Ram Mohan Reddy, J.
1. The petitioner- husband, being aggrieved by the dismissal of his petition under Section 13(1-A)(11) and under Section 13(1)(ia) of the Hindu Marriage Act, 1955 (for short the 'Act') by the Judgment and Decree dt. 9-10-2003 passed in M. C. No. 206/2001 on the file of the I Addl. Principal Judge, Family Court, Bangalore (for short the 'Family Court'), has preferred this appeal under Section 19(1) of the Act.
2. The relevant facts necessary for decision making, may be stated thus : The appellant is the husband of the respondent whose marriage was solemnized on 8-3-1992 at Bangalore in accordance with the Hindu rites and customs. There are no issues from out of the said wedlock. While the appellant sought for a decree of divorce by filing a petition under Section 13(1)(ia) of the Act in M. C. No. 318/93, the wife filed M. C. No. 586/96 under Section 9 of the Act for restitution of conjugal rights. The Family Court clubbed the cases, held a common trial and by a common Judgment dt. 27-4-1999 dismissed the petition of the appellant for divorce and allowed the petition of the respondent directing restitution of conjugal rights. The appellant preferred two separate appeals in M. F. A. No. 3624/99 and M. F. A. No. 3625/99 which came to be dismissed by a common Order dated 6-4-2000 of a co-ordinate Division Bench of this Court. During the pendency of M. C. 318/93 and before the filing of the petition for restitution of conjugal rights by the respondent, she lodged a complaint dt. 28-2-1994 of dowry harassment by the appellant which ended in an acquittal by a Judgment dt. 19-11-1999 of the Criminal Court.
3. The appellant alleges that ever since the marriage in the year 1992, the parties were at loggerheads and the marriage was an unhappy alliance, the parties having approached the jurisdictional police for redressal of grievances. By the time, the appellant instituted divorce proceedings, the differences had reached a crescendo beyond reconciliation and the parties had parted company.
4. The further allegation of the appellant is that even after the decree for restitution of conjugal rights, the conduct, attitude and mental make up of the respondent was such that reconciliation and cohabitation was made impossible. The appellant, owner of the premises bearing Sy. No. 10/13 of Sunkadakatte, Bangalore-91, had given on lease the said premises to M/s Doddanna Vidya Samsthe, in the year 1997 for a period of five years for running an Educational Institution. Immediately, after the order dt. 27-4-1999 for restitution of conjugal rights passed by the Family Court in M. C. No. 586/96, the respondent along with her relatives and other persons, it is alleged, armed with the decree, barged into the said premises belonging to the appellant, threatened the employees of the Educational Institution and having taken law into their own hands, took possession of the premises. The complaint before the jurisdictional police by the said Institution did not result in any action compelling the Management to institute O. S. No. 6005/99 before the Civil Judge, Bangalore.
5. The respondent, it is alleged, having thus forcefully put herself in possession of the premises belonging to the appellant, started making telephone calls to the appellant with threats to his life. The appellant filed a police complaint on 16-3-2000 in this regard. It is further alleged that the respondent, her mother and some other persons, on 14-4-2000, 17-4-2000 and 18-4-2000, came to the house where the appellant's elder brother Narayanappa, by name, was residing along with his family, and using abusive language, shouted and screamed and threatened the appellant with dire consequences, if he did not resume marital obligations. This conduct of the respondent, according to the appellant, lowered his reputation and that of his family in the neighbourhood. On 19-4-2000, when the appellant's brother went to the police station to lodge a complaint, he was informed that the respondent had already lodged a police complaint on 18-4-2000. With regard to the said complaint lodged by the respondent, the police, on 8-6-2000 filed a B-report. Apprehending that the respondent would once again come near the house and create a scene, the brother of the appellant instituted O. S. No. 3186/2000 before the City Civil Court, Bangalore and obtained an ex parte ad-interim order of temporary injunction on 10-5-2000 against the respondent and others.
6. The further allegations of the appellant are that, he was a victim of a conspiracy hatched by the respondent, her father and his brothers and one Krishnappa, said to be the watchman of Doddanna Vidya Samsthe by which on 30-10-2000, he was whisked away from a house at Ankanahalli by the conspirators, who assaulted him mercilessly, resulting in grievous injuries and after having drugged him, confined him to a room. On the complaint of the appellant's brother, being anxious about the whereabouts of the appellant, the police secured the presence of the appellant in the police station. Looking to the physical condition of the appellant, he was immediately admitted to a nursing home at about 11 p.m. on 30-10-2000. Having recovered after 8 days, of being an inpatient, and the trauma of being beaten mercilessly at the hands of the respondent and her relatives and also being under the constant vigil of the henchmen of the respondent's father, the appellant had to leave the nursing home in a clandestine manner. ever since then, he has had no fixed place of aboard, but has been constantly shifting between the residences of his brothers and sisters due to fear of physical assault. On 30-11-2000, the appellant lodged a complaint narrating the incident, which was registered as Crime No. 424/2000.
7. The appellant claims to have studied only upto S. S. L. C., and having not secured a job, his brothers helped put him up in a business of retail trade in stationery during 1986, which he claims to have closed down in the year 1992 after his marriage, as a direct result of the incompatibility with his wife. The instances of cruelty alleged by the appellant are said to have left him in a state of mental shock and grave fear psychosis due to which he is unable to carry on his business and cohabit with the respondent. The appellant claims that these instances tantamount to cruelty of a high degree meted out to him, both mentally and physically, by the respondent.
8. On the aforesaid allegations, the appellant sought for a decree of dissolution of the marriage by filing a petition under Section 13(1-A)(ii) and 13(1)(ia) of the Act on 5-2-2001, which was numbered as M. C. No. 206 of 2001. The respondent sought for a decree of divorce on the ground that one year had passed from the date of decree for restitution of conjugal rights, i.e. 27-4-1999 without actual cohabitation between the parties and also the cruelty meted out to the appellant. The respondent, on notice, entered appearance and resisted the petition by filing her statement of objections denying all material allegations except the factum of marriage and admitted that it was an unhappy marriage. It is further averred that all the grounds urged in the petition were those, urged in M. C. No. 318/93 and M. C. No. 586/96 and which were rejected by the Family Court. In the premises of the pleading of the parties, the Family Court framed the following point for determination:
'Whether the petitioner-husband proves that though there is a decree in M. C. 586/96 for restitution of conjugal rights the same is not complied by the wife within one year from the date of the decree and her act has coupled with cruelty and thus the petitioner husband is entitled for dissolution of marriage and decree of divorce as contemplated under Section 13(1-A)(ii) read with Section 13(1)(ia) of Hindu Marriage Act 1955?'
9. The Family Court recorded the oral testimony of the appellant as PW-1 and one witness as PW-2 and marked 26 documents as Ex. P1 to P26, the respondent examined herself as RW-1 and marked 13 documents as Ex. R1 to R13. The Family Court, appreciating the evidence both oral and documentary, answered the point for consideration in the negative and dismissed the petition. Being aggrieved by the said dismissal, the appellant has preferred this appeal.
10. Smt. Hemalatha Mahishi, learned counsel for the appellant would contend that the Family Court misdirected itself while framing the point for consideration calling upon the appellant to prove non-compliance of the decree for restitution of conjugal rights by the respondent-wife. While, on the contrary, what ought to have been the question was whether there was no actual cohabitation between the parties during the statutory period of one year as contended by the appellant or there was resumption of cohabitation, as contended by the wife? The Family Court having not done so, it is contended the findings suffer from perversity of approach.
11. Elaborating on the said contention, she would point out with reference to the pleading and evidence, that it was the specific case of the appellant that one year had passed since the date of obtaining the decree for restitution of conjugal rights and except for the respondent having taken possession of the immovable property belonging to the appellant, and residing therein there was no actual cohabitation between the parties. It is her further contention that mere fact that the respondent having taken possession of the premises belonging to the appellant and residing therein, no inference could be drawn that there is cohabitation between the parties. She would further contend that the harassment meted out to the appellant by the respondent in filing complaints and physical assault of the appellant by the family members of the respondent coupled with forcibly taking over possession of the immovable property belonging to the appellant amounted to cruelty. In addition, she would contend that the complaint of the respondent of dowry harassment by the appellant, having ended in an acquittal on 19-11-1999 rendering her allegations false, also constituted cruelty of a grave nature. The cruel treatment meted out to the appellant by the respondent had thwarted the attempts of the appellant to cohabit with the respondent which according to the learned counsel did not constitute a 'wrong' of which the appellant had taken advantage of disentitling the appellant to a decree for divorce. Her further contention is that the respondent having not denied the fact that her allegations of dowry harassment turned out to be false, she pursued and reiterated the said allegations once again in her testimony before the Family Court, which act of cruelty was not considered by the Family Court, thus rendering its findings vitiated on account of perversity.
12. The learned counsel would point out to the admission of the respondent in paragraph 5 of the statement of objections that the marriage was an unhappy marriage as also the observation of the Family Court in the common Judgment and decree dt. 24-7-1999 in M. C. Nos. 318/93 and 586/96 which admitted of strained relationship between the parties ever since the year 1993 till date, to contend that the marriage having broken down irretrievably, the parties could no longer live as husband and wife and it is better to close the chapter. Lastly, she would contend that with the threat to life of the appellant, the respondent wife closed all doors for reconciliation and cohabitation which cannot be said that the appellant had taken advantage of his own 'wrong' in non-compliance of the decree for restitution of conjugal rights.
13. Per contra, the learned counsel for the respondent would support the findings of the Family Court as well merited, justified and not warranting interference. He would further contend that the decree for restitution of conjugal rights is compiled with and hence, the petition was misconceived.
14. Having heard the learned counsel for the parties and perused the impugned Judgment and award, the depositions of the witnesses and the original records of the Family Court, the only question that arises for determination in this appeal is whether the Family Court in recording a finding of compliance of the decree dt. 24-7-1999 for restitution of conjugal rights and the finding that the appellant was not meted out with cruelty by the respondent, could be considered just, proper and legal in the facts and circumstances of the case and evidence on record? If not, what relief the appellant is entitled to?
15. It appears that the parties have been litigating ever since the year 1993, when the appellant in his earliest petition in M. C. No. 318/93 alleged several instances of cruelty meted out to him by the respondent. During the pendency of the said proceedings before the Family Court, the respondent-wife, lodged a complaint of dowry harassment by the appellant and his elder brother, thereafter, filed a petition under Section 9 of the Act for restitution of conjugal rights in M. C. No. 586/96. The Family Court having clubbed both the matrimonial cases, tried them together, dismissed the petition of the appellant and while allowing the petition of the respondent directed restitution of conjugal rights. That common Judgment was challenged in two appeals before this Court in M. F. A. No. 3624 and 3625/99 which came to be dismissed by a Judgment dt. 6-4-2000. Even before the decree for restitution could be complied with, the respondent-wife entered upon the premises belonging to the appellant and has been living in the said premise ever since then. The parties, thereafter once again commenced litigation by filing complaints and counter complaints. In addition, the tenant of the premises belonging to the appellant on the allegations that the respondent had taken possession instituted O. S. 6005/99, before the City Civil Court for recovery of possession and other relief.
16. The appellant alleges that taking possession of the premises belonging to him, by the respondent by forcibly dispossessing the tenant of the premises, was an illegal and high handed act by the wife and her relatives. The appellant claims that this illegal action of the wife coupled with the accusations of dowry harassment by the respondent turning out to be false by the appellant's acquittal in the criminal ease has had a serious psychological impact on the appellant. In addition, the alleged threat to life and the assault, on the appellant has also had its effect on the psyche of the appellant. These actions of the respondent are said to have resulted in coming in the way of the attempts to reconciliation and cohabitation with the respondent. As against the said allegations, the case of the respondent/wife is that two days after the decree dt. 24-7-1999 for restitution of conjugal rights, a panchayati was held and attended to by the husband and wife and after the decision therein, the husband, by himself took the respondent to his resident at No. 10/13, Sunkadakatte, Bangalore 91 and resumed cohabitation. On the said assertion, the respondent claims that there has been due compliance of the decree for restitution for conjugal rights.
17. In support of the case of the appellant, he examined himself as PW-1, and reiterated the statements made in the petition for divorce. He examined the Secretary of the Doddanna Vidhya Institution, the tenant of the premises belonging to the appellant as PW-2. This witness is the elder brother of the appellant. Testimony of these two witnesses, records elaborate details about the allegations set out in the petition and the appellant seeks support from the police records and the findings recorded in the Judgment and decree of the Civil Court in O. S. No. 6005/99 instituted by the tenant of the premises belonging to the appellant. The certified copy of the Judgment acquitting the appellant and his brother of the complaint of dowry harassment in C. C. No. 6758/94 is at Ex. P2. The complaint of the PW-2 to the jurisdictional police on 18-2-2000 is at Ex. P5. The appellant has placed strong reliance on the connected police records at Exs. P6 and P7, as also, the police complaint dt. 11-11-2000 at Ex. P.10 lodged by the appellant against the respondent. Both the witnesses have testified to the lease deed of the premises marked as Ex, P20 and the institution of the suit in O. S. No. 6005/99 by PW-2, the resultant Judgment and decree and the appeal of the tenant, in RFA No. 643/03 against curtain findings of the Civil Court in the Judgment and decree passed in the said suit.
18. The respondent in her evidence, produced the positive and negative of the photographs marked as Exs. R1 to R6 to show that she is residing in the premises belonging to the appellant, having been brought to the said residence by the appellant two days after the decree dt. 24-7-1999 for restitution of conjugal rights. In support of her testimony, that she is residing in the said premises she produced certain letters marked as Exs. R10 & R11 addressed to her and received by her at the said address through post. In addition, she produced the electrical bills for having paid the electrical charges in respect of the electricity consumed in the said premises. She too would rely on the Judgment and decree dt. 17-4-2003 passed in O. S. No. 6005/99 which is marked as Ex. R-13 to point out that she was exonerated of the allegation of illegal dispossession of the Educational institution from the immovable property belonging to the appellant. Apart from reiterating the statement set out in the statement of objections, she has specifically testified to the allegations of demand of dowry by the appellant, in the course of her cross-examination.
19. Having perused the impugned Judgment, we find considerable force in the contention advanced by Smt. Hemalatha Mahishi that the Family Court misdirected itself, misconstrued the pleadings of the parties and adopted an incorrect approach in framing the point for consideration. From the petition averments, it is clear that the case made out by the appellant is that a year had passed by from the date of the decree for restitution of conjugal rights, but no actual cohabitation had taken place between the parties and that the appellant was not disentitled to a decree for divorce. What was urged by the appellant before the Family Court was that, he had not committed a 'wrong' as found in Section 23(1)(a) of the Act which would otherwise disentitle the appellant to get a decree of divorce. It is alleged that the decree for restitution of conjugal rights could not be complied with, as the acts of cruelty and harassment meted out by the respondent to the appellant had come in the way of reconciliation and cohabitation between the parties. It is not the case of the respondent-wife that the appellant, deliberately and with an intention to ultimately have a decree, did not complied with the decree for restitution of conjugal rights, but, on the contrary, it is her specific case that there is due compliance of the decree by resumption of co-habitation between the parties, pursuant to the Panchayati, commencing from two days after 14-7-1999, the respondent having taken his wife to his home. The question is whether the parties did not cohabit, if so whether the appellant was not taking advantage of 'his own wrong' by refusing to co-habit in compliance of the decree for restitution of conjugal rights. We find the Family Court misled itself into recording the said point for consideration as if the appellant has alleged non-compliance of the decree by the respondent-wife. The Family Court framed an incorrect point for consideration and proceeded to record its findings which in our opinion suffer on account of perversity.
20. On the allegations of the respondent wife in the petition under Section 9 of the Act numbered as M. C. No. 586/1996 for restitution of conjugal rights, that the appellant and his brother having harassed her for dowry, registered a complaint with the jurisdictional police, the Family court decreed the petition directing the appellant to perform his marital obligations with the respondent-wife within thirty days therefrom, and dismissed the petition for divorce filed by the appellant. The Family Court in its judgment recorded the following observations which are germane to the issue in this proceeding :
'33. I expressed my concern on the seriousness of submission made by the respondent side to show her willingness to join her husband. She has filed a memo on 26-6-1999 to the effect that she will withdraw the allegations made in CC 6758/94 pending before 3rd Addl. Chief Metropolitan Magistrate at Bangalore with a sole intention to lead a happy married life with her husband. By perusing the entire circumstances as demonstrated by both the parties, it is quite possible that more than the parties, the family members of both of them have also interacted to each other and must be held responsible to contribute for the actimony. There are several cases and counter criminal cases initiated on the complaint of the family members. Now, it is time that the parties would collectively make fresh effort dehorse the involvement of the relatives and other family members and build up the healthy matrimony. Hence, I am inclined to allow the prayer of the respondent/wife for restitution of her conjugal rights. Accordingly, I hold it is the respondent/wife who is entitled for the relief not the petitioner.'
21. The Apex Court, in the case of Hirachand Srinivas Managonkar v. Sunanda, : [2001]2SCR491 , while considering the meaning of the term 'cohabitation', extracted the following excerpts from Mulla's Hindu Law (17th edition at page 121).
'Cohabitation means living together as husband and wife. It consists of the husband acting as a husband towards the wife, and the wife acting as a wife towards the husband, the wife rendering housewifely duties to the husband and the husband supporting his wife as a husband should. Cohabitation does not necessarily depend on whether there is sexual intercourse, it is very strong evidence it may be conclusive evidence that they are cohabiting, but it does not follow that because they do not have sexual intercourse they are not cohabiting. Cohabitation implies something different from mere residence. It must mean that the husband and wife have begun acting as such and have resumed their status and position as husband and wife.'
22. The Family Court having passed the decree dated 24-7-1999 for restitution of conjugal rights in MC No. 586/96, the parties were duty bound to cohabit. The appellant, as a dutiful husband was required to discharge his marital duties towards his wife and in turn his wife to act as a devoted wife. The grievance of the appellant that the subsequent illegal acts of the respondent in forcibly taking possession of the premises owned by him from the tenant educational institution, the threat to his life, the physical assault, coupled with the accusations of dowry harassment against the appellant, proved to be false by his acquittal by the criminal Court had thwarted the attempts of the appellant to resume cohabitation which could not be a 'wrong' within the meaning of the said term in Section 23 of the Act of which the appellant was taking advantage of. The respondent's case is that immediately after the said decree, a Panchayati was held pursuant to which the appellant took her to his residence at No. 11/13, Sunkadakatte, Bangalore, where she is at present admittedly residing and resumed cohabitation. Therefore, the respondent's plea is one of compliance of the decree of restitution of conjugal rights by the appellant. The statutory period of one year having elapsed from the date of decree i.e. 24-7-1999 and since there was no cohabitation coupled with cruelty meted out to the appellant by the respondent, the petition for divorce was presented on 5-2-2001 under Section 13(1-A) and Section 13(1)(ia) of the Act.
23. It is no doubt true that the decree for restitution of conjugal rights is to bring about cohabitation between the estranged parties, so that they could live in the matrimonial home in amity. In short, it is to preserve the marriage. The remedy of the restitution of conjugal rights is predominantly aimed at cohabitation and consortium. The Supreme Court in the case of Saroj Rani v. Sudarshan Kumar, : [1985]1SCR303 , considering the rights of the parties in a decree of restitution of conjugal rights observed thus :
'15. In India it may be borne in mind that conjugal rights i.e. right of the husband or the wife to the society of the other spouse is not merely creature of the statute such a right is inherent in the very institution of marriage itself. See in this connection Mulla's Hindu Law 15th Edn. P. 567-para 443. There are sufficient safeguards in Section 9 to prevent it from being a tyranny. The importance of the concept of conjugal rights can be viewed in the light of Law Commission 71st report on the Hindu Marriage Act, 1955- 'Irretrievable Breakdown of Marriage as a ground of divorce, para 6.5 where it is stated thus :
'Moreover, the essence of marriage is a sharing of common life, a sharing of all the happiness that life has to offer and all the misery that has to be faced in life, and experience of the joy that comes from enjoying in common things of the matter and of the spirit and from showering love and affection on one's off spring. Living together is a symbol of such sharing in all its aspects. Living apart is a symbol indicating the negation of such sharing. It is indicative of a disruption of the essence of marriage 'breakdown' and if it continues for a fairly long period it would indicate destruction of the essence of marriage 'in-retrievable breakdown'.17. It is significant to note that unlike a decree of specific performance of contract, for restitution of conjugal rights, the sanction is provided by Court where the disobedience to such a decree is willful i.e., is deliberate, in spite of the opportunities and there are no other impediments, might be enforced by attachment of property. So the only sanction is by attachment of property against disobedience of a decree for restitution of conjugal rights where the disobedience follows as a result of a willful conduct i.e. where conditions are there for a wife or a husband to obey the decree for restitution of conjugal rights but, disobeys the same inspite of such conditions, then only financial sanction, provided he or she has properties to be attached, is provided for. This is so as inducement by the Court in appropriate case when the Court has decreed the restitution for conjugal rights and that the Court can only decree if there is no just reason for not passing decree for restitution of conjugal rights to offer inducement for the husband or wife to live together in order to give them an opportunity to settle up the matter amicably. It serves a social purpose as an aid to the prevention of break up of marriage.'
24. It is now well settled by a catena of decisions of the Apex court, this Court and other High Courts that the right conferred under Sub-section (i-a) of Section 13 is not absolute, but is qualified by the provisions of Section 23 of the Act. Sub-section (1a) of Section 13 merely enlarges the right to apply for divorce and not that it is compulsory to grant a decree for divorce on presenting a petition under the said section on the mere proof that there was no cohabitation. The provisions of Section 23 presuppose that the Court seized of the petition under Sub-section (ia) of Section 13 will grant the relief sought for, only if the condition in Section 24 are satisfied and not otherwise. It is trite that the grant or refusal to dissolve a marriage by a decree of divorce depends on the facts and circumstances of the case and there are no general principles of universal application.
25. In the light of the facts of this case what is required to be seen is whether the decree for restitution of conjugal rights is, in fact, not complied and there has been no reconciliation by the parties during the statutory period, as contended by the appellant or there is compliance of the decree as contended by the respondent?
26. The respondent wife is admittedly in possession of the premises belonging to the appellant. This possession is said to be at the behest of the appellant himself pursuant to a Panchayati that was held after the decree for restitution of conjugal rights dated 24-7-1999. It is the only plank on which the respondent seeks support to establish her possession of the property; continued residence and the assertion that there has been cohabitation between the parties, Admittedly, the proof of such Panchayati having taken place and the persons who sat in the Panchyati, the decision that was taken are not laid before the Court. The respondent, apart from her interested testimony, did not adduce evidence in support of the factum of Panchayati, the appellant having taken her to his home and resumption of cohabitation. In the absence of evidence of independent, uninterested witness, it would be highly incredible to believe the testimony of RW1 that there was a Panchayati pursuant to which the Appellant had taken her home and resumed cohabitation. This we say for two reasons, firstly, the Appellant's appeals in MFA 3624 and 3625 of 1999 were pending on the file of this Court and secondly, criminal proceedings on the complaint of dowry harassment was pending as on 24-7-1999, the date of decree for restitution of conjugal rights and it is only on 19-11-1999, the Appellant was acquitted by the criminal Court of the charges under Sections 498A and 506-B of the Indian Penal Code read with Sections 3 and 4 of the Dowry Prohibition Act in CC No. 6758 of 1994. So also, the observation of the Family Court in its judgment dated 24-7-1999 as at exhibit P1, extracted supra, the conduct of the respondent is quiet queer, in that she filed a memo dated 26-6-1999, seeking to withdraw the allegations of dowry harassment with an intention to lead a happy married life, though not acted upon nor a finding recorded. In addition, the Family Court, recorded, in its judgment, that the relatives of both the parties have been litigating and it is only with the hope that the parties would reconcile the decree for restitution of conjugal rights was passed. One another important fact is the conduct of the respondent in pursuing and reiterating the allegations of dowry harassment by the Appellant, in her cross-examination before the Family court even after the said allegations were found to be false by the criminal Court, cannot be eschewed in the decision making.
27. The Family court, in the said petition, under Section 9 of the Act, did not record a finding on the allegations of dowry harassment while dismissing the petition for divorce, in view of the pendency of the criminal proceedings. The Appellant's case is that cohabitation was not resumed due to the actions of the respondent wife which did not make it conducive and congenial to make a living with her. The photographs marked as Exs. R1- R6 can only boast of very orderly house keeping by the respondent. The letters at Exs. R-10, R11 addressed to the respondent is evidence of her stay at the said address. These documents are not substantial legal evidence or proof of cohabitation by the parties.
28. Very strangely, the respondent sought to prosecute and punish her husband along with his brother for alleged acts of dowry harassment while at the same time sought restitution of conjugal rights. The oral testimony of the parties discloses that they did not reside together and cohabit, In fact, in the cross examination of the Appellant, it is elicited that he has no permanent place of abode and keeps shifting his residence from one brother's house to another and sometimes to his sister's house which is also noticed by the Family Court in the course of the impugned judgment. The finding of the Family court of cohabitation between the parties is an inference drawn on the basis of the admitted fact that the wife is residing in the premises belonging to the Appellant.
29. We are of the considered opinion that this finding of the Family Court is an inferential finding vitiated on account of perversity. We hold that the parties did not resume cohabitation after the decree for restitution of conjugal rights.
30. The next question is whether the conduct of the respondent-wife towards the Appellant could be termed 'cruelty' and if so the consequent refusal to cohabit by the husband, in the facts of this case could not be considered to be a 'wrong' within the meaning of the said term in Section 23(ia) of the Act so as to entitled the Appellant to the relief of divorce?
31. The standard of proof that is required in matrimonial cases is one of preponderance of probabilities and not strict proof of evidence as in criminal proceedings. The beliefs regarding existence of facts may thus be founded on the balance of preponderance of probabilities in matrimonial matters. The Court has often a difficult choice to make given the wide range of probabilities, but it is the choice which ultimately determines where the preponderance of probabilities lie.
32. Keeping in mind, this well known principle and applying the same to the facts of this case, we are of the considered view that all is not well in the relationship between the parties ever since their marriage solemnized on 8-3-1992. The parties have no children from out of the wedlock. The Appellant sought for divorce by filing a petition in the year 1993 on the ground of cruelty, during the pendency of which, the respondent lodged a complaint for alleged dowry harassment by the Appellant along with his elder brother and at about the said time, filed a petition under Section 9 of the Act for restitution of conjugal rights. The admission of the wife that it was an unhappy marriage, as found in her statement of objections, coupled with the judgment dated 24-7-1999 of the Family court allowing the petition for restitution only with the fond hope that the parties would reconcile and settle on making fresh efforts without involving the relatives and other family members, although there are several cases and counter cases filed between, the parties and their relatives, apparently has not made any change for the good. The documents speak to the fact that there have been complaints and counter complaints, institution of original suits and criminal proceedings, during the period from 1993 onwards, as between the parties and their relatives, it is quite reasonable to hold that the parties are at loggerheads and have not reconciled so as to make a happy home. The efforts of the Family Court in bringing about rapprochement between the parties ended in failure as noticed by it in its impugned judgment. The apprehension of the Appellant that something serious would be fall on him having experienced the physical onslaught by the family members of the respondent-wife it is probable that the Appellant has developed an aversion towards the respondent to return and cohabit with her. The Appellant's claim to have suffered from traumatic experiences because of complaints of dowry harassment causing loss of reputation and prestige in society is well founded. The conduct of the respondent in prosecuting the husband while at the same time seeking restitution of conjugal rights shows lack of self control driving the respondent to refrain from cohabitation. The wife, in her evidence made a conscious and deliberate statement reiterating the allegations of dowry harassment despite the same having been held false by a competent Criminal Law Court, cannot so lightly be ignored or brushed aside so as to be of no consequence. The allegations, apart from being per se cruel in value on their own, also constitute an admission of the fact that for quite sometime in the past and in the present, the wife has been persistently indulging in such vitiated allegations, unrelenting and unmindful of their impact.
33. In these circumstances, it is reasonable to accept that the Appellant has developed an aversion to live and cohabit with the respondent. We are of the considered view that the Appellant cannot be found fault with and his conduct cannot possibly fall within the expression 'his own wrong' under Section 23(1)(a) of the Act so as to disentitle him to a decree for divorce to which he otherwise is entitled.
34. The appellant has taken a specific plea in his petition for divorce that the marriage has broken down irretrievably. On a fair consideration of the materials on record and keeping in mind the totality of circumstances and established facts, we find considerable force in the contention of Smt. Hemalatha Mahishi, learned counsel for the appellant that the parties cannot live together as husband and wife and it is better to close the chapter.
35. The Family court misdirected itself to the points in dispute between the parties, failed to consider the facts in the light of the authoritative pronouncements of the Apex Court, cited before it, and not having applied itself in the direction of the provisions of law applicable to the case, the findings are vitiated on account of prevention of approach calling for a different conclusion at our hands.
36. In the result and for the foregoing reasons, the appeal is allowed. The impugned judgment and decree dated 19-10-2003 passed in MC No. 206/2001 is set aside and we allow MC No. 206/2001 declaring the marriage between the parties dissolved by a decree for divorce.
In the peculiar facts of the case, parties to bear their respective costs.