JUDGMENT [ENTITY], J.
1. This is an appeal by the husband under [SECTION] of the [ACT] (hereinafter to be referred to as the Act) against the judgment and decree by which his application under [SECTION] of the Act for judicial separation has been rejected.
2. It is not in dispute that plaintiff [ENTITY] and defendant [ENTITY] are Christians, they were married on 24-4-1995 at Bhopal; the plaintiff is a Ticket Examiner in Railway and the defendant has done M. Com. and is working in a private company; the plaintiff's parents are living in Brindawan Nagar, Bhopal and the defendant's parents are also living in Govindpura Bhopal; the defendant after the marriage lived with the plaintiff in the house of his parents for a brief period from 24-4-1995 to 8-6-1995; thereafter they lived in a rented house near Ashbagh Stadium at Bhopal at a monthly rent of Rs. 800/- from 8-6-1995 to 15-7-1995; the defendant became pregnant and then she went to the house of her parents on 15-7-1995; she is living there since then; she gave birth to a male child oh 1-3-1996 at Kasturba Hospital, Bhopal, she sent the notice dated 10-5-1996 (Ex. P.1) to the plaintiff alleging that she was treated with cruelty by him and his parents in connection with their demand for dowry, the plaintiff sent the reply dated 14-5-1996 Ex. P. 2) to the defendant denying the allegations and calling upon the defendant to come to his house and stay with him as his wife; the plaintiff filed a suit in the Court against the defendant for restitution of conjugal rights and that case was fixed for hearing on 8-8-1996; the defendant appeared in the Court after receiving notice of that case; the defendant lodged a report on 10-8-1996 before the Mahila Police Station, a copy of which is Ex. P. 6; the police registered a case under [SECTION] [ACT] against the, plaintiff and his parents and they were arrested, on 19-9-1996 by the police and they were produced before the Judicial Magistrate First Class, Bhopal, the defend-ant opposed the grant of bail to the plaintiff but they were released oh ball by the Court; the plaintiff and his parents were Convicted under [SECTION], [ACT] by the Judicial Magistrate First Class by the judgment dated 8-2-2001 in [CASE NUMBER] but they have been acquitted of this charge by the Court of Session by the judgment dated 19-6-2001 in [CASE NUMBER]. The Court of Session found on appreciation of the evidence in the criminal case that the case of the, defendant, that the plaintiff and his parents were demanding MIG flat and a fridge as dowry is false. It has also been found that the defendant is living with her parents and she does not want to live with her husband. It has been held that the plaintiff and his parents have not treated the defendant with cruelty.
3. The plaintiff s case in the present suit is that the behaviour of the defendant with him and his parents was not good from the very beginning. She wanted to jive with her husband, separate from his parents and therefore, his father took a house on rent near Ashbagh Stadium where the plaintiff and the defendant could live only for a period of one month and seven days and the defendant left that house also and went to the house of her parents. Since then she never cared to come to the house of the plaintiff and gave the notice dated 10-5-1996 making false allegations. According to the plaintiff he has never demanded MIG flat or fridge from the defendant or her parents. He has pleaded that he has suffered mental cruelty and humiliation because of the criminal case initiated by the defendant against him and his parents. The plaintiff several times went to the defendant to bring her back and his son but she refused to come. It is the case of the plaintiff that the defendant has treated him with cruelty and deserted him without any reasonable excuse for more that two years, and decree for divorce should be granted.
4. The defendant's case is that the plaintiff and his parents were demanding dowry, and they were ill-treating her. The mother of the plaintiff was very cruel and the plaintiff used to dance at her tune. It is on account of her cruel treatment that a separate house was taken on rent by the plaintiff and there also the plaintiff treated her with cruelty. He did not care her during her pregnancy and made her to go to the House of her parents. He did not take care of her at the time of the delivery of the child and the expenses were borne by her parents. According to her the plaintiff and his parents were demanding MIG flat and fridge from her and her parents and they were harassing her on that count. The defendant is still prepared to live with the plaintiff if he assures for security to her and her son.
5. The trial Court after appreciation of the evidence adduced by both the sides has held that the two grounds for judicial separation set up by the plaintiff are not proved. It has been held that the defendant has not treated the plaintiff with cruelty nor she has deserted. Therefore, the application for judicial separation has been rejected.
6. In this appeal it is argued on behalf of the appellant that the appreciation of the evidence by trial Court is not proper it is found from the documentary and oral evidence on record that the defendant has treated the plaintiff with cruelty and has also deserted him for more than two years. It is also argued that after the amendment of the [ACT] which has been brought in force on 3-10-2001, the decree for divorce under [SECTION] of the Act should be granted instead, of the decree for judicial separation only. On the other hand it is argued that the grounds for divorce have not been established and the plaintiff cannot be permitted to make use of his own wrong for claiming divorce. It is stated that the defendant is still ready and willing to live with the plaintiff as his wife.
7. The evidence on record has been scanned by this Court. The notice dated 10-5-1996 Ex. P.-1 sent by the defendant to the plaintiff through his lawyer gives detailed "narration" of the events from the date of the marriage to the date of notice but it is conspicuously absent on the point, that there was any demand of "MIG flat and fridge" by the plaintiff and his parents. As mentioned above the Court of Session in the criminal case has also found that the story of the defendant that there was demand of "MIG flat and the fridge" is false. The entire Case of the defendant is built on the hypothesis that there was demand of these, two items by the plaintiff and his parents as dowry and they were ill-treating her on that count. As the alleged demand of MIG flat and fridge by the plaintiff is not proved, it is difficult to hold that the plaintiff treated the defendant with cruelty. It is admitted that the plaintiffs father was working on a responsible post in Bharat Heavy Electrical Limited, Bhopal and he has a spacious house in Bindrawan Colony at Bhopal which has four bed rooms. The plaintiffs father had to take a small house; on rent within one and a half months of the marriage of his son with the defendant, sp that the plaintiff and the defendant may live therein separately from him. It is a very strong circumstance indicative of the fact that the defendant insisted upon the plaintiff to live with her separately from his parents. Even in that rented house the parties lived for a brief period of one month and seven days only and then the defendant left and went to the house of her parents. This is another circumstance showing that it is not the plaintiff but the defendant who was creating problem. The defendant did not come to the plaintiff even after birth of the son and preferred to send the legal notice dated 10-5-1996 (Ex. P. 1). The plaintiff filed the suit for restitution of conjugal rights and the defendant was summoned. The date for hearing so fixed was 8-8-1996. It appears that the suit for restitution of conjugal rights was instituted on a wrong provision of law and therefore, it failed. But this suit gave an opportunity to the defendant to come and live with the husband. Instead of doing so the defendant went to the Police Station and lodged a report on 10-8-1996 alleging demand of MIG flat and fridge by the plaintiff. After trial the appellate Court has found this allegation to, be completely false. It follows that the defendant made a false report against the plaintiff alleging the demand of MIG flat and fridge as dowry. It is writ large that after this report the plaintiff and his parents were arrested and produced before the Court. The defendant opposed the application for bail. This must have caused mental anguish, embarrassment and humiliation to the plaintiff to a great extent.
8. The appreciation of the evidence by the trial Court is perverse. The plaintiff and his witnesses have been disbelieved on the ground that the case of the plaintiff was not put up in the cross-examination of the defendant and his witnesses. This would not be a ground for disbelieving the plaintiff and his witnesses when plaintiff [ENTITY] (P.W. 1) and his father [ENTITY] (P.W. 2) and his witness [ENTITY] (P.W. 3) have given a detailed and vivid account of the state of affairs from the date of marriage to the date of their evidence in the Court. [ENTITY] (P.W. 1) has deposed that from the beginning the behaviour of the defendant was not good. She used to quarrel with him and was attempting to cause injury to herself. She Was doing something even when he started living with her in the rented house. She was not preparing food and was even prepared to assault him. She left the house of her husband of her own accord without him permission. She made a demand of Rs. 1,00,000/- in the form of fixed deposit when the question of his bail was being considered by the Court. He has further stated that he went to the house of the defendant's parents several times to bring her back and to give small gifts to his son but the defendant drew him out, she did not accept the gifts and; threw the clothes and other articles which he wanted to give to his son on his birthday. In cross-examination he has clarified that an amount of Rs. 74,000/- was given by the defendant's father to his father at the time of marriage but this represented half of the expenses which were incurred in arranging the party on behalf of both the sides.
9. [ENTITY] (P.W. 2) is father of the plaintiff. He has deposed that the defendant was not behaving properly with him and his wife. She insisted for living separately from them and therefore, he arranged a rented house for the plaintiff and the defendant. The defendant left even that house: after a brief period. He has denied having demanded a flat or a fridge at any time from the defendant or his parents. [ENTITY] (P.W. 3) is a neighbour of the plaintiffs father and he has supported the case of the plaintiff.
10. On the other hand, [ENTITY] (D.W.1) has deposed that the, plaintiff and his parents were demanding MIG flat and fridge and because of non-fulfilment of the demand they were harassing and ill-treating her. According to her, the plaintiff asked her to go and live with her parents after she became pregnant. In cross-examination she has admitted that she did not mention in her notice dated 10-5-1996 (Ex. P.1) that the plaintiff and his parents had demanded flat and fridge as dowry. In cross-examination she has admitted that after lodging the report at the police station she was persuaded by the lady police officer to reconcile with her husband and to live with him but she refused to do so because there was no guarantee of any security to her. This shows that the defendant was not willing to live with the plaintiff after the lodging of the report by her at the Police Station. She has admitted that she had asked for an amount of Rs. 1,00,000/- in the form of fixed deposit in the name of her son so as to have some financial security. She admits to have opposed the grant of bail to the plaintiff and his parents. [ENTITY] (D.W. 2) is the father of the defendant, [ENTITY] (D.W. 3), [ENTITY] (D.W. 4) and [ENTITY] (D.W. 5) have also been examined as witnesses on behalf of the defendant.
11. After going through the entire evidence of both the sides this Court is of the opinion that the defendant has treated the plaintiff with, cruelty and she has deserted him for more than two years. She made a false report against her husband on the basis of which he was prosecuted under [SECTION], [ACT] and ultimately he has been acquitted of that charge by the Court of Session. The demand of MIG flat and the fridge by the plaintiff or his parents has not been proved either in the criminal case or in the present case. Such an allegation is conspicuously absent in the notice dated 10-5-1996 (Ex. P.1) sent by the defendant through her counsel. As stated above the plaintiff was arrested and his bail was opposed by his wife. It is apparent that there are no tender feelings between the parties which are necessary between the wife and the husband. The plaintiff cannot be expected to live with his wife who got the false report made against him and got him arrested by the police. Humiliation and agony suffered by the husband were too much. He was required to undergo the traumatic experience of the arrest by the police at the instance of his wife. How can the husband be expected to keep such a wife with him? The only inference deducible from the evidence adduced by both the sides is that there has been "irretrievable breakdown" of the marriage between the parties. It is not a case of ordinary wear and tear of family life. But it has exceeded that limit. The plaintiff has been treated with such cruelty by the defendant as to cause a reasonable apprehension in his mind that it would be harmful or injurious for him to live with her. The plaintiff has been subjected to mental cruelty by the defendant. It would be unsafe for him to live with her. The conduct of the defendant is such that it has become intolerable for the plaintiff to suffer any longer and living together with her has become impossible.
12. The defendant has been living separately from the plaintiff from 15-7-1995. Thus the factum of separation is not disputed. The defendant refused to live with the plaintiff when attempts were made to bring reconciliation by the lady police officer and even now there is no sincere move from the side of the defendant to live with the plaintiff. There has been animus deserendi on her part. She has not been able to demonstrate that she is ready and willing to live with, the husband on the excuse that there is no guarantee of security to her. Argument on her behalf that she is still willing to live with her husband to hollow expression bereft of any sincerity. The ground for desertion is also established.
13. The approach of the Court generally is to preserve marriage and to be reluctant to dissolve the marriage. But if it is found that there has been irretrievable breakdown of the marriage and marriage has become dead on account of the conduct of the other party, no useful purpose would be served by keeping such marriage alive. In the present case it cannot be said that the plaintiff is trying to take advantage of his own: wrong.
14. The word 'cruelty' has been used in [SECTION] of the [ACT] and that has been judicially interpreted in several decisions of the Supreme Court. In [PRECEDENT] it has been held that "mental cruelty in [SECTION] can broadly be defined as that conduct which inflicts upon the other party such mental paid and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged parry cannot reasonably be asked to put up with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. While arriving at such conclusion, regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the extent in which they were made."
15. In [PRECEDENT] the Supreme Court observed that treating the petitioner with cruelty is a ground for divorce under [SECTION] of the Act. Cruelty has not been defined under the Act but in relation to matrimonial matters it is contemplated as a conduct of such type which endangers the living of the petitioner with the respondent. Cruelty consists of acts which are dangerous to life, limb or health. Cruelty for the purpose of the Act means where one spouse has so treated the other and 'manifested such feelings towards her or him as to have inflicted bodily injury, or to have caused reasonable apprehension of bodily injury, suffering or to have injured health. Cruelty may be physical or mental. Mental cruelty is the conduct of other spouse which causes mental suffering or fear to the matrimonial life of the other, "cruelty", therefore, postulates ,a treatment of the petitioner with such cruelty, as to cause a; reasonable apprehension in his or her mind that it would be harmful or injurious for the petitioner to, live with the other party. Cruelty, however, has, to be distinguished from the ordinary, wear and tear, of family life. It cannot be decided on the basis of the sensitivity of the petitioner and has to be adjudged on the basis of the course of conduct which would, in general, be dangerous for a spouse to live with the other.
16. Again in [PRECEDENT] it has been observed : "The Court has to come to a conclusion whether the acts committed by the counter-petitioner amount to cruelty, and it is to be assessed having regard to the status of the parties in social life, their customs, traditions and other similar circumstances. Having regard to the sanctity and importance of marriages in a community life, the Court should consider whether the conduct of the counter-petitioner is such that it has become intolerable for the petitioner to suffer any longer and to live together is impossible, and when only the Court can find that there is cruelty on the part of the counter-petitioner. This is to be judged not from a solitary incident, but on an overall consideration of all relevant circumstances."
17. Recently in [PRECEDENT] the entire case law has been dealt with and it has been held that cruelty for the purpose of [SECTION] is to be taken as a behaviour by one spouse towards the Other which causes-reasonable apprehension in the mind of the latter that it is not safe for him or her to continue the matrimonial relationship with the other. Mental cruelty is a state of mind and feeling with one of the spouses due to behavioral pattern by the other. Unlike the case of physical cruelty the mental cruelty is difficulty to 'establish by direct evidence. It is necessarily a matter of inference to be drawn from the facts and circumstances of the case. A feeling of anguish, disappointment and frustration in one spouse caused by the conduct of the other can only be appreciated on assessing the attending facts and circumstances in which the two partners of matrimonial life have been living. The inference has to be drawn from the attending facts and circumstances taken cumulatively. In case of mental cruelty it will not be a correct approach to take an instance of misbehaviour in isolation and, then pose the question whether such behaviour is sufficient by itself to cause mental cruelty. The approach should be to take the cumulative effect of the facts and circumstances emerging from the evidence on record and then draw a fair inference whether the petitioner in the divorce petition has been subjected to mental cruelty due to conduct of the other.
18. In [PRECEDENT] the ingredients of desertion have been stated and it has been held that it 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 petition for divorce bears the burden of proving those elements in the two spouses respectively and their continuance throughout the statutory period.
19. The facts of the present Case have been analysed in light of the principles laid down by the Supreme Court in the above decisions on the meaning of words "cruelty and desertion". During pendency of this appeal the [ACT] has come into force from 3-10-2001. [SECTION] provides cruelty as a ground for dissolution of marriage. Similarly, [SECTION] provides desertion as a ground for dissolution of the marriage. The appellate Court can take into consideration the amendment which has come into force during the pendency of the appeal. Keeping in view all the facts and circumstances of the present case, it would be proper to pass a decree for dissolution of the marriage in view of the amended provision in the Act.
20. In the result the appeal is allowed. Judgment and decree of the trial Court are set aside. The marriage between appellant [ENTITY] and respondent Smt. [ENTITY] is hereby dissolved through a decree of divorce. The parties will bear their own costs of the suit and also of the appeal.