Jagadish Chatterjee v. Dipali Chatterjee — 1985 DIGILAW 393 (CAL)

JUDGMENT Manas Nath Roy, J. 1. This Matrimonial appeal from Original decree is directed against the judgment and decree dated 18.8.1984, made in Matrimonial Suit No. 90 of 1981, by Shri S.S. Pandey, learned Second Additional District Judge, Howrah, dismissing thereby the appellant husband's suit for a decree of divorce against the Respondent wife and for a further directions on her to return the golden ornaments received from the appellant and his family members. 2. It is an admitted fact that the marriage between the parties took place according to Hindu rites and custom on 15.7.1970 and thereafter, they resided at 9/3, Olabibitala Lane, P.S. Sibpur. The Appellant husband claimed that the Respondent wife was given 15 total of golden ornaments by him and his relations and at the time of such marriage, the Respondent wife was an employee of the Postal Department and still she is so. It was also his case that after about one month of the marriage and more particularly on 16.8.1979, he had left for his place of posting at Secendrabad and immediately thereafter, or more partionlarly in December 1970, the Respondent wife left the matrimonial home and started living with her mother at 73/1, Khetra Mitra Lane, Salkia, Howrah. It is an admitted fact that out of the wedlock of such marriage, on or about 23.4.1971 corresponding to 9th Baisakh 1378 B.S., the Respondent wife gave birth to a female child, who is now staying with the mother and prosecuting her studies in School. 3. It was the allegation of the Appellant husband that the Respondent wife was extremely quarrelsome in nature and on slightest provocation, she used to use abusive and ill temperate language against him and sometimes in fit of rage, she used to throwaway and break crockeries and utensils and even, sometimes she used to hit him with fists and blows. According to the Appellant husband, he was a civilian employed in the Defence Service and after resigning from his services from the Indian Army on 26.7.1971, he came back to his house as mentioned above and thereafter, he got an employment in the West Bengal State Electricity Baud on 26.5.1973. According to the Appellant husband, he was a civilian employed in the Defence Service and after resigning from his services from the Indian Army on 26.7.1971, he came back to his house as mentioned above and thereafter, he got an employment in the West Bengal State Electricity Baud on 26.5.1973. It has further been alleged that from the very date of the marriage, the Appellant husband found the Respondent wife, to be indifferent to her household duties or towards the duties and obligations of a house wife and in fact, she considered to attend to such duties and obligations as below her dignity and even after the birth of the daughter, the Respondent wife continued with such attitude and behaviour. It has further been alleged that the Respondent wife used to create scene by calling the neighbours and that too with the specific intention and purpose to belittle him and his family members. 4. Apart from the above, it has also been alleged that after the marriage, the Appellant husband noticed the coldness on the part of the respondent wife, in the matter of performance of her marital duties and often she used to say that she had avertion to sexual intercourse and in fact, during intercourse, the husband found her to be frigid and she also disliked normal intercourse. It was the specific and further allegation of the appellant husband that he could have sexual intercourse after great pursuation but even on such occasions, the Respondent wife used to prefer and insisted on "coitus interruptus" and that according to the Appellant husband caused serious injury and harm to his nervous system and health. It was also suggested that the appellant husband had to resign from his service as indicated hereinbefore as, because of the happenings as above, which caused his mental strain and for which he had lost his power of concentration or became a mental wreck and he felt that it would no more be possible for him to serve efficiently and with credit. It has been stated that ultimately on 10.5.1972 which corresponds to 27th Baisakh 1379 B.S., the respondent wife permanently left her matrimonial home with her daughter and that too without the consent of the appellant husband and while so leaving, she took away with her, all her cloths, belongings and ornaments and that apart, at the time of such leaving the matrimonial home, the respondent wife expressed her intention not to come back to the matrimonial home and she, in fact severed all her connections with the appellant husband and his family. 5. It has been pleaded that the respondent wife left the matrimonial home solely on her own and with the intention to live separate from the appellant husband and that too with the intention to bring cohabitation with him to an end permanently. In fact, it has been said that thereafter, the Respondent wife has neither returned back to the matrimonial home nor resumed cohabitation with the appellant husband and in fact, she has deserted the husband for more than two years immediately prior to the presentation of the concerned matrimonial proceeding which was on 29.7.1981. It has also been asserted, that the respondent wife has treated the appellant husband with such cruelty so as to cause reasonable apprehension in his mind that it would be harmful and injurious for him to live with her. It has been alleged further that in or about August 1973, the respondent wife went to the office of the appellant husband and insulted him in the presence of other staff and then in June 1981, she again insulted the appellant husband in his office in the presence of other collegues and thereafter, on 18.7.1981, she again went to the office of the husband and this time, she not only insulted him in the presence of others, but also demanded Rs. 50,000/- for settling the dispute. It should also be noted that it was also pleaded that within the period as indicated above, the respondent wife, in or about May 1981, went to the house, of Shri Sailesh Mukherjee, a relation of the Appellant husband and there also, she not only insulted the husband, but claimed Rs. 40,000/- for settling the dispute. It should also be noted that it was also pleaded that within the period as indicated above, the respondent wife, in or about May 1981, went to the house, of Shri Sailesh Mukherjee, a relation of the Appellant husband and there also, she not only insulted the husband, but claimed Rs. 40,000/- for settling the dispute. In the background as above, the Appellant husband filed the Matrimonial Suit for divorce on the grounds of cruelty and desertion under sections 13(1),(1A)(1) and (1b) read with section 13A of the, Hindu Marriage Act, 1955 (hereinafter referred to as the said Act.) 6. In her defence, the respondent wife, apart from denying the material allegations claimed that she never behaved in such a manner, for which the husband could have suffered any mental or physical shock and setback. She also claimed to have performed and satisfied all her marital duties and obligations. It was her case that she has never deserted the husband and the story would be other way round as the appellant husband and the members of his family, not only used to ill treat her but they also tortured her and did all sorts of acts, which could be termed as or performing on her both mental and physical cruelty. In fact, she has stated that her husband used to kick her, give, her fists and, blows, apart from abusing her in most filthy languages and at time, according to her, she was not provided with food. It was also her case that prior to the marriage, she was a part time temporary• stamp vendor at Howrah Station at a megre monthly salary of Rs. 80/- and after her marriage, she was forced to resign from that post. It was complained that such acts and actions were taken and directed against her on the allegations that her brother was not sending periodical gifts. The Respondent wife has also claimed that apart from the above, she was not allowed to wear any ornaments. 7. It was also her case that in Baisakh 1373 B.S., she and her daughter were sent to her brother's place or were forced to leave the matrimonial home and since then, the appellant husband has not even taken any information about them. 7. It was also her case that in Baisakh 1373 B.S., she and her daughter were sent to her brother's place or were forced to leave the matrimonial home and since then, the appellant husband has not even taken any information about them. It was the case of the Respondent wife that thereafter, on or about 22.3.1979, she has secured a temporary job at Andul Local Post Office as a temporary E.D.M.P. at a monthly remuneration of Rs. 140/- and she further claimed that she was not a quarrelsome lady as alleged and such character can only be applied and attributed to the Appellant husband and the members of his family. She also denied to have shown temper either to the husband or any member of his family and it was her specific case, that she never expressed her intention not to allow him to have sexual intercourse or any callousness towards or during the same or that the ever desired to have coitus interruptus as alleged. It has further been alleged by her that while at the matrimonial home the appellant husband had treated her with almost cruelty and not only so, when she was hospitalized, the husband took no care for her. 8. On the pleadings as above, the learned Court below framed the following issues:- 1. Is the respondent guilty of mental and physical cruelty by her conducts as mentioned in the plant? 2. Has the respondent described the matrimonial company of the petitioner without any lawful excuse? 3. Is the plaintiff entitled to a decree of divorce on his marriage with the respondent? 4. To what other relief or reliefs, if any, is the petitioner entitled? For determination and issue Nos. 3 and 4 were answered in the negative and against the appellant husband since the other two issues, on consideration of evidence and submissions had the same fate i.e. as they were answered against the husband. 9. Admittedly, the concerned proceeding was filed on account of cruelty, both physical and mental, said to have been suffered by the appellant husband at the instance of the respondent wife and it was claimed that the wife had deserted the husband since April 1972. 9. Admittedly, the concerned proceeding was filed on account of cruelty, both physical and mental, said to have been suffered by the appellant husband at the instance of the respondent wife and it was claimed that the wife had deserted the husband since April 1972. There was or has been no dispute about the date and manner of marriage and that at that time, the appellant husband was in the Army and the respondent wife was also employed in the manner as indicated hereinbefore. There has also been no dispute about the posting of the appellant husband at Secendrabad at the relevant time and that, after such marriage, the parties lived together for one month and then, the husband had to leave for his place of posting and thereafter, the husband came to Calcutta for a day in December 1970 and that in April 1971, the only daughter was born. The allegations of leaving the matrimonial home by the respondent wife as alleged in the proceeding have been indicated hereinbefore. There is also no doubt that at present the respondent wife is also employed and so also the appellant husband, in the manner as stated hereinbefore. 10. The appellant husband has claimed to have been discharged from the Army Service in July 1971, but the fact of such discharge from service, was disputed by the respondent wife and she claimed that the husband was dismissed from his service and for that reason, according to the wife, the husband had a mental shock and for that also, he was not in a position to lead a normal marital life and to secrete such shortfall on his part, the appellant husband has brought the other allegations of sexual intcompetence and incapacity against her. In fact, she claimed that those allegations were void, baseless and without any substance and it was her case, that on the return of the husband from Secendrabad, she tried to have sexual intercourse, but the husband refused and declined to have the same. According to the wife the reasons as indicated hereinbefore were the cause of such indifference of the Appellant husband. According to the wife the reasons as indicated hereinbefore were the cause of such indifference of the Appellant husband. On the basis of the pleadings and so also on the basis of the evidence as available, we feel and find that the allegations as made and brought against the respondent wife were really without any basis or they have been belied by the fact that the respondent wife, after her marriage and staying with the Appellant, husband gave birth to the daughter and particularly when the husband has not denied her parentage. That apart, we feel that on the basis of the meaning of Coitus interruptus, which was a specific case of the husband against the wife, his further allegations that she was frigid, cannot stand the legal or any test and in fact the allegations of frigidity of the wife cannot go side by side with the other allegations that the wife was interested in coitus interruptus as the very meaning of that term as, indicated earlier, would be against frigidity. Which means partial or complete in ability of the female to be aroused sednally or to achiul orgasm. It should of course be noted that after his discharge from service on between July 1971 to April 1972 the parties to this proceedings lived in the house for the period of 8 or 9 months and since their relationship was so strained, they did not even share the same bed. Since for this 8 or 9 months the appellant husband could not have any marital intercourse, Mr. Dey contended that the husband had thus to suffer in the manner as quoted hereinbefore find this fact, according to him, was not considered by the learned Court below. 11. The husband, as indicated hereinbefore, advanced the ground of cruelty and while considering the case as sought to be made out on cruelty we feel that the learned Court below was not wrong in returning a verdict against such allegation as made or brought by the appellant husband and that too for the reasons as indicated in the judgment. We should of course remember that all the allegations were categorically denied by the Respondent wife and• her incapacity or ineffectiveness in the matter of discharging marital obligation, in our view on the face of the materials on records and our findings as above, have not been proved. We should of course remember that all the allegations were categorically denied by the Respondent wife and• her incapacity or ineffectiveness in the matter of discharging marital obligation, in our view on the face of the materials on records and our findings as above, have not been proved. In fact, the case of the respondent wife, as to how and why such marital obligation could not be discharged, have been indicated by us in the early part of this judgment and we feel that such case as sought to be made out or which was really proved, would further establish, that there were not basis for the allegation about the physical or mental incapacity as brought against her. 12. It is true and as observed by the learned Court below, that on the basis of the determination in the case of Smt. Kamala Devi vs. Balbir Singh, AIR 1979 Jammu & Kashmir 4, under section 10(1)(b) of the said Act cruelty need not be mere physical. In that case it has also been observed that if from the conduct of his spouse, it is established or on inference it can legitimately and reasonably be drawn that the treatment by his spouse is such that causes an apprehension In the mind of the other spouse on the mental welfare, then that conduct would amount to cruelty within the meaning of section 10 of the said Act. Thus, on the basis of the evidence, we shall have to find out whether cruelty in the instant case, on the part of the Respondent wife or as alleged against her, has been established or if such cruelty can be attributed against the appellant husband. It was the case of the husband that the wife was a woman of quarrelsome nature and she was in the habit of picking up quarrel with other members of the family and during such quarrel it was difficult to control her and sometimes she used to go to the length of breaking the utensils or even attempting to make physical assult on the husband. The learned Judge of the Court below had the occasion to look at the respondent wife and considering her structure and so also the condition of her health and correspondingly the health of the appellant husband came to the conclusion that it was not possible for the wife to cause any physical harm to the husband. That apart, the learned Court below has also observed that the Respondent wife was found to be soft spoken and she did not have the capacity to inflict such assult as indicated hereinbefore, on the husband. Such view was expressed by the learned Court below after, as mentioned hereinbefore, looking at the Respondent wife while she was in the witness-box and after considering her demeanows also the learned Court below had observed that it was not even possible for her to shout loudly as alleged by the appellant husband. The Respondent wife was born and has brought up in a lower middle class family. The learned Court below has observed that it was expected that she had no aversion to do household works and the other allegations that she had such aversion, because she was working as stamp vendor at the relevant time, had no basis. Admittedly, the only daughter was born in April 1971 and the respondent wife had left the husband's house in May 1972 and considering the period as involved, the learned Court below has observed that during such period and after the birth of the daughter, perhaps the Respondent wife was physically incapable of doing physical work in the house. In any event, the wife has of course denied that she refused to do any household work and we find no appropriate evidence to disbelieve such statement or to accept the allegations as brought against her by the appellant husband. 13. The fact that the respondent wife had gone to the appellant husband's office twice and once to the house of another relation Shri Sailesh Mukherjee, cannot be disputed. The reasons for going to the office of the appellant husband and so also to the other place have been indicated. On the basis of the evidence on record and more particularly those of P.Ws. 1, 2 and 3, it is very difficult to hold that the respondent wife went to the office of the husband or to the house of his relation for the purpose of insulting him. On the basis of the evidence on record and more particularly those of P.Ws. 1, 2 and 3, it is very difficult to hold that the respondent wife went to the office of the husband or to the house of his relation for the purpose of insulting him. The witnesses as mentioned herein before, even if were disinterested, it is very difficult, in our view, to rely on their evidence, on the basis of the statement as made or in the manner they had deposed. On the other hand, we find that even though the respondent wife with the only daughter, was living separately from the appellant husband since, April 1972, the appellant husband, even if he was not desirous to meet the Respondent wife for the relationship as was prevailing between them, did even or to meet his only daughter or to enquire about her. In fact, in her evidence, the respondent wife O.P.W.(1) has stated that when she was staying in the matrimonial home with the young daughter and in the manner as indicated hereinbefore, she on being asked for milk for that baby, was also scolded by the husband. This attitude of a father, in our view, was not expected and cannot be accepted. On the basis of the evidence at available, we feel that if the wife was cruel to the husband the attitude of the husband towards the wife and the baby was much more cruel. 14. For the purpose of establishing the calls of nature of the respondent wife, the Appellant husband has not only examined himself, but has also examined his brother Debasish Chatterjee (P.W.5). On the other hand, Susanta Banerjee (O.P.W.2), who is a next door neighbour and O.P.W.3 Nitendra Nath Bose, who was the match maker of the marriage between the parties, deposes to the contrary. O.P.Ws. as mentioned above, were admittedly disinterested and no allegation has been made against them by the husband except a mere suggestion to Susanta Banerjee (O.P.W.2) that he was jealous to the husband. It was suggested against O.P.W.3 Nitendra Nath Bose that since he was a college of the respondent wife's brother so he deposed in favour of the wife. Such suggestion, we are of the view that the learned Court below has appropriately found to be flimsy and without any basis. It was suggested against O.P.W.3 Nitendra Nath Bose that since he was a college of the respondent wife's brother so he deposed in favour of the wife. Such suggestion, we are of the view that the learned Court below has appropriately found to be flimsy and without any basis. In fact, the said Susanta Banerjee (O.P.W.2) live in front of the house of the house of the appellant husband. The house of Shri Banerjee and that of the appellant husband is separated by 6/8 fit wide path and it was his evidence that he saw all the incidents as happened in the house of the appellant husband when the respondent wife had to leave the matrimonial home. It his further evidence that the respondent wife was regularly beaten in the house and sometimes, due to the intervention of the neighbours, she was saved from the rath of the appellant husband. From the position of the two premises as indicated hereinbefore, we feel and that too in agreeing with the findings of the learned Court below, that there was possibility and in fact, the said Shri Susanta Kumar Banerjee could see from his house as to what was happening in the house of the Appellant husband. It is no doubt that the evidence of the two O.P.Ws. as mentioned above, has specifically supported the case of the respondent wife against the appellant husband. Mr. Dey of course claimed that there was no reason or justification to discard or to disbelieved the evidence of the brother Debasis Chatterjee (P.W.5). Since the evidence as tendered through the O.P.Ws. as mentioned hereinbefore, were much more convincing in the circumstances of the case, we feel that the learned Court below had not made any wrong in accepting their evidence in preference to that of Debasis Chatterjee (P.W.5). 15. The conduct of the appellant husband before the learned Court below should also be noticed. It would appear that when he was asked as to whether he was agreeable to accept the respondent wife, he categorically answered in the negative and stated that he was not willing to take her back at that stage. On the other hand, the respondent wife wanted to maintain her status as a Hindu wife and further pleaded that she wanted her sanctity as wife of her husband and to have the daughter maintained by him. On the other hand, the respondent wife wanted to maintain her status as a Hindu wife and further pleaded that she wanted her sanctity as wife of her husband and to have the daughter maintained by him. Such attitude of the appellant husband has also been claimed and considered by the learned court below to be a case of neglect, insult and humiliation of the respondent wife and he has further recorded that such state of affairs had continued for nearly 12 years and the learned Court below has also recorded that during these years, the appellant husband did not even try to know the name of his daughter. We fail to understand and visualize what wrong the daughter has done and what type of father the appellant husband is, so that he will not enquire about his daughter even for a day although he has nowhere denied her parentage. Such being the position, we cannot disagree with the learned Court below that if anyone was treated with cruelty that was the Respondent wife and not the appellant husband. We feel that there is nothing to interfere with the findings of the learned Court below, when it has been observed that considering the health of the respondent wife she was incapable of causing any harm to the appellant husband. We feel, on basis of the evidence as available, that the respondent wife was desirous of leading a happy conjugal life in her husband's family but without any reason or any fault on her part, such desire has not been materialized. 16. Mr. Dey appearing in support of the Appeal claimed that the judgment as impeached was perverse as firstly, the same was based on a case which was not duly put to the witnesses on behalf of the plaintiff or the case as put to them and sought to be established, was different from the pleadings. He secondly, claimed that the decree in the instant ease was refused and the determination was made on a case not pleaded and in fact, through the evidence as recorded, a case which was not pleaded was sought to be established. He secondly, claimed that the decree in the instant ease was refused and the determination was made on a case not pleaded and in fact, through the evidence as recorded, a case which was not pleaded was sought to be established. In fact, he claimed that the case as was made out in the trial by the respondent wife was neither pleaded nor propounded and that being the position, the learned Court below was not justified and authorised in making the determination in the manner as was done. It was then claimed by Mr. Dey, that the summary of the case as has been made out by the learned Court below was of course due and correct, but even then the judgment as impeached would be liable to be set aside for the reasons as indicated hereinbefore. It was his further submissions that as indicated hereinbefore, that the evidence of Debasis Chatterjee (P.W.5) was not considered. 17. Mr. Dey then claimed, that on the basis of the statements of the respondent wife to the effect that the family members excepting my husband and his father used to comment that I was not smart, good looking and well educated that I did not hold from a good family and I did not bring sufficient dowry, I told all this to my husband when he was going to Secendrabad but he assured me that all these comments will not continue for long and every thing would be all right and I never realized during one month staying of my husband that it would not be possible for me to live with his relation, I continued to stay in the house of my husband when he left for Secendrabad, it was really established that the appellant husband was not negligent to the respondent wife initially but Mr. Dey claimed that thereafter, for reasons as recorded hereinbefore, the appellant husband felt that since he was not receiving any marital satisfaction from the respondent wife, it would be of no use to stay with her. 18. In her evidence, the respondent wife (P.W.1) has stated not to have any grievance against her husband as he was very much devoted to his mother. 18. In her evidence, the respondent wife (P.W.1) has stated not to have any grievance against her husband as he was very much devoted to his mother. It was her further evidence that it is not a fact that he was never tortured in the family of the husband and it is also not a fact that she had left the house of the husband voluntarily in 1972. Mr. Dey on reference to the above state of evidence of the said O.P.W.1 claimed that such evidence was contrary to her pleading. He also pointed out that in her evidence, O.P.W.1 had stated to love her husband like a normal wife and it was his neighbours Srikrishna Sinha and Basanta Banerjee knew about the incidence that had happened and they will depose in the case but those persons were, neither called nor have deposed in the case and as such, the case of ill-treatment on the Respondent wife which was sought to be established through her evidence was not absolutely true. To establish that, Mr. Dey relied on the case of A.E.G. Carapiet vs. A.Y. Derderian, AIR 1961 Cal 359 , which has laid down the standard of proof as required under the Evidence Act, apart from laying down that the party should put his case in cross-examination of witnesses of the opposite party and such Rule is one of essential justice and not merely technical one. The said decision has recorded that wherever the oppoment has declined to avail himself of the opportunity to put his essential and material case in cross-examination, it must follow that he believed that the testimony given could not be disputed at all. This is not merely a technical rule of evidence. It is a rule of essential justice. It serves to prevent surprise at trial and miscarriage of justice, because it gives notice to the other side of the actual case that is going to be made, when the turn of the party on whose behalf the cross-examination is being made, comes to give and lead evidence by producing witnesses. This much a counsel is bound to do when cross-examinating that he must put to each of his opponent's witnesses in turn, so much of his own case as concerns that particular witness or in which that witness had any share. This much a counsel is bound to do when cross-examinating that he must put to each of his opponent's witnesses in turn, so much of his own case as concerns that particular witness or in which that witness had any share. It has also been observed in that case, that failure to put the important and crucial part of the case to the witnesses coming to prove testamentary capacity must be held against the party, who fails to take recourse to such procedure. The determination as under consideration, was made on the basis of Browne vs. Dunn, (1893) LR 67, as the same was the most important decision as available on the point. In fact, in that decision of the House of Lords, the learned Judges were all unanimous on the particular point as indicated herein-before. P.B. Mukharji, J. (as His Lordship then was), while making the decision of the Calcutta case as indicated above, has also delt with and discussed the House of Lords decision in paragraphs 11, 12 and 13 of the report. After placing the said Calcutta decision, Mr. Dey submitted and claimed that the tests as indicated there in or which really would be the actual tests, have not been satisfied in the instant case and as such also, the judgment as impeached should be set-aside. While on the documentary evidence, Mr. Dey referred to Ext.3 which is the certificate of service of Jagadish Chatterjee, the appellant husband. He claimed that the said Ext.3 was not also duly considered by the learned Court below. According to him, desertion by the respondent wife was proved on the basis of the evidence as adduced and in not returning a verdict to that effect, the learned Court below had acted illegally, with material irregularity and improperly. As indicated earlier, it was his specific and categorical submission that the judgment as impeached, was perverse for the reasons as indicated herein before. 19. Mr. Chakraborty, appearing for the Respondent wife, while dealing with the submissions of perversity of the judgment as indicated by Mr. Dey placed the plaint and stated that the story about the demand made by the Respondent wife of Rs. 50,000/- and as sought to be proved by the appellant husband, was nothing but a myth, as such story or the particulars of the necessary amount, was not pleaded in the plaint. Dey placed the plaint and stated that the story about the demand made by the Respondent wife of Rs. 50,000/- and as sought to be proved by the appellant husband, was nothing but a myth, as such story or the particulars of the necessary amount, was not pleaded in the plaint. He then referred to the evidence of Jagadish Chatterjee (P.W.4), where initially he has stated that the respondent wife had left his house on his consent and the consent of his superiors, but subsequently in cross-examination, he has stated that she had left his house against his wishes. Such being the state of the appellant husband, Mr. Chakraborty claimed that there was no case of desertion made out or proved by him against the respondent wife and that being the position the findings as arrived at were claimed to be due and appropriate. He then referred to the letter (Ext. A), which is dated 21.1.1971, written by the appellant husband to the respondent wife and from the intrinsic evidence as available from that letter, Mr. Chakraborty pointed out that there was nothing to establish that the respondent wife was hostile to the family. On the other hand, the evidence as appearing from that letter he claimed would establish that the wife was not hostile to the family. That was also a case, for which Mr. Chakraborty claimed, that the findings of the learned Court below were due. 20. On the basis of the pleadings and the findings of the learned Court below Mr. Chakraborty claimed that Section 10 of the said Act which is to the following effect:- 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 any of the grounds specified in sub-section (1) of section 13 and in the case of wife also on any of the grounds specified in sub-section (2) thereof, as grounds on which a petition for divorce might have been presented. (2) Where a decree for judicial separation has been passed, it shall no longer be obligatory for the petitioner to cohabit with the respondent, but the court may, on the application by petition of either party and on being satisfied of the truth of the statements made in such petition, rescind the decree if it considers it just and reasonable to do so, will be of relevant consideration. The said section certainly deals with grounds of judicial separation and in this case, on the basis of the pleadings and available evidence, we are really concerned with clauses (a) and (b) of the said section viz. desertion for two years cruelty. The word desertion has been explained to mean not only physical abundonment but even willful neglect by either party of the other and in order to establish desertion to things are required to be proved i.e. (1) factum of desertion and (2) the intention to bring cohabitation permanently to an end. The Supreme Court in the case of Lachman vs. Meena, AIR 1964 SC 40 , has observed, desertion within the meaning of Section 10(1) of the said Act would mean "the intentional permanent forsaking and abandonment of one spouse by the other without the other's consent and without reasonable cause" and the essential ingradients of desertion have been indicated to the effect as mentioned earlier and so far the deserted spouse are concerned, the elements have been indicated as (a) the absence of consent and (b) the absence of conduct which gives reasonable cause to the spouse deserting to form the necessary intention as mentioned above. Desertion for the purpose of section would mean desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party and includes the willful neglect of the petitioner by the other party to the marriage. In fact, willful neglect by the respondent or the petitioner would be included and considered as desertion. 21. In fact, willful neglect by the respondent or the petitioner would be included and considered as desertion. 21. It should be noted that the party whose conduct causes desertion, is the party who is guilty of the offences and the further tests by which the offence of desertion is judged is not the abandoning of the matrimonial home, but the fact that the other party bas caused such abandonment by his action, since he must be taken to intend the consequence of the behaviour of one spouse that the other will leave the matrimonial home, and the offending spouse must be presumed to have intended that this should happen. Considering the facts of this ease and the evidence as available and testing them with the tests as indicated hereinbefore, in our view, there is no other conclusion possible but to bold that the Appellant husband was guilty for the breaking of the matrimonial home in this case and for his willful and negligent acts, the respondent wife had to leave her matrimonial home and that too with his consent even though the marriage was duly consumted and the parties to the same had cohabited for sometimes and actually had a issue by such marriage. 22. Apart from the above, the neglect of the Appellant husband to maintain the Respondent wife would also be a, case of desertion, apart from being an instance of cruelty, which is not constituted of mere physical violance. The language of clause (b) of section 10 is wide enough to include within the terms both physically as well as mental cruelty. Cruelty may be said to be the conduct of such character as to have caused danger to life, limb or health (bodily or mental), or so as to give rise to a reasonable apprehension of such danger. In fact, cruelty may not be by physical violence only by the defaulting party but may also be inflicted by his conduct, demeanour and treatment. The onus to prove crulty lies heavily upon the swing spouse and for the standard of proof of the same. Mr. Chakraborty referred to the case of Dr. N.G. Dastane vs. Mrs. In fact, cruelty may not be by physical violence only by the defaulting party but may also be inflicted by his conduct, demeanour and treatment. The onus to prove crulty lies heavily upon the swing spouse and for the standard of proof of the same. Mr. Chakraborty referred to the case of Dr. N.G. Dastane vs. Mrs. Dastane, AIR 1975 SC 1534 , wherein it has been observed that doubtless, the burden must lie on the petitioner to establish his or her case for, ordinarily, the burden lies on the party which affirms a fact and not on the party which denies it. This principle accords with commonsense asit is so much easier to prove a positive than a negative. The petitioner must therefore prove that the respondent has treated him with cruelty within the meaning of section 10(1)(b) of the Act, apart from holding that the belief regarding the existence of fact may be founded on a balance of probabilities. A prudent man faced with conflicting probabilities concerning a fact situation will act on the supposition that the fact exists, if on weighing the various probabilities he finds that the preponderance is in favour of the existence of the particular fact. As a prudent man, so the court applies this test for finding whether a fact in issue can be said to be proved. The first step in this process is to fix the probabilities, the second to weigh them though the two may often intermingle. The impossible is weeded out at the first stage, the improbable at the second and that the proof beyond reasonable doubt is proof by a higher standard which generally governs criminal trials or trials involving inquiry into issues of a quasi-criminal nature. A criminal trial involves the liberty of the subject which may not be taken away on a mere preponderance of probabilities. It is wrong to import such consideration in trials of a purely civil nature. In that case, it has also been enumerated that the section 10 of the said Act neither lays down the grounds on which the petition for judicial separation be presented nor section 23, which governs the jurisdiction of the Court to pass decree in any proceeding under the Act requires that the petitioner must prove his case beyond a reasonable doubt. In fact, it bas also been observed in that case that section 23 confers on the Court the power to pass a decree if it is satisfied on matters mentioned in clauses (a) to (e) of the section, apart from balding that proceeding under the said Act being essentially of a civil nature, the word satisfied in section 23, must mean satisfied on a preponderance of probabilities and not satisfied beyond a reasonable doubt. It has also been indicated in that case, that section 23 does not alter the standard of proof in civil cases. Apart from the above, the case under consideration has also laid down that under section 10(1)(b), harm or injury to health reputation, the working career or the like, would be an important consideration in determining whether the conduct of the respondent amounts to cruelty. 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 as to give rise to a reasonable apprehension of such a danger. Therefore, what the Courts must determine is not whether the petitioner bas proved the charge of cruelty having regard to the principles of English law, but whether the petitioner proves that the respondent has treated him with such cruelty as to cause a reasonable apprehension in his mind that it will be harmful or injurious for him to live with the respondent and the Court has to deal, not with an ideal husband and an ideal wife (assuming any such exist) but with the particular man and woman before it. The ideal couple or a near-ideal one will probably have no occasion to go to a metrimonial Court for even if the may not be able to drown their differences, their ideal attitudes may help them overlook or gloss over mutual faults and failures, apart from observing that the only rider is the interdict of Section 23(1)(a) of the Act that the relief prayed for can be decreed only if the Court is satisfied that the petitioner is not in any way taking advantage of his own wrong. Not otherwise. In the case it was held that it could not be said that the petitioner was taking advantage of his own wrong. Not otherwise. In the case it was held that it could not be said that the petitioner was taking advantage of his own wrong. The case of Dipali Das vs. Gora Chand Das, 87 CWN 648, was then and secondly referred to and relied on by Mr. Chakraborty. In, that case it has been observed that the word cruelty though not mentioned in the pleading, if proved by the petition from facts stated in the pleading, such proof falling within the mischief of the word cruelty, will entitled the petitioner to get a decree on that ground, apart from observing that in a matrimonial case the proof of a fact as required in the criminal cases that is, to be proved beyond reasonable doubt is not necessary. If the court is satisfied on the evidence adduced before it that a case has been made out under Section 13 (I to VII) and the court is satisfied on the bash of the circumstances of the case a degree in favour of the petitioner can be given, and it is not always possible to get absolute corrborating evidence on outtradition of the evidence in matters which concern husband and wife as to what happened in the bed-room. If, however, the petitioner or the respondent is believed a slight corroboration is sufficient to uphold the contention of either the petitioner or the respondent in such matter. Such being the position, it was the categorical and specific submissions of Mr. Chakraborty that even though, the case on the basis of which the decree was passed was not pleaded, the learned Court below, applying the test as indicated hereinbefore, was justified in making the decree. In the case of Bipinchandra Jaisinghbai Shah vs. Prabhavati, AIR 1957 SC 176 , to which reference was made by Mr. Chakraborty thirdly, has indicated the essentials of desertion and. there may be cases of constructive desertion by the husband as in this case. In fact, the said determinations has recorded that for the offence of desertion, so far as the deserting spouse is concerned two essential conditions must be there, namely, (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). there may be cases of constructive desertion by the husband as in this case. In fact, the said determinations has recorded that for the offence of desertion, so far as the deserting spouse is concerned two essential conditions must be there, namely, (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly two elements are essential so far as the derserted spouse is concerned; (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to from the necessary intention aforesaid. Desertion is a matter of inference to be drawn from the facts and circumstances of each case. The inference may be drawn from certain facts which may not in another ease be capable of leading to the same inference; that is to say, the facts have to be viewed as to the purpose which is revealed by those acts or by conduct and expression of intention, both anterior and subsequent to the actual acts of separation. If, in fact, there has been a separation, the essential question always is whether that act could be attributable to an animus deserendi. The offence of desertion commences when the fact of separation and the animus deserendi co-exist. But it is not necessary that they should commence at the same time. The de facto separation may have commenced without the necessary animus or it may be that the separation and the animus deserendi coincide in point of time; for example, when the separating spouse abandons the marital home with the intention, express or implied, or bringing cohabitation permanently to a close. The law in England has prescribed a three years period and the Bombay Act prescribes a period of four years as a continuous period during which the two elements must subsist. Hence, if a deserting spouse takes advantage of the locus poenitentiae thus provided by law and decides to come back to the deserted spouse by a bona fide offer of resuming the matrimonial home with all the implications of marital life, before the statutory period is out or even after the lapse of that period, unless proceedings for divorce have been commenced, desertion comes to an end and if the deserted fled spouse unreasonably refused the offer, the latter may be in desertion and not the former. Hence, it is necessary that during all the period that there has been a desertion, the deserted spouse must affirm the marriage and be ready and willing to resume married life on such conditions as may be reasonable. It is also well settled that in proceedings for divorce the plaintiff must prove the offence of desertion, like any other matrimonial offence, beyond all reasonable doubt. Hence, though corroboration is not required as an absolute rule of law, the courts insist upon corroborative evidence, unless its absence is accounted for to the satisfaction of the Courts. Apart from the above, it has been holding that where the wife is forcibly turned out of her marital home by the husband, the husband is guilty of constructive desertion, became the test is not who left the matrimonial home first. If one spouse by his words and conduct compel the other spouse to leave the marital home, the former would be guilty of desertion, though it is the latter who has physically separated from the other and has been made to leave the marital home und that the fact that the defendant has failed to substantiate by reliable evidence her case of constructive desertion by the husband does not necessarily lead to the conclusion that the plaintiff has succeeded in proving his case. The plaintiff must satisfy the court that the defendant had been in desertion for the continuous period of four years as required by the Act. Thus, on the basis of the determinations as above and so also the standard of proof as required, it was Mr. Chakraborty's contentions that the case of the appellant husband was not proved and at the same time, it was appropriately proved and established by legal evidence, that his conduct towards the respondent wife was cruel end as indicated above, if anyone was guilty of desertion that was not the Respondent wife but the appellant husband. 23. It should of course be observed that what acts will contribute mental cruelty, will depend upon the circumstances of each case and in order to establish such act or guilt of cruelty, something more than isilated acts of violance will have to be proved and such violence or the impact thereof, may differ from case to case or on the basis of the status of the parties or such fact should be judged on the basis of their status. According to Black's Law Dictionary (5th Edition), "Cruelty" means the intentional and malicious infliction of physical and mental suffering upon living creatures, particularly human beings; or; as applied to the latter, the want, malicious and unnecessary infliction of pain upon the body, or the feelings and emotions; abusive treatment, inhumanly; outrage and that being the position, on the basis of the evidence and facts as available in this case, it cannot but be held that the act and actions of the appellant husband towards the respondent wife and the baby was really cruel. 24. Apart from the meaning of desertion as indicated hereinbefore, Mr. Chakraborty further referred for the meaning thereof on the case of Sunil Kumar Choudhury vs. Satirani Choudhury AIR 1969 Cal 573 , which has recorded while dealing with section 10 of the said Act that in essence desertion means the intentional permanent forsaking and abandonment of one spouse by the other without the other's consent and without reasonable cause, it is a total repudiation of the obligations of marriage. It hall also been observed that in a case of desertion there must be two conditions viz. (i) factum of separation (ii) the intention to bring cohabitation permanently to an end. From the evidence as available in this case or on consideration of them and the particulars whereof have been indicated hereinbefore, we feel and find that the respondent wife was desirous of continuing with her marital obligation and that too after staying in the matrimonial home with the husband but it was the appellant husband, who created fetter on her in a manner so as it become impossible for her to carry on such obligation. 25. Mr. Chakraborty at one stage argued and that also we feel with substance, that the appellant husband in view of his conduct as indicated hereinbefore, cannot take advantage of his own wrong and that too when the answer to the allegations as brought by him against the wife have not been established or he has not been able to sustain them. It is true and that has also been found in the case of Leela Devi Shriwastava vs. Manoharlal Shriwastava, AIR 1959 Madhya Pradesh 349, to which reference was made by Mr. It is true and that has also been found in the case of Leela Devi Shriwastava vs. Manoharlal Shriwastava, AIR 1959 Madhya Pradesh 349, to which reference was made by Mr. Chakraborty that where a decree for judicial separation is granted to the wife on the ground of desertion by the husband, the fact that the husband made an offer to take her back during the proceeding or in appeal is no justification for reducing the amount of maintenance to the wife much less denying it totally. In that case, it has also been observed that the fact that the wife has been living apart for a number of years and that she can earn for herself, justifiable grounds for disallowing maintenance. It is the primary duty of the husband to maintain his wife and that duty was recognized even in the ancient texts of Hindu Law givers. 26. We find from the facts of this case that the treatment of the appellant husband towards the respondent wife and the daughter was such, that they could have legitimate and reasonable belief and apprehension in their mind regarding neglect, ill treatment or such treatment, which would materially affect their mental welfare and such being the position, the appellant husband's conduct can very easily be brought within the definition and meaning of cruelty. We also feel that the respondent wife's acts and actions would not bring her conduct, in the facts of the case, within the terms and meaning of desertion as indicated and laid down in the cases as cited at the bar and on the other hand or in fact the position would be otherwise and more particularly, as indicated earlier, the Appellant bus band was guilty of desertion and cruelty, or at least of constructive desertion and that too, following the observations in Bepin Chandra vs. Prabhabti (supra), particularly when the respondent wife was always willing and still she is willing to lead a happy marital life, but the appellant husband is bent upon to refuse such opportunity to her. In fact, from the evidence, it appeared that the respondent wife had to leave the matrimonial home with the consent of the appellant husband. In fact, from the evidence, it appeared that the respondent wife had to leave the matrimonial home with the consent of the appellant husband. We feel that the appellant husband had arranged the things in such a manner, so that the respondent wife was to leave the matrimonial home and if anyone was responsible for such happening, it was the husband and not the wife and she was really forced to leave her matrimonial home because of the neglect and cruel treatment of the husband. The husband in this case had really intended to bring cohabitation permanently to an end and the disruption of matrimonial home and relationship was not due to the respondent wife. 27. It is true that the standard of proof as required in Criminal trial, as observed in the case of Dipali Das vs. Gora Chand Das (supra), will not equally and really speaking strictly apply in a matrimonial proceeding and if the allegations, which could be the basis of breaking of the matrimonial relationship or home or could bring home the necessary ingradients and essentials of section 10 of the said Act, the Court would be empowered to pass such a decree as in this case and that bring the position, the observations in A.E.G. Carapiet vs. A.Y. Derderian (supra), will not appropriately apply in this case. 28. On the basis of the discussions as made by us on the law as laid down by the celebrated decisions and applying those tests in the facts and circumstances of the case, we find that the learned Court below had not acted illegally or with any material irregularity in making the decree as impeached and the submissions as put forward by Mr. Dey, on perversity of the determinations, were without any substance. Such being the position, we dismiss the appeal with costs assessed as 5 G. Ms.