Amarendra Nath Chatterjee v. Kalpana Chatterjee — 1986 DIGILAW 410 (CAL)

JUDGMENT The judgment of the Court was as follows :–– The question involved in this appeal before us is whether the acts of the respondent as complained of by the appellant have been proved and if so the same constitute cruelty so as to entitle the appellant to a decree for divorce. The Trial Judge held against the husband as a result of which this appeal has been preferred by him. 2. Mr. Mitra cited the case of (1) N. G. Dastane v. S. Dastane, reported in AIR 1975 Supreme Court 1534 and urged relying upon the said decision that proceedings under the Hindu Marriage Act being essentially of a civil nature the word 'satisfied' under section 23 of the Act must mean 'satisfied' on preponderance of probabilities and not 'satisfied' beyond the reasonable doubt. He further submitted that though the Supreme Court in earlier decisions viz. (2) Bipinchandra Jaisinghbai Shah v. Probhavati, reported in AIR 1967 Supreme Court 176 and (3) Earnist John White v. Kathleen Olive White, reported in AIR 1968 Supreme Court page 441 held that in proceedings for divorce the plaintiff must prove the matrimonial offence beyond reasonable doubt and that the word satisfied in that context meant that the court was to be satisfied on the evidence in respect of the matrimonial offences and the guilt must be proved beyond reasonable doubt, but this view, however is no longer good law in view of the subsequent decision in the case of N. G. Dastane v. S. Dastane (Supra) which is a later Supreme Court decision. Without going into the said controversy as to whether the matrimonial offence has to be proved beyond reasonable doubt or has to be decided on the preponderance of probabilities and assuming that the later decision of N.G. Dastane v. Mrs. S. Dastane (Supra) holding, even then on the preponderance of probabilities it does not appear to us that the wife in the case before us has committed such acts which amount to cruelty so as to entitle the appellant to a decree for divorce. For the purpose of correct appreciation of the said position it is necessary to consider the facts of the case in details. 3. For the purpose of correct appreciation of the said position it is necessary to consider the facts of the case in details. 3. It is the case of the appellant that after the marriage the appellant came to his house at Barasat with the respondent wife and their 'Fulsajya' ceremony was performed on the 12th of July, 1966 corresponding to 27th Ashar, 1373 B. S. Due to the refusal of the respondent, there was no cohabitation between the parties and according to the appellant as made out in the petition after the marriage the petitioner and the respondent did not ever cohabit and did not ever have any sexual relation. As the period of leave of 20 days was going 10 expire the appellant left for his place of work at Kanshabahal in Orissa leaving his wife with his mother and sister at his Barasat residence. He offered to take the respondent to his place of work as soon as be would secure a separate residential quarter there. According to the appellant, as appears from his petition, during the short period of his married life he suffered insults and abuses from his wife. He had to leave for his place of work with a heavy heart. During the next Durga Puja in 1966 the appellant came to Barasat and met his wife with a jubillang mind expecting that his wife will welcome him after a long separation, but to his utter surprise he was taunted and jeered at for living separately from her so long. Due to her rough temper and abusive language used against the appellant his mental peace was disturbed. Again during the next Durga Puja in 1967 he came down to Barasat. He expected that with the passage of time the respondent would change for the better but to his dismay he was roughly treated by the respondent. She called him a crook, a 420 and a fraud and kicked him furiously out of the bed. He was so much shocked that he could not sleep at nights resulting in his developing acidity and other stomach troubles affecting his health. Before the Durga Puja in 1968 he secured a separate quarrel and requested the respondent to accompany him to Kanshabahal and the respondent refused to go and live with him as he wanted to take his mother with him. Before the Durga Puja in 1968 he secured a separate quarrel and requested the respondent to accompany him to Kanshabahal and the respondent refused to go and live with him as he wanted to take his mother with him. However, in the month of December that year the respondent accompanied by her sister's husband Jagadish Chakraborty arrived at the appellant's quarter one early morning without any prior intimation. During her stay there she did not care to do any household work or to look after the appellant. She would not cook the food and used to idle away her time. She displayed her high temper and justified it by saying that she was the sister-in-law of her wealthy sister's husband and as such it was only natural for her to be in high temper. The hitch between the parties came to such a stage that the respondent even did not hesitate to raise her hands on him. He expressed his desire to bring his mother to live with him at Kanshabahal with the hope 'that the mother's arrival might help in bringing about a thaw in the bitter conjugal relationship but it was alleged by the appellant that the mother's arrival instead of reducing the tension created further deteriorating effect in the temper of his wife and she got infuriated at the proposal and gave vent to her desire to divorce the respondent if he would bring his mother. After seven days the appellant and the respondent came down to Barasat. During their stay at Barasat she started to disobey her parents-in-law and ignored their forbiddings. She became reckless morally. One fine morning she left the matrimonial home at Barasat with his brother-in-law without taking permission from her parents-in-law. She returned with an unknown person and promised to mend her ways but soon after she forgot her promise and started to show ill behaviour again to the appellant's family members and went away from the matrimonial home again and again without permission from the appellant's parents. On some day in July, 1974 she came to Kanshabahal accompanied by a stranger and abused the appellant. She even assaulted the appellant at times with shoes of her feet. She even threatened to kill him by administering poison in his drinking water or by throttling him when asleep. On some day in July, 1974 she came to Kanshabahal accompanied by a stranger and abused the appellant. She even assaulted the appellant at times with shoes of her feet. She even threatened to kill him by administering poison in his drinking water or by throttling him when asleep. The appellant had to bring her sister at Kanshabahal out of fear and also for doing household work. This intolerable behaviour of the respondent shattered his health and mind and effected differences and disputes between the appellant and respondent and it was settled that they would live separately from each other rind the appellant would go on paying to the respondent Rs. 150/- per month for maintenance. The appellant has been since paying maintenance to her. In the meantime the appellant was transferred to Calcutta, but the respondent refused to go with him and continued to live in the appellant's quarter at Kanshabahal all alone. The appellant was thus prevented from surrendering vacant possession of the quarter. While residing at Barasat inspite of best efforts of the appellant since after the marriage, there has been no sexual intercourse between the parties and according to the appellant the marriage has been totally frustrated. The cruelty of the respondent was such that a reasonable apprehension had grown in the mind of the appellant that it would be harmful and injurious for him to live with the respondent. The appellant alleged that under the aforesaid circumstances he had to institute the suit for a decree for divorce. 4. The respondent contested the suit by filing a written statement. In the written statement the respondent denied the allegations made by the appellant in his petition for divorce. It was, inter alia, contended by the respondent in her written statement that the marriage was not consummated due to the impotency of the appellant, and to cover up his disabilities he instituted the suit with false and concocted allegations. In the written statement the respondent denied the allegations made by the appellant in his petition for divorce. It was, inter alia, contended by the respondent in her written statement that the marriage was not consummated due to the impotency of the appellant, and to cover up his disabilities he instituted the suit with false and concocted allegations. It was further alleged that the appellant had a very rough temper and she suffered great disappointment and agony due to the impotency and cruelty of her husband, that the appellant after his marriage never came to his residence at Barasat during the Durga Puja to meet her and he used to go to his sister's husband at Dum Dum for 'Bhaiphota' and thereafter just for a day or so he used to go to his house at Barasat, that he never requested her to accompany him at Kanshabahal, that as a matter of fact he took his mother leaving behind his wife in a stage of neglect. It was further alleged by her that she on her own initiative went to Kanshabahal with one of her relations and it was the appellant himself who raised his hands on her off and on that she was forced to live separately in the same quarter. It was further alleged that she was not allowed to carry out her household duties including cooking of food and she used to cook her food separately by herself. It is also the allegations of the respondent in her written statement that the brawl created by the appellant started affecting the neighbourhood and the neighbours held a meeting to put an end to her unhappy life. That the appellant did not even inform her that he was transferred to Calcutta and she was left there and she had no one to stand for her as he lost both her parents and the appellant vented all the anger on her without any provocation, she was regularly subjected to abuses, insult, torture and reckless beating and was neglected to be maintained. 5. Mr. Bijitendra Mohan Mitra, the learned Advocate for the appellant submitted before us that the court below ought to have passed a decree for divorce on the ground that the appellant was treated by his wife with cruelty since the night of Fulsajya on the 12th of July, 1966. 5. Mr. Bijitendra Mohan Mitra, the learned Advocate for the appellant submitted before us that the court below ought to have passed a decree for divorce on the ground that the appellant was treated by his wife with cruelty since the night of Fulsajya on the 12th of July, 1966. He submitted that the evidence on record clearly proves the case of cruelty meted out to the appellant by the respondent. His further case is that the respondent did not allow the appellant to have sexual intercourse when he approached on the night of Fulsajya with all his urge and also on the succeeding night. During the stay on his short leave at Barasat, every time he met her she demonstrated rough temper and that she used to abuse him and insult him in filthy languages and that due to her misbehaviour and refusal to satisfy his sexual urge he lost his peace of mind which affected his health also. It was further contended that during her stay at Kanshabahal she neglected to perform her household duties including cooking, that in or about February, 1969 the respondent left the matrimonial home at Barasat without the consent of her parents-in-law and did not return till 1974 and that after she reappeared at Kansbabahal in July, 1974 she displayed the same arrogant temper. It is the specific allegation of the appellant according to Mr. Mitra that during the Durga Puja after taking leave from office the appellant used to come and stay at Barasat and on these occasions he met his wife with jubilant mind expecting that his wife would welcome him after a long separation, but to his surprise the respondent taunted him and rebuked the respondent and showed her usual rough temper and expressed the same in abusive languages which caused worry and anxiety to the appellant destroying his peace of mind. In the written statement the said fact of appellant's coming to Barasat during Durga Puja with jubilant mind in 1966 was specifically denied. It was also denied that the respondent taunted him or abused him. It appears that the learned Trial Court considered the documentary evidence viz., the letter being Ext. A(3) and the letter Ext. In the written statement the said fact of appellant's coming to Barasat during Durga Puja with jubilant mind in 1966 was specifically denied. It was also denied that the respondent taunted him or abused him. It appears that the learned Trial Court considered the documentary evidence viz., the letter being Ext. A(3) and the letter Ext. A(4) to find out the truth of the said allegation made by the appellant that he came during Durga Puja in 1966 to live with his wife, the respondent but the respondent instead of welcoming him hurled abusive languages at him and treated him with cruelty. The said Ext. A(3) is the letter dated 14.10.66 written by the appellant to the respondent's elder brother S. N. Bhattacharya informing his brother-in-law that be had received his letter but was sorry that it would not be possible for him to come and join in the Puja. The next letter is Ext. A(4) dated 24.10.66 written by the appellant to the said S. N. Bhattacharya. By the said letter the appellant was conveying his vijaya greetings from Kanshabahal. The said letters make it clear that during the puja time in 1966 the appellant did not come to Barasat but stayed at Kanshabahal. Mr. Mitra submitted that from these letters it cannot be assumed that he did not come to Barasat during Puja in 1966. The said letters according to him only suggest that it was not possible for him to meet his brother-in-law during puja as appears from Ext. A(3) and that his sending vijaya greetings to his brother-in-law as appears from Ext. A (4) does not by itself show that he did not come over to Barasat and for that reason only the case of the appellant that be came over during the Puja in 1966 and wanted to live with his wife and to have sexual intercourse cannot be disbelieved. The learned Advocate for the respondent on the other hand strongly contends that these letters have clearly established that he could not come during Pujas in 1966 and his case to the effect that he came over to Barasat during Puja in 1966 to live with his wife and to have sexual relationship with her should be disbelieved. He also pointed out that in the year 1966, 16th October, was Shasthi, 17th October, Monday was Saptami and 23rd October, was Vijaya. He also pointed out that in the year 1966, 16th October, was Shasthi, 17th October, Monday was Saptami and 23rd October, was Vijaya. According to him the appellant decided not to come and join his relations during Durga Puja in Calcutta starting from 17th October, 1966 which was a Monday and that is why on 14th October, which was a Friday he had written a letter to his brother-in-law because he decided that he would not. So far as Ext. A(4) is concerned that letter was written on 23rd of October from Kanshabahal and 24th bring a Vijaya Dashami in that year it is obvious that he spent his days during Durga Puja in 1966 at Kanshabahal and was sending his Vijaya greetings to his brother-in-law from there. In the circumstance the case made out by the appellant that he came during Durga Puja in 1966 when the respondent treated him with cruelty cannot be believed. In our opinion the trial court rightly came to the finding that these letters show utter falsehood on the part of the appellant as regards the case made out by him that he was treated cruelty when he came during the Durga Puja in 1966. 6. Let us now consider the oral evidence of the witnesses who gave evidence on behalf of the appellant. P.W. 3, Nripen Ghosh who claimed himself to be appellant's elder brother's friend and elected member of Panchayet since June, 1978 did not state in his evidence that appellant came during the Durga Puja in 1966. The other witness P.W. 4, Asish Banerjee is a member of the club 'Aguan Sangha' of which the appellant's elder brother was the organizer and he had acquaintance with the appellant through that club being a member of the club. His evidence is that he had high regard for appellant's elder brother Bholanath. The appellant is senior to him by 5/6 years. He stated that in 1966-67 the appellant worked at Kanshabahal and used to come at Barasat during the Puja. His further evidence in cross-examination is that the appellant used to come just before the Puja and stay for 10/12 days. But this is absolutely contradictory to the letters of the appellant being Ext. A (3) and Ext. A (4) because these letters show that just before the Puja be was at Kanshabahal. Exts. His further evidence in cross-examination is that the appellant used to come just before the Puja and stay for 10/12 days. But this is absolutely contradictory to the letters of the appellant being Ext. A (3) and Ext. A (4) because these letters show that just before the Puja be was at Kanshabahal. Exts. A (3) and A(4) also show that just after the Puja he was writing from Kanshabahal on 24th October, 1966 and Vijaya Dashami in that year was on 24th October, 1966. This witness gave a peculiar evidence. He had stated that he had other married friends and he heard those friends being abused by their wives and advised them not to file divorce suit. He has also stated that he did not advice the appellant to institute divorce suit as be did not think that the situation could be so acute. His evidence is hardly believable. He is only a member of the club of which the appellant's elder brother is the organizer. He has not stated that he is a close friend of the appellant. Under the circumstances it is hardly believable that such a person should be brought into the appellant's room and the wife would hurt abuses in his presence as stated by this witness in his evidence. The other witness Sumanta Chakraborty is a member of the CPI(M) party. His evidence is that the appellant is like his friend. He only stated in cross-examination that in October, 1966 the appellant reported to him on the road about his wife's misbehaviour on the Fulsajya night. It is hardly believable because the Fulsajya took place on 12th July, 1966. No specific date was mentioned as to on which date of October, the appellant reported the said incident. On the contrary from other evidence it is clear that the appellant did not come at all to Barasat during October, 1966. The other witness Smt. Swapna Chakraborty is the younger sister of the appellant who gave evidence that the appellant came to Barasat during the puja in 1966 but she did not say when he arrived at Barasat and when he left Barasat for Kanshabahal. On the contrary her evidence in cross-examination is that he used to stay for about 20 days during each Durga Puja. The said statement appears to be absolutely contradictory to the letters being Exts. On the contrary her evidence in cross-examination is that he used to stay for about 20 days during each Durga Puja. The said statement appears to be absolutely contradictory to the letters being Exts. A(3) and A(4) and as such this evidence cannot be believed that during 1966 the appellant stayed for 20 days. It would not have been possible for him to write these two letters being Exts. A(3) and A(4) had he spent 20 days during puja in 1966 in Barasat. In the premises it is absolutely clear that he did not come at all during puja in 1966 at Barasat and the case made out by the appellant to that effect that he came during puja in 1966 and wanted to establish sexual relationship with his wife but was refused cannot stand. Regarding the alleged refusal by the wife to helve sexual intercourse with the petitioner, it is the case of the petitioner that his offer to embrace her and to have sexual intercourse was refused by the respondent and that she pushed him back on the first night when he attempted to have a sexual intercourse with her and that he behaved well with her but he got misbehaviour from her side. In his cross-examination the appellant stated that he narrated this experience on the Fulsajya night to his friends Nripen Ghosh, Asish Banerjee and Sumanta Chakraborty on the next morning. The evidence of P.W. 3 Nripen Ghosh who claimed to be a friend of the appellant's elder brother Bholanath and not of the appellant himself, however, appears to be otherwise. Nripen Ghosh did not say that the appellant narrated to him his experience of the Fulsajya night. On the contrary he stated in cross-examination that the appellant could not tell him his experience as he was senior to him by 8/10 years. This witness did not state in his evidence that the appellant came to Barasat during Durga Puja in 1966. The other two witness viz., Asish Banerjee and Sumanta Chakraborty only stated in their evidence that the appellant complained about his wife's misbehaviour on the Fulsajya night. As already observed earlier that the evidence of Sumanta Chakraborty is that in October, 1966 the appellant reported to him on the road about his wife's misbehaviour on the Fulsajya night. The other two witness viz., Asish Banerjee and Sumanta Chakraborty only stated in their evidence that the appellant complained about his wife's misbehaviour on the Fulsajya night. As already observed earlier that the evidence of Sumanta Chakraborty is that in October, 1966 the appellant reported to him on the road about his wife's misbehaviour on the Fulsajya night. It is hardly believable that the appellant would report to him about such misbehaviour after such long lapse of time as the Fulsajya took place on 12th July, 1966. Moreover no particulars about the incident not of the s/ecofoc statement of the alleged report appear from the said evidence. On the contrary the probability of events lead us to believe that the appellant did not come at all in October, 1966. The witness Asish Banerjee also did not state any particulars of alleged misbehaviour on the Fulsajya night and as already noted earlier his evidence is of a peculiar nature and is hardly believe able. In the premises the allegation of the appellant that he was refused to have sexual intercourse on the Fulsajya night and was pushed out by the respondent as he tried to embrace her does not appear to have been established from the evidence on record and the trial court rightly rejected the appellant's plea that the respondent was approached by her husband on the Fulsajya night for sexual intercourse and was refused. 7. It was further alleged by the appellant that the respondent started to display her rough temper towards her husband within the short period of 9/10 days. He was with her immediately after the marriage. The trial court, however, came to the finding that the said fact could not be established by the appellant and the evidence adduced in that behalf could not be believed. In this connection trial court has analysed the evidence of P.W. 3 Nripen who stated that few days after the appellant's marriage he heard the respondent saying from her room to her husband 'Jochhor, Badmaies' while he was sitting at the appellant's elder brother's room. The other witness P. W. 4 Asish Banerjee also stated that he heard the appellant was abused by his wife with the words 'Badmaies, Suorerbachha barrie ja'. The other witness P.W. 5 Sumanta stated that be heard the appellant being abused by his wife in the same language. Mr. The other witness P. W. 4 Asish Banerjee also stated that he heard the appellant was abused by his wife with the words 'Badmaies, Suorerbachha barrie ja'. The other witness P.W. 5 Sumanta stated that be heard the appellant being abused by his wife in the same language. Mr. Mitra, the learned Advocate for the appellant submitted that the trial court erred in disbelieving the evidence of the aforesaid persons. He further submitted that the said words by which the appellant was abused by the respondent themselves constitute cruelty. Mr. Mallick learned Advocate for the respondent submitted that the trial court correctly disbelieved these witnesses and he further submitted that it is not possible for a newly married wife to use these words within the hearing of an outsider. Mr. Mallick stated that the witnesses merely mechanically stated that they heard these abusive words being used by the respondent. Had they really heard these abusive words being uttered by the respondent, they could have narrated the incident leading to the exchange of these words between the parties. According to him even assuming these abusive words were actually uttered by the respondent, these words must have been used under certain circumstances and by way of exchange of words and/or incident taking place therein. But neither such incident nor the circumstances which lead to the exchange of words or to the utterances by the appellant have been disclosed by any of the witnesses. He further submitted that the trial court correctly disbelieved these witnesses as all of them appear to be interested. In our view there is much substance in the contention of Mr. Mallick. The trial court correctly observed that the appellant's elder brother Bholanath was not examined although the witness Nripen stated that he heard the abuses being uttered by the respondent towards the appellant stating 'Jochhor, Badmies' while he was seated at his elder brother's room. It would have been proper for the elder brother of the appellant to corroborate the said statement. But he was not examined. As already observed, he is a member of the CPI(M) since 1952 and of the local Panchayet. He visits different houses in the locality for discharging his social and political works. He had been to the appellant's house to spend his time with the elder brother of the appellant and to collect subscription from his father. As already observed, he is a member of the CPI(M) since 1952 and of the local Panchayet. He visits different houses in the locality for discharging his social and political works. He had been to the appellant's house to spend his time with the elder brother of the appellant and to collect subscription from his father. It is hardly believable that a lady would utter such abusive words in the presence of such a gentleman in the house and the trial court correctly disbelieved the statement of this witness to the effect that such words were used in his presence. We also accept Mr. Mallick's submission that had these words been really used in the hearing of an outsider, he also would have stated how and under what circumstances these words had been used by the respondent. But the witness is absolutely silent on this point. So far as the testimony of P.Ws. 3 and 4 is concerned in our opinion the trial court correctly came to the finding that these witnesses were members of the same club of which the appellant's elder brother was an organizer and, as already observed by us, the evidence of the witnesses is hardly believable. The evidence of the witnesses that they heard the appellant being abused by the words 'Badmies, Suorerbachha, 420 barrie ja' but about when did they hear these words, the date and time and year, nothing has been mentioned. It is absurd that all on a sudden a lady will utter these words. In our opinion, no reliance can be placed on the evidence adduced by these witnesses. The appellant's sister Smt. Swapna Chakraborty was also examined. She did not state in her evidence that the respondent showed her rough temper and abused the appellant within 9/10 days of marriage as stated by the aforesaid three witnesses, viz. Nripen, Asish and Sumanta. 8. In the premises the case of the appellant that the respondent showed her rough temper and used abusive words against him within 9/10 days after a marriage cannot be believed. It is alleged by the appellant that during the Puja in 1967 he came to Barasat but found his wife behaving in the same manner. There was no change in her attitude and behaviour. He also desired her. He wanted to embrace her and have sexual intercourse with her but she refused. It is alleged by the appellant that during the Puja in 1967 he came to Barasat but found his wife behaving in the same manner. There was no change in her attitude and behaviour. He also desired her. He wanted to embrace her and have sexual intercourse with her but she refused. She used to call the appellant 'Suor, Jochhor, 420, fraud etc.' and even used to slaft him and left him in great anxiety and as a result he had stomach trouble. He was on 20 days leave this time also and on expiry of the leave he returned to Kanshabahal. The evidence of Swapna Chakraborty, P.W. 2 the younger sister of the appellant is that during the puja of 1967 the appellant came to Barasat and the respondent ill-treated him at that time. She could not stand the appellant. She got angry and misbehaved with him. She was of rough temper. In cross-examination she stated that she would not approve anybody hearing the talks between husband and wife. She did not enter into the room when the appellant and respondent were inside. She never attempted to hear talks between her brother and his wife from near the door. Therefore, she could not be expected to give positive evidence about the misbehaviour or the quarrel between the parties. It does not appear from her evidence that the said words 'Suor, Jochhor' were at all used by the respondent during his visit in 1967. P.W. 3 Nripen Ghosh said that in the puja holidays of 1967-68 he hear abuses of the wife against the petitioner but he does not remember the exact words. His further evidence in cross-examination is that he had been to petitioner's house and spent time with his elder brother to collect subscription from his father etc. As already observed that this witness can be hardly believed, it is not possible for a lady to use abusive words all on a sudden in the presence of an outsider in the house. It is significant that this witness could not also state the circumstances under which these abuses were hurled. The other witnesses Asish Banerjee P.W. 3 and Sumanta Chakraborty P.W. 4 stated that they heard the petitioner being abused by the words 'Jochhor, Badmies, Suorer Bachba barrie ja'. It is significant that this witness could not also state the circumstances under which these abuses were hurled. The other witnesses Asish Banerjee P.W. 3 and Sumanta Chakraborty P.W. 4 stated that they heard the petitioner being abused by the words 'Jochhor, Badmies, Suorer Bachba barrie ja'. But in the petition, according to the appellant, these words were used during the rest days of the leave period that he spent in Barasat after marriage, that is in July, 1966, which is not corroborated by the appellant's own evidence regarding the words alleged to have been used by the appellant in 1966. Nothing appears from the evidences of the two witnesses i.e. P.W. 3 and P.W 4 if the abusive words as mentioned above were at all used by the respondent. Let us now consider the evidence of the respondent. The evidence of the respondent on the other hand is that she lived with the appellant for 10 days at Barasat in all during her married life. These 10 days consist of 9 days immediately after marriage in 1966 and one day in November, 1967. In cross-examination also she denied that the appellant lived with her for 20 days in 1967 during the puja. In any event it appears that the appellant came during the puja in 1967 after he left Barasat spending few days after marriage with his wife, the respondent herein in July, 1966. Therefore, he didn't care to come or keep any touch with his wife during this long period of one year and three months. It is quite possible that a wife would be annoyed if the husband does not take care about the wife during this one year and three months. Without going into the controversy as to whether the husband spent one day only with her in 1967 it does not appear to us that the wife's behaviour was at all inconsistent considering the attitude taken by the husband in neglecting her during this period of one year and three months. It is in evidence before us that it takes one night's journey to come back from Kanshabahal to Calcutta by train and it is quite strange that a newly married husband would not take the trouble of coming to Calcutta during this period when there were holidays intervening during this one year and three months. It is in evidence before us that it takes one night's journey to come back from Kanshabahal to Calcutta by train and it is quite strange that a newly married husband would not take the trouble of coming to Calcutta during this period when there were holidays intervening during this one year and three months. Considering this aspect of the matter we do not consider that the wife's attitude towards the husband in 1967 was at all consistent. The appellant has relied upon a letter dated 11.1.67 being Ext. 1 written by the respondent to the appellant. The said letter only proves the utter neglect find lack of sense of duty on the part of the appellant as husband towards his wife, the respondent. 9. It has been alleged by the appellant in this petition that before the Durga Puja in the year 1968 the appellant was provided with a separate quarter. The appellant accordingly requested the respondent to accompany him to his quarter at Kanshabahal in Orissa. The respondent refused to go with him or to live with him in his quarter as the appellant wanted to take his mother with him The respondent, however, in the month of December all on a sudden accompanied by her sister's husband came to the appellant's quarter one early morning without any luggage or belongings and without any prior intimation. The appellant was at first annoyed at such conduct of the respondent but the matter was settled ultimately. This allegation of the appellant was denied by the respondent. According to her the appellant got the quarter much earlier than alleged in the petition but never requested the respondent to accompany him and there was no occasion for respondent to refuse to accompany him as alleged in the petition. On the contrary the appellant took his mother leaving behind the respondent inspite of request by the respondent to take her with him. The respondent then on her own initiative went to the appellant's quarter at Orissa and there the respondent was very shabbily treated. 10. Let us now consider the evidence of the parties in this respect. From the evidence of the appellant it appears that he got a quarter from the company for his residence in June or July, 1968. The respondent then on her own initiative went to the appellant's quarter at Orissa and there the respondent was very shabbily treated. 10. Let us now consider the evidence of the parties in this respect. From the evidence of the appellant it appears that he got a quarter from the company for his residence in June or July, 1968. The appellant, however, does not state in his evidence that he requested the respondent to accompany him to his quarter at Kanshabahal in Orissa but the respondent refused to go with him or to live with him in his quarter as alleged in his petition. In the premises the allegations in the petition to the effect that the respondent refused to accompany him on his request cannot be believed. It, however, appears from the evidence of the appellant himself that in December, 1986 the respondent came to his quarter at Kanshabahal with her sister's husband Jagadish Chakraborty one morning. Therefore, the case of the respondent is quite correct that inspite of her request to take her to Kanshabahal the appellant did not take her there but the respondent on her own initiative went to stay with the appellant in December, 1968 at his quarter at Kanshabahal. This fact also goes to show that the appellant was neglecting his wife and was not willing to live with her but the wife was really seeking her husband's company and that is why she on her own initiative went to Kanshabahal to stay with him in his quarter. The appellant's further evidence was that the respondent would not cook and be continued to take meal in the hotel and in the night he had to cook his own meal. The respondent used to occupy one room separately. She used to say that she was a 'BaralokerSali' and so would have temper. The appellant proposed to bring his mother there but she said that she would not stay if the mother comes. The evidence of the respondent on the other hand is that when she first visited Kanshabahal her mother-in-law was at Kanshabahal and when she visited Kanshabahal for the second time mother-in-law was also therewith her son. It also appears from the petition of the appellant that the respondent refused to go with him or to live with him in his quarter as the appellant wanted to take his mother with him. It also appears from the petition of the appellant that the respondent refused to go with him or to live with him in his quarter as the appellant wanted to take his mother with him. Therefore, the evidence of the respondent is quite believable that the mother was there already at Kanshabahal and the case made out by her in her written statement appears to be correct that when the appellant got the quarter at Kanshabahal he took his mother there and the respondent requested him to take her with him but he refused to take her and she had go there on her own in December, 1968. The evidence of the appellant to the effect that he proposed to bring his mother to Kanshabahal but she said that she would not stay if mother comes cannot be believed under such circumstances. The admitted case in the petition also is that in the month of December, 1968 all on a sudden the respondent accompanied by her sister's husband came to the appellant's quarter one early morning without luggage or belongings and without any prior intimation and the appellant was at first annoyed at this conduct of the respondent but ultimately settled the matter. It is surprising why the appellant should be at all annoyed when the respondent-wife comes to the appellant after a long time. Under the normal circumstances it is expected that a husband would be happy in finding the wife after such a long time. This itself shows that the appellant was trying to avoid wife's company and the respondent's case to that extent is quite believable and it cannot be said that the respondent has committed any act of cruelty towards the appellant. It is stated by the appellant in his evidence that in February, 1969 he came to learn from his father's letter that his wife left the house without consent of anybody. She did not come back to their house at Barasat within 4/5 years. No such letter of the father, however, has been disclosed. In cross-examination he stated that in 1969 he instructed his father to enquire about his wife. His father informed him by letter that he wrote letter to Satyen Bhattacharya but he got no response. It is the further evidence of the appellant that he did not take any further information as she left Kanshabahal with a threat of divorce. In cross-examination he stated that in 1969 he instructed his father to enquire about his wife. His father informed him by letter that he wrote letter to Satyen Bhattacharya but he got no response. It is the further evidence of the appellant that he did not take any further information as she left Kanshabahal with a threat of divorce. It also appears from his evidence that in January, 1974 he came to learn from his father's letter that she had returned. The appellant did not state what step did he take to ascertain where was she during this long period or how did she maintain herself. He didn't care to write to the respondent. This only shows that the appellant was maintaining a callous attitude towards his wife. On the contrary Ext. A(2) which is the letter dated 26th October, 1970 from the respondent to the appellant shows that the respondent was converting her vijaya pranam to him and to the other superiors. In this letter the respondent recorded that being angry both of them had sitting tight for years and she herself suggested that it is better for her to surrender and accept defeat otherwise this beat and anger of hath sides would perhaps continue for the whole of their lives she did this with the hope that the appellant would put an end to any misunderstanding. It was further recorded in the said letter that she bad been staying in her elder brother's house at Batanagar for about 3 years now and that she hoped that be would have tried to ascertain the said fact and she blamed the husband for being heartless for not keeping any information about her. She also put on record that she wrote this letter to her husband as dictated by her conscience. In the letter she expressed the hope that they would be able to square up all problems and misunderstandings and she would he eagerly expecting reply. The respondent states in her evidence that when she was at Kanshabahal for the second time she got this letter from her husband's diary and preserved it. Her husband does not know that it was with her. In this letter Ext. A(2) the respondent was expressing her readiness to settle up the matter with her husband even if it required her to go down before him. Her husband does not know that it was with her. In this letter Ext. A(2) the respondent was expressing her readiness to settle up the matter with her husband even if it required her to go down before him. She was accusing her husband of being cruel to her. The appellant disputed that any diary was maintained by him. In cross-examination suggestion was made to that effect. It was also suggested in cross-examination that such a letter was never sent to the husband and the same is a manufactured one. Ext. 1(b) being the letter dated 28th February, 1974 by the respondent to the appellant shows that the wife has strongly condemned the attitude of her husband, the appellant of stealthily going away like a 420. She has also accused the husband of behaving like cowards. In that letter she mentioned that she has already decided to go to her husband's place i.e. the place of the appellant. It was also recorded in the said letter that it was well and good if the appellant came and took her with him to his place and requested him to let her know if she was to go along with her elder brother and that if she was to go with her brother or elder brother that has to be made known to her in writing but she specifically made it clear that in any event she would go. This letter clearly shows that the appellant was trying to avoid the company of the respondent and the respondent being the wife was eager to live with him and accuses him for leaving her alone. No other letter was produced in the evidence of the appellant to controvert such allegations of the respondent. In the premises it is clear that although the respondent, was eager to live with the appellant the appellant was trying to avoid her company. 11. In July, 1974 the respondent came to Kanshabahal. This in fact shows that she did not stop merely writing letter but in fact went to her husband's place as suggested in that letter. The appellant admitted that he had no speaking terms with his wife. It is strange that although the wife herself was repeatedly coming to him, the husband did not take her. This in fact shows that she did not stop merely writing letter but in fact went to her husband's place as suggested in that letter. The appellant admitted that he had no speaking terms with his wife. It is strange that although the wife herself was repeatedly coming to him, the husband did not take her. It was alleged by the appellant in his evidence that she used to say that she would mix poison in his food. She used to hurl shoes at him. Under what circumstances she stated that she would mix poison in his food or hurled shoes were not stated in the evidence. It is the admitted position that she did not cook food for him. She used to stay in a separate room and used to cook her own food. In the circumstances it is hardly believable that she could mix poison in his food and such words could have been used by her. On the contrary it also appears from the evidence of the appellant that in December, 1974 at about 8 P.M. the appellant found through his window 7/8 persons standing in front of the outer varanda and they wanted to know why the appellant was misbehaving with his wife. The neighbours called a meeting in the house of a neighbour Mr. Halder to have a settlement and it was decided that his wife would live separately in his quarter and he would have to pay Rs. 150/- per month for her maintenance. On the contrary the evidence of the respondent is that when she arrived at Kanshabahal for the second time in 1974 her husband refused to recognize her as his wife and asked her to leave the place. His mother also sided with him. The respondent asked for his permission to stay there for some days. She continued to stay there against their wishes. Six months later she complained about her husband's misbehaviour before the wives of her husband's colleagues. In the first week of December, 1974 there was a salish at the house of one Mr. Haider at 14 Street at the instance of her husband's friend. She was not permitted to cook in the house. She used to be abused and assaulted by her husband. She used to be served milk by her mother-in-law in a neglected manner. In the first week of December, 1974 there was a salish at the house of one Mr. Haider at 14 Street at the instance of her husband's friend. She was not permitted to cook in the house. She used to be abused and assaulted by her husband. She used to be served milk by her mother-in-law in a neglected manner. She slept in one room with her mother-in-law and the husband in another room. In December, 1974 before the salish she wrote to her brother Samarendra Bhattacharya to come to Kamhabahal with his wife. He came two days before salish. The letter Ext. A(6) was written by her to her brother Samarendra requesting him to come. The letters Exts. A(5), A(7) and A(8) were also written by her to her said brother Samarendra. It is her positive evidence that when her brother and his wife came at Kanshabahal she narrated her sad experience of married life. She showed marks of assault on her hands to her brother and his wife. Her husband returned to the house from Calcutta on the day following the day of their arrival and removed their bedding from cot or table to the floor. The appellant was very much annoyed in seeing the respondent and his brother and his brother's wife there. Her brother and his wife were at Kanshabahal for two days including the day of salish. It is also in the evidence that her brother and his wife had to sleep on the floor in the night. In the said letter dated 26.11.74 being Ext. A(6) the respondent requested her brother to come to Kanshabahal forthwith without making any delay. It is also recorded by her in the said letter that her husband began to beat her which has become unbearable. His friends tried a lot and advised him. It appears from the said letter that the appellant's only stand is that he would not live with the respondent. That the appellant started to get her being beaten by his mother is also recorded in the said letter. The respondent in the said letter expressed her utter disappointment about the fate of her life. She has also recorded in the said letter that she narrated everything to the Secretary of the union and to the secretary of the locality and they had spoken to her husband on many times but with no effect. The respondent in the said letter expressed her utter disappointment about the fate of her life. She has also recorded in the said letter that she narrated everything to the Secretary of the union and to the secretary of the locality and they had spoken to her husband on many times but with no effect. Information was also sent to the General Manager by the respondent as recorded in the said letter. There is no cross-examination that the allegations made by the respondent in this letter being Ext. A(6) are incorrect or false. Pursuant to this letter being Ext. A(6) the respondent's brother and his wife came to Kanshabahal when the respondent narrated her sad experience. There is no cross-examination also on the point that the allegation made by her that she showed marks of assault on her hands to her brother and his wife is incorrect and that there was no assault on her. In fact the evidence of Smt. Manjula Bhattacharya, D.W. 1 the wife of the respondent's brother is that they visited Kanshabahal on receipt of respondent's letter to her husband and that on going there she saw swelling and acclymosis on the left hand on the respondent. She also heard the respondent saying to her brother that she had the injuries due to assault. There was no cross-examination or suggestion to this witness also to the effect that it is incorrect on her part to state that she saw swelling or acclymosis or that she heard her saying to her brother that she had the injuries due to assault was incorrect. Under such circumstances it appears to us that the contents in the said letter being Ext. A(6) are correct and the evidence of both the D.W. 1 and D.W. 3 that the respondent was assaulted by her husband are correct. It also appears that on the basis of the complaint made by the respondent to her husband's friends a salish was made by the said friends at Mr. Halder's house. It is the evidence of the appellant that the neighbours of the appellant at Kanshabahal wanted know from him why he was misbehaving with his wife and when he explained the matter they left. His evidence is that in December, 1974 the neighbours called a meeting in the house of Mr. Halder and both the appellant and the respondent were present there. His evidence is that in December, 1974 the neighbours called a meeting in the house of Mr. Halder and both the appellant and the respondent were present there. They would not have called a meeting unless they came to know of the incident and the case of the respondent is quite believable that on the basis of a complaint made by her such a salish was made. In fact it is the admitted position that the salish was accepted by the appellant. It was settled that they would live separately from each other and the appellant would go on paying to the respondent Rs. 150/- per month. It was alleged by the appellant in his petition that the respondent refused to come down to Calcutta or to Barasat although the appellant had been transferred to Calcutta and continued to occupy the quarter at Kanshabahal all along. The respondent on the other hand stated in her written statement that the appellant came down to Calcutta without informing the respondent that he was transferred and the respondent was stranded there and denied the allegation of the appellant. It appears from the evidence on record that the respondent stayed there upto October or November, 1976 although the appellant left in 1975. It is her evidence that the appellant told her that he was keeping the quarter in his control for three months and would take the respondent to Calcutta after finding an accommodation there. She got no response from the appellant. He made no arrangement for taking her back. He did not send any money. The respondent somehow maintained herself by borrowing and on private coaching of little boys and girls. At Kanshabahal she got the summons of the case. She received a lawyer's notice asking her to vacate the quarter. By order dated 8th September, passed by the court below the appellant was directed to remit passage money to the respondent and it was further provided in the said order that on receipt of this passage money the respondent would vacate the Orissa house within 7 days thereof and she come down to Calcutta. Letter dated 17th May, 1976 being Ext. A written by the respondent to brother-in-law reveals the extreme pitiable condition of the respondent. In the said letter she was seeking shelter as she would only be allowed to remain in the quarter at Kanshabahal upto 31st May. Letter dated 17th May, 1976 being Ext. A written by the respondent to brother-in-law reveals the extreme pitiable condition of the respondent. In the said letter she was seeking shelter as she would only be allowed to remain in the quarter at Kanshabahal upto 31st May. She expressed extreme anxiety and prayed for shelter from her brother-in-law. Had the appellant made any arrangement for taking her to Calcutta she would not have written in such a manner to her brother-in-law. Ext. A(1) being the letter dated 14th May, 1976 by the respondent to her brother-in-law again shows her extreme distress. She has recorded in the letter that for last 2/3 months no money was given to her and requesting her Jamaibabu to send some money otherwise she would have to die of hunder. Letter Ext. A(8) written by the respondent to her Majda also shows the extremely difficult conditions under which she had been living. It was recorded in the said letter if Jamaibabu would not have sent money then she would have to go without food or to beg from the men of the locality. It is also the evidence of the appellant in cross-examination that he does not know when his wife left Kanshabahal. It is clear, therefore, that the respondent was living in extreme hardship at Kanshabahal as the appellant left her there and took no care to keep her information or to send any money to her. It is also on record that he filed the suit against the respondent while the respondent was living at Kanshabahal and as she had no money to come back to Calcutta the court below directed the appellant to send her passage money for coming to Calcutta. These facts go to show that it is the appellant himself who ill-treated his wife, the respondent. 12. Mr. Bijitendra Mohan Mitra, learned Advocate for the appellant further contended that the words used by the appellant was abusive in nature and they themselves constitute cruelty. He has also urged that the marriage between the parties has never been consummated. It is also argued on behalf of the appellant that even if it appears that there is no ground under section 13 for dissolution of the marriage, yet if it appears that the marriage has broken down the court will pass a decree in favour of the petitioner. Mr. It is also argued on behalf of the appellant that even if it appears that there is no ground under section 13 for dissolution of the marriage, yet if it appears that the marriage has broken down the court will pass a decree in favour of the petitioner. Mr. Mitra further submitted that marriage in this case has totally broken down and it would not be possible for the parties to live together as husband and wife and under such circumstances it would be of no used if the petition for divorce is not allowed. Regarding the argument advanced by Mr. Mitra that the marriage has irretrievably broken down and as such the marriage should be dissolved, we find no provision in the Hindu Marriage Act, 1955 which confers power on to the court to grant a decree for divorce on that ground. Moreover it does not appear from the petition that such a case was made out. The facts and circumstances and, evidence on record show that the respondent-wife wants to live with the husband. It cannot be said in the circumstances that a husband alone by his unilateral conduct can avoid the marriage and it would not be proper under such circumstances, when one party was willing to live together, to state that the marriage has really broken down. Mr. Mitra in this connection has referred to the case of (4) Parihar (Priti) v. Parihar (Kailash Singh), reported in AIR 1978 Raj 140 . The case cited above is distinguishable as in that case cruelty by the wife has been established. It was held in that case that the subsequent conduct of the wife did cause to the husband and his family could not be brushed aside by simply saying that these were acts in re action of husband's behaviour and should be ignored on account of the strains that has developed. Accordingly it was held that the cruelty was proved in that case. Moreover the facts and circumstances indicated in that case led the court to hold that the marriage has irretrievably broken down and no useful purpose would be served if the parties are not allowed to live apart. In the case before us it does not appear to us that the wife or the wife's family inflicted cruelty to the husband or husband's family in the manner found in the above case. In the case before us it does not appear to us that the wife or the wife's family inflicted cruelty to the husband or husband's family in the manner found in the above case. There is no reason in our opinion to hold that the marriage has irretrievably broken down because the husband does not want to live with and wants to avoid the wife. In the facts of the case before us it appears that the husband does not want to live with the wife. There is no scope for giving a premium to the husband's desire by allowing him to live apart applying the principle decided in the case of Parihar (Priti) v. Parihar (Kailash Singh) (Supra). Accordingly this contention of Mr. Mitra cannot be accepted. Mr. Mitra has also relied upon the decision in the case of (5) Akkamma v. Jagannadhan, reported in AIR 1981 Andhra Pradesh 269. The facts of that case is clearly distinguishable from the case before us. In that case the petitioner approached the High Court for relief after delay of nearly 10 years, after he came to know that the first respondent was living in adultery with the second respondent. The case of adultery was clearly established in that case and it was found that the first respondent had been living with the second respondent, in adultery since 1968 and the marriage irretrievably broken down. The petitioner also married another women and he had 5 male children and 3 female children by her. It is this dear that both the spouses had forgotten about their marriage. The parties to the marriage never lived together for the past two years. Therefore, it was held that it would be undesirable to keep the marriage, which has broken down irretrievably to be continued any further. It was a case where all the parties buried the marriage long ago. The facts in the case before us are absolutely different. Here although the husband wants to avoid the wife the wife is still willing to leave with the her husband and the only ground or charge of cruelty against the wife has also failed in this case. Accordingly it cannot be said that the marriage in the present case before us has irretrievably broken down. Mr. Here although the husband wants to avoid the wife the wife is still willing to leave with the her husband and the only ground or charge of cruelty against the wife has also failed in this case. Accordingly it cannot be said that the marriage in the present case before us has irretrievably broken down. Mr. Mitra also referred to the case of (6) Sarojini v. Sudarshan Kumar, reported in AIR 1984 Supreme Court 1562 and drew our attention to the following observations made by the Supreme Court at page 1566 of the said report : "Furthermore we reach this conclusion without any mental compunction because it is evidence that for whatever be the reasons this marriage has broken down and the parties can no longer live together as husband and wife, if such is the situation it is better to close the chapter". 13. It was found by the Supreme Court in the facts and circumstances of that case that the marriage has broken down. In that case before the Supreme Court in an application under section 9 of the Hindu Marriage Act restitution of conjugal rights a consent decree was passed for restitution of conjugal rights between the parties. There was, however, no cohabitation after the passing of the decree for restitution of conjugal rights. Husband thereafter filed a suit for divorce which was dismissed and subsequently came up in appeal to the Supreme Court. It was clearly found after considering the respective contentions of the parties made therein that the marriage has broken down and in that perspective the Supreme Court made the observation that since the marriage has broken down for whatever by the reasons it is better to close the chapter. In the case before us, however, we cannot hold at this stage that the marriage has broken down particularly when the wife is willing to live with the husband although the husband wants to avoid the marriage. 14. Mr. Mitra next contended that verbal abuse and insult, the continuous use of abusive and insulting words brings mental agony to the other spouse tending to undermine the health of the spouse and the same may in the circumstances of the case amounts to legal cruelty. In support of his contention he cited the case of (7) N. Sreepadachar v. Vasantha Bai, reported in AIR 1970 Mysore 232. In support of his contention he cited the case of (7) N. Sreepadachar v. Vasantha Bai, reported in AIR 1970 Mysore 232. It was held in the case cruelty under section 10(1)(b) need not be only physical, put there can be mental cruelty. The question of cruelty must be determined in the whole facts of the matrimonial relationship between the spouses. In the case referred to above the husband complained against continuous ill-treatment and abusive and insulting words used by the wife against him. The wife in that case abused the husband in public, in a bus caught hold of his collar, made the husband to cook food for her and when he served the food, threw the plate on his head on the ground that the food was not property prepared, threatened to burn herself and made false complaint to the police so that her husband may be put to trouble. When the husband was leaving for the office with his colleague, she caught hold of his neck and prevented him from taking the instrument used for his work stating before others that her husband may be killed in an accident so that she may get his insurance and provident fund amounts. All the aforesaid allegations were proved and it was found by the High Court that such facts clearly constitute cruelty. In the case before us the case of cruelty of the wife has not been proved at all. It cannot also be said in the case before us that the wife has treated the husband with such cruelty causing reasonable apprehension in his mind that it would be injurious to live with him. In the premises the said decision is of no help to the appellant. Mr. Mitra thereafter also cites the ease of (8) Jyotish Chandra v. Meera Guha, reported in AIR 1970 Calcutta 266 and drew our attention to paragraphs 24 and 25 of the said judgment at page 276 of the said report. The said paragraph 24 sets out the meaning of cruelty as stated in Halsbury's Laws of England 3rd Edition Vol. XII. Paragraph 24 quotes the observation made in 'Rayden on Divorce' 10th Edition page 148. The said definition of cruelty as given in Halsbury's Law of England or Rayden are undisputed. The said paragraph 24 sets out the meaning of cruelty as stated in Halsbury's Laws of England 3rd Edition Vol. XII. Paragraph 24 quotes the observation made in 'Rayden on Divorce' 10th Edition page 148. The said definition of cruelty as given in Halsbury's Law of England or Rayden are undisputed. However, it does not appear to us that in the facts and circumstances of the case before us the case of cruelty has been established. Moreover, if we consider paragraph 26 of the said judgment Jyotish Chandra v. Meera Guha (Supra) we find that the observations made in the said judgment would not be of any help to the appellant. On the contrary the same would be tend to destroy his case. It has been observed in the said paragraph as follows : "Assuming that injury or apprehended injury to health is found the court has then to decide whether the sum total of the reprehensible conduct was cruel. That depends on whether the cumulative conduct was sufficiently serious to say that from a reasonable person's point of view after a consideration of any excuse which this respondent might have in the circumstances, the conduct is such that the petitioner ought not to be called upon to endure it". 15. Considering the cumulative conduct of the parties we have no hesitation to hold that the conduct of the wife in the case before us cannot in any event amount to cruelty. In the premises the said case is of no assistance to Mr. Mitra. 16. Mr. Mitra also referred to the case of B. P. Gopala v. Pushpaveni, reported in AIR 1982 Karnataka 329 in which the same principle was followed as was decided by the Supreme Court in N. G. Dastane v. S. Dastane (Supra) to show that the court in hearing matrimonial case is only required to judge the question with regards discharge of the burden of proof viewing the matter on preponderance of probabilities as in civil proceedings and not insisting on proof beyond reasonable doubt as in a criminal trial. This case will also be of not much assistance to Mr. This case will also be of not much assistance to Mr. Mitra because as already observed, even if the case is decided on preponderance of probabilities as in civil proceedings even then we do not find that the wife's conduct in the case before us constitute cruelty so as to entitle the appellant to a decree for divorce. Mr. Mitra next cited the case of (9) Akalanka Bhandari v. Aruna Bhandari, reported in 74 CWN page 924 and urged that the cruelty under the Act is not necessarily confined to the physical cruelty. As a matter of fact mental cruelty is more harmful and injurious and disturbing than physical cruelty. In that case the wife's evidence showed that the husband had the suspicion-mania from the very beginning, and though she had given many chances and had returned to live with him but his conduct did not improve and he went on as before. The husband even went so far as to call the wife a prostitute. Though the wife read upto 4th year class before her marriage the husband considered her to be a girl of little learning. It was held considering the act and circumstances of the said case and the evidence as aforesaid that this sort of allegation days in and days out, would certainly make the life of the other party extremely miserable and the same amounts to cruelty as to cause reasonable apprehension in the mind of the wife that it would be harmful and injurious for her to live with the husband and on that basis husband's application under section 9(1) of the Hindu Marriage Act for restitution of conjugal rights was disallowed and it was held that there was reasonable excuse for the wife to avoid the society of the husband. These facts as already observed are clearly distinguishable from the case before us and we do not find that the cruelty against the wife bas been established. In the facts and circumstances this case is also of no assistance to Mr. Mitra. 17. Mr. Durgasankar Mallick, learned Advocate for the respondent on the other hand contended that it is in evidence that the respondent was cruelty treated by the husband. He also stated that the respondent was assaulted by her husband, the appellant as would appear from the evidence of respondent that she was abused and assaulted by her husband. Mitra. 17. Mr. Durgasankar Mallick, learned Advocate for the respondent on the other hand contended that it is in evidence that the respondent was cruelty treated by the husband. He also stated that the respondent was assaulted by her husband, the appellant as would appear from the evidence of respondent that she was abused and assaulted by her husband. She used to be served meal in a neglected manner and her husband did not allow her to sleep him in the same room and she used to sleep in a separate room. Mr. Mallick submits that in fact there is no cross-examination of the respondent on this point. He further submitted that even if it is assumed that the respondent used abusive words, under what circumstances such words were used were not stated by the witnesses. He also submitted that even assuming that respondent used harsh words which may amount to cruelty but the facts and circumstances of the case show that there was great provocation causing such words to be used and in such circumstances he submits no relief can be granted to the petitioner. In this connection he refers to the Rayden on Divorce 14th Edition page 243 para 46 in support of his contention. Mr. Mallick further states that before granting a decree the court has to be satisfied that the petitioner is not in any way taking advantage if his or her own wrong in terms of the provision of section 23(1) of the Hindu Marriage Act. In this case facts and circumstances show that the petitioner himself has committed wrong and misbehaved with the respondent and as such the court below was justified in dismissing his case. Mr. Mallick also submitted before us that in order to constitute cruelty the conduct should be grave and weighty and must be more serious than the ordinary wear and tear of the marriage. He referred to the case of Maya v. Brijnath reported in AIR 1982 Delhi page 240. He submitted citing the case that facts and circumstances in the present case are not such as to show that the conduct of the respondent amount to cruelty. He referred to the case of Maya v. Brijnath reported in AIR 1982 Delhi page 240. He submitted citing the case that facts and circumstances in the present case are not such as to show that the conduct of the respondent amount to cruelty. He also argued relying on the decisions in the case of Bipinchandra v. Probhavati (Supra), Lachmandas v. Meena (Supra) and Earnist John White v. Kathleen Olive While (Supra) and argued that in proceedings for divorce the plaintiff must prove the matrimonial offences beyond reasonable doubt and the court has to be satisfied from the evidence in respect of the matrimonial offences and the guilt must be proved beyond reasonable doubt and although in the case of N. G. Dastane v. S. Dastane it was held by the Supreme Court that the court can be satisfied on the basis of preponderance of probability and the requirement of proof as in the criminal case is not necessary, as in our opinion the conduct of the respondent-wife is not such so as to constitute cruelty. We accept the contention of Mr. Mallick that even assuming that the respondent used harsh words which may amount to cruelty but the facts and circumstances of the case show that there was grave provocation causing such words to be used because it is clear from the records that the husband has totally neglected the wife. It also appears to us that the husband wants to take advantage of his own wrong being himself guilty of misbehaviour with this wife and under such circumstances the court cannot pass a decree in his favour. As already observed by us, we do not find even on the preponderance of the probabilities of the case that the cruelty has been established and as such it is not necessary to decide as to whether according to the earlier decisions by the Supreme Court, matrimonial offences are to be proved beyond reasonable doubt. We also take note of the case of (10) Jagadish Chatterjee v. Dipali Chatterjee reported in 1986 (1) CLJ 83 wherein it was found by the Division Bench of this court that inasmuch as the respondent-wife was desirous of continuing with her marital obligations, but it was the appellant-husband who created fetter on her in a manner so as to become impossible for her to carryon such obligations. It was also held in that case that the onus will lie upon the party alleging that cruelty has been committed. It was further observed that in the facts and circumstances of that case that it was the appellant-husband, whose case for divorce on the ground of cruelty was dismissed, had really intended to bring the cohabitation permanently to an end and the disruption of matrimonial home was not due to the respondent-wife and as such it was held that the husband was not entitled to a decree for divorce. In the facts and circumstances as above we are not inclined to interfere with the judgment of the court below. Accordingly this appeal is dismissed with costs. Bhattacharjee, J.: I agree.