JUDGMENT NISITH KUMAR BATABYAL, J. 1. This appeal is directed against the judgment and decree dated 2.8.1978 passed in Matrimonial Suit No. 1 of 1977 by the Learned Additional District Judge, 3rd Court, Howrah dismissing the appellant's prayer for divorce. The matter has a chequered career. Against the judgment and decree of dismissal, an appeal was filed in 1979 in this Court. At the time of hearing of the appeal in 1991, a prayer was made for introduction of additional evidence under Order 41, Rule 27 C.P.C. The Learned Division Bench hearing the appeal by order dated 28.3.1991 directed that the evidence sought to be adduced by the plaintiff-appellant may be taken into account, if duly proved, in order to come to a final decision. Accordingly, the application was allowed and the learned Lower Court was directed to take the additional evidence as mentioned in the petition of the appellant and to send the same to this Court within a fixed time-frame as the case was pending since 1977. The learned Court below by order no. 110 dated 13.9.1991 sent the records to this Court after complying with the direction of this Court. 2. The case of the husband-appellant is that the parties were married according to Hindu rites and customs on 14.8.63 at Shibpur. Howrah and after the marriage the respondent-wife was brought to the matrimonial home at Bhadreswar within District Hooghly where the parties lived together as husband and wife. Soon after the marriage it was disclosed that the wife was suffering from various ailments and had physical deformity also for which she was operated upon one month after the marriage. She had a bad temper and she used to physically assault the husband and used filthy language against him and the mother-in-law and the unmarried sister-in-law. A daughter was born unto them on 30.11.1964. As the respondent was indifferent to the child and incapable of breast feeding, the child was looked after by the mother-in-law and the unmarried sister-in-law. During this time, the appellant opted for a touring job to avoid domestic troubles. Subsequently, he joined a new Company, Macneill & Magor Ltd. and was transferred to Madras for some period from January 1970 to April, 1972. During this period, the husband occasionally came to his house at Bhadreswar where the other family members lived. A son was born to them on 2.9.1973 at a nursing home. Subsequently, he joined a new Company, Macneill & Magor Ltd. and was transferred to Madras for some period from January 1970 to April, 1972. During this period, the husband occasionally came to his house at Bhadreswar where the other family members lived. A son was born to them on 2.9.1973 at a nursing home. From there the mother and the child were taken to the residence of the mother of the wife. In February, 1974 Annaprashan ceremony of the son was arranged at Bhadreswar. On 4.11.1974 after a quarrel in the house, the respondent left the matrimonial home at her own will and went to her sister's house at Dum Dum leaving behind her minor children. The husband vainly tried to sort out the problems with the help of the relations. After sometime, on 28th March, 1975, the husband was requested to come to the Shibpur House of the respondent's mother for reconciliation. The husband went there on good faith but he was detained there against his wishes and he was told that he would have to make a separate establishment with his wife and children or would have to make over the minor son to the respondent immediately. The husband was kept confined throughout the night there. Next morning the cousin and a friend of the husband came to Shibpur and got him released only after the little son was made over to the family members of the Shibpur house. The husband apprehends that it will be harmful and injurious for him to live any longer with the respondent. So he has filed a suit for divorce on the ground of cruelty and desertion. 3. The wife-respondent has contested the suit by filing a rembling written statement. She has denied all the material allegation made against her but has admitted the marriage. She has made some counter-allegations of torture and cruelty upon her by the husband and her in-laws. She has stated that she never physically assaulted the husband or any member of his family. She has emphatically denied that she used filthy or abusive languages against the husband or the members of the family. She has made some counter-allegations of torture and cruelty upon her by the husband and her in-laws. She has stated that she never physically assaulted the husband or any member of his family. She has emphatically denied that she used filthy or abusive languages against the husband or the members of the family. Her case is that she was forcibly driven out of the matrimonial home on 4.11.1974, as she had rebuked and chastised her daughter who got plucked in the three subjects in her Second Terminal Examination in her school and as she forged the signature of her father on the Progress Report. She has also denied the allegation of criminal detention of the husband at their Shibpur house. She has further stated that she is always willing to lead a happy conjugal life with her husband and children. 4. The Learned Trial judge has been pleased to hold that the wife is neither guilty of cruelty nor of desertion. Accordingly, he has dismissed the suit. 5. Being aggrieved by and dissatisfied with the judgment and decree passed by the Learned Additional District Judge, the husband has preferred this appeal contending, inter alia, that the Learned Judge totally misdirected himself at the import and meaning of cruelty; that the Learned Judge was wholly wrong in disbelieving the plaintiff's evidence on cruelty that the Learned Judge totally mis-appreciated the evidence on record and that the Learned Judge ought to have decreed the suit. 6. The appeal is hotly contested. 7. The Lawyer for the appellant has addressed this Court only on the point of cruelty and his entire submissions are based on the implications of the letters marked Exhibits-6 series written by the wife to her son and daughter in which she has repeatedly stated to her children that their father had kept a prostitute in the house and that house was a brother and the son was utilised there as the servant of the prostitute. All these letters have been introduced in evidence under Order 41, Rule 21 C.P.C. These letters have been proved by examining Miss. Soumya Basu (P.W. 8) daughter of the parties. On the side of the respondent, the lady herself has been further examined and cross-examined after the introduction of the letters in evidence and she has categorically stated that an the letters were written by her. Soumya Basu (P.W. 8) daughter of the parties. On the side of the respondent, the lady herself has been further examined and cross-examined after the introduction of the letters in evidence and she has categorically stated that an the letters were written by her. It may be mentioned here that these letters saw the light of the day long after the filing of the suit and during the pendency of the appeal. 8. No argument has been advanced by the Learned Lawyer for the appellant on the ground of desertion. We can presume that the case of desertion has been practically given a go by. The only point on which the appellant relies is the issue of cruelty. The expression cruelty has not been defined within the four-corners of the Hindu Marriage Act. The expression finds a mention in s. 498A of I.P.C. But the term cruelty as given there is only for the purpose of that Section. So it will not be proper to import the connotation of cruelty as available there into matrimonial cases. In this connection, reference may also be made to a similar expression in the Muslim Marriages Dissolution Act, 1939 in s. 2(viii). Under that Section, a woman married under the Muslim Law shall be entitled to get a decree for dissolution of marriage, inter alia, on the ground that the husband has treated her with cruelty, that is to say, makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill-treatment s. 2(viii)(a) or leads an infamous life s. 2(viii)(b). These statutory expositions of the term cruelty in the context of the different enactments only highlight the different aspects of the concept of cruelty. 9. According to Tolstoy's Law and Practice of Divorce and Matrimonial Causes (5th Edn. pp. 60) cruelty which is a ground of dissolution of marriage may be defined as willful and unjustifiable conduct of such a character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such a danger, Russel vs. Russel, 1887 A.C. 395. But this definition of cruelty cannot apply to a case under the Hindu Marriage Act. In a recent decision of the Karnataka High Court in Yosada Bai vs. Krishna Moorthy, AIR 1992 Kant. But this definition of cruelty cannot apply to a case under the Hindu Marriage Act. In a recent decision of the Karnataka High Court in Yosada Bai vs. Krishna Moorthy, AIR 1992 Kant. 368, it has been held that cruelty is a term which is incapable of precise definition and one has to fall back on judicial decisions. In a case, in which, a series of acts have been alleged to amount to cruelty, physical or mental, the cruelty so alleged must be such as to cause mental anguish that would affect the health of the person so alleging them and then alone would it constitute a threat to his person and life, so that, the Court could opine that cruelty indeed was practised. In the absence of such a plea and evidence that the cruelty practised by his wife was such as to cause health problems endangering his life and persons, the Court ought not to have concluded that mere series of incidences of quarrel between the husband and the wife on account of the mother-in-law or mostly on account of fact that he did not set up a separate establishment of his own would amount to mental cruelty. 10. Cruelty in the legal sense need not necessarily be physical. What constitutes mental cruelty depends upon various factors including the mores of the society to which the parties belong, their value standard, their status, environment of the parties, their educational and cultural developments etc. Bijoli vs. Sukomal, AIR 1979 Cal 87 . As in constructive desertion, so in cruelty, intention should be distinguished from desire and cruelty can be established where the respondent is guilty of conduct which he must know would have an injurious effect on the petitioner, although he may in fact have no desire to cause injury, Waters vs. Waters, (1956) 1 All E.R. 432. 11. With these principles in our mind, we have to unfold the story with which the husband has come seeking a decree for dissolution of marriage by divorce. 12. In all eight witnesses have been examined on the side of the husband in this case. The husband himself coming to depose as P.W. 6 has stated that he is a Chartered Accountant and his wife is a Graduate. Soon after the marriage he found that his wife was suffering from various ailments. 12. In all eight witnesses have been examined on the side of the husband in this case. The husband himself coming to depose as P.W. 6 has stated that he is a Chartered Accountant and his wife is a Graduate. Soon after the marriage he found that his wife was suffering from various ailments. As a matter of fact, one month after the marriage she had to undergo an operation to facilitate sexual intercourse. She had a very volatile temper and she used to press the neck of her husband while she flared up. She also used very filthy language against the husband and the mother-in-law and sister-in-law calling them thieves, hypocrites etc. According to the husband, the wife was indifferent to the first issue of the couple, a daughter and she was also incapable of breast feeding. In 1967 the husband took the wife and his daughter to Delhi for some months but there was no change in her attitude. During 1970 and 1972, the husband was posted at Madras and used to visit his house from time to time. At the time of the birth of the son in September, 1973 the wife became seriously ill and she had to be kept in a Nursing Home for about 48 days. According to the husband, during this period the wife used to abuse him in filthy language in the varandah of the Nursing Home. The Annaprasan ceremony of the baby was performed at Bhadreswar. In November, 1974 when the daughter was a student of Class-IV, the mother gave her a sound beating to which the mother-in-law protested. There was an acrimonious quarrel in the house. P.W. 1 asked his wife to stop shouting and asked her to behave properly. In consequence, there was an altercation between the spouses and the wife abused the husband and then changed her dress and left the house. Subsequently, the husband came to know that she had gone to her sister's house at Dum Dum. He has denied that he forcibly drove out his wife from his house or that he took his wife to her sister's house at Dum Dum in rickshaw. 13. The mother-in-law of the wife-respondent has been examined as P.W. 3. According to her the daughter-in-law did not behave well with her. She used to quarrel very often with the husband. He has denied that he forcibly drove out his wife from his house or that he took his wife to her sister's house at Dum Dum in rickshaw. 13. The mother-in-law of the wife-respondent has been examined as P.W. 3. According to her the daughter-in-law did not behave well with her. She used to quarrel very often with the husband. This witness has mainly concentrated on the so called incident in which her son P.W. 6 was duped to go to the Shibpur house of the respondent where he was detained against his wishes till the minor son was released to the mother. Shri Dipankar Roychowdhury (P.W.4) is a cousin of the husband. This witness has said practically nothing against the wife. He has restricted himself to the alleged incident at Shibpur house in which the husband was detained against his wishes. He has stated that on 28th March, 1975 at about 11 P.M. he got a telephone call from the mother of the petitioner telling him that Jahar Bhadra (brother of the respondent) and another had informed the lady that the petitioner had met with an accident and had been admitted to a hospital and wanted to see his children. The lady asked Dipankar to go there. After getting this information Dipankar did nothing that night except lodging a G.D. with Ballygunge P.S. and next morning he came to the house of the petitioner and waited there till the arrival of Prasanta (P.W.1). Thereafter, he went to Shibpur with Prasanta and on the way went to Shibpur P.s. and reported the matter there. From Thana they went to some Nursing Homes but could not trace the petitioner, then the two went to the house of Jahar and called him by name. Jahar came out and told that the petitioner was well and had left the place already. When Prasanta and Dipankar were standing in front of the house of Jahar then they suddenly saw the petitioner at the window calling them. Thereafter, Jahar Babu asked to go up stair into a room where they have found the petitioner sitting on a couch. The petitioner told them that he was kept confined there since the previous night and they would not release him unless the male child be given to them. Thereafter, Prasanta (P.W.1) went out with Jahar's younger brother to bring the petitioner's male-child. The petitioner told them that he was kept confined there since the previous night and they would not release him unless the male child be given to them. Thereafter, Prasanta (P.W.1) went out with Jahar's younger brother to bring the petitioner's male-child. They returned after about 3 hours with the son of the petitioner. After the petitioner, Prasanta and Dipankar returned home in a taxi. 14. Prasanta has stated that on 18th March, 1975 at night petitioner's mother told him that Jahar had informed her that the petitioner had fallen from a bus and was taken to a hospital. Prasanta has stated that on night a G.D. was lodged at the local P.S. Next morning Prasanta and Dipankar came to Howrah P.S. and got no clue. Then they went to the house of Jahar Bhadra and they stood before the house for sometime. They saw the petitioner by the said of the window. The petitioner asked them to come up stair. Mr. Bhadra took them upstairs and they were taken into a sitting room, petitioner was sitting on a sofa, there they took tea. The petitioner told that he would be released provided his son would be returned to them. The petitioner was there from the previous night. Prasanta advised that the son should be handed over to them. Thereafter the son was taken from the residence of the petitioner and handed over to the relatives of the respondent at Shibpur. Then the three persons, Prasanta, Dipankar and petitioner returned home. 15. Shri Jahar Bhadra (D.W.3) has stated in his deposition that he did not go to the residence of the petitioner on 28th March, 1975. He has denied that he told the petitioner's mother that the petitioner has involved in an accident. He has stated that when the minor son of the sister Gouri (respondent) was not returned amicably by the husband then they had to take recourse to law and a search warrant was issued for the recovery of the child and the child was recovered on the strength of the search warrant. He has further stated that the entire story of inviting the petitioner to Shibpur house and detaining him against his wishes is all false and concocted. 16. It appears from the deposition of the mother, Sm. He has further stated that the entire story of inviting the petitioner to Shibpur house and detaining him against his wishes is all false and concocted. 16. It appears from the deposition of the mother, Sm. Jyotsna Basu (P.W.5) that she received a telephone call from her son at about 11-00 A.M. on 29.3.1985 from Shibpur telling her that he had been kept at Shibpur and he requested her to send his son. It is curious to note that Dipankar (P.W.4) who was sitting all along with the petitioner at the Shibpur house has not mentioned about the petitioner talking to his mother over telephone at the time he was at the Shibpur house. It is also very difficult to digest the story that the husband after coming out of the legal detention from the house of the respondent would not take proper legal steps when the relationship had already worsened to such a situation that the sister's husband had to be physically detained against his wishes to give pressure upon him to secure the custody of a small child. However, in the entire episode no one has ascribed any direct role to the respondent. Therefore, it is very difficult to say that the respondent was responsible for the dirty tricks. 17. Though several stories of the cruel behaviour of the respondent have been told by the petitioner but it appears that upto the birth of the son in September, 1973 the two spouses lived together and from their conduct it can be said that the husband had condoned the lapses of the wife. The wife allegedly left the matrimonial home on 4.11.74. So the alleged cruel conduct of the respondent must be referable to this period of about 10 months between 2.9.73 and 4.11.74. Except the incident of the merciless beating of the girl-child during this period there is no other evidence regarding the specific cruel conduct of the lady during this period. The respondent coming to depose as D.W.4 has stated that she was not suffer from any disease from the time of her marriage. She has also stated that she had no physical deformity. But she admitted that she had to undergo a minor operation after the marriage. She has denied that she ever mis-behaved with her husband or in-laws or that she used any filthy languages or abuses against them. She has also stated that she had no physical deformity. But she admitted that she had to undergo a minor operation after the marriage. She has denied that she ever mis-behaved with her husband or in-laws or that she used any filthy languages or abuses against them. She has stated also that she had a peaceful marital life when she was in Delhi or Madras with her husband. She has stated that she left her matrimonial home on 4.11.74 after being scolded and assaulted by her husband. According to her the daughter who was a student of a Missionary School in Chandanagar was unsuccessful in three subjects. She found that the daughter forged her father's name on the weekly report. So when she was reluctant to read, the mother rebuked and chastised her. The mother-in-law made some false complaints against her when her husband came. After this the husband assaulted her and the mother-in-law directed her son to take her to the house of one Jishu at Dum Dum. She was not willing to go away but the husband assaulted her and forcibly took her to Dum Dum to the house of her sister. It appears from Exhibit 2 which is a report book of St. Joseph's Convent, Chandanagar that Soumya Basu was a student of Class IV-A of that School during the period from 13.1.74 to 13.1.75. The alleged incident is said to have been taken place on 4.11.75, so it is quite possible that at that time the mid-term performance report of the student in the school was available to the guardian of the pupil. In the circumstances, it is more likely that the version of the mother is highly probable. It cannot therefore be said that the husband has been able to prove that the mother mercilessly beat the minor child on 4.11.74. The story of the respondent going out of the matrimonial home of her own accord on that date, in the circumstances stated by the husband is highly improbable. 18. Perhaps for these reasons the Learned Lawyer for the appellant has not addressed this Court on any point except the point of cruelty as disclosed in the letters marked Exhibit 6 series. The letters were written during the period between 14th June, 1989 and 17th April, 1990. She has written three letters to her son and three to her daughter. Perhaps for these reasons the Learned Lawyer for the appellant has not addressed this Court on any point except the point of cruelty as disclosed in the letters marked Exhibit 6 series. The letters were written during the period between 14th June, 1989 and 17th April, 1990. She has written three letters to her son and three to her daughter. The son was aged about 16/17 years when he received these letters and the daughter was aged about 25 years when, she received her letters. In all the letters, the lady was telling, your father has brought a prostitute into the house (vide Exhibit 6A bottom). In the other letters she has repeated the expression prostitute. She has warned her children that they will have to spend their days as a servant of a prostitute. In one letter she has staled, your father has given his attention in serving a prostitute. The father who thinks a bout the future of the children will never allow a prostitute. What can, you expect from a father who keeps a prostitute in his house. The respondent has written to her daughter that she was living in a brothel and her father has allowed a prostitute to enter his house. 19. From the cross-examination of the respondent on 28.2.92 it appears that the daughter Soumya (D.W. 8) is a Post-Graduate in English and the son is a student of Class XII and he obtained 67% marks in his examination. It is obvious that the son and the daughter are quite grown up now and were capable of understanding the implications of the letters written by the mother in 1989-90. They handed over their letters to their father. The basis of the allegation made by the respondent against the husband is that one Smt. Alakananda Sen, aged about 38/39 in 1991 stayed in the house of the petitioner for sometime between 1982-83. She was employed somewhere and her house was at 90, Ghusuripara Road, Barrackpore. The girl has also stated that since her childhood she was staying with his father alongwith her grand-mother. So we have got it that in the house of the petitioner his growing daughter and his old mother lived with him. For sometime in 1982/83, one unmarried lady came to live in the house. She was not economically dependent upon the petitioner. 20. So we have got it that in the house of the petitioner his growing daughter and his old mother lived with him. For sometime in 1982/83, one unmarried lady came to live in the house. She was not economically dependent upon the petitioner. 20. The respondent in her deposition on 28.2.92 has stated as follows:- "I visit the house where my son and daughter were residing. My son then reported to me that the concubine of my husband resided in the same house with them and occasionally he was asked by the said concubine to do domestic works and as such his studies were being hampered. The woman who stayed with her husband illegally was named Alakananda Sen. She was an employee in the same firm Macneill & Magor where my husband worked. Every time I visited the house. I found the said woman, Alakananda Sen present in the house. In her cross-examination the respondent has stated that her daughter told her that Alakananda Sen was illicitly connected with the petitioner. From the deposition of the respondent. D.W. 4, it appears that she has derived her knowledge about the relationship between the Alakananda Sen and her husband from the information given to her by her son and the daughter. It is clear that she has got no personal knowledge about the matter. The daughter has not said anything on that point. It was not put to her in cross-examination that she stated such language to her mother. The boy has not been examined as a witness. It is too much to expect that there will be direct evidence about extramarital intimacy between the petitioner and Smt. Alakananda Sen. It has got to be inferred from the circumstances and probabilities of the case." 21. From the materials on record it is disclosed that the appellant is staying at his house from 1974 with his daughter and old mother. The respondent is remaining at Shibpur at her father's place since November, 1974. In 1984 the son then a child of about 11 years came to stay with the father from his mother. Since then he is staying with the father. In 1982/83 an unmarried lady then aged about 30 years came to stay in the house. She was working at the office of the appellant. Her house is at Barrackpore. She has left the house of the appellant in 1983. Since then he is staying with the father. In 1982/83 an unmarried lady then aged about 30 years came to stay in the house. She was working at the office of the appellant. Her house is at Barrackpore. She has left the house of the appellant in 1983. Since then the appellant, his old mother, his daughter and son are staying in the house. There is no evidence about any intimacy or relationship between the appellant and the lady. Smt. Alakananda Sen. The only so called evidence is the oral assertion of the respondent that Smt. Alakananda Sen is a concubine of her husband. But this is according to her a knowledge derived from her son and daughter. The daughter came to the witness box but nothing was put to her about this alleged statement in her cross-examination by the Learned Lawyer for the respondent. The son has not been examined as a witness. In these days, when women are coming in increasing numbers out of the kitchen to take part as active participants in all walks of life with their male counter-parts, it is not unusal for working women to stay outside their homes in connection with their occupation. Even in our social life the free mixing of men and women is an established fact. Naturally the staying of an unmarried working woman outside her parental home in connection with her occupation is not frowned upon as before. So the mere staying of Smt. Alakananda Sen at the house of the appellant for sometime by itself cannot unmistakably lead to the inference that she was a concubine of the appellant. There must be legal and cogent evidence on that point to lead to such a conclusion. Unfortunately, such evidence, direct or circumstantial, is not forthcoming in this case. Moreover, we have to consider the fact that in the same house a grown-up daughter who is also an educated lady lived with the old mother of the appellant continuously. Considering the facts, circumstances and the probabilities of the case, it cannot be said that the respondent had any justification for describing Smt. Alakananda Sen as the concubine of the appellant. 22. The very fact that the respondent-wife wrote series of letters to her grown-up children living with the husband hampering upon the fact that the father was maintaining a concubine in the house is per se a cruelty. 22. The very fact that the respondent-wife wrote series of letters to her grown-up children living with the husband hampering upon the fact that the father was maintaining a concubine in the house is per se a cruelty. The conduct of the appellant is bound to cause injury to the reputation of the father to his own grown-up children. The lady, it appears, was suffering from paranoia that the husband was indulging in an immoral life with some other women. So far as the respondent is concerned, this delusion is very unfortunate but so far as the husband is concerned this was cruelty, whether intended or not. This finding is sufficient to bring the case within the ambit of s. 13(1)(ia) of the Hindu Marriage Act, 1955. But for the reasons given below it may not be a proper case to grant a decree of divorce outright. 23. We have got it that since November, 1974 the respondent is not staying with the appellant. The son was staying with her from November, 1974 upto 1984. The relationship between the parties was very much strained as appears from the evidence already discussed above Even after the son was sent to his father the mother was writ in atrocious letters to the daughter and son containing serious allegations of immoral conduct of the father. But it is very clear that there is an Under-tone of reliance of the wife upon the husband as otherwise she would not have sent her only son to her estranged husband for his upbringing. We have got it both the son and the daughter are getting proper education as any responsible father would have done for his children. There is no allegation that after the departure of Smt. Sen from the house, the husband is indulging in immoral life with any other women. It appears that the marital tie has not been totally broken up between the parties though physically the two are living apart from about last two decades. Had the lady been totally disillusioned about the husband, she would not certainly have sent her only son to the father who was a completely unknown man to the child. The love for children and a sheer feeling for their well-being still constitutes a tenuous link them between the two spouses. 24. Had the lady been totally disillusioned about the husband, she would not certainly have sent her only son to the father who was a completely unknown man to the child. The love for children and a sheer feeling for their well-being still constitutes a tenuous link them between the two spouses. 24. For this reason it is considered just that instead of passing a decree for divorce it is a fit case where a decree for judicial separation under s. 13A of the Hindu Marriage Act, 1955 should be passed. Accordingly, the appeal is allowed in part. The judgment and decree passed by the Learned Court below are set aside, a decree for dissolution of marriage is passed. The parties will bear their own costs. I agree. Appeal allowed in part.