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2018 DIGILAW 2924 (MAD)

Sivasankaran v. Santhimeenal

2018-09-14

M.V.MURALIDARAN

body2018
JUDGMENT : These Civil Miscellaneous Second Appeals have been filed by the appellant under Section 28 of the Hindu Marriage Act, 1955 read with Section 100 of Code of Civil Procedure, 1908 against the common judgment dated 18.4.2013 in C.M.A. Nos. 5 and 7 of 2011 on the file of the Additional District Judge, Pudukottai, reversing the common order dated 17.3.2008 passed in H.M.O.P. Nos. 10 of 2005 and 33 of 2002 on the file of the Sub-Judge, Pudukottai. 2. The appellant herein is the husband and he had filed H.M.O.P.No.10 of 2005 under Section 13(1)(i-a) of the Hindu Marriage Act, 1955 for divorce. The respondent herein is the wife and she had filed H.M.O.P. No. 33 of 2002 under Section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights before the Sub-Court, Pudukottai. 3. It is an admitted fact that the marriage between the appellant and the respondent was solemnized on 17.2.2002 in V.V. Kalyana Mahal at Chinnalapatti as per Hindu rites and customs. They do not have any issue from the wedlock. 4. The case of the appellant is that immediately after tying Thali, the respondent suddenly went to the room, which was allotted to her in the Kalyanayamandapam, without any reason and when the parents of the respondent went to the said room, she quarrelled. On seeing this, immediately, the appellant and his relatives also went to the room of the respondent and asked about the said quarrel. The respondent replied that only due to coercion by her parents, she married the appellant and she is not willing for the marriage with the appellant. After that the respondent left the said room and went to Pudukottai at late night on 17.2.2002 all alone. Due to the said activities of the respondent and her parents, the petitioner was put to not only mental cruelty but also irreparable hardship and injury. 5. According to the appellant, on 18.2.2002, he and his relatives went to Pudukottai and called upon the respondent to come and live with the appellant, for which the respondent did not agree. On 25.2.2002, the appellant sent a notice to the respondent. On 11.3.2002, the respondent sent a reply to the notice issued by the appellant. In the meanwhile, on 28.2.2002, the appellant lodged a complaint before the All Women Police Station, Dindigul. On 25.2.2002, the appellant sent a notice to the respondent. On 11.3.2002, the respondent sent a reply to the notice issued by the appellant. In the meanwhile, on 28.2.2002, the appellant lodged a complaint before the All Women Police Station, Dindigul. In the enquiry, the respondent told that she is not willing to live with the appellant. In the police station, the respondent and her parents demanded Rs.1.00 lakh from the appellant for dissolution of the marriage and the appellant refused to do so. Thereafter, the respondent lodged a false complaint before the All Women Police Station, Pudukottai, where the police officials advised the respondent to live with the appellant, but the respondent refused. Thereafter, the appellant issued another legal notice on 21.10.2002 seeking for divorce. Despite receipt of the notice, the respondent did not reply. However, the respondent filed H.M.O.P. No. 33 of 2002 for restitution of conjugal rights. Hence, the appellant had filed petition under Section 13(1)(i-a) of the Hindu Marriage, Act 1955, hereinafter referred to as “the said Act” for divorce. 6. The respondent filed counter denying all the averments set out in the petition filed by the appellant, except the averment as to the solemnization of the marriage on 17.2.2002 between them as per the Hindu rites and customs. According to the respondent, when she was always been ready and willing to resume marital life with the appellant, he wilfully neglected and deserted the respondent by wilful denial of conjugal rights. There was no occasion for the police to advise the respondent to live with the appellant. It is stated that the appellant and his brother had been motivated to abandon permanently the respondent by means of police threat and harassment also. 7. According to the respondent, there was no cruelty and the cruelty and mental agony alleged by the appellant was invented for the purpose of filing the petition. All the attempts to bring the appellant back had been thwarted by him and his men. There is no ground much less a valid and acceptable ground to grant divorce. In fact, the appellant, his brother and his men not only threatened the respondent, but also harassed and disgraced her. By any means, they had been motivated to get rid of the respondent. Either under law or under equity, the appellant shall not be allowed to take advantage by his wrongs and misdeeds. In fact, the appellant, his brother and his men not only threatened the respondent, but also harassed and disgraced her. By any means, they had been motivated to get rid of the respondent. Either under law or under equity, the appellant shall not be allowed to take advantage by his wrongs and misdeeds. As counter claim to the petition filed by the respondent for restitution of conjugal rights, the appellant has filed the petition for divorce and prayed for dismissal of the petition. 8. Before filing the petition for divorce by the appellant, the respondent filed H.M.O.P. No. 33 of 2002 for restitution of conjugal rights alleging that the appellant had been wilfully and unlawfully denying the matrimonial society and companionship with the respondent. He had also been wilfully denying her conjugal right and society. It is also alleged that all their attempts to resume the conjugal union had been thwarted by the appellant and his brother and the respondent is willing to live with the appellant. Hence, she filed the petition under Section 9 of the said Act. 9. Resisting H.M.O.P. No. 33 of 2002, the appellant filed counter denying all the averments stated in the petition. 10. Before the trial Court, by consent, both the petitions (H.M.O.P. Nos. 10 of 2005 and 33 of 2002) were taken up together and the evidence was recorded in H.M.O.P. No. 10 of 2005 filed by the appellant. On the side of the appellant, four witnesses were examined and Exs.P1 to P9 were marked. The respondent examined herself as R.W.1 and Exs.R1 to R7 were marked. 11. Upon consideration of the oral and documentary evidence, the trial Court allowed the petition filed by the appellant for divorce and dismissed the petition filed by the respondent for restitution of conjugal rights. Aggrieved by the same, the respondent filed C.M.A. Nos. 5 and 7 of 2011 before the Additional District Court, Pudukottai. By a common judgment dated 18.4.2013, both the appeals were allowed by the first appellate Court. Being aggrieved, the appellant has filed these Civil Miscellaneous Second Appeals. 12. Aggrieved by the same, the respondent filed C.M.A. Nos. 5 and 7 of 2011 before the Additional District Court, Pudukottai. By a common judgment dated 18.4.2013, both the appeals were allowed by the first appellate Court. Being aggrieved, the appellant has filed these Civil Miscellaneous Second Appeals. 12. C.M.S.A.(MD) No.42 of 2013 was admitted on the following substantial questions of law by my predecessor and the same are extracted as such: (a) Have not the learned Additional District Judge committed the error in reversing the judgment and decree of the Trial Court on the ground that the appellant had not filed the petition under Section 11 and 12 of Hindu Marriage Act, 1955? (b) Whether the Additional District Judge is right in holding that mere quoting wrong provision in the divorce petition is a ground for dismissing? (c) Whether the Additional District Judge is right in dismissing the petition disbelieving the evidence of PW-2 and PW-3? (d) Whether the Additional District Judge is right in ignoring the independent witnesses of PW-3? (e) Whether the Additional District Judge is right in failing to draw adverse inference against the respondent under Section 114(g) of Indian Evidence Act? (f) Whether the lower appellate court is right in holding that mere denial is enough to repudiate the plea of the appellant, when the respondent has failed to prove through evidence? (g) Whether the Additional District Judge is right in holding that the appellant is a guilty party in violation of Section 15 of the Hindu Marriage Act, 1955, when the respondent has failed to prefer the appeal in time? 13. C.M.S.A.(MD) No.43 of 2013 was admitted on the following substantial questions of law by my predecessor and the same are extracted as such – (a) Have not the learned Additional District Judge committed the error in reversing the judgment and decree of the Trial Court and granting decree in favour of the appellant under Section 9 of the Hindu Marriage Act 1955? (b) Whether the Additional District Judge is right in allowing the petitioner under Section 9 of the Hindu Marriage Act 1955 disbelieving the evidence of PW-2 and PW-3? (c) Whether the Additional District Judge is right in holding that the appellant is a guilty party in violation of section 15 of Hindu Marriage Act 1955, when the respondent has failed to prefer the appeal in time? (c) Whether the Additional District Judge is right in holding that the appellant is a guilty party in violation of section 15 of Hindu Marriage Act 1955, when the respondent has failed to prefer the appeal in time? (d) Whether the Additional District Judge is right in ignoring the independent testimony of PW-3? (e) Whether the Additional District Judge is right in ignoring to draw adverse inference against the respondent under Section 114(g) of Indian Evidence Act? (f) Whether the lower appellate court is right in holding that mere denial is enough to repudiate the plea of the appellant, when the respondent has failed to prove through evidence? (g) Whether the lower appellate court is right in not given finding regarding the satisfaction of the truth statement made in the petition under Section 9 of Hindu Marriage Act 1955? 14. I heard Mr. AR.L. Sundaresan, learned Senior Counsel for Mr. A.N. Ramanathan, learned counsel for the petitioner and Mr. N. Balakrishnan, learned counsel for the respondent in both the appeals and perused the entire materials available on record. 15. The learned Senior Counsel for the appellant submitted that the first appellate Court failed to see that the respondent had consented for the marriage only due to the compulsion and coercion of her parents. The first appellate Court has ignored the ocular witness of PW-2 wherein he had deposed that the respondent voluntarily deserted the appellant without any cause and the respondent was not interested to continue the matrimonial life with the appellant. The learned Senior Counsel further submitted that the first appellate Court failed to see that PW-3 was an independent witness, who had deposed the mental cruelty caused by the respondent and that it had failed to see that the appellant had filed the petition for divorce on the ground of mental cruelty also. He would submit that the appellant had proved the mental cruelty by way of lodging of false complaint by the respondent. 16. The learned Senior Counsel then submitted that the first appellate Court failed to see that the cruelty as per Section 13(1)(i-a) of the said Act to be considered as a behaviour of the respondent which cause genuine/reasonable apprehension in the mind of the appellant that it is not quite safe to continue the relationship of marriage with the respondent. There was no consummation of marriage. 17. There was no consummation of marriage. 17. The learned Senior Counsel then submitted that the appellant and the respondent have been living separately for more than 16 years and it will not be possible for the parties to live together and also there is no purpose in compelling parties to live together in the matrimony. Thus, he would submit that the first appellate Court erred in allowing the appeals filed by the respondent and prayed for setting aside the judgment of the first appellate Court. To fortify his submissions, the learned Senior Counsel cited the following decisions:- (i) Rishikesh Sharma v. Saroj Sharma, reported in (2007) 2 SCC 263 ; (ii) Samar Ghosh v. Jaya Ghosh, reported in (2007) 4 SCC 511 ; (iii) Sukhendu Das v. Rita Mukherjee, reported in (2017) 9 SCC 632 . 18. Per contra, the learned counsel for the respondent submitted that the relatives of the appellant expected dowry in the form of cash and motorbike and further since seervarisai articles were not kept in the marriage hall, they aggrieved and behaved in an unpalatable manner and separated the appellant from the respondent. He would submit that the reason for leaving the matrimonial home by the respondent was, on the date of marriage, when both the appellant and the respondent were in the matrimonial home, at about 11.30 p.m. the brother of the appellant and his men numbering 15 members came there and pulled the appellant from the room and separated the respondent. 19. The learned counsel further submitted that according to the appellant there was no consummation of marriage. In Ex.R3-notice, it has been stated by the appellant that the marriage ceremony was not performed and therefore, the marriage is void. If the same is to be taken as true that there was no consummation of marriage, then the appellant ought to have filed petition under Section 11 and 12 of the said Act and he ought not to have filed petition for divorce under Section 13(1)(i-a) of the said Act, which would reveal that there was consummation of marriage. 20. The learned counsel would submit that the appellant has not taken interest in living with the respondent. 20. The learned counsel would submit that the appellant has not taken interest in living with the respondent. In fact, in his cross-examination, the appellant himself admitted that two days after the marriage, he tried for living with the respondent and on the third day, he decided for divorce, which would clearly show that the appellant has not shown sincere interest in living with the respondent. The learned counsel next contended that the first appellate Court, after appreciating the oral and documentary evidence, rightly set aside the order of the trial Court and dismissed the petition filed by the appellant for divorce by observing that the appellant has failed to establish the ground for which he asked for divorce. Further, the first appellate Court has rightly allowed the petition filed by the respondent for restitution of conjugal rights. Therefore, there is no necessity to interfere with the judgment of the first appellate Court and prayed for dismissal of both the appeals. In support of his submissions, the learned counsel relied upon the following decisions: (i) Vishnu Dutt Sharma v. Manju Sharma, reported in (2009) 6 SCC 379 ; (ii) Veerasamy v. Jayanthi @ Jayalakshmi, reported in 2018(2) MWN (Civil) 357; (iii) Savitri Pandey v. Porem Chandra Pandey, reported in (2002) 2 SCC 73 ; (iv) Prakash Chand Sharma v. Vimlesh, reported in 1995 Supp (4) SCC 642; (v) Tejinder Kaur v. Gurmit Singh, reported in AIR 1988 SC 839 . 21. According to the appellant, the unruly conduct and behaviour of the respondent in the marriage hall on the date of marriage and the quarrel caused mental cruelty to him and that there were sufficient ground to believe that the respondent indulged in unruly. When the appellant and his relatives enquired the respondent in the marriage hall itself, she told that she was not willing for the marriage and only on the compulsion of her parents, she agreed for the marriage. Thereafter, she left for Pudukottai lonely. 22. So far as the alleged cruelty said to have been attributed by the appellant at the marriage hall is concerned, the respondent contended that post marital formalities, in the marriage hall itself, the appellant and his brother demanded Hero Honda motorcycle and Rs.1.00 lakh cash. Thereafter, she left for Pudukottai lonely. 22. So far as the alleged cruelty said to have been attributed by the appellant at the marriage hall is concerned, the respondent contended that post marital formalities, in the marriage hall itself, the appellant and his brother demanded Hero Honda motorcycle and Rs.1.00 lakh cash. Since the respondent and her parents could not concede such demand, the appellant and his brother quarrelled with them and with pained heart and tears in their eyes, the parents of the respondent left the marriage hall for Pudukottai. After taking all formalities in the marriage hall, the respondent's brother had taken the appellant and the respondent to Pudukottai and after completion of formalities at the respondent's parental home, the appellant, as desired by him, had taken the respondent to the house at Alangulam Housing Unit in Pudukottai town. According to the respondent, on 17.2.2002, at about 11.30 P.M., when both the respondent and the appellant were in the room, the brother of the appellant and his men knocked the door and pulled the appellant from the room and separated the respondent and left the said place in a motorcycle. In such situation, the respondent left the house at night hours to her parental home. 23. In the case on hand qua dowry demanded by the appellant and his brother, except the oral testimony of the respondent, no other witness was examined to prove the same. In her counter, the respondent stated that aggrieved by the refusal to meet the demand for dowry, the appellant's brother and his wife with their gangsters stormed the house (i.e. house bearing No.B12/2) in the midnight at 11.30 P.M. On 17.2.2002. When the appellant opened the door, his brother slapped and pulled him down and separated the respondent and left the said place in the motor vehicle. In a shocked and sorrow state, the respondent had been taken to her parental home. Since then she was under their care and protection, which shows that on her own, the respondent left the house at midnight on 17.2.2002. 24. In his evidence, the appellant deposed that he and his family members requested the respondent for reunion and the respondent refused for reunion and stated that if compelled for reunion, she will commit suicide. Since then she was under their care and protection, which shows that on her own, the respondent left the house at midnight on 17.2.2002. 24. In his evidence, the appellant deposed that he and his family members requested the respondent for reunion and the respondent refused for reunion and stated that if compelled for reunion, she will commit suicide. In his evidence, P.W.2-Periyannan who attended the marriage stated that immediately after the marriage, the parents of the respondent left the marriage hall leaving the respondent. When enquired, the respondent informed that under the compulsion, she agreed for the marriage and she wants to go to Pudukottai and accordingly, she left for Pudukottai. 25. The learned counsel for the respondent vehemently contended that the appellant has been wilfully and unlawfully denying the matrimonial society and companionship with the respondent. The appellant had also wilfully denying respondent's conjugal right and society and the respondent is interested to resume conjugal union. Hence, she filed the petition for restitution of conjugal rights. 26. On the other hand, the learned Senior Counsel for the appellant submitted that after tying thali, the respondent said that she is not interested in the marriage and only on the pressure of her parents, she agreed for the marriage with the appellant. When that being so, how she could resume the conjugal union and it only shows the ill-motive with which she had filed the petition for restitution of conjugal rights. There is no bona fide in the petition filed by the respondent under Section 9 of the said Act and therefore, the trial Court was right in dismissing her petition. The learned Senior Counsel would submit that on the ground of long separation and of irretrievable breakdown of marriage, the appellant is entitled to get divorce. 27. In the decision cited by the learned Senior Counsel for the appellant in Sukhendu Das v. Rita Mukherjee, supra, the Hon'ble Supreme Court held as under:- “This Court, in a series of judgments, has exercised its inherent powers under Article 142 of the Constitution for dissolution of a marriage where the Court finds that the marriage is totally unworkable, emotionally dead, beyond salvage and has broken down irretrievably, even if the facts of the case do not provide a ground in law on which the divorce could be granted (Manish Goel v. Rahini Goel, (2010) 4 SCC 393 ). Admittedly, the appellant and the respondent have been living separately for more than 17 years and it will not be possible for the parties to live together and there is no purpose in compelling the parties to live together in matrimony (Rishikesh Sharma v. Saroj Sharma, (2007) 2 SCC 263 ). The daughter of the appellant and the respondent is aged about 24 years and her custody is not in issue before us. In the peculiar facts of this case and in order to do complete justice between the parties, we allow the appeal in exercise of our power under Article 142 of the Constitution.” 28. In Rishikesh Sharma v. Saroj Sharma, supra, the Hon'ble Supreme Court held:- “4. ... In the instant case the marriage is irretrievably broken down with no possibility of the parties living together again. Both the parties have crossed 49 years and living separately and working independently since 1981. There being a history of litigation with the respondent wife repeatedly filing criminal cases against the appellant which could not be substantiated as found by the courts. This apart, only child born in the wedlock in 1975 has already been given in marriage. Under such circumstances, the High Court was not justified in refusing to exercise its jurisdiction in favour of the appellant. This apart, the wife also has made certain allegations against he husband, that the husband had already remarried and is living with another lady as stated by her in the written statement. The High Court also has not considered the allegations made by the respondent which have been repeatedly made and repeatedly found baseless by the courts. 5. In our opinion it will not be possible for the parties to live together and therefore, there is no purpose in compelling both the parties to live together. Therefore, the best course in our opinion is to dissolve the marriage by passing a decree of divorce so that the parties who are litigating since 1981 and have lost valuable part of life can live peacefully for remaining part of their life. 6. During the last hearing both the husband and wife were present in the Court. The husband was ready and willing to pay a lump sum amount by way of permanent alimony to the wife. 6. During the last hearing both the husband and wife were present in the Court. The husband was ready and willing to pay a lump sum amount by way of permanent alimony to the wife. The wife was not willing to accept the lump sum amount but however expressed her willingness to live with her husband. We are of the opinion that he desire to live with her husband at this stage and at this distance of time is not genuine. Therefore, we are not accepting this suggestion made by the wife and reject the same.” 29. To counter, the arguments of the learned Senior Counsel, the learned counsel for the respondent submitted that it is only the Hon'ble Apex Court, which in exercise of its extraordinary powers under Article 142 of the Constitution of India, can pass such orders to do complete justice to the parties and relied upon the decision of the learned Single Judge of this Court in Veerasamy v. Jayanthi @ Jayalakshmi, supra, wherein, this Court held as under:- “16. ..... Though there is no provision under the Hindu Marriage Act, 1955 for granting Divorce on the ground that the marriage had broken down irretrievably, under Article 142 of the Constitution of India, the Hon'ble Supreme Court of India can grant a Decree for Divorce on the said ground. It is only the Apex Court, which in the exercise of its Extraordinary powers under Article 142 of the Constitution of India, can pass such orders to do complete justice to the parties. The said power is not vested with any other Court in the country. The direction issued by the Apex Court under Article 142, while moulding the relief depending on the particular facts and circumstances of a case. It has not comprised the ratio decidendi and therefore, cannot be perceived to be a binding precedent. Therefore, the Judgment relied upon by the learned Counsel for the Appellant is not applicable to the present case.” 30. In Savitri Pandey v. Prem Chandra Pandey, supra, cited by the learned counsel for the respondent, it has been held as under:- “17. The marriage between the parties cannot be dissolved only on the averments made by one of the parties that as the marriage between them has broken down, no useful purpose would be served to keep it alive. ...... The marriage between the parties cannot be dissolved only on the averments made by one of the parties that as the marriage between them has broken down, no useful purpose would be served to keep it alive. ...... The sanctity of marriage cannot be left at the whims of one of the annoying spouses. This Court in V. Bhagat v. D. Bhagat, (1994) 1 SCC 337 held that irretrievable breakdown of the marriage is not a ground by itself to dissolve it.” 31. In Vishnu Dutt Sharma v. Manju Sharma, supra, the Hon'ble Supreme Court held:- “12. If we grant divorce on the ground of irretrievable breakdown, then we shall by judicial verdict be adding a clause to Section 13 of the Act to the effect that irretrievable breakdown of the marriage is also a ground for divorce. In our opinion, this can only be done by the legislature and not by the Court. It is for Parliament to enact or amend the law and not for the courts. Hence, we do not find force in the submission of the learned counsel for the appellant.” 32. In the case on hand, admittedly, the parties have crossed 42 and 47 years respectively and are living separately and working independently. There is no child born from the wedlock, as it was admitted by both parties that on the date of marriage itself they have separated. 33. Though in trial Court, the respondent had not made any allegation against the appellant that he had performed second marriage, for the first time in the first appellate Court, she made allegations, in fact, she had filed petition to let in additional evidence to speak qua appellant's second marriage with one Jeyanthi on 23.3.2008. 34. Citing the decision in Savitri Pandey v. Prem Chandra Pandey, supra, the learned counsel for the respondent contended that remarriage by divorced person during pendency of appeal filed after expiry of limitation period is at the risk of the party entering into such remarriage and its validity is entirely dependent on the outcome of the pending appeal. 35. In Prakash Chand Sharma v. Vimlesh, supra, the Hon'ble Supreme Court held as follows:- “4. ...... If the husband remarried in hot haste after the institution of the second appeal which was delayed by one three days, we cannot see how that fact can come to his rescue. 35. In Prakash Chand Sharma v. Vimlesh, supra, the Hon'ble Supreme Court held as follows:- “4. ...... If the husband remarried in hot haste after the institution of the second appeal which was delayed by one three days, we cannot see how that fact can come to his rescue. That is clearly opposed to Section 15 of the Hindu Marriage Act which in terms states that when a marriage is dissolved by a decree of divorce and there is no right of appeal against the decree or where there is such a right, the time for filing an appeal has expired or an appeal has been presented and has been dismissed, it shall be lawful for either party to the marriage to remarry. In the instant case no doubt the second appeal was delayed by three days but the fact is that it was instituted and was pending on the date of the second marriage. Therefore, the husband acted in disregard of Section 15 and cannot get the benefit of his own wrong.” 36. In Tejinder Kaur v. Gurmit Singh, supra, the Hon'ble Supreme Court held thus:- “7. In Chandra Mohini v. Avinash Prasad, AIR 1967 SC 581 on somewhat similar facts it was held that though S.15 in terms does not apply to a case of special leave to appeal to the Supreme Court, a spouse who has won in the High Court and got a decree of dissolution of marriage cannot by marrying immediately after the High Court's judgment take away the right of presenting an application for special leave to appeal from the other spouse. It was further held that the successful party must wait for a reasonable time and make sure whether an application for special leave has been filed in this Court. ....” 37. In the case on hand, the trial Court delivered its common order on 17.3.2008 granting divorce and declining conjugal rights. On a perusal of the decree of the first appellate Court, this Court finds that against the order granting divorce in H.M.O.P. No. 10 of 2005, the respondent filed an appeal on 1.7.2008 and the same was returned and finally represented on 11.11.2009. Against the order declining restitution of conjugal rights, the respondent filed appeal on 8.1.2010 and the same was returned and finally represented on 15.11.2010. 38. Against the order declining restitution of conjugal rights, the respondent filed appeal on 8.1.2010 and the same was returned and finally represented on 15.11.2010. 38. Since the remarriage aspect is not in issue in the appeal filed by the respondent before the first appellate Court, the first appellate Court observed that they cannot form part for consideration of the grounds raised in the petitions and counters. When such being the finding of the first appellate Court, we do not want to elaborate upon the said aspect any further. 39. It is pertinent to note that the appellant and the respondent are well educated and the appellant was working as Professor in the College and the respondent was working as teacher. In the case on hand, on reading of the pleadings and the evidence adduced on both sides, I find that both the appellant and the respondent are making claims and counter claims with regard to the acts and omissions committed by each other. 40. In the case on hand, no valid explanation for the respondent's failure to return to the matrimonial home is forthcoming. In fact, the appellant contends that behaviour of the respondent caused genuine/reasonable apprehension in the mind of the appellant that it is not quite safe to continue the relationship of marriage with the respondent. The appellant contends that the incident which took place on 17.2.2002 at the marriage hall caused intolerable mental agony/mental cruelty from the hands of the respondent. Therefore, the appellant is entitled to maintain petition under Section 13(1)(i-a) of the said Act. 41. The learned Senior Counsel for the appellant submitted that 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. In support, the learned Senior Counsel relied upon the decision in Samar Ghosh v. Jaya Ghosh, supra. 42. In Samar Ghosh v. Jaya Ghosh, supra, the Hon'ble Supreme Court, enumerated some instances of human behaviour which may be relevant in dealing with the cases of “mental cruelty”. In such like situations, it may lead to mental cruelty. In support, the learned Senior Counsel relied upon the decision in Samar Ghosh v. Jaya Ghosh, supra. 42. In Samar Ghosh v. Jaya Ghosh, supra, the Hon'ble Supreme Court, enumerated some instances of human behaviour which may be relevant in dealing with the cases of “mental cruelty”. While enumerating instances, the Hon'ble Supreme Court observed that instances are only illustrative and not exhaustive. 43. The trial Court, after analysing the evidence of both sides and demeanour of witnesses, particularly the appellant and the respondent, came to the conclusion that the petitioner had made out the ground for divorce. In paragraph 18, the trial Court held as under:- “XXXXXXXXXXXXXXXXXXXX” 44. On the contrary, the first appellate Court observed that betrothal between the appellant and the respondent took place on 1.2.2002 and when the marriage was love marriage between them, the contention that the respondent's parents coerced the respondent to marry the appellant cannot be true and the respondent behaved like a lunatic in the marriage hall was not correct. It has also observed that in his cross-examination, the appellant stated that for two days after the marriage, he tried for living with the respondent and on the third day, the appellant decided to divorce the respondent, which shows that the appellant has no sincere interest in living with the respondent. The first appellate Court went one step further and observed that a perusal of the betrothal photos (Exs.R8 and R9) reveal that the wife (respondent) was a very much willing party for the marriage. Therefore, the contention that she was coerced to marry the appellant was false. The aforesaid finding of the first appellate Court is nothing but a figment of imagination. How can one jump to a conclusion as to whether a person is willing or not willing for marriage just on perusal of the photographs. 45. On perusal of the pleadings and in particular the oral evidence of the respondent, it is clear that she had sent several letters to the College Principal, Education Minister and Director of Collegiate Education, thereby causing cruelty to appellant. Sending letters to the College Principal, Education Minister etc. was not denied by the respondent. 45. On perusal of the pleadings and in particular the oral evidence of the respondent, it is clear that she had sent several letters to the College Principal, Education Minister and Director of Collegiate Education, thereby causing cruelty to appellant. Sending letters to the College Principal, Education Minister etc. was not denied by the respondent. In this regard, the first appellate Court was wrong in saying in its order that only when the appellant planned for a second marriage, she sent those letters, as no women would tolerate her husband undergoing second marriage when she was very much willing to live with him. How the first appellate Court can arrive at a conclusion that the respondent was very much willing to live with the appellant. If she is very much willing to live with the appellant, she ought to have taken steps for reunion and same is to be supported by oral testimony by examining her parents and mediator and/or panchayatdars. In this case, admittedly, on the side of the respondent, even her parents, brother and other close relatives have not been examined. The non-examination of witnesses on her side would show that she has not taken steps for reunion with the appellant as rightly held by the trial Court. Mere filing of petition seeking for restitution of conjugal rights is not enough that the respondent was really willing for reunion. It appears that only after lodging a complaint by the appellant before the police station, the respondent had filed the petition for restitution of conjugal rights and thus, there is no bona fide in the petition filed by her. 46. It is seen that the respondent had not specifically denied the mental cruelty attributed by the appellant. It is admitted that the respondent left the marriage hall and/or the house at Alangudi Housing Unit in Pudukottai on her own accord. It has been established that thereafter, the appellant has taken steps to get back the respondent to the home, but the respondent refused to return back the matrimonial home and/or the house at Alangudi Housing Unit, Pudukottai. In this case, nothing on record to show that such an attempt was made by the respondent. From the pleadings, as stated supra, there were allegations and counter allegations qua mental cruelty against each other. 47. In this case, nothing on record to show that such an attempt was made by the respondent. From the pleadings, as stated supra, there were allegations and counter allegations qua mental cruelty against each other. 47. The matrimonial duties and responsibilities in particular are of varying degrees from house to house or person to person. When a spouse makes complaint about the treatment of cruelty by the partner in life, the Court should not search for standard in life. A set of facts stigmatised 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. The Judges and lawyers, should not import their own notions of life and may not go in parallel with them. When we deal with the conduct of human beings, who are not 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. 48. In an unreported judgment in C.M.A. (MD) Nos. 238 and 239 of 2012 (Salome v. Dr. Prince D. Immanuel), this Court held that where the appellant/wife and the respondent/husband were living separately for more than 10 years and the attitude of the respondent even after obtaining a decree of restitution of conjugal rights has not taken steps to enforce the same, but insisting on retaining matrimonial bond that would amount to causing mental cruelty and to torment and traumatized the appellant. In the given facts and circumstances of the case, in Salome v. Dr. Princice D. Immanuel, supra, the learned Single Judge of this Court held:- “20. ... The insistence of the respondent to continue the matrimonial tie even though he is fully aware that there is no possibility of re-union and living together as husband and wife, amounts to causing mental cruelty to the appellant.” 49. In the present case, as stated supra, the respondent left the matrimonial home in the year 2002 and she had not returned back to the matrimonial home. In the present case, as stated supra, the respondent left the matrimonial home in the year 2002 and she had not returned back to the matrimonial home. Since there was no possibility of re-union, directing the appellant and the respondent to live together as husband and wife would in fact make the matrimonial life a hell for both parties. 50. In K. Srinivas Rao v. D.A. Deepa, reported in 2013 (2) SCALE 735 , the Hon'ble Supreme Court held as under:- “We are also satisfied that this marriage has irretrievably broken down. Irretrievable breakdown of marriage is not a ground for divorce under the Hindu Marriage Act, 1955. But where marriage is beyond repair on account of bitterness created by the acts of the husband or the wife or of both, the courts have always taken irretrievable breakdown of marriage as a very weighty circumstance amongst others necessitating severance of marital tie. A marriage which is dead for all purposes cannot be revived by the court's verdict, if the parties are not willing. This is because marriage involves human sentiments and emotions and if they are dried-up there is hardly any chance of their springing back to life on account of artificial reunion created by the court's decree.” 51. The ratio of law which emerged from catena of decisions of the Hon'ble Supreme Court is that where there is evidence that the husband and wife indulged in mutual bickering leading to remonstration and there from to the stage where they target each other mentally, insistence by one to retain the matrimonial bond would be relevant factor to decide on the issue of cruelty, for the reason the obvious intention of said spouse would be to continue with the marriage not to enjoy the bliss thereof but to torment and traumatized each other. 52. The long separation coupled with the attitude of respondent would amount to mental cruelty caused to the appellant. Mental cruelty is not defined in the Act and it cannot be put on a strait-jacket formula. Facts and circumstances of each case must be considered on merits to decide whether the party alleging mental cruelty has proved the same. 53. In V. Bhagat v. D. Bhagat, reported in (1994) 1 SCC 337 , the Hon'ble Supreme Court examined the concept of “mental cruelty” and observed as under:- “16. Facts and circumstances of each case must be considered on merits to decide whether the party alleging mental cruelty has proved the same. 53. In V. Bhagat v. D. Bhagat, reported in (1994) 1 SCC 337 , the Hon'ble Supreme Court examined the concept of “mental cruelty” and observed as under:- “16. Mental cruelty in Section 13(1)(i-a) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. While arriving at such conclusion, regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be hand to the context in which they were made.” 54. In Parveen Mehta v. Inderjit Mehta, reported in (2002) 5 SCC 706 , the Hon'ble Supreme Court held:- “21. Cruelty for the purpose of Section 13(1)(i-a) is to be taken as a behaviour by one spouse towards the other, which causes reasonable apprehension in the mind of the latter that it is not safe for him or her to continue the matrimonial relationship with the other. Mental cruelty is a state of mind and feeling with one of the spouses due to the behaviour or behavioural pattern by the other. Unlike the case of physical cruelty, mental cruelty is difficult to establish by direct evidence. It is necessarily a matter of inference to be drawn from the facts and circumstances of the case. 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 post 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 of emerging from the evidence on record and then draw a fair inference whether the petitioner in the divorce petition has been subjected to mental cruelty due to conduct of the other.” 55. In the case on hand, the trial Court 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. 56. In Sandhya Rani v. Kalyanram Narayanan, reported in 1994 Supp (2) SCC 588, the Hon'ble Supreme Court held:- “since the parties are living separately for the last more than three years, we have no doubt in our minds that the marriage between the parties has irretrievably broken down. There is no chance whatsoever of their coming together. Therefore, the Court granted the decree of divorce.” 57. Admittedly, both the parties have not pleaded scope for settlement between them. Since there was no possibility of reconciliation, an inference has to be drawn that the marriage between the appellant and the respondent has broken down irretrievably with a view to restore good relationship and to put a quietus to the litigation between the parties and not to leave any room for future litigation so that they may live peacefully thereafter. 58. In Naveen Kohli v. Neelu Kohli, reported in (2006) 4 SCC 558 , the Hon'ble Supreme Court observed as under:- “85. 58. In Naveen Kohli v. Neelu Kohli, reported in (2006) 4 SCC 558 , the Hon'ble Supreme Court observed as under:- “85. Undoubtedly, it is the obligation of the court and all concerned that the marriage status should, as far as possible, as long as possible and whenever possible, be maintained, but when the marriage is totally dead, in that event, nothing is gained by trying to keep the parties tied forever to a marriage which in fact has ceased to exist. In the instant case, there has been total disappearance of emotional substratum in the marriage. The course which has been adopted by the High Court would encourage continuous bickering, perpetual bitterness and may lead to immorality. 86. In view of the fact that the parties have been living separately for more than 10 years and a very large number of aforementioned criminal and civil proceedings have been initiated by the appellant against the respondent, the matrimonial bond between the parties is beyond repair. A marriage between the parties is only in the name. The marriage has been wrecked beyond the hope of salvage, public interest and interest of all concerned lies in the recognition of the fact and to declare defunct de jure what is already defunct de facto. To keep the sham is obviously conducive to immorality and potentially more prejudicial to the public interest than a dissolution of the marriage bond.” 59. The aforesaid decision would squarely be applicable to the facts of the present case. In the instant case, not to grant a decree of divorce would be disastrous for the parties. Thus, the first appellate Court was not right in reversing the finding of the trial Court, which has rightly allowed the petition for divorce filed by the appellant since the appellant and the respondent were living separately for long number of years. 60. The above said view of this Court is fortified by a larger Bench decision of the Supreme Court in Samar Ghosh, supra, wherein qua long separation, it has been emphatically held as under:- “95. Once the parties have separated and the separation has continued for a sufficient length of time and one of them has presented a petition for divorce, it can well be presumed that the marriage has broken down. Once the parties have separated and the separation has continued for a sufficient length of time and one of them has presented a petition for divorce, it can well be presumed that the marriage has broken down. The court, no doubt, should seriously make an endeavour to reconcile the parties; yet, if it is found that the breakdown is irreparable, then divorce should not be withheld. The consequences of preservation in law of the unworkable marriage which has long ceased to be effective are bound to be a source of greater misery for the parties.” (emphasis supplied) In the case on hand, as held above, the marriage is irretrievably broken and there has been a long separation of sixteen years, right from the date of marriage till date. 61. Before parting with the judgment, the agonizing facts of the case need to be reiterated. The appellant was of 31 years of age and the respondent 28 when they got married in 2002. The petition for divorce was filed by the appellant one year after the marriage i.e. in 2002, and the decree of divorce was granted in 2003. The first appeal was filed by the respondent before the first appellate Court and the first appellate Court reversed the decree of divorce in 2013. The second appeal was filed by the appellant before this court in 2013 and has come for the final decision in the year 2018. 62. The fact that the parties who stayed together for about 24 hours spent close to 16 years in alleys of Courts to get rid of each other, is nothing but appalling to say the least. The institution of marriage, which is considered the holy union of two souls, is made mockery of by such like cases and it is no wonder that the relevance of this pious bond is under scanner by the youth today. Each marriage has its bitter sweet moments which are cherished by the couple in the sunset of their lives. The companionship of the years spent together is a comforting pillar of strength in their old age and it is most unfortunate that the parties in the present case were devoid of making any such memories, more so because of their own faults. The companionship of the years spent together is a comforting pillar of strength in their old age and it is most unfortunate that the parties in the present case were devoid of making any such memories, more so because of their own faults. This poignant adjudication has again drawn the mind to wonder about the litigative voyage in our Courts, especially in matrimonial cases, which leaves the parties with no hope, zeal, or time to start their lives afresh. 63. It would also be pertinent to mention here that as per the mandate of Section 9 of The Family Courts Act, 1984 and section 23(2) of the Hindu Marriage Act, the Matrimonial Courts should make every positive endeavour to bring about reconciliation between the parties so that the matter can be amicably settled on mutually acceptable terms at the very threshold. The Courts should make efforts at the initial stage itself so that the burden of the Courts is also lessened and the parties are also saved from the arduous litigation. The services of the Mediators and Counsellors especially appointed for this purpose are at the disposal of the Family Courts, and should be utilized to the fullest so that parties are reconciled or agree to part mutually and amicably. Let the object of section 9 of the Family Courts Act and section 23(2) of the Hindu Marriage Act not be defeated by a ritualistic exercise but a concerted, cohesive and conscientious effort on the part of the Matrimonial Courts to bring the parties to a pacific agreement. In-time intervention of the courts dealing with marital disputes with devotion of sufficient hearings at the initial stage itself may save such parties this long ordeal. The courts should make sustained and persistent attempts even when the pleadings are complete and evidence led, as it will certainly yield potent results. 64. Looking into the peculiar facts and circumstances of the case, I am of the opinion that it will not be possible for the parties to live together and therefore, there is no purpose in compelling both the parties to live together. Therefore, the best course is to dissolve the marriage by passing a decree of divorce, which the trial Court has rightly done. The parties who are litigating since 2002 and have lost valuable part of life can live peacefully for remaining part of their life. 65. Therefore, the best course is to dissolve the marriage by passing a decree of divorce, which the trial Court has rightly done. The parties who are litigating since 2002 and have lost valuable part of life can live peacefully for remaining part of their life. 65. In Naveen Kohli v. Neelu Kohli, supra, while granting divorce to the appellant therein, the Hon'ble Supreme Court has considered permanent maintenance to be paid to the wife. In the case on hand, considering avocation of the respondent and also the fact that the parties who stayed together only for about 24 hours, there is no need to order permanent alimony to the respondent. However, it is directed that golden ornaments, silver and other articles, belonging to the respondent, if any lying with the appellant, the same shall be returned to her. 66. In the result, both the Civil Miscellaneous Second Appeals are allowed and the common judgment and decree dated 18.4.2013 passed in C.M.A. Nos. 5 and 7 of 2011 on the file of Additional District Judge, Pudukottai is set aside, thereby the common order and decreetal order passed in H.M.O.P. Nos. 10 of 2005 and 33 of 2002 on the file of the Sub-Judge, Pudukottai stand restored. No costs. Consequently, connected miscellaneous petitions are closed.