JUDGMENT M. P. Mehrotra, J. - This second appeal arises out of a petition for divorce, or in the alternative, for judicial separation under Sec. 13 read with Sec. 10 of the Hindu Marriage Act, 1955. The petition was filed in 1963 by Shri S. N. Tripathi, the husband, who is the appellant before me. The trial Court passed a decree for judicial separation and there was an appeal against the same to the lower appellate court. The said court allowed the wife's appeal and the husband's petition was dismissed. In the judgment of the lower appellate Court it has been observed that the relief for divorce was not pressed before him and ultimately the same was given up by the husband, Sri S. N. Tripathi. 2. The husband sought judicial separation from his wife on the ground of cruelty which had caused a reasonable apprehension in his mind that it would be harmful or injurious for him to live with his wife. In other words, the ground on which relief was sought was said to be covered by Sec. 10(1) (b) of the said Act. It lays down as under : - "10(1) Either party to a marriage, whether solemnized before or after the commencement of this Act, may present a petition to the district Court, praying for a decree for Judicial Separation on the ground that the other party. (a) ... ... ... ... (b) has treated the petitioner with such cruelty as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other party ; In the petition it was averred that the marriage took place on 6th February 1945. There are three issues from the marriage, two sons and one daughter. There is some dispute about the dates of births given in the petition. The eldest son, Rajiv Kumar, according to the husband was born in July 1948 but according to the wife he was born in July 1947. The second son, Sanjiv Kumar, according to the husband was born in February 1950 but according to the wife he was born in February 1949 and the daughter, Rani, according to the husband was born in March 1952 but according to the wife she was born in March 1951. Nothing, however, turns on this difference in the said dates. The second son, Sanjiv Kumar, according to the husband was born in February 1950 but according to the wife he was born in February 1949 and the daughter, Rani, according to the husband was born in March 1952 but according to the wife she was born in March 1951. Nothing, however, turns on this difference in the said dates. It is obvious that all these are now adults and fully grown up. From the record it has transpired that they are also married. Wife, Smt. Savitri Devi, was alleged to be a very irritable, harsh, quarrelsome, suspicious and dominating lady impervious to the reasonable requests made by the husband. Certain instances in support of the said allegation were given in the petition. It was further alleged that in April 1969 the husband filed a petition for judicial separation when the wife was living at Lucknow. However, during the pendency of the said petition the wife approached some elders and friends of the husband and expressed her repentance for her past actions and promised to behave faithfully and correctly in the future. The husband took the wife at the latter's words and agreed to give her one more opportunity to mend her ways and, therefore, the said petition was not pursued. In April 1962 the wife came back from Lucknow to Bareilly and began to live with the husband. However, her old habits and activities revived with the result that it became difficult for the husband to live in the house to perform his official duties and to fulfil his social obligation. Five instances have been given in para 12 of the petition which are said to disclose the pattern of wife's behaviour towards the husband after the aforesaid reconciliation in April 1962. Therefore, the husband was compelled to file the second petition on 1st May, 1963. In the written statement, the wife denied the allegations made against her in the petition. She claimed that as Hindu wife she had always been very obedient and faithful to the husband. She was not guilty of the alleged acts of cruelty and she has given her own version in para 13 of the written statement in respect of the five instances mentioned in para 12 of the petition. She claimed that as Hindu wife she had always been very obedient and faithful to the husband. She was not guilty of the alleged acts of cruelty and she has given her own version in para 13 of the written statement in respect of the five instances mentioned in para 12 of the petition. She also claimed that due to financial stringency prevailing in the husband's family, she devoted herself to further studies and obtained degrees of Sangeet Visharad, T. Music. B.A., B.Ed., and Sangeet Nipun, the last being equivalent to Master's degree in music. She took up employment with a view to support the family. She contended that the petition was not maintainable and did not disclose any cause of action. The husband was alleged to be given to drinking and other vices etc. in the company of his friends and other associates and to be completely oblivious of his responsibilities towards the family. She claimed that the husband and his friends and associates felt that she was a hurdle in the way of the last life which was sought to be led by them. Further the husband's sister, Smt. Malti Sharma, bore grudge against the wife and she was also interested in bringing about disharmony and discord between the husband and the wife. The trial court framed two issues as follows : - (1) Whether the respondent has persistently or repeatedly treated the cause reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the respondent ? (2) To what relief, if any, is the plaintiff entitled? The trial Court decided both the issues in favour of the petitioner i.e. the husband and, therefore, the petition was allowed and judicial separation was granted. The wife filed an appeal to the lower appellate court and as stated above, the appeal succeeded and the petition of the husband was dismissed. 3. It may be stated here that both the trial court and the lower appellate court have decided the petition on the basis of the instances of cruelty set out in para 12 of the petition. 3. It may be stated here that both the trial court and the lower appellate court have decided the petition on the basis of the instances of cruelty set out in para 12 of the petition. In other words, the events prior to the reconciliations in April 1962 have been disregarded by the two courts below and may state here that in the instant appeal also the learned counsel for the appellant confined himself to the incidents which allegedly took place after April 1962. The lower appellate Courts view is stated in these words : "The four acts of cruelty which are held proved by the lower Court and which in the judgment of the lower court amount to psychological cruelty, even if they be assumed to have been established, in my view, do not justify a conclusion, that Smt. Tripathi, had practised such psychological cruelty upon her husband which would be a legal cruelty within the meaning of Sec. 10(1) (b) of the Hindu Marriage Act which would cause a reasonable apprehension in the mind of the petitioner, Shri Tripathi, that it was harmful or injursious for him to live with his wife." The said court considered the alleged four acts of cruelty to be stray incidents in the married life of the parties. 4. In the second appeal Shri Girdhar Malaviya, the learned counsel for the appellant, made the following points :- (1) The trial court's findings on the incidents set out in para 12 of the petition were not disbelieved by the lower appellate court. The said court merely held that the said incidents did not amount to such cruelty as would entitle the husband to get a decree for judicial separation under Sec. 10(1) (b) of the said Act. Therefore, the second appeal could not be said to be concluded by findings of fact recorded by the lower appellate Court. The second appeal did involve a question of law as to whether the inference drawn by the lower appellate court from proved facts was correct or incorrect. According to the learned counsel, inference drawn by the said court was incorrect in law. (2) The lower appellate court's view that the four incidents narrated in para 12 of the petition were merely stray ones was not correct. According to the learned counsel, inference drawn by the said court was incorrect in law. (2) The lower appellate court's view that the four incidents narrated in para 12 of the petition were merely stray ones was not correct. The said incidents were really indicative of pattern of distorted matrimonial relationship between the parties brought about because of the fault of the wife. (3) The observation of the lower appellate court that the incidents in question merely proved the lack of manly qualities in the husband was misconceived and unmerited. It was really a case of a husband being a victim of cruelty at the hands of the wife. 5. Learned counsel also submitted that the testimony of some of the witnesses examined on behalf of the appellant in the trial court was wrongly rejected by the lower appellate court. 6. Shri Malaviya placed reliance on the following :- (1) Murtaza Husain v. Md. Yasin Khan, A.I.R. 1915 P.C. 89, (2) Nagubai v. B. Shama Rao, A.I.R. 1956 S.C. 593, (3) Kusum Lata v. Kamta Prasad, A.I.R. 1965 All. 280, (4) Putul Devi v. Gopi Mandal, A.I.R. 1963 Pat. 93, (5) Siddagangiah v. Lakshamma, A.I.R. 1968 Mysore 114, (6) Bhagwat v. Bhagwat, A.I.R. 1967 Bom. 80, (7) Nihawan v. Nijhawan, A.I.R. 1973 Delhi 200, (8) Gur Charan Singh v. Smt. Maryan Kaur, A.I.R. 1960 Pun. 422, (9) Mt. Padma v. Parma Ram, A.I.R. 1959 Him. Pra. 37, (10) Jyotish Chanera v. Meera Guha, A.I.R. 1970 Cal. 265, (11) Ghuiam Mohd. v. Badshah Begum, A.I.R. 1970 J. & K. 158, (12) Kuppuswami v. Alagammal, A.I.R. 1961 Mad. 391, (13) Hattanchand v. Hans Raj, A.I.R. 1963 Pun. 272, (14) Umbi Bai v. Chittar, A.I.R. 1960 Madh. Pra. 205, (15) Chandra Mohini v. Avinash Prasad, A.I.R. 1967 S.C. 581, (16) Paras Ram v. Janki Bai, A.I.R. 1961 All. 395, (17) Smt. Sapttami Sarkar v. Jagdish Sharkar, 1969 C.W.N. 502, (18) Cooper v. Cooper, (1954) 3 All. R.H. 415, (19) Colling v. Colling, (1963) 2 All. E.R. 966, (20) Malshury, 3rd Edn. 12th Vol. 269, paras 514, and (21) Arasam Chinta v. Parbati, A.I.R. 1967 Orissa 163. 7. 395, (17) Smt. Sapttami Sarkar v. Jagdish Sharkar, 1969 C.W.N. 502, (18) Cooper v. Cooper, (1954) 3 All. R.H. 415, (19) Colling v. Colling, (1963) 2 All. E.R. 966, (20) Malshury, 3rd Edn. 12th Vol. 269, paras 514, and (21) Arasam Chinta v. Parbati, A.I.R. 1967 Orissa 163. 7. Shri Gopal Behari learned counsel for the respondent wife, submitted the following points:- (1) It was a serious matter to grant a decree for judicial separation as inevitably the same would ultimately lead to a decree for divorce in view of the provisions of Sec. 13 (1-A) (i) of the Hindu Marriage Act. Counsel contended that for a Hindu wife there could be no greater calamity than to be a divorce. (2) The first act considered and relied upon by the trial court was really an act of foolishness and not of cruelty. The fact that the husband began to beat himself or would try to inflict bodily harm on himself and was not prevented from doing so by the wife did not indicate and cruelty on the part of the wife. So far as the allegation against the wife in relation to the husband's nephew, Pradeep Kumar, is concerned, the same again did not prove cruelty. Even if true the only inference which could be drawn would be that the wife did not entertain any warmth for the said nephew, Pradeep Kumar. (3) The lower appellate court was right in interpreting the alleged incidents to be merely stray ones and in holding that Sec. 10(1) (b) was not attracted to the facts of the case. (4) The second appeal itself was said to be not maintainable as the petition under Sec. 10 or Sec. 13 of the Hindu Marriage Act did not bring into existence any suit and, therefore, there could be no occasion to file a second appeal under Sec. 100, C. P. C. in proceedings arriving out of such petitions. 8. Learned counsel placed reliance on the following :- (1) Earl Russal v. Countess Russal, (1397) A.C. 395, (2) King v. King, (1952) 2 All. H.R. 582, (3) Jamisson v. Jamisson, (1952) 1 All. E.R. 875, (4) Augustin v. Augustin, 1882 I.L.R. 4 All. 374, (5) Dular Koer v. Dwarka Nath Missor, I.L.R. 34 Cal. 971, (6) Carroll v. Carroll, I.L.R. 13 Pat, 129 (140), (7) Kandal Bayal Beddiar v. Hanganayaki, I.L.R. 46 Mad. H.R. 582, (3) Jamisson v. Jamisson, (1952) 1 All. E.R. 875, (4) Augustin v. Augustin, 1882 I.L.R. 4 All. 374, (5) Dular Koer v. Dwarka Nath Missor, I.L.R. 34 Cal. 971, (6) Carroll v. Carroll, I.L.R. 13 Pat, 129 (140), (7) Kandal Bayal Beddiar v. Hanganayaki, I.L.R. 46 Mad. 791, (8) Hirabai v. Dhanjibhai, B.L.R. Vol. II 845, (9) Mullas Hindu Law, 12th Ed. paras 825 to 838 and (10) Srinivasan's Hindu Law, 1968 Ed. Vol. I, 413. 9. Learned counsel conceded that in case the second appeal was dismissed then the wife's application under Sec. 25 of the Hindu Marriage Act should be rejected. 10. Having considered the submissions of the learned counsel and the case law on the subject, I have come to the conclusion that this appeal deserves to be dismissed. I think it is a relevant circumstance to take into consideration that the marriage took place in 1945 and granting a decree for judicial separation in the advanced years of this couple will undoubtedly be a very serious matter. As stated above, they have three major issues and they are married and settled. The decree for judicial separation will almost break the entire fabric of the family. It has come in evidence that the mother very often goes and resides with her sons though she understandably is somewhat reluctant to be a permanent burden on her sons in these exceptionally hard days. Her husband also similarly visits the sons and has harmonious relations with them. In my view, even though the relations between the husband and the wife are strained and there seems to be no immediate prospect of reconciliation, still if the ties are permanently broken then further harm will be caused to whatever relations exist at present. In any case, there is a danger that such a decree may bring about some manner of rupture in the relationship which prevails between the parents and their issues. In my view, after the long efflux of time since the petition was filed in 1963, as the second appellate court, I can well consider this circumstance in deciding whether to grant a decree for judicial separation or not. What, I think, can be well taken cognizance of is the fact in a consideration of such petition the court should notice the totality of the circumstances including the nature of the relationship which is prevalent in the family. What, I think, can be well taken cognizance of is the fact in a consideration of such petition the court should notice the totality of the circumstances including the nature of the relationship which is prevalent in the family. In the field of matrimonial relationship and the manner in which the courts of law should either decree its continuance or should bring about an interruption, I think, a purely mechanistic and formal approach is not called for. One has to view and perform this task in a broad perspective. 11. The fact that from 1945 up to 1962 the spouses lived together is again a relevant circumstance which goes against the contention of the husband that he should be granted a decree for judicial separation on the ground of the wifes alleged cruelty. The real grievance of the husband seems to be that his wife is bad tempered and unreasonable. Now it is obvious that ones temperament is something which is in the nature of a permanent trait and ordinarily it not that the sweet tempered person suddenly grown into a violent tempered one. Such charges do not take place over night. It is true that sometimes with the passage of time, particularly in old age,'people grow peevish and irritable but here old age in that sense has not yet come to either of the two spouses. Now, if despite some temperamental incompatibility of the wife the husband could pull on with her from 1945 to 1962 do not think it would be reasonable to come to the conclusion that after 1962 there was a sudden change in the temper of the wife. As a matter of fact, to be husband's case is that only a few months after the marriage the wife began to exhibit her bad temper. However, he himself admitted that till 1958 he did not stir in the matter and his petition for judicial separation was filed in 1959. The same was also not pursued and the courts below decreed or dismissed the subsequent petition on a consideration of the events which took place after April 1962. I do not think that a couple who have passed about 17 years of their married life can reasonably be allowed to come out one day with a petition for judicial separation on the ground of cruelty which is really based on temperamental incompatibilities. I do not think that a couple who have passed about 17 years of their married life can reasonably be allowed to come out one day with a petition for judicial separation on the ground of cruelty which is really based on temperamental incompatibilities. I do not wish to generalise in these matters but, still, exceptional cases apart I think these broad considerations are not lacking in relevance or validity in deciding a petition like the instant one. 12. Sec. 10 in the Hindu Marriage Act, 1955, deals with judicial separation. The portion, which is relevant to this case, has been quoted earlier. 13. Cruelty has not been defined in the Act. In para 514 of Halsbury's Laws of England, 3rd Edn. Vol. 12 at page 269 it is laid down as under :- "The legal conception of cruelty, which is not defined by status is generally described as conduct of such a character as to have caused danger to life, limb, or health (bodily or mental) or as to give rise to a reasonable apprehension of such danger." In para 515 in the same volume it is stated:- "To find cruelty it is not necessary to find physical vilence. It is doubtful whether any definition of cruelty applies aeually well to cases where there has been physical violence and to cases of nagging, or to ceases where there has been a deliberate intention to hurt and to cases where temperamental and unfortunate circumstances have caused such of the trouble. It is undesirable, if not impossible by judicial pronouncements to create certain categories of acts or conduct as having or lacking the nature or quality which renders them capable or incapable in all circumstances of amounting to cruelty in cases where no physical violence is averred". In para 516 of the said volume it is laid down : "The general rule in all questions of cruelty is that the whole matrimonial relations 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. Before coming to a conclusion, the Judge must consider the impact of the personality and conduct of one spouse on the mind of the other, and all incidents and quarrels between the spouses must be weighed from that point of view. Before coming to a conclusion, the Judge must consider the impact of the personality and conduct of one spouse on the mind of the other, and all incidents and quarrels between the spouses must be weighed from that point of view. In determining what constitutes cruelty regard must be had to the circumstances of each particular case, keeping always in view the mental and physical conditions of the parties and their character and social status. In 1970 Cal. 266 at page 276 a passage from "Rayden on Divorce" 10th Edn. at page 148, has been reproduced here also : "To obtain a divorce on the ground of cruelty it must be proved that one partner in the marriage, however mindless of the consequences, has behaved in a way which the other spouse could not in the circumstances be called upon 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 case of cruelty, from the petitioners side , ought this petitioner to be called on to endure the conduct, from the respondents side was this conduct excusable ? ....... Assuming that injury or apprehended injury to health is found the court has then to decide whether the sum total of the reprehensible conduct was cruel. That depends or whether the cumulative conduct was sufficiently serious to say that from a reasonable personss point of view after a consideration of many excuse which this respondent might have in the circumstances, the conduct is such that petitioner ought not to be called upon to endure it." 14. In Mulla's Hindu Law, 12th Ed. at page 827 it has been laid down as under: "The judicially accepted legal concept of cruelty had for its basis the principles adopted by the Ecclesiastical Courts in England and it found favour in the House of Lords with five law Lords in the leading case of Russel v. Russel who were in a majority against four Law Lords who were willing to extend the meaning still further but it would be academic to refer to those opinions. A examination of the cases under analogous enactments in England will show that the legal conception has varied and been modified from time to time, though not in theory but in application, with changes in social and economic conditions. A examination of the cases under analogous enactments in England will show that the legal conception has varied and been modified from time to time, though not in theory but in application, with changes in social and economic conditions. There has been such, a marked change in the motions in matrimonial duties and obligations of the husband and wife in the present generation in India that it will be incumbent on the court to be extremely careful in the matter of seeking assistance and guidance from decisions arrived at under any previous legislation in India or England even when rules may be similarly worked and blind adherence to any of those decisions must be deprecated and particularly when they relate to persons whose customs, manners and mode of life may be different." 15. In Collin v. Collin in the head note it is laid down as under : "Whether cruelty, as a matrimonial offence, has been established is a question of fact and degree, which should be determined by taking into account the particular individuals concerned and the particular circumstances of the case, rather than by any objective standard; accordingly, in cases where the two spouses are of normal physical and mental health, and the conduct of the respondent spouse, so considered, is so bad that the other should not be called on to endure it, cruelty is established, and then it does not matter what was the respondents state of mind, e.g. it is immaterial whether the respondent's conduct was "aimed at" the other spouse or due to unwarranted indifference attributable perhaps to selfishness or laziness." 16. In view of the statement of law contained in the aforesaid paragraphs, I do not think, any useful purpose will be observed by examining the facts and the ratio laid down in each case which has been cited before me. Obviously, the facts were different and the decisions largely depended upon the facts and circumstances of the case concerned. This is not to say that the controversy is always a pure question of fact. It has been never so treated and it has always been recognised that basically the controversy is a mixed question of fact and law. 17. Obviously, the facts were different and the decisions largely depended upon the facts and circumstances of the case concerned. This is not to say that the controversy is always a pure question of fact. It has been never so treated and it has always been recognised that basically the controversy is a mixed question of fact and law. 17. Many of the cases, which were cited by Shri Gopal Behan, learned counsel for the respondent, were placed before me with a view to show that the law laid down in Russel v. Russel. has been followed in India also. It is not necessary to examine the facts of that case in detail and the difference between the majority and the minority which was almost so evenly divided - five in favour of the majority verdict and four in favour of the minority view. As the Commentator in the aforesaid passage cited from Mulla's Hindu Law observed the minority pleaded for a more extensive and liberal interpretation of the law than was acceptable to the majority in the said case. It may be noticed that Lord Hergoball, who delivered the principal judgment on behalf of the majority, clearly stated that he was doing, so because "the Court for matrimonial causes is governed and controlled by a distinct statutory injunction. It can only act and give relief on principles and rules as nearly as may be controllable to "principles and rules" on which Ecclesiastical courts had therefore acted and given relief." Thereafter, it was laid down: "But the principle or rule that a judicial separation can only be granted on the ground of cruelty where there has been injury to body or health, or the reasonable apprehension of it, has been frequently recognised and acted upon since 1858. The law has never been enunciated in other terms, and no other test has been suggested as the correct one." The rule in India, as incorporated in Sec. 10(1) (b) has broadly incorporated the British Rule. However, the peculiar conditions prevailing in this country as well as the complete freedom to interpret the law without the requirement to follow the law as lain down by the Ecclesiastical Courts in England has enabled the courts in this country to decide the cases with a certain degree of flexibility which might not have been available to them if the British law were to be rigidly followed. Still, there can be no doubt that the broad outlines of the law of judicial separation are the same in both the countries. 18. There is one more material consideration which has found expression in the following words of Lord Denning in (1950) 2 All. E. R. 398 at p. 403 : "If the door of cruelty were opened too wide we should soon find ourselves granting divorce for incompatibility of temperament. This is an easy path to tread specially in undefended cases. The temptation must be resisted lest we slip into state of affairs where the institution of marriage itself is imperilled." 19. Now applying the aforesaid guidelines to the instant case, I find myself in agreement with the lower appellate court that the alleged acts of cruelty really do not bring the case within the ingredients laid down in Sec. 10(1) (b). I agree with Shri Gopal Behari, learned counsel for the respondent, that so far as the incident in relation to Pradeep (the nephew of the appellant) is concerned, it cannot amount to cruelty. It may at worst show that the appellants wife lacked warmth for a relation of the husband or that she was not possessed of a broad liberal or generous outlook. But that is a long way off from legal cruelty. Similarly, in my view, the fact that Shri Tewari was not well received and well treated by the respondent is again not a case of legal cruelty. At worst, she could be said to be not a considerate woman, one who had as regard for the sentiments of bar has based but I fail to see how an indifference to the husband's relations or friends or acquaintances can be said to amount to legal cruelty entitling the husband to a Judicial separation from the wife. Apart from the qualitative aspect of the matter, in my view, one has to have a sense of proportion also in considering these questions. I think that the incidents are minor and they bear no proportion to the magnitude of the consequences which are sought to ensure from them. If these acts could be treated to amount to legal cruelty, it will be difficult to save marriages in a large number of cases. 20. I think that the incidents are minor and they bear no proportion to the magnitude of the consequences which are sought to ensure from them. If these acts could be treated to amount to legal cruelty, it will be difficult to save marriages in a large number of cases. 20. The other two instances of alleged cruelty which found favour with the trial court were (i) the wife did not take any preventive step when the appellant, Shri Tripathi, would be beating himself or would try to inflict bodily harm on himself. Rather she would instigate her husband to jump from the roof, and (2) the wife created a scene when she visited the office of the husband and sought to search a particular drawer of a table as she suspected that certain love letters of the husband were placed in the said drawer. The husband had to seek the intervention of Shri Singhal, the President of the Municipal Board. Now, I fail to see how the inaction on the part of the wife in a situation such as the one which was said to have been brought about by the husband by beating himself or seeking to inflict bodily injury upon himself can amount to legal cruelty. It is unfortunate that the situation should arise where a spouse should be so worked up as to become uncontrollable. According to the highest notions of matrimonial ties it should be the moral duty of such partner to keep the other in a state of peace and content. However, those highest notions are not always found to be practised in actual life. Due to a variety of factors the shape of things is not such as it should be in most of the families. However, even if the wife in the instant case could be dubbed to be rather insensitive, she cannot be said to be guilty of legal cruelty towards her husband. It is difficult to appreciate how by her inactivity or in actions he can be said to cause reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other party. 21. I confess that the remaining incident gave me much cause of concern in deciding the appeal. It is difficult to appreciate how by her inactivity or in actions he can be said to cause reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other party. 21. I confess that the remaining incident gave me much cause of concern in deciding the appeal. I appreciate that a wife, who can run to the office of her husband and create a scene there, is certainly guilty of a behaviour which no one will expect from a dutious, obedient and affectionate partner. Moreover, such a conduct on her part betokens an aggressiveness which cannot be too harshly criticised. If it were a petition for restitution of conjugal rights I would have been free to consider the controversy untrambelled by the considerations which have impelled me to decide tins appeal. However, it is now well established that the mere fact that legal cruelty is not found to exist or established does not necessarily lead to the conclusion that restitution of conjugal rights must be decreed by a court. The Court's discretion in the matter of granting or refusing to grant restitution of conjugal rights is by now well established. I am seeking to clarify this position in law as I do not desire that a dismissal of the second appeal should necessarily be construed as a verdict on the part of this. Court in favour of the desirability of granting conjugal rights between the parties concerned in case they make any future attempt in that direction. If, ever such an attempt is made the same should be considered and decided by the courts concerned in an independent manner unrelated to the verdict in the instant appeal. 22. So far as the merits of the said incident are concerned, both the courts have held that the incident did take place and I do not think that the said verdict can be doubted in any way. The lower appellate court has observed that the said incidents go to show that the wife in the present case was of a highly suspicious nature, hi a situation of strained relations as unhappily existed in the instant case, it is understandable that the spouses should not have the requisite confidence in the fidelity of each other. The lower appellate court has observed that the said incidents go to show that the wife in the present case was of a highly suspicious nature, hi a situation of strained relations as unhappily existed in the instant case, it is understandable that the spouses should not have the requisite confidence in the fidelity of each other. For long duration the wife remained away from the husband she remained at Lucknow while the husband was at Bareilly. It, therefore, seems that she developed a highly suspicious attitude in life. Further, it has been brought to my notice by the learned counsel for the respondent that the office of the husband was situated in the Water Works compound wherein the residence of the parties was also situated at a short distance from the said office. It is usual that Water Works Engineers have their residence and office within the compound of the Water Works. The office and the residence are almost adjacent to each other. It was also admitted by the husband in the instant case that he was alone in the office when the wife went to him. It has also come in evidence that the President Shri Singhal, was known to the husband and the wife. Learned counsel submitted that these aspects of the matter, to an extent, provided extenuating circumstances. In my view, it is sufficient to hold that the wife was undoubtedly guilty of a very grave act of indiscretion and yet bearing in mind that punishment should not be disproportionate to the crime one can come to the conclusion that the said incident should not be held to be sufficient to bring about a complete rupture in the matrimonial relationship of the parties. I hold that on the basis of the said incident it is not possible to come to the conclusion that the ingredients of Sec. 10(1) (b) of the Hindu Marriage Act are established. I, therefore, do not see any merit in the appeal. 23. So far as the maintainability of file appeal is concerned, I think, the learned single Judge has given good reasons in Kusum Lata v. Kamta Prasad, for holding that a second appeal is maintainable from proceedings arising out of the petition under the Hindu Marriage Act. I do not feel it necessary to repeat the considerations which found favour in the said reported case. 24. I do not feel it necessary to repeat the considerations which found favour in the said reported case. 24. In the result, the appeal fails and is dismissed. The parties shall bear their own costs throughout the litigation.