JUDGMENT : Heard. 2. “Whether the trial Court was justified in granting decree of divorce against the appellant on the ground of cruelty ?” is the question involved in this case. 3. The marriage of the appellant and the respondent was solemnized on 01.05.1955. Out of the said marriage, the couple begot three daughters and one son. The son unfortunately died on 07.03.1984 as bachelor. Initially the respondent was working as a school teacher and was residing in rented house at Cottonpet, Bengaluru. Later, he purchased house in First Cross, Magadi Road, Bengaluru and the couple were living there. 4. On 03.09.2010 the respondent filed M.C.No.2852/2010 against the appellant under Section 13(1)(ia) and (ib) of the Hindu Marriage Act (‘the Act’ for short) seeking decree of dissolution of the marriage. His case in brief was as follows: That in the year 1994, the appellant performed the marriage of their daughter Leelavathi with her cousin Prakash against his wish. After such marriage, in 1995 she deserted him and started residing in the house of Leelavathi and Prakash. Due to such desertion, he was forced to eat outside, thereby he developed Ulcer. For that he was treated in Kempegowda Hospital, Chamarajpet, Bengaluru and Ashraya Hospital, Sunkadakatte. During such ailment, the appellant did not visit and take care of him. At the behest of her mother, the respondent sold the site situated at Shankarappa Garden, Magadi Road, Bengaluru. Without his knowledge and consent, she gave away jewelleries gifted by him to her elder sister. She went on filing suits in O.S.364/2009 before Civil Judge (Junior Division), Magadi and O.S. No.6631/2009 before the City Civil Judge, Bengaluru making defamatory allegations against him. Such acts of the appellant caused him cruelty. Therefore, he is entitled to decree of divorce on the ground of cruelty and desertion. 5. The appellant contested the suit denying the allegations of cruelty and desertion. Her case in brief is as follows: After the untimely death of her son on 07.03.1984, she suffered immense mental set back and depression. She was also undergoing menopause stage. Despite such physical and mental impairment, she satisfied all the needs of the respondent. After the marriage of their third daughter, the respondent himself started to reside with her in the house of Leelavathi and Prakash. He was not at all taking care of her needs. He himself was a foodie, therefore was eating outside. Despite such physical and mental impairment, she satisfied all the needs of the respondent. After the marriage of their third daughter, the respondent himself started to reside with her in the house of Leelavathi and Prakash. He was not at all taking care of her needs. He himself was a foodie, therefore was eating outside. He was forcing other family members also to eat outside. Because of such habit he developed Ulcer and he was treated in the hospital for his Ulcers. The allegations of she gifting of the jewellery was denied. The respondent himself sold the site standing in her name and received the consideration but she has not received any amount out of such sale. The respondent himself left the appellant in the house of his daughter and went back to stay in his house. The children started to take care of her. She was treated as beast in his hands and she suffered all along. Since he was trying to alienate the properties due to the vengeance against her, she was forced to file suits in O.S. No.364/2009 and O.S No.369/2009. Therefore, she sought for dismissal of the petition. 6. The parties adduced the evidence. In support of his case, the respondent got himself examined as P.W.1 and got marked Exs.P1 to P12. The appellant was examined as R.W.1 and her three daughters were examined as R.W.2 to R.W.4. 7. The Trial Court on hearing the parties, by the impugned judgment and decree allowed the petition and granted decree for dissolution of the marriage on the ground that desertion and cruelty alleged by the respondent were proved. 8. The Trial Court held that the filing of the suit more particularly the allegations in Ex.P12 (plaint in O.S.No.6631/2009) are defamatory and attacked the personality of the petitioner imputing unsoundness and forgery of the signature. The Trial Court further held that the respondent was spending for charitable activities and the appellant should not have taken exception to that. It was further held that since 1995 the appellant has deserted him and not cared for him even during his ailment. Submission of Sri. V.B. Shivakumar, learned counsel for the appellant. 9. There was inordinate delay in filing the petition which was not explained. The Trial Court should have considered the effect of such delay in the light of Section 23 of the Hindu Marriage Act. Submission of Sri. V.B. Shivakumar, learned counsel for the appellant. 9. There was inordinate delay in filing the petition which was not explained. The Trial Court should have considered the effect of such delay in the light of Section 23 of the Hindu Marriage Act. The allegations of cruelty and desertion were falsified by the evidence of the daughters of the respondent himself. The Trial Court was not justified in ignoring such evidence. Since the respondent failed and neglected her, naturally the daughters are taking care of her. The respondent had his own source of income. He himself started residing separately and after that joined Senior citizen home. The said conduct of the respondent speaks itself sufficiently. Therefore, he seeks reversal of the impugned judgment and decree. Submission of Sri. Vikram Ramalinga R., learned counsel for the respondent. 10. The records sufficiently show that the appellant deserted him after 40 years of their marriage in the evening of his life and when he was unwell. The daughters and the appellant in connivance with each other went on humiliating the respondent by filing the civil suits and making reckless allegations. That has caused him mental cruelty. Therefore, the Trial Court was justified in granting the decree. Analysis: 11. There is no dispute that the appellant and respondent were married as long back as on 01.05.1955. The only son of the couple died on 07.03.1984 when he was at the prime of his youth. Even after the death of the son they lived together upto 1995. 12. The respondent claims that the appellant performed the marriage of his daughter Leelavathi-RW4 against his wish with one Prakash. There is no dispute that at the time of said marriage, Leelavathi was major. She herself came before the Court and deposed that the said marriage was performed as per her wish. In marriage of adult daughter, the consent or wish of said couple is material and not opposition of the respondent. 13. R.W.1 to R.W.4 i.e. the appellant and the daughters of the couple in one voice denied the allegations that the marriage was performed against the wish of the respondent. Further, he raises such objection to the marriage in 2010 i.e. after 15 years of the marriage. Therefore, the contention that the marriage of R.W.4 was performed against the wish of the respondent by the appellant does not inspire the confidence of the Court. Further, he raises such objection to the marriage in 2010 i.e. after 15 years of the marriage. Therefore, the contention that the marriage of R.W.4 was performed against the wish of the respondent by the appellant does not inspire the confidence of the Court. 14. So far as the desertion, respondent alleges the appellant left him back and joined R.W4 and her husband in 1995. Whereas the appellant claims that respondent himself along with her shifted to the house of his daughter R.W.4 and then he left that place also and started residing separately. After 15 years of such alleged desertion, he files the petition alleging desertion. 15. In matters involving the family issues, the family members are the best persons to speak about the in-house affairs as they are the persons who could have the knowledge of such affairs. R.Ws.2 to 4 the daughters in one voice say that respondent himself deserted the appellant and started living separately. Both the parties claim that due to the untimely death of their son in the year 1984 both of them were shattered. Under such critical condition, if the mother lives with the daughter it does not amount to cruelty to the respondent nor any exception could be taken to that. Despite the appellant claiming that from 1995 till 2010 they were living in the house of R.W.4, the appellant did not chose to produce any material to show that he was living separately in his own house. 16. It is the not the case of the respondent that he suffered ulcer some where between 1995 and 2009. According to R.W.3, the respondent suffered medical condition and was treated in the hospital in 2010 and from hospital he went directly to the Ashram. The evidence that he suffered medical condition in 2010 was not contraverted. Therefore absolutely there was no material to show that before 2010, he had suffered such medical condition. 17. The Trial Court finds fault with the allegations made by the appellant against the respondent in Ex.P12, the copy of the plaint in O.S No.6631/2009. At paragraph No.3 of the said plaint, the appellant contended that the respondent has obsession for spending time and money in religious activities. She further alleged that in such activities he was associating himself with known and unknown persons, trying to alienate the properties and dispossess her from the family house. 18. At paragraph No.3 of the said plaint, the appellant contended that the respondent has obsession for spending time and money in religious activities. She further alleged that in such activities he was associating himself with known and unknown persons, trying to alienate the properties and dispossess her from the family house. 18. Ex.P1, the copy of the judgment and decree in O.S.N0.6631/2009 shows that accepting such allegation, the Court decreed the suit in respect of plaint ‘A’ schedule property therein. While holding that the allegations in Ex.P12 amounts to cruelty to the appellant, the Trial court totally ignored Ex.P1 wherein such allegations of the appellant were upheld with respect to schedule ‘A’ property. Under such circumstances, filing of the suit seeking enforcement of her legal right itself does not amount to cruelty. 19. It may not be wrong to do charities. But it is the settled principle that charity should begin at home. The respondent was a family holder/Grihasta having a dependent wife. Admittedly, wife was residing in the house of RW.4 and the daughters were taking care of her. A family holder’s first Dharma is to take care of his dependent wife in a righteous manner. The scriptures say “swa-dharme nidhana? shreya? para-dharmo bhayavaha?”. That means it is far better to perform one’s natural prescribed duty, though tinged with faults, than to perform another’s prescribed duty, though perfectly. In fact, it is preferable to die in the discharge of one’s duty, than to follow the path of another, which is fraught with danger. Therefore, being a ‘Grihasta’/family holder, it was his duty to maintain his wife. He doing charitable activities at the cost of well being of his wife without her concurrence was not acceptable under any norms. Therefore, the trial Court was in error in holding that the wife filing the suits to prevent her dispossession and alienation of the properties are acts of cruelty. 20. During the course of the evidence, the respondent claimed that daughters filing suit in O.S No.7882/2010 as per Ex.P3 also an act of cruelty to him. Ex.P3 shows that the said suit was filed against the respondent and appellant both seeking partition. If a daughter files suit for partition against the respondent, the cruelty cannot be attributed to the appellant. There is nothing on record to show that she had instigated the daughters to file the suit. Ex.P3 shows that the said suit was filed against the respondent and appellant both seeking partition. If a daughter files suit for partition against the respondent, the cruelty cannot be attributed to the appellant. There is nothing on record to show that she had instigated the daughters to file the suit. The said daughters were aged 52 and 46 years, whereas the appellant was aged 66 years. Therefore, the question of she dominating their will also does not arise. More over there was no such allegations in the petitions. 21. There was 15 years delay in filing the petition alleging desertion and cruelty. The said delay was explained by the respondent neither in his petition nor in his evidence. Section 23(1)(b) of the Hindu Marriage Act (for short ‘Act’) creates an exception to Section 13(1) of the Act in granting decree of divorce. Section 23(1)(b) of the Act says that when a petition for divorce is filed under Section 13(1)(b) with undue delay, the Court may reject the prayer. In such cases, even if the respondent in the petition does not take such defence, the Court has an obligation to see whether there is undue delay or improper delay in instituting the proceedings. The Trial Court did not consider that aspect at all. 22. The evidence on record clearly shows that the petition was filed as a counter blast to O.S No.6631/2009. The Trial Court proceeded to grant the decree only on the ground that the appellant failed to produce the medical records in proof of her gynec problem. When the respondent alleged the deprivation of cohabitation, the parties had crossed 60 and they had grown up married daughters. By that time due to death of her grown up son the appellant was suffering untold misery. It is said ‘Putra shokam nirantaram’ means grief of son’s death is ceaseless. Under such circumstances, it is too much for the respondent to demand such physical relationship. 23. There was no reason to disbelieve the evidence of the daughters that father himself had turned hostile to the mother. The decree in O.S No.6631/2009 shows that the respondent himself was guilty of attempting to dispossess his wife from the family house. Such being the case, Section 23 of the Act bars him from seeking decree of divorce on the allegations of desertion and cruelty. 24. The decree in O.S No.6631/2009 shows that the respondent himself was guilty of attempting to dispossess his wife from the family house. Such being the case, Section 23 of the Act bars him from seeking decree of divorce on the allegations of desertion and cruelty. 24. Considering over all material on the record and the circumstances of the case, the impugned judgment and decree is unsustainable in law. Hence the following : ORDER (i) The appeal is allowed with costs through out. (ii) The impugned judgment and decree of the trial Court is hereby set aside. (iii) M.C No.2852/2010 on the file of V Additional Principal Judge, Family Court, Bengaluru is hereby dismissed. The Court places its appreciation on record for the services rendered by Sri. Vikram Ramalingam R., Panel advocate of High Court Legal Services committee.