JUDGMENT :- These two first appeals arise from a common judgment dismissing the appellant-husbands petition for dissolution of his marriage with the respondent-wife by a decree of divorce under S.13 of the Hindu Marriage Act, 1955 and also dismissing the appellants application made in those proceedings for the custody of the only child of the marriage, Gitika Gulati, a daughter. 2. The parties were married on 22nd Jan., 1967. They lived together for a few years at Allahabad and the child Gitika was born on 1st Oct., 1970. According to the husbands case, as set out in his petition dated 17th Feb., 1976 which was originally for judicial separation, the wife was more inclined to live at her fathers place than at the husbands and even wanted that he should also live at her fathers place. She was very very quarrelsome and always quarrelled with the members of the husbands family. The quarrels became so frequent that the husband had to hire a house in Mohalla Kalyani Devi, but there too the husband had to change his residence a number of times because of the quarrels which the respondent-wife picked up with the neighbours and other tenants of the house. Ultimately, in spite of the best efforts of the husband to make the wife as comfortable as possible, she left his place with all her belongings, that is, ornaments and clothes and other light things and went to her fathers house on 14th Oct., 1971, as originally alleged in the petition, but now amended, to 14th Nov., 1971 with the permission of this Court. It was said that the wife left without the husbands consent and against his wishes and that she had been living at her fathers place without any reasonable cause and had thus deserted the husband since that date, 14th Oct., 1971, now changed to 14th Nov., 1971. It was said that the wife left without the husbands consent and against his wishes and that she had been living at her fathers place without any reasonable cause and had thus deserted the husband since that date, 14th Oct., 1971, now changed to 14th Nov., 1971. By all amendment of the petition allowed by the trial Court, it was further alleged that the "short temper and repeated and constant quarrels of the wife" had caused "immense mental torture" to the husband which amounts to "both physical and mental cruelty" and that desertion had lasted for a continuous period of more than two years immediately preceding the presentation of the petition and the husband was entitled to have the marriage dissolved by a decree of divorce on the grounds of cruelty and desertion both; and instead of the relief of judicial separation, the relief of dissolution of the marriage by a decree for divorce was claimed, 3. According to the wife she was turned out of the house by the husband after beating, and left at her parents place. She was ill-treated and subjected to violence with the connivance of his parents and sisters as he wanted to marry again. Neither her father nor mother were living and there was no question of her living at her fathers place. It was said that many a time simple and grievous hurt was caused to her by the husbands acts of violence. She never quarrelled either with the husband or with any member of his family. The husband had shifted to Mohalla Kalyani Devi for his own convenience, It was then urged that the husband once beat her so mercilessly as to break her jaw bone and after driving her out of his house had left her in a serious condition at the house of her brothers and had misappropriated and converted to his own use all her money, ornaments and belongings given to her by her parents. Further she was neglected and not maintained and not taken back in spite of requests. She never refused to live with the husband. The date on which she was turned out after being beaten was given as 14th Oct., 1971. Further she was neglected and not maintained and not taken back in spite of requests. She never refused to live with the husband. The date on which she was turned out after being beaten was given as 14th Oct., 1971. It was then added that she is a Member of Raj Yog Satsang Society run by Smt. Raj Gulati in Darbhanga Colony at Allahabad and in the month of Feb., 1976 the husband approached her through Smt. Raj Gulati and offered Rs. 12,000/- by way at settlement to her and Rs. 5,000/for the maintenance of the minor daughter and also brought some ornaments and clothes for being returned to her. The husband wanted her to sign a writing which was brought by him but she did not sign it as it was meant to obtain her consent for separation and to enable the husband to marry again. She did not accept the money that was offered. She wanted to go back to live with him. The petition for judicial separation was filed on failure of that attempt. In her additional written statement filed in reply to the pleas of desertion and cruelly and the relief for divorce claimed by amendment of the original petition, the wife stated that she was a cool minded woman and never quarrelled in the family and emphatically denied the allegation of cruelty and re-asserted that she had not deserted the husband but had forcibly been turned out by him and that the husband was not entitled to the relief claimed. 4. An application for custody of the child Gitika Gulati appears to have been filed on 9th April, 1980. Although the original petition for judicial separation that was converted into that for divorce bears petition No. 6 of 1976, the number of the case specified on the papers on the file is Matrimonial Petition No. 20 of 1976. It is not clear how the case came to be registered twice over, once as Matrimonial Case No. 6 of 1976 and again as Matrimonial Case No. 20 of 1976. Be that as it may, the record is one and indivisible and the application for custody is being treated by me as an application/petition made under S.26 of the Hindu Marriage Act in the Matrimonial Suit which was instituted by petitioner originally for judicial separation, but later on amended into a petition for divorce. Be that as it may, the record is one and indivisible and the application for custody is being treated by me as an application/petition made under S.26 of the Hindu Marriage Act in the Matrimonial Suit which was instituted by petitioner originally for judicial separation, but later on amended into a petition for divorce. The application for custody of the child should not have been registered as an original suit but should have been registered as a miscellaneous case arising from the original Matrimonial Suit No. 6 of 1976. 5. The application for custody of the child is dated 9th April 1980. It gives no facts. The facts are alleged in the affidavit accompanying it. S.26 of the Hindu Marriage Act requires that an application under that section should be made by petition which means that the application should have contained the facts and the grounds for the relief claimed. However, ignoring the technicality, the affidavit of the husband filed in support of the application states that Gitika was born on 1st Oct., 1970 and was about 10 years of age at the time of the making of that affidavit on 19th April, 1980, that he was the father and the natural guardian of the child and entitled to her custody; that the respondent wife was living alone in her house at Meerapur with the child, that she was a teacher in a School and remained busy in her occupation. There was nobody else in her house to look after the child who was growing in age with the result that she was completely neglected and was getting spoilt in the company of street urchins; that the wife and the child have to use a common public latrine, a public tap and the wife used the child as a servant to bring water from the public tap, to cook food and tea; that the husband was on the other hand in business and leading a respectable life. He had a decent house attached with kitchen and bathrooms and had domestic servants. His mother also lived with him and the minor child could very conveniently live with him and his mother, that is, the childs grand mother and the welfare of the child lies in living with him. He had a decent house attached with kitchen and bathrooms and had domestic servants. His mother also lived with him and the minor child could very conveniently live with him and his mother, that is, the childs grand mother and the welfare of the child lies in living with him. In the counter-affidavit filed by the wife it was stated that she was living in Mohalla Attarsuiya and not in Meerapur: that it was incorrect to say that the child was not looked after or was neglected and was getting spoilt in the company of street urchins, and that she was never used as a servant to bring water from the public tap or to cook food and tea; that there was a tap inside the house; that the child was being given the best education at St. Marys Convent School. Allahabad and no one else could look after her welfare better than her mother, and that the husband who had turned the wife out and neglected and deserted her and never paid a single pie for the education or maintenance of the wife or the child was not a fit or proper person to do so. The child had never received any affection from the husband. The application was frivolous and was liable to be dismissed and was made to wreak vengeance upon the mother by torturing her by separating the child from her and letting her die as she could not five without the child. 6. The following were the issues framed by the trial Court: (1) Whether the opposite party has treated the petitioner with cruelty, if so, its effect? (2) Whether the opposite party has deserted the petitioner for a continuous period for more than two years? (3) Whether the petitioner is entitled to the custody of minor daughter Km. Gitika Gulati, u/s.26 of the Hindu Marriage Act? (4) To That relief, if any, is the petitioner entitled? The trial court found against the husband on all the issues and dismissed the petition for divorce as well as the application for custody, of the child. 7. At the outset of the hearing of the two appeals in this Court, an effort was made to bring about a re-conciliation between the parties. The trial court found against the husband on all the issues and dismissed the petition for divorce as well as the application for custody, of the child. 7. At the outset of the hearing of the two appeals in this Court, an effort was made to bring about a re-conciliation between the parties. That failed became the appellant-husband wanted separation and was prepared to pay a price for it by way of a settlement of a lump sum amount as permanent alimony for the wife and keeping apart another sum for the marriage expenses of the daughter. Since the parties had lived apart for about 10 years when the matter came up before me I had an impression that the marriage between the parties had irretrievably broken down and, therefore, thought that a reasonable settlement in terms of money was probably the only solution of the problem presented by this case but the wife emphatically refused the offer of any money and expressed her keen desire to go back with the child to live with the husband, to the point of breaking down and weeping in the process. She was categorical that she would not have a dissolution of the marriage at any cost. I have no reason to doubt the sincerity and the strength of her feelings on the point. 8. The husband had filed an application for admission of the torn pieces of two documents to which the husband and the wife were both Parties. The first one of these documents showed that there were disputes between the parties and ultimately on 14th Nov., 1971 the wife separated and went to live with her daughter at her parental house and that since it was not possible for the two of them to live together on account of disputes between them, they appointed four persons as Panchas for resolving and settling the dispute between them. The other document is an agreement between the husband and the wife which purports to record that the Panchas had decided that the husband would deposit Rs. 17,000/- in fixed deposit for the marriage of the daughter and would also return all the things which had been received by the wife from her parents side in dowry which were still with the husband and that the marriage between the two was dissolved. 17,000/- in fixed deposit for the marriage of the daughter and would also return all the things which had been received by the wife from her parents side in dowry which were still with the husband and that the marriage between the two was dissolved. The document further goes to record the agreement between the parties dissolving the marriage on the said terms. It was lastly declared that the wife was not in need of any money for her maintenance because she was employed as a teacher and her salary was sufficient for her maintenance. In the affidavit filed in support of the application it was said that both the agreements were executed in the Raj Satsang Bhawan of which Smt. Raj Gulati is the Guru and were left with her so that the husband could bring the money and other things to be handed over to the wife but when he reached there in the evening, the wifes brother desired first to read the agreement. He then insisted on payment of Rs. 25,000/- to which the husband did not agree. The wifes brother Khairati Lal thereupon tore the documents to pieces and threw the same in the lap of the Guru Smt. Raj Gulati and left the Satsang Bhawan with the wife that the Guru Smt. Raj Gulati left for United States of America in the last week of Oct., 1981, but before leaving, she handed over an envelope to the husband saying that she had kept the same in trust but now that she was not likely to return, she was handing it over to the husband with the direction that he should look after the daughter and also arrange her marriage when she came of age. On returning home the husband tried to reset the torn pieces and found that he could put the two documents together that had been torn as aforesaid. The husband has sworn that he had no knowledge about the existence of the torn pieces until they were handed over to him by Smt. Raj Gulati in October, 1981. It was contended that the evidence was material and relevant. The allegations were controverted by the wife. The husband has sworn that he had no knowledge about the existence of the torn pieces until they were handed over to him by Smt. Raj Gulati in October, 1981. It was contended that the evidence was material and relevant. The allegations were controverted by the wife. She stated that the husband wanted to put pressure upon her to sever the relations and it was with that object that he had sought the good offices of Smt. Raj Gulati and being her disciple and having absolute faith in her she left the matter in her hands, but it was absolutely wrong to say that she ever agreed to refer the dispute to the four Panchas. There never was any award and the wife was defrauded into believing that Guru Mata would arbitrate and when the typed documents were brought to her, she signed them without reading or knowing their import, but when the matter was brought to the notice of Guru Mata she directed that the documents be torn. The husband had collected the torn pieces then and there and was keeping them with him. It was then alleged that the documents were prepared in advance by the husband and her signatures had been obtained thereon by misrepresentation and fraud and as soon as the fraud came to light, Guru Mata had asked those documents to be torn. The story that the documents were given to the husband by the Guru Mata when she left for America in October, 1981, was a cock and bull story. Even so, the documents were, it was contened wholly irrelevant and had no bearing on the merits of the case and since the husband had all through been in possession of them, they could not be admitted at this stage. 9. When the hearing of the appeals commenced before me the application for admission of these documents was the first to be taken up. That was on 1st February, 1982. There is a reference in the written statement of the wife to an alleged offer made by the husband through Smt. Raj Gulati for Payment of Rs. 17,000/- and the return of the ornaments and clothes to the wife as the price for the dissolution of the marriage tie and her refusal to sign the agreement which she was required to sign in that connection. 17,000/- and the return of the ornaments and clothes to the wife as the price for the dissolution of the marriage tie and her refusal to sign the agreement which she was required to sign in that connection. The agreements did show that the husband had offered to pay Rs. 17,000/- for being kept in fixed deposit for the marriage of the daughter and to return the ornaments and things given to the wife as dowry by her parents as a consideration for her agreeing to a dissolution of the marriage. While in the written statement she had pleaded that she refused to sign the agreements, the two documents produced along with the application made in this Court bore signatures which purported to be hers and the genuineness of those signatures was admitted. The plea taken in the counter-affidavit for explaining the signatures was that she was made to sign by fraud and misrepresentation and as soon as the same came to light the documents were torn on the orders of Guru Mata Smt. Raj Gulati. As to the relevance of these documents they could not be used as evidence of separation between the parties for arbitrators cannot dissolve a Hindu marriage in the manner suggested by these documents, and at any rate the two document having been torn to pieces they ceased to be legal instruments, and were to have no legal force whatsoever. However, learned counsel for the husband did not propose to rely on the documents as evidence of settlement of dispute between the parties or the terms of which it had been settled, but only wanted to rely on an identical averment in both the documents as an admission of the wife. That averment is in the following terms. "Baadahu ham fareeq awwal aur doyam ke bich kuchh jhagre apasi paida ho gaya jo barhte gaye aur bilakhir 14th November, 1971 se mai fareeq awwal alag hokar apni larki uprokt ke saath apne maike Nehru Nagar (Mirapur) Shahar Allahabad chali gai aur abhitak vahin rah rani hun. Fareeq doyam ke yahan vapis nahin gai. "Baadahu ham fareeq awwal aur doyam ke bich kuchh jhagre apasi paida ho gaya jo barhte gaye aur bilakhir 14th November, 1971 se mai fareeq awwal alag hokar apni larki uprokt ke saath apne maike Nehru Nagar (Mirapur) Shahar Allahabad chali gai aur abhitak vahin rah rani hun. Fareeq doyam ke yahan vapis nahin gai. Chunki ham fareeq awwal va doyam ke bich jhagre Rayam rahene se bhinn bhinn ki kharaibiyan va buraiyan hair our ham har do fareeq ki zindigi nasht va barbad ho rahi hat." Since the papers were referred to in the wifes written statement, the only question which remains to be answered for the admissibility of these documents was the question whether they could not after the exercise of due diligence be produced by the husband before the trial Court. On a consideration of the entire pros and cons of the matter and the fact that the only thing sought to be relied upon was the so-called admission said to be contained in the documents and the further fact that there was a discrepancy in the date from which the parties were living separately according to the admission contained in the two documents (14th November, 1971), and the date of separation as admitted in the pleadings of the parties in the case (14th October, 1971) I thought it fit to admit the documents for whatever they were worth, and having indicated my views in the matter to the learned counsel, the argument proceeded, but on the next date a different counsel was instructed by the husband from the one who had appeared for him earlier in the case and an application supported by an affidavit was filed praying that I should pass orders taking the documents on the record before proceeding further with the hearing. I accordingly passed an order on 8th February, 1982, admitting the two documents in evidence subject to the observations made in that order. They have been marked as Exts. H.C.I. and H.C.II in this Court. I accordingly passed an order on 8th February, 1982, admitting the two documents in evidence subject to the observations made in that order. They have been marked as Exts. H.C.I. and H.C.II in this Court. As the hearing proceeded the discrepancy in the date of separation as contained in the two documents and that admitted between the parties in the case was pointed out to the learned counsel for the husband, and he was asked to clarify his stand on the point, on full consideration and after taking instructions in the matter, learned counsel for the husband appellant in this Court stated that the correct date of the separation between the parties was 14th November, 1971, and the date 14th October, 1971 given in the original petition as the date of the commencement of the separation between the parties was wrong and the date of the accrual of the cause of action given in paragraph 14 of the petition was also wrong. The appellant was thereupon permitted by me to amend the same. The result has been that according to the petition as it now stands after the amendment, the date on which the wife is said to have left the husbands place is not the 14th October, 1971, but the 14th November, 1971 and the date of the accrual of the cause of action for the petition for divorce is not the 14th October, 1973 but the 14th November, 1973. 10. The amendment was made with the full knowledge that all through, the case of the husband in the lower court has been that the wife left his place on the 14th October, 1971, the husband has sworn that (14th October, 1971) to be the date of separation on oath. The wife has on the other hand sworn that she was turned out of his house by the husband on 14th October, 1971. I. find it impossible to accept that there was any mistake about the date in the pleadings of the parties or their sworn statements in the lower Court. I hold that the date of separation given in the two documents filed in this Court as the 14th November, 1971, was probably a mistake. I. find it impossible to accept that there was any mistake about the date in the pleadings of the parties or their sworn statements in the lower Court. I hold that the date of separation given in the two documents filed in this Court as the 14th November, 1971, was probably a mistake. It may be that the mistake was accidental and instead of specifying the correct date of separation between the parties as 14th October, 1971, the date 14th November 1971 was scribed by the person who typed, or who drafted the two documents. It is not necessary to probe into the matter any further, for, I am of the opinion that the so-called admission contained in these two documents that has been relied upon by the husband does not advance his case at all. On the other hand it only shows that staying apart by the wife after 14th October, 1971 or 14th November, 1971, was not without the consent of, or against the wishes of the husband, rather it was with his consent. At any rate the continuance of separation after the date of these documents, that is, 31st January, 1976, would be a consensual and not at the will of one party against the wish of the other. The parties could be deemed to be living separately after that date, by mutual consent. 11. I have already referred to the allegations made in the original petition in some detail. The relevant Clauses of Section 13 of the Hindu Marriage Act, 1955 as they stand now after the 1976, amendments, are : "13. (1) Any marriage solemnized 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:- (i) ...... ...... ...... ...... ...... .... ... (1) Any marriage solemnized 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:- (i) ...... ...... ...... ...... ...... .... ... (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 preceding the presentation of the petition;...." Prior to the 1976 amendments "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" was the second ground for judicial separation, and desertion of the petitioner for a continuous period of not less than 2 years immediately preceding the presentation of the petition, was the first ground for judicial separation. None of them were grounds for divorce. That was the reason why the petition as originally presented in February, 1976 was for judicial separation, and was converted into a petition for divorce by amendment in view of the amendment of the law by Marriage Laws (Amendment) Act, 1976. Sec. 39, thereof, which made provision for amendment of pleadings in pending cases in the light of the amendments brought about by it. The ground of cruelty was also specifically added by the said amendment of the petition Before the said amendment, Judicial separation was sought on the single ground of desertion. No fresh facts were, however, added in the petition in support of the ground of cruelty so raised by the amendment. In considering the meaning and connotation of cruelty in the context of these facts, it is doubly relevant to see whether the dropping of the words such 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, from the definition of cruelty as a ground for judicial separation while transmitting it into a ground of divorce by the 1976 amendment has brought about any significant or substantial difference. 12. It cannot be disputed that the remedies provided by our law in the Hindu Marriage Act and the terminology used therein has been taken from the English Law. 12. It cannot be disputed that the remedies provided by our law in the Hindu Marriage Act and the terminology used therein has been taken from the English Law. Cruelty used to be a ground for judicial separation, or divorce a mensa et thoro, as it was called in the terminology of the English law, and still continues to be one of the grounds for judicial separation under Section 22 of the Indian Divorce Act, 1869. So far as that Act is concerned, it applies to Christians in India. There is no change in the law and cruelty by itself alone is still not a ground for dissolution of a marriage by a decree of divorce under that Act. Under that Act so far as the husband is concerned the sole ground for dissolution of marriage by a decree of divorce is that the wife has since the solemnization of the marriage been guilty of adultery, but so far as the wife is concerned she may file petition for dissolution of the marriage on the ground, among others that the husband has since the solemnization of the marriage been guilty of adultery coupled with such cruelty as without adultery would have entitled her to a divorce a mensa et thoro. 13. It was plain that the English law did not regard cruelty of the wife to be a ground for dissolution of a marriage by a decree of divorce at the instance of the husband, but so far as judicial separation was concerned either the husband or the wife could obtain a decree of judicial separation on the ground of cruelty by the other party. Since the effect of a decree of judicial separation was to suspend the obligation of the couple to cohabit with each other, it was held by the Courts that judicial separation could be decreed on the ground of cruelty where the conduct of the respondent was such as to give a reasonable apprehension to the wife that it would be harmful or injurious for her to continue to five and cohabit with the husband. It appears to me that it was for this reason that while defining cruelty as a ground for judicial separation under the Hindu Marriage Act, it was said that cruelty should be such 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. Under the English Matrimonial Causes Act, 1950, Sec.1(1)(c) a petition for divorce could be presented either by the husband or the wife on the ground that the respondent "has since the celebration of the marriage treated the petitioner with cruelty." The provision was earlier contained in Section 2 of the English Matrimonial Causes Act, 1937. Before the passing of the Divorce (Scotland) Act, 1938, cruelty was a ground for judicial separation but by that Act cruelty in order to be a ground for divorce had to be such "as would justify, according to law and practice existing at the passing of this Act, the granting of a decree of separation." The above provision of the Scottish law came up for consideration before the House of Lords in Jamieson v. Jamieson 1952 AC 525; and while holding that there was no divergence in principle between the law of Scotland and the law of English as regards the kind or degree of cruelty necessary for divorce, Lord Reid defined cruelty thus; "I read the appellants averments as alleging a deliberate course of conduct intended to wound and humiliate the appellant and persisted in by the respondent although it was obvious that this was seriously affecting the appellants mental and physical health. It is true that the appellants case does not appear to have been presented in this light to the first Division; the arguments there presented appear to have been that any conduct by one spouse which injures the health of the other is cruelty whatever may have been the intention of the defendant. I am not surprised that the First Division rejected this argument. But there can hardly be a more grave matrimonial offence than to set out on a course of conduct with the deliberate intention of wounding and humiliating the other spouse and making his or her life a burden and then to continue in that course of conduct in the knowledge that it is seriously affecting his or her mental and physical health. Such conduct may consist of a number of acts each of which is serious in itself, but it may well be even more effective if it consists of a long continued series of minor acts no one of which could be regarded as serious if taken in isolation. Once it is established that physical violence is not a necessary ingredient of cruelty and I think that that has long been recognized by the law of Seotland - then I can see no justification in principle for requiring that the deliberate acts of the defendant must be of a certain character, and I know of no authority which requires me to make any such distinction". 14. When cruelty was made a ground for divorce for the Hindus by the Matrimonial Laws (Amendment) Act, 1976, the language employed by Parliament is the same as that employed by the British Parliament when cruelty was made a ground of divorce by Matrimonial Causes Act, 1937. Under the circumstances I think that cruelty as a ground of divorce must be given the same meaning or nearly the same which it is given in England, save and except for the essential differences which are bound to arise in applying that meaning to Hindus in our social conditions which are in many respects quite different from the conditions prevailing in England. It cannot also be forgotten that the concept of cruelty has not remained static over the years. It has changed with the changing norms of society and in some respects even a change in human values from one generation to another. 15. Lest, I may be misunderstood, it is necessary to refer to the law declared by the Supreme Court in Dr. N.G. Dastane v. Mrs. S. Dastane AIR 1975 SC 1534 , paras 30, 31, 32 and 33 at pages 1540-41. The Supreme Court was dealing therewith Section 10 (1) (b) of the Hindu Marriage Act as it stood before the Amendments made by the Matrimonial Laws (Amendment) Act, 1976. It observed that: "An awareness of foreign decisions could be a useful asset in interpreting our own laws. But it has to be remembered that we have to interpret ... The Supreme Court was dealing therewith Section 10 (1) (b) of the Hindu Marriage Act as it stood before the Amendments made by the Matrimonial Laws (Amendment) Act, 1976. It observed that: "An awareness of foreign decisions could be a useful asset in interpreting our own laws. But it has to be remembered that we have to interpret ... a specific provision of a specific enactment..." and after quoting Section 10 (1) (b) it observed: "The inquiry therefore 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. It is not necessary, as under the English law, that the cruelty 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." The ground for divorce is the same as it used to be in the English law between 1937 and 1973. The change between the language employed for making cruelty a ground for judicial separation and that employed for making it a ground for divorce is the same as that between the language of the ground for judicial separation and that of the ground for divorce under the English Law. Therefore, one possible effect of the deletion of the words "such 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," could be that cruelty as a ground for divorce has to be of such a character as to cause danger to life, limb or health and such as to give rise to a reasonable apprehension of such danger, which, as the Supreme Court has observed, "is a higher requirement than a reasonable apprehension that it will be harmful or injurious for one spouse to live with the other". 16. It is well settled that cruelty may be physical or it may be mental. 16. It is well settled that cruelty may be physical or it may be mental. The essence of it is that it should be such as to cause injury to the body, mind or health of the petitioner. The question is whether the dropping of the words "such 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," from the clause defining cruelty as a ground for divorce brings about any difference in the meaning of or the kind or degree of cruelty required to be established for divorce. It is obvious that the apprehension of harm or injury in the mind of the petitioner had to be with regard to the future so that if cruelty was made a ground for judicial separation it had to be established that there was a reasonable apprehension in the mind of the petitioners of harm or injury in the future at the hands of the respondent. It may be that it the respondent established that although his conduct in the past might have caused some injury or harm to the body, mind or health of the petitioner, there was no apprehension of any such harm or injury in the future, and it may be that on proof of that a court might have, in its wisdom, refused a decree for judicial separation under S.10 of the Hindu Marriage Act, as it stood before the 1976 amendment; but does that amount to saying that cruel treatment of the petitioner by the respondent, as a ground for divorce, has to be established only with reference to the past, and a decree for divorce must be granted even if it is established by the respondent that there is no reasonable apprehension of any harm or injury in the future? I do not think that the provision could be construed that way, for S.23 (1) (e) requires that in any proceeding under the Act whether defended or not, it the court is satisfied that there is no other legal ground why relief should not be granted, then, and in such a case, but not otherwise, the court shall decree such relief accordingly. This shows that even it a ground for relief is technically made out, it remains the duty of the court to see that there is no other lawful ground for refusing relief and in a given case, relief may be refused on some such lawful ground even it the ground on which the relief could be granted has been made out. Moreover, the jurisdiction of a matrimonial court is remedial. It is not punitive. Grounds for divorce or other matrimonial relief are grounds for relief, meant to remedy and resolve a human problem in a human manner. Grounds of divorce are not offences for which a decree of divorce may be meted out as a punishment, for, it is the innocent party who suffers most by a decree of divorce. I am, therefore, of the view that cruelty in order to be a ground for divorce must be some such conduct of the respondent as gives the petitioner a reasonable cause of apprehension of injury to body, mind or health in the future. Past conduct is undoubtedly relevant as it forms the very basis of the reason for the apprehension of the injury or harm in the future. 17. Coming to the facts of the present case it appears clear to me that a case of cruelty cannot be said to have been made out at all. All that was suggested was that the wife was quarrelsome. It has not been shown that the husband suffered in body, mind or health, in any manner whatsoever, on account of the wifes conduct. Cruelty can be mental; but when one speaks of mental cruelty as distinct from physical cruelty, the idea is to show that while in the case of physical cruelty, harm or injury inflicted is to the body directly, in the case of mental cruelty, the harm or injury caused is through the mind, but nevertheless it is a harm or injury caused to the human body. The injury when caused to the physical body is something which could be perceived by the senses but when it is caused mentally, the result of it may appear later on by affecting the health of the person to whom it is caused. Every mental tension cannot amount to infliction of mental cruelty. The injury when caused to the physical body is something which could be perceived by the senses but when it is caused mentally, the result of it may appear later on by affecting the health of the person to whom it is caused. Every mental tension cannot amount to infliction of mental cruelty. It must be shown that the injury inflicted through the mind of the petitioner has affected his health, or that the future repetition of that injury is most likely to affect his health. The facts of this case do not show that any such mental injury was caused to the husband by the alleged quarrelsome nature of the wife. 18. Learned counsel for the appellant-husband, however, relied on two cases: (1) of the Karnataka High Court in Dr. Srikant Rangacharya Adya v. Smt. Anuradha: AIR 1980 Kant 8; and (2) in Smt. Shakuntala Kumari v. Om Prakash Ghai; AIR 1981 Delhi 53. The facts of those cases are wholly distinguishable from the facts of the present case. It is not suggested that the wife denied sexual access to the husband or that her doing so had affected the husbands health adversely. 19. The next point for consideration is whether the wife could be said to have deserted the husband for a continuous period of not less than 2 years, immediately preceding the presentation of the petition. It is undisputed that the parties have been living separately from each other since 14th Oct., 1971. The husbands house was the matrimonial home in this case. The wife is not living there. She appears to have been living with her brothers, but now on her own in a separate house with the daughter, the only child of the marriage. The question is, could it be said that she has withdrawn herself from the society of the husband against the latters wish or without his consent and without there being any reasonable excuse for the same? As stated in Halsburys Laws of England, 4th Edition Vol. 13, paragraph 576 (page 284): "Desertion is not the withdrawal from a place but from a state of things, for what they ask to enforce is the recognition and discharge of the common obligations of the married state; the state of things may usually be termed, for short, "the home". Further, the person who actually withdraws from cohabitation is not necessarily the deserting party." 20. Further, the person who actually withdraws from cohabitation is not necessarily the deserting party." 20. According to the law declared by the Supreme Court in Bipinchandra Jai Singhbai Shah v. Prabhavati, AIR 1957 SC 176 in order to make out desertion, two essential conditions must exist in so far as the deserting spouse is concerned, namely; (1) the factum of separation; and (2) the intention to bring cohabitation permanently to an end (animus deserendi); and similarly two elements are essential so far as the deserted spouse is concerned, namely; (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the other spouse for forming the aforesaid intention of bringing cohabitation permanently to an end. The observations of the Supreme Court in the subsequent cases in Lachman Utamchand Kirpalani v. Meena, AIR 1964 SC 40 and in Smt. Rohini Kumari v. Narendra Singh AIR 1972 SC 459 ; are to the same effect. The trial court has on an appraisal of the evidence on the record believed the wife. I myself looked into the evidence and find that the witnesses produced by the husband were dot up witnesses. It is not true that the wife left the husbands place with all her ornaments and clothes without the consent of the husband on 14th Oct., 1971, and has not returned to his place and is living away without any reasonable excuse for the same. The cause of the wifes living away is the husband himself and the ill-treatment which he meted out to her. Since I agree with the finding arrived at by the trial court, I need not detail and discuss the evidence. Suffice it to say trial the trial court had the advantage of hearing the evidence and watching the demeanour of the witnesses which I did not have. As to the so-called admission contained in the two document filed in this Court, it appears clear to me that the statement relied upon which has been quoted hereinabove, could at best amount to an agreement between the parties to live apart. It could by no stretch be treated to be an admission of the wifes act of putting cohabitation to an end with the intention of doing so permanently, and against the consent of the husband and without his having afforded a reasonable excuse for the same. 21. It could by no stretch be treated to be an admission of the wifes act of putting cohabitation to an end with the intention of doing so permanently, and against the consent of the husband and without his having afforded a reasonable excuse for the same. 21. The result is trial the appeal from the decree dismissing the petition for dissolution of the marriage by a decree of divorce, must be dismissed. As to the other appeal for custody of the child, I do not think that on the facts and in the circumstances of the case any ground has been made out for the change of the custody of the child, and that must also be dismissed. Indeed the dismissal of the petition for divorce having been maintained and no decree of divorce or any of the other kind of decrees contemplated by Hindu Marriage Act, having been passed, the question of making an order for the custody of the child of the marriage, under S.26 of the Hindu Marriage Act, does not arise in the present case. 22. In the result both the appeals fail and are dismissed. No order is made as to costs, but the amount of Rupees 400/- awarded for the expenses of the proceedings by my order dated 30th Sept., 1981 in first Appeal No. 23 of 198l may be appropriated towards the costs of the proceedings by the wife. Appeals dismissed.