Hardeep Kaur vs Sanjeev Singh

Rajiv Sharma, J.—This appeal is directed against the judgment dated 16.4.2013 passed by the learned Additional District Judge, Una, District Una, H.P. in H.M.A. Petition No. 21/2010.

"Key facts" necessary for the adjudication of this appeal are that the respondent-husband (hereinafter referred to as the "respondent" for the sake of convenience) filed a petition under Section 13(1)(ia) of the Hindu Marriage Act, 1955 against the appellant-wife (hereinafter referred to as the "appellant" for the sake of convenience) for dissolution of marriage on the ground of cruelty. According to the averments contained in the petition, the appellant is legally wedded wife of the respondent. The marriage was solemnized between the parties on 1.10.2008 at Village Charatgarh, Tehsil and District Una as per Hindu and Sikh rites. It is alleged in the petition that on 3.10.2008, the appellant denied physical access to him. There was no physical relation between the appellant and the respondent. The appellant refused to carry out household chores. She used to misbehave with the respondent and his family members. Parents of the appellant were informed about her misbehaviour. Parents of the appellant advised the respondent''s family to take her to ''Tantrik''. On 9.10.2008, the appellant again refused to give physical access to the respondent. On 28.10.2008 and 15.11.2008, she again refused to do household chores. It is furthers averred in the petition that on 28.12.2008, she put hot iron on the hand of respondent''s nephew, Daman. The respondent again tried to make physical relation with the appellant on 19.2.2009, but she refused and slapped him. She threatened him that she would implicate him in a dowry case. On 27.2.2009, petitioner again misbehaved with mother of the respondent by refusing to pass on utensils. In the month of March 2009, the appellant pushed the respondent, due to which he fell on the floor. The respondent is suffering from 60% disability. Thereafter, in the month of October 2009, the appellant passed on urine in front of his family members. The compromise was arrived at between the parties in the Panchayat, Charatgarh on 16.7.2010. Father of the appellant came to the house of the respondent on 25.7.2010 and threatened all the family members. The appellant tried to commit suicide by putting her scarf in the cooler fan on 27.7.2010. A compromise was again arrived at between the parties in the presence of police on 29.7.2010. The respondent also filed an application against the respondent before the Superintendent of Police, who forwarded the same to the Women''s Protection Cell, Una. On the direction of Women''s Protection Cell, on 4.9.2010 respondent was taken to the Psychiatrist at Karami Devi Memorial Hospital, Dosarka, Hamipur, H.P., who opined that the appellant was suffering from some mental disease.

The petition was contested by the appellant by filing a detailed reply. According to the appellant, she has passed 10+2 examination. According to her, respondent and his family members started demanding dowry after a few months of marriage. She was treated with cruelty. She is also physically handicapped. She was insulted by the respondent and his family members several times. On 24.3.2010, the respondent gave mercilessly beatings to the respondent and shunted her out of the matrimonial house. The matter was compromised between the parties before the Panchayat on 29.7.2010. Her father had filed an application against the respondent before the Police Post Mehatpur on 31.7.2010. On 6.9.2010, she along with her father was called by the officials of the Women''s Protection Cell. She was accused of suffering from mental ailment. She told the officials of Women''s Protection Cell that she had every intention to live with the respondent. However, the respondent was adamant to dissolve the marriage. Thereafter, the appellant filed a complaint under Section 12 of the Domestic Violence Act. According to her, she and her family members were constrained to file a case against the respondent and his family members under Section 498-A of the Indian Penal Code.

Learned Additional District Judge framed the issues on 6.6.2011 and allowed the petition vide judgment dated 16th April, 2013. Marriage between the parties was dissolved by a decree of divorce on the ground that the appellant after solemnization of marriage with the respondent had treated him with cruelty. The appellant was granted permanent alimony at the rate of Rs. 3,000/- per month. Hence, the present appeal.

Mr. Amrinder Singh Rana, Advocate, has vehemently argued that the impugned judgment dated 16th April, 2013 is not sustainable in the eyes of law. He has also argued that the learned Additional District Judge has misconstrued and mis-appreciated the oral as well as documentary evidence. He has further contended that the appellant has not caused any mental and physical cruelty to the respondent and it is the respondent and his family members, who have treated the appellant with cruelty.

Mr. Rajan Kahol, Advocate, has supported the impugned judgment dated 16th April, 2013.

I have heard learned counsel for the parties and have also gone through the impugned judgment and records carefully.

PW1, Dr. R.S. Dhatwalia, has deposed that he had examined the appellant and diagnosed her to be suffering from chronic psychotic disorder. According to him, she was suffering from major mental disorder for the last about two years.

PW2, Sanjeev Singh, has led his evidence by way of filing an affidavit, Ext. PW2/A. According to averments contained in the affidavit, marriage was solemnized between the parties on 1.10.2008 as per Hindu and Sikh rites. There was no physical relation between him and the appellant. She used to refuse to do day-to-day household chores. She did not know how to behave with senior members of the family. He talked to her parents, who told him that she should be taken to Tantrik. She refused to develop physical relation with her on 9.10.2008. On 28.10.2008 and 15.11.2008, she refused to wash his clothes. On 28.12.2008, she put hot iron on the hands of his nephew Daman. He noticed on 29.1.2009 that she was speaking to herself. He again tried to develop physical relation with the appellant on 19.2.2009, however, he was slapped by her. She threatened him that in case, he tried to develop physical relation with her, she would falsely implicate him in a dowry case. On 27.2.2009, she refused to pass on utensils. In the month of March 2009, he was pushed by the appellant. He is 60% disabled. She used to sit in the sunlight in the month of May. She used to go to her parental home without informing him and his family members. She passed on urine in front of his family members in the month of October 2009. A compromise took place between the parties before the Panchayat on 16.7.2010. According to him, on 27.7.2010, the appellant tried to commit suicide by putting her scarf in running cooler. He filed an application before the Superintendent of Police, Una in the month of September 2010, who forwarded the same to Women''s Protection Cell. The appellant and her family members had filed a false case under Section 498-A of the Indian Penal Code against him and his family members. They had to seek bail from the court. The appellant had already taken a sum of Rs. 50,000/- along with Istri Dhan. The conduct of the appellant has caused him mental as well as physical cruelty.

In cross-examination, he has deposed that he never met the appellant before marriage. He had told to his father that he had no physical relation with the appellant. However, he admitted that his wife never refused to maintain physical relation with him. Though, he later on volunteered that she refused to develop physical relations with him. He deposed that he never asked his wife to do household chores. He volunteered that when he asked to do so, she refused. The appellant refused to wash his clothes. He has admitted that he had taken his wife before the Women''s Protection Cell. He left her there alone.

PW3, Channa Singh is father of the respondent. He has also led his evidence by way of filing an affidavit, Ext. PW3/A. According to the averments contained in the affidavit, the appellant had never undertaken household chores. As and when, she was asked to undertake the household chores, she refused to do so by using filthy language. She misbehaved with her mother-in-law when she asked her to pass on utensils. His son was also pushed by her. His son is 60% disabled. When he asked why she pushed his son, she started tearing her clothes. She used to talk to herself. Her father had told him that she should be taken to Tantrik. She had already taken Istri Dhan to her parental house. In order to settle the matter, compromise was effected between the parties a number of times. She used to misbehave with his family members. In cross-examination, he has admitted that the appellant was ready and willing to live in her matrimonial house. He was not aware that his son and daughter-in-law had no physical relation. However, he volunteered that his son had told him that she refused to physical access with him.

PW4 Sukh Dev has led his evidence by way of filing an affidavit, Ext. PW4/A. According to the averments contained in the affidavit, he knew families of both the parties. The appellant was short-tempered before marriage. She did not know how to respect the elders. Father of the appellant used to tell her that in case she did not mend her way, it would be difficult for her in-laws to live normally. He had told father of the appellant that he should treat his daughter from a Psychiatric. The appellant had tried to commit suicide by putting her scarf in running cooler. In cross-examination, he has admitted that he has no personal experience of appellant''s misbehaviour. The appellant used to talk to him politely. He has admitted that incident of cooler is a hearsay. He has also admitted that the appellant is not mentally challenged.

PW5, Jagjit Singh, has also led his evidence by way of filing an affidavit, Ext. PW5/A. According to averments contained in the affidavit, no child was borne after marriage of the parties. The respondent and his family members were upset with the behaviour of the appellant. The matter was compromised before the Panchayat as well as Police. She had agreed that she would mend her way. However, she started again misbehaving with the respondent and his family members. In cross-examination, he has admitted that he has close relation with the family of the respondent and they carry out agricultural pursuits jointly.

RW1, Hardeep Kaur, has also led her evidence by way of filing an affidavit, Ext. RW1/A. According to averments contained in the affidavit, she was married to respondent on 1.10.2008 as per Hindu rites. After few months of marriage, respondent and his family members started demanding dowry. She is physically challenged. On 24.3.2010, she was beaten up by the respondent and was shunted out of her matrimonial house. A compromise was arrived at between the parties before the Panchayat on 29.7.2010. She was taken to Women''s Protection Cell on 6.9.2010. She was left alone there by the respondent. She was constrained to lodge an FIR under Section 498-A of the Indian Penal Code against the appellant his family members. She has passed 10+2 examination. She is mentally fit. She has always taken care of the appellant and his family members. In cross-examination, she has specifically denied that she had no physical relation with the appellant. She has also denied that her mother-in-law has told her to pass on utensils and she abused her. She has admitted that she has taken back Istridhan. She has also denied that she was suffering from mental ailment.

What emerges from the pleadings and facts, enumerated hereinabove, is that the marriage between the parties was solemnized on 1.10.2008. According to the respondent, the appellant used to refuse to develop physical relation with him. However, the appellant has specifically denied this allegation. The marriage was solemnized on 1.10.2008 and the petition under Section 13(1)(ia) for dissolution of marriage has been filed on 13.9.2010. According to the respondent, he had told the factum of non-consummation of marriage to his father. However, his father while appearing as PW3 has deposed that he was not aware that his son had no physical access with his daughter-in-law. Later on, he added that this fact was told to him by his son. The respondent has never filed any petition before the 10 competent court of law seeking decree for restitution of conjugal rights against the appellant. No father would ever talk about his daughter that she should be treated by a ''Tantrik'', as alleged in the petition and deposed by the respondent while appearing as PW2. The allegation of the respondent that the appellant had refused to wash his clothes on 28.10.2008 and 15.11.2008 is trivial in nature. The appellant has passed 10+2 examination. The allegation that the appellant had put hot iron on the hand of respondent''s nephew Daman has not been substantiated. The respondent has not led any evidence that his nephew was ever taken to the Doctor. The allegation that the appellant has pushed the respondent is also an exaggeration. The appellant herself is physically challenged. It is true that the matter has reached the police as well as Panchayat.

Now, as far as allegation leveled against the appellant that she used to refuse to undertake household chores is concerned, it has come in the statement of PW2 Sanjeev Singh that he and his family members never asked the appellant to undertake household chores. Though he volunteered that she refused to wash his clothes. Even assuming that the appellant had refused to wash clothes of the respondent on two occasions, it will not amount to physical and mental cruelty. The matter was resolved between the parties on 16.7.2010 before the Gram Panchayat Charatgarh vide Mark A-2. Both the parties had signed the compromise, Mark A-2 in the presence of the witnesses. On 29.7.2010 another compromise, Mark A-4 was effected between the parties, in which the respondent withdrew his complaint filed against the appellant before the Superintendent of Police.

The respondent while appearing as PW2 has admitted in his cross-examination that the appellant had never refused to have physical relation with him. However, he added that she had not permitted to do so. The appellant has categorically denied the suggestion put to her that she had ever refused cohabitation with the respondent.

Now, as far as statement of PW4 Sukh Dev is concerned, he belongs to the village of the appellant. No father would ever discuss behaviour of his daughter before her marriage with a stranger, as deposed by PW4 Sukh Dev in his affidavit, Ext. PW4/A. He was not supposed to know about the relations of the parties. PW5 Jagjit Singh has given statement in favour of the respondent since he was pursuing agricultural pursuits with his family jointly. Statement of PW2 Sanjeev Singh that he had not seen the appellant before marriage cannot be believed at all.

It is not believable that the appellant could attempt to commit suicide by putting her scarf in a running cooler on 27.7.2010. The Court can take judicial note of the fact that there is an iron grill fixed before the cooler. PW4 Sukh Dev has categorically admitted in his cross-examination that he has deposed in his affidavit, Ext. PW4/A about the incident of cooler merely on hearsay basis. It is also not understandable that why respondent had filed the application before the Superintendent of Police, Una in the month of September 2010.

The appellant was constrained to file a complaint against the respondent and his family members under Section 12 of the Domestic Violence Act before the learned Judicial Magistrate 1st Class, Court No. III, Una, who vide order dated 5.10.2010 directed the respondent to pay Rs. 2000/- per month to the appellant as ad-interim maintenance. However, fact of the matter is that the appellant had withdrawn the complaint on 23.9.2011 against the respondent and his family members.

Now the court will advert to the case filed by the appellant against the respondent and his family members under Section 498-A of the Indian Penal Code.

The appellant while appearing as RW1 has categorically deposed that the respondent and his family members started demanding dowry after few months of marriage. She was treated with physical and mental cruelty by the respondent and his family members. She was beaten up mercilessly by the respondent and shunted out of the matrimonial house. She was compelled to file, as noticed hereinabove, petition under Section 12 of the Domestic Violence Act. In these circumstances, the appellant was constrained to file the complaint under Section 498-A of the Indian Penal Code. The respondent cannot take advantage of his own wrongs by maltreating the appellant and thereafter, to say that he was humiliated and harassed by the appellant by filing the case under Section 498-A of the Indian Penal Code, in which he and his family members had to seek bail. In the instant case, the instances quoted by the respondent are only normal wear and tear of the day to day family life.

Mr. Rajan Kahol, Advocate, has put strong reliance on the statement of PW1 Dr. R.S. Dhatwalia, who had diagnosed the respondent for chronic psychotic disorder. As per Ext. PW1/A, the appellant used to sit in hot sun for two hours and sleep late at night including muttering. There is only one instance when the appellant sat in the sun. Sleeping late night and muttering occasionally, could be due to tremendous pressure. It will not amount to mental disorder. PW1 Dr. R.S. Dhatwalia has merely opined that the appellant was suffering from some mental disease. He has not given the degree of the mental disorder. There is no evidence that the doctor had ever taken any clinical test. PW4, Sukh Dev has also admitted that as and when he used to meet the appellant her behavior was normal. According to him, the appellant was not suffering from any mental ailment. The irritable nature of the appellant, if any, may be due to the stress created by the respondent and his family members. The tendency of the doctors to issue medical certificates only on askance is deprecated. The conduct of the Women''s Protection Cell ordering the medical examination of the appellant by a Psychiatric is also deplorable. The Women''s Protection Cell has/had no authority whatsoever to order medical examination of the appellant by a Psychiatric. An educated girl, that too physically challenged, one fine morning could not be dubbed as suffering from mental disorder. Now, there is every tendency to seek divorce under one pretext or the other even by concocting the facts. All mental abnormalities are not recognized as grounds for grant of decree of divorce. The burden of proof to prove mental disorder was on the respondent, which he has failed to discharge. The behaviour of the appellant cannot be termed to be abnormal. There is no evidence to establish that the parties can not live together.

Their Lordships of Hon''ble Supreme Court in Ram Narain Gupta Vs. Rameshwari Gupta, have held that Section 13(1)(iii) does not make the mere existence of a mental disorder of any degree sufficient in law to justify the dissolution of a marriage. The context in which the ideas of unsoundness of ''mind'' and ''mental disorder'' occur in the section as grounds for dissolution of a marriage, require the assessment of the degree of the ''mental disorder''. Its degree must be such that the spouse seeking relief cannot reasonably be expected to live with the others. All mental abnormalities are not recognized as grounds for grant of decree. The medical concern against too readily unit in family or society is law''s concern also and is reflected, at least partially, in the requirements of Section 13(1)(iii). Their Lordships have held as under:--

"16. The High Court also referred to the respondent''s grievance that the environment of hostility and harassment to which she was subjected by appellant''s parent and sisters etc. had taken its toll and rendered her apprehensive and irritable. High Court observed:

"...Cruelty inflicted by the in-laws culminated in the first information report which the defendant lodged in the morning of 1st July, 1983, for which no convincing evidence has been given by the plaintiff that the said report was false and that was filed by the defendant without any grave provocation. The case of the defendant is that the ill-treatment extended to her by her in-laws throughout right from the time of marriage told upon her mental state and she became very irritable and apprehensive. The case of the defendant has to be seen in this background."

Concluding the High Court said:

"...I accept the contention of learned counsel for the defendant- appellant that the decree of the divorce cannot be sustained, as the plaintiff failed to adduce any evidence that could prove beyond reasonable doubt that the mental disorder of the defendant was of such a kind and to such an extent that the plaintiff cannot live safely with the defendant."

The point, however, to note is that S. 13(1)(iii) does not make the mere existence of a mental-disorder of any degree sufficient in law to justify the dissolution of a marriage. Section 13(1)(iii) provides:

"S. 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) & (ii) Omitted as unnecessary.

(iii) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be, expected to live with the respondent.

Explanation: In this clause,

(a) the expression mental disorder means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia;"

(b) Omitted as unnecessary.

(Emphasis supplied)

The context in which the ideas of unsoundness of ''mind'' and ''mental-disorder'' occur in the section as grounds for dissolution of a marriage, require the assessment of the degree of the ''mental-disorder''. Its degree must be such as that the spouse seeking relief cannot reasonably be expected to live with the other. All. mental abnormalities are not recognised as grounds for grant of decree. If the mere existence of any degree of mental abnormality could justify dissolution of a marriage few marriages would, indeed, survive in-law.

But the point to note and emphasise is that the personality- disintegration that characterises this illness may be of varying degrees. Not all schzophrenics are characterised by the same intensity of the decease. F.C. Redlich and Daniel X. Freedman in "The Theory and Practice. of Psychiatry" (1966 Edn.) say:

"...Some schizophrenic reactions, which we call psychoses, may be relatively mild and transient; others may not interfere too seriously with many aspects of everyday living...."

"Are the characteristic remissions and relapses expressions of endogenous processes, or are they responses to psychosocial variables, or both ? Some patients recover, apparently completely, when such recovery occurs without treatment we speak of spontaneous remission. The term need not imply an independent endogenous process; it is just as likely that the spontaneous remission is a response to non-deliberate but nonetheless favourable psychosocial stimuli other than specific therapeutic activity...."

(Emphasis supplied)

The reasoning of the High Court is that the requisite degree of the mental disorder which alone would justify dissolution of the marriage has not been established. This, it seems to us, to be not an unreasonable assessment of the situation - strong arguments of Sri Goel to the contrary notwithstanding.

Considering the evidence in that case, the High Court reached the conclusion:

"...We are clearly of the opinion that she only has slight mental disorder and she has been suffering intermittently from the same. But after considering the totality of the evidence and the impact on the husband, we must hold that such mental disorder is not of such a kind and to such an extent that the husband cannot reasonably be expected to live with her, within the meaning of the second portion of Cl. (iii) of S. 13(1) of the Act...."

This medical-concern against too readily reducing a human being into a functional non-entity and as a negative-unit in family or society is law''s concern also and is reflected, at least partially, in the requirements of S. 13(1)(iii). In the last analysis, the mere branding of a person as schizophrenic will not suffice. For purposes of S. 13(1)(iii) ''schizophrenia'' is what Schizophrenia does."

Their Lordships of Hon''ble Supreme Court in V. Bhagat Vs. Mrs. D. Bhagat, have held that the mental cruelty in Section 13(1)(i-a) can broadly be defined as that conduct, which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. Mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. Their Lordships have held as under:--

"16. Mental cruelty in S. 13(1)(ia) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. While arriving at such conclusion, regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made."

Their Lordships of Hon''ble Supreme Court in S. Hanumantha Rao Vs. S. Ramani, have held that mental cruelty means mental pain, agony, or suffering, caused by either spouse, of such magnitude that it severs the bond between husband and wife and makes it impossible for the party that has suffered to live with the other party. In this case, evidence indicating that (1) wife/respondent occasionally removing mangalsutra at the instance of the husband, (2) keeping copies of own letters sent to husband, and (3) parents of wife seeking help from Women''s Protection Cell in bringing about reconciliation between estranged spouses, do not prove charge of mental cruelty against the wife. Their Lordships have held as under:--

"8. Before we deal with the submission it is necessary to find out what is mental cruelty as envisaged under Section 13(1)(ia) of the Act. Mental cruelty broadly means, when either party causes mental pain, agony or suffering of such a magnitude that it severs the bond between the wife and husband and as a result of which it becomes impossible for the party who has suffered to live with the other party. In other words, the party who has committed wrong is not expected to live with the other party. It is in this background we have to test the argument raised by the learned counsel for the appellant. The respondent after having admitted the removal of Mangalsutra stated, that while in privacy the husband often used to ask her to remove the chain and bangles. She has also stated that in her parent''s house when her aunt and mother used to go to bathroom they used to take out Mangalsutra from their neck and, therefore, she thought that she was not doing anything wrong in removing Mangal-sutra when she was asked to do so by her husband. She also stated that whenever she removed Mangalsutra, she never thought of bringing an end to the married life and was still wearing her Mangalsutra; and it is when her husband made hue and cry of such removal of Mangalsutra, she profusely apologized. From all these evidence the High Court concluded that the incident was blown out of proportion and the appellant attempted to take advantage of the incident by picturising the same as an act of cruelty on the part of the wife. The question, therefore, arises whether the removal of the Mangalsutra by the wife at the instance of her husband would amount to mental cruelty within the meaning of Section 13(1)(ia) of the Act. It is no doubt true that Mangalsutra around the neck of a wife is a sacred thing for a Hindu wife as if symbolises continuance of married life. A Hindu wife removes her Mangalsutra only after the death of her husband. But here we are not concerned with a case where a wife after tearing her Mangalsutra threw at her husband and walked out of her husband''s house. Here is a case where a wife while in privacy, occasionally has been removing her Mangalsutra and bangles on asking of her husband with a view to please him. If the removal of Mangalsutra was something wrong amounting to mental cruelty, as submitted by learned counsel for the appellant, it was the husband who instigated his wife to commit that wrong and thus was an abettor. Under such circumstances the appellant cannot be allowed to take advantage of a wrong done by his wife of which he himself was responsible. In such a case the appellant cannot be allowed to complain that his wife is guilty of committing an act of mental cruelty upon him, and further by such an act, has suffered mental pain and agony as a result of which married life has broken down, and he is not expected to live with his wife. It also appears to us that, whenever the appellant asked her wife for removal of her Mangalsutra, the respondent never comprehended that her husband at any point of time would react to such occurrences in the way he did. Under such circumstances, the appellant was not expected to have made an issue out of it. We are, therefore, of the view that removal of Mangalsutra by the respondent would not constitute mental cruelty within the meaning of Section 13(1)(ia) of the Act.

The next ground of act of cruelty attributed to the wife relates to her preserving and maintaining copies of her letters sent to her husband. Learned counsel urged that the act of the wife''s preserving copies of such letters has shaken the confidence of the husband which amounts to mental cruelty upon her husband, as according to him, copies of such letters were preserved knowingly to use them as evidence in future and such an action definitely amounts to mental cruelty.

The view taken by the High Court was that mere retention of copies of the letters would not amount to mental cruelty. We also find that if the wife had any intention to use copies of those letters she would have filed the same before the trial Court. Excepting filing a counter-affidavit the respondent-wife did not file any copy of the letters sent to her husband, whereas the husband has filed all the letters sent to him by his wife in the Court which were exhibited. The respondent-wife in her testimony stated that she wrote several letters to her husband, but her husband did not reply any of them and as such she started preserving the copies of the letters sent by her to her husband. This act of the respondent, according to us, is a most natural behaviour of human being placed in such circumstances. Thus, we find mere preserving the copies of the letters by the wife does not constitute an act which amounts to mental cruelty, and as a result of which it becomes impossible for the husband to live with his wife. We, therefore, reject the submission of learned counsel for the appellant.

The last act of the respondent, which according to the learned counsel for the appellant, amounts to mental cruelty is that she lodged a complaint with the Women Protection Cell, through her uncle and as a result of which the appellant and the members of his family had to seek anticipatory bail. The respondent in her evidence stated that she had never lodged any complaint against the appellant or any members of his family with the Women Protection Cell. However, she stated that her parents sought help from Women Protection Cell for reconciliation through one of her relative who, at one time, happened to be the Superintendent of Police. It is on the record that one of the functions of the Women Protection Cell is to bring about reconciliation between the estranged spouses. There is no evidence on record to show that either the appellant or any member of his family were harassed by the Cell. The Cell only made efforts to bring about reconciliation between the parties but failed. Out of panic if the appellant and members of his family sought anticipatory bail, the respondent cannot be blamed for that. Thus, we are of the opinion, that representation made by the parents of the respondent to the Cell for reconciliation of the estranged spouses does not amount to mental cruelty caused to the appellant."

Their Lordships of Hon''ble Supreme Court in Hirachand Srinivas Managaonkar Vs. Sunanda, have held that under Section 13(1-A) read with Section 23(1)(a), the petitioner does not have a vested right for getting the relief of a decree of divorce against the other party merely on showing that the ground in support of the relief sought as stated in the petition exists. It has to be kept in mind that relationship between the spouses is a matter concerning human life. Human life does not run on dotted lines or charted course laid down by the statutes. It has also to be kept in mind that before granting the prayer of the petitioner to permanently snap the relationship between the parties to the marriage every attempt should be made to maintain the sanctity of the relationship which is of importance not only for the individuals or their children, but also for the society. Their Lordships have held as under:--

"14. In this connection it is also necessary to clear an impression regarding the position that once a cause of action for getting a decree of divorce under S. 13(1-A) of the Act arises the right to get a divorce crystallises and the Court has to grant the relief of divorce sought by the applicant. This impression is based on a misinterpretation of the provision in S. 13(1-A). All that is provided in the said section is that either party to a marriage may present a petition for dissolution of the marriage by a decree of divorce on the ground that there has been no resumption of cohabitation between the parties to the marriage for a period of one year or more after the passing of a decree for judicial separation in a proceeding to which they were parties or that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or more after the passing of a decree for restitution of conjugal rights in a proceeding to which both the spouses were parties. The section fairly read, only enables either party to a marriage to file an application for dissolution of the marriage by a decree of divorce on any of the grounds stated therein. The section does not provide that once the applicant makes an application alleging fulfillment of one of the conditions specified therein the Court has no alternative but to grant a decree of divorce. Such an interpretation of the section will run counter to the provisions in S. 23(1)(a) or (b) of the Act. In S. 23(1) it is laid down that if the Court is satisfied that any of the grounds for granting relief exists and further that the petitioner is not in any way taking advantage of his or her own ''wrong'' or disability for the purpose of such relief and in Cl. (b) a mandate is given to the Court to satisfy itself that in the case of a petition based on the ground specified in Cl. (i) of sub-section (1) of S. 13, the petitioner has not in any manner been accessory to or connived at or condoned the act or acts complained of, or where the ground of the petition is cruelty the petitioner has not in any manner condoned the cruelty and in (bb) when a divorce is sought on the ground of mutual consent such consent has not been obtained by force, fraud or undue influence. If the provisions in S. 13(1-A) and S. 23(1)(a) are read together the position that emerges is that the petitioner does not have a vested right for getting the relief of a decree of divorce against the other party merely on showing that the ground in support of the relief sought as stated in the petition exists. It has to be kept in mind that relationship between the spouses is a matter concerning human life. Human life does not run on dotted lines or charted course laid down by statute. It has also to be kept in mind that before granting the prayer of the petitioner to permanently snap the relationship between the parties to the marriage every attempt should be made to maintain the sanctity of the relationship which is of importance not only for the individuals or their children but also for the society. Whether the relief of dissolution of the marriage by a decree of divorce is to be granted or not depends on the facts and circumstances of the case. In such a matter it will be too hazardous to lay down a general principle of universal application."

Their Lordships of Hon''ble Supreme Court in G.V.N. Kameswara Rao Vs. G. Jabilli, have held that cruelty does not necessarily involve life-threatening conduct or conduct resulting in bodily injury or damage to health or conduct which gives rise to a reasonable apprehension of danger to life, limb or health. Their Lordships have further held that solitary incidents or occasional outbursts of anger or rudeness would not amount to cruelty. The Court on overall consideration of all relevant circumstances has to consider whether the conduct of the respondent is such that it has become intolerable for the petitioner to suffer any longer and to live together has become impossible. Their Lordships have further held that the mental cruelty is to be assessed bearing in mind the social status of the parties, their customs and traditions, their educational level and environment in which they live. Their Lordships have held as under:--

"10. The omission of the words, which described "cruelty" in the un-amended Section 10 of the Hindu Marriage Act, has some significance in the sense that it is not necessary to prove that the nature of the cruelty is such as to cause reasonable apprehension in the mind of the petitioner that it would be harmful for the petitioner to live with the other party. English courts in some of the earlier decisions had attempted to define "cruelty" as an act which involves conduct of such a nature as to have caused damage to life, limb or health or to give rise to reasonable apprehension of such danger. But we do not think that such a degree of cruelty is required to be proved by the petitioner for obtaining a decree for divorce. Cruelty can be said to be an act committed with the intention to cause sufferings to the opposite party. Austerity of temper, rudeness of language, occasional outburst of anger, may not amount to cruelty, though it may amount to misconduct.

The court has to come to a conclusion whether the acts committed by the counter-petitioner amount to cruelty, and it is to be assessed having regard to the status of the parties in social life, their customs, traditions and other similar circumstances. Having regard to the sanctity and importance of marriages in a community life, the court should consider whether the conduct of the counter-petitioner is such that it has become intolerable for the petitioner to suffer any longer and to live together is impossible, and then only the court can find that there is cruelty on the part of the counter-petitioner. This is to be judged not from a solitary incident, but on an overall consideration of all relevant circumstances."

Their Lordships of Hon''ble Supreme Court in Praveen Mehta Vs. Inderjit Mehta, have held that the mental cruelty is a state of mind and feelings and is therefore necessarily a matter of inference to be drawn from the facts and circumstances of the case. Proper approach requires the assessment of the cumulative effect of the attending facts and circumstances established by the evidence on record. Their Lordships have further held that the mental cruelty could be the result of an extremely stubborn attitude, and/or inexplicable and unreasonable conduct on the part of the spouse. Their Lordships have held as under:--

"14. As noted earlier, the learned single judge granted the respondent''s prayer for dissolution of the marriage on the ground of ''cruelty''. Therefore, the question arises whether in the facts and circumstances of the case, a case for divorce under section 13(1)(ia) of the Hindu Marriage Act 1955 (for short ''the Act'') has been made out. The answer to this question depends on determination of the question formulated earlier. In section 13(1) it is laid down that:

"Divorce.--(1) Any marriage solemnized, 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 - xxxx (ia) has, after the solemnization of the marriage, treated the petitioner with cruelty;"

Under the statutory provision cruelty includes both physical and mental cruelty. The legal conception of cruelty and the kind of degree of cruelty necessary to amount to a matrimonial offence has not been defined under the Act. Probably, the legislature has advisedly refrained from making any attempt at giving a comprehensive definition of the expression that may cover all cases, realising the danger in making such attempt. The accepted legal meaning in England as also in India of this expression, which is rather difficult to define, had been ''conduct of such character as to have caused danger to life, limb or health (bodily or mental), or as to give rise to a reasonable apprehension of such danger (Russel v. Russel [(1897) AC 395] and Mulla Hindu Law, 17th Edition, Volume II page 87]. The provision in clause (ia) of section 13(1), which was introduced by the Marriage Laws (Amendment) Act, 68 of 1976, simply states that ''treated the petitioner with cruelty''. The object, it would seem, was to give a definition exclusive or inclusive, which will amply meet every particular act or conduct and not fail in some circumstances. By the amendment the legislature must, therefore, be understood to have left to the courts to determine on the facts and circumstances of each case whether the conduct amounts to cruelty. This is just as well since actions of men are so diverse and infinite that it is almost impossible to expect a general definition which could be exhaustive and not fail in some cases. It seems permissible, therefore, to enter a caveat against any judicial attempt in that direction (Mulla Hindu Law, 17th Edition, volume II, page 87).

Clause (ia) of sub-section (1) of section 13 of the Act is comprehensive enough to include cases of physical as also mental cruelty. It was formerly thought that actual physical harm or reasonable apprehension of it was the prime ingredient of this matrimonial offence. That doctrine is now repudiated and the modern view has been that mental cruelty can cause even more grievous injury and create in the mind of the injured spouse reasonable apprehension that it will be harmful or unsafe to live with the other party. The principle that cruelty may be inferred from the whole facts and matrimonial relations of the parties and interaction in their daily life disclosed by the evidence is of greater cogency in cases falling under the head of mental cruelty. Thus mental cruelty has to be established from the facts (Mulla Hindu Law, 17th edition, volume II, page 91).

Cruelty for the purpose of section 13(1)(ia) is to be taken as a behaviour by one spouse towards the other which causes reasonable apprehension in the mind of the latter that it is not safe for him or her to continue the matrimonial relationship with the other. Mental cruelty is a state of mind and feeling with one of the spouses due to the behaviour or behavioural pattern by the other. Unlike the case of physical cruelty, the mental cruelty is difficult to establish by direct evidence. It is necessarily a matter of inference to be drawn from the facts and circumstances of the case. A feeling of anguish, disappointment and frustration in one spouse caused by the conduct of the other can only be appreciated on assessing the attending facts and circumstances in which the two partners of matrimonial life have been living. The inference has to be drawn from the attending facts and circumstances taken cumulatively. In case of mental cruelty it will not be a correct approach to take an instance of misbehaviour in isolation and then pose the question whether such behaviour is sufficient by itself to cause mental cruelty. The approach should be to take the cumulative effect of the facts and circumstances emerging from the evidence on record and then draw a fair inference whether the petitioner in the divorce petition has been subjected to mental cruelty due to conduct of the other."

Their Lordships of Hon''ble Supreme Court in Sharda Vs. Dharmpal, have held that the relevance of medical evidence regarding and onus of proof of the existence of requisite degree of mental disorder is relevant, but no conclusive. Their Lordships have further held that the onus is on the applicant. Their Lordships have held as under:--

"11. It is trite law that for the purpose of grant of a decree of divorce what is necessary is that the petitioner must establish that unsoundness of mind of the respondent is incurable or his/her mental disorder is of such a kind and to such an extent that he cannot reasonably be expected to live with his/her spouse. Medical testimony for arriving at such finding although may not be imperative but undoubtedly would be of considerable assistance to the Court. We may, however, hasten to add that such medical testimony being the evidence of experts would not leave the court from the obligation of satisfying itself on the point in issue beyond reasonable doubt. Relevance of a medical evidence, therefore, cannot be disputed.

The decisions rendered by various courts of this country including this Court lead to a conclusion that a decree for divorce in terms of Section 13(1)(iii) of the Act can be granted in the event the unsoundness of mind is held to be not curable. A party may behave strangely or oddly inappropriate and progressive in deterioration in the level of work may lead to a conclusion that he or she suffers from an illness of slow growing developing over years. The disease, however, must be of such a kind that the other spouse cannot reasonably be expected to live with him or her. A few strong instances indicating short temper and somewhat erratic behaviour on the part of the spouse may not amount to his/her suffering continuously or intermittently from mental disorder.

Having regard to development in medicinal technology, it is possible to find not that what was presumed to be a mental disorder of a spouse is not really so.

In matrimonial disputes, the court has also a conciliatory role to play - even for the said purpose it may require expert advice.

Under Section 75(e) of the Code of Civil Procedure and Order 26 Rule 10A the Civil Court has the requisite power to issue a direction to hold a scientific, technical or expert investigation."

Their Lordships of Hon''ble Supreme Court in Vijaykumar Ramchandra Bhate Vs. Neela Vijaykumar Bhate, have held that proof of cruelty does not depend upon any particular period or number of incidents of cruel treatment or continuous course of conduct but depends upon intensity, gravity and stigmatic impact of it when meted out even once. Their Lordships have held as under:--

"7. The question that requires to be answered first is as to whether the averments, accusations and character assassination of the wife by the appellant husband in the written statement constitutes mental cruelty for sustaining the claim for divorce under Section 13(1)(i-a) of the Act. The position of law in this regard has come to be well settled and declared that levelling disgusting accusations of unchastity and indecent familiarity with a person outside wedlock and allegations of extra marital relationship is a grave assault on the character, honour, reputation, status as well as the health of the wife. Such aspersions of perfidiousness attributed to the wife, viewed in the context of an educated Indian wife and judged by Indian conditions and standards would amount to worst form of insult and cruelty, sufficient by itself to substantiate cruelty in law, warranting the claim of the wife being allowed. That such allegations made in the written statement or suggested in the course of examination and by way of cross-examination satisfy the requirement of law has also come to be firmly laid down by this Court. On going through the relevant portions of such allegations, we find that no exception could be taken to the findings recorded by the Family Court as well as the High Court. We find that they are of such quality, magnitude and consequence as to cause mental pain, agony and suffering amounting to the reformulated concept of cruelty in matrimonial law causing profound and lasting disruption and driving the wife to feel deeply hurt and reasonably apprehend that it would be dangerous for her to live with a husband who was taunting her like that and rendered the maintenance of matrimonial home impossible.

The allegations made in this case do not appear to have been the result of any sudden outburst. On the other hand, such injurious reproaches, accusations and taunts as were found to have been made in this case lend credence to the fact that the husband was persisting in them for sufficiently a long time humiliating and wounding the feelings of the wife to such an extent as to make it insufferable for the wife and to live in matrimonial home any longer with the husband. The Division Bench of the High Court in the course of its judgment in FCA No. 57 of 1994, particularly in paras 31 to 38 adverted to the nature and details of the allegations as culled out from the written statement extensively and meticulously and considered them in the light of the settled principles of law governing the same before affirming the judgment of the trial court which also recorded findings against the respondent after a detailed discussion of the relevant materials on record in paras 26 to 30 of the judgment in M.J. Petition No. 382 of 1983. On going through them we are convinced that the findings of the courts below are well merited and fully justified on the materials available on record and that they are neither shown to suffer any infirmity in law nor substantiated to be based on no evidence or vitiated on account of any perversity of approach to call for a different conclusion in our hands and interfere with the concurrent verdicts recorded by them."

Their Lordships of Hon''ble Supreme Court in A. Jayachandra Vs. Aneel Kaur, have held that mental cruelty has to be considered in the light of the social status of parties, their education, physical and mental conditions, customs and traditions. The Court has to draw inference and decide on the basis of probabilities of the case having regard to the effect on the mind of the complainant spouse because of the acts or omissions of the other spouse. However, where the conduct complained of itself is bad enough and per se unlawful or illegal, the impact or injurious effect on the other spouse need not be considered. Their Lordships have held as under:--

"10. The expression "cruelty" has not been defined in the Act. Cruelty can be physical or mental. Cruelty which is a ground for dissolution of marriage may be defined as willful and unjustifiable conduct of such character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such a danger. The question of mental cruelty has to be considered in the light of the norms of marital ties of the particular society to which the parties belong, their social values, status, environment in which they live. Cruelty, as noted above, includes mental cruelty, which falls within the purview of a matrimonial wrong. Cruelty need not be physical. If from the conduct of his spouse same is established and/or an inference can be legitimately drawn that the treatment of the spouse is such that it causes an apprehension in the mind of the other spouse, about his or her mental welfare then this conduct amounts to cruelty. In delicate human relationship like matrimony, one has to see the probabilities of the case. The concept, a proof beyond the shadow of doubt, is to be applied to criminal trials and not to civil matters and certainly not to matters of such delicate personal relationship as those of husband and wife. Therefore, one has to see what are the probabilities in a case and legal cruelty has to be found out, not merely as a matter of fact, but as the effect on the mind of the complainant spouse because of the acts or omissions of the other. Cruelty may be physical or corporeal or may be mental. In physical cruelty, there can be tangible and direct evidence, but in the case of mental cruelty there may not at the same time be direct evidence. In cases where there is no direct evidence, Courts are required to probe into the mental process and mental effect of incidents that are brought out in evidence. It is in this view that one has to consider the evidence in matrimonial disputes.

The expression ''cruelty'' has been used in relation to human conduct or human behaviour. It is the conduct in relation to or in respect of matrimonial duties and obligations. Cruelty is a course or conduct of one, which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. If it is physical, the Court will have no problem in determining it. It is a question of fact and degree. If it is mental, the problem presents difficulties. First, the enquiry must begin as to the nature of cruel treatment, second the impact of such treatment in the mind of the spouse, whether it caused reasonable apprehension that it would be harmful or injurious to live with the other. Ultimately, it is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. However, there may be a case where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted (See Shobha Rani Vs. Madhukar Reddi, .

To constitute cruelty, the conduct complained of should be "grave and weighty" so as to come to the conclusion that the petitioner spouse cannot be reasonably expected to live with the other spouse. It must be something more serious than "ordinary wear and tear of married life". The conduct, taking into consideration the circumstances and background has to be examined to reach the conclusion whether the conduct complained of amounts to cruelty in the matrimonial law. Conduct has to be considered, as noted above, in the background of several factors such as social status of parties, their education, physical and mental conditions, customs and traditions. It is difficult to lay down a precise definition or to give exhaustive description of the circumstances, which would constitute cruelty. It must be of the type as to satisfy the conscience of the Court that the relationship between the parties had deteriorated to such an extent due to the conduct of the other spouse that it would be impossible for them to live together without mental agony, torture or distress, to entitle the complaining spouse to secure divorce. Physical violence is not absolutely essential to constitute cruelty and a consistent course of conduct inflicting immeasurable mental agony and torture may well constitute cruelty within the meaning of Section 10 of the Act. Mental cruelty may consist of verbal abuses and insults by using filthy and abusive language leading to constant disturbance of mental peace of the other party.

The Court dealing with the petition for divorce on the ground of cruelty has to bear in mind that the problems before it are those of human beings and the psychological changes in a spouse''s conduct have to be borne in mind before disposing of the petition for divorce. However insignificant or trifling, such conduct may cause pain in the mind of another. But before the conduct can be called cruelty, it must touch a certain pitch of severity. It is for the Court to weigh the gravity. It has to be seen whether the conduct was such that no reasonable person would tolerate it. It has to be considered whether the complainant should be called upon to endure as a part of normal human life. Every matrimonial conduct, which may cause annoyance to the other, may not amount to cruelty. Mere trivial irritations, quarrels between spouses, which happen in day-to-day married life, may also not amount to cruelty. Cruelty in matrimonial life may be of unfounded variety, which can be subtle or brutal. It may be words, gestures or by mere silence, violent or non-violent."

Their Lordships of Hon''ble Supreme Court in Vinita Saxena Vs. Pankaj Pandit, have held that the cruelty and mental disorder are two different grounds for grant of divorce. In Section 13(1)(iii) ''mental disorder'' as a ground of divorce is attracted only where it is of such a kind and degree that the appellant cannot reasonably be expected to live with the respondent.

Their Lordships of Hon''ble Supreme Court in Naveen Kohli Vs. Neelu Kohli, have held that the cruelty is a course or conduct of one, which is adversely affecting the other. Their Lordships have held as under:--

"48. The cruelty alleged may largely depend upon the type of life the parties are accustomed to or their economic and social conditions and their culture and human values to which they attach importance. Each case has to be decided on its own merits.

In Durga Prasanna Tripathy Vs. Arundhati Tripathy, , this Court further observed that Marriages are made in heaven. Both parties have crossed the point of no return. A workable solution is certainly not possible. Parties cannot at this stage reconcile themselves and live together forgetting their past as a bad dream. We, therefore, have no other option except to allow the appeal and set aside the judgment of the High Court and affirming the order of the Family Court granting decree for divorce."

Their Lordships of Hon''ble Supreme Court in Sujata Uday Patil Vs. Uday Madhukar Patil, have held that the matrimonial disputes should be decided in a pragmatic manner keeping in view the ground realities. Their Lordships have further held that the cruel treatment can be inferred from the entire course of conduct and incidents showing display of temperament, emotion and perversion by one spouse causing hurt and humiliation to the other spouse. Their Lordships have held as under:--

"6. Sub-section (1) of Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred as ''the Act'') lays down the grounds on which a marriage may be dissolved by a decree of divorce. This sub-section has several clauses and under clause (i-a) cruelty and under clause (i-b) desertion for a continuous period of not less than two years immediately preceding the presentation of the petition, are grounds for granting a decree of divorce. The following observation made by this Court in Reynold Rajamani and Another Vs. Union of India (UOI) and Another, , which is a case under Section 10 of the Divorce Act, throw considerable light on the approach which should be adopted in dealing with a provision relating to divorce:--

"The history of all matrimonial legislation will show that at the outset, conservative attitude influenced the grounds on which separation or divorce could be granted. Over the decades a more liberal attitude has been adopted, fostered by a recognition of the need for individual happiness of the adult parties directly involved. But although the grounds for divorce have been liberalized, they nevertheless continue to form an exception to the general principles favouring the continuation of the marital tie. In our opinion, when a legislative provision specifies the grounds on which divorce may be granted they constitute the only conditions on which the Court has jurisdiction to grant divorce. If grounds need to be added to those already specifically set forth in the legislation, that is the business of the Legislature and not of the Courts. It is another matter that in construing the language in which the grounds are incorporated the courts should give a liberal construction to it. Indeed we think that the courts must give the fullest amplitude of meaning to such a provision. But, it must be meaning which the language of the section is capable of holding."

Therefore, a liberal approach has to be adopted in dealing with various clauses of sub-section (1) of Section 13 of the Act and full meaning should be given to the words used by the legislature.

The word "cruelty" and the kind or degree of "cruelty" necessary which may amount to a matrimonial offence has not been defined in the Act. What is cruel treatment is to a large extent a question of fact or a mixed question of law and fact and no dogmatic answer can be given to the variety of problems that arise before the court in these kind of cases. The law has no standard by which to measure the nature and degree of cruel treatment that may satisfy the test. It may consist of a display of temperament, emotion or pervasion whereby one gives vent to his or her feelings, without intending to injure the other. It need not consist of direct action against the other but may be misconduct indirectly affecting the other spouse even though it is not aimed at that spouse. It is necessary to weigh all the incidents and quarrels between the parties keeping in view the impact of the personality and conduct of one spouse upon the mind of the other. Cruelty may be inferred from the facts and matrimonial relations of the parties and interaction in their daily life disclosed by the evidence and inference on the said point can only be drawn after all the facts have been taken into consideration. Where there is proof of a deliberate course of conduct on the part of one, intended to hurt and humiliate the other spouse, and such a conduct is persisted, cruelty can easily be inferred. Neither actual nor presumed intention to hurt the other spouse is a necessary element in cruelty.

In the case in hand it is an established fact that the respondent has married again and has a child from the second wife. In such circumstances even if the decree for divorce granted by the learned District Judge which has been affirmed by the High Court is set aside, as prayed by the appellant herein, no useful purpose would be served. The appellant cannot possibly live with the husband in such a scenario nor it will be conducive to the upbringing of her son Charul @ Chaitanya. The learned District Judge has mentioned in the judgment that he made serious efforts for reconciliation and talked to the parties in arriving at an amicable solution but the respondent was reluctant to take back the appellant on account of strained relationship and at the same time the appellant, who refused to give divorce to the respondent, was not firm as to whether their union would bring about happy reunion. He has further mentioned that he suggested to the parties to take some unanimous decision keeping in mind the future of their son Charul @ Chaitanya but they failed to come to any such decision. The case was adjourned several times in this Court also to enable the parties to arrive at a settlement but it did not bring about any fruitful result."

Their Lordships of Hon''ble Supreme Court in Samar Ghosh Vs. Jaya Ghosh, have held that there cannot be any comprehensive definition of "mental cruelty" within which all kinds of cases of mental cruelty can be covered. The prudent and appropriate way to adjudicate the case would be to evaluate it on its peculiar facts and circumstances while taking the various factors mentioned herein into consideration. Their Lordships have further held that there can never be any straitjacket formula or fixed parameters for determining mental cruelty in matrimonial matters. Their Lordships have held as under:--

"100. Apart from this, the concept of mental cruelty cannot remain static; it is bound to change with the passage of time, impact of modern culture through print and electronic media and value system etc. etc. What may be mental cruelty now may not remain a mental cruelty after a passage of time or vice versa. There can never be any strait-jacket formula or fixed parameters for determining mental cruelty in matrimonial matters. The prudent and appropriate way to adjudicate the case would be to evaluate it on its peculiar facts and circumstances while taking aforementioned factors in consideration.

No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of ''mental cruelty''. The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive.

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

(ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party.

(iii) Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable.

(iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty.

(v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse.

(vi) Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty.

(vii) Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty.

(viii) The conduct must be much more than jealousy, selfishness, possessiveness, which causes unhappiness and dissatisfaction and emotional upset may not be a ground for grant of divorce on the ground of mental cruelty.

(ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day to day life would not be adequate for grant of divorce on the ground of mental cruelty.

(x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill-conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty.

(xi) If a husband submits himself for an operation of sterilization without medical reasons and without the consent or knowledge of his wife and similarly if the wife undergoes vasectomy or abortion without medical reason or without the consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty.

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

(xiii) Unilateral decision of either husband or wife after marriage not to have 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 like situations, it may lead to mental cruelty.

When we take into consideration aforementioned factors along with an important circumstance that the parties are admittedly living separately for more than sixteen and half years (since 27.8.1990) the irresistible conclusion would be that matrimonial bond has been ruptured beyond repair because of the mental cruelty caused by the respondent."

Their Lordships of Hon''ble Supreme Court in Manisha Tyagi Vs. Deepak Kumar, have held that to constitute ''cruelty'' it is enough that conduct of one of parties is so abnormal and below accepted norm that other spouse could not reasonably be expected to put with it. Their Lordships have held as under:--

"26. At this stage we may notice the observations made by this Court in the case of Naveen Kohli Vs. Neelu Kohli, . In this case the Court examined the development and evolution of the concept of mental cruelty in matrimonial causes. In paragraph 35 it is observed as follows:

"35. The petition for divorce was filed primarily on the ground of cruelty. It may be pertinent to note that, prior to 1976 amendment in the Hindu Marriage Act, 1955 cruelly was not a ground for claiming divorce under the Hindu Marriage Act. It was only a ground for claiming judicial separation under Section 10 of the Act. By the 1976 amendment, cruelty was made a ground for divorce and the words which have been omitted from Section 10 are "as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other party". Therefore, it is not necessary for a party claiming divorce to prove that the cruel treatment is of such a nature as to cause an apprehension-reasonable apprehension - that it will be harmful or injurious for him or her to live with the other party."

The classic example of the definition of cruelty in the pre-1976 era is given in the well known decision of this Court in the case of Dr. N.G. Dastane Vs. Mrs. S. Dastane, , wherein it is observed as follows:

"The enquiry has to be whether the conduct charged as cruelty is of such a character as to cause in the mind of the petitioner as reasonable apprehension that it would be harmful or injurious for him to live with the respondent".

This is no longer the required standard. Now it would be sufficient to show that the conduct of one of the spouses is so abnormal and below the accepted norm that the other spouse could not reasonably be expected to put up with it. The conduct is no longer required to be so atrociously abominable which would cause a reasonable apprehension that it would be harmful or injurious to continue the cohabitation with the other spouse. Therefore to establish cruelty it is not necessary that physical violence should be used. However continued ill-treatment cessation of marital intercourse, studied neglect, indifference of one spouse to the other may lead to an inference of cruelty. However in this case even with aforesaid standard both the Trial Court and the Appellate Court had accepted that the conduct of the wife did not amount to cruelty of such a nature to enable the husband to obtain a decree of divorce."

Their Lordships of Hon''ble Supreme Court in Neelam Kumar Vs. Dayarani, have held that no decree of divorce can be granted unless person seeking divorce proves cruelty on the basis of pleadings and evidence. Respondent not producing any evidence in support of his/her case to the contrary is of no consequence. Their Lordships have further held that one single instance in isolation is not sufficient for dissolution of marriage on ground of cruelty. Their Lordships have held as under:--

"7. Against the judgment and decree passed by the trial court, the respondent filed an appeal in the High Court under section 28 of the Act. Before the High Court, the appellant strongly defended the judgment of the trial court and pointed out that the respondent had not even led any evidence in support of her case. The High Court, however, took the view, and we think quite rightly, that even though the respondent did not produce any evidence, no decree of divorce could be granted unless the appellant was able to prove on the basis of the pleadings and the evidences produced by him that his case was covered by section 13(1)(ia) of the Hindu Marriage Act. On a consideration of the materials on record, the High Court found and held that no case of cruelty could be made out against the respondent and hence, the appellant was not entitled to the decree of dissolution of marriage on that ground.

The High Court then took up the other allegation that the respondent did not come to attend and take care of the appellant when he was undergoing medical treatment in a hospital for the injuries caused in an accident. The High Court found that this allegation was not part of the appellant''s pleadings and the matter was introduced in course of evidence. The court observed that not being stated in the pleadings, the allegation could not be taken into consideration. Even otherwise, apart from the oral statement made before the trial court, there was no material to support the allegation. The appellant did not examine any doctor or produce the medical records in connection with his treatment. In any event, one single instance, in isolation, was hardly sufficient for the dissolution of marriage on the ground that the respondent treated the appellant with cruelty."

Their Lordships of Hon''ble Supreme Court in Gurbux Singh Vs. Harminder Kaur, have held that onus to prove that particular conduct or behaviour resulted in cruelty is on the person who claims relief. Their Lordships have held as under:--

"14. Cruelty has not been defined under the Act. It is quite possible that a particular conduct may amount to cruelty in one case but the same conduct necessarily may not amount to cruelty due to change of various factors, in different set of circumstances. Therefore, it is essential for the appellant, who claims relief, to prove that a particular/part of conduct or behaviour resulted in cruelty to him. No prior assumptions can be made in such matters. Meaning thereby that it cannot be assumed that a particular conduct will, under all circumstances, amount to cruelty, vis-�-vis the other party. The aggrieved party has to make a specific case that the conduct of which exception is taken amounts to cruelty.

It is true that even a single act of violence which is of grievous and inexcusable nature satisfied the test of cruelty. Persistence in inordinate sexual demands or malpractices by either spouse can be cruelty if it injures the other spouse. There is no such complaint by the appellant. In the case on hand, as stated earlier, the appellant has projected few instances in which, according to him, the respondent abused his parents. We have verified all the averments in the petitions, reply statement, written submissions as well as the evidence of both parties. We are satisfied that on the basis of such instances, marriage cannot be dissolved.

The married life should be assessed as a whole and a few isolated instances over certain period will not amount to cruelty. The ill conduct must be precedent for a fairly lengthy period where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, one party finds it extremely difficult to live with the other party no longer may amount to mental cruelty. Making certain statements on the spur of the moment and expressing certain displeasure about the behaviour of elders may not be characterized as cruelty. Mere trivial irritations, quarrels, normal wear and tear of married life which happens in day to day life in all families would not be adequate for grant of divorce on the ground of cruelty. Sustained unjustifiable and reprehensible conduct affecting physical and mental health of the other spouse may lead to mental cruelty. Both the appellant and the respondent being highly qualified persons, the appellant being Principal in ITI College, the respondent working as a Librarian in a government institute, an isolated friction on some occasion like festival of lohri even in the presence of others cannot be a valid ground for dissolving the marriage."

In view of observations and discussion made hereinabove, the appeal is allowed and the impugned 47 judgment dated 16.4.2013 passed by the learned Additional District Judge, Una, District Una, H.P. in H.M.A. Petition No. 21/2010 is set aside. Pending application(s), if any, also stand disposed of.