JUDGMENT
A. Subbulakshmy, J.
1. Respondent in the F.C.O.P. is the appellant herein. The case of the petitioner is as follows :
The petitioner and the respondent got married on 10.11.1991 according to Hindu religious rites and customs. At the time of marriage, the petitioner was employed as an Assistant in the State Bank of India, Madras and the respondent was also employed in Kalpana Lamps and Components, The petitioner has got deformity with his legs due to polio attack. He cannot walk fast and freely. Knowing fully well about his health the respondent married the petitioner. After marriage, the respondent started to ill-treat the petitioner and abuse the petitioner by saying all sorts of derogatory remarks about his deformity and the respondent also called the petitioner as a limp. On 1.1.1992, when the petitioner went to the office of the respondent to pick up her while returning home, she objected to that saying that she did not like him and she did not like to go with a limp person in public and the respondent ill-treated the petitioner with all contempt and disrespect. On 5.5.1992, she openly declared that she did not want to live with the petitioner any more and she is prepared to get divorce from the petitioner and wanted to marry her family friend by name Narayanan who had been employed with her for more than seven years. This art of the respondent caused mental cruelty to the petitioner and he is put to great mental agony. On account of this cruelty, the petitioner lost peace of mind and also his health was affected. On 8.1.1992 when the petitioner went to the respondent’s parent’s house alongwith the respondent, the respondent did not allow him to stay there and on one occasion, the petitioner was waiting in the Peravellore bus stand for the PTC bus and to his shock and surprise, the petitioner saw the respondent going to hospital alongwith Narayanan in his cycle and immediately, the petitioner returned to the respondent’s house and questioned about the act of the respondent with her parents and they also replied that the respondent is not interested in living with him and she is interested in leading life with Narayanan. On 7.5.1992, when the respondent went to ESI Hospital alongwith Narayanan in a bicycle the petitioner met the respondent and questioned about her act and she told that she has got relationship with Narayanan for seven years and she created a big scene in the public road. The child is also not properly maintained by the respondent and it is in the custody of the respondent. So, the petitioner sought for divorce and custody of the minor child.
2. The respondent filed counter contending was follows :
The respondent has never said that she is ashamed to go out with the petitioner and there is no ill-treatment of the petitioner. Only the mother of the petitioner ill-treated the respondent by using filthy language and the respondent is willing to live with the petitioner and she is very much attached with the petitioner. The respondent, when she was 5 months pregnant, was made to leave her matrimonial home by the mother of the petitioner and the respondent, while she was running high temperature, the petitioner came to the resident of the respondent’s parents, but, refused to take her to the hospital and Narayanan, who came at that time, took her to the bus stop where the petitioner was standing convinced the petitioner to take her to the hospital, left the respondent with the petitioner and left for his work and the respondent never told the petitioner that she is not interested in living with the petitioner. The respondent is taking care of the child and the respondent has always been ready to start a new life with the petitioner.
3. The Family Court, Madras passed the decree for divorce on the ground of cruelty and dismissed the petition in respect of the petitioner’s claim for custody of the minor child.
4. Aggrieved against that order, the respondent, the wife has filed the present appeal.
5. Point for consideration is whether the decree for divorce passed by the Family Court is sustainable.
6. The petitioner and the respondent got married according to Hindu religious rites and customs and a male child was also born to them. According to the petitioner, the respondent wanted to live only with her family friend by name Narayanan who had been employed with her for more than seven years and the respondent used to go with him and this caused mental cruelty to the petitioner and so, the petitioner is entitled to a decree for divorce. The respondent contends that she did not have any contact with the said Narayanan and she never liked to marry him and the said Narayanan came to the respondent’s house and she went to the hospital with Narayanan in his cycle, but, there was no intention at all on her part to have relationship with the said Narayanan.
7. Learned Counsel for the appellant, at the outset pointed out that there is only one instance that on one day the respondent went in cycle with the said Narayanan and the isolated incident cannot amount to cruelty and basing on that isolated incident alone the decree for divorce cannot be granted.
8. On going through the evidence, it is seen that as rightly pointed out by the learned Counsel for the appellant, there is only one incident with regard to going with the said Narayanan and basing on that isolated incident, the Family Court granted the decree for divorce. The Family Court has taken into consideration the admission made by the respondent in her evidence that on 7.5.1997, she went to the ESI Hospital with Narayanan in his cycle and found that the respondent’s admission goes to prove that she had contact with the said Narayanan even after her marriage.
9. The respondent has been examined as R.W. 1 and she speaks in her evidence that the said Narayanan is her family friend and he used to help for their family and herself and Narayanan moved as a friend only and the petitioner has misunderstood her activity. The said Narayanan who has been examined as R.W. 2 has stated that he knows the respondent for the past 10 years as she was working in the company in which he is working and he also knows the respondent’s father. He admits that he took the respondent to ESI Hospital. He states that the respondent’s father was not well and so, he went to their house to see the respondent’s father and he came to know that the respondent’s father was admitted in the hospital and at the request of the respondent’s mother, he took the respondent to the ESI Hospital as the respondent was not well.
10. The categorical evidence of R.W. 1 is that he moved with the respondent as her own brother and he took her to the hospital as his own sister and it did not appear as wrong to him. The further evidence of R.W. 1 is that on the way she met the petitioner and appraised him of the fact. The evidence of Narayanan as R.W. 2 shows that he also helped and made arrangements in respect of purchase of furniture for the marriage of the respondent, but after he came to know that the petitioner did not like his coming there he stopped meeting the respondent. So, the evidence of R.Ws. 1 and 2 proves that the respondent did not have any mala fide intention to move with R.W. 2. The evidence of P.W. 1 is that there was illicit intimacy between the respondent and R.W. 2. For that, there is no proof at all. Even though P.W. 1 has stated that there was illicit intimacy between the respondent and R.W. 2, the evidence of R.Ws. 1 and 2 proves that R.W. 2 was moving with the respondent only as a family friend and helped the respondent’s family in many ways considering the respondent only as his sister. Though it is stated that R.W. 2 was moving with the respondent, there was only one occasion i.e., on the day when R.W. 2 took the respondent to the hospital in his cycle as the respondent was sick From the solitary occasion that R.W. 2 took the respondent to hospital in his cycle and that too in the capacity of a family friend cannot be taken as a ground for passing a decree for divorce.
11. A Division Bench of this Court in Vijayalakshmi Balasubramanian v. Balasubramanian, 1998 (2) MLJ 370=I (1998) DMC 210, has held that in the case of cruelty, the Court has to approach” the problem not by having regard to isolated incident alone, but the whole of the marital relations of the parties and the Court in such cases is not concerned with the reasonable man or woman but it has to deal with a particular man or, woman before it. The decision of this Court was confirmed by the Apex Court in the appeal between the same parties reported in 1999-3-LW 420.
12. The cruelty has to be necessarily proved by the petitioner by establishing cruelty on the part of the respondent adversely affecting the petitioner. Except the one incident that the respondent went in the cycle alongwith R.W. 2, there is no other activities available in this case to substantiate the allegation of the petitioner that the respondent was having illicit intimacy with the said Narayanan. The fact that the said Narayanan is a family friend of the respondent’s family and who was also helping the respondent’s father in many ways and especially during the marriage time of the respondent goes to establish that R.W. 2 took the respondent to hospital as she was not well. From that solitary incident alone, it cannot be concluded that the respondent was having illicit intimacy with R.W. 2. That solitary ground alone will not constitute cruelty on the part of the respondent and that cannot be a firm ground for passing a decree for divorce.
13. Following the decisions of this Court and the Apex Court, we are of the considered view that the isolated incident cannot form a ground for passing a decree for divorce and the decree for divorce is not liable to be sustained and it is liable to be set aside.
In the result, the appeal is allowed setting aside the judgment and decree passed by the Family Court. No costs. Consequently, C.M.P. 7485 of 1999 is closed.