JUDGMENT : ( 1. ) THIS is a plaintiffs appeal against judgment and decree dismissing his suit for divorce. ( 2. ) THE plaintiff/husband filed the suit on 1-3-1984 for divorce under Section 13, in the alternative for judicial separation under Section 10 of the Hindu Marriage Act, 1959. By amendment dated 17-8-1984, the plaintiff restricted the petition for divorce only. The plaintiff is a matriculate and a bullion merchant of Narsinghpur. The defendant is a post-graduate resides with her widow mother Smt. Bimla at Kareli. The marriage between the parties took place on 28-4-1983. She came to marital home and lived with him at Narsinghpur for about 3-4 days. Thereafter she returned to her mothers house. Three or four days thereafter, the defendant came to the plaintiffs house in second Bida. This time she remained in the plaintiffs house for 8-10 days. On account of her insistence to return, the defendant was sent to her mothers place. She remained there for a fortnight. After living with the plaintiff for some time she finally returned to her mothers house on 26-7-1983. Thus the total stay of the defendant soon after marriage was for 3 days, in second Bida for 8-10 days and, in the third time for about one month and twenty six days, the total stay of the defendant with the plaintiff comes to about seventy days. The instances of cruelty alleged are :- (a) During her first stay, she gave vent to her higher educational qualification as compared to that of the plaintiff who is only a matriculate. A suite of five big rooms was provided for her decent living, but she often remarked that the gap in education of the two, cannot be filled up by large accommodation and that in the plaintiffs family no one is educated as she is. When she was told that such remarks hurt his feelings, she used to reply--"fact is fact"; (b) During her second visit the defendant started misbehaving with the plaintiff and his family members. Whenever she was asked to do some personal work fetching a glass full of drinking water or milk she used to remark that she is not his servant. She did not undertake any house hold work. She called the plaintiffs mother by filthy name and on his protest, she expressed repentance for having married the ill-educated person. Whenever she was asked to do some personal work fetching a glass full of drinking water or milk she used to remark that she is not his servant. She did not undertake any house hold work. She called the plaintiffs mother by filthy name and on his protest, she expressed repentance for having married the ill-educated person. She also used to call his house a hell. She would commit suicide and implicate every members of his family; (c) One Rakash alias Pappu who had been residing in her fathers house, she told the plaintiff that said Pappu is a Tantrik and he does not stand any match with him. She could sacrifice for Pappu including his desertion. Emboldens by the Tantrik powers, she used to tell the plaintiff that she could take the liberty to abuse them and behave in any manner she like and in the event of resistence she would destroy the entire family with Tantra Vidya. The plaintiff further alleged that she was found keeping some "dulhadev" and "brammadev" in the coconut as also copper-plates with some Mantras inscribed on them which, she disclosed, were given to her by Pappu. When all these were detected she raised hue and cry to the pitch of her voice to the hearing of the neighbours which cause annoyance to the plaintiff and his family members. She summoned her mother through a letter. Her mother came along with Pappu on 26-7-1982 and after abusing the plaintiff and his mother filthly took the defendant away to their house on the same day despite protest and request by the plaintiff to allow her to live with him; (d) After the defendant came second time, the defendant denied sexual intercourse to the plaintiff by occupying the secluded room; (e) The plaintiff sent message to the defendant and her mother to resume marital home, but she did not come. The plaintiff, therefore, concluded that the chances of returning back to her and to lead like a faithful Hindu wife had disappeared; ( 3. ) THE plaintiff pleaded that on account of the aforesaid cruelty inflicted on him the plaintiff suffered extreme mental distress and hardship. The plaintiff, therefore, concluded that the chances of returning back to her and to lead like a faithful Hindu wife had disappeared; ( 3. ) THE plaintiff pleaded that on account of the aforesaid cruelty inflicted on him the plaintiff suffered extreme mental distress and hardship. The plaintiff further pleaded that for the reasons stated in the petition, the case was one of the exceptional deprivity on the part of the defendant and for that reason the petition for divorce was made before one year had elapsed from the date of marriage. In case, the court was not pleased to permit the present petition for divorce, he prayed that the petition be treated as for judicial separation. By amendment dated 17-8-1984, the plaintiff added that having one year expired, it is not necessary to treat the petition for judicial separation and instead the same be treated as petition for divorce. ( 4. ) THE defendant denied all the allegations as false and baseless or that they could be construed as cruelty. According to her educational qualification and disparity in that was known to the parties from before. She submitted that in the society to which the parties belong, there are several couples in which the wives possessed higher educational qualifications, but that never gave rise any superiority complex muchless to her. She never denied sex relation to him nor she ever uttered anything about Tantra Vidya, Pappu alias Rakesh is the son of her uncle is brother-in-law. According to her, since she conceived during her first visit itself, the plaintiffs mother and elder brother suspected that the pregnancy was at the instance of the said Pappu and on that ground they started ill-treating her. When it became intolerable, she summoned her mother and brother to speace the plaintiff and his family members. The plaintiff and his elder brother misbehaved with her brother and also hurled filthy abuses on them. Therefore, she bad to return back to Kareli along with them. During her stay in her mothers house, she was blessed with a daughter on 3-2-1984 in Narsinghpur Hospital. ( 5. ) THE learned trial Court held that the plaintiff failed to prove that he was treated with cruelty by the defendant. He also held that the defendant did not refuse sexual activities to the plaintiff. He, therefore, dismissed the petition. Hence this appeal. ( 6. ( 5. ) THE learned trial Court held that the plaintiff failed to prove that he was treated with cruelty by the defendant. He also held that the defendant did not refuse sexual activities to the plaintiff. He, therefore, dismissed the petition. Hence this appeal. ( 6. ) LEARNED counsel for the appellant referring to Dr. N. G. Dastane v. Mrs. S. Dastane, ( AIR 1975 SC 1534 ) submitted that preponderance of the probabilities after considering the case set up by both the parties has to be fixed and weighed thereafter. In this decision it was observed that the cruelty might be inferred from the whole facts and matrimonial relations of the parties arid atmosphere disclosed by the evidence. The acts alleged must be considered not separately but together. ( 7. ) CRUELTY per se was not a ground for relief by way of divorce prior to the amendment of Section 13 by the Amending Act No. 68 of 1976, it was only a ground for relief of separation under Clause (b) of Section 10 (1) of the Act. In Gurcharan Singh v. Sukhdev Kaur, (AIR 1979 P and H 98) it was observed that cruelty was added as (ia) under Section 13 (1) so as to liberalise the law of divorce. Reference was also made to Shobha Rani v. Mudhakar Reddi, AIR 198s SC 131; wherein it was observed as under:- "the word "cruelty" has not been defined and could not have been defined. It has been used in relation to human conduct or human behaviour. It is the conduct in relation to or in respect of matrimonial duties and obligations. It is a course of conduct of one which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. There may be cases where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or the injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted. " "when a spouse makes complaint about the treatment of cruelty by the partner in life or relations, the Court should not search for standard in life. A set of facts stigmatised as cruelty in one case may not be so in another case. In such cases, the cruelty will be established if the conduct itself is proved or admitted. " "when a spouse makes complaint about the treatment of cruelty by the partner in life or relations, the Court should not search for standard in life. A set of facts stigmatised as cruelty in one case may not be so in another case. The cruelty alleged may largely depend upon the type of life the parties are accustomed to or their economic and social conditions. It may also depend upon their culture and human values to which they attach importance. The Judges and lawyers, therefore, should not import their own notions of life. " ( 8. ) BEFORE examining the series of acts and conduct constituting cruelty it is essential to refer 23 (1) (b) of the Act which casts an obligation on the Court to consider the question of condonation. Condonation operates as bar to the granting of relief. If the Court is satisfied from the evidence on record that petitioner has condoned the cruelty, the Court has no discretion in the matter. Condonation need not be express, it may be implied from the conduct of the parties and circumstances of the case. There may not be an agreement in the strict sense but there must be an intention to forgive on the part of the offended spouse and willingness to be forgiven by the other. ( 9. ) IN para 2 (d) of the petition, the appellant pleaded that when the respondents mother expressed to take her back, he had protested and requested them to leave her at his house and allow her to live with him as his faithful and affectionate wife. Again in para 2 (g) he pleaded that he not only sent words to the respondent but also to her mother for the respondents return to the petitioner but the was not sent. The appellant as PW 3 stated in para 5 of his deposition thereafter the respondent left, he sent many letters to her as also to her mother requesting them to return her immediately. He received no reply from the respondent or her mother. From all these, one can readily infer that the appellant never took the lapses as of grave and serious character. He received no reply from the respondent or her mother. From all these, one can readily infer that the appellant never took the lapses as of grave and serious character. His protests to her mother that she be allowed to live with him as his faithful and affectionate wife followed by repented letter inviting her to resume conjugal relationship, show that be had condoned her. He filed this petition only when he was frustrated by their exience (? ). The respondent initially levelled counter charged against the appellant but at the recording of evidence an unconditional offer was made to the appellant to return to him. The appellant rejected that offer. In para 21 of her deposition the respondent stated that about the letters were sent to the appellant conveying her intention to resume cohabitation. The respondent again expressed her willingness to live with the appellant during reconciliation proceedings. From all these, the irresistible inference is that the appellant had condoned the respondent end wanted her to continue living with him. He persued the matter through letters. The appellants stand that there was no response from the respondent does not appear to be correct. The respondent had throughout been willing to resume cohabitation and she maintains that even today. Therefore, it must be held that the appellant having condoned her acts and omissions on condition of her returning back, backed out despite respondents willingness to return, and filed the present petition. This Court is entitled to take note appellants conduct under Section 23 (3) of the Act during conciliation proceeding. The appellants conduct is such that disentitles him to any relief. ( 10. ) HOWEVER, I do not purpose to dispose of the appeal on the aforesaid conclusions and would like to examine the merits without being influenced by the aforesaid findings. The first question for decision is whether the respondent did not permit the appellant to have intercourse with her, during second visit to the marital home. This ground is raised in para 2 (f) of the plaint. The respondent denied the allegations. She also denied shifting to another room to sleep during night. The appellant deposed that in her second visit the respondent lived, in his house for 10-12 days and during this period he wanted to have sexual intercourse with her, but she never consented. This ground is raised in para 2 (f) of the plaint. The respondent denied the allegations. She also denied shifting to another room to sleep during night. The appellant deposed that in her second visit the respondent lived, in his house for 10-12 days and during this period he wanted to have sexual intercourse with her, but she never consented. He alleged that the respondent used to sleep in the other room after bolting the doors from inside. In cross-examination, he admitted that during her first visit, he had intercourse with her only two nights. Ho further admitted that in second visit, both used to go to upstairs to pass night. The appellant does not disclose why the respondent used to sleep in other room after bolting the doors from inside. Unless something transpires, there was no earthly reason for the respondent to move to another and pass nights in solitude. The appellant also failed to point out that room, where she used to sleep all alone. Mere refusal of sexual intercourse is not per se cruelty. It is true that when a wife deliberately and consistently refuses to satisfy her husbands natural urge for sex, the wife would be guilty of cruelty. In order to reach at such a conclusion, the appellant was expected to prove that the respondent denied to satisfy his sexual urge and that denial was without any legitimate cause, and intentional The respondent denied the charge. During cross-examination, it was suggested that she refused cohabitation on the ground that Pappu, through his magic-power, would See them during the act. Had this been the reason to deny sex to the appellant, how is that during first visit the appellant did have sexual intercourse with her. The appellant failed to assign any cause for the alleged refusal. He also did not furnish particulars of the dates on which she denied him the performance of the sexual act. His statement does not show that beside the bed-room occupied by them, there was any other bed-room, on the upper storey. Moreover, it looks quite unnatural that a wife, who had been co-operating for performance of sexual act during the first visit will suddenly develop indifference towards it. The suggestion thrown during cross-examination that the respondent abstained from sex apprehending Pappus magical vision is after thought, also it would have been in the pleadings. Moreover, it looks quite unnatural that a wife, who had been co-operating for performance of sexual act during the first visit will suddenly develop indifference towards it. The suggestion thrown during cross-examination that the respondent abstained from sex apprehending Pappus magical vision is after thought, also it would have been in the pleadings. I, therefore, hold the appellant failed to establish that the respondent denied sex to him. ( 11. ) THE next question for determination is whether the respondent misbehaved, abused and quarrelled with the appellant. The plea in this regard is in para 2 (a) of the plaint. The appellant pleads that during her first visit, the respondent imposed her superiority by openly telling that all the members of the appellants family possess little or no education as compared to her. When the appellant tried to soothe her with the advice that such remarks hurt him, she used to retort that the "fact is fact". The appellant is the sole witness to prove the allegation. In para 1 of his deposition, he stated that during her stay second time, her behaviour towards him and other members of his family was abnormal. She remarked 3 to 4 times that his education is lesser as compared to her. The respondent also expressed repentance over marrying him and would not live any more in his house. The appellants attempt to appease her had no impact. The alleged repentance towards the marriage and her threats not to continue conjugal life, are beyond the pleadings and are sheer improvements. The respondent stated that she agreed to marry the appellant with full knowledge and understanding that he is only a matriculate. She denied that she was ever remorceful on the ground that she is M. A. while he is only a matriculate. The evidence shows that she had voluntarily accepted him as husband and bad no repentance for that. On the other hand, it appears that the appellant, of his own became psychic on account of her higher qualifications and suffers from complex by showing his back to her. It is difficult to accept the appellants accusations based on disparaties in education. ( 12. ) YET another charge against the respondent is that she was disobedient to routine demands for water, milk etc. and avers to do other house hold duties. She called his mother illiterate and rustic. It is difficult to accept the appellants accusations based on disparaties in education. ( 12. ) YET another charge against the respondent is that she was disobedient to routine demands for water, milk etc. and avers to do other house hold duties. She called his mother illiterate and rustic. In para 2 (c), it is stated that respondent used to call his mother by filthy names, and whenever he requested her not to utter nasty words, she rebuked the petitioner. The allegation lacks in material particulars, for he failed to specify what those filthy and nasty words were. Appellants mother did not enter the witness- box. In the circumstances, the appellants sole testimony in court that she called his mother an illiterate and rustic is not wholly reliable. ( 13. ) STILL another ground pressed into service is the respondents expressions of association- with and praise for Pappu and worshipping dulhadev and Brahmdev. These are pleaded in para 2 (d) of the plaint. According the appellant, Pappu resided in the respondents house at Kareli. The respondent used to say that Pappu is a Tantrik and she could sacrifice anything for Pappu and if -necessary she could desert him Even from Kareli Pappu through Tantrik powers, could see what was going on at Narsinghpur. She therefore often said she has right to abuse him and his family members and in case he opposed her. Pappu would destroy his family through magic. He further alleged that once she was seen worshipping a coconut and some copper-plates on which Mantras were inscribed. When the appellant discovered all that, the respondent loudly cried to the hearing of the neighbours and annoyance of his family members. She also expressed not to stay in his house any more and would return to her mothers place. She called her mother through a letter, in response to which her mother and Pappu, came and they, after hurling filthy abuses at him and his mother, took away the respondent to their house on 26-7-1983, despite protest by the appellant. ( 14. ) THE first part of the allegation is that Pappu had been residing in her mothers house without being a relative. The foundation in the plea is that the respondent had a liaison with him, but the appellant could not gather courage to express it in so many words. Pappu was examined on commission as NAW 2. ( 14. ) THE first part of the allegation is that Pappu had been residing in her mothers house without being a relative. The foundation in the plea is that the respondent had a liaison with him, but the appellant could not gather courage to express it in so many words. Pappu was examined on commission as NAW 2. The respondents sister is now married to him. The respondent NAW 1, her mother Bimla Devi and Pappu all emphatically denied that Pappu is Tantrik or he had any illicit relation with the respondent. Pappu explained that he was the class fellow of her brother Arun Nema (NAW 3) and the two jointly studied for P. M. T. Examination. According to Arun Nema and Raghunandan Prasad (NAW 2) the appellant and his family members all accused her of having illicit relations with Pappu. The respondent and her witnesses refuted the allegation as baseless. The appellant has thus no justification to suspect respondents fidelity, more so when the appellant admits the paternity of the child born by the respondent. Even if Pappu had resided in the respondents house at any time, no one should jump to that conclusion. The appellant is reckless and irresponsible in conveying the insinuations with mala fide intention to disrupt the harmony between her sister and her husband also. The appellant thus failed to establish that Pappu is a tantrik or that the respondent had illicit relations with him. The other part of the allegation is that Pappu, as and tantrik was (?) from any place must be rejected as not proved. ( 15. ) NEXT part of the allegations is that the appellant saw the respondent worshipping a coconut and some copper-plates. On enquiry she became volatile and shouted to the pitch of her voice. Dr. C. K. Shrivastava (AW 1) stated that be had heard the respondents shouting. In cross examination be admitted that he bad not personally seen her shouting but was his inference. Next morning he claims to have told the incident to his wife, but Smt. Kamla Shrivastava (AW 1) his wife does not corroborate him. She expressed complete ignorance how the respondent lived in the appellants house and how she was disposed of to the appellant and his family members. She only witnessed that the respondents mother came and took her away. She expressed complete ignorance how the respondent lived in the appellants house and how she was disposed of to the appellant and his family members. She only witnessed that the respondents mother came and took her away. Shambhudayal (AW 2) admits that he did not ask the appellant to show the coconut and the copper-plates. According to him the respondent admitted that she worshipped but whom, she did not disclose. The respondent denied meeting Shambhudayal or attending any Panchayat convened by him. There is no other evidence on this Court. Therefore in the absence of any reliable evidence and adequate corroboration the ground cannot be held as proved merely on the appellants sole testimony. It is worth mention, that the alleged coconut and copper-plates were not seized by the appellant nor Shambhudayal was eager to verify them from the respondent. According to the appellant, the respondent used to sleep in an other room after bolting the doors from inside, and if that was so, how the appellant could effect his entry to watch her worshipping them. The appellant made no attempt to reconcile the conflicts in his statement. ( 16. ) THE last allegation is that the respondents mother came along with Pappu and started abusing the appellant and his family members filthily. Smt. Kamla Shrivastava (AW 1) had witnesses the respondent going back with her mother. She did not allege that Pappu was also with her. The appellant and Shambhudayal are the only two witnesses who stated about it. Shambhudayal is the appellants cousin. He deposed that the appellant told him that the respondents mother abused him and his mother. Shambhudayal called Vimlabai, Arun and Pappu from their maternal uncles house. He also summoned the respondent in that Panchayat. The appellant complained to them all the aforesaid against the respondent. Shambhudayal admitted that he could not resolve their disputes and finally Vimlabai went back to her home with the respondent. The presence of Shambhudayal on that date and time, is not free from doubt. By profession he is Munim and was called by the appellant through telephone. When he reached his house, the appellant complained to him that they were indulging in abuses. Vimlabai, Arun Nema and Pappu were not present then in the appellants house. They were called from the house of their maternal uncle. That maternal uncle is not examined. By profession he is Munim and was called by the appellant through telephone. When he reached his house, the appellant complained to him that they were indulging in abuses. Vimlabai, Arun Nema and Pappu were not present then in the appellants house. They were called from the house of their maternal uncle. That maternal uncle is not examined. The appellant has his own elder brother Kailash and mother, both of whom were present in the house. It is surprising neither of them was called to participate in that Panchayat. The respondent denied that she or her mother, brother or Pappu abused any one. In the absence of any reliable evidence, it must be held that the appellant failed to establish his allegation in sub para 2 (d ). ( 17. ) AT the end of sub para 2 (d), the appellant averred that when Vimlabai intended to take respondent back he had protested and requested them to leave her at his house and allow her to live with him as faithful and affectionate wife. This shows that the respondent had been a faithful and affectionate wife till she lived with him. The allegations in the earlier part of the sub para 2 (d), the respondents high praise and liking for Pappu, or her preparedness to sacrifice anything for Pappu including abandoning his house, all run counter to his admission that she was faithful to him. Similarly the allegations that the respondent abused and treated him in any manner she liked, if objected her threats that Pappu would destroy the entire family, are contrary to his admission that she was affectionate wife. Thus the pleadings are sold (?) contradictory. ( 18. ) THE allegations contained in sub para 2 (e) and (f) are mere repeatations of the grounds already discussed above. In view of the foregoing discussions, it must he held that the appellant failed to prove that the respondent treated the appellant with cruelty and his petition was rightly dismissed. ( 19. ) BEFORE parting with this judgment, I am constrained to observe that the appellant, on account of disparity in the educational qualifications of the panics, suffered a psychological set back and eventually it turned into a complex. As a result of this, he lost all courage to maintain the respondent as his wife. Meanwhile he started suspecting her fidelity since Pappu was associated with the respondents family. As a result of this, he lost all courage to maintain the respondent as his wife. Meanwhile he started suspecting her fidelity since Pappu was associated with the respondents family. His suspicion turned into conviction on account of early conception. His family members too did not miss an opportunity to vouchsafe his convictions. Persistent loose talks based on rumours and the ill-advice of his close relations, led to the filing of this petition, even before expiry statutory period of one year from the date of marriage on grounds having no base whatsoever. ( 20. ) THE appeal fails and is accordingly dismissed with costs. Counsels fee Rs. 300/-, if certified.