JUDGMENT V.D. Gyani, J. 1. Both those appeals are closely inter-connected. They arise out of matrimonial dispute between the parties. Appellant Shakuntala filed a suit for restitution of conjugal rights against her husband respondent Shivratan, who had filed a suit for divorce on the ground of cruelty. The trial Court while decreeing husband respondent's suit for divorce, dismissed wife appellant's suit for restitution of conjugal rights. F.A. 47/88 is directed against the dismissal of suit for restitution of conjugal-rights, while appeal No. 46/88 is against the judgment and decree of divorce dt. 23.6.1988 passed in CO. Section 3-A/86 by Addl. District Judge, Kukshi. 2. Shri Barania, for the appellant and Shri Ahiwasi, for the respondent are heard. 3. Appeal No. 46/88 is taken up first. Respondent husband filed a suit for divorce against the appellant on 2.1.86, in the Court of Addl. District Judge Kukshi. 4. It is an admitted position that the parties were married at Indore about 10 years prior to the filing of the suit for divorce. Both of them are in Govt. Service. While the respondent husband is an Upper Division Clerk in P.H.E. Deptt. Posted at Kukshi (Bara Babu) as pleaded by him in para of the petition. The appellant wife is a nurse posted at Tanda in the same District Dhar. They have a son and a daughter aged about 11 and 18 years by now. 5. It was the respondent's pleaded case that some time in the last week of November, 1988, his wife came to Kukshi from Tanda. Seeking him in the company of a stranger woman (whom the respondent-husband had pleaded to be his friend) picked up a quarrel with him, and lodged a report at the Police Station, with the result that the respondent was hauled up Under Section 151 Cr. P.C. He was released on bail next day. Ever since this incident which led to his humiliation and damaged his reputation, the husband-respondent was undergoing mental tension and torture. 6. The other ground of alleged cruelty, as pleaded by the respondent is that the appellant despite being repeatedly requested and persuaded by the respondent, did not agree to her transfer to the place of her husband's posting, thus depriving him of her. 7. The appellant wife, denied both these allegations. Giving up her job, after marriage, she lived with the respondent at Ranapur, where he was posted, lateron. 7. The appellant wife, denied both these allegations. Giving up her job, after marriage, she lived with the respondent at Ranapur, where he was posted, lateron. In order to face financial strengency, she had agreed to take up job as a nurse, at the instance of the respondent. She has emphatically demoed the suggestion that her husband proposed to her that she should get herself transferred to the place where he was posted, or that she refused to accede to it. The insinuation that she was given to a free way of life has also been denied by her. 8. As for the November incident, her case is that when she came to discharge her obligations as a wife, she found her husband in the company of one Jaimala, from Ranapur. The respondent was taken aback seeking his wife and son Jitendra. The respondent left for a movie alongwith Jaimala, and on return from picture, asked the appellant to leave his quarter. She was beaten up and driven out of the house. It was in these circumstances that she approached the local S.D.M. who incidentally happened to be a lady. It was she (the SDM) who arranged for appellant's safe journey to Tanda that night. Except for narrating her wees to the SDM, she has denied having lodged any report. 9. She charged the respondent as a womaniser. Leading an immoral life. In fact, the respondent was cruel to her, in all possible ways which she has suffered in silence. 10. One important fact which needs to be noted is an agreement dt. 19.11.85 executed by both the parties, thereby mutually condoning the acts of each other and agreeing to lead a peaceful harmonious conjugal life. 11. Shri Barania, learned Counsel appearing for the appellant has assailed trial Court's finding on the point of cruelty as wholly unsupportable by evidence on record and perilously bordering on perversity. According to him it was appellant wife who was the victim of respondent's cruelty. Continuing his arguments, Shri Barania submitted that the instance of cruelty relied upon by the Trial Court, is not even pleaded by the respondent-husband. This Trial Court has also completely overlooked the effect of condonation of alleged act of cruelty as reflected by Agreement Ex. D. 1. 12. Continuing his arguments, Shri Barania submitted that the instance of cruelty relied upon by the Trial Court, is not even pleaded by the respondent-husband. This Trial Court has also completely overlooked the effect of condonation of alleged act of cruelty as reflected by Agreement Ex. D. 1. 12. Shri Ahiwasi, on the other hand supporting trial Court's judgment submitted that even if the case is not specifically pleaded with regard to the subsequent incident dt. 30.1.86, as deposed to by the respondent-husband and his witness Narayan Malviya PW. 2 the Trial Court was justified in taking the same into account, in passing the decree for divorce as it did. Its reasoning is that the subsequent incident was merely an off-shoot of the earlier one. 13. Before dealing with the rivial contentions as advanced by the learned Counsel, it would not be out of place to note the finding recorded by the Trial Court. The learned Judge has framed as many as six issues The first one relates to the question 'whether appellant avoided her transfer to the same place where respondent-her husband was posted. The finding as returned is in the affirmative. Similar finding has been recorded on the point of lodging a report and thereby humiliating her husband on the point of cruelty The Trial Court's finding is based on a fact that by lodging a report about the incident as noted above, the appellant wife acted with cruelty against her husband who had to suffer social humiliation. 14. Cruelty is not defined by the Act. Its legal conception and connotation is left to the Court to determine facts and circumstances of each case. It is a common ground that after Amendment Act of 1976 the concept of cruelty has been liberalised. It is with this liberalised approach now remains to be seen whether the decree for divorce on ground of cruelty has been passed by the learned Trial Judge is sustainable. In the background of facts as noted above, and taking into consideration the pleaded case of respondent-husband it is an admitted position that when the appellant who was posted at Tanda' came to visit him at Kukshi, he was found to be in company of one Jaimal, who according to Respondent had come on the way from Ranapur to borrow some money from him. So far so good, there was nothing wrong nor can it be legitimately objected to by any woman. But the matter does not rests here the appellant wife had come on weekend to live with her husband, who was posted at a nearby station ; she was accompanied by her son Jitendra aged about 7 years. How were they received by the husband ? The respondent did not allow them to enter the house ; on the other hand he pushed them out The appellant was physically manhandeled and the husband left in the company of Jaimala whom he calls a 'Mahila Mitra'--friend for a movie. Even making a concession for such an act, there was no justification at all for keeping the wife out side the house and making her wait till they returned from the picture. They waited outside the house-this conduct is certainly not indicative of Jaimala, as innocent borrower, coming for borrowing some money as pleaded by respondent This innocence has been bailed by their visit to a picture that too keeping the wife and son behind, making them waited for all the time and not even allowing them entering the house, as if it was not enough the appellant wife was beaten up and pushed out of the house. This conduct does not reflect innocent borrowing on the part of Jaimala. If that was the purpose of her visit, she could well have deposed it within minutes. But that is also not born out from respondent's own evidence. On the other hand this borrowing, as admitted by the respondent itself lends support to the appellant's contention that her husband-respondent being upper division clerk or head clerk (Bara Babu), as claimed by him, was incharge of disbursing of funds and used to extract commission and this ill-got money spent on womanising. 15. It is in these circumstances that the appellant knowing as she did, that the local S.D.M. was a lady, approached her not out of her choice or voilition, but sheer compision of circumstances. It was she (the lady S.D.M.) who arranged that night to send her back to Tanda. 15. It is in these circumstances that the appellant knowing as she did, that the local S.D.M. was a lady, approached her not out of her choice or voilition, but sheer compision of circumstances. It was she (the lady S.D.M.) who arranged that night to send her back to Tanda. The narration of her woes to the S.D.M. resulting in some action against respondent husband by the police, who hauled him up has been taken and treated to her act or cruelty on the part of appellant wife, and has been made the basis of a decree for divorce. 16. Crucial question is that as to what compelled the wife to approach the S.D.M. It may be noted at this stage that the report allegedly made by the appellant wife, has not even been admitted to be produced by the respondent. Much less actual produced and proved. Surprisingly enough the learned Counsel for the respondent still persisted in arguing that even if the report was not produced yet the trial Court was justified in interring the contents thereof without documents being produced on record. It is a novel argument, offending the basic principle of law of evidence, and must therefore, be rejected. The approach of the learned Trial Court is voilative of all norms and principles of appreciation of evidence. While holding the appellant guilty of having lodged a report (not produced) the learned Judge very conveniently overlooked the conduct of respondent-husband, who abused his wife in presence of his so called Mahila Mitra-Girl friend, takes her to picture, making his wife and son waited outside the house and on return still finding her waiting beats her and drags her out. If in such circumstances a woman approaches the authority, by what stretch of law or imagination can it be said to be an act of cruelty on the part of the woman ? Who is herself a victim of cruelty both physical and mental. Ignoring this conduct on the part of respondent husband, the Trial Court has blamed the appellant wife for loading a report which resulted in respondent's arrest Under Section 151 Cr. P.C. and eventually released on bail next day afternoon. 17. Assuming for sale of arguments, that the report lodged by appellant, resulted in respondent's arrest Under Section 151 Cr. Ignoring this conduct on the part of respondent husband, the Trial Court has blamed the appellant wife for loading a report which resulted in respondent's arrest Under Section 151 Cr. P.C. and eventually released on bail next day afternoon. 17. Assuming for sale of arguments, that the report lodged by appellant, resulted in respondent's arrest Under Section 151 Cr. P.C., now can she be blamed for any access indulged in my the police transgressing its authority. The complainant can not be blamed for an act of high handedness or transgression of one's authority. 18. During the course of arguments, learned Counsel appearing for the respondent was specifically questioned if he had any grievance against police access of handcuffing, beating the respondent, surprisingly enough learned Counsel came out with a reply that respondent had none. No action was taken by him against alleged high handedness of the police. On the other hand even the learned Counsel blamed the appellant who was the root cause of the alleged humiliating treatment. It does not stand to reason how can a complainant be blamed for transgression of authority by public servant. 19. Although not pleaded the respondent in his evidence stated that he was beaten by his wife with CHAPPAL at Police station, possibly at the behest of Police. The appellant has denied this fact. .It does not find a mention either in the petition or in the notice. So much so, even respondent's own witness Narayan Malviya-PW. 2 does not support him on his point. 20. Learned Judge of the Trial Court heavily bark upon this point for establishing cruelty on the part of the appellant. There is no pleadings to this effect nor evidential support to sustain such a finding. 21. The learned Judge of the Trial Court has given a convenient go by to sub. Clause (b) of Sub-section I of Section 23 of the Act. Section casts a duty on the Court to be satisfied that the petitioner has not in any manner been accessory to the acts complained of. In the instant case, the petitioner seeking a decree for divorce, was not merely accessory to the acts complained of. He was solely and exclusively responsible for the report which appellant was compelled to lodge. It was his conduct which compelled the appellant wife to approach the S.D.M. whom she narrated her woes. In the instant case, the petitioner seeking a decree for divorce, was not merely accessory to the acts complained of. He was solely and exclusively responsible for the report which appellant was compelled to lodge. It was his conduct which compelled the appellant wife to approach the S.D.M. whom she narrated her woes. And if this has led to any action on the part of the authorities, she can not be blamed although he has come out with a case that she had been suffering in silence ; but even such suffering has a limit. She had suffered but possibly she could not suffer in face of so called his 'Mahila Mitra' A victim, of leading the judgment of Trial Court as it is, one can not escape the conclusion that it is @ the victim of cruelty ; she has been visited with the penalty of a decree of divorce on the ground of cruelty. Perpatuity of cruelty is rewarded with a decree. There is substance in that. The contention advanced by the learned Counsel that Trial Court's approach, was perilously bordering on perversity. Ex. D. 1 -the Agreement has not been considered. It is an act of condonation. The respondent husband was an accessory to the acts complained of. The Trial Court was duty bound to consider the effect of act of condonation which it failed to do. 22. The other ground which the Trial Court has found as act of cruelty, is that appellant wife refused to accede to respondent's proposal for her transfer to the same place of posting as that of her husband. In this connection, suffice it to note that appellant who was employed as a nurse, had given up her job after marriage, but she had to accept it again, that to at the instance of respondent, who faced financial stringency. Place of posting is not merely a matter of choice, it lies in the hands of the authorities. The appellant has outright denied any such proposal ever been made by her husband. There is not an iota of evidence to show that the respondent-husband made any petition to the authority seeking his wife's transfer to the same place where he was posted ; as is permissible under the Service Rules. The least that was expected of him in these circumstances was to produce any such application having been made by him. There is not an iota of evidence to show that the respondent-husband made any petition to the authority seeking his wife's transfer to the same place where he was posted ; as is permissible under the Service Rules. The least that was expected of him in these circumstances was to produce any such application having been made by him. Merely saying that his wife rejected his proposal for transfer, fails to inspire any confidence. 23. For the foregoing reasons it is clear that the respondent husband has failed to make any ground for sustaining the decree for divorce, as passed by the Trial Court. The judgment and decree are liable to be set aside; they are accordingly set aside. This appeal stands allowed with costs. Counsel fee Rs. 1000/- (one thousand). F.A. 47/88. 24. This appeal Under Section 28 of the Hindu Marriage Act, 1955 arises out of judgment and decree dated 23.6.88 passed in C.O.S. 19-A86 thereby dismissing appellant's suit for restitution of conjugal rights. The appellant filed a suit for restitution of conjugal rights/which was resisted by the respondent husband mainly on the ground that the suit was filed with a view to pressurise the respondent who had filed a suit for divorce, which was pending. 25. The suit for restitution of conjugal right was filed by the appellant on 17.11.86 while the suit for divorce was filed by the respondent on 2.1.86. Trial Court had come to conclusion that the appellant's present suit for restitution of conjugal rights was filed to forestall a defence against the suit for divorce filed by the respondent-husband. 26. So far as question of desertion is concerned, it was appellant's case that the respondent has deserted her since 1986, and trial Court has found it as not proved. It was the respondent's case that the appellant had got him arrested and threatened him with dire consequences. According to him the appellant was given a free way of life, and was not prepared to join him at his place of service. An incident of Nov. 85, when the appellant had visited her husband at Kukshi and found him in company of Mahila Mitra (girl friend), reported the matter to local S.D.M., as a result of which the respondent was arrested Under Section 151 Cr. An incident of Nov. 85, when the appellant had visited her husband at Kukshi and found him in company of Mahila Mitra (girl friend), reported the matter to local S.D.M., as a result of which the respondent was arrested Under Section 151 Cr. P.C. The respondent further alleged that the appellant had good relations With some of the Police Officers of Bag where she lodged a false report with a view, of humiliate him. Her conduct had all along been one of extreme cruelty which disentitled her to the relief of restitution of conjugal rights. 27. As has been noted above, the respondent had filed a suit No. 3-A/86 seeking a decree of divorce against the appellant. Evidence common to both these cases recorded by the trial Court is to be found in suit No. 3-A/86. The total evidence recorded in this case of restitution of conjugal rights is that of the appellant, who examined herself as PW. 1. She has stated on oath that for 2 1/2 years prior to her recording of statement, the respondent has no bodily relations with her ; that he was carrying on an illicit affair with one Jaimala of Ranapur. In her cross-examination, it was put to her that she had gone T.T. Operation, which she had denied. She has also refutted charge that she was instrumental in getting her husband beaten by the police, and has also denied having treatened to him. The suggestion that she refused proposal made by her husband from his place of posting. The allegation that she was given to a free way of life, has also been denied on oath. 28. The respondent also examined himself as D.W. 1. He admits in his evidence that Jaimala was present at this house when the appellant visited him sometime in Nov. 85, and that there was none else except Jaimala an unmarried girl aged about 28-29 years. He also admits that he had gone to a movie alongwith Jaimala to spend sometime as she was to leave for Alirajpur where she as serving. In fact the police had approached him while he was still in the cinema hall. 29. With this total evidence available on record, the learned Judge of the trial Court, on the similar fact that the appellant was posted elsewhere, has come to the conclusion that she had deserted her husband. In fact the police had approached him while he was still in the cinema hall. 29. With this total evidence available on record, the learned Judge of the trial Court, on the similar fact that the appellant was posted elsewhere, has come to the conclusion that she had deserted her husband. In fact it was she who visited him even on the cause of humiliation. 30. So far as transfer is concerned the appellant was posted as a nurse in a Primary Health Centre. There is no evidence available on record to show that she had declined to avail of transfer order although as a matter of Policy, if both the spouses are serving in Govt. Deptt. they are generally posted, at the same station under Service conditions and Rules. Whether some primary Health Centre was available in Kukshi and whether any efforts were made at all for such transfer, is not even attempted to be proved. A bailed allegation that appellant refused respondent's proposal, which of-course she had denied does not support the interference that the appellant was not desirable to maintain harmonious conjugal relations. The reasoning of trial Court, in this regard, cannot at all be accepted. The learned Judge has totally ignored the evidence of Respondent's conduct, as is admitted by him that he was carrying on a sort of friendship which in the circumstances of the case can not be said to be innocent. When the appellant visited her husband, alongwith son, she was abused an humiliated by the respondent. If she approached the authorities in such circumstances and even lodged a report though the same has not been produced. 31. Since the appellant was palpably wrong in refusing the relief of restitution of conjugal rights to the appellant. Section 23 of the Act, imposed a duty on the Court to enquire into. Merely because she filed a suit for restitution of conjugal rights after the respondent husband had filed a suit for divorce, would not necessarily that she had filed that suit with a view to orestall in defence. The finding recorded by the learned Judge on Issue No. 1, is total disregard of the material evidence about respondent's indulgence with other woman, as brought on record. The learned Judge of the trial Court has failed to consider the effect of Agreement Ex. The finding recorded by the learned Judge on Issue No. 1, is total disregard of the material evidence about respondent's indulgence with other woman, as brought on record. The learned Judge of the trial Court has failed to consider the effect of Agreement Ex. D. 1., the condonation of acts of cruelty admittedly executed by the parties. 32. Going through the impugned judgment it would be seen that the learned Judge has not even adverted to the provisions of Section 23 of the Act, so far acts of cruelty on the part of appellant is concerned, the learned Judge has made much of a so called report lodged by the appellant and the consequence that followed thereafter He held the appellant responsible for the humiliation that he has to face. The Trial Court has gone to the extent of holding that it was the appellant who initiated the quarrel. The whole episode has been appreached from a distorted angle. The circumstances which compelled the appellant to report to the S.D.M. are not at all taken into account. The report is not attempted to be got produced so as to enable the Court to appreciate its contents. The mere fact that she went to the S.D.M. has been construed as an act of cruelty on her part without realising that in any of the circumstances the appellant was required to approach the lady S.D.M. of the place. 33. It was respondent's pleaded case that the appellant has submitted an application at Police Station, Bag that application is not forthcoming nor any attempt has been made by the respondent to get it produced from the concerned P.S. where he was called by the police. There is no evidence to support his case ; the appellant had denied the allegation that she beat him with CHAPPAL at the P.S. 34. The finding recorded by the trial Court, cannot be supported in face of the extremely shaky nature of evidence adduced by the respondent. The learned Judge, has accepted oral evidence in respect of contents of a document. 35. It is an admitted position that even bear minimum maintenance allowance as ordered by the trial Court has not been paid by the respondent in respect of minor childsen. 36. In view of the foregoing discussion the appeal deserves to be allowed ; it is accordingly allowed. 35. It is an admitted position that even bear minimum maintenance allowance as ordered by the trial Court has not been paid by the respondent in respect of minor childsen. 36. In view of the foregoing discussion the appeal deserves to be allowed ; it is accordingly allowed. The judgment and decree as passed by the trial Court are liable to be set aside ; they are accordingly set aside. The appeal stands allowed with costs. Counsel fee Rs. 1000/-(one thousand). The appellant is held to be entitled to a decree of restitution of conjugal rights. A decree be drawn accordingly.