T. Mallikarjuna Rao, J.

1. Both appeals are decided in this common Judgment as they challenge the same Order.

2. F.C.A. No. 213 of 2015, filed under Section 19 of the Family Courts Act, 1984, by the Appellant/Respondent-husband. It contests the Order dated 09.02.2015 in H.M.O.P. Nos. 147 & 155 of 2010 by the Judge, Family Court-cum-XII Additional District Judge, Guntur (for short, "the Family Court"). The Family Court allowed the H.M.O.P. No. 155 of 2010 filed by the Respondent/wife for restitution of conjugal rights.

3. F.C.A. No. 217 of 2015, under Section 19 of the Family Courts Act, 1984, is filed by the Appellant/Petitioner-husband. It challenges the same Order dated 09.02.2015 in H.M.O.P. Nos. 147 & 155 of 2010 by the Family Court. The Family Court dismissed the H.M.O.P. No. 147 of 2010 filed by the Appellant/Petitioner/husband for a decree of divorce.

4. Since both the petitions were jointly tried, it is pertinent to refer the facts in H.M.O.P. No. 147 of 2010. Parties will be referred to as in

5. In summary, the Petitioner's case in H.M.O.P. No. 147 of 2010 is outlined as follows:

(a) The Petitioner and the Respondent are the husband and wife; their marriage was performed on 02.12.2001 at Guntur; initially residing in Chennai, the Petitioner, employed in Chennai, was later transferred to Hyderabad in May 2002, where they relocated. Issues arose when the Respondent insisted on the Petitioner sending away his parents. Subsequently, in July 2002, the Respondent left for her parent's house without informing the Petitioner and did not return to Hyderabad.

(b) The Petitioner contends that in July 2003, after returning from the U.S.A., he visited Guntur to see his newborn child. During his visit, his in-laws proposed purchasing a flat in Guntur as a gift for his wife, coercing him to buy it in her name. With no alternative, he acquired a flat worth Rs. 15,00,000/-, paying Rs. 5,00,000/- in cash and securing a loan of Rs. 10,00,000/- from H.D.F.C., bank, mortgaging the flat. Despite paying the E.M. Is., his wife chose to live alone and work instead of accompanying him to Japan in April, 2004. Upon his return in April, 2005, the Petitioner requested his wife to allow his parents to stay, but she refused. A dispute arose when his wife withdrew Rs. 20,000/- using his debit card without permission, leading to her leaving the house without notice.

(c) The Petitioner asserts that in 2005, his wife expressed a permanent desire to move away from his parents to the opposition, his parents relocated and secured separate accommodation for the Petitioner's future. In June, 2006, the Petitioner went to the U.S.A., urging his wife to join him, but she declined, requesting money instead to purchase the property. The Petitioner sent Rs. 8,00,000/-, and she acquired Plot No. 5 in Nuvuluru Village, Mangalagiri Mandal, in her name. After a struggle, his wife joined him in the U.S.A. in December, 2006, staying for four months before returning to India on 28.04.2007. The Petitioner alleges harassment, both physical and mental, by his wife, who also stopped cooking.

(d) In July, 2007, the Petitioner returned to India, arranging Visa appointments and stamping procedures in Chennai. However, his wife refused to come to Chennai, demanding Rs. 70,00,000/- for constructing a residential complex by demolishing her parents' dilapidated house. The Petitioner contends that his wife's attitude turned cold after purchasing the flat in Guntur. She neglected him regularly, pretending cordiality until he purchased the property in her name. After that, she harassed him physically and mentally, shouting and damaging his reputation in the locality. The Petitioner asserts that living with her is untenable due to the misuse of marital relations. The parties have a child named Vidip, born on 16.10.2003, and as the natural guardian, the Petitioner claims entitlement to custody under the Hindu Minority and Guardianship Act.

6. (a) The respondent/wife filed a counter, refuting the allegations in the petition's supporting affidavit. She asserts that her parents provided Rs. 10,00,000/- in cash and 400 grams of gold to the Respondent and 160 grams of gold to the Petitioner. Additionally, the Petitioner's father received Rs. 2,00,000/- at the engagement, followed by Rs. 4,00,000/- in February and June, 2002 for household articles. The Petitioner allegedly asked her father to take her away, claiming he no longer needed her. In July, 2002, while in the U.S.A., the Petitioner allegedly threatened her through calls and emails, demanding to leave the house and arrange money through her father. She received Rs. 5,00,000/- from her father, who provided a cheque for Rs. 5,00,000/- to the vendor for the Guntur apartment. The balance of Rs. 15,00,000/- was borrowed from H.D.F.C., bank, with the Petitioner as a co-obligant. She claims her temporary job prevented her from obtaining a bank loan, so the Petitioner received her salary and paid the Bank with his cheques.

(b) She further contends that in June, 2005, the Petitioner returned from Japan, demanding additional dowry for purchasing a Rs. 15,00,000/- flat. Her father provided Rs. 5,00,000/- for Plot No. 475 at Gayatri Nagar. On the night of 15.07.2005, she alleges the Petitioner threatened and harassed her, leading to her leaving the house at midnight. The Petitioner lost his job on July, 22 due to his behaviour, and she also lost her job. She sought to set up a family in Chennai, where the Petitioner found a job, so she requested Rs. 50,000/- from her parents. The Petitioner left for the U.S.A., on 26.06.2006, instructing her to book a ticket in November, 2006, for which she spent Rs. 2,00,000/-. The Mangalagiri flat was allegedly purchased with her father's money, with the remaining amount taken as a loan by her brother from Andhra Bank.

(c) In 2006, she went to the U.S.A. with her aunt. The Petitioner received them but made them stay in a hotel for a week without securing a house. Under pressure from her aunt, the Petitioner arranged accommodation. With a pre-plan, he informed her about his intention to purchase flats in Mangalagiri and Hyderabad. He requested her to return to India, make necessary arrangements by borrowing money from relatives, and assured repayment once his salary increased. In May, 2007, she purchased Plot No. 1 in S. No. 790 of Navuluru village for Rs. 14,00,000/-. Another plot worth Rs. 40,00,000/- was jointly purchased with the Petitioner and his relative Srinivasa Naidu, with Rs. 10,00,000/- borrowed from her uncle D.K. Rao. She spent Rs. 2,00,000/- on stamping fees, booking tickets to the U.S.A., and travelling to Chennai for stamping. Additionally, Rs. 50,000/- was paid to the Petitioner upon his arrival in India on 09.07.2007.

(d) She further contends that the Petitioner left for Chennai alone, and she couldn't trace him. The Petitioner's passport was sent to her address in Guntur. He informed her about a job crisis and advised against joining him in the U.S.A. She continued her temporary job to resign at any time to join him. After receiving notice of this case, she secured a permanent job in November, 2009. The Petitioner allegedly pretended cordiality until she purchased two flats, arranged for Visa stamping, and discharged debts amounting to Rs. 12,00,000/-. The father of the Respondent approached the Petitioner's father for a reunion on the condition that the Respondent transfers all her properties to enable him to buy a house in the U.S.A. The Petitioner did not allow her into his home until his demands were met. She expresses readiness to join the Petitioner and highlights his lack of moral and financial support in raising their child despite his better financial position.

7. The trial court examined P.Ws. 1 to 3 and marked Exs.A.1 to Ex.A.6. On behalf of the Respondent, R.Ws.1 to 7 were examined, and Exs.B1 to B43 were marked.

8. The trial court dismissed the divorce petition (H.M.O.P. No. 147 of 2010) and allowed the petition for restitution of conjugal rights (H.M.O.P. No. 155 of 2010). Aggrieved by the common Order, the appellant/husband filed the two present appeals.

9. We have heard the arguments of Sri J. Ugranarasimha, learned Counsel for the Appellant/husband, and Sri S. Sreeramachandra Murthy, learned Counsel for the Respondent/wife.

10. We have given our thoughtful and anxious consideration to the submissions made by the learned Counsel on both sides.

11. The Appellant's Counsel argues that the trial court made errors in its observations. It incorrectly stated that there was no separation and intention to end cohabitation permanently since the Respondent left the Petitioner's company without any reasonable cause from 28.04.2007, and she did not rejoin him. The trial court allegedly failed to consider the Appellant's evidence and documents properly, misinterpreted the evidence of P.W.2 (the Appellant's father), and wrongly concluded that the Appellant failed to prove cruelty. The Appellant's Counsel asserts that the trial court overlooked important details, including bank transactions and the certified copy of the Order in M.C. No. 41 of 2009, which showed the Appellant did not refuse to discharge his legal obligation.

12. On the other hand, the Respondent's Counsel argues that the trial court correctly understood the case facts and reached a valid conclusion. The reasons provided by the trial court in both petitions do not warrant modification.

13. Given the arguments advanced before this Court, the points that arise for consideration, are as follows,

"1. Whether the Petitioner proved the ground of desertion on the part of the Respondent

2. Whether the Petitioner established that the Respondent committed cruelty

3. Whether the Respondent is entitled to a decree of restitution of conjugal rights

4. Does the Common Order of the Family Court need any interference"

POINT NO.1:

14. In H.M.O.P. No. 147 of 2010, the husband is the Petitioner seeking a divorce on the grounds of cruelty and desertion, while in H.M.O.P. No. 155 of 2010, the wife is the Petitioner seeking restitution of conjugal rights. Both cases were tried together and disposed of by a common judgment on 09.02.2015.

15. For clarity, the husband is referred to as the Petitioner and the wife is referred to as the Respondent.

16. Before considering the disputed facts, we are inclined to refer the admitted facts/disputed facts, which are as follows:

"(i) The parties had an arranged marriage on 02.12.2010 in Guntur following Hindu rites. After the marriage, they resided in Chennai, where the petitioner/husband worked. Subsequently, they moved to Hyderabad and lived in the Petitioner's flat at Kukatpally, along with his parents.

(ii) The divorce petition (H.M.O.P. No. 147 of 2010) was filed by the petitioner/husband, primarily citing desertion and cruelty as grounds. The petition was presented in the Family Court, Ranga Reddy District, on 22.05.2009. The Petitioner executed a General Power of Attorney (G.P.A.) in favour of his father (PW.2) and a special power of attorney in front of a notary public in the State of Ohio on 26.04.2009. The Petitioner also filed a petition under rule 32 of C.R.P., seeking recognition of his father as G.P.A. on his behalf. The petition appears to have been prepared in April, 2009, signed on 15.05.2009, and presented to the Court on 22.05.2009.

(iii) The respondent/wife left the U.S.A. on 28.04.2007, and the H.M.O.P. petition by the Petitioner was prepared in April, 2009."

17. The burden is upon the Petitioner to establish the ground of desertion and cruelty. To establish the same, the Petitioner himself examined as PW.1. He reiterated all the facts in his chief affidavit as narrated in the petition. PW.1 testified that in July 2002, the Respondent without informing him and his parents went to her parents house in Guntur and she did not come back to Hyderabad; when he asked her to join him, she bluntly replied that she would come only if his parents moved out of the house and she further warned him that she did not want to live with his parents and imposed a condition on him that he should never give any money to his parents. PW.1 further testified that one day, the Respondent has withdrawn Rs. 20,000/- through his Debit card from his account without his permission and knowledge; when he asked casually the purpose of withdrawing the money, she behaved furiously and picked up quarrel for no reason and left the house without intimating him and his parents about this incident. He further testified that Respondent came to USA in December 2006 after a great struggle and she stayed there for four months with him and she returned to India on 28.04.2007 leaving his company against his wish and consent; during her stay in USA, she always doubted him that he was sending money to his parents and relatives in India; she deserted him for a continuous period more than two years preceding presentation of the petition; she left the matrimonial house on 28.04.2007 with clear intention not to resume cohabitation permanently with him and ever since they never lived together.

18. PW.2, who is the PW.1's father, testified in his chief examination that Respondent never interested to join her husband wherever he worked after his marriage; she has not accompanied her husband when he was in Japan or in USA; she wanted to live in India and advising the Petitioner to stay alone in USA and sent money to her to invest in Real Estate for buying immovable properties; she has given priority for earning money rather than to lead marital life with her husband in USA; she has given least importance to marital life by ignoring all his pleas. He further testified that Petitioner came to India in July 2007 and stayed here for nearly three weeks and took Visa appointments and made all arrangements for stamping in Chennai; but the Respondent refused to go to Chennai for Stamping until and unless the Petitioner fulfills her requirements to procure Rs. 70,00,000/- to construct a residential apartment by demolishing her parents' old house; the Petitioner expressed her inability to arrange such a large amount, but his efforts to convince her proved futile; the Respondent was quite adamant and maintained her tamper, finally she did not accompany the Petitioner for Stamping in Chennai and further to USA.

19. Respondent, in support of her case as to how she lived amicably with the Petitioner during their stay in the U.S.A., examined RW.2. The Respondent also examined RWs.6 and 7 to prove that at the time of their marriage, her parents paid Rs. 10,00,000/- along with gold ornaments.

20. RW.2-G.Usha Rani, the Respondent's aunt, testified that during her two visits to the Petitioner and Respondent's house in the U.S.A., the couple exhibited cordial behaviour. She recounted instances of the Respondent cooking and serving food during her stay, indicating a harmonious relationship. The Petitioner, occupied with work, allegedly requested RW.2 to persuade the Respondent to return to India, but the Respondent declined. RW.2 abruptly left the U.S.A. in March 2007 due to her husband's heart operation. During cross-examination, RW.2 clarified that she is the Respondent's sister's daughter, could not recall specific visit dates, and did not bring the Respondent back to India, as requested by the Petitioner. Additionally, she confirmed that two plots mentioned in her affidavit were registered in the Petitioner's name after the Respondent's return to India. Despite searching cross-examination, nothing is elicited to discredit her evidence regarding her visit to the Petitioner's house and his asking her to take the Respondent.

21. RW.6 (G. Srinivasa Rao), the Petitioner's co-brother, testified about his role as one of the elders during the alliance arrangement between the Petitioner and the Respondent. His evidence indicates that the Respondent's parents agreed to pay Rs. 10,00,000/-, along with gifting 400 grams of gold to the Respondent and 160 grams of gold to the Petitioner. At the engagement ceremony on October 31, 2001, held at the Respondent's house in Guntur, RW.3, the Respondent's father had issued two bearer cheques totalling Rs. 4,00,000/- drawn on Union Bank of India, Lakshmipuram Branch, Guntur. These cheques were handed over to RW.6 at that time.

22. RW.7, the Petitioner's brother-in-law, also provided testimony supporting the payment made by the Respondent's father during the engagement and marriage. Both RW.6 and RW.7 stated that they attempted to mediate and settle the issues between the Petitioner and the Respondent, but these efforts were futile due to the Petitioner's inflexible stance. While RW.6 and RW.7 attempted to align with the Petitioner's claims, their evidence did not substantially contribute to resolving the key issues in dispute.

23. In paragraph 9 of the petition (H.M.O.P. No. 147 of 2010), it is asserted that the Visas of both parties expired in September, 2007. The Respondent returned to India in April, 2007, and the Petitioner returned in July, 2007, staying for nearly three weeks. The Petitioner arranged for Visa stamping in Chennai, but the Respondent refused to go under certain conditions, hindering the Visa stamping process.

24. According to the Petitioner's version, both parties planned to return to the U.S.A., in July, 2007. The trial court observed that if there was any separation between the parties, it occurred from July, 2007 and not from the alleged date of the Respondent's departure on 28.04.2007.

25. The respondent/wife submitted documents (Exs.B.4 to B.9) to demonstrate her efforts for Visa stamping and ticket purchase. In Ex.B.4, a letter to the Branch Manager of H.D.F.C., Bank, Vijayawada, the Respondent stated that she paid the U.S. Visa stamping fee for three persons in June, 2007. She requested copies of the receipts as the originals were lost- consequently, the U.S.A. MARY VISA FEE deposited slips for the parties and their child were issued and marked as Exs.B.5 to B.8, all dated 07.06.2007.

26. The Petitioner submitted Ex.B.42, an email correspondence between him and his employer detailing travel plans for the Respondent. It indicated that the Respondent would travel to India between 21.04.2007 and 29.04.2007 and return between 21.07.2007 and 29.07.2007, and the Petitioner planned to join her in July, 2007. The employer also wrote a letter (Ex.B.41) to the U.S.A. The Consulate, Chennai, requests an H4-Visa for the Respondent and the child. Both parties, when leaving the U.S.A. in April 2007, intended to return together in July, 2007, as evidenced by booked tickets. Thus, it cannot be said that the Respondent had animus deserendi.

27. For better appreciation, the Section 13(1)(i-b) of the Act, reproduced hereunder:

"13. Divorce.-(1) Any marriage solemnised, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party-

***

(i-b) has deserted the Petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition

or

***

Explanation.-In this sub-section, the expression 'desertion' means the desertion of the Petitioner by the other party to the marriage without reasonable cause and the consent or against the wish of such party, and includes the wilful neglect of the Petitioner by the other party to the marriage. It's grammatical variations, and cognate expressions shall be construed accordingly."

28. In Jaisingh Bhai Shah V. Prabhawati 1957 AIR 176, the Hon'ble Apex Court observed that:

"The essential conditions for the offence of desertion, so far as the deserting spouse is concerned, are (i) the factum of separation and (ii) the intention to bring cohabitation permanently to an end (animus deserendi), and as regards the deserted spouse the elements are (i) the absence of consent and (ii) absence of conduct giving reasonable cause to the spouse leaving the marital home to form the necessary intention aforesaid."

29. In Debananda Tamuli v. Kakumoni Kataky 2022) 5 SCC 459, [LQ/SC/2022/202 ;] the Hon'ble Supreme Court held that:

"7. We have given careful consideration to her submissions. Firstly, we deal with the issue of desertion. The learned Counsel appearing for the Appellant relied upon the decision of this Court in Lachman Utamchand Kirpalani [(1964) 4 SCR 331] [LQ/SC/1963/187] , which has been consistently followed in several decisions of this Court. The law consistently laid down by this Court is that desertion means the intentional abandonment of one spouse by the other without the consent of the other and a reasonable cause. The deserted spouse must prove that there is a factum of separation and an intention on the part of the deserting spouse to bring the cohabitation to a permanent end. In other words, there should be animus deserendi on the part of the deserting spouse. There must be an absence of consent on the part of the deserted spouse, and the conduct of the deserted spouse should not give a reasonable cause to the deserting spouse to leave the matrimonial home. The view taken by this Court has been incorporated in the Explanation added to sub-section (1) of Section 13 by Act 68 of 1976.

8. The reasons for a dispute between husband and wife are always very complex. Every matrimonial dispute is different from another. Whether a case of desertion is established or not will depend on the peculiar facts of each case. It is a matter of drawing an inference based on the facts brought on record by way of evidence."

30. Desertion of one spouse by the other is recognized as a ground for divorce under the Act. When a spouse lives separately from his/her life partner for a period exceeding two years, it qualifies as desertion. However, if the reason for such separation is harassment or ill-treatment, the one who is accused of such acts cannot take the plea of desertion. It is only when the husband or wife leaves the matrimonial home out of his or her own volition, intending to live separately from the other spouse, that the act of desertion can be said to have taken place. Another aspect is that the ground of desertion cannot be decided based on one or two assertions or denials. The circumstances that led to the parties living separately need to be taken into account in entirety.

31. Considering these facts, the trial court correctly observed that if the Respondent had no intention of joining the Petitioner, she wouldn't have taken these actions. Valid travel documents for the Respondent were essential for her to join the Petitioner residing in the U.S.A.

32. The evidence indicates that the Petitioner retained the Respondent's Ex.A.3-Visa application and Ex.A.4-Confirmation of the Visa interview appointment for their minor child. Ex.A.3 mentions the intended travel date of the Respondent to the U.S.A. as 26.07.2007.

33. The trial court rightly pointed out that the Petitioner retained both Exs.A.3 and A.4, which are appointment letters for the Respondent and child to obtain a U.S.A. Visa. This contradicts the Petitioner's claim that the Respondent had no intention of joining him. The retention of these documents disproves the Petitioner's contention that the Respondent had animus deserendi. Booking to-and-fro tickets (Ex.A.42) further supports the Respondent's intention to reunite.

34. The Petitioner should have taken steps to invite the Respondent to join him or initiate legal action for conjugal rights. The Family Court rightly observed that the documents on record indicate the Petitioner's eagerness to file a divorce petition on grounds of desertion after the two-year separation period. It is not the Petitioner's case that he made any efforts to affect the reunion. The Petitioner examined PW.3 (D.Venu Babu), and PW.2 is PW.3's maternal uncle. Ex.B.29 shows that the Petitioner addressed a letter to PW.3 requesting him to collect the documents from the Respondent to buy a house in the U.S.A. That is the only communication that appears to have been made by the Petitioner after their separation in April, 2007.

35. RW.5 (B. Lakshmi Prasad), paternal uncle of the Respondent, stated in his testimony that on July, 15, 2005, at midnight, he received a call from his paternal uncle/R.W.3 (G. Sri Ram Murthy) informing him that the Petitioner had expelled his daughter. She was standing in front of the apartment. He rushed to the Respondent's house (plot No. 301) to bring her to Guntur but was unsuccessful in convincing the Petitioner. In the cross-examination, he mentioned his work in Hyderabad from January, 2005 to May, 2006 and confirmed the Respondent's residence at Moti Nagar during 2005 and 2006. His testimony remained credible, with no discrediting points identified during cross-examination.

36. The material on record doesn't establish that the Respondent deserted the Petitioner or intended to do so. The Petitioner withholding the necessary travel documents for the Respondent's child further strengthens the Respondent's case. The filing of the divorce petition after the two-year separation period indicates the Petitioner's lack of intention to reconcile.

37. As evident from the record, there is no desertion for a continuous period of two years preceding the date of presentation of the petition. We accept the Family Court's finding regarding the date of separation, which has to be counted only from July, 2007 and not from 28.04.2007, on which date the Respondent was reported to have left the U.S.A. Therefore, the mandatory requirement of two years separation did not exist. Thus, in our considered view, the ground of desertion under clause (i-b) of sub-section (1) of Section 13 of the H.M., Act has not been made out as the desertion for a continuous period of more than two years before the institution of the petition was not established in the facts of the case. One of the tests to know the mind of a party complaining of desertion of his or her spouse is to see whether they made an effort to join the company of the other spouse. These steps may include issuing a notice, requiring the other spouse to come and join, or filing of O.P. under section 9 of the Act. The Petitioner did not take any such steps. The perusal of the Petitioner's evidence does not disclose that he made any attempt to resume the matrimonial relationship. The Petitioner failed to establish that there is animus deserendi on the part of the Respondent. Mere separation without anything more does not substantiate the plea of desertion. We accept the Family Court's conclusion that the Respondent lacked animus deserendi, and, conversely, the Petitioner failed to take appropriate steps.

38. Based on the above evidence, it is difficult to conclude that the Respondent/wife left the matrimonial home on her own accord. When this is the state of affairs, it is impossible to assume that the Respondent proved the ground of desertion on the part of the Appellant. The point is answered accordingly.

POINT NO.2:

39. Treating the spouse with cruelty is a ground for divorce under Section 13(1)(i-a) of the H.M. Act. Cruelty has not been defined under the Act, but in relation to matrimonial matters, it is contemplated as conduct of such type that endangers the living of the Petitioner with the Respondent. Cruelty consists of acts which are dangerous to life, limb or health. Cruelty for the Act means that one spouse has treated the other and manifested such feelings towards her or him as to have inflicted bodily injury or to have caused reasonable apprehension of bodily injury, suffering or injured health. Cruelty may be physical or mental. Mental cruelty is the conduct of the other spouse, which causes mental suffering or fear to the matrimonial life of the other.

40. It is clear that the Petitioner did not issue a legal notice to the Respondent before filing for divorce. However, the Petitioner's father issued an Ex.B.2 notice to the Respondent's father, alleging an attempt to sell the property belonging to the Petitioner. The Petitioner seeks a divorce on the grounds of cruelty. Because the Respondent never wanted the Petitioner's parents to live under one roof, she went to her parent's house by insisting the Petitioner's parents move out.

41. Petitioner asserts that in July, 2002, the Respondent left for Guntur, expressing her unwillingness to live with the Petitioner's parents; ultimately, this led to the Petitioner's parents' securing a separate residence at Moti Nagar, Hyderabad. Upon the Petitioner's return from Japan in 2005, he claims to have requested the Respondent to allow his parents to live with them, but she remained unwilling. A similar allegation has also been made that the Respondent wanted to move away permanently to the U.S.A. while both resided in Gayathri Nagar and Moti Nagar in 2005; keeping in mind the Petitioner's future, his parents moved out and hired a separate accommodation. The Petitioner's father, PW.2, supported these claims in his chief examination. However, during cross-examination, PW.2 stated that the Respondent was cordial when living with them. The Family Court, based on the evidence, rightly found the Petitioner's allegations of the Respondent insisting on separate living and subjecting the Petitioner to cruelty to be unsubstantiated.

42. Another allegation against the Respondent is her refusal to accompany the Petitioner to Japan for a project in April, 2004. The Petitioner contends that the company provided tickets for him, the Respondent, and their child to stay in Japan for a year. The Respondent disputes this version. Despite suggesting that tickets were not procured for the Japan trip, the Petitioner has failed to submit supporting documentation. To substantiate his claim that the company sent family members along with employees to Japan, the Petitioner presented no evidence. The Family Court observed that the Petitioner did not examine any colleagues or provide proof of colleagues going to Japan with their families, casting doubt on the assertion that the Respondent compelled the Petitioner to live alone in Japan for a year.

43. Petitioner alleges cruelty based on the Respondent's misuse of matrimonial relations for mercenary gains. In support of the said stand, the Petitioner relied on the observations made in M.C. No. 41 of 2009 supported by the copy of the Order marked as Ex.A.5. The Appellant's Counsel argues that the Respondent did not file an Appeal/Revision against the said Orders, and the observations became final. The Family Court thoroughly examined these contentions.

44. Respondent examined her father (RW.3), RW.4 and RW.5 to show that her father provided amounts to purchase property. RW.3, the Respondent's father/Petitioner's father-in-law corroborated RW.2's version in all aspects. However, during cross-examination, he acknowledged that in M.C. No. 41 of 2009, he had stated that he receives Rs. 8,900/- per month as pension and received the benefit of Rs. 4,00,000/-. He emphasizes that he has no additional income or land. Notably, he did not produce any records to substantiate the alleged payments of Rs. 4,00,000/- in December, 2001 and Rs. 1,00,000/- in June, 2002, nor did he provide documents supporting the joint purchase of the property with the Petitioner's father, as mentioned in para No. 23 of the affidavit.

45. The reading of RW.3's cross-examination shows that the Petitioner disputed RW.3's financial capacity. The relevant portion of the Ex.B.13 correspondence is as follows:

"Till today, he (Respondent's father) promised me that he would give all the money by February of next year. If he is not going to keep his promise, he is going to see a new Vamsi. I will not see their faces in the rest of my life. I don't care for money; I can make enough money to keep us happy...........I am not blaming you for anything. It's between me and your father. I am expecting all the money by February next year i.e., 2003. Please take this seriously, and time is still February."

The Petitioner admitted sending Ex.B.13 an email that included harsh language and demands directed at the Respondent's father. However, the context of these demands remains unclear, as the Petitioner failed to explain the reasons behind such requests for money. The evidence reveals that the Petitioner introduced the Respondent to the software field, resulting in her job loss. Correspondence provided by the Respondent indicates the Petitioner's regret for this situation and his assurance to secure another job for her. Contrary to the Petitioner's claim that the Respondent insisted on procuring Rs. 70,00,000/- for a residential complex, no supporting evidence is presented. The testimony of PW.2 in cross-examination supports the Respondent's case, denying any such request for a substantial amount. The Family Court aptly noted the Petitioner's failure to substantiate specific cruelty allegations, undermining the credibility of his general claims against the Respondent.

46. It is relevant to note that the Respondent examined RWs.4 and 5 to establish how he was able to mobilize money to meet the demands of Appellant/Petitioner. RW.4 (D. Rama Krishna), the brother of RW.3, testified that in April, 2006, RW.3 requested a loan of Rs. 1,00,000/- for the Petitioner's U.S.A. shifting, which he provided as a hand loan. He received the repayment through the Respondent in October and November, 2006. Subsequently, in May, 2007, RW.3 again asked him for a loan of Rs. 10,00,000/- for the Petitioner's plot purchase. Following RW.3's request, he gave the Petitioner's father that amount. RW.3, Petitioner's father (G.Satyanarayana), RW.4, and Sri N. Satyanarayana jointly purchased a plot in the names of the Petitioner and Sri Naidu Sreenivasa Rao on 31.05.2007 at Medchal. During cross-examination, RW.4, who served in the Indian Air Force for fifteen years, clarified his income, the indirect nature of his financial transactions with the Petitioner, and some gaps in his recollection related to the plot purchase.

47. It is also the Petitioner's stand that the Respondent was in the habit of withdrawing money from his account without permission. He said the withdrawal was made during July, 2004 from his Axis Bank Account, and he produced an Ex.A.6 account copy in U.T.I., Bank from 01.04.2007 to 30.04.2007. Admittedly, the Respondent was in the U.S.A., during the period. He also admits that Ex.B.43 does not show the withdrawal of the amounts by the Respondent.

48. The Family Court scrutinized the evidence, including the inconsistent statements of the witnesses. According to Ex.A.5, the Respondent admitted receiving Rs. 22,28,140/- transferred by the Petitioner. The Respondent presented witnesses and maintained that the funds were utilized to purchase property in the Petitioner's name. However, she also owned a plot, which she claims to have acquired through her efforts and a bank loan. PW.1 admitted in cross-examination that Rs. 1,25,000/- was paid to the vendor through a cheque drawn from the Respondent's father's account. PW.1 also admits that the Respondent's father also paid Rs. 5,00,000/- to the vendor. Though, PW.1 contends that he gave the amount to the Respondent's father, no evidence is placed to prove the same. PW.1 also admitted that he has no documentary evidence to show that he had withdrawn any money from the Bank during that period. He does not know the vendor's name, and the Family Court also observed that he doesn't appear to know about the house; he does not know whether the Respondent is the borrower of the loan, and he is only the co-obligant. Though he claims that he paid E.M. Is till 2008, he says that he did not pay E.M. Is from 2007 onwards. The Family Court has rightly pointed out the inconsistent version given by the Petitioner in this regard. The Petitioner testified in cross-examination that he does not intend to file documents to prove the transfer of the amount, as the Respondent admitted the same. The Family Court is not inclined to place reliance on the observations made in M.C. No. 41 of 2009 by observing that when the Petitioner makes a grave accusation that the Respondent is after money all the time, he should have placed clinching evidence to show the exact amount which was transferred to the Respondent's account. Despite the Petitioner's claims of providing Rs. 20 lakhs to Rs. 25 lakhs until 2006-2007, he failed to clarify the discrepancy between the funds transferred and the value of the property purchased in his name during that period. The Court, therefore, rejected the reliance on the observations in M.C. No. 41 of 2009, stressing the absence of compelling evidence supporting the financial allegations.

49. After appreciating the evidence on record, the Family Court rightly observed that the Petitioner had not placed clinching evidence to show that the Respondent misused the matrimonial relation for her mercenary gains. On the other hand, the Respondent has relied on Ex.B.13, one of the e-mail correspondences sent by the Petitioner to her, to establish that the Petitioner demanded her father's money.

50. Learned Counsel for the Appellant vehemently contends that since July, 2007, both parties have been living separately and the marriage between them is totally dead, and the marital bond does not exist anymore; marriage is also irretrievably broken down beyond repair between the parties, and no meaningful relationship is existing between the parties. Learned Counsel for the Appellant relied on the decision in Siva Sankaran V. Santhimeenal (2021) 5 ALD 286, wherein the Hon'ble Supreme Court held that:

"20. In view of the legal position which we have referred to aforesaid, these continuing acts of the Respondent would amount to cruelty even if the same had not arisen as a cause prior to the institution of the petition, as was found by the Trial Court. This conduct shows the disintegration of marital unity and, thus, the disintegration of the marriage. There was no initial integration itself, which would allow disintegration afterwards. The fact that there have been continued allegations and litigative proceedings that can amount to cruelty is an aspect noted by this Court. The marriage having not taken of from its inception and 5 years having been spent in the Trial Court, it is difficult to accept that the marriage soon after the decree of divorce, within 6 days, albeit 6 years after the initial inception of marriage, amounts to conduct which can be held against the Appellant.

21. In the conspectus of all the aforesaid facts, this is one case where both the ground of irretrievable breakdown of marriage and the ground of cruelty on account of subsequent facts would favour the grant of decree of divorce in favour of the Appellant.

22. We are, thus, of the view that a decree of divorce dissolving the marriage between the parties be passed not only in the exercise of powers under Article 142 of the Constitution of India on account of the irretrievable breakdown of marriage but also on account of cruelty under Section 13(1)(i-a) of the Act in light of the subsequent conduct of the Respondent during the pendency of judicial proceedings at various stages."

51. Learned Counsel for the Appellant further relied on the decision in N.Rajendran V.S. Valli 2022:INSC:140 : 2022 (3) Scale 275, wherein the Hon'ble Supreme Court held that:

"36. Having found that consent of the parties is not necessary to declare a marriage dissolved, we cannot be unmindful of the facts as they exist in reality. There has been a marriage which took place on 31.10.2004. There is a child born in the said marriage. No doubt, being in contravention of Section 15, it becomes a fait accompli, but at the same time, we do not reasonably perceive any possibility of the Appellant and the Respondent cohabiting as husband and wife. Whatever life was there in the marriage has been snuffed out by the passage of time, the appearance of new parties and the vanishing of any bond between the parties. Not even the slightest possibility of rapprochement between the Appellant and the Respondent exists for reasons, though, which are entirely due to the actions of the Appellant and for which the Respondent cannot be blamed. The marriage between the Appellant and the Respondent has become dead. It can be described as a point of no return. There is no possibility of the Appellant and the respondent stitching together any kind of a reasonable relationship as the tie between the parties has broken beyond repair, and having regard to the facts of this case, we would think that it would be in the interest of justice and to do complete justice to the parties that we should pass an order dissolving the marriage between the Appellant and the Respondent."

52. Learned Counsel for the Appellant further relied on the decision in Shri Rakesh Raman V. Smt. Kavita. 2023:INSC:433, wherein the Hon'ble Supreme Court held that:

"20. This Court, though, did ultimately give certain illustrations of mental cruelty. Some of these are as follows:

(i) On consideration of the complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make it possible for the parties to live with each other could come within the broad parameters of mental cruelty.

(xii) Unilateral decision of refusal to have intercourse for a considerable period without there being any physical incapacity or valid reason may amount to mental cruelty.

(xiii) The Unilateral decision of either husband or wife after marriage not to have a child from the marriage may amount to cruelty.

(xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction, though supported by a legal tie. By refusing to sever that tie, the law, in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such situations, it may lead to mental cruelty.

21. We have a married couple before us who have barely stayed together as a couple for four years and who have now been living separately for the last 25 years. There is no child out of wedlock. The matrimonial bond is completely broken and is beyond repair. We have no doubt that this relationship must end, as its continuation is causing cruelty on both sides. The long separation and absence of cohabitation, the complete breakdown of all meaningful bonds, and the existing bitterness between the two have to be read as cruelty under Section 13(1)(a) of the 1955 Act. We, therefore, hold that in a given case, such as the one at hand, where the marital relationship has broken down irretrievably, where there is a long separation and absence of cohabitation (as in the present case for the last 25 years), with multiple Court cases between the parties; then the continuation of such a 'marriage' would only mean giving sanction to cruelty which each is inflicting on the other. We are also conscious of the fact that the dissolution of this marriage would affect only the two parties, as there is no child out of wedlock."

53. Learned Counsel for the Appellant further relied on the decision in Shilpa Sailesh V. Varun Sreenivasan in Transfer Petition (Civil) No. 1118 of 2014, wherein the Hon'ble Supreme Court held that:

"Having said so, we wish to clearly state that the grant of divorce on the ground of irretrievable breakdown of marriage by this Court is not a matter of right but a discretion which is to be exercised with great care and caution, keeping in mind several factors ensuring that 'complete justice' is done to both parties. It is obvious that this Court should be fully convinced and satisfied that the marriage is totally unworkable, emotionally dead and beyond salvation and, therefore, dissolution of marriage is the right solution and the only way forward. That the marriage has irretrievably broken down is to be factually determined and firmly established. For this, several factors are to be considered, such as the period of time the parties had cohabited after marriage, when the parties had last cohabited, the nature of allegations made by the parties against each other and their family members, the orders passed in the legal proceedings from time to time, cumulative impact on the personal relationship; whether, and how many attempts were made to settle the disputes by intervention of the Court or through mediation, and when the last attempt was made, etc. The period of separation should be sufficiently long, and anything above six years or more will be a relevant factor. But these facts have to be evaluated keeping in view the economic and social status of the parties, including their educational qualifications, whether the parties have any children, their age, educational qualification, and whether the other spouse and children are dependent, in which event how and in what manner the party seeking divorce intends to take care and provide for the spouse or the children. Question of custody and welfare of minor children, provision for fair and adequate alimony for the wife, and economic rights of the children and other pending matters, if any, are relevant considerations. We would not like to codify the factors so as to curtail the exercise of jurisdiction under Article 142(1) of the Constitution of India, which is situation-specific. Some of the factors mentioned can be taken as illustrative and worthy of consideration."

54. Even the Hon'ble Court, while considering the exercise of discretionary powers under Article 142 of the Constitution of India, takes into account several factors, and the longevity of the period is only one of them. Reference may be had to Shilpa Sailesh (supra) extracted hereinabove. Supreme Court has placed a word of caution that "grant of divorce on the ground of irretrievable breakdown of marriage by this Court is not a matter of right, but a discretion which is to be exercised with great care and caution, keeping in mind several factors ensuring that 'complete justice' is done to both parties. It is obvious that this Court should be fully convinced and satisfied that the marriage is totally unworkable, emotionally dead and beyond salvation and, therefore, dissolution of marriage is the right solution and the only way forward. That the marriage has irretrievably broken down is to be factually determined and firmly established."

55. In Anil Kumar Jain v. Maya Jain 2009) 10 SCC 415, [LQ/SC/2009/1771] the Hon'ble Supreme Court observed that:

"29. In the ultimate analysis, the aforesaid discussion throws up two propositions. The first proposition is that although the irretrievable breakdown of marriage is not one of the grounds indicated whether under section 13 or 13-B of the Hindu Marriage Act, 1955 for grant of divorce, the said doctrine can be applied to a proceeding under either of the said two provisions only where the proceedings are before the Supreme Court. In exercise of its extraordinary powers under Article 142 of the Constitution, the Supreme Court can grant relief to the parties without even waiting for the statutory period of six months stipulated in section 13-B of the aforesaid Act. This doctrine of irretrievable breakdown of marriage is not available even to the High Courts, which do not have powers similar to those exercised by the Supreme Court under Article 142 of the Constitution. Neither the civil Courts nor even the High Courts can, therefore, pass orders before the periods prescribed under the relevant provisions of the Act or on the grounds not provided for in sections 13 and 13-B of the Hindu Marriage Act, 1955.

31. The various decisions referred to above merely indicate that the Supreme Court can, in special circumstances, pass appropriate orders to do justice to the parties in a given fact situation by invoking its powers under Article 142 of the Constitution, but in normal circumstances, the provisions of the statute have to be given effect to."

56. Coming to the theory of the breakdown of marriage. First of all, that is not a ground for the grant of divorce under the Act. Secondly, the petitioner is clearly at fault, and it is the Respondent who is not at fault. Petitioner should not be allowed to take advantage of his own wrong. He is the one who is found to have deserted his wife and then taken the plea of desertion on her part. He cannot be permitted to walk out of the matrimonial alliance on the ground that the marriage has broken down. Family Courts have to restrict their considerations to the parameters of the provision of grant of divorce strictly in accordance with the Act. Irretrievable breakdown of marriage is not a ground in the Act.

57. At this juncture, we would observe that in several cases, the Hon'ble Supreme Court has put an end to the marital tie on the ground of irretrievable breakdown of marriage by exercising powers under Article 142 of the Constitution of India so as to ensure complete justice between the parties. This Court is not conferred with such a power.

58. The petitioner filed an application to receive additional evidence by relying on the judgment in C.C. No. 358 of 2016 on the file of the Special Judicial Magistrate of First Class, Guntur. Respondent/wife instituted the said criminal case on 22.06.2015 for the offences under sections 498A, 494 506 r/w 34 of I.P.C., and Section 4 of Dowry Prohibition Act and the said case was ended in acquittal.

59. The Appellant's Counsel relied on some of the observations made in the said Judgment, which are as follows:

"30. "Though there is no reliable evidence to show that A.1 had married A.6 and that A.6 to A.8 had knowledge about the marriage of A.1 and PW.1 and that they were not divorced. So, there is no evidence to show that the guilt of the A.1 to A.3 and A.6 to A.8 for the offence punishable under section 494 r/w 34 of I.P.C.

33........... with regard to a statement under Section 164 Cr.P.C., transferring of huge amounts by A.1 to the account of PWs. 1 and 2 and in view of the improvements to the evidence of PWs. 1 and 2 with regard to the harassment and cruelty of PW.1 by the accused and demanding of additional dowry from her and also with regard to A.1 contracted alleged second marriage with A.6. Since there is no iota of evidence to prove any of the said allegations, it can be said that the prosecution utterly failed to prove the guilt of the accused for the offences under section 498A, 494 r/w 34 of I.P.C. and Section 4 of Dowry Prohibition Act. So also threatening of PW.1 by A.4 and A.5 to give divorce to A.1 and threatening her to sign on divorce papers, for which there is no evidence and prosecution failed to prove the said allegations against them. Therefore, the point is answered against the case of the prosecution and in favour of A.1, A.3 to A.8. Hence, the prosecution failed to bring home the guilt of A.1, A.3 to A.8 for the offences under section 498A, 494, 506 r/w 34 of I.P.C. and Section 4 of Dowry Prohibition Act, beyond all reasonable doubts.

34. In the result, A.1, A.3 to A.8 are found not guilty for the offences under sections 498A, 506, 494 r/w 34 of I.P.C. and Section 4 of Dowry Prohibition Act, and they are acquitted under section 248(1) of Cr.P.C., of the said offences. The bail bonds, if any......"

60. After the impugned Judgment of the Family Court, the criminal case was instituted and the Appellant and his family members were acquitted. Learned Advocate for the Appellant has submitted that allegations of the Criminal Case are false and baseless, and they were acquitted. The filing of the Criminal Case on the baseless ground constitutes the ingredient of cruelty. This is the main point of argument advanced by the learned Advocate of the Appellant during the time of this appeal.

61. Now, the question that comes into consideration is whether acquittal of the Judgment in that case will automatically constitute the ingredient cruelty so as to get a decree of divorce.

62. At this stage, it is useful to refer to the decision in Mangayakarasi V.M. Yuvaraj 2020:INSC:259 : (2020) 3 SCC 786, [LQ/SC/2020/326 ;] wherein this Hon'ble Supreme Court held that:

"It cannot be in doubt that in an appropriate case, the unsubstantiated allegation of dowry demand or such other allegation has been made and the husband and his family members are exposed to criminal litigation. And ultimately if it is found that such an allegation is unwarranted and without basis and if that Act of the wife itself forms the basis for the husband to allege that mental cruelty has been inflicted on him, certainly, in such circumstances, if a petition for dissolution of marriage is filed on that ground and evidence is tendered before the original Court to allege mental cruelty, it could well be appreciated for the purpose of dissolving the marriage on that ground. However, in the present facts, as already indicated, the situation is not so. Though a criminal complaint had been lodged by the wife, and the husband has been acquitted in the said proceedings, the basis on which the husband had approached the trial court is not of alleging mental cruelty in that regard but with regard to her intemperate behaviour regarding which both the courts below on appreciation of the evidence had arrived at the conclusion that the same was not proved. In that background, if the Judgment [M. Yuvaraj v. Mangayarkarasi, 2018 S.C.C. OnLine Mad 13523] of the High Court is taken into consideration; we are of the opinion that the High Court was not justified in its conclusion."

63. In this connection, it is to remember that the standard of proof of the criminal case is quite different from that of the civil suit. In a criminal case, the prosecution must prove its case beyond all reasonable doubt, whereas in a civil case, the standard of proof is based upon the preponderance of probability.

64. A perusal of the Judgment in Vishnu Dutt Sharma v. Daya Sapra 2009 SCC OnLine SC 1002 transpires that the Hon'ble Apex Court observed that a judgment of a Criminal Court in a civil proceeding would only have limited application, viz, inter alia for the purpose as to who was the accused and what was the result of the criminal proceedings. The Hon'ble Apex Court relied upon the decision of Seth Ramdayal Jat v. Laxmi Prasad 2009 (5) SCALE 527 [LQ/SC/2009/862] , and held that "it does not lay down that a judgment of Criminal Court would be admissible in the Civil Court for its relevance is limited"............ "Any finding in a criminal proceeding by no stretch of imagination would be binding in a civil proceeding". It was further observed that "if a primacy is given to a criminal proceeding indisputably the civil suit must be determined on its own keeping in view the evidence which has been brought on record before it and not in terms of the evidence brought in the criminal proceeding". Therefore, the Hon'ble Apex Court held "that the standard of proof required civil and criminal proceedings are entirely different. Civil cases are decided on the basis of preponderance of evidence while in a criminal case, the entire burden lies on the prosecution, and proof beyond all reasonable doubt has to be given."

65. Merely because of the acquittal, it would not be a ground to hold that all the allegations were false and baseless inasmuch as in the criminal case, the standard of proof is beyond all reasonable doubts. Since the Appellant failed to prove that allegations in a criminal case are false and baseless, it cannot be ipso facto held that the allegations are false and baseless as he was acquitted. Facts not proved do not amount to falsity. A fact is said not to be proved where it is neither proved nor disproved. There is a difference between 'not proved' and 'false'. Merely not able to prove cannot be in all cases categorized as 'false'.

66. Since the burden lies upon the appellant/petitioner to prove his case that the allegations in the criminal case are false and baseless, he is required to adduce convincing evidence to disprove the allegations of his wife to establish before the Court that all those allegations are baseless, false and groundless. But nothing has been done in the instant case. The burden lies upon the appellant/husband to prove the ground of cruelty and also to prove that the allegations of torture and assault made by her wife in the criminal case are false and baseless.

67. Until and unless the appellant/husband proves by adducing evidence that the allegation of a criminal case is false, the mere acquittal would not automatically give a right to the husband to claim that he has been able to prove the allegation of cruelty in H.M.O.P. So, the acquittal of the criminal case does not help the Appellant in the absence of any other corroborative evidence that the allegations are baseless inasmuch as other incidents of cruelty as alleged by the Appellant could not be proved by the Appellant by adducing evidence. In order to brand an allegation as baseless and false, such allegation must be disproved within the meaning of the Evidence Act, and it is the burden upon the Appellant praying for divorce to prove all the allegations in the criminal case are baseless and false. The Respondent has stated in her evidence that she is willing to live with the Appellant, and she also filed a petition for restitution of conjugal rights. Moreover, the respondent/wife has disclosed her willingness to live with the Appellant.

68. The marriage between the parties cannot be dissolved only on the submissions made by the Petitioner's Counsel at the time of hearing of the appeal on the ground that the marriage between the parties has broken down and no useful purpose would be served to keep it alive. The legislature, in its wisdom, has not thought it proper to provide for the dissolution of the marriage on the grounds of irretrievable breakdown of marriage. There may be cases where, on facts, it is found that as the marriage has become dead on account of contributory acts of commission and omission of the parties, no useful purpose would be served by keeping such marriage alive. There is not even enough evidence to suggest that the Respondent had expressed her dislike towards the Petitioner at any point in time.

69. As already held, the Appellant himself is trying to take advantage of his own wrong, and in the circumstances of the case, the marriage between the parties cannot be held to have become dead. Even the Judgment of acquittal in the Criminal Court advanced as additional evidence under Order 41 Rule 27 of C.P.C., cannot ipso facto prove the case of cruelty.

70. Considering the facts, circumstances, and decision of law elucidated above, we are of the view that the Appellant has failed to prove the allegations of desertion and cruelty as grounds for divorce. Learned Family Court was justified in holding that the Appellant has failed to prove the allegation of cruelty inflicted upon him by the respondent/wife. The Judgment and Order of dismissal passed by the learned Family Court call for no interference and are affirmed. Accordingly, the point is answered.

POINT NO.3:

71. As already observed in the preceding paragraphs, the Respondent has made all arrangements to go back to USA by getting Visa Stamping and purchase of tickets as seen from Exs.B.4 to B.9 and the Petitioner withheld the necessary travel documents of the Respondent and the child. PW.2 also admitted that Petitioner did not send any dependent Visa from USA to the Respondent, after he left to USA in July 2007.

72. At this stage, it would be appropriate to notice Section 9 of Hindu Marriage Act, 1955 (Restitution of conjugal rights) which provides as under:

"When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly."

73. The material on record clearly establishes that Respondent/Wife has proved that the Petitioner has withdrawn from her society without justifiable cause. As we are satisfied that the case as pleaded by the Respondent is true and the Petitioner has not established any legal ground to deny the relief of restitution of conjugal rights, we hold that the Respondent/Wife is entitled for the relief of restitution of conjugal rights.

74. Furthermore, we are the view that once the O.P., for divorce is dismissed, it is axiomatic that the counterclaim for restitution of conjugal rights is to be allowed. Point No. 3 is answered accordingly.

POINT NO.4:

75. We, thus, conclude that the Appellant/Petitioner failed to establish none of the two grounds that either cruelty or desertion.

76. As a result, both the Appeals are dismissed, confirming the common Order and decree dated 09.02.2015 passed by the family court in dismissing H.M.O.P. No. 147 of 2010 for divorce and allowing H.M.O.P. No. 155 of 2010 for restitution of conjugal rights. The parties are directed to bear their own costs.

77. As a sequel thereto, miscellaneous applications pending, if any, shall stand closed.