Vegi Jagadesh Kumar vs V. Radhika

N.Y . Hanumanthappa, J.—This appeal is directed against the order and decree passed by the learned Judge of Family Court, Visakhapatnam in OP No.84 of 1995 (Old OP No.288 of 1994), dated 22-5-1997, filed by the husband u/s 13(1)(ia)(ib) of Hindu Marriage Act against the wife Radhika for a decree of divorce and for custody of the child Kum. Vijeta.

The rank of the parties is mentioned as before the Court below.

A few facts which are necessary to dispose of this appeal are as follows: The marriage between the petitioner and the respondent was performed on 25-8-1988 at Visakhapatnam. After the marriage, the respondent joined the petitioner at Visakhapatnam. The marriage proposal was made by one Pentakota Apparao, a friend of respondent''s parents. At the time of marriage proposal, the petitioner and his parents were not willing for alliance as the respondent was a student in Medical College at Guntur and she may not be a good housewife. But the petitioner and his parents were convinced through the said Pentakota Apparao that immediately after the marriage the respondent would discontinue her studies and the present prosecution of studies is only a time pass. The betrothal function that was originally scheduled to 1-6-1988 had to be postponed to 23-8-1988. It was only on such assurance that the respondent immediately after the marriage would discontinue her studies, the petitioner and his parents agreed for the alliance and marriage was celebrated on 25-8-1988. After the marriage though the respondent joined the petitioner, she was insisting to continue her studies. The same was refused by the petitioner. During Dassera festival the petitioner went to Guntur where the respondent was staying. The respondent and her parents tried to brain wash the petitioner by cajoiling him for partition of the properties and shifting him to Guntur to stay with the respondent. This made the petitioner upset. Because of his refusal to make a demand for partition, the respondent and her parents developed ill-will towards the petitioner. Thereafter the respondent started ill-treating the petitioner and even behaved in and indifferent manner. The respondent though was staying with the petitioner for some time she left for her parents house at Guntur for confinement on 10-2-1990. She gave birth to a female child on 1-6-1990. After coming to know of the delivery, the petitioner, his parents and sisters went to Guntur to fix the naming ceremony of the baby. They also got fixed Muhurtham for the return of the respondent to Visakhapatnam on 12-8-1990. On 12-8-1990, the petitioner enquired the respondent over phone that by which train she is coming to Visakhapatnam which was replied by the respondent in a careless manner and she told that she would be coming on 15-3-1990 to attend her cousin''s marriage at Visakhapatnam. There only he could see and meet the respondent. The petitioner met the respondent at bride''s residence and invited her to come back home with baby to which the respondent replied bluntly that she has no intention to join the petitioner. The parents of the respondent took a house in Srinagar, near Rama Talkies at Visakhapatnam on rent and put their son, another daughter and the respondent therein. They got joined the respondent in Medical College at Visakhapatnam where she is attending the college regularly. Even though the petitioner demanded the respondent to rejoin him, she replied that she was happy in continuing her studies than to return to his home. The attitude of the respondent put the petitioner to mental agony as he lost physical comfort and sexual happiness. The petitioner got issued a registered notice calling upon the respondent to rejoin the petitioner to which the respondent gave reply taking an inconsistent stand. After coming to know of the contents of the reply letter of the respondent, the petitioner''s mother got upset. Because of the said shock she had an heart attack on 6-4-1991 and died. Even the death of his mother did not make the respondent to change her attitude. She did not attend the funeral function. Hence the petition for divorce and custody of the child.

On service of notice, the respondent filed her written statement. According to her, she came from a respectable family of doctors. Her grand-father, father and mother are all doctors. At the time of marriage, her parents were working at Guntur. The respondent was also prosecuting her studies in medicine at that time. The petitioner was aware of the same. He did not object for continuing her studies as he himself is an educated person and was very much impressed by the respondent''s academic record. The petitioner''s father by name V. Bhadrachalam also agreed for the marriage. He also assured that she can continue her studies after giving birth to a child. There was no assurance either by the respondent or by her parents that after the marriage she would dis-continue her studies. On the other hand, due to the assurance of the petitioner and his parents the respondent had to agree for the marriage. The betrothal was postponed not at the instance of the respondent, but it was at the instance of the petitioner. After the marriage, the respondent joined the petitioner and lead marital life at Visakhapatnam. She had discontinued her studies for a while with a hope that the petitioner would convince his parents to continue her studies. The respondent''s stay in Visakhapatnam in her parents-in-law''shouse after her marriage upto 10-2-1990 was a story of misery and mis-fortune. She was subjected to insults, mental agony by her mother-in-law and sisters-in-law particularly Miss Sarada who was not yet married. Her mother-in-law used to comment sarcastically towards respondent. Her sister-in-law Miss Sarada used to pick up unnecessary quarrels with the respondent. Though at the beginning the petitioner was in favour of the respondent because of brain wash by her in-laws he changed his attitude and resorted to beating her. On 2-6-1990, the petitioner came to Guntur to see the newly born child. On the second day he left for Visakhapatnam. Again the petitioner and his people came to Guntur for Namakaranam ceremony and left on the same day. They also conveyed that 12-8-1990 is an auspicious day to take the child to their home. But the petitioner and his parents did not make arrangements to take the respondent and her child. They did not even come to see them thereafter. As there was no alternative, the respondent had to go to Visakhapatnam to continue her studies. The moment the respondent came to know about the death of her mother-in-law, she went to the house of her mother-in-law and stayed there for five days to console the other family members inspite of stift resistance. On the 6th day i.e., 11-4-1991, the petitioner started shouting to leave the house immediately stating that because of the reply notice sent by her, her mother-in-law had to die. She was forcibly made to write a letter on 26-2-1991 saying that what all that is mentioned in the lawyer''s notice is a false one. The same was written on an inland letter and took the same from her. When the respondent''s mother visited her that evening, she was asked to take away her daughter. She went to the house of her parents-in-law with caste elders who are relatives of both the parties namely Pitta Appala Naidu and Bhimarasetty Jagga Rao etc., with a view to stay there. She knelt before the father-in-law and requested him to take her back to the home at least for the sake of the child and she would dis-continue her studies. But the same did not yield any result. Later second attempt was made by the respondent by sending Dadi Suryanarayana and Budda Jagga Rao to meet the father of the petitioner to pursuade him and the petitioner to take back the respondent. But they did not change their attitude. According to the respondent she is always ready and willing to join her husband even at the cost of deserting her medical course which she entered with great ambition and hope. According to her, the petitioner is not entitled for divorce. Thus contending, the respondent requested that the petition for divorce filed by her husband be dismissed and a decree for restitution of conjugal rights be granted.

On the basis of the above pleadings, the Court below raised the following points for consideration:

(1) Whether the respondent after solemnisation of the marriage treated the petitioner with cruelty?

(2) Whether the respondent deserted the petitioner without any reasonable excuse?

(3) Whether the petitioner is entitled for a decree of divorce on the ground of cruelty and desertion as alleged in the petition?

Both the parties lead evidence before the Court below both oral and documentary. On behalf of the petitioner, the petitioner himself examined as PW1, his relative Smt. B. Varaldkshmi was examined as PW2 and his father V. Bhadrachalam was examined as PW3 and got marked three documents Exs.P1 to P3. Ex.P1 is the notice issued by the petitioner and Ex.P2 is the reply notice and Ex.P3 is the letter written by the respondent''s friend to the respondent. On behalf of the respondent, four witnesses were examined as RWs.1to 4. The respondent examined herself as RW1, her mother P. Saraswathi, was examined as RW2, one V. Satyarao was examined as RW3 and B. Jaggarao was examined as RW4. Ex.R1, a letter written to the Principal, Andhra Medical College, Visakhapatnam, was marked on behalf of the respondent.

The Court below found fault with the respondent in not informing to her husband about her studies at Visakhapatnam. On scrutiny of evidence, the Court below found that the petitioner did not choose to examine either Pitta Appala Naldu or Pentakota Apparao to speak as to how the respondent and her parents reacted to the proposals sent by the petitioner. According to the learned Judge, the non-examination of these persons is fatal to the case of the petitioner. As such the Court can draw an adverse inference that if those persons were examined, the evidence would have gone against the petitioner''s case. The learned Judge observed that whatever evidence that was on record goes to show that the elders and well-wishers of both parties tried for conciliation but failed as the parties stuck to their respective stand. The Court below did not take into consideration Ex.Rl as no supporting evidence was given. Regarding the notice Ex.P3 and the reply Ex.P2, the Court below found (hat nothing in the contents of Ex.P2 would shock the petitioner''s mother. On the other hand, after Ex.P2 reply, she went to her in-laws house when her mother-in-law died which has been spoken to by PWs.1 and 2. The Court below observed that the petitioner and his father felt that the respondent would neglect the petitioner and the marital life if she is allowed to prosecute her studies and settle in that profession. According to the learned Judge, if the intention of the respondent was to neglect the petitioner and give a go bye to the marital life she would not have given up her studies for two years after the marriage. She rejoined to her studies only after differences between the parties arose. Having felt insecure she continued her studies. The Court below also observed that from the beginning the respondent was saying that she is willing to join her husband and forego the profession and other benefits from her profession. From this, it is clear that the petitioner failed to establish that the respondent deserted him without any reasonable excuse. According to the learned trial Judge, the respondent has no intention to break the wedlock.

Regarding cruelty, the Court below observed that except making a wild allegation nothing was produced to hold that the behaviour of the respondent resulted in causing mental agony to the petitioner. The death of the petitioner''s mother may not be connected to the receipt of Ex.P2. Thus observing, the trial Judge dismissed the petition.

Sri L Narasimha Reddy, learned Counsel appearing for the appellant-petitioner attacked the order of the Court below contending that the order of the Court below is quite arbitrary and illegal and the Court below did not appreciate the evidence in proper perspective. The Court below committed a mistake in not taking into consideration the contents of Ex.P2. If the contents of Ex.P2 were properly understood, the finding of the Court below could have been that Ex.P2 put the petitioner and other members of the family particularly the mother of the petitioner to mental agony. The inconsistent stand taken by the respondent was not considered by the Court below. Taking a separate house at Visakhapatnam and continuing her studies without the knowledge and permission of the petitioner is itself sufficient to hold that the respondent had no intention to continue to marital obligations. On the other hand, her idea was to desert the petitioner which she did ultimately. When the trial Court did not agree with the attitude of the respondent in taking a separate house at Srinagar, near Rama Talkies in the same town where the petitioner is residing and living separately with child, it should have accepted the plea of the petitioner that the respondent deserted him. The Court below should have appreciated that the marriage between the petitioner and the respondent had been irretrievably broken down and no purpose could be served by allowing them to continue the marital relationship. A short stay of the respondent after the marriage with the petitioner speaks volumes on the respondent''s conduct that she is not interested in carrying out the marital obligations. In support of his contentions, the learned Counsel for the petitioner-appellant placed reliance on some of the authorities which will be referred to a little later.

As an answer to the above contentions Sri Veerabhadraiah, learned Counsel appearing for the respondent, while supporting the order and decree of the Court below submitted that there is no merit in any of the contentions raised by the petitioner. According to him, the reliance placed by Narasimha Reddy, learned Counsel for the petitioner, on some of the authorities have no application. On the other hand, the principles laid down therein support the case of the respondent. He lastly contended that desertion and cruelty though alleged by the petitioner, but were not proved. As such the petitioner is not entitled for the relief. Thus contending, he sought the appeal be dismissed.

This is a case of two educated young couple coming from a respectable families, but small differences and ego made both the parties to live separately. The petitioner filed a petition u/s 13(1)(ia)(ib) and Section 26 of the Hindu Marriage Act for a decree of divorce on the ground of desertion and cruelly and for custody of the child.

Section 13 of the Hindu Marriage Act which deals about divorce reads as under:

"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-

(1) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or

(ia) has, after the solemnization of the marriage, treated the petitioner with cruelty; or

(ib) has deserted the petitioner for a continuous period of not less than two years immediately proceeding the presentation of the petition; or

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

(iii) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder 9f such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.

.....

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

(v) has been suffering from venereal disease in a communicable form; or

(vi) has renounced the world by entering any religious order; or

(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.

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

The Court below considered the respective cases of both the parties, particularly whether the petitioner has made out a case of cruelty and desertion.

Let us consider first whether cruelty as alleged by the petitioner is proved. Cruelty, is one of the grounds under which the Court can grant divorce. It shall be a mental cruelty. In case where the party seeks divorce on the ground of cruelty, the circumstances which constitute cruelty are to be established. It is difficult to hold that what are the circumstances which constitute a cruelty as it varies from case to case and from person to person. In the case of Alka Vs. R.K. Gautam, , the Division Bench of the High Court of Delhi dealt at length by making reference to several authorities and decisions when and how cruelty can be said as established. In the said case the husband proved that his wife''s general conduct and behaviour towards his parents, brother and sisters was indifferent, insulting and volcanic. There used to be persistent resistance to sexual intercourse and thus depriving him of normal pleasure of married life. One more circumstance was that wife tried to jump from the balcony to commit suicide on an occasion where a large number of the relatives of the husband were present. All these circumstances made the Court to come to a conclusion that it was a gravest cruelty. Thus the Court held that the husband is entitled for divorce.

In the above judgment their Lordships referred to decisions of various Courts which described or explained the term ''Cruelty'' basing on circumstances existing in the said cases. To decide the case on hand, it is more useful to refer once again to the said decisions, which are extracted as under:

"In the celebrate English decision King v. King 1952 (2) All ER 584, Lord Normand observed while defining cruelty as under:

"The general rule in all questions of cruelty is that the whole matrimonial relationship must be considered, and that rule is of special value where the cruelty consists not of violent acts but of injurious reproaches, complaints, accusations or taunts. Wilful accusations may be made which are not true and for which there are no probable grounds and yet they may not amount to cruelty. To take an obvious example, they may have been provoked by the cruel conduct of the other spouse. There is in many cases no easy rule, no clear line of demarcation which divides cruelty from something which does not amount to cruelly." (Para 16).

"The best guide for this class of case was a passage in the judgment of Bucknill, J., in Norton v. Horton, (1940) 3 All ER 380, which reads as follows:

"Mere conduct which causes injury to health is not enough. If he marries a wife whose character developes in such a way as to make it impossible for him to live happily with her, I do not think that he establishes cruelty merely because he finds that life with her is impossible. He must prove that she has committed wilful and unjustifiable acts inflicting pain and misery upon her and causing injury to his health." (Para 17)

In King v. King 1962 (2) All ER 584 (HL), (supra), it is observed that:

"The general rule in all questions of cruelty in a matrimonial cases is that the whole of the relations between the husband and wife and all the relevant circumstances must be considered, and that rule is of special value when the cruelty consists, not of violent acts, but of injurious reproaches, complaints, accusations or taunts." (Para 18) .

In another case McEwan v. McEwan 1964 108 SoLJO 198 CA (sic), Lord Denning held that:

"Cruelty being a question of fact the circumstances of each case must be taken into consideration including the physical and mental condition and the position in life of the parties. However, the conduct complained of must be serious and higher than the ordinary wear and tear of married life."

In Rayden in his leading treatise on ''Divorce'' mentioned as under:

"The obtain a divorce on the ground of cruelty, it must be proved that one spouse in the marriage, however, mindless of the consequences has behaved in a way which the other spouse could not in the circumstances, be called to endure, and that misconduct has caused injury to health or a reasonable apprehension of such injury. There are two sides to be considered in a case of cruelty, from the petitioner''s side ought this petitioner to be called on to endure the conduct, from the respondent''s side, was this conduct excusable." (Para 20)

The question of cruelly in matrimonial relationship has been dealt in great detail in celebrated English case Gollins v. Gollins (1964) AC 644. The House of Lords has in great depth examined this issue. In this case, the questions which arose for consideration of the House of Lords was nature of matrimonial cruelty. The Court made the distinction between unequivocal and equivocal conduct and the Court has laid down as under:

"A distinction can be drawn between cases involving "unequivocal" conduct, which is conduct which clearly constitutes cruelty, and those involving "equivocal" conduct, conduct which may in certain circumstances amount to cruelty and in other circumstances not do so. The cruelty alleged here is plainly in the second category. There is no fundamental distinction between cruelty which gives rise to grounds for judicial separation and that which gives rise to grounds for divorce. The principles so far evolved from the authorities serve well enough in deciding cases in the first category, but there is no other guidance where Ihe conduct complained of may be described as negative, or indirect, or not aimed at the other spouse or as unaggressive." (Para 21)

In another English case, Evans v. Evans (1950) 2 All ER 398, CA Sir William Scott (Lord Stowell), on the approach to be adopted in case of cruelty observed:

"..... it is the duty of Courts ..... to keep ..... (the definition of cruelty) extremely strict. The causes must be grave and weighty, and such as "show an absolute impossibility that the duties of the married life can be discharged". (Para 22)

In Westall v. Weslall (1949) 65 TLR 337 CA Denning LJ said:

''Although malignity as not an essential element of cruelly ...... neverthelessintention is an element in this sense that there must be conduct which is in some way, aimed by one person at the other.''

Reliance is placed on this further passage from Denning L.J. ''s judgment. ''The conduct of the habitual, drunkard the gambler, the criminal or the profligate may cause his wife to break down in health but it is not cruelty unless combined with some conduct which is aimed at her, as for example, when her justifiable remonstrance provoke unjust resentment on his part directed at her.'' (Para 23)

In Gollins v. Gollins 1964 AC 644 (supra), while concluding the case, the Court observed as under:

''(a) Whilst the Courts should pay regard to changing social conditions, they should be alert not to open the door too wide, so that incompatibility of temperament and every defect of behaviour comes to be regarded as grounds for relief under the guise of cruelty,

(b) Checks and brakes by way of enunciated principles are needed, such as that to constitute cruelty the conduct complained of must be grave and weighty and that not all matrimonial misconduct which results in injury to health amounts to cruelty,

(c) The criteria and principles to be applied by the Courts should have some measure of uniformity so that there is some degree of probability in the law known to the public and those who have to advise them. One requirement should be that there must be actual or apprehended injury to health. In what has been described as the equivocal area there ordinarily should be an actual intent to inflict pain.

The Court also tried to define cruelty as the Court observed as under:

''Spouses owe rights and duties each to the other and in their relationships they must act reasonably. In every case where cruelty exists it is possible to say that the spouse at fault has been unreasonable. The test of cruelty therefore, should be breach of the duty to act reasonably, whether in omission or commission, causing injury to health. Such a test avoids imputing an intention where in fact none may exist. Further all such matters as foresight, desires, wishes, intentions, motives, perceptions, obtuseness, persistence and indifference would remain relevant but merely as matters of evidence bearing upon the requirement to act reasonably or as aggravation of the matters charged. (Para 24)

In the said case, the Court observed that While deciding such cases, one must have regard to the changes which have taken place in public opinion and in social policy. The Court observed:

''Spouses owe each other a duty of conjugal kindness. If that duty is breached it is open to a Tribunal to regard the conduct constituting the breach as unjustifiable. As to the objection that such a proposition runs counter to the old authorities, which lay stress on the fact that the spouses must put up with a good deal from one another in the interest of the sanctity of marriage, one must have regard to the changes which have taken place in public opinion and in social policy.''

Lord Tucker, in Jamieson v. Jamieson (1952) AC 525, 550 observed:

''It is in my view equally undesirable if not impossible - by judicial pronouncement to create certain categories of acts or conduct as having or lacking the nature or quality which render them capable or incapable in all circumstances of amounting to cruelty in cases where no physical violence is averred.'' (Para 30)

Therefore, each case has to be adjudicated on its own circumstances. The social status of the parties, their educational, cultural and financial background, Iheir perceptions may all be relevant while determining the question of cruelty in matrimonial life. (Para 31)

In P.(D) v. P.(J) 1965 2 All ER 456 it has been held that:

''the fact that the wife could not control her psychological inhibition did not in law negative the fact that her conduct inconsistently depriving the husband of normal sexual intercourse and the opportunity of becoming a father was unendurable and, as it seriously affected his health, constituted cruelty.''

In Evans v, Evans (1965) 2 All ER 789, husband was granted a decree on the ground of cruelly on the finding that the conduct of the wife in refusing to have intercourse was grave and weighty matter and did have an adverse effect on the husband''s health and consequently amounted to cruelty.''

A Division Bench of Delhi High Court in Rita Nijhawan Vs. Balakishan Nijhawan, , had examined the similar issues and arrived at following conclusion:

''Thus the law is well settled that if either of the parties to a marriagebeing a healthy physical capacity refused to have sexual intercourse the same would amount to cruelty entitling the other party to a decree. In our opinion it would not make any difference in law whether denial of sexual intercouse is the result of sexual weakness of the respondent disabling him from having a sexual union with the appellant, or it is because of any wilful refusal by the respondent, this is because in either case the result is the same namely frustration and misery to the appellant due to denial of normal sexual life and hence cruelty.''

"Marriage without sex is an anathema. Sex is the foundation of marriage and without a vigorous and harmonious sexual activity it would be impossible for any marriage to continue for long. It cannot be denied that the sexual activity in marriage has an extremely favourable influence on a woman''s mind and body. The result being that if she does not get proper sexual satisfaction it will lead to depression and frustration. It has been said that the sexual relations when happy and harmonious vivifies woman''s brain, develops her character and trebles her vitality. It must be recognised that nothing is more fatal to marriage than disappointment in sexual intercourse." (Para 35)

The observations in this case are relevant to the facts of the present. Therefore, it would be appropriate to reproduce them as under:

"In the present case we find that at no time has there been normal married life between the parties. The appellant has never accepted the situation of remaining married but without having normal sexual relations. She has throughout put up with this mentaltorture, hoping that things might improve but finding that things remain the same and a time had reached when she could not put up with it any longer without danger to her health both physical and mental. It appears to us that the appellant has tried over a number of years genuinely though under very difficult circumstances to make the success of marriage but as the sexual weakness of the respondent has persisted it has obviously caused great strain and frustration to her. We have already found that sexual weakness of the husband has persisted all these years. Once that finding is given to insist on both the parties living together would be nothing but sheer misery endangering the physical and mental health of the appellant." (Para 36)

In another case reported as Smt. Shakuntala Kumari v. Om Prakash Ghal AIR 1981 Delhi 53, this Court held as follows:

"A normal and healthy sexual relationship is one of the basic ingredients of a happy and harmonious marriage. If this is not possible due to ill-health on the part of one of the spouses, it may or may not amount to cruelty depending on the circumstances of the case. But wilful denial of sexual relationship by a spouse when the other spouse is anxious for it would amount to mental cruelty, especially when the parties are young and newly married." (Para 37)

In another case, reported as Smt. Maya v. Brij Nath AIR 1982 Delhi 240, while dealing with the concept of cruelty in the Hindu Marriage Act, the Court observed as under:

"Cruelty has not been defined in the Act. But it is now well settled thatthe conduct should be grave and weighty so as to make cohabitation virtually unendurable. It must be more serious than the ordinary wear and tear of marriage. The cumulative conduct taking into consideration the circumstances and the background of the parties has to be examined to reach a conclusion whether me act amounts to cruelty. The petitioner in a divorce petition has to prove that he was treated with cruelty. The burden of proving the cruelty lies on him." (Para 38)

In Dr. N.G. Dastane Vs. Mrs. S. Dastane, , Chandrachud, J., speaking for the Bench held:

"that where an allegation of cruelty is made, the inquiry has to be "whether the conduct charged as cruelty is of such a character as to cause in the mind of the petitioner a reasonable apprehension that it will be harmful or injurious for him to live with the respondent. ''The learned Judge held further "it is not necessary, as under the English law, that the cruelly must be of such a character as to cause ''danger'' to life, limb or health or as to give rise to a reasonable apprehension of such a danger. Clearly, danger to life, limb or health or a reasonable apprehension of it is a higher requirement than a reasonable apprehension that it is harmful or injurious for one spouse to live with the other ..... But u/s 10(1)(b) harm or injury to health reputation, the working career or the like, would be an .important consideration in determining whether the conduct of the respondent amounts to cruelty. Plainly, what we must determine is not whether the petitioner has proved the charge of cruelty having regard to the principles of English law, but whether the petitioner proves that the respondent has treated him with such cruelty as to cause a reasonable apprehension in his mind that it will be harmful or injurious for him to live with the respondent." (Para 39)

Though comprehensive definition of cruelty is neither available in the decision of the English Courts and not in the decisions of Indian Courts. In various judgments, the Courts have tried to define the ''matrimonial cruelty''. Lord Reid in . Gollins v. Gollins 1969 AC 644 (sic), attempted to define cruelty. The relevant portion is extracted herein below:

"No one has ever attempted to give a comprehensive definition of cruelty and I do not intend/try to do so. Much must depend on the knowledge and intention of the respondent, on the nature of his (or her) conduct, and on the character and physical or mental weaknesses of the spouses, and probably no general statement is equally that the party seeking relief must show actual or probable injury in life, hrnb or health. It is easy to see that the origin of this requirement is the decision in the well known case of Russel v. Russel 1897 AC 395."

To the same effect are the observations of Lord Pearce:

"It is impossible to give a comprehensive definition of cruelty, but when reprehensible conduct or departure from normal standards of conjugal kindness causes injury to health or an apprehension of it, it is, I think, cruelty if a reasonable person, after taking due account of the temperament and ail the other particular circumstances would consider that the conduct complained of is such that this spouse should not be called on to endure it." (Para 40)

Justice K. Jagannatha Shetty of the Supreme Court, as he (hen was, while speaking for the Division Bench, itt Shobha Rani Vs. Madhukar Reddi, , observed as under:

"Section 13(1)(ia)(ib) uses the words treated the petitioner with cruelty". The word "cruelty" has not been defined, indeed it could not have been defined. It has been used in relation to human conduct or human behaviour. !t is the conduct in relation to or in respect of matrimonial duties, and obligations. It is a course of conduct of one which is adversely affecting the other. The cruelty may be mental or physical, intentional or un-intentional. If it is physical the Court will have no problem to determine it. It is a question of fact and degree. If it is mental, the problem presents difficulty. First the enquiry must begin as to the nature of the cruel treatment. Second, the impact of such treatment on 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. There may, however, be cases whether the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or the injurious effect on the other spouse need not be enquired into by considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted.

It will be necessary to bear in mind that there has been 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 houseor 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, 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 us and the parties. It would be better if we keep aside our customs and manners. It would be also better if we less depend upon precedents." (Para 41)

The Hon''ble Supreme Court in the case of V. Bhagat Vs. Mrs. D. Bhagat, , has defined mental cruelty in the following manner:

"Mental cruelty in Section 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 the party to live with the other. In other words, mental cruelty must be of such a nature that the parties 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 neitherpossible 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." (Para 42)

The observations of Lord Denning in Sheldon v. Sheldon (1966) 2 All ER 257, are as under:

''The categories of cruelty are not closed. Each case may be different. We deal with the conduct of human beings who are not generally similar. Among the human beings there is no limit to the kind of conduct which may constitute cruelty. New type of cruelty may crop up in any case depending upon the human behaviour, capacity or incapability to tolerate the conduct complained of. Such is the wonderful realm of cruelty."

"The conduct of the habitual drunkard, the gambler, the criminal or the profligate may cause his wife to break down in health but it is not cruelty unless combined with some conduct which is aimed al her, as, for example, when her justifiable remonstrances provoke unjust resentment on his part directed at her." (Para 43)

Sri Narasimha Reddy, learned Counsel appearing for the petitioner-appellant placed reliance on another decision of the Supreme Court rendered in the case of V. Bhagat Vs. Mrs. D. Bhagat, , which in fact has been referred to by the Division Bench of the Delhi High Court in Smt. Alka''s case cited (supra). As such it is not necessary to reproduce the principles laid down therein.

Sri Narasimha Reddy, also placed reliance on another decision of theSupreme Court rendered in the case of Romesh Chander Vs. Smt. Savitri, , wherein it was held as follows:

"Hindu Marriage Act, 1955 - Section 13(1)(ia) - Cruelty - When marriage is dead, emotionally and practically, and there is no chance of its being retrieved, continuance of it would be cruelty -During 25 years of marriage two rounds of litigation for divorce ensuing -Second round of litigation culminating in the present appeal based on cruelty . Appellant husband not dutiful and conscious of his responsibilities towards his wife and son and contributed nothing towards upbringing of the child - Child now grown up and in service - Appellant expressing remorse for his conduct and his willingness to compensate the same by transferring his only house in favour of his wife -Held, marriage being dead, both emotionally and practically, continuance of marital alliance for namesake would amount to prolonging the agony and affliction and would be cruelty - Hence in exercise of power under Article 142 the marriage between appellant and respondent directed to stand dissolved subject to the appellant transferring his house in the name of his wife."

Thus, it is not cruelty, merely because party alleging cruelty finds that to continue his or her life with the other party is impossible. The party complaining cruelty shall prove that the other party committed wilful and unjustifiable acts inflicting pain and misery on the complainant and causing injury to his/her health. The conduct of complainant must be serious and higher than the wear and tear of married life. It is not cruelty if acts complained of are not violent in nature. Mere complaints accusations, or taunts by one against the other if the same are not wilful in nature, do not constitute cruelty.

The learned Counsel for the petitioner also placed reliance on another decision rendered by the Division Bench of this Court in the case of Jayakrishna Panigrahi Vs. Smt. Surekha Panigrahi, . But on facts the above decisions have no application to the case on hand.

In view of the principles laid down by various Courts and Authorities that when a particular act be said as cruelty, it is difficult to hold that the acts of respondent herein caused mental agony to the petitioner.

In order to obtain a decree of divorce on the ground of desertion, the party who alleges desertion shall have to prove that the other party to the marriage deserted fu''s or her company without any reasonable cause and without the consent or against the wish of such party which also includes the wilful neglect of the party who alleges desertion by the other party to the marriage.

What is desertion, Raydon on Divorce has explained desertion that mere physical act of departure by one spouse does not necessarily make that spouse the deserting party, in the case of Lachman Utamchand Kirpalani Vs. Meena alias Mota, , the Supreme Court held that desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that other''s consent and without reasonable cause. In other words to establish desertion, there shall be a total repudiation of the obligation of marriage or an abandonment of the deserted spouse with an intention to bring the cohabitation permanently to an end.

The nature of evidence given by the petitioner failed to demonstrate that there was any wilful act or any wilful termination by the respondent of her maritallie with the petitioner that too without the consent of the petitioner. In (lie case of Bipin Chander Jaisinghbhai Shah Vs. Prabhawati, , the Supreme Court held that mere separation out of anger or distress without necessary intention to end cohabitation permanently is no desertion. It has come in the evidence that the respondent had to continue her studies at Visakhapatnam after she dis-continued the same for two years with a fond hope to improve her career. It has also come in the evidence that the atmosphere in her in-law''s house was not so congenial. With all this, the respondent stated before the Court that though she completed her studies and secured a job of doctor she is prepared to give up the said job and live with the petitioner. Thus she is prepared to carry on the marital obligations. Rejoining in her studies itself is not a crime. After giving birth to a child, the respondent shifted to Visakhapatnam and started living there. The petitioner and his parents were aware of it. But there was no attempt on the part of the petitioner to take back the respondent. Since the respondent proved her bond fides that under what circumstances she had to stay away from the petitioner''s house and in view of her willingness to rejoin the petitioner, the blame if any for separate stay, is only on the petitioner and not on the respondent. In similar set of circumstances, the Division Bench of this Court in the case of Kosuri (Chandana) Dhanum Kumari Vs. Kosuri Venkata Vara Prasad, , held as follows:

"The law is far too well settled that mere living apart by the parties is not desertion. Desertion indicates a state of mind in which a party guilty of the act must indicate either in express, words or by conduct to put an end to the relationship. The event must be specific as a limitation period is stipulated under the provisions of Section 13(1)(ib) of the Act itself that such conduct and state of mind of the offending party must continue in the minimum for aperiod of two years so as to enable the other party to a decree of divorce."

" ..... The burden of proof to prove the facts of desertion lies on the person who alleged it. As was explained by the Supreme Court even when the wife, when she is a deserting spouse, does not prove any just cause for living apart, yet, the husband has still to establish the absence of any just cause for her to live separately. In the present case, admittedly, the appellant was intending upon pursuing an academic Course. At the time of marriage she was pursuing Ph.D. Course and hence a condition was agreed upon between the parties of finding a house nearby the Andhra University to facilitate her to continue her research while leading a conjugal life. The respondent having accepted such condition, it cannot be open for him to insist that she should have joined him at his steel plant quarters before she submitted her thesis. The refusal of the appellant to live with the respondent in his quarter, as is pleaded, would not constitute a desertion by her in the context of the circumstances. It is however, argued by Mr. Veerabhadrayya that while that may be true, yet since her thesis was submitted in January. 1991 nothing prevented her thereafter to join the respondent. But, the learned Counsel is unable to show anything on record that between January, 1991 and 16-7-1991 the respondent made any efforts to bring the appellant to his house. It appears from the evidence of the appellant that from 1992, she is working as a Research Associate for a project of five, years getting a gross salary of Rs.2,640/- per month. Evidently, she has taken up the associateship after the issue of the notice by the respondent. In her evidence, she stated that she is willing to join the respondent after completing (he present project which may be complete by the end of December, 1996."

From the above discussion it is clear that the respondent never withdrew from the company of the petitioner without any reasonable cause. She never intended to repudiate the marital obligation. It was not her intention to repudiate the marriage with an intention to bring cohabitation permanently to an end. On the other hand non-cooperaiive attitude of the petitioner made the respondent to live separately at Visakhapatnam.

Thus, the petitioner herein failed to prove that the respondent deserted him.

As mentioned earlier the respondent herself offered to rejoin the petitioner. But he refused to take her back. Taking into consideration the age and status of the parties and their social background with a view to see whether conciliation is possible as marriage of such parties is not a contract but a sacrosanct, since both the parties are governed by Hindu Law we directed boih the parties to reunite by forgetting the past mistakes and differences. They appeared before this Court twice. When we asked the petitioner whether he is willing to take back the respondent, his reply was that he would submit after contacting his father. Whereas the respondent submitted to us that she is prepared to rejoin and go back to the fold of the petitioner. Then we asked both the petitioner and the respondent to stay together in Hyderabad City for a night. As directed they lived together and on the next day they appeared before the Court. The response of both the parties was as it was on the previous day.

The nature of evidence and the conduct of the parties would go to suggest that the respondent is ready and willing to join her husband. Her stay outside her in-laws house is for the reasons best known to the petitioner and his parents. There is no justification for the petitioner to contend that the attitude of the respondent towards petitioner is one of cruelly. Also no truth inthe allegation that the respondent deserted the petitioner. Petitioner failed to make out a case to interfere in the judgment and order passed by the lower Court. Court below rightly refused to grant reliefs to the petitioner. Hence, appeal tails and it is liable to be dismissed.

Accordingly, the appeal is dismissed. No costs.