Per: Justice Binod Kumar Dwivedi The appellant - husband has preferred this appeal under Section 28 of the Hindu Marriage Act, 1956 (for short, herein after referred to as the "HMA") assailing judgment and decree dated 08.08.2007 (Annexure P/1) passed in HMA Case No.17-A of 2005 by the learned Additional Judge to the Court of Additional District Judge, Agar (Malwa), District Shajapur (MP) whereby the suit filed by the appellant - husband under Section 13 of the HMA for dissolution of marriage has been dismissed.

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2. It is undisputed that the appellant - husband and respondent - wife were married, according to Hindu Traditions and Customs; and out of their wedlock, two sons and one daughter were born. It is also undisputed that the appellant and respondent are living separately since 19.12.2002.

3. Apart from the undisputed facts, the case of the appellant - husband is that after marriage, the respondent was misbehaving and was pressurizing him for his transfer to Akodiya, District Shajapur (MP). Anyhow he was bearing all her misbehaviour. She further made allegations that the appellant has illicit relationship with Teacher Hemlata Sharma; and on this ground also, she often raised quarrel with him. On 19.12.2002 at about 10:00 PM in night, she left matrimonial house and on 04.01.2003 returned with members of her family and again raised quarrel and also lodged a report against him on false and baseless grounds at Police Station Agar, District Shajapur (MP). She has meted out cruelty to the appellant and also did not discharge her duties arising out of marital relationship. Therefore, the appellant filed an application / suit under Section 13 of the HMA for dissolution of marriage.

4. The respondent - wife in her written statement has disputed the facts narrated in the plaint with specific assertions that she never entered into quarrel with the appellant or even raised apprehension against the appellant for his illicit relationship with Hemlata Sharma. She has further alleged that the appellant himself was beating her stating that he will marry Hemlata Sharma. On 19.12.2002 also, the appellant committed mar-pit with her and also tried to get her signatures on blank papers. On this, the incident was Signature Not Verified Signed by: RAMESH CHANDRA PITHAWE Signing time: 01-10-2024 18:38:18 NEUTRAL CITATION NO. 2024:MPHC-IND:28723 3 FA-587-2007 reported to the Police Station on 04.01.2003. The respondent along with her relatives had come to the place of the appellant for conciliation. Even on that day, the appellant raised dispute with them. Due to above, she is residing away from the appellant. On these grounds, she has prayed for dismissal of the plaint.

5. On the pleadings of the parties, learned Court below framed as many as four following issues: -

6. Learned counsel for the appellant submits that the judgment passed by the Court below is based on conjectures and surmises. The evidence has not been appreciated in right perspective. Learned Court below has ignored Signature Not Verified Signed by: RAMESH CHANDRA PITHAWE Signing time: 01-10-2024 18:38:18 NEUTRAL CITATION NO. 2024:MPHC-IND:28723 4 FA-587-2007 the instances of cruelty, as alleged and proved by the appellant against the respondent. On the false grounds, the respondent has lodged a case against the appellant under Sections 498-A , 294 , 323 and 506 of Indian Penal Code, 1860 (herein after referred to as the IPC ) before the Judicial Magistrate First Class, Agar, which was registered as Criminal Case No.313 of 2007. In this case, by judgment dated 21.09.2011, the appellant was acquitted of the charges of harassment to the respondent for demand of dowry, but he was convicted for offence under Section 323 of the IPC, however, given benefit of provisions of Probation of Offenders Act, 1958 and on furnishing a bond of Rs.10,000/- (rupees ten thousand only) for maintaining peace for three years. Learned counsel for the appellant has further submitted that he has been a victim of cruel behaviour of the respondent - wife, who deprived him of cohabitation and deserted him for a long time, without any cogent or sufficient reason and also entangled him in criminal case on the false ground, which is an act of cruelty in itself and sufficient for dissolution of marriage.

7. To buttress his submissions, learned counsel for the appellant - husband has placed reliance on the following judgments: -

State of Haryana and another ).

On these contentions, learned counsel for the appellant - husband has prayed for setting aside the judgment and decree passed by the Court below by allowing this appeal and dissolving his marriage with the respondent.

8. Per contra, learned counsel for the respondent - wife submits that from the beginning of the marital life, the appellant - husband harassed her by way of physically assaulting her, when she objected to the appellant with regard to his illicit relationship with Hemtala Sharma. She had filed a criminal case against the appellant in which he was convicted for assaulting her and was let off with the aid of provisions of Probation of Offenders Act, 1958 , looking to the fact that he is a public servant and will lose his service, if sent to jail. He has not been given clean acquittal, therefore, mere filing of this complaint by the respondent - wife cannot be taken as an instance of cruelty against the appellant - husband. Learned Court below taking into account the evidence available on record has rightly dismissed the suit filed by dissolution of marriage, which cannot be found fault with. The appellant himself has neglected the respondent - wife and their children and even did Signature Not Verified Signed by: RAMESH CHANDRA PITHAWE Signing time: 01-10-2024 18:38:18 NEUTRAL CITATION NO. 2024:MPHC-IND:28723 6 FA-587-2007 not pay for their maintenance. On these contentions, learned counsel for the respondent - wife prayed for dismissal of the present first appeal.

9. Heard learned counsel for the parties and perused the record of the case.

10. Before adverting to the facts of the case in hand, it is pertinent to consider the legal provisions under HMA and also exposition of law as propounded by the Hon'ble Apex Court in catena of judgments relating to decree of divorce on the ground of mental cruelty.

10.1 Word "cruelty" has not been defined in the HMA. Indeed it could not have been defined. It has been used in relation to human conduct or human behaviour. It is the conduct in relation to or in respect of matrimonial duties and obligations. It is a course of conduct of one which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. 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.

10.2 The cruelty simpliciter is now a ground for divorce under Section 13 of the HMA. Section 13 of HMA provides, so far as it is material:

NEUTRAL CITATION NO. 2024:MPHC-IND:28723 7 FA-587-2007 10.3 In case of Shobha Rani v. Madhukar Reddi , (1988) 1 SCC 105 :

10.4 In case of V. Bhagat v. Mrs. D. Bhagat , (1994) 1 SCC 337: AIR 1994 SC 710, Supreme Court in para 16 has held as under:-

10.5 Similarly in case of Ravi Kumar v. Julmidevi, [(2010) 4 SCC 476 ] the apex court reiterated that cruelty in matrimonial cases may be of so many forms. Para 19 to 21 may be reproduced to elucidate the concept of cruelty in matrimonial cases:

The aforesaid passage was quoted with approval by this Court in N.G. Dastane (Dr.) v. S. Dastane [(1975) 2 SCC 326] ".

10.6 The above observations are intended to emphasize that the Court in matrimonial cases is not concerned with ideals in family life. The Court Signature Not Verified Signed by: RAMESH CHANDRA PITHAWE Signing time: 01-10-2024 18:38:18 NEUTRAL CITATION NO. 2024:MPHC-IND:28723 10 FA-587-2007 has only to understand the spouses concerned as nature made them, and consider their particular grievance. As Lord Reid observed in Gollins v. Gollins [(1963) 2 All ER 966, 972] :

10.7 Chandrachud, J. (as he then was) in N.G. Dastane v. S. Dastane [(1975) 2 SCC 326, 338 : AIR 1975 SC 1534 : (1975) 3 SCR 967, 978] in para 32 observed as:

10.8 In case of Samar Ghosh v. Jaya Ghosh [(2007) 4 SCC 511 ] allowing the appeal, the Supreme Court in para 98 to 101 has held as under:

11 FA-587-2007 from person to person depending upon his upbringing, level of sensitivity, educational, family and cultural background, financial position, social status, customs, traditions, religious beliefs, human values and their value system.

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

101. 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 Signature Not Verified Signed by: RAMESH CHANDRA PITHAWE Signing time: 01-10-2024 18:38:18 NEUTRAL CITATION NO. 2024:MPHC-IND:28723 12 FA-587-2007 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 sterilisation 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 Signature Not Verified Signed by: RAMESH CHANDRA PITHAWE Signing time: 01-10-2024 18:38:18 NEUTRAL CITATION NO. 2024:MPHC-IND:28723 13 FA-587-2007 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."

10.9 It has also been held in Samar Ghosh (supra) where on facts there has been irretrievable breakdown of marriage, the party opposing the divorce and not letting go the other party free of the matrimonial bond, would be causing mental cruelty to the other party. This makes considerable sense in the Indian context where to reach finality by exhausting the remedy of appeals may take several years. In such situation the party opposing the grant of divorce may, in some cases, be doing so only out of spite, either to harass the other party or prevent it from remarrying or out of sheer cussedness. That may indeed also confirm the allegation that such party had been causing mental cruelty, and was now intent on causing further mental cruelty by opposing the divorce.

10.10 Relying upon judgment in Shobha Rani (supra) in A Signature Not Verified Signed by: RAMESH CHANDRA PITHAWE Signing time: 01-10-2024 18:38:18 NEUTRAL CITATION NO. 2024: MPHC-IND:28723 14 FA-587-2007 JAYCHANDRA v. ANEEL KAUR [(2005) 2 SCC 22 ] allowing the appeals, the Supreme Court in para 10 to 14 held as under:

15 FA-587-2007 mental, the problem presents difficulties. First, the enquiry must begin as to the nature of cruel treatment, second the impact of such treatment in the mind of the spouse, whether it caused reasonable apprehension that it would be harmful or injurious to live with the other. Ultimately, it is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. However, there may be a case where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted. (See Shobha Rani v. Madhukar Reddi [(1988) 1 SCC 105 : 1988 SCC (Cri) 60 : AIR 1988 SC 121].)

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

13. The court dealing with the petition for divorce on the ground of cruelty has to bear in mind that the problems before it are those of human beings and the psychological changes in a spouse's conduct have to be Signature Not Verified Signed by: RAMESH CHANDRA PITHAWE Signing time: 01-10-2024 18:38:18 NEUTRAL CITATION NO. 2024:MPHC-IND:28723 16 FA-587-2007 borne in mind before disposing of the petition for divorce. However insignificant or trifling, such conduct may cause pain in the mind of another. But before the conduct can be called cruelty, it must touch a certain pitch of severity. It is for the court to weigh the gravity. It has to be seen whether the conduct was such that no reasonable person would tolerate it. It has to be considered whether the complainant should be called upon to endure as a part of normal human life. Every matrimonial conduct, which may cause annoyance to the other, may not amount to cruelty. Mere trivial irritations, quarrels between spouses, which happen in day-to-day married life, may also not amount to cruelty. Cruelty in matrimonial life may be of unfounded variety, which can be subtle or brutal. It may be words, gestures or by mere silence, violent or non-violent.

14. The foundation of a sound marriage is tolerance, adjustment and respecting one another. Tolerance to each other's fault to a certain bearable extent has to be inherent in every marriage. Petty quibbles, trifling differences should not be exaggerated and magnified to destroy what is said to have been made in heaven. All quarrels must be weighed from that point of view in determining what constitutes cruelty in each particular case and as noted above, always keeping in view the physical and mental conditions of the parties, their character and social status. A too technical and hypersensitive approach would be counterproductive to the institution of marriage. The courts do not have to deal with ideal husbands and ideal wives. It has to deal with a particular man and woman before it. The ideal couple or a mere ideal one will probably have no occasion to go to Matrimonial Court. [See N.G. Dastane (Dr.) v. S. Dastane [(1975) 2 SCC 326 : AIR 1975 SC 1534] .]"

10.12 In the light of the law propounded by the Apex Court in the aforementioned judgments, we would dwell upon factual matrix of the case in hand for assessing whether the appellant could make out a case for divorce on the ground of "cruelty" as given in Section 13 (1) (ia) of HMA and whether learned Family Court has failed to appreciate the evidence adduced by the parties in right perspective as per the prevailing norms of law.

10.13 The Apex Court in the case of K. Srinivas Rao v. D.A. Deepa , (2013) 5 SCC 226 in para 16 in regard to mental cruelty has held as under:

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11. In the instant case, if we scrutinize evidence on the anvil of law, as propounded in the aforesaid judgments by the Apex Court, it is found that sole incident dated 04.01.2003, which took place when respondent - wife Sunita with her relations from parental side came to the matrimonial house and at the spur of moment, that incident took place in which she got sustain injury. No such other incident ever took place. Exaggerating the incident and making it a case of harassment on the ground of demand of dowry, First Information Report (FIR) was lodged against the appellant - husband. The charge of harassment for demand of dowry was not found proved. In view of the evidence lead in that case and the Magistrate in Criminal Case No.313 of 2007 acquitted the appellant from offence under Section 498-A , 294 and 506 of IPC. The instance reported to Police was not of such a serious nature, which could have compelled the respondent - wife to leave the company of the appellant - husband for ever. The acquittal of the appellant - husband from the charges under Section 498-A , 294 and 506 of IPC in itself proves that this was a mala fide and malicious prosecution with ulterior motive for wreaking vengeance on the appellant - husband, with a view to spite him due to private and personal grudges.

12. Nothing has come on record to show that she ever made any effort to come to live in the company of the appellant - husband along with her children. On the contrary, from perusal of the evidence on record, it is found proved that she took this solitary incident as a pretext to live away from the company of the husband and deprive him of marital life satisfaction and thus she herself failed to discharge the obligations of family life.

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13. Learned Court below has failed to appreciate the evidence adduced in this case in right perspective ignoring above facts. It has come on record that the appellant - husband has made efforts to bring back the respondent -wife to live with him, but she refused to come to live in the company of the appellant - husband. From statement of Murarilal Sharma (AW-1), Jagdishchandra (AW-2) and Rameshwar Sharma (AW-4), it has been amply proved that despite several efforts made by the appellant - husband to bring back his respondent - wife, she did not turn up to live in the company of the appellant. Respondent - wife Sunita Sharma in her statement has said that the appellant was meted out cruelty to her by beating her and threatening to marry Hemlata Sharma, but this allegation has not been proved by adducing cogent evidence. Mere solitary incident of scuffle taking place on 04.01.2003 in the height of feelings cannot be taken as continuous cruel behaviour of the appellant which could compel her to desert appellant. The unsubstantiated allegation against the appellant - husband of having illicit relationship with other woman in itself constitutes "mental cruelty" meted out to the appellant - husband. The same has been held in K. Srinivas Rao (supra).

14. In view of the aforesaid, we are of the view that the respondent - wife left the company of the appellant - husband without sufficient reasons and did not turn up to live with him since last more than twenty one years. Thus, she has deserted the appellant and also caused "mental cruelty" to him by levelling unfounded allegation of illicit relationship. These aspects have been left out by the Court below, despite the evidence on record. Negative Signature Not Verified Signed by: RAMESH CHANDRA PITHAWE Signing time: 01-10-2024 18:38:18 NEUTRAL CITATION NO. 2024:MPHC-IND:28723 20 FA-587-2007 findings recorded on Issues No.1 to 3 that the respondent - wife has not caused cruelty to the appellant - husband and did not deprive him of cohabitation is against the evidence, and therefore, perverse, which could not found stamp of approval of this Court.

15. The contentions advanced on behalf of the appellant have substance. The findings recorded by the Court below are perverse and vulnerable. Ex consequantia, the appeal succeeds and is hereby allowed. The judgment and decree passed by the Court below is set aside; and marriage between the appellant and respondent is hereby dissolved under Sections 13 (1) (ia) and 13 (1) (ib) of HMA.

Decree be drawn accordingly.

The parties will bear their own costs.