Meena Devi vs Santokh Singh

Rajiv Sharma, J.—This appeal is directed against the judgment dated 28.05.2003, passed by the learned Additional District Judge, Solan in H.M.A. Petition No. 15-S/3 of 2000.

The material facts necessary for adjudication of this petition are that the Respondent-husband had filed a petition against the Appellant-wife u/s 13(ia)(ib) of the Hindu Marriage Act, 1955 for dissolution of marriage. The marriage was solemnized between the parties in December, 1985 according to Hidu rites. Two children, namely, Rajan and Poonam were born out of the wedlock. The son was living with the husband. The relations between the parties for about 7-8 years were cordial. However, according to the averments contained in the petition, the wife started mis-behaving with the husband and his parents and started impressing upon him to live separately from his parents. He was maltreated by her. She used to abuse him and his parents in filthy language in the presence of family, friends and relatives. The Respondent was working in H.P. Police Department and was posted at different stations. The Appellant used to threaten him that she will consume poison in order to implicate him. She also lodged a complaint against him with the Director General of Police, which was enquired into, but no substance was found in the complaint. She left the matrimonial house in the month of January, 1998 without his consent.

The Appellant-wife filed reply to the petition filed by the Respondent-husband. She had admitted that they have three children out of the wedlock. The third issue, namely, Anjli was born on 08.12.2000. The girls, namely Poonam and Anjli are living with the Appellant. She denied the allegations with regard to cruelty. She also denied specifically the grounds of desertion, pleaded by the husband. It is also stated in the reply that the family members of the husband had been torturing her and had been pressing upon her to leave the house. It is in these circumstances that she had to leave the house of her husband six months back. She had also filed a petition u/s 125 of the Code of Criminal Procedure in the Court of Additional Chief Judicial Magistrate, Arki and the petition u/s 13 of the Hindu Marriage was filed in retaliation to the same. It is also averred in the reply that it is the husband who had deserted the her and subjected her to cruelty.

Respondent-husband has filed rejoinder to the reply filed by the wife. According to him, the averments contained in the rejoinder, wife had withdrawn from the matrimonial home in the month of June, 1998 and there was no cohabitation between him and her as husband and wife, so the question of birth of third child on 08.12.2000 from the wedlock did not arise. The Respondent has levelled the allegations that his wife was living in adultery with someone. He had denied the filing of petition u/s 125 of the Code of Criminal Procedure in the Court of learned Additional Chief Judicial Magistrate, Arki by the wife.

Respondent-husband had produced four witnesses. Appellant-wife had produced three witnesses. The learned Additional District Judge allowed the petition on 28.05.2003 and decree of divorce was granted in favour of the husband. Hence, the present appeal.

Mr. Sanjeev Bhushan, learned Counsel for the Appellant has strenuously argued that the judgment of the learned Additional District Judge, Solan is contrary to the principles of law. According to him, the learned Additional District Judge has not correctly appreciated the oral as well as documentary evidence. According to him, it is the husband, who has deserted his wife and it is he who has caused cruelty to his client.

Mr. Kartar Singh Pundeer, learned Counsel for the Respondent has supported the judgment dated 28.05.2003, passed by the learned Additional District Judge. According to him, the wife had deserted the husband and had been causing cruelty to his client.

I have heard the learned Counsel for the parties and gone through the pleadings carefully.

Husband has appeared as PW-1. According to him, the marriage was solemnized in the month of December, 1985 according to Hindu rites. The relations between him and his wife were cordial for 7-8 years and thereafter, she started mis-behaving with his parents and she had been impressing upon him to live separately from his parents. She used to abuse him and his parents in filthy language in the presence of family, friends and relatives. She used to threaten to consume poison to falsely implicate him. In his cross-examination, he deposed that two issues were born out of the wedlock, namely, Rajan and Poonam. He denied the suggestion that third daughter was also born on 08.12.2000. He also denied the suggestion that he and his wife used to meet occasionally even after June, 1998. He has admitted that his wife had filed a complaint Ex. P-1 against him before the Director General of Police. The matter was enquired into, but no substance was found during the course of enquiry. 10. PW-2, Paras Ram has supported the version of PW-1. In his examination-in-chief, he has testified that the husband and wife used to fight from the very beginning. She used to fight with the husband''s parents. She had not maintained good relations with her in-laws. She used abusive language and used to run away to her matrimonial house and used to come after 5-6 months.

PW-3, Shri Gurmeet Singh, Junior Assistant (Police) has produced the record from the office. He has proved the complaint Ex.P-1, enquiry report Ex.P-2 and the order passed by the Director General of Police Ex. P-3.

PW-4 Lalit Kumar has produced the record from the Court of learned Additional Chief Judicial Magistrate, Arki, where the petition u/s 125 of the Code of Criminal Procedure has been filed.

Appellant-wife has appeared as RW-1. According to her, the marriage was solemnized in the month of December, 1985. Three issues were born out of the wedlock. The boy, namely, Sandeep is the eldest and two are daughters. The third daughter was born on 8th December, 2000. The boy was living with the father and the girls were staying with her. She deposed that they were living separately for the last 1 1/2 years, but they used to meet in between. According to her, husband used to call her to Shimla. She had tried to live with him, however, he has refused to accept her. In her cross-examination, She deposed that she was thrown out by her in-laws in the month of June, 1999 and thereafter, she has not gone back to her in-laws house nor her husband has visited her. However, she volunteered that he used to contact her on telephone. She had admitted about the complaint filed vide Ex.P-1. She has denied the suggestion that only two issues were born out of the wedlock. She has admitted that she used to impress upon her husband to live separately from her in-laws. She has also admitted that she had gone to her matrimonial house in the year, 1992.

RW-2 is Shri Paire Lal Sharma. He has deposed that Meena Devi had been living in the matrimonial house for the last 1 1/2 years. However, in between she used to visit her husband. In his cross-examination, he deposed that Meena Devi has approached him to advise her husband. He has tried, but did not succeed.

RW-3, Kanta Devi has also deposed that Meena Devi had been living with her parents for the last 1 1/2 years, but during this period, she had been visiting her husband. She had denied the suggestion that Meena Devi wanted to live separately from her father-in-law and mother-in-law and for that reason, she used to quarrel. This is the evidence led by the parties.

What emerges from the oral and documentary evidence led by the parties is that the marriage was solemnized between the parties in the month of December, 1985. Their relations were cordial for a period of 7-8 years, as admitted by PW1 himself. According to PW-1, Meena Devi (wife) used to impress upon him to live separately from her in-laws. She used filthy language in the presence of close relatives and friends. PW-1 has not given even a single instance when she had used filthy language. He had not given the details and names of the relations before whom she used filthy language. He has only admitted that two issues were born out of the wedlock. He has denied that Anjli was born out of the wedlock. According to him, the action of the wife to file a complaint against him before the Director General of Police and using of filthy language had caused him mental cruelty. According to him, she has deserted him in the month of June, 1998. PW-2 Paras Ram has deposed that the husband and wife used to fight from the very beginning. There is contradiction in the statements of PW-1 and PW-2. According to PW-1, the relations remained cordial for 7-8 years. However, PW-2 says that they used to fight after solemnization of their marriage. PW-2 has also deposed that Meena Devi used to coerce her husband to live separately from her in-laws and she used to run away to her matrimonial house and used to come back after 5-6 months.

PW-3, Shri Gurmeet Singh, Junior Assistant (Police) has produced Ex.P-1, whereby Meena Devi has filed a complaint before the Director General of Police, stating therein that she was harassed by her in-laws for bringing insufficient dowry. She was not looked after properly by her husband and in-laws. She also specifically mentioned in the complaint that she was accused of stealing `50,000/-The matter was looked into and the complaint was found false as per Ex.P-2. The complaint was false as per letter dated 26th September, 2000. She has also moved an application u/s 125 of the Code of Criminal Procedure in the Court of learned Additional Chief Judicial Magistrate for maintenance.

RW-1, Smt. Meena Devi has denied that she has ever deserted her husband. She has deposed that she is living with her parents for 1 1/2 years, however, in between she used to visit her husband. She has admitted about the complaint Ex.P1 She has also admitted about the petition filed u/s 125 of the Criminal Procedure Code.

RW-2 Paire Lal Sharma ,and RW-3, Smt. Kanta Devi have deposed, as noticed above, that Meena Devi started living with her parents, however, she used to visit her husband. According to RW-3, the husband and wife generally are in contact on telephone.

According to learned Additional District Judge, Solan, filing of complaint by the wife against her husband as well petition, u/s 125 of the Code of Criminal Procedure amounted to mis-behaviour and mis-conduct, which according to him, amounted to mental cruelty, caused by the wife. The Court is of the considered view that mere filing of complaint before the Director General of Police for the redressal of grievance cannot constitute mental cruelty. Meena Devi (wife) in her complaint, as per Ex.P-1, has highlighted the manner in which, she was maltreated by her in-laws for bringing insufficient dowry. She has also mentioned that she was not properly fed. She has to borrow money from her parents and relations. It is true that an enquiry was instituted and the same was found false as per Ex.P-2 and Ex.P-3. The husband has made serious allegations against his wife that she was living adulterous life. He has disowned Anjli Devi. In these circumstances, she had no alternative, but to file the complaint to bring to the notice of the higher authorities the manner in which she has been maltreated. She was also constrained to file a petition u/s 125 of the Code of Criminal Procedure, claiming maintenance. It is reiterated that filing of a complaint and claiming compensation u/s 125 of the Criminal Procedure will not constitute mis-conduct. These actions cannot be treated as acts of cruelty.

Case of the husband is that Meena Devi (wife) has deserted him. However, there is no ample evidence on record to prove this fact. According to RW-2, Paire Lal Sharma and RW-3, Smt. Kanta Devi, she (Meena Devi) though had been living with her parents, but she used to visit her husband. In view of the statements of RW-1, RW-2 and RW-3, it is the husband, who has deserted his wife. The wife had all the intentions to live with her husband. The statement of husband was also recorded on 26.07.2001 by the learned Additional District Judge. He has deposed that under no circumstances he will ever arrive at a compromise with his wife and the case should be decided on merits. When the petition was filed by the husband, the boy was eight years old and the 2nd daughter was six years old. The husband has taken the ground that his wife is living in adultery with someone in the rejoinder. It is a serious allegation and if his wife was living adulterous life, he ought to have taken this ground in the main petition instead of rejoinder.

The Respondent-husband has failed to prove desertion, rather, surprisingly, there is no finding recorded by the learned Additional District Judge on the ground of desertion. He has only decided the petition on the ground of complaint made by the wife against the husband and the petition preferred u/s 125 of the Code of Criminal Procedure before the learned Additional Chief Judicial Magistrate.

Their Lordships of the Hon''ble Supreme Court in Sanat Kumar Agarwal Vs. Smt. Nandini Agarwal, have held that the question of desertion is a matter of inference to be drawn from the facts and circumstances of each case and those facts have to be viewed as to the purpose which is revealed by those facts or by conduct and expression of intention, both anterior and subsequent to actual act of separation. Their Lordships have held as under:

It is well settled that the question of desertion is a matter of inference to be drawn from the facts and circumstances of each case and those facts have to be viewed as to the purpose which is revealed by those facts or by conduct and expression of intention, both interior and subsequent to the actual act of separation. The case of the Petitioner '' Sanat Kumar with regard to desertion was that he was married to Nandini on 11-6-1978 and on the same day his sister Shakuntala was married to Shivnarain, brother of Nandini. Thereafter some differences had arisen between the parties with the result that Nandini returned back to her parents house and the Appellant''s sister Shakuntala also left her husband''s house and came to her parents house.'' On 28-11-1978 the Appellant along with his sister Shakuntala and his mother came to meet Shivnarain, and then another meeting took place on 1-12-1978 and the parties came to a settlement. Following the settlement, the Appellant Sanat Kumar took Nandini to his house while Shivnarain, took Shakuntala to his house after performing Vida ceremony. It has been alleged by the Appellant that on 8-12-1978 Shakuntala reached her parents house from her in-laws house and on 9-12-1978 Nandini also went to her parents house after leaving her matrimonial house. It has been alleged that the Appellant is a highly educated person belonging to a cultured family. He is posted as a Science Officer in the Nuclear Power Department. The Respondent, Nandini is also M. Sc., B. Ed. and is employed as a teacher. According to the Appellant the duration of matrimonial relations between the parties continued only for six months. During this short period they had to face tremendous ups, and downs in their matrimonial relationship, in which the solemnization of marriage between the parties according to ''GURAWAT'' system had played an important role. On 9-12-1978 Nandini went to her parents house herself and since then she has been residing with her parents. Despite the Appellant having forbidden her she passed B. Ed. and joined service as a teacher against the wishes of the Appellant. Nandini left the matrimonial house on 9-12-1978 without any cause or reason and thereafter did not resume her matrimonial obligations nor returned back to the matrimonial house and this amounts to desertion. The present petition for divorce was filed on 6-21982. It may be mentioned that Shivnarain had filed the petition for divorce against Shakuntala, sister of the Appellant on 1-1-1982. Learned Ist Additional District Judge, while dealing with issue No. 2 regarding desertion though believed the statement of the Appellant yet decided the question of desertion against the Appellant by making following observations:

Even if, this statement is accepted to be correct, it does not reveal that the Respondent had decided to put an end to marital relationship and co-habitation and had gone from the matrimonial house to her parents house. On the contrary, the Respondent has stated that she was always ready and willing to reside with the Petitioner.

Their Lordships of the Hon''ble Supreme Court in S. Hanumantha Rao Vs. S. Ramani, have explained the term ''Mental cruelty'' to mean mental pain, agony, or suffering, caused by wife and makes it impossible for the party that has suffered to live with the other party. Their Lordships have further held that hypersensitivity and panic reaction of complainant-spouse cannot be used to cast blame on and make out a case of mental cruelty in case wife''s parents sought help of Women''s Protection Cell in bringing about reconciliation between estranged spouses. However in panic husband and family members seeking anticipatory bail, their Lordships have held that representation made by wife''s parents to Women''s Protection Cell did not amount to mental cruelty. Their Lordships have held as under:

Before we deal with the submission it is necessary to find out what is mental cruelty as envisaged u/s 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 Mangalsutra 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 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 the Hon''ble Supreme Court in R. Balasubramanian Vs. Smt. Vijayalakshmi Balasumbramanian, have held that the unfounded allegation of adultery against wife is a serious allegation amounting to cruel conduct by the husband. In this case the husband has sought divorce on the ground of cruelty and desertion. Their Lordships up-held the decisions of the Courts below since the Petitioner was himself in the wrong being guilty of leveling the charges of adultery against the wife.

Their Lordships have held as under:

Wife denied all these allegations and rather alleged cruel behaviour on the part of the husband. She said she took up the job to escape constant nagging by her husband. She said she left for her parents house to perform certain Pooja and did not take her two children with her as they were school going. She denied that there was no marital relation between her and her husband. She said she informed her husband in July, 1979 itself that after cohabitation she had skipped her periods. She denied that she left the house of her husband without his knowledge. She said it was only after taking his permission. She said the third child, the girl named Kamakshi, is born to her of her husband and she said that she was willing to undergo all scientific tests to prove that the Appellant was the father of her child Kamakshi. She said she was always prepared to live with her husband and was even anxious for that for the sake of her children. She said the allegation of husband against her moral character is itself a cruelty entitling her to live separately from her husband and also to claim maintenance.

Mr. A. B. Rohatgi, learned Counsel appearing for the husband submitted that as far as the allegation of adultery against Respondent-wife is concerned he is not going to press. That may be good of him but the fact remains that the allegation that the wife had sexual intercourse with a person other than the husband is a serious allegation against the wife and shows the cruel conduct of the husband entitling the wife to seek relief against him under the Act or otherwise. It was submitted that on July 6, 1979 parties celebrated their tenth wedding anniversary. That would show that both were living together and it is apparent that the husband has condoned the cruelty, if any, alleged by him against the wife. Husband has not gone to see his third child Kamakshi since her birth. High Court has rejected his plea that he ever made attempt to bring his wife and the daughter, who was born to her at her parents house. High Court has considered pleadings and the evidence on record threadbare and came to the conclusion that the case of cruelty and desertion set up by the husband has not been proved. We agree with the High Court and rather we find that it is husband, who is in wrong.

Their Lordships of the Hon''ble Supreme Court in Adhyatma Bhattar Alwar Vs. Adhyatma Bhattar Sri Devi, have held that to prove desertion, the following ingredients are required: (1) the factum of separation, and (2) the intention to bring cohabitation permanently an end (animus deserendi). Their Lordships have held as under:

''Desertion'' in the context of matrimonial law represents a legal conception. It is difficult to give a comprehensive definition of the term. The essential ingredients of this offence in order that it may furnish a ground for relief are:

The factum of separation; 2. The intention to bring cohabitation permanently to an end - animus deserendi; 3. The element of permanence which is a prime condition requires that both these essential ingredients should continue during the entire statutory period; The clause lays down the rule that desertion amount to a matrimonial offence must be for a continuous period of not less than two years immediately preceding the presentation of the petition. This clause has to be read with the explanation. The explanation has widened the definition of desertion to include ''wilful neglect'' of the petitioning spouse by the respondent. It states that to amount to a matrimonial offence, desertion must be without reasonable cause and without the consent or against the wish of the petitioner. From the explanation, it is abundantly clear that the Legislature intended to give the expression a wider import which includes wilful neglect of the petitioner by the other party to the marriage. Therefore, for the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there, namely, (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly, two elements are essential so far as the deserted spouse is concerned: (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid''. The petitioner for divorce bears the burden of proving those elements in the two spouses respectively and their continuance throughout the statutory period.

Their Lordships of the Hon''ble Supreme Court in Shyam Sunder Kohli Vs. Sushma Kohli @ Satya Devi, have held that when the wife was forced to leave the matrimonial home and no attempt made by the husband to get her back, the case of desertion was not made out. Their Lordships have held as under:

We have heard the parties and gone through the material on record. Very fairly, in view of concurrent finding of facts, by all the courts below, the ground of cruelty is not pressed. We find ourselves in agreement with the finding of the trial court as well as observation in the impugned judgment that the Appellant has not been able to prove that the Respondent had deserted him. The evidence on record indicates that the Respondent had been forced to leave the matrimonial home. We are in agreement with the findings that the case of the Appellant, that he had made attempts to get her back, cannot be believed.

An attempt was made to rely upon various documents in order to show that the Respondent was holding herself out as the wife of one Hari Shankar Sharma. However, we find that the documents had not been referred to nor relied upon in the petition. They had not been disclosed by the Appellants. During the course of evidence on his behalf, no attempt was made to prove these documents. For the first time when the Respondent entered the witness box, she was confronted with these documents. She has denied that she has taken out any life insurance policy. She has explained how her name is there in a bank account jointly with Hari Shankar Sharma. Even after the Respondent explained the documents, no attempt has been made to prove these documents. As these documents have not been proved or marked in evidence, we are of the opinion that no reliance can be placed on these documents.

Their Lordships of the Hon''ble Supreme Court in Sujata Uday Patil v. Uday Madhukar Patil (2006) 13 SCC 272 have explained the cruelty as under:

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.

Their Lordships of the Hon''ble Supreme Court in Samar Ghosh Vs. Jaya Ghosh, have gone to explain the term ''mental cruelty'' as under:

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.

Their Lordships of the Hon''ble Supreme Court in Ravi Kumar Vs. Julmi Devi, have held that party alleging desertion must not only prove that the other spouse was living separately but also animus desrendi on its part, and spouse claiming desertion must prove that it has not conducted itself in a manner which furnishes reasonable cause for the other spouse to stay away from matrimonial home.

In this case, the wife was found to have sufficient ground to stay separately. Their Lordships have also explained the term ''cruelty''. heir Lordships have held as under:

From the petition filed by the Appellant husband, it appears that in paragraph 6 of the said petition, the proceeding u/s 9 of the Act has been referred to. After the said paragraph, this Court finds that in paragraphs 7, 8, 9, 10 and 11 there is no specific allegation of cruelty against the wife. There are some vague allegations but no allegation with specific particulars has been given about the alleged cruelty of the Respondent wife. No specific case of desertion has been pleaded either.

It may be noted only after the amendment of the said Act by the amending Act 68 of 1976, desertion per se became a ground for divorce. On the question of desertion, the High Court held that in order to prove a case of desertion, the party alleging desertion must not only prove that the other spouse was living separately but also must prove that there is an animus deserendi on the part of the wife and the husband must prove that he has not conducted himself in a way which furnishes reasonable cause for the wife to stay away from the matrimonial home.

Looking to the materials which have come on record in this case, it is clear that the wife had sufficient ground to live separately. In this case, the evidence of the daughter is very crucial. The daughter in her evidence categorically stated that her father used to beat her mother. She denied that her mother abused her father but she repeatedly deposed that her father used to beat her mother and the reasons of which are not known to her.

It may be true that there is no definition of cruelty under the said Act. Actually such a definition is not possible, In matrimonial relationship, cruelty would obviously mean absence of mutual respect and understanding between the spouses which embitters the relationship and often leads to various outbursts of behaviour which can be termed as cruelty. Sometime cruelty in a matrimonial relationship may take the form of violence, some time it may take a different form. At times, it may be just an attitude or an approach. Silence in some situations may amount to cruelty.

About changing perception of cruelty in matrimonial cases, this Court observed in Shobha Rani Vs. Madhukar Reddi, of the report:

It will be necessary to bear in mind that there has been a marked change in the life around us. In matrimonial duties and responsibilities in particular, we find a sea change. They are of varying degrees from house to house or person to person. Therefore, when a spouse makes complaint about the treatment of cruelty by the partner in life or relations, the court should not search for standard in life. A set of facts stigmatised as cruelty in one case may not be so in another case. The cruelty alleged may largely depend upon the type of life the parties are accustomed to or their economic and social conditions. It may also depend upon their culture and human values to which they attach importance. We, the judges and lawyers, therefore, should not import our own notions of life. We may not go in parallel with them. There may be a generation gap between us and the parties.

Their Lordships of the Hon''ble Supreme Court in Chetan Dass Vs. Kamla Devi, have held that the wife is within her right to live separately when the husband makes accusation of adultery against her. Their Lordships have held as under:

In this case, we also find that the Respondent is still prepared to live even at this stage of her life with the Appellant but rightly on the condition that the Appellant disassociates himself from Sosamma Thomas. There has been no cause of grievance or any allegation of objectionable behaviour by any one except the meek plea put forward by the husband that she was dissatisfied with the living conditions at Kirawad and she wanted him to live in Vijaynagar. Such allegations have been found to be incorrect. She also lived in Gangangar. Had only living in Kirawad been the problem, there was no occasion for her to be dissatisfied in living in Sriganganagar, at least none has been indicated by the Appellant.

In this case, the averments made in the petition for obtaining a decree for divorce, namely, desertion on the part of the wife without any reasonable cause have not been found to be correct. The petition was liable to be dismissed on that ground alone. The defence of the Respondent for having a justified reason to live away from the husband has been found to be correct. Behaviour of the Appellant certainly falls in the category of misconduct on his part. In such circumstances, it is too much on his part to claim that he be given the advantage of his own wrong and be granted a decree of divorce on the ground of desertion on the part of his wife who is still prepared to live with him provided he snaps his relationship with the other woman. Similar offer had also been made on behalf of the Appellant, which, we have already dealt in the earlier part of the judgment. He perhaps prefers to snap relationship with the Respondent rather than with Sosamma Thomas. A decree of divorce on the ground of marriage having been irretrievably broken cannot be granted in the facts and circumstances of the case as indicated above.

Their Lordships of the Hon''ble Supreme Court in Savitri Pandey Vs. Prem Chandra Pandey, have held that the marriage between the parties cannot be dissolved only on the averments made by one of the parties that as the marriage between them has broken down, no useful purpose would be served to keep it alive. The legislature, in its wisdom, despite observations of the Supreme Court has not thought it proper to provide for dissolution of the marriage on such averments. Their Lordships have held as under:

Marriage between the parties cannot be dissolved only on the averments made by one of the parties that as the marriage between them has broken down, no useful purpose would be served to keep it alive. The legislature, in its wisdom, despite observation of this Court has not thought it proper to provide for dissolution of the marriage on such averments. There may be cases where, on facts, it is found that as the marriage has become dead on account of contributory acts of commission and omission of the parties, no useful purpose would be served by keeping such marriage alive. The sanctity of marriage cannot be left at the whims of one of the annoying spouses. This Court in V. Bhagat Vs. Mrs. D. Bhagat, held that irretrievable breakdown of the marriage is not a ground by itself to dissolve it.

As already held, the Appellant herself is trying to take advantage of her own wrong and in the circumstances of the case, the marriage between the parties cannot be held to have become dead for invoking the jurisdiction of this Court under Article 142 of the Constitution for dissolving the marriage.

Their Lordships of the Hon''ble Supreme Court in Vishnu Dutt Sharma v. Manju Sharma (2009) 6 CC 379 have held that ground of irretrievable breakdown of marriage is not provided by the legislature for granting a decree of divorce. It is for the Parliament to enact or amend law and not for the Courts . Their Lordships have held as under:

Learned Counsel appearing for the Appellant has streneously argued that the marriage between the parties be dissolved on the ground of irretrievable breakdown. In this connection it may be noted that in Section 13 of the Hindu Marriage Act, 1955 (for short ''the Act'') there are several grounds for granting divorce e.g. cruelty, adultery, desertion etc. but no such ground of irretrievable breakdown of the marriage has been mentioned for granting divorce.

Section 13 of the Act reads as under:

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-

(i) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; (i-a) has, after the solemnization of the marriage, treated the Petitioner with cruelty;

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

(ii)has ceased to be a Hindu by conversion to another religion;

(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.

xx xx xx (iv) has been suffering from a virulent and incurable form of leprosy;

(v) has been suffering from venereal disease in a communicable form; or (vi) has renounced the world by entering any religious order;

(vii) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive.

On a bare reading of Section 13 of the Act, reproduced above, it is crystal clear that no such ground of irretrievable breakdown of the marriage is provided by the legislature for granting a decree of divorce. This Court cannot add such a ground to Section 13 of the Act as that would be amending the Act, which is a function of the legislature.

Learned Counsel for the Appellant has stated that this Court in some cases has dissolved a marriage on the ground of irretrievable breakdown. In our opinion, those cases have not taken into consideration the legal position which we have mentioned above, and hence they are not precedents. A mere direction of the Court without considering the legal position is not a precedent.

If we grant divorce on the ground of irretrievable breakdown, then we shall by judicial verdict be adding a clause to Section 13 of the Act to the effect that irretrievable breakdown of the marriage is also a ground for divorce. In our opinion, this can only be done by the legislature and not by the Court. It is for the Parliament to enact or amend the law and not for the Courts. Hence, we do not find force in the submission of the learned Counsel for the Appellant.

In the instant case, the husband has failed to prove animus desrendi of the wife. The wife had all the intentions to live with her husband. It is the husband who has created such circumstances that she was not able to live with him. The wife had every right to seek redressal of her grievance either from the employer where her husband is employed and also by filing separate application u/s 125 of the Criminal Procedure Code. The husband cannot be permitted to take advantage of his own wrong. He has levelled false allegations against his wife about her character, that too in the rejoinder. The desire of the wife to live separately cannot constitute an act of mis-conduct. There are no specific instances given by the husband when the wife had used filthy and abusive language. The allegations contained are vague and have not been substantiated by leading cogent evidence. The husband has created such a situation that it was impossible for the wife to live with him and she had to live perforce with her parents with two minor daughters.

In this case, the marriage between the parties has not irretrievably broken. The Respondent-husband cannot be permitted to take advantage of his own wrongs by creating the circumstances, whereby it was difficult for the Appellant-wife to live with him. It was also not pleaded before the learned Additional District Judge that the marriage could not survive.

Accordingly, in view of the observations made hereinabove, the appeal is allowed. The judgment and decree dated 28.05.2003, passed in H.M.A. Petition No. 15-S/3 of 2000 are set aside. No costs.