only of the fact that subsequent to such vesting an adoption has been made. This rule of divesting has been the cause of many a ruinous litigation. 3. In the Hindu Succession Act, 1956, a specific provision was inserted whereby it was declared that the power of a Hindu to make a testamentary disposition of his property shall not affect the right of maintenance of any heir by reason only of the fact that under the testamentary disposition the heir has been deprived of a share in the property to which he would have been entitled if the deceased had died intestate. An assurance was then given that the Chapter of the Hindu Code relating to maintenance would be introduced in Parliament as soon as possible. The latter part of this Bill deals with maintenance. This Chapter does not call for any detailed comments. It is largely based on the existing law as codified in the Bills of Rau Committee and the Select Committee of the Provisional Parliament in 1948.” 70. Hindu Adoption and Maintenance Act has come into effect on 21st December, 1956. Though the parliament, while considering the recommendation contained in the 59th Report, dated 6th March, 1974, on the topic of cruelty contained in Paragraphs 2.12 to 2.17 of the Report, to bring about an amendment, deleted the words, “reasonable apprehension”, that it is harmful or injurious for one spouse to live with other, from Section 10(1)(b) of the Hindu Marriage Act, as stood prior to the amendment, which was one of the grounds for judicial separation and introduced only “cruelty” simpliciter, there is no corresponding amendment in the Hindu Adoptions and Management Act, 1956. In this context, this Court deems it for to extract a portion of recommendations of the Law Commission, for effecting the amendment. “2.12. In this context, this Court deems it for to extract a portion of recommendations of the Law Commission, for effecting the amendment. “2.12. A draft on the following lines was suggested during our discussion: “that the respondent has, since the solemnization of the marriage, treated the petitioner with such cruelty that the petitioner cannot reasonably be expected to live with the respondent.” (emphasis supplied) We do not, however, think it necessary to add such limiting words, because we consider that the court would, even in the absence of such words, broadly adopt the same approach. 2.13. It may incidentally be mentioned here that in many countries, matrimonial relief is provided to the aggrieved spouse on the ground of cruelty. This redress is usually justified on the ground of principle of production. 2.14 to 2.16. Having considered all aspects of the matter, we have come to the conclusion that is sufficient to provide for cruelty as a ground of divorce, and it should be left to the Courts to determine on the facts of each case whether the conduct amounts to cruelty. 2.17. Accordingly, we recommend that in S.13(1), Hindu Marriage Act, a new cause should be added as follows:- “has treated the petitioner with cruelty”.” 71. From the above, it is evident that the Law Commission had come to the conclusion that it is sufficient to proof cruelty, as one of the grounds of divorce and it should be left to the Courts to determine on the facts of each case, where the conduct amounts to cruelty. Under Section 13 of the Hindu Marriage Act, any marriage solemnized, whether before or after the commencement of the Act, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party, has after the solemnization of the marriage, treated the petitioner with cruelty. Under Section 13 of the Hindu Marriage Act, any marriage solemnized, whether before or after the commencement of the Act, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party, has after the solemnization of the marriage, treated the petitioner with cruelty. That part, under Section 13(2) of the Hindu Marriage Act, a wife may also present a petition for dissolution of her marriage, by a decree of divorce on the ground, inter alia, that in a suit under Section 18 of the Hindu Adoptions and Maintenance Act, 1956 or in a proceeding under Section 125 of the Code of Criminal Procedure, 1973 (or under the corresponding Section 488 of the Code of Criminal Procedure, 1898), a decree or order, as the case may be, has been passed against the husband, awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year of upwards. 72. In a given case, where the wife prefers to seek for dissolution of marriage under Section 13 of for judicial separation under Section 10, on the grounds, inter alia, cruelty simpliciter or any other ground, she is entitled to claim interim maintenance as well as permanent alimony under Sections 24 and 25 of the Hindu Marriage Act. The above referred Sections enable the husband also to seek for maintenance. 73. Per contra, Section 18 provides for grant of maintenance to the wife alone and sub-Section (1) of Section 18 states that the Hindu wife, whether married before or after the commencement of the Act, shall be entitled to be maintained by her husband during her lifetime. Sub-Section (2) of the said Section gives her right to live separately from her husband, without forfeiting her claim to maintenance, subject to the conditions provided from Clauses (a) to (g). 74. Section 18 of the Hindu Adoptions and Maintenance Act, makes it clear that if the wife intends to live separately or to bring co-habitation to end for ever and intends to maintain her status, as wife, she can, without resorting to sue the husband, either for judicial separation or dissolution of the marriage, maintain a claim for maintenance. 74. Section 18 of the Hindu Adoptions and Maintenance Act, makes it clear that if the wife intends to live separately or to bring co-habitation to end for ever and intends to maintain her status, as wife, she can, without resorting to sue the husband, either for judicial separation or dissolution of the marriage, maintain a claim for maintenance. When the provisions, viz., Sections 24 and 25 of the Hindu Marriage Act, 1955, enable either spouse to seek for interim maintenance and permanent alimony, during the subsistence of the marriage and even after a decree for divorce of judicial separation, as the case may be, on the ground of cruelty simpliciter, this Court is of the view that the condition imposed in Hindu Adoption and Maintenance Act in Section 18(2)(b), for claiming maintenance, the wife has to prove that, “he has treated her with such cruelty as to cause a reasonable apprehension in her mind that it will be harmful or injurious to live with her husband”, is onerous, for the reason that when the Law Commission in its 59th Report, dated 6th March, 1974, and the Legislature have thought it fit, not to include any of limiting words, i.e., cruelty as to cause reasonable apprehension in her mind that it will be harmful or injurious to live with her husband, to seek for a decree for dissolution of marriage under Section 13 of the Hindu Marriage Act or judicial separation under Section 10 of the said Act or for maintenance under Sections 24 or 25 of the said Act, there is an anomaly in continuing the limiting words, in Section 18 of the Hindu adoptions and Maintenance Act, 1956, which is a special provision, whereby, a right is given to the wife to live separately. To put it in nutshell, when cruelty simpliciter is a ground for claiming maintenance, interim or even after divorce or judicial separation, under the Hindu Marriage Act, a onerous condition is imposed in Section 18 of the Hindu Adoptions and Maintenance Act. 75. To put it in nutshell, when cruelty simpliciter is a ground for claiming maintenance, interim or even after divorce or judicial separation, under the Hindu Marriage Act, a onerous condition is imposed in Section 18 of the Hindu Adoptions and Maintenance Act. 75. If a Hindu wife is entitled to live separately from her husband, without forfeiting her claim to maintenance on the ground that he has willfully neglected her or she has been driven away from her matrimonial home, naturally, she would be forced to live separately from her husband and in such circumstances, this Court is of the view that there is no need to plead and prove reasonable apprehension in her mind that it would be harmful or injurious to live with him, but at the same time, she can still exercise her right to live separately from her husband, and seek for maintenance. But if cruelty is the reason for separate living under Section 18 of the Hindu Adoptions and Maintenance Act, her claim for maintenance, it is subject to a condition of pleading and proof, that such cruelty, as to cause a reasonable apprehension, in her mind that it would be harmful or injurious to live with her husband. Whether the limiting words has to remain in the stature book, i.e., in Hindu Adopts and Maintenance Act, is an aspect to be considered by the Legislature in view of the recommendation of the Law Commission, in its 59th report, dated 06.03.1974, declining to accept the suggestion contained in paragraphs 2.12 to 2.17, stated supra. This Court is of the view that a suitable amendment has to be made in the Hindu Adoption and Maintenance Act also, as done in the Marriage Act. This context, let me extract some of the provisions dealing with interim maintenance during the pendency of proceedings for divorce. 76. The Hindu Marriage Act, has come into existence on 18th May, 1955 and the preamble to the Act, as per the decision of the Apex Court in 1999 (3) SCC 406, is that, “The preamble to the Hindu Marriage Act suggests that it is an Act to amend and codify the law relating to marriage among Hindus. 76. The Hindu Marriage Act, has come into existence on 18th May, 1955 and the preamble to the Act, as per the decision of the Apex Court in 1999 (3) SCC 406, is that, “The preamble to the Hindu Marriage Act suggests that it is an Act to amend and codify the law relating to marriage among Hindus. Though it speaks only of the law relating to marriage, yet the Act itself lays down the rules, relating to the solemnization and requirements of a valid Hindu marriage as well as restitution of conjugal rights, judicial separation, nullity of marriage, divorce, legitimacy of children and other allied matters.” 77. Section 24 of the Hindu Marriage Act, deals with maintenance pendente lite and expenses of proceedings and the said section is extracted hereunder: “Where in any proceeding under this Act it appears to the Court that either the wife or any husband, as the case may be, no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner’s own income and the income of the respondent, it may seem to the Court to be reasonable.” 78. The object of Section 24, as observed in Dr. Yoginder Pal Soni v. Padma Soni reported in (1970) 72 Punj. L.R. 878, is that neither the party may suffer by his or her inability to conduct the proceedings for want of money or expenses. 79. In Haniappa v. Binmala Devi reported in AIR 1957 Mys 44, the Karnataka High Court observed as follows: “there is no reason to think that the Legislature in making provision in Sec.24for maintenance pendente lite and expenses of the proceedings under the Hindu Marriage Act, wished to depart from the principle that it should be open to the Court to make such provision in favour of a needy spouse whether such spouse figured as the initiator of the main proceedings or not. Unless there is something compelling in the language of Sec.24 of Hindu Marriage Act which confines such relief only to the petitioner it should not be restricted to one party or the other and there is no warrant for such a construction in the wording of Sec.24. Unless there is something compelling in the language of Sec.24 of Hindu Marriage Act which confines such relief only to the petitioner it should not be restricted to one party or the other and there is no warrant for such a construction in the wording of Sec.24. The only departure clearly intended by the Legislature appears to be to place husband and wife on the same footing and make it possible to grant such relief against the wife also. The word ‘respondent’ appearing in Sec.24 seems to indicate the party against whom the application is directed and not the party arrayed as the opponent to the main petition.” 80. The factors which can be culled out and as required to be kept in mind, while awarding interim maintenance, are (i) Status of the parties, (ii) Reasonable wants of the claimant, (iii) The income and property of the claimant; (iv) Number of persons to be maintained by the husband; (v) Liabilities, if any, of the husband; (vi) The amount required by the wife to live a similar life-style as she enjoyed in the matrimonial home keeping in view food, clothing, shelter, educational and medical needs of the wife and the children, if any, residing with the wife, and (vii) Patment capacity of the husband. 81. The claim for interim maintenance during the pendency of the husband’s petition for divorce also is permissible. Useful reference can made to a decision of the Madhya Pradesh High Court in Janaki Bai v. Prem Narayan Kushwaha reported in 2006 (1) H.L.R. 536, where, it has been held as follows: “On a reading of the provision, there can be no scintilla of doubt that the Court has the discretion, but the discretion has to be used keeping in view judicial conscience and fairplay and not in an arbitrary or capricious manner. The discretion that has been vested with the Court cannot travel beyond the statutory requirement. The Court cannot introduce a condition and conceive that the conduct of either of the spouses can be taken note of while awarding quite different. The word may engrafted into the anatomy of the provision would not clothe the Court with the jurisdiction to take into any other facet which has a connectivity with the conception of conduct. Conduct is not a necessitous requirement for the purpose of grant of interim maintenance. The word may engrafted into the anatomy of the provision would not clothe the Court with the jurisdiction to take into any other facet which has a connectivity with the conception of conduct. Conduct is not a necessitous requirement for the purpose of grant of interim maintenance. The discretion that is vested with the Court has inseparable nexus with the conditions precedent and he reasonableness of the quantum. In the instant case, the Trial Court has committed the mistake by taking into consideration the conduct of wife while considering application under Section 24 and therefore, the order impugned in the writ petition, refusing to award maintenance pendente lite to the wife on the ground of misconduct cannot be sustained.” 82. On the quantum of compensation, though the learned counsel for the appellant-husband, submitted that both the Courts below have failed to take into consideration the liability of the appellant to maintain his aged parents and the female child, born out of the wedlock and living with him, this Court is of the view that a sum of Rs.40/- per day, warded to the wife towards her sustenance, food, shelter and clothing, the three major components, cannot be said to be bonanza to the wife by the husband, taking into consideration, is the statutory duty to maintain his wife, till her lifetime. 83. As stated by the learned counsel for the respondent-wife, there is no disqualification for the respondent-wife to claim maintenance, under Section 18 of the Hindu Adoptions and Maintenance Act. The reason for living separately has been found to be justifiable, even in the earlier proceedings. Cruelty has been established by the respondent-wife. For the reasons stated supra, substantial question of laws, is answered against the appellant-husband. The judgment and decrees of the Courts below, granting maintenance at the rate of Rs.1,200/- per month, is confirmed. 84. The reason for living separately has been found to be justifiable, even in the earlier proceedings. Cruelty has been established by the respondent-wife. For the reasons stated supra, substantial question of laws, is answered against the appellant-husband. The judgment and decrees of the Courts below, granting maintenance at the rate of Rs.1,200/- per month, is confirmed. 84. Though the plaintiff has not filed any document to prove that all the suit schedule properties are either joint or ancestral, wherein, there is a share to the husband-defendant or his properties mentioned in the suit schedule are individual properties, the Courts below have erroneously arrived at the conclusion that since documents, Exs.B1 to B5 produced by the defendant to prove that certain properties were exclusively owned by his father or mother, as the case may be, do not co-relate with the survey numbers, mentioned in the schedule to the plaint, have created charge over the properties in the respective villages, excluding the lands in Survey No.147/3 in Kolinchivadi Village and Survey No.1822 and 1823 in Kolathupalaam Village. As rightly contended by the learned counsel for the appellant-husband, it is the person who claims maintenance, has to prove that the other spouse, owns properties and derive income therefrom. It is well settled legal position that one who pleads has to prove and it is not necessary to prove the negative nor there can be any presumption in this regard. 85. Admittedly, the plaintiff-wife has not filed any document to prove that the properties, for which, a charge has been created exclusively belong to the husband. Only in respect of Survey Nos.14 and 16(2) in Ponnivadi Village, there is a suggestion by the defendant to the plaintiff that the lands in the abovesaid survey numbers, are joint family properties. In the absence of any documentary evidence to establish that the appellant/husband owned the other properties, excluding the lands in Survey Nos.14 and 16(2) of Ponnivadi Village, this Court is of the view that both the Courts below have grossly erred in decreeing the charge over the rest of the properties. Therefore, the charge created over the property is restricted only to Survey Nos.14 and 16(2) of Ponnivadi Village. The judgment and decree of the lower appellate Court are set aside, insofar as the charge created over the suit properties, other than the one stated supra. 86. Therefore, the charge created over the property is restricted only to Survey Nos.14 and 16(2) of Ponnivadi Village. The judgment and decree of the lower appellate Court are set aside, insofar as the charge created over the suit properties, other than the one stated supra. 86. In the result, the Second Appeal is partly allowed. No costs.