L.MOHAPATRA, J & B.K.PATEL, J. M.A.T.A. No.40 OF 2006 ( Decided on 09.04. 2010.) DR. N. ANANTA RAVI SHANKAR ……………. Appellant -V- SNIGDHA DAS …………. Respondent HINDU MARRIAGE ACT, 1955 (ACT NO.25 OF 1955 ) – SEC.13(1) (ia). For Appellant – M/s. A.K.Mishra, T.Mishra & B.Swain. For Respondent – M/s. Biswajit Mohanty-I, Sadasiva Patra, Aditya Kumar Mohapatra, Pradip Ku.Majhee & Ashutosh Panda. L.MOHAPATRA, J. The appellant’s application under Section 13 of the Hindu Marriage Act seeking for dissolution of marriage by decree of divorce having been dismissed by the learned Judge, Family Court, Rourkela in Civil Proceeding No.66 of 2004, this appeal has been preferred. 2. The case of the appellant is that he married the respondent as per Hindu rites and customs on 21.1.2001 in Panthanivas, Sector-5, Rourkela and the marriage was consummated in the quarter where he was staying with his parents. Immediately after the marriage, they went in a pleasure trip to different places and after returning, he found sudden change of behaviour of the respondent without any reason. The respondent insisted to stay away from the in-laws but the appellant did not agree. From this point, dissension arose between the parties and on 1.4.2001 the respondent went to her father’s house, who was staying at Basanti colony. Though the appellant and his parents made several attempts to bring her back, she did not come and ultimately though she agreed to come back on 22.5.2001, she did not keep her promise. The parents of the appellant went back to Visakhapatnam out of shock and demur. In the month of June, 2001 the mother of the appellant complained of chest pain and on receipt of this information the appellant went to convey the news to the respondent in order to take her back, but he was misbehaved and was not allowed to enter into the house of the respondent. He again went on 24.6.2001 to bring her back to witness the car-festival, but she did not return and in the house of the respondent the appellant was slapped. However, in the mid-night on interference of the younger sister of the respondent, she agreed to come and lived with the appellant from 25.6.2001 to 4.10.2001. Thereafter on two occasions she went to her father’s house on different grounds and ultimately on 29.11.2001 she gave birth to a male child. Thereafter she started staying in her father’s house. One month after birth of the child when the appellant went to bring her back, he was humiliated by his in-laws and was driven out of the house. Again on 15.7.2002 the parents of the respondent left her with the child in the house of the appellant and she stayed with the appellant till September, 2003 and during the said period she was behaving inhumanly with the appellant. Neither she was serving food nor she was allowing him to work properly and was threatening to lodge false case. Ultimately, she deserted him without any reasonable cause and all attempts for reunion having failed, the application for divorce was filed. 3. The respondent contested the case by filing a written statement denying all the allegations. It was contended by the respondent that she was suffering from T.B. and she was undergoing treatment under the appellant in 2000. In course of such treatment, she developed relationship with the appellant and ultimately married him. Since the parties belonged to different culture and language, the appellant had promised to over come all difficulties that may be faced by her after marriage. At the time of marriage dowry articles such as cash, jewellery and other house hold articles as per demand were given, but she was time and again told that had the appellant married a Telgu girl, he would have got more dowry. After returning from a pleasure trip, she was suffering physically, but was denied any treatment by an Allopathic doctor. In spite of her ill health, the appellant demanded physical relationship with her, which she tried to avoid and in the process dissension arose. She was taken back to her father’s house on 1.4.2001 and after regaining health, her parents left her in matrimonial house in June, 2001. After sometime when she went back to the house of the appellant, a further demand of cash of Rs.5,00,000/-(Rupees five lakhs) was made to purchase a house and establish his clinic, but the father of the respondent denied to pay the amount because of his financial condition. She was assaulted once by the appellant and was abused by the mother of the appellant in Telgu language. She was threatened to be killed. It is further case of the respondent that every time her parents consulted her and persuaded to stay with the appellant but because of the conduct of the appellant and his family members, the respondent suffered physically and mentally and ultimately in February, 2003 the parents of the appellant came to Rourkela and persuaded her to agree for a divorce so that the appellant can marry according to their choice. In September, 2003 she was left in her father’s house but no attempts were made to take her back. The reason is for non-fulfilment of dowry demand. 4. On pleadings of the parties, the learned Judge, Family Court framed four issues and found that the marriage was held on 21.1.2001 at Rourkela as per Hindu rites and customs prevalent in Telgu community and the marriage was also consummated in the quarter allotted to the father of the appellant. Though initially the ground of desertion was taken, the statutory period of desertion not being over, the appellant had taken the plea of cruelty. On analysis of the evidence, the learned Judge, Family Court held that the cruelty attributed against the respondent comes within the purview of normal wear and tear in a marital life and the same has not gone to such an extent so as to snap the relationship. The learned Judge, Family Court also found that though the respondent is willing to join with the appellant, without any justifiable cause, the appellant refused to join with the respondent and, therefore, the prayer for divorce could not be granted. On these findings the appeal was dismissed. 5. Shri Mishra, the learned counsel appearing for the appellant assails the judgment solely on the ground that there being sufficient materials on record establishing mental and physical cruelty meted out to the appellant at the instance of the respondent, the petition for divorce should have been allowed. This being the only ground taken in the appeal, we looked into the evidence adduced by the parties in this regard. The appellant examined himself as P.W.1 and in his deposition he stated that after coming back from honeymoon trip the respondent insisted him to stay away from the in-laws which he did not agree. On Ist April, 2001 the respondent went to her father’s house and several attempts were made to bring her back, but her parents did not agree. On 12.6.2001 his mother suffered from chest pain at Hyderabad and when he requested her to accompany him to Hyderabad, he was misbehaved and was not allowed to enter into the house. Again on 24th June, 2001 on the insistence of his father, he had gone to bring her back and she came back to his house. From 25.6.2001 till 4.10.2001 the respondent stayed with him and during the said period, she conceived. However, she was taken back in October, 2001 and the child was born on 29.11.2001. A month after the child was born, when he requested the respondent to come, he was abused in filthy language by the respondent but ultimately on 15.7.2002 she came back to his house with the child. Thereafter, she created all types of disturbances in the house by quarreling with every one and ultimately on 22.9.2003 she went back to her parents house and never came back thereafter. P.W.2 has no direct knowledge about the allegations made by the appellant but stated that he had a discussion with the respondent and he expressed his dissatisfaction. P.W.3 is the father of the appellant but he has not stated anything about the misbehaviour of the respondent except that during the illness of his wife the respondent had not gone to Hyderabad to see her mother-in-law. On the other hand, in examination-in-chief he has stated that both the spouses led a happy conjugal life with each other. Lateron, on further examination he stated about the circumstances when the respondent had gone to her father’s house and one instance has been given by him when he and the appellant were humiliated in the house of the respondent. The respondent examined herself as O.P.W.1 and supported the plea taken in the written statement in detail. Her evidence was also corroborated by the evidence of her father O.P.W.2. On analysis of the entire evidence, we find that even accepting the evidence of P.W.1 and his father P.W.3, one would find that on certain occasion when the respondent went to her father’s house, attempts were made to bring her back, but it did not materialize on certain occasions. If the evidence of P.W.1 and O.P.W.1 are read together, it will be found that on certain occasions there were reasons for leaving the matrimonial house. But the allegations made by the appellant are not of such nature that it can be termed either as mental or physical cruelty. An isolated incident of assault will not amount to physical cruelty and such conduct of the respondent depends on the circumstances under which one reacts. We are therefore of the view that the learned Judge, Family Court was right in holding that the allegations made by the appellant with regard to mental and physical cruelty are not abnormal or unusual in marriage life and, therefore, shall not amount to cruelty for the purpose of divorce. 6. For the reasons stated above, we find no justifiable reason to differ with the findings of the learned Judge, Family Court. Consequently the appeal being devoid of merit is dismissed. Appeal dismissed.