A spouse's legal action for protection cannot be treated as a ground for cruelty in divorce proceedings.

Devan Ramachandran , J.

The appellant assails the judgment of the learned Family Court, Kollam in OP( HMA ) No.1131/2016, since by allowing it, it has granted divorce to the respondent against her.

2. Smt.V.Vijitha - learned counsel for the appellant, submitted that the Original Petition in question, namely OP( HMA ) 1131/2016, was filed by the respondent against her client, seeking dissolution of marriage, invoking the provisions of Section 13(1)(ia) of the Hindu Marriage Act , citing the ground of cruelty; and that it was, in fact, tried by the learned Family Court along with OP No.1318/2017, which had been filed by her client, seeking restitution of conjugal rights by him, under the stipulations of Section 9 of the aforesaid Act.

3. Smt.V.Vijitha argued that, the learned Family Court has taken every averment, allegation, imputation and statement of the respondent at its face value; to thus granted divorce, holding that such amounts to gross cruelty. She asserted that there is not even a whisper of evidence to substantiate any of the allegations of the respondent against her client; and hence that the learned Family Court can only be construed to have grossly erred in allowing the Original Petition. She added that it was her client who had been subjected to cruelty by the respondent and his family; and that they have also taken away and misappropriated her gold ornaments and patrimony. She prayed that this appeal, therefore, be allowed.

4. In refutation of the afore submissions, Sri.R.Mohana Babu - appearing for the respondent, submitted that the learned Family Court has assessed the documentary evidence, pleadings and depositions to conclude correctly that the appellant had treated his client with great cruelty, thus imperiling his life and causing apprehension to him that he will not be safe in the matrimonial union. He contended vehemently that no error can be found in the mentation of the learned Family Court; and therefore, that this appeal is only liable to be dismissed.

5. We notice from the records, as rightly submitted by Smt.V.Vijitha, that the Original Petition in question was taken to trial along with OP No.1318/2017 filed by the appellant seeking restitution of conjugal rights. The evidence is, obviously, led in common; and it consists of the oral testimony of the appellant as RW1 and that of the respondent as PW1, along with Exts.A1 to A4 being documents marked on the side of the respondent and Exts.B1 to B3 on the side of the appellant.

6. When we examine the impugned judgment on the touchstone of the evidence on record, it becomes ineluctable that the learned Family Court has held that the appellant has treated the respondent with cruelty because, for the first, she filed several complaints against him to his “higher ups” in service, thus creating mental agony to him; for the second, that she had filed MC No.128/2016, against the respondent, his mother and his sister under the provisions of the Domestic Violence Act and that this would manifest itself to be an act of cruelty; that the appellant had filed police complaints against the respondent and his sister and that this shows that she had no love left for him; that she had refused to have sexual relationship with him, but accusing him of impotency; and that unsubstantiated allegations amount to cruelty under the statutory scheme.

7. Once we record as afore, what we are enjoined to find is whether the evidence justifies the findings of the Court and if the decree can be sustained.

8. As