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2018 DIGILAW 1587 (MAD)

K. B. Sukanya v. R. Pradeep

2018-04-28

P.D.AUDIKESAVALU, R.SUBBIAH

body2018
JUDGMENT : R. Subbiah, J. This appeal is filed by the appellant/wife challenging the Decree and Judgment dated 21.12.2012 passed in OP No. 1919 of 2010 on the file of I Additional Family Court, Chennai. By the said Order dated 21.12.2012, the Family Court allowed the Original Petition filed by the respondent under Section 13 (1) (ia) of The Hindu Marriage Act and dissolved the marriage dated 21.01.2009 solemnised between the appellant and the respondent. 2. The Original Petition was filed by the respondent herein contending that he married the appellant on 21.01.2009 and such marriage was solemnised at Thirumal Thirumagal Vasantha Mahal at Padi, Chennai as per Hindu rites and customs. After the marriage, the appellant and the respondent commenced their matrimonial life in the house of the respondent at Anna Nagar, Chennai along with his parents. Due to the wedlock, a female child was born on 27.09.2009. According to the respondent, he commenced the matrimonial journey with the appellant with lot of hopes that the appellant would adequately take care of his future in a befitting manner, however, such an expectation of the respondent could not be fulfilled due to the cruel attitude of the appellant. According to the respondent, soon after the marriage, the appellant had stated that she married him only for his professional status with a view to live a parasitic life and that she has no liking towards him. By such confession of the appellant, the life of the respondent had become miserable. The appellant never realised the responsibility of a family and continued with her wayward life. Even when the appellant was pregnant, she openly uttered that she is not interested in giving birth to a child and this has caused untold mental agony to the respondent. The respondent has further stated that when he went to Shirdi along with the appellant and his parents, the appellant behaved very rudely with his parents and she was uncontrollable. However, the respondent remained a mute spectator because the appellant was pregnant by then. The respondent has also stated that even for a trivial affair, the appellant threatened the respondent that she would lodge a police complaint against him and his parents. However, the respondent remained a mute spectator because the appellant was pregnant by then. The respondent has also stated that even for a trivial affair, the appellant threatened the respondent that she would lodge a police complaint against him and his parents. The appellant also demanded for a separate house leaving the parents of the respondent alone, but it was refused by the respondent due to his other commitments and his desire to look after his age old parents. According to the respondent, there were frequent quarrel between him and the appellant which has made the matrimonial life a misery. The respondent also stated that the appellant was in the habit of leaving the matrimonial company of the respondent and staying for a long time with her parents and this had caused a rift in the matrimonial life. During August 2009, the appellant went to her parents house for delivery of the child and thereafter, she did not return to the matrimonial home inspite of request made by the respondent. On the other hand, the appellant demanded the respondent to come and live with her in her parents house. By virtue of the adamant attitude of the appellant and due to difference of opinion between the spouses, there was an irretrievable breakage of the matrimonial life. The respondent therefore filed the Original Petition for dissolution of the marriage on the ground of cruelty. 3. Repudiating the averments contained in the Original Petition, the appellant has filed a counter statement before the Family Court in which she contended that the entire allegations, based on which the original petition was filed by the respondent, are concocted and without any basis.. The appellant never intended to lead a parasitic life, as contended by the respondent. The appellant discharged her duties as a dutiful Hindu wife and looked after the respondent and his parents well. After the birth of the female child on 27.09.2009, the respondent came to the house of her parents and met the appellant and the minor child twice. Thereafter, the respondent did not turn up and the appellant was waiting to hear from the respondent as she wanted to leave her parents house and return to her matrimonial home, but the respondent neither contacted her nor came to her parents house to take her and the minor child to the matrimonial home. Thereafter, the respondent did not turn up and the appellant was waiting to hear from the respondent as she wanted to leave her parents house and return to her matrimonial home, but the respondent neither contacted her nor came to her parents house to take her and the minor child to the matrimonial home. Therefore, during the first week of June 2010, the appellant went to the matrimonial home to meet the respondent, but the respondent did not even permit the appellant to step inside the house. Rather, the respondent, through the window, served a copy of the Original Petition filed by him before the Family Court and told that he would meet the appellant in the Family Court. The allegation that the appellant behaved rudely and wildly during their trip to Shirdi is an utter falsehood as the appellant never accompanied the respondent and his parents during the visit to Shirdi when she was pregnant. According to the appellant, she never demanded that the respondent had to set up a separate residence, as alleged by the respondent in the Original Petition filed before the Family Court. In fact, the respondent subjected her to matrimonial cruelty and there were occasion when the appellant was physically assaulted by the respondent, but she never disclosed it to any one with an intention to maintain matrimonial decency. In any event, according to the appellant, the averments contained in the Original Petition are bald and vague and they do not constitute 'cruelty' warranting the Family Court to dissolve the marriage between the spouse. The appellant therefore prayed for dismissal of the Original Petition. 4. Before the Family Court, on behalf of the respondent, the respondent examined himself as PW1 and the appellant's brother's wife as PW2 and marked Exs. P1 to P5. On behalf of the appellant, the appellant examined herself as RW1 but no document has been marked. The Family Court, on appreciating the oral and documentary evidence made available, concluded that the appellant and the respondent lived together as a husband and wife only for eight months and during which period, difference of opinion cropped between the spouse. It was further concluded that during the period when the spouses were living together, the respondent was subjected to acute mental cruelty by reason of the appellant's act and deeds. It was further concluded that during the period when the spouses were living together, the respondent was subjected to acute mental cruelty by reason of the appellant's act and deeds. Therefore, the Family Court dissolved the marriage solemnised between the appellant and the respondent by allowing the Original Petition. 5. Pending disposal of the present appeal, the respondent has filed CMP No. 2091 of 2018 in CMA No. 559 of 2013 praying to receive additional documents such as (i) First Information Report registered at the instance of PW2 against the appellant and others (ii) Demand Draft for Rs.10 lakhs deposited before the Family Court by the respondent (iii) complaint given by the appellant before the Protection Officer, Chennai under the provisions of The Protection of Women from Domestic Violation Act and (iv) the report of the Protection Officer. 6. The learned counsel appearing for the appellant would contend that the respondent has filed the Original Petition for dissolution of the marriage on the ground of cruelty. However, in order to substantiate that he was inflicted with matrimonial cruelty, no evidence has been made available. If the Original Petition is read as a whole, it could be seen that the averments contained therein are generic, bald and vague which do not constitute 'cruelty'. The respondent in the Original Petition did not furnish any date or the manner in which the appellant behaved, by which the respondent was subjected to cruelty. Even the respondent, in his deposition as PW1, neither stated the manner in which he was subjected to cruelty at the hands of the appellant nor has given any particular date on which a quarrel had emanated between the spouse. According to the learned counsel for the appellant, there was no specific incident narrated in the Original Petition to make out a case for dissolution of marriage on the ground of cruelty. Even before the Family Court, except Exs. P1 and P2, which are proof of marriage, no other document has been produced to prove that the respondent was subjected to cruelty. The respondent himself admitted that appellant went to her parents house during August 2009 for delivery of the child, but it was merely stated that thereafter the appellant did not return to the matrimonial home. P1 and P2, which are proof of marriage, no other document has been produced to prove that the respondent was subjected to cruelty. The respondent himself admitted that appellant went to her parents house during August 2009 for delivery of the child, but it was merely stated that thereafter the appellant did not return to the matrimonial home. Even though respondent alleged in the Original Petition that appellant was in the habit of deserting him, the fact remains that the appellant and the respondent lived together only for about eight months and in this period, there was no desertion, much less voluntary desertion on the part of appellant. In any event, the respondent has not proved that he had taken any steps to bring the respondent and the minor child back to the matrimonial home and in the absence of such proof, the averment of the appellant that she was not allowed to enter into the matrimonial home has to be accepted. Though the word 'moral delinquency' was used in the Original Petition more than once, the respondent/husband did not substantiate the same with any specific incident that a particular act, deed or behaviour of the appellant amounts to moral delinquency. 7. The learned counsel for the appellant invited the attention of this Court to cross-examination of respondent/PW1 and submitted that a specific question was put to him as to when and how he was subjected to any cruelty or harassment, for which he merely deposed that he does not remember. Similarly, for another question as to when the appellant had abused the respondent in filthy language, as alleged in the original petition, he replied that he had pardoned the appellant for having used filthy language. Therefore, it is evident that the deposition of PW1 before the Family Court is not such that it would make out a case of cruelty, as projected by the respondent in the Original Petition. Similarly, PW2 was examined who is none other than the sister-in-law of the appellant. PW2 deposed that she married the brother of the appellant namely Gunasekearan on 02.07.2010 and after her marriage, she was subjected to physical and mental cruelty by the in-laws, including the appellant herein. Similarly, PW2 was examined who is none other than the sister-in-law of the appellant. PW2 deposed that she married the brother of the appellant namely Gunasekearan on 02.07.2010 and after her marriage, she was subjected to physical and mental cruelty by the in-laws, including the appellant herein. Therefore, PW2 has given a Criminal Complaint based on which a case was registered for the offences punishable under Section 498A and 406 of Indian Penal Code and the in-laws of PW2, including the appellant herein, were arrested and remanded to judicial custody. The complaint given by PW2 against her in-laws and the Order granting bail in favour of the in-laws of PW2 were marked as Exs. P3 to P5 before the Family Court. According to the learned counsel for the appellant, PW2 does not know anything about the matrimonial life between the appellant and the respondent and she was residing far away from the matrimonial home, but, she was examined to depose about the alleged conduct of the appellant towards her. However, the Family Court rendered a finding that the documentary evidence in Exs. P3 to 5 have considerable bearing and understanding on the behavioural pattern of the appellant in inflicting matrimonial cruelty on the respondent. According to the learned counsel for the appellant, PW2, who is the sister-in-law of the appellant, had created all sorts of ruckus in the house of the appellant and had lodged a false complaint against the family members of the appellant. Moreover, PW2 is not a necessary party to be examined in this case and the documents Exs. P3 to P5 marked through PW2 has nothing to do with the matrimonial dispute between the appellant and the respondent. Under such circumstances, the Family Court ought not to have relied on the evidence of PW2 for granting a decree of divorce. In the absence of any documentary evidence forthcoming to show that the respondent was subjected to matrimonial cruelty at the hands of the appellant and therefore the Family Court ought not to have granted a decree of divorce dissolving the marriage solemnised between the appellant and the respondent on the ground of cruelty. In the absence of any documentary evidence forthcoming to show that the respondent was subjected to matrimonial cruelty at the hands of the appellant and therefore the Family Court ought not to have granted a decree of divorce dissolving the marriage solemnised between the appellant and the respondent on the ground of cruelty. One of the incidents cited by the respondent to dissolve the marriage solemnised between the appellant and the respondent is that when the appellant and the respondent went to Shirdi, the appellant behaved very rudely and this had annoyed the respondent and his parents. In this context, the learned counsel for the appellant invited the attention of this Court to the cross-examination of PW1 where he had clearly admitted that the appellant did not accompany them to Shirdi. This would amply prove that the Original Petition has been filed with false averments and on that ground alone, the Original Petition ought to have been dismissed by the Court below instead of allowing the same. Above all, the Family Court on its own, determined the permanent alimony payable to the appellant at Rs.10,00,000/- in the absence of any such petition filed by the appellant. The learned Counsel for the appellant therefore prayed this Court to set aside the Decree and Judgment of the Court below and to allow this appeal. 8. On the contrary, the learned counsel appearing for the respondent/ husband would contend that it is incorrect to state that the respondent did not indicate specific instances in the Original Petition whereby he was subjected to cruelty. It was clearly stated in the Original Petition that the appellant insisted for setting up a separate matrimonial home for their living leaving the parents of the respondent and this had caused rift in the matrimonial home. In this regard, the learned counsel for the respondent invited the attention of this Court to para-4 of the proof affidavit filed by the respondent wherein he has clearly stated that :on every occasion of the quarrel between me and the respondent, the respondent's first demand would be for a separate matrimonial home for her, but to my other commitments and to look after the old age parents, I am not in a position to set up a separate matrimonial home as demanded by the respondent herein”. The respondent was the only son for his parents and unmindful of the same, the appellant continuously nagged and harassed the respondent for setting up a separate home for their stay leaving his parents alone. Therefore, according to the learned counsel for the respondent, the respondent had clearly narrated the instances which led to a disagreement among the couples and therefore it cannot be said that the averments contained in the Original Petition are bald and vague. Further, even after the birth of the child, the appellant did not return to the matrimonial home as the respondent did not fulfil her demand for setting up a separate matrimonial home. Thus, repeated and constant nagging by the appellant to set up a separate residence for their living, leaving the age old parents of the respondent, is nothing short of cruelty. According to the learned counsel for the respondent, even though the appellant merely stated that she was ready and willing to join the matrimonial company of the respondent, for the reasons best known, she has not chosen to file any petition for restitution of conjugal rights. In this context, the learned counsel for the respondent relied on the decision of the Honourable Supreme Court in the case of (Narendra vs. K. Meena) (Civil Appeal No. 3253 of 2008 dated 06.10.2016 wherein it was held by the Honourable Supreme Court that the demand made by the wife/ respondent to the appellant/husband to set up a separate home for their living, leaving his parents is unjustifiable and it amounts to cruelty. 9. The learned counsel for the respondent would further contend that it is incorrect to state that PW2, who is the sister-in-law of the appellant, has been examined on the side of the respondent without any necessity. On perusal of the deposition of PW2 as a whole would indicate that she had clearly brought out the character and attitude of the appellant. The deposition of PW2 has considerable significance in evaluating the kind of personality of the appellant and her attitude and it is also fortified by Exs. P3 to P5, particularly, Ex.P3, First Information Report registered against the appellant and others on the basis of complaint given by PW2 and therefore, it cannot be said that the deposition of PW2 or the documentary evidence marked through her under Exs. P3 to P5 are unnecessary. P3 to P5, particularly, Ex.P3, First Information Report registered against the appellant and others on the basis of complaint given by PW2 and therefore, it cannot be said that the deposition of PW2 or the documentary evidence marked through her under Exs. P3 to P5 are unnecessary. Even though the appellant expressed her desire to live with the respondent, such an offer made by the appellant is only to earn sympathy of this Court and the appellant has no such intention for a re-union with the respondent. Even though the appellant is employed and earning substantially, she has filed a Petition for interim maintenance and the Court below also awarded a sum of Rs.20,000/- per month to be paid to the appellant and the minor child. The appellant and the respondent are residing separately for a period of 8 years. Such a long and continuous separation of the couple had resulted in irretrievable breakage of the matrimonial life beyond repair and therefore, the learned counsel for the respondent would justify the order passed by the Court below. 10. The learned counsel for the respondent brought to the notice that admittedly, the appellant left the matrimonial home during August 2009 and thereafter, she did not return to the matrimonial home. The appellant has also invoked the provisions contained under The Protection of Women from Domestic Violence Act and given a complaint to the Protection Officer. The report of the Protection Officer was taken on file in C.C. No. 212 of 2016 on the file of the Additional Metropolitan Magistrate, Egmore, Chennai. Pending the C.C. No. 212 of 2016, the appellant has filed Crl.MP No. 528 of 2018 under Section 20 of the said Act to direct the respondent to pay a sum of Rs.50,000/- towards monthly maintenance for the appellant, Rs.25,000/- per month to the minor child and a sum of Rs.1 lakh towards educational expenses per year to the minor child. In the said Criminal Case, the respondent, his parents, his maternal aunt and uncle have been implicated as parties. This would clearly indicate that the appellant, with a malafide intention, filed the Criminal case only to harass the respondent and his parents. The learned counsel for the respondent also brought to the notice of this Court the case in Crime No. 2 of 2011, which was registered on the basis of the complaint given by PW2. This would clearly indicate that the appellant, with a malafide intention, filed the Criminal case only to harass the respondent and his parents. The learned counsel for the respondent also brought to the notice of this Court the case in Crime No. 2 of 2011, which was registered on the basis of the complaint given by PW2. In the said complaint, the appellant was arrayed as an accused and a reading of the said complaint would speak volumes about the conduct, attitude and behavioural pattern of the appellant. In any event, the appellant and the respondent are residing separately for the past eight years and the matrimonial life has irretrievably broken beyond repair. There is no scope for reunion and taking note of the above factors, the Family Court has come to a just and proper conclusion to dissolve the marriage solemnised between the appellant and the respondent. The learned counsel for the respondent therefore prayed for dismissal of this appeal. 11. By way of reply, the learned counsel for the appellant would contend that even as admitted by the respondent, the appellant left the matrimonial home only for delivery of the child. Thereafter, the appellant has taken several steps for a reunion but she was not permitted to join the respondent. The appellant is ready and willing to join the respondent in the matrimonial home. Due to the wedlock between the appellant and the respondent, a female child was born and she is now 8 years old. Therefore, atleast in the interest and future of the minor female child, the reunion of the appellant and the respondent is absolutely necessary. The learned counsel for the appellant therefore prayed for setting aside the order passed by the Family Court. 12. We have heard the learned counsel for both sides and perused the materials placed on record. The marriage between the appellant and the respondent was solemnised on 21.01.2009 and due to the wedlock, a female child was born on 27.09.2009. According to the respondent, the appellant left the matrimonial home for delivery during August 2009 and thereafter she did not return to the matrimonial home. The appellant continuously nagged and harassed the respondent to set up a separate home and to stay with her by leaving his age old parents in the matrimonial home and thereby the respondent was subjected to acute mental cruelty and harassment. The appellant continuously nagged and harassed the respondent to set up a separate home and to stay with her by leaving his age old parents in the matrimonial home and thereby the respondent was subjected to acute mental cruelty and harassment. However, the appellant denied having demanded the respondent to set up a separate house for their stay. It is also stated that the appellant was always ready and willing to come back to the matrimonial home but she was not permitted by the respondent. 13. It is the specific contention of the appellant that the respondent has not narrated a single instance to show that he was subjected to matrimonial cruelty at the instance of the respondent. Further, the appellant and the respondent resided in the matrimonial home only for a period of eight months. Soon after the marriage, the appellant became pregnant and she could concentrate more on her health as well as the child in the womb and therefore, the question of harassing or humiliating the respondent during the short stay in the matrimonial home does not arise. In any event, the respondent has not come out with facts and figures as to when, where and how he was subjected to any harassment or cruelty. The averments based on which the original petition was filed are vague, bald and they do not constitute 'cruelty' as alleged by the respondent and on that ground the Family Court ought not to have dissolved the marriage solemnised between the appellant and the respondent. 14. Pending the present appeal, the respondent has filed CMP No. 2091 of 2018 for reception of additional documents. These documents are certified copies of the first information report registered against the appellant at the instance of PW2, the complaint given by the appellant before the Protection Officer against the respondent and the report of the Protection Officer. On perusal of these documents, it is clear that the documents which are sought to be marked by the respondent have emanated subsequent to the filing of the Original Petition and these documents were not marked before the Family Court, for the reasons best known. However, out of the four documents, which are sought to be marked, the first information report in Crime No. 2 of 2011 dated 26.02.2011 was already marked before the Family Court as Ex.P3. However, out of the four documents, which are sought to be marked, the first information report in Crime No. 2 of 2011 dated 26.02.2011 was already marked before the Family Court as Ex.P3. The other three documents namely the demand draft dated 18.03.2013 drawn by the respondent, the complaint lodged by the appellant under The Protection of Women from Domestic Violence Act and the report dated 26.09.2016 given by the Protection Officer are, in our opinion, unnecessary for the purpose of adjudicating the matrimonial dispute between the appellant and the respondent. Therefore, CMP No. 2091 of 2018 deserves only to be dismissed. Accordingly CMP No. 2091 of 2018 is dismissed. 15. On perusal of the entire evidence, we find that the main grievance of the respondent is that the appellant had subjected him to matrimonial cruelty by demanding him to set up a separate residence for their living. The respondent has specifically alleged that the appellant demanded him to set up a separate home for their stay by leaving his parents alone in the matrimonial home. This is said to be the main cause or reason for the simmering matrimonial differences between the appellant and the respondent. According to the respondent, the appellant persisted and nagged him to set up a separate home for their stay and thereby he was subjected to acute mental cruelty. On careful perusal of the counter affidavit, in para-4, the appellant has categorically stated as follows:- “....After the birth of the child, the respondent and the petitioner at the instance of the elders, met in a relatives' house at Anna Nagar and the elders at the said meeting advised the petitioner to change his attitude towards the respondent and the child and to set up a separate residence for the respondent and live with the respondent, totally free from the hostile influence of his parents. The petitioner promised the respondent that he would set up a separate residence shortly, but he was evading the issue on one pretext or the other. Finally, the petitioner told the respondent to come to his house during the first week of June 2010 so that he would tell the address of the new house for their living. Under the fond hope of living in a separate residence with the petitioner, the respondent accordingly went to the petitioner's house during the first week of June 2010. Finally, the petitioner told the respondent to come to his house during the first week of June 2010 so that he would tell the address of the new house for their living. Under the fond hope of living in a separate residence with the petitioner, the respondent accordingly went to the petitioner's house during the first week of June 2010. When the respondent rang the calling bell of the petitioner's house, the petitioner did not even open the door and allow the respondent to get into the house. Then the petitioner opened a window and gave her a copy of the divorce petition, telling the respondent mockingly that he would meet her in the family court for getting divorce from her.....” 16. A cumulative reading of the above passage in the counter affidavit would indicate that there was a demand for setting up a separate residence for the appellant and the respondent to live. According to the respondent, he is the only son born to his parents and at their advancing age, he cannot leave them alone and stay with the appellant. This demand to set up a separate residence, according to the respondent, has caused a rift in the matrimonial life of the appellant and the respondent and thereby the respondent was subjected to matrimonial cruelty. In the cross-examination of the appellant, she has deposed as follows:- xxxxxxx 17. Therefore, it is evident that even during the mediation in the presence of the elders in the family, the petitioner never stated that she will live with the respondent and his parents in the matrimonial home. Rather, she intended to reside separately with the respondent. This averment of the appellant is very significant in the absence of any allegation as against her in-laws. On perusal of the entire evidence made available, we find that the appellant has no grievance or has she made any allegation as against the parents of the respondent. Therefore, the averment made by the appellant that she was subjected to matrimonial cruelty by the respondent and nagged and harassed cannot be sustained. This is more so that the respondent is the only son born to his parents and he had a moral obligation to take care of his parents at their advancing age and he cannot leave them and stay with the appellant. This is more so that the respondent is the only son born to his parents and he had a moral obligation to take care of his parents at their advancing age and he cannot leave them and stay with the appellant. This demand to set up a separate residence, according to the respondent, has caused a rift in the matrimonial life of the appellant and the respondent. In this context, useful reference can be made to the decision relied on by the learned counsel for the respondent in the case of (Narendra vs. K. Meena) (Civil Appeal No. 3253 of 2008 dated 06.10.2016 wherein it was held by the Honourable Supreme Court in para-11 as follows:- “11. The respondent wife wanted the appellant to get separated from his family. The evidence shows that the family was virtually maintained from the income of the appellant husband. It is not a common practice or desirable culture for a Hindu son in India to get separated from the parents upon getting married at the instance of the wife, especially, when the son is the only earning member in the family. A son brought up and given education by his parents, has a moral and legal obligation to take care and maintain the parents, when they become old and when they have either no income or have a meagre income. In India, generally, people do not subscribed to the western thought, where, upon getting married or attaining majority, the son gets separated from the family. In normal circumstances, a wife is expected to be with the family of the husband after the marriage. She becomes integral to and forms part of the family of the husband and normally without any justifiable strong reason, she would never insist that her husband should get separated from the family and live only with her. In the instant case, upon appreciation of the evidence, the trial court came to the conclusion that merely for monetary considerations, the Respondent wife wanted to get her husband separated from his family. The averment of the respondent was to the effect that the income of the appellant was also spent for maintaining his family. The said grievance of the respondent is absolutely unjustified. A son maintaining his parents is absolutely normal in Indian culture and ethos. The averment of the respondent was to the effect that the income of the appellant was also spent for maintaining his family. The said grievance of the respondent is absolutely unjustified. A son maintaining his parents is absolutely normal in Indian culture and ethos. There is no other reason for which the respondent wanted the appellant to be separated from the family - the sole reason was to enjoy the income of the appellant. Unfortunately the High Court considered this to be a justifiable reason. In the opinion of the High Court, the wife had a legitimate expectation to see that the income of her husband is used for her and not for the family members of the respondent husband. We do not see any reason to justify the said view of the High Court. As stated hereinabove, in a Hindu society, it is a pious obligation of the son to maintain the parents. If a wife makes an attempt to deviate from the normal practice and normal custom of the society, she must have some justifiable reason for that and in this case, we do not find any justifiable reason, except monetary consideration of the respondent wife. In our opinion, normally, no husband would tolerate this and no son would like to be separated from his old parents and other family members, who are also dependant upon his income. The persistent effort of the respondent wife to constrain the appellant to be separated from the family would be torturous for the husband and in our opinion, the trial Court was right when it came to the conclusion that this constitutes an act of cruelty.” 18. Applying the above ratio laid down by the Honourable Supreme Court in the above case, we find that the demand made by the appellant in this case to set up a separate house for their living, leaving the parents of the respondent, is unjustifiable and thereby the respondent was subjected to matrimonial cruelty. 19. Above all, we find that the appellant and the respondent are residing separately for more than 8 years. Even though the appellant expressed her intention to join the respondent in the matrimonial home, we find that she has not taken any steps in that direction. The appellant has not filed a Petition under Section 9 of The Hindu Marriage Act for restitution of conjugal rights. Even though the appellant expressed her intention to join the respondent in the matrimonial home, we find that she has not taken any steps in that direction. The appellant has not filed a Petition under Section 9 of The Hindu Marriage Act for restitution of conjugal rights. If the appellant is really interested in joining the respondent in the matrimonial home, she ought to have filed such a petition. Thus, we are of the view that there is a irretrievable breakage of matrimonial life between the appellant and the respondent. The Family Court, on appreciation of the above factors, has rightly allowed the Original Petition filed by the respondent and dissolved the marriage solemnised between the appellant and the respondent. Therefore, we do not find any reason to interfere with the conclusion arrived at by the Family Court. 20. In the result, the Civil Miscellaneous Appeal is dismissed confirming the Judgment and Decree dated 21.12.2012 made in O.P. No. 1919 of 2010 on the file of I Additional Family Court, Chennai. No costs. Consequently, connected miscellaneous petitions are closed.