JUDGMENT : S.G. Pandit, J. Both the above appeals are filed under Section 19(1) of the Family Courts Act, assailing the judgment dated 23.07.2012 in M.C.No.177/2010 by which, petition filed under Section 13(1)(i-a) of Hindu Marriage Act, 1955 (hereinafter referred to as “the Act” for short) is allowed, marriage of the appellant and respondent is dissolved; and judgment dated 23.07.2012 in M.C.No.141/2010 by which, the petition filed under Section 9 of the Act for restitution of conjugal rights is rejected. 2. Both the appeals are by wife challenging the grant of decree of divorce and rejection of her petition for restitution of conjugal rights. 3. The respondent-husband filed a petition under Section 13(1)(i-a) of the Act praying for dissolution of marriage with the appellant-wife. It is stated that the marriage of appellant and respondent had taken place on 24.04.2004 according to the Hindu rites and customs. They lived happily for some time and a girl child namely Kum.Pavani was born. The husband states that when the wife came back to the matrimonial home along with the child, she forced mother of the husband to live separately. It is alleged by the husband that the wife used to quarrel for small reasons. Further the husband alleges that the appellant-wife used to call for unnatural sex and she misbehaved like a devil in the sex. It is also alleged that the appellant-wife forced the husband to commit suicide, so that she could get the job. The husband got issued the legal notice dated 13.01.2005 seeking dissolution of marriage and the appellant-wife had filed a criminal complaint with the Mahila Police. It is stated that the Police authorities advised them to stay together, thereafter they stayed together for some time. the respondent-husband was transferred to Raichur, but the appellant-wife failed to live with him. The appellant-wife, during September 2010 left the matrimonial house and the respondent-husband, with all household utensils including gas cylinders, without informing him. 4. On appearance, the appellant-wife filed objection admitting the marriage and birth of girl child Kum.Pavani. Further, she denied the allegation of misbehaving with the respondent-husband and also denied the allegation of unnatural sex. The appellant-wife also denied the allegation of forcing the respondent-husband to commit suicide to get his employment. She also denies leaving of the matrimonial home in September 2010. 5. Further, she denied the allegation of misbehaving with the respondent-husband and also denied the allegation of unnatural sex. The appellant-wife also denied the allegation of forcing the respondent-husband to commit suicide to get his employment. She also denies leaving of the matrimonial home in September 2010. 5. The appellant-wife filed a petition under Section 9 of the Act, praying for restitution of conjugal rights alleging that since the date of marriage the attitude of the husband towards the wife was indifferent and there was no enthusiasm by the respondent-husband. Further the wife states that neither respondent-husband nor any other family members of the respondent attended the cradle ceremony of their daughter. After 4 to 5 months, the wife returned to her matrimonial house and the respondent-husband very reluctantly allowed her to reside. The wife alleges that during her absence the husband had developed and involved in homosexuality and the attitude of the respondent-husband towards the wife was very shocking and also that they had no physical contact. Further the wife states that the respondent-husband was taken to Bangalore for treatment with psychiatrist where it was confirmed that he is a homosexual and has a weak capacity of performing physical contact. It is also alleged that the respondent-husband used to assault the appellant-wife on the pretext of not bringing sufficient dowry. Therefore, the respondent-husband started hating the appellant-wife. The respondent-husband was transferred to Raichur and he refused to take wife and daughter along with him to Raichur. After some time, the respondent-husband reluctantly took the wife and daughter to Raichur and kept them in a separate rented house. From then onwards, the respondent-husband failed to discharge his marital obligations and never turned up to wife. The respondent-husband not only failed in marital obligation, but withdrew himself from the company of the wife without there being any reason. 6. The respondent-husband filed his objections to the petition filed by the wife for restitution of conjugal rights denying the allegations made in the petition. Further the respondent-husband stated that he had met the entire expenses of the wife for pursuing B.Ed., degree amounting to Rs.50,000/-and had also bought a second hand TVS Scooty for her at Rs.15,000/-. The respondent-husband in his objection stated that indifferent attitude, indecent and vulgar behaviour of the wife compelled his mother who is aged and sick to leave the house and settle with her other children. The respondent-husband in his objection stated that indifferent attitude, indecent and vulgar behaviour of the wife compelled his mother who is aged and sick to leave the house and settle with her other children. It is also alleged that 2 to 3 times the appellant-wife gave false complaint and dragged the respondent-husband, his mother and sister to the Police Station. Further the respondent-husband states that the appellant-wife is not a normal woman in every sense and she is abusive and vulgar in her behaviour and she is a criminal minded. It is stated that she threatened to poison the respondent so as to get the job. The appellant-wife has suicidal tendencies. Further the respondent-husband has stated that the wife has insatiable urge for sex and she, on several times tried to compel the respondent to indulge in unnatural sex for which the respondent did not agree. The appellant-wife has not performed her duty as expected of a wife and on the contrary she is a quarrelsome and abusive in nature. Standing on the public road, in full view of the public she used to hurt with vulgar abuses the respondent, his family members and relatives. The appellant-wife is in the habit of making wild and baseless allegations against the respondent. The appellant-wife also accused him of being impotent in front of the public, in the Police Station and at the respondent’s office at Gulbarga and Raichur. The appellant-wife continued mental and physical torture towards respondent. Thus he prayed for dismissal of the petition. 7. The Family Court, on evaluation of the material on record and on careful appreciation of evidence, allowed the petition filed by the husband under section 13(1)(i-a) of the Act and dissolved the marriage of the appellant and respondent and dismissed the petition of the wife filed under section 9 of the Act for restitution of conjugal rights. Hence, the appellant wife is before this Court challenging both the above judgments. 8. Heard learned counsel Sri Arunkumar Bakkappa Kinny for appellant-wife and Sri Ameet Kumar Deshpande for respondent-husband. 9. Learned counsel for the appellant-wife submits that the impugned judgments of the Family Court are contrary to law and material on record. Hence, the appellant wife is before this Court challenging both the above judgments. 8. Heard learned counsel Sri Arunkumar Bakkappa Kinny for appellant-wife and Sri Ameet Kumar Deshpande for respondent-husband. 9. Learned counsel for the appellant-wife submits that the impugned judgments of the Family Court are contrary to law and material on record. He submits that the Family Court committed grave error in allowing the petition filed under Section 13(1)(i-a) of the Act on the ground of cruelty and in dismissing the petition filed under Section 9 of the Act for restitution of conjugal rights. The learned counsel would submit that the respondent-husband failed to prove the cruelty and he further submits that unless the ground of cruelty is proved with cogent evidence, the Court could not grant divorce on the ground of cruelty. It is his submission that the husband has also made serious allegations against the appellant-wife. In the above stated circumstances, the family court committed an error in granting divorce on the ground of cruelty. 10. Learned counsel for the appellant-wife submits that when the wife stated that she is ready and willing to join the respondent-husband, the Family Court was required to allow the petition filed under section 9 of the Act. It is his submission that it is the husband who has left the company of the appellant-wife. Learned counsel would submit that when the relationship is admitted and in the paramount interest of the child, the Family Court ought to have provided an opportunity for the appellant-wife to lead marital life with respondent-husband. 11. On the contrary, the learned counsel for respondent-husband supports and justifies the judgments under appeals. It is his submission that the allegations made by the wife are such that it is not possible for the husband to continue matrimonial relationship with the wife. The baseless allegations of homosexuality against the husband amounts to cruelty and such reckless allegations are made without any basis. In such circumstances, the Family Court is justified in granting the decree of divorce by rejecting petition filed for restitution of conjugal rights. Further, he also submits that the appellant-wife had filed false criminal complaints against the respondent-husband, mother-in-law and she had dragged them to Police Station. In such circumstances, the Family Court is justified in granting the decree of divorce by rejecting petition filed for restitution of conjugal rights. Further, he also submits that the appellant-wife had filed false criminal complaints against the respondent-husband, mother-in-law and she had dragged them to Police Station. Learned counsel for the respondent-husband submits that the appellant-wife has failed to prove the allegations made against the husband and onus is on the person who makes the allegation to prove the same. Thus he prays for dismissal of the appeals. 12. On hearing the learned counsels for the parties and on perusal of the trial court records, the only point that arises for consideration is as to whether the Family Court is justified in dissolving the marriage of the appellant and respondent on the ground of cruelty and whether the Family Court is justified in dismissing the petition of the wife for restitution of conjugal rights?. 13. Answer to the above point would be in the affirmative for the following reasons. The word “cruelty” is not defined. The cruelty may be mental or physical, intentional or unintentional. It is the conduct in relation to or in respect of matrimonial duties and obligations. The cruelty alleged may largely depend upon the type of life they are leading, their economic and social conditions, their culture and human values to which they attach importance. Cruelty is to be decided on the facts and circumstances and matrimonial relations between the spouses. The Hon'ble Apex Court in the case of Dr.N.G.DASTANE v/s Mrs.S.DASTANE reported in AIR 1975 SC 1534 has made it clear that in a proceedings for divorce or judicial separation, petitioner need not establish the allegation of cruelty beyond reasonable doubt. The fact situation shall be weighed with preponderance of probabilities. 14. The Hon'ble Apex Court was considering the mental cruelty in relation to Section 13(1)(i-a) of the Act and has explained what is mental cruelty broadly under the above provision in the case of V.BHAGAT v/s Mrs.D.BHAGAT reported in AIR 1994 SC 710 at paragraph 17 as follows : “Mental cruelty in S.13(1)ia) 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 had to the context in which they were made.” 15. In the above case of BHAGAT, the husband had alleged adultery against the wife and the wife had alleged against the husband that he has lost his normal mental health, that he is a mental patient requiring expert psychological treatment and above all, to brand him and all the members of his family including his grand-father as lunatics. In the light of those allegations, the Hon'ble Apex Court held that making such allegations in the pleadings and putting such questions to the husband while he is in the witness box is bound to cause him intense, mental pain and anguish besides affecting his career and professional prospects and held that such assertions would constitute mental cruelty. 16. In the above backdrop of the principles laid down by the Hon'ble Apex Court, the facts of the present case will have to be examined. A perusal of the entire pleadings including evidence in both the proceedings for divorce as well as restitution of conjugal rights disclose that both the husband and wife have made serious and reckless allegations against each other. The wife in her petition for restitution of conjugal rights has alleged against the husband that he has developed and involved in homosexuality and he was taken to Bangalore for counseling with a psychiatrist. The wife in her petition for restitution of conjugal rights has alleged against the husband that he has developed and involved in homosexuality and he was taken to Bangalore for counseling with a psychiatrist. Relevant portion at paragraphs 4 and 5 of the petition reads as follows: “4. Since from the first day of the marriage the attitude of the respondent towards the petitioner was indifferent. There was no enthusiasm as a newly bride expects from her husband from the respondent. In the meantime, the petitioner became pregnant and in the fifth month of pregnancy the respondent sent the petitioner to her parental house for delivery. After 1½ years of marriage a daughter by name Pavani was born to the parties to the proceedings. At the cradle ceremony of the daughter neither the respondent nor the other family members of the respondent attended the function inspite of invitation several times. After 4-5 months of the delivery the petitioner returned to her matrimonial house and the respondent very reluctantly allowed her to reside. 5. After the petitioner returned to the house of the respondent to the shock of the petitioner, she came to know that during the period of her absence the respondent has developed and involved in homosexuality and thus the total attitude of the respondent towards the petitioner was very shocking and the petitioner and the respondent after that had no physical contacts.” The husband in his objections to the petition for restitution of conjugal rights has also made reckless allegations against the wife alleging that she is a criminal minded; she is an abusive and vulgar in her behaviour and has insatiable urge for sex. Relevant portions at paragraphs 4, 5 and 22 reads as follows : “4. The averments made in para 5 of the petition are baseless and derogatory in nature. Hence denied. On the other hand, the petitioner is not a normal woman in every sense. She is abusive and vulgar in her behaviour. She is a criminal minded. Several times she has threatened to poison to death the respondent, so that she can get his job and also the family pension. The petitioner has suicidal tendencies. Many times she has said that “she will commit suicide and see that all the members of the respondent’s family are put behind the bars.” 5. The petitioner has an insatiable urge for sex. The petitioner has suicidal tendencies. Many times she has said that “she will commit suicide and see that all the members of the respondent’s family are put behind the bars.” 5. The petitioner has an insatiable urge for sex. She is a veritable sex fiend. Several times she tried to compel the respondent to indulge in unnatural sex for which the respondent did not agree as he dislike it. 22. The petitioner is in the habit of making wild and baseless allegation against the respondent. The petitioner has accused him of being impotent in front of the all public in the police station and the respondent offices at Gulbarga & Raichur, yet she has filed this false petition, in fact the petitioner’s real intention is to seek heavy maintenance amount.” The wife in her examination-in-chief by way of affidavit dated 13.10.2011 has deposed as follows: The husband in his examination-in-chief by way of affidavit dated 24.02.2012 at paragraphs 5, 7, and 13 has deposed as follows: In his cross-examination, the wife through her advocate has suggested the following:” 17. In the petition filed by the husband under Section 13(1)(i-a) of the Act, he has again repeated the allegations of unnatural sex by the wife and that the wife calls him as impotent. Relevant portion of the pleadings paragraphs 5 and 7 reads as follows: 18. The wife in her statement of objections while denying the allegations made by the husband has repeated the allegations made by her in the petition filed for restitution of conjugal rights. In their evidence, both the husband and wife repeated their allegations against each other. 19. The allegations and counter allegations of husband and wife disclose the intense hatred between the parties. Once such allegations of unnatural sex and homosexuality are made against each other, one cannot expect both of them to live together and in any circumstances, the marriage cannot continue any further. It is pertinent to note here that this is a case where allegations are made not only by wife but also by husband which are very serious in nature. The husband has alleged that wife calls for unnatural sex and the wife has alleged that the husband has developed homosexuality. The allegations of both the husband and wife against each other would undermine the dignity and reputation of both the parties. The husband has alleged that wife calls for unnatural sex and the wife has alleged that the husband has developed homosexuality. The allegations of both the husband and wife against each other would undermine the dignity and reputation of both the parties. The allegations and counter allegations in the instant case would be sufficient and justifies dissolution of marriage. The allegations made by both husband and wife would lead us to arrive at a conclusion that both of them cannot live together. 20. The contention of the wife that she is even now ready to live with the husband, if examined in the light of allegations of both husband and wife, appears to be mere statement without there being any substance. When the allegations are taken note of, living together by the husband and wife is out of question and we are of the opinion that the Family Court has rightly held that such reckless allegations which are not proved would amount to mental cruelty and would be a valid ground to grant decree of divorce. The wife had alleged that husband had developed homosexuality and he was taken to a psychiatrist at Bangalore. The wife has failed to substantiate the said allegation. The wife has not disclosed as to when the husband was taken to psychiatrist at Bangalore and also the name of psychiatrist who treated the husband. Similarly, the husband had also failed to prove his allegations that the wife forced him for unnatural sex. Therefore, in the peculiar facts and circumstances of the present case, the Family Court is justified in allowing the petition filed by the husband under Section 13(1)(i-a) on the ground of cruelty and in rejecting the petition filed by the wife under Section 9 of the Act for restitution of conjugal rights. 21. No ground is made out to interfere with the impugned judgments and accordingly, both the appeals are dismissed. Before parting with the case, it is very pertinent to note that the appellant and respondent have a girl child from their wedlock and it is necessary to protect the interest of the child. The husband Sri.Rajeev, who is a Government servant working in Education department was present before this Court during the course of hearing on 13.07.2021. Before parting with the case, it is very pertinent to note that the appellant and respondent have a girl child from their wedlock and it is necessary to protect the interest of the child. The husband Sri.Rajeev, who is a Government servant working in Education department was present before this Court during the course of hearing on 13.07.2021. On instructions, learned counsel for the appellant Sri.Ameet Kumar Deshpande submitted that the respondent-husband is ready and willing to keep a sum of Rs.5,00,000/-in Fixed deposit in any Nationalized Bank in the name of child Kum.Pavani till she attains the age of 18 years and thereafter to utilize the same for her necessities. Learned counsel further submitted that the respondent-husband would pay a sum of Rs.11,000/-p.m., as maintenance to the child Kum.Pavani for her educational and other necessities. The respondent-husband is directed to keep in Fixed Deposit, a sum of Rs.5,00,000/-in the name of the daughter Kum.Pavani with any nationalized bank, till she attains the age of majority and thereafter to utilize the same for her further necessities. The deposit as directed above shall be made within a period of two months from the date of receipt of a copy of this order and hand over the original F.D. receipt to the daughter Kum.Pavani. Xerox copy of the F.D. Receipt shall be filed before this Court within the period stated above. Further, the respondent-husband is directed to pay a sum of Rs.11,000/-p.m., as maintenance to daughter Kum.Pavani on or before 10th of every month.