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2011 DIGILAW 4927 (MAD)

P. Abirami v. D. E. Tamilarasan

2011-12-23

G.M.AKBAR ALI, K.MOHAN RAM

body2011
Judgment K. Mohan Ram, J. 1. Being aggrieved by the judgment and decree passed in O.P.No.154 of 1999 on the file of the I Additional Family Court, Chennai, granting a decree for divorce, the above Appeal has been filed by the wife. 2. The Appellant is the wife of the Respondent herein. The Respondent filed the said Original Petition seeking dissolution of the marriage on the ground that the Appellant has committed acts, which amounted to mental cruelty and she was guilty of adultery. The Court below has accepted both the grounds and accordingly, has dissolved the marriage. 3. The case of the Respondent before the Court below is as follows: (i) The marriage between the Appellant and the Respondent was solemnised, as per the Hindu Rites and Customs, at Chennai on 30.08.1996; after the marriage both of them were residing at Chennai; even before the betrothal, the Appellant, with an intention to avoid the betrothal, sent two persons to the Respondent’s work-spot on 10.07.1996 and they informed the Respondent that the Appellant was not interested in the said alliance, as she was in love with someone else; the Respondent and his parents wanted to stop the betrothal, but the Appellant and her parents came to the Respondent’s house on the same day and convinced him and his parents that some aggrieved person has created this problem and the Appellant was willing to marry the Respondent; after fully clearing the doubts, the betrothal function was held on 12.07.1996 and the marriage was solemnised on 30.08.1996. (ii) From the date of negotiations of marriage till the date of her leaving the matrimonial home, abruptly without informing the Respondent, the behaviour, activity, superiority complex of wealth and education of the Appellant, caused mental agony and torture to the Respondent and she failed to act as a dutiful wife; the Appellant is not interested in the marriage since the Appellant is having illicit intimacy and love affair with another person; the Appellant did not even informed about the conceivement at the time of her leaving the matrimonial home; when she left the matrimonial home she had undergone menstrual cycle and no symptoms of any kind of pregnancy was there; there was an understanding between both of them not to have a child for two years from the date of marriage; the aforesaid act of the Appellant will amount to mental cruelty. (iii) The Appellant by her acts had caused confusion in the family and left the matrimonial home abruptly without informing anybody and had not returned back to the matrimonial home; the pregnancy of the Appellant was not properly informed or celebrated and the Seemandam function was not celebrated; it is the further case of the Respondent that he was not responsible for the conceivement of the Appellant; the Appellant had deserted the Respondent once for all and is guilty of illicit intimacy with another person and thus as she had decided to separate from the Respondent, the Respondent sent a lawyer’s notice dated 01.12.1998 wherein he had informed the Appellant that he is going to approach proper forum seeking divorce and the Appellant sent a reply notice dated 19.12.1998 for which a rejoinder was sent on 15.01.1999. (iv) Even during the Appellant’s stay with the Respondent, she behaved very cruelly towards the Respondent and ill-treated him and she never gave any respect to the Respondent and subsequently deserted the Appellant coupled with illicit intimacy; hence there is no meaning to continue the marriage tie with the Appellant. 4. (iv) Even during the Appellant’s stay with the Respondent, she behaved very cruelly towards the Respondent and ill-treated him and she never gave any respect to the Respondent and subsequently deserted the Appellant coupled with illicit intimacy; hence there is no meaning to continue the marriage tie with the Appellant. 4. The Appellant contested the Petition by filing a detailed Counter Statement inter-alia contending as follows: (i) All the allegations contained in the Petition are denied; the Respondent has wantonly suppressed the material facts and has given a tainted picture of the happenings before the betrothal; the Appellant is a teacher and has been taking tuition too; one of her neighbour’s son Murali was a student taking tuition from her; as the Appellant reprimanded Murali for not studying properly, he had harboured ill-will against the Appellant which was not known to the Appellant and in his adolescent zeal for teaching a lesson to her, he had gone and told the Respondent that the Appellant was not interested in the marriage and that she was interested in some other fellow; the Respondent had informed the same to his parents and at their instance, the Appellant and the parents met them and informed about the aforesaid facts; thereafter the Respondent and his parents met the student Murali and his parents and were convinced about the fact that the Appellant was not responsible for Murali’s action; in fact, the Appellant and her parents told the Respondent and his parents that if they had developed any suspicion it is better to cancel the engagement, but the Respondent and his parents specifically stated that they are not doubting the Appellant and they want to celebrate the marriage; only thereafter the betrothal and marriage were performed. (ii) It is false to state that the Appellant has caused mental agony and harassment and she failed to act as a dutiful wife; the allegations and accusations that she is having illicit intimacy and love affair with another person are totally false to the knowledge of the Respondent; the Respondent is put to strict proof of his wild and baseless allegations; it is false to state that because of her educational qualification, wealthy background, etc., she developed a superiority complex and committed acts, which amounted to mental cruelty; she did not leave the matrimonial home very shortly and it is not correct to state that she had not properly informed about her conceivement; it is equally false to state that at the time when she left the matrimonial home she had not conceived; it is not further correct to state that the Appellant and the Respondent agreed not to have child for two years; the Appellant is ready and willing to undergo all scientific medical tests to prove that the child is born to the Respondent; the Respondent was called upon to submit himself to all scientific medical tests to prove his allegations. (iii) The highly indecent and dishonest allegations have been made by the Respondent only to please his parents who have been bent upon separating the Appellant and the Respondent; as soon as the pregnancy was confirmed on 29.04.1997, immediately the Respondent and his parents were informed; they were very particular that the child should be only a male baby and they insisted to have a sex determination test and wanted to do away with the baby, if it happens to be a female; the Respondent expressed his happiness on hearing about the Respondent’s pregnancy but expressed his inability to be with her because his parents would not permit him to be with her; the Respondent had met her at Thiruvottiyur, Vadivuvaiamman Temple, on 20.11.1997 and asked the Appellant to bear with him and after the child’s birth, he would set up a separate home; because of the attitude of his parents, he is not having any peace of mind; to avoid expenses, the parents of the Respondent had not taken any initiative to conduct a Seemandam function. (iv) The Appellant was abruptly sent out of the matrimonial home by locking the house and on 21.04.1997 when she returned from the school wherein she was employed; as she had no place to go she was forced to go to her parent’s house as she was not having any other key or access to enter the matrimonial home; her repeated attempts to rejoin the Respondent has failed because of the Respondent’s inability to convince his parents to take her back; the Respondent’s parents and his sister Amudha are the cause for this and they insisted and taken fifty sovereigns of gold ornaments at the time of marriage and twelve sovereigns of gold ornaments by way of watch strap, bracelet, chain, finger ring, etc., for the Respondent herein; the Respondent’s parents were constantly demanding more money and insisted the Appellant to get a water heater for the first Deepavali; the parents and the sister of the Respondent continued to demand more dowry and ill-treated her and made her life miserable; the Respondent, being spineless, has to dance to their tune; on 04.08.1998 after her father left for his office, the Respondent and his father came with four rowdy elements armed with aruval and iron rods and they demanded the Appellant’s signature in blank papers and created ugly scenes; only at the intervention of the neighbours, they left; after all talks of compromise failed, she preferred a Police Complaint on 25.02.1999 in All Women’s Police Station, Thousand Lights, against the Respondent and pursuant to the complaint, the Respondent handed over a gold watch strap, a diamond ring, minor chain, gold bracelet, silver articles, dresses, household articles and furnitures; during further enquiry the Respondent and his parents had accepted that the Appellant had left behind her 50 sovereigns of gold in their house and they had disposed of the same and in lieu thereof, they had given an undertaking to give Rs.1,75,000/- on 05.03.1999, but they have failed to honour their undertaking; the Appellant is a decent and virtuous person and she is shocked at the baseless and unfounded allegations against her character and conduct; the Appellant is interested in living with the Respondent if he sets up a separate family with all her belongings; on the aforesaid contentions, the Appellant sought for dismissal of the Petition. 5. 5. Before the Family Court, on the side of the Respondent herein/husband, he was examined as P.W.1 and one Ekambaram was examined as P.W.2 and Exs.P-1 to P-11 have been marked and on the side of the Appellant herein/wife, she was examined as R.W.1 and Exs.R-1 to R-14 have been marked. On a consideration of the evidence adduced before it, the Court below, came to the conclusion that the Appellant is guilty of causing mental cruelty to the Respondent and without even discussing the allegations and the evidence regarding the allegation of adultery, has granted the divorce on both the grounds of mental cruelty and adultery. Being aggrieved by that, the above Appeal has been filed. 6. Heard the learned Counsel on either side. 7. Mr. Being aggrieved by that, the above Appeal has been filed. 6. Heard the learned Counsel on either side. 7. Mr. D. Ramalingam, learned Counsel for the Appellant, made the following submissions: The allegations regarding mental cruelty are only vague; the allegation that the Appellant was not interested in the marriage has not been established by acceptable evidence; the allegation that the Appellant’s behaviour, activity, superiority complex of wealth and education caused mental agony and torture to the Respondent have not been established; because of her wealth and education what was the acts that were committed by the Appellant, which according to the Respondent caused mental cruelty, have not been set out in the Petition or in the evidence with full material particulars and as such the allegations are only imaginary; the Respondent has made a very serious allegation that the Appellant is having illicit intimacy and love affair with another person and that was the reason why she was not interested in the marriage and the child was also not born to the Respondent will itself amount to causing mental cruelty to the Appellant; the Appellant, who is guilty of making such false allegations, cannot take advantage of his own wrong and claim the relief of dissolution of the marriage; the alleged illicit intimacy has not been proved and no iota of evidence has been adduced by the Respondent to establish this false and serious allegation; the Appellant and the Respondent lived together only for a period of eight months and during such short period, both of them were living together happily and the Appellant became pregnant and during such stay, the parents of the Respondent and his sister ill-treated her demanding dowry; the Respondent is spineless and he could not act against the wishes of his parents, though he was affectionate towards the Appellant. 8. 8. Learned Counsel for the Appellant further submitted that a reading of Ex.R-4-Letter of the Respondent shows that the relationship between the Appellant and the parents of the Respondent was not cordial; Ex.R-4 further shows that the Respondent had admitted that the Appellant had informed her pregnancy to the Respondent over phone several times and have written several letters, but he has stated that he thought the same as a device to make the Respondent to come to her house; in the said letter, the Respondent has expressed his shock, after coming to know about the child’s birth; the Respondent has further stated that at the time when she left the house, there was no indication that she was pregnant; the Respondent has also stated that only because of the fact that the child was not born through him, she had not taken steps to come and meet him personally when she was pregnant. 9. Learned Counsel for the Appellant further submitted that Ex.P-10-letter written by the Appellant to her father-in-law shows that she had infact invited them to her house and had in fact tendered her apology for any fault on her part. 9. Learned Counsel for the Appellant further submitted that Ex.P-10-letter written by the Appellant to her father-in-law shows that she had infact invited them to her house and had in fact tendered her apology for any fault on her part. He further submitted that in Ex.R-5-Legal Notice the Respondent herein had referred to the incident that took place before the Betrothal wherein the Respondent herein has alleged that the Appellant failed to act as a dutiful wife; because she was having an illicit intimacy and love affair with another person, she was not interested in the marriage and that was the reason for her behaviour towards him and his parents; it is further alleged therein that because of her high educational qualification and wealthy background she had developed a superiority complex and she had not informed about the conceivement when she left the matrimonial home; though there was an agreement between them that they should avoid having a child for two years, she had not honoured the agreement; the Seemandam function was not informed; the conceivement of the child was not through him; the allegations of illicit intimacy and the allegation that the child was not born through him are serious allegations which have not been substantiated by acceptable evidence and these allegations itself has caused great mental cruelty to the Appellant; the other acts attributed to the Appellant even assuming to be true, the same will not amount to mental cruelty; because of her high educational qualification and wealthy background how she acted towards the Respondent and his parents have not been stated; the allegations made against the Appellant will not amount to mental cruelty and even otherwise, the same have not been proved by acceptable evidence; except the interested testimony of the Appellant and his father, no other independent witness has been examined to corroborate their evidence to substantiate the unfounded allegations made against the Appellant. 10. 10. Learned Counsel for the Appellant further submitted that since the Respondent was jobless, through the efforts of her father an interview was arranged for him with Rane TRW Streerings Limited and the interview card was received only at the address of the Appellant; if really the Appellant was not interested in the welfare of the Respondent to live with the Appellant, there was no need for her father to arrange for an interview; she had also written Ex.R-4-Letter to the Respondent informing about the interview. He further submitted that the Respondent had lodged a Complaint on 31.05.1999 against the Respondent’s father, mother and brother, knowing very well that on that date her father has to retire from service; only to create problem to her father, a false Complaint has been given, but no charge-sheet was filed. He further submitted that the Court below has erroneously come to the conclusion that only at the instigation of the Appellant, her brother and others picked up quarrel with the Respondent; the fact that they had pleaded guilty before the Criminal Court, though may be true, will not prove that they Committed offence at the instigation of the Appellant; even in the Complaint, there is no allegation that the Appellant instigated her brother and others to commit the offence and therefore the said act cannot be considered to be amounting to causing mental cruelty. 11. Learned Counsel for the Appellant further submitted that though the Criminal case for demand of dowry ended in acquittal and the Revision filed there-against also was also dismissed, that alone will not amount to mental cruelty as she had only initiated the Criminal proceedings to seek redressal to the illegal demand of dowry made by the parents of the Respondent; even in the Complaint she had not made any allegations against her husband; it is not the finding of the Criminal Court that the allegations are false; the standard of proof required before the Criminal Court is that the case should be proved beyond reasonable doubt and therefore the mere acquittal of the Appellant and his parents cannot be taken advantage of to contend that a false case was filed which will amount to causing mental cruelty. He further submitted that no Complaint was lodged against her husband and that will be clear from the Anticipatory Bail order obtained by the husband wherein it is stated that no case was registered. He further submitted that even before the Appeal time was over, the Respondent had got married again on 21.07.2004, which will show that the Respondent is not interested in living with the Appellant; in support of his contentions, the learned Counsel based reliance on the following decisions: (i) Vijaykumar Ramchandra Bhate v. Neela Vijaykumar Bhate, 2003 (2) CTC 375 (SC): AIR 2003 SC 2462 ; (ii) Chetan Dass v. Kamla Devi, 2001 (2) CTC 690 (SC): 2001 (1) DMC 714 (SC); (iii) V. Bhagat v. D. Bhagat, AIR 1994 SC 710 : 1994 (1) SCC 337 ; an un-reported decision of a Division Bench of this Court rendered in a case of Jayakumari v. Balachander, 2010 (3) CTC 785 (DB) (CMA No.386 of 2005, dated 21.04.2010). 12. Countering the said submissions, Mr. M. Venkatachalapathy, learned Senior Counsel, made the following submissions: At the outset, the learned Senior Counsel submitted that the ground of Adultery is not being insisted upon by the Respondent herein. Learned Counsel fairly submitted that the Family Court has, without even considering the allegations and the evidence and without recording a finding, while allowing the Petition, granted a decree for dissolution of marriage on the ground of adultery also. He submitted that the Court below has correctly recorded a finding that the acts of the Appellant amounted to mental cruelty and the mental cruelty alleged by the Respondent have been proved by the evidence adduced before the Family Court. He further submitted that the fact that the Appellant had lodged a Criminal Complaint against her husband and his parents ended in acquittal will show that the Appellant had made false allegations of demand of dowry which itself will amount to mental cruelty; even after the acquittal, the Appellant had filed a Criminal Revision before this Court and the Revision also ended in dismissal. He further submitted that the younger brother of the Appellant and two others went to the office of the Respondent and attacked him and in respect of that, the complaint lodged by the Respondent has been marked as Ex.P-2 and Ex.P-3-Judgment of the Criminal Court shows that the Accused has pleaded guilty and paid the fine. He further submitted that the younger brother of the Appellant and two others went to the office of the Respondent and attacked him and in respect of that, the complaint lodged by the Respondent has been marked as Ex.P-2 and Ex.P-3-Judgment of the Criminal Court shows that the Accused has pleaded guilty and paid the fine. He further submitted that the Family Court has considered the same and has rightly come to the conclusion that only to cause mental cruelty to the Respondent, the Appellant and her family members have acted so; the Court below has pointed out that knowing fully well that there is no possibility of reunion between the Appellant and the Respondent, the family members of the Appellant have committed various acts amounting to mental cruelty; the Court below has clearly stated that the Appellant had sent her brother and some others to attack the Respondent which will amount to mental cruelty. He further submitted that even according to the Appellant when she returned from the school, she found the door of the house locked and that was the reason for her going back to her parents place, she could have either waited for sometime or could have returned back the next day, but the Appellant had not returned to the matrimonial home. He further submitted that from the date of leaving the matrimonial home i.e., on 21.04.1997 to till date the Appellant and the Respondent are living separately and there is absolutely no chance of their re-union and the marriage has broken down irretrievably and therefore this is a fit case for this Court to confirm the decree of divorce granted by the Family Court in the interest of both the parents; no useful purpose will be served to keep the matrimonial tie alive; the marriage for all practical purpose is dead and therefore submitted that the marriage should be dissolved; in support of the said contentions, the learned Senior Counsel based reliance on the following decisions reported in, (i) Samar Ghosh v. Jaya Ghosh, 2007 (3) CTC 464 (SC): 2007 (4) SCC 511 , and (ii) Narendra Kumar Gupta v. Indu, AIR 2002 Raj, 169. 13. 13. Learned Senior Counsel for the Respondent further submitted that as admittedly the Respondent has got married again on 21.07.2004 and has got a child through the second marriage, it will be impracticable and impossible for the Respondent to re-unite with the Appellant and live together. 14. We have considered the aforesaid submissions made by the learned Counsel on either side and perused the materials available on record. 15. At the outset, it has to be pointed out that though serious allegation of adultery has been made against the Appellant in the Petition for divorce filed by the Respondent, in the Petition, the Respondent has not mentioned the name of the person with whom the Appellant was having illicit intimacy. The Court below has also not at all discussed the evidence on record and has not even recorded any finding, whatsoever, regarding this allegation. But, however, while granting the decree for divorce, the same have been granted both on the ground of mental cruelty as well as adultery. Without a finding being recorded that the allegation of adultery has been proved, it is unfortunate that the Court below has granted a decree on the ground of adultery also. The Court below, without realising the seriousness of the allegations and the consequences of granting such a decree, has in a causal manner, granted such a decree. The learned Judge before granting such a decree ought to have applied his mind to the consequences of granting such a decree. Keeping in mind and knowing well that it will not be possible to establish the allegation of adultery, Mr. M. Venkatachalapathy, learned Senior Counsel for the Respondent, had at the outset, submitted that the allegation of adultery and the relief sought for on that ground is not being insisted by the Respondent in the Appeal. Therefore, it has to be held that the allegation of adultery made by the Respondent against the Appellant has not been made out and therefore, the decree granted by the Court below on the ground of adultery is set aside. 16. As far as the allegation of mental cruelty is concerned, as rightly submitted by the learned Counsel for the Appellant, the acts alleged against the Appellant, which according to the Respondent, amounts to causing mental cruelty, have not been pleaded with material particulars like the date and month. 16. As far as the allegation of mental cruelty is concerned, as rightly submitted by the learned Counsel for the Appellant, the acts alleged against the Appellant, which according to the Respondent, amounts to causing mental cruelty, have not been pleaded with material particulars like the date and month. No specific acts which amounted to causing mental cruelty have been pleaded with material particulars. Only general allegations have been made against the Appellant by the Respondent in the Petition. In the Petition before the Court below, it has not been stated that due to the Appellant’s higher education and wealth and due to superiority complex what was the nature of the behaviour and what was the activity of the Appellant, which caused mental cruelty to the Respondent. Though it has been alleged in the Petition that the Appellant failed to act as a dutiful wife from the date of marriage till the date she left the matrimonial home, the Petition is silent as to what was the duty that was not performed by her. 17. The other allegation is that the Appellant had not even informed about the conceivement at the time of leaving the matrimonial home and even thereafter, but contrary to that in Ex.R-4, dated 19.01.1998, the Respondent himself has stated as follows: “TAMIL” which itself will show that the Appellant had informed the Respondent through the letter and phone calls several times about her pregnancy. Unless and until the pregnancy is confirmed by the Doctor after the prescribed tests, the Appellant could not be expected to inform the same to the Respondent. According to the Respondent the pregnancy was confirmed only on 29.04.1997 whereas she left the matrimonial home on 21.04.1997 and therefore, there was no occasion for informing the Respondent on 21.04.1997. Therefore, the said allegation of the Respondent is totally false. It is further alleged in the Petition that even during his stay with the Appellant, the Appellant was behaving very cruelty towards him but the details of the acts which amounted to cruelty have not been set out. It is further alleged that the Appellant deserted the Respondent coupled with illicit intimacy. The allegation in the Petition has been reiterated in his sworn affidavit which was treated as his chief-examination. 18. It is further alleged that the Appellant deserted the Respondent coupled with illicit intimacy. The allegation in the Petition has been reiterated in his sworn affidavit which was treated as his chief-examination. 18. In his evidence, P.W.1 has stated that false complaint of demand of dowry was given by the Appellant after filing of the Divorce Petition and the Criminal Court acquitted them and the Revision against acquittal filed by the Appellant has also been dismissed. In his chief-examination itself, he has stated that in October 1997, the Appellant had informed him over phone about her pregnancy. In his cross examination to a question put by the Court to the Respondent, he has stated that he does not know with whom the Appellant is having illicit intimacy and he has further stated that only because before the marriage the Appellant had informed through two to three persons that she was not interested in the marriage, he has alleged that she was having illicit intimacy with some other person. 19. A perusal of the evidence of P.W.2 shows that in his chief-examination he has stated that there was no proper adjustment between the Appellant and the Respondent and on coming to know that the Appellant had not properly co-operated with the Respondent, he made arrangements for them to live in the upstairs portion. Except that, P.W.2 has not stated anything regarding the alleged misbehavior or failure to do her duty as a wife and he has not corroborated the evidence of P.W.1. Thus, it is clear that except the ipsi dixit of P.W.1, there is no corroborative evidence to prove that the Appellant committed the acts which are alleged in the Petition. 20. As pointed out above, only vague allegations have been made in the Petition without the material particulars. Even the acts said to have been committed by the Appellant are only trivial in nature and the same will not amount to mental cruelty. Whereas the false allegation of adultery made against the Appellant by the Respondent in his legal notice, re-joinder, in the Petition and in his evidence would amount to mental cruelty. Therefore, the Respondent cannot take advantage of his own wrong and contend that the Appellant left the matrimonial home without informing anybody. 21. Whereas the false allegation of adultery made against the Appellant by the Respondent in his legal notice, re-joinder, in the Petition and in his evidence would amount to mental cruelty. Therefore, the Respondent cannot take advantage of his own wrong and contend that the Appellant left the matrimonial home without informing anybody. 21. As pointed out above, in the preceding paragraph, the Respondent himself has admitted in his letter written to the Appellant that the pregnancy was informed to him by letters and by over phone calls but yet he has made a false allegation in the Petition as if the pregnancy was not informed to him. It has been falsely alleged in the Petition that even the birth of the child was not informed immediately. Whereas P.W.2 has stated that on being informed about the birth of the child, they went to the hospital to see the child. Thus, the Respondent has made false allegations in the Petition. Thus, it is clear that the vague allegations made in the Petition have not only been proved by acceptable evidence, but the same even assuming to be true also, will not amount to mental cruelty. 22. The Court below has mainly relied upon Ex.P-2 which is the First Information Report in Crime No.37 of 1999 which was the case registered against the brother of the Appellant and others for an offence under Section 294-B of the Indian Penal Code and Ex.P-3- the order in S.T.C.No.608 of 1999 which shows that the brother of the Appellant and others had pleaded of guilty and paid the fine. The Court below has observed as if the brother of the Appellant and others went to the office of the Respondent and misbehaved with him at the instance of the Appellant. A perusal of the Complaint lodged by the Respondent itself shows that no allegations whatsoever have been made against the Appellant by the Respondent and it has not been stated therein that the Appellant instigated her brother and others to either attack or abuse the Respondent and therefore, the said observation of the Family Court is not based on any evidence and it is unwarranted and unjustified. Admittedly the Appellant and the Respondent were living separately and it is natural that as the brother he would have gone with his friends to meet the Respondent to persuade the Respondent to take his sister back to the matrimonial home and at that time some un-parliamentary and filthy words might have been used by them. The charge itself was only under Section 294-B of the IPC. In our considered view when the said incident had not taken place at the instance of the Appellant, the Appellant cannot be found fault with and the Court below ought not to have come to the conclusion that the said incident will amount to causing mental cruelty when the Appellant was not in any way responsible for the incident and the same ought not have been taken as an act amounting to mental cruelty and therefore, the said finding of the Court below has to be set aside and accordingly the same is set-aside. 23. It is seen from Ex.P-6 Judgment in C.C. No.6498 of 1999 rendered by the Chief Metropolitan Magistrate, Egmore, by which the Accused therein, namely, the Respondent and his parents and his sister were acquitted. A reading of Ex.P-6 shows that the learned Magistrate has observed that neither in the Complaint-Ex.P-1 nor in her evidence, the Appellant, who was examined as P.W.1, had made any accusation of dowry harassment or Criminal breach of trust against the Respondent. In fact, in her cross-examination, the Appellant had admitted that there is no Complaint against her husband and there was no misunderstanding between them, but the allegation was only made against her in-laws and sister-in-law. The acquittal was not granted on the ground that the Complaint lodged by the Appellant herein was false, but it was granted on the ground that the prosecution has failed to prove the charges. It is no doubt true that against the acquittal, a Revision was filed before this Court and the same was also dismissed. The Court below, on the basis of the acquittal, has come to the conclusion that the lodging of the false Complaint will amount to the act of causing mental cruelty, but it has to be seen as to whether the Court below is right in coming to such a conclusion. 24. Mr. The Court below, on the basis of the acquittal, has come to the conclusion that the lodging of the false Complaint will amount to the act of causing mental cruelty, but it has to be seen as to whether the Court below is right in coming to such a conclusion. 24. Mr. M. Venkatachalapathy, learned Senior Counsel, for the Respondent, basing reliance on a decision of a Division Bench of the Rajasthan High Court reported in Narendra Kumar Gupta v. Indu, AIR 2002 Raj. 169 , submitted that the lodging of a false Complaint under Section 498-A of the IPC by the wife against the husband has been held to be cruelty. Whereas the learned Counsel for the Appellant has relied upon an un-reported decision of a Division Bench of this Court rendered in a case of Jayakumari v. Balachander, 2010 (3) CTC 785 (DB) (CMA No.386 of 2005, dated 21.04.2010). In the latter said decision, the Division Bench of this Court has, in paragraph 32 to 34, held as follows: “32. Observing that merely because Criminal proceedings under Section 498-A, IPC initiated by wife against her husband and his parents ended in acquittal and it cannot be treated as an instance which goes infavour of the husband to substantiate the plea of cruelty, in Chiranjeevi v. Lavanya, AIR 2006 AP 269 , the Division Bench of Andhra Pradesh High Court held as follows: “22. Much arguments have been advanced by the learned Counsel appearing for the Appellant-husband and his parents in a Criminal case on a full fledged trial is an incident which constitutes cruelty on the part of the Respondent-wife who initiated Criminal proceedings. We have gone through the judgment, which has been marked as Ex.B-6. The Criminal case ended in acquittal on the ground that the prosecution failed to prove the case against the Accused beyond all reasonable doubt. The acquittal of the case is not on the ground of no evidence. It is settled law that nature of evidence required in a Criminal case is of different standards and the same standards and proof is not required in Civil proceedings. Therefore, mere acquittal of the Appellant-husband and his parents in Criminal case cannot be treated as instance which goes in favour of the Appellant-Accused to substantiate the plea of cruelty, on which a decree of divorce has been sought for”. 33. Therefore, mere acquittal of the Appellant-husband and his parents in Criminal case cannot be treated as instance which goes in favour of the Appellant-Accused to substantiate the plea of cruelty, on which a decree of divorce has been sought for”. 33. Similar view was taken in Vishnu Dutt Sharma v. Manju Sharma, AIR 2007 (NOC) 2205 (Del.). 34. The Trial Court took the view that accusations and allegations of dowry harassment amounts to cruelty. In our considered view the approach of the Trial Court is erroneous and cannot be endorsed with. While considering the accusations, regard must be had to the context in which they are made. When there was demand of dowry and ill-treatment, on that account necessarily Respondent has to lodge a Complaint. If that is to be taken as cruelty, it would amount to allowing the Petitioner to take advantage of his own wrong. As per Section 23(a) for granting any relief under the Hindu Marriage Act, the party should not be allowed to take advantage of own wrong.” 25. In this case, as pointed out above, while acquitting the Accused the Criminal Court has not recorded a finding that the Complaint itself was false, but the acquittal was on the ground that the prosecution has failed to prove the accusations. Therefore, the said decision squarely applies to the facts of this case and therefore, the finding of the Court below cannot be sustained and accordingly the same is set aside. 26. In the decision reported in V. Bhagat v. D. Bhagat, AIR 1994 SC 710 : 1994 (1) SCC 337 , the Apex Court, in paragraph 16, has laid down as follows: “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. The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the Petitioner. While arriving at such conclusion, regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made.” 27. In the decision reported in Samar Ghosh v. Jaya Ghosh, 2007 (3) CTC 464 (SC): 2007 (4) SCC 511 , the Apex Court has held that mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day-in-day life would not be adequate for grant of divorce on the ground of mental cruelty. In the same decision, the Apex Court has further held that the married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty. 28. As has been pointed out above, the acts alleged against the Appellant by the Respondent, which according to him amounts to mental cruelty not only have not been stated with material particulars, but the same have not been proved. 28. As has been pointed out above, the acts alleged against the Appellant by the Respondent, which according to him amounts to mental cruelty not only have not been stated with material particulars, but the same have not been proved. Even otherwise assuming the acts have been proved, in our considered view, the same can be only termed as trivial in nature and it is the normal wear and tear of the married life, which happens in day-in-day life and therefore, the same would not be adequate for grant of divorce on the ground of mental cruelty. 29. Mr. M. Venkatachalapathy, learned Senior Counsel for the Respondent submitted that since from 21.04.1997 when the Appellant left the matrimonial home till date they are living separately and there is no possibility of both of them joining together and for all practicable purposes the marriage is dead and therefore, by basing reliance on clause (xiv) of paragraph 101 of the decision reported in Samar Ghosh v. Jaya Ghosh, 2007 (3) CTC 464 (SC): 2007 (4) SCC 511 submitted that long separation itself will amount to mental cruelty. But the said contention cannot be countenanced because the re-union was not made possible in spite of the best efforts taken by the Appellant and her parents because of the false allegations of adultery made against the Appellant. The Appellant had gone to the extent of questioning the paternity of the child and he was suspecting the chastity of the Appellant and therefore the Respondent cannot take advantage of his own wrong and seek divorce on the ground that both of them are living separately. Similarly, the contention of the learned Senior Counsel that since the Respondent has married again pending the Appeal and got a child out of the second marriage cannot also be considered to be a valid ground for confirming the decree of divorce granted by the Court below. 30. The Court below passed the decree on 22.04.2004. On 26.04.2004 the Appellant had applied for the certified copies of the order and decretal order. The same has been made ready on 06.07.2004 and delivered to the Appellant on 09.07.2004 and the Appeal had been filed on 13.07.2004 i.e., even before the expiry of the period of limitation of thirty days and on 26.07.2004 interim stay has been granted by this Court. The same has been made ready on 06.07.2004 and delivered to the Appellant on 09.07.2004 and the Appeal had been filed on 13.07.2004 i.e., even before the expiry of the period of limitation of thirty days and on 26.07.2004 interim stay has been granted by this Court. But even before the expiry of the period of thirty days time prescribed for filing the Appeal, on 26.07.2004 itself the Respondent has got married again. 31. As held in the decision of the Apex Court reported in Suman Kapur v. Sudhir Kapur, 2009 (1) SCC 422 , no precipitate action could have been taken by the husband by creating the situation of fait accompli. In the said decision, against the judgment of the High Court, a SLP was filed before the Supreme Court by the wife. The Apex Court observed that though the filing of the Appeal under Article 136 of the Constitution is not a right of a party and it is a discretion conferred on the Supreme Court to grant leave to the Appellant to file Appeal in appropriate cases, but since the Constitution allows a party to approach the Supreme Court within a period of ninety days from an order passed by the High Court, no precipitate action could have been taken by the Respondent/husband by creating the situation of fait accompli. It was held, as above, taking note of the fact that the husband contended that he had contracted the second marriage after the judgment of the High Court. Since the Respondent had, without waiting for the expiry of the period of limitation prescribed for filing the Appeal before this Court, contracted the second marriage that cannot be taken note off by this Court and on that ground the decree of the Court below cannot be confirmed. Since the decree of divorce granted by the Court below is being set aside by us, the second marriage cannot be construed to be a valid marriage. 32. For the aforesaid reasons, the judgment and decree of the I Additional Principal Family Court, Chennai, dated 22.04.2004, made in O.P. No.154 of 1999 is hereby set aside and the CMA is allowed. However, there will be no order as to costs.