IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 21.06.2011 CORAM The Honourable Mr. Justice ELIPE DHARMA RAO and The Honourable Mr. Justice M. VENUGOPAL C.M.A.No.3127 of 2009 S.N.Sureshbabu .. Appellant/Petitioner vs. Latha .. Respondent/Respondent PRAYER: Appeal filed under Section 19 of the Family Courts Act, 1984 praying for the relief stated therein. ----- For appellant : Mr.V.Jagannathan For respondent : Mrs.A.Arulmozhi. ----- J U D G M E N T (Judgment of the Court was delivered by M. VENUGOPAL,J.) The Appellant/Husband has filed the present civil miscellaneous appeal as against the order dated 24.7.2009 in O.P.No.2175 of 2004 on the file of the learned II Additional Judge, Family Court, Chennai. 2. The marriage between Appellant/Husband and the Respondent/Wife took place on 28.2.1996 at Nalavazhvu Kalyana Mandapam, No.81, Avvai Shanmugam Salai, Lloyds Road, Chennai-14, according to Hindu Rites and Customs. After marriage, both of them lived together in Appellant/Husband's house. As a result of the wedlock, a female child, viz., Kavitha @ Jajol was born to them on 21.1.1997. After deliverance of the child, the relationship with the Respondent/Wife was not cordial. According to the Appellant/Husband, the Respondent/Wife used to pick up quarrels and threaten him to live in a separate house. The Respondent/Wife shifted her house to No.7, Nehru Nagar IV Street, https://hcservices.ecourts.gov.in/hcservices/ Cholapuram, Ambattur. 3. In the O.P.No.2175 of 2004 filed by the Appellant/Husband under Section 13(1)(i), (ia) and (ib) of the Hindu Marriage Act seeking Divorce against the Respondent/Wife on the ground of cruelty, he has mentioned that his wife was having illicit intimacy with one Muthu. Admittedly, the said Muthu was not impleaded as a party to the proceedings in the Original Petition, to prove the allegation of adultery. 4. It is the case of the Appellant/Husband that one day, he had seen his wife, viz., the respondent herein with the said Muthu in a compromising position; that the Respondent/Wife went to her parents house without his knowledge and after panchayat, they lived together in Ambattur for about a month. Thereafter, on 9.7.1999, the Respondent/wife's brother assaulted the Appellant/Husband at 9 a.m. and the appellant/Husband lodged a complaint against him in D.1 Triplicane Police Station. On the same day evening, the Respondent/Wife lodged a complaint against the Appellant/Husband and his parents in W.3 All Women Police Station, Thousand Lights and during enquiry, the police officials advised the parties to live together, but till date, according to the Appellant/Husband, the Respondent/Wife had not returned back to the matrimonial home. 5. It is the specific case of the Appellant/Husband that the Respondent/Wife deserted him on 6.7.1999. Also, the Appellant/Husband, in O.P.No.2175 of 2004, has pleaded that the Respondent/Wife ill- treated him by using filthy and abusive language. She had also threatened him to commit suicide day by day and because of the above said activities, it caused mental agony, disgrace, dejection and disappointment to his life. Therefore, he had filed the petition for divorce on the ground of cruelty, adultery and Desertion. 6. Per contra, the Respondent/Wife had denied the allegations made against her by the Appellant/Husband, in her counter. It is the categorical denial of the Respondent/Wife that she had intimacy with one Muthu, who was the owner of the house, where the parties resided together at Ambattur. According to the Respondent/Wife, she knew the said Muthu only as a house owner and she was having cordial friendship with the house owner's family. It is the plea of the Respondent/Wife that misunderstanding between her Husband and herself has arisen due to the suspicious nature of the Appellant/Husband. 7. During trial, the Appellant/Husband examined himself as P.W.1, and Ex.P.1 Marriage Invitation was marked on his behalf. On the other hand, the Respondent/Wife examined herself as R.W.1 and no documents were marked on her side. 8. The trial court, on appreciation of the oral and documentary https://hcservices.ecourts.gov.in/hcservices/ evidence let in by the parties, had given a categorical finding that the Appellant/Husband had not proved his allegation that the Respondent/Wife was living in adultery, committed cruelty and desertion and accordingly, held that the Appellant/Husband is not entitled to get the relief of Divorce as prayed for in his Original Petition and consequently dismissed the Original Petition. 9. Though the Appellant/Husband has filed the present appeal assailing the order of the trial court passed in O.P.No.2175 of 2004 thereby dismissing his petition, it is to be pointed out that when an allegation of cruelty, adultery and desertion having been made against the Respondent/Wife, it is the duty of the Appellant/Husband to prove the same before the Court of law. 10. The onus of proving adultery in a matrimonial matter is on the person who makes the allegation. Mere suspicion is not enough. There ought to be circumstances amounting to proof that opportunities could be used such as association of parties was clear that adultery might reasonably be assumed as the result of an opportunity for an occurrence as per the decision reported in Sachindranath Chatterjee v. Smt.Nilima Chatterjee [AIR 1970 Cal. 38 {DB}]. 11. In the present case, when the Appellant/Husband has not been in a position to prove the allegations of cruelty, adultery and desertion, then making such sort of allegation against the Respondent/Wife will amount only to cruelty upon the Wife. Therefore, the proper person, who is aggrieved against the act of cruelty made by the Husband, is the Respondent/Wife. In the present case, the Respondent/Wife has not resorted to filing any Original Petition, seeking appropriate relief, in the manner known to law. On the other hand, it is only the Appellant/Husband, who had filed the petition on the ground of cruelty, adultery and desertion. 12.In law, the mental cruelty should be of such a kind that the parties cannot reasonably be expected to live together. It is not essential that the mental cruelty is such as to cause injury to the health of the petitioner. While coming to the such conclusion a Court of law is required to take into account the social status, educational level of the parties, the Society they move, the possibility or otherwise of the parties ever living together in case they are already living separately and all other relevant facts and circumstances. 13. In short, on going through the order passed by the trial Court in O.P.No.2175 of 2004, we are of the considered view that the Appellant/Petitioner/Husband has not made out a case as alleged by him in his O.P.No.2175 of 2004 amounting to cruelty, adultery and desertion and the allegations made against the Respondent/Wife are not substantiated by him in any manner. Therefore, we are left with no option but to dismiss the appeal thereby confirming the order https://hcservices.ecourts.gov.in/hcservices/ of the trial court in O.P.No.2175 of 2004 dated 24.7.2009. 14. Looking at from any angle, the Civil Miscellaneous Appeal is devoid of merits. Resultantly, the Civil Miscellaneous Appeal is dismissed with costs throughout. The Appellant/Husband is directed to pay a sum of Rs.25,000/- towards costs to the Respondent/Wife, within two weeks from the date of receipt of a copy of this order, failing which, it is open to the Respondent/Wife to take necessary steps to recover the costs from the Appellant/Husband in the manner known to law. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar gs. . To The II Additional Principal Judge, Family Court, Chennai. +1cc to Mr.V.Jagannathan, Advocate Sr 35857 +1cc to M/s.S.Arulmozhi, Advocate Sr 35795 CK(CO) km/6.7. CMA NO.3127 of 2009 https://hcservices.ecourts.gov.in/hcservices/