JUDGMENT : K. LAKSHMAN, J. 1. Even today, there is no representation on behalf of the appellant and respondent. We have perused the record. 2. As observed by us on 09.10.2025, notice sent to the respondent is returned as un-served with an endorsement no such person is residing at the address mentioned. Sending notice to the respondent to the address available is sufficient in terms of Section 27 of the General Clauses Act. 3. Appellant is the husband and respondent is the wife. Appellant filed a petition under Section 13(1)(a) of Hindu Marriage Act, vide FCOP No.1538 of 2010 against respondent seeking dissolution of marriage on the ground of cruelty. Vide impugned order dated 03.12.2014, learned the Judge, Additional Family Court, at Hyderabad, dismissed the said petition. Aggrieved by the said order, appellant preferred the present appeal. 4. The marriage of the appellant with the respondent was solemnized on 02.07.1998 as per Hindu Rites and Customs. It is an arranged marriage. 5. According to the appellant, the said marriage was performed in a simple manner as the respondent and her family members hail from a poor family. There was no exchange of dowry. After marriage, the respondent joined the appellant at his matrimonial house. Out of their wedlock there were no issues. The appellant and the respondent separated in the year 2008 itself. 6. He has further contended that the respondent was cruel from the day one onwards. Her behavior was peculiar and strange and there was no love and affection. She was arrogant, troublesome and unfriendly towards the appellant and his family members. The respondent did not discharge her domestic and social obligations. She never shows any interest towards the appellant herein. She used to pick up quarrel on petty issues and used to create big scene and nuisance. 7. It is further contended by him that the respondent was very adamant and egoistic. She appears like a sadistic and psychic person. Thus, the respondent subjected the appellant to cruelty. Mediation was held before the elders and well wishers. Both the appellant and respondent decided to break the marital tie and entered into understanding. The same was reduced into writing on 06.09.2008 by way of matrimonial settlement. They have decided to obtain decree of divorce with mutual consent. As per the said agreement, all the house-hold articles, clothes, gold and jewellery were handed over to the respondent. Both the appellant and respondent decided to break the marital tie and entered into understanding. The same was reduced into writing on 06.09.2008 by way of matrimonial settlement. They have decided to obtain decree of divorce with mutual consent. As per the said agreement, all the house-hold articles, clothes, gold and jewellery were handed over to the respondent. The respondent has admitted and accepted the same and she has voluntarily given up her right to claim maintenance and permanent alimony. 8. It is further contended by the appellant that on 06.09.2008 itself, the respondent left the house of the appellant willfully and living at Chennai. Thus, she did not come forward to obtain decree of divorce with mutual consent as agreed on 06.09.2008. Therefore, he has filed the aforesaid petition before the Family Court, seeking dissolution of marriage on the ground of cruelty. 9. The respondent filed counter denying the said allegations made by the appellant. 10. To prove the cruelty, the appellant examined himself as P.W.1 and his sister Ms.Madhu Sharma as P.W.2. He has filed Ex.P1, Wedding Card, Exs.P2 and P3 photographs and Ex.P4, the matrimonial settlement deed dated 06.09.2008. To disprove the said cruelty, the respondent examined herself as R.W.1 and she also examined her father-Kanhayalal Sharma as R.W.2. She has filed Ex.R1, the matrimonial settlement deed dated 06.09.2008. 11. On consideration of the entire evidence, both oral and documentary, learned Judge, Family Court, City Civil Court, Hyderabad, has dismissed the said petition holding that both the parties have agreed to take divorce with mutual consent, but they could not file any petition seeking divorce on mutual consent. 12. According to the respondent, appellant has not complied with the promises made by him. Whereas, according to the appellant, he has returned all the articles and complied with the conditions mentioned in Ex.P4/Ex.R1, the memorandum of settlement deed dated 06.09.2008. 13. It is also apt to note that in the impugned order there is a reference to an order in O.P.No.3486 of 2010 by the learned Family Court. The said OP was filed by the respondent/wife against the appellant/husband under Section 9 of Hindu Marriage Act, seeking restitution of conjugal rights and the same was allowed by the Family Court at Chennai. The respondent/wife did not choose to file a copy of the said order in O.P.No.3486 of 2010. However, same was not disputed by the appellant herein. The said OP was filed by the respondent/wife against the appellant/husband under Section 9 of Hindu Marriage Act, seeking restitution of conjugal rights and the same was allowed by the Family Court at Chennai. The respondent/wife did not choose to file a copy of the said order in O.P.No.3486 of 2010. However, same was not disputed by the appellant herein. 14. Learned Family Court also further held that the burden lies on the appellant to prove cruelty by producing relevant evidence and in the present case, the appellant herein failed to discharge his burden. Therefore, on the said ground, learned Family Court dismissed the petition filed by the appellant herein. 15. It is relevant to note that Ex.P4/Ex.R1, the memorandum of settlement deed dated 06.09.2008, the parties herein have agreed to obtain decree of divorce by way of filing an application with mutual consent. It is also further agreed that the respondent has already received back all her belongings such as gold jewellery, house-hold articles etc., which were given at the time of her marriage by her parents. She has further agreed that from then onwards, she did not have any claim or claims against the appellant herein and his family members. She has also declared that she will not claim any amount towards permanent alimony or maintenance from the appellant herein in future by filing any case before any Court of law. Both the parties have agreed that they got no claim/claims against each one of them. They have also further agreed that from the date of execution of the matrimonial settlement deed, they deemed to be ceased from the matrimonial relations of wife and husband, as such, they are at liberty to lead their own life without any interference of any other; that they are at liberty to get marry some other person of their choice and no party shall raise any objection for the same. 16. There is no consideration of the said terms agreed by the parties by the learned Family Court Judge, in the impugned order. 17. As discussed supra, though the respondent had filed an application under Section 9 of the Hindu Marriage Act against the appellant seeking restitution of conjugal rights vide O.P.No.3486 of 2010, the same was allowed, but she has not filed a copy of the said order before the Family Court. 17. As discussed supra, though the respondent had filed an application under Section 9 of the Hindu Marriage Act against the appellant seeking restitution of conjugal rights vide O.P.No.3486 of 2010, the same was allowed, but she has not filed a copy of the said order before the Family Court. She has not even filed any execution petition against the appellant herein to execute the said order. 18. In para 6 of the impugned order, there is a reference to the contention of the respondent that the appellant agreed to pay an amount of Rs.3.00 lakhs towards permanent alimony in the presence of well wishers, which clause was not there in the settlement and same was oral. On 10.03.2010, the appellant gave an undertaking to give Rs.65,000/- but he did not even pay a single pie, but she failed to prove the same during the cross-examination of P.Ws.1 and 2. 19. During her evidence, the respondent contended that the appellant agreed to pay an amount of Rs.3.00 lakhs towards permanent alimony. On 10.03.2010, the appellant gave an undertaking to pay an amount of Rs.25,000/- against shortage of jewellery, but the appellant did not pay. Further, the said facts were not mentioned in Ex.P4/Ex.R1, the memorandum of settlement deed dated 06.09.2008. 20. During the course of cross-examination of R.W.1, admitted that she wanted to have children through her husband, but her husband has got another lady by name Indira. She has mentioned the said fact in her counter and affidavit filed in lieu of chief-examination that she could not bless with children due to her husband’s relationship with another lady. She has further admitted that on 06.09.2008, she left to Chennai due to disputes with her husband. Her husband did not take any steps to join in her company, as such, she has not taken any steps to join his company. She has further admitted that there is no compromise between her and her husband. The signature in Ex.P4 belongs to her and she has signed in Ex.P4 after reading and understanding the contents. 21. She has further admitted that there was a settlement between the appellant and the respondent on 06.09.2008. In the said settlement deed (Ex.P4), it is mentioned that the appellant gave gold and silver articles to her, but he has not given house-hold articles and clothes. 22. 21. She has further admitted that there was a settlement between the appellant and the respondent on 06.09.2008. In the said settlement deed (Ex.P4), it is mentioned that the appellant gave gold and silver articles to her, but he has not given house-hold articles and clothes. 22. R.W.2, the father of the respondent, during cross-examination admitted that he received call from the father of the appellant herein, who informed him to come to Hyderabad on the ground that both the appellant and respondent are fighting with each other. There are no children to the respondent. He did not get his daughter examined by Doctor to know about her medical problems for not getting children. During the period of marital life of his daughter, she came to Chennai 10 to 12 times. He came to Hyderabad 10 to 12 times to take her daughter to Chennai. On 06.09.2008, respondent came to Chennai as she could not tolerate the misery. After 06.09.2008, the respondent did not come to Hyderabad. On 06.09.2008, there was an agreement executed between the appellant and the respondent at Hyderabad. The respondent agreed for the terms of the agreement and signed on 06.09.2008 and went to Chennai. He also signed Ex.P4 as a witness. After execution of Ex.P4, he came to Hyderabad and went again. 23. He has further admitted that after Ex.P4, Mr. Manikchand, uncle of the appellant, compromised the matter between the parties under Ex.P4 memorandum. The said Manikchand asked him to wait for some time for fulfilling the promises arrived on the date of compromise. However, respondent did not apply for mutual divorce as per Ex.P4. He again came to Hyderabad on one occasion. 24. Though R.W.2 has admitted the aforesaid facts during cross-examination, neither the respondent nor R.W.2 has taken any steps such as addressing a letter and issuing a legal notice stating that the appellant herein did not fulfill the agreed payment of Rs.3.00 lakhs towards permanent alimony etc., They have not pleaded the said facts specifically in the counter. 25. Without considering the said admissions and the said aspects, learned trial Court dismissed the aforesaid OP filed by the appellant herein. 26. It is opt to note that cruelty is not defined in any statute. 25. Without considering the said admissions and the said aspects, learned trial Court dismissed the aforesaid OP filed by the appellant herein. 26. It is opt to note that cruelty is not defined in any statute. We have to examine and consider the evidence both oral and documentary to come to a conclusion as to the acts done by the appellant as alleged by the respondent amounts to cruelty. 27. In the present case, it is also not in dispute that neither the Family Court nor this court can grant decree of divorce on the ground of irretrievable break down of marriage, but the said aspect can be considered as one of the factors while deciding the application filed by the appellant seeking dissolution of marriage. 28. As discussed supra, as per Ex.P4/Ex.R1, the memorandum of settlement deed dated 06.09.2008, they have agreed to stay separately and also to marry any of person of their choice. There is no claim against each other. Even according to the respondent, both the appellant and respondent were staying separately from 06.09.2008 onwards. Without considering the said contents, learned Family Court dismissed the aforesaid OP filed by the appellant herein. Therefore, the impugned order is not on consideration of both oral and documentary evidence, more particularly, the contents of Ex.P4/Ex.R1 i.e. the memorandum of settlement deed dated 06.09.2008. Without considering the said aspects, learned trial Court has dismissed the said OP filed by the appellant. Therefore, the impugned order is liable to be set aside and accordingly, it is set aside. 29. FCOP No.1538 of 2010 filed by the appellant is allowed and the marriage between the appellant and the respondent performed on 02.07.1998 is dissolved by way of decree of divorce. 30. Accordingly, appeal is allowed. Miscellaneous applications pending, if any, shall stand closed. There shall be no order as to costs.