S. C. MOHAPATRA, J. Wife is appellant in this appeal under Section 19 of the Family Court Act against the order of the Family Court decreeing the suit for divorce under Section 13 of the Hindu Marriage Act. 2. Parties who are Hindus were married on 9-2-1985. Husband is an employee stationed at Moradabad in a touring job. After residing in the matrimonial home for some time, wife went back to her parental home as per custom and came back to her matrimonial home in April, 1985 to reside in the joint family of her husband as husband could not find a place to stay with his wife at Moradabad. Case of husband is that while wife was in the joint family of husband consisting of his parents, sisters, brother and his wife, she was misbehaving with them. Many times she was not taking food for which unhappy atmosphere was created in the family. She also stayed for sometime with brother of his father. There also she behaved in the same manner. When husband requested her to remain peacefully with the joint family, she threatened to commit suicide in case she is compelled to stay with members of joint family of husband. While so continuing, she left the matri monial home towards September, 1985 with all her belonging to her parental home with her brother. Sometimes after she regretted for her conduct and addressed a letter to her husbands father on 24-9-1984 and again on 20-1-1986. When wife was staying with her parents, there was conciliation and husband went and brought back his wife on 12-5-1987. After some lime, wife again started to misbehare as earlier and threatened to commit suicide. Lastly, she left her matrimonial home of her own on 16-8-1988. Further case of husband is that he had no sexual relationship with his wife as she was always avoiding the same on ground of her illness. On consultation with medical expert, he got the opinion that his wife has no child bearing capacity, On these allegation application was filed for declaring the marriage void on ground of impotency and for divorce on ground of cruelty by wife. 3. Wife contested the application. She denied allegations against her and asserted that she had sexual relationship with her husband.
3. Wife contested the application. She denied allegations against her and asserted that she had sexual relationship with her husband. She stated that although she was stating to stay with husband in place of his posting she did not deny to stay in the joint family. Her case is that she was kept in joint family for extracting excessive dowry. She had not left matrimonial home on 16-7-1988 but on her brother lodging First Information Report alleging demand of excessive dowry, she was recovered from matrimonial home on 21-7-1988 and was thereafter staying with her parents. Since First Information Report yielded no result, matter is pending in criminal court at Meerut. 4. In support of his case, husband examined himself and another witness. He also proved letter of wife to him and to his father and written allegations made by wife against him to his superior authorities for action against him. Wife has examined herself and three others witnesses. Consi dering aforesaid materials, learned Family Judge disbelieved story of im potency or lack of child bearing capacity of wife. But the application for divorce was allowed coming to conclusion that wife is guilty of cruelty as she has made frivolous complaints against her husband to his employer, and initiated prosecution lodging First Information Report through brother alleging demand of dowry. Family Court also took ill-treatment by wife to be circumstance to prove her cruelty. It has been held that wife was cruel in her behaviour to her parents-in-law. 5. Sri V. K. Goel, learned counsel for the appellant contended that finding of cruelty by the learned Family Judge is not sustainable either on acts or under law. Mr. Jain, learned counsel for the respondent on the other hand submitted that taking into the consideration facts and circum stances as proved, irresistable conclusion would be that wife was cruel to the husband. To appreciate the contentions of both the parties, it is necessary to chronologically narrate the facts in the present case. 6. It is not disputed that family of the wife and husband were known to each other earlier to their marriage. Father of the husband is an advocate at Meerut. Husband himself is an employee and at the time of filing of the application for divorce was Secretary of Krishi Utpadan Mandi Samiti, Moradabad.
6. It is not disputed that family of the wife and husband were known to each other earlier to their marriage. Father of the husband is an advocate at Meerut. Husband himself is an employee and at the time of filing of the application for divorce was Secretary of Krishi Utpadan Mandi Samiti, Moradabad. Husbands family belongs to Meerut and wifes family belongs to Muzaffarnagar which is said to be at a distance of about 60 Km. from Meerut. After marriage on 9-2-1985 wife resided in the family of her husband and from that day her husbands house become her matrimonial home. While she resided in her matrimonial house, as per custom, she went back to her parents house for short period and returned back to build her matrimonial home but in the month of September, 1985 she left her matrimonial home for her parents house. While in her parents house she had addressed various letters to her husband and also to her father-in-law. At that time she had also some treatment for gynaecological ailment. While she was in her parents house from 1985, there was conciliation in which PW 2 a junior advocate took part and wife was brought back to the matrimonial home on 12-5-1987, where she stayed till 1988. In this back ground it is to be examined whether the allegation of cruelty by wife meted out to her husband has been proved in this case. 7. Though husband alleged that there was no consumation of marriage to prove impotency of wife which has not been accepted by learned Family Judge, the allegation can be utilised for considering whether wife was mis behaving with parents in law which created an unpleasant atmosphere in the house. From letters of wife to husband it will be seen that she inti mated that after treatment within some months she would be able to bear a child. This indicates that in the matrimonial house she blamed for not being able to bear a child.
From letters of wife to husband it will be seen that she inti mated that after treatment within some months she would be able to bear a child. This indicates that in the matrimonial house she blamed for not being able to bear a child. If this is the position of a newly married girl in house of her husband when her husband was absent from house most of the period to come twice a month as stated by him, some rough words expressed by her as alleged if assumed to be true in her mental agony or conduct in not taking food or threatening to commit suicide cannot be said to be cruelty meted out by her to the family members. Exact nature of behaviour or details of the same could have been given by her father- in-law, mother-in-law or other members. Father-in-law who is an advocate has not been examined in this case. Other members of the family or any of them have not been examined. Husband does not give details and his version is hearsay. No incident in his presence is described by him. There is no allegation that wife at any time used harsh words to her husband. Father-in-law who is an advocate of worldly experience could not realise the mental condition of a newly married girl who wanted to be in company of her husband and does not appear to have taken any step in that regard. In such circumstance, a finding that wife was cruel to her husband is unreasonable when such finding would break a life long marriage in a Hindu society which is more a sacrament than a contract. 8. As regards behaviour of wife for the first period between marriage on 9-2-1985 till September, 1985 when she was in matrionial home, she had written letters expressing repentance and on conciliation she was brought back on 12-5-1987 from parental home to matrimonial home. Thus the misbehaviour or cruelty if any was condoned. The same cannot be utilised again for obtaining divorce. 9. Second period of her stay in matrimonial home is from 12-5-1987 till July, 1988 for about one year. There is no clear evidence if there was no sexual relationship during this period. Bssidss, there is no clear evidence as to how the wife was behaving.
The same cannot be utilised again for obtaining divorce. 9. Second period of her stay in matrimonial home is from 12-5-1987 till July, 1988 for about one year. There is no clear evidence if there was no sexual relationship during this period. Bssidss, there is no clear evidence as to how the wife was behaving. Details of such misbehaviours, refusal to take food or threat to commit suicide ought to have been given. On vague allegation and statement and on account of non- examination of competent witness like father of husband or other family members vague accusation against wife cannot be accepted, to grant divorce. Learned Family Judge has not assessed evidence judicially in giving a finding of cruelty against wife. 10. Third phase of cruelty is during pendency of application for divorce when she was not with her husband. It is true that wife has made written complaints against husband requesting for action on account of demand of dowry. As has been stated by wife in her written statement criminal proceed ing is pending in this regard as no action was taken on the basis of F. I. R. Thus, at this stage it cannot be said that accusation is false specially when father of husband who is an advocate is not made available to speak on oath the circumstance which led wife to leave matrimonial home and had to be brought back after conciliation. In correct accusation has been made against wife that she left matrimonial home on 16-7-1988. Her assertion that she was recovered by police on 21-7-1988 from house of her father-in-law is not denied. When relationship had already become strained complaint by wife against husband even if found not to be true, cannot be brought within scope of cruelty. Standard of cruelty in English society cannot be applied to Indian society as has been observed in AIR 1975 SC 1534 , Dr. N. G. Dastane v. Mrs. S. Dastane. When husband has attributed impotency and cruelty in petition for divorce which he has not been able to prove, allegation of wife against husband that he is demanding dowry and illtreating her, cannot be cruelty. Double standards cannot be applied. Whether the allegation would be on account of provocation or otherwise to constitute cruelty, would depend on facts and circumstances of a case.
Double standards cannot be applied. Whether the allegation would be on account of provocation or otherwise to constitute cruelty, would depend on facts and circumstances of a case. In the present case we are satisfied in the background of the case such allegations cannot constitute cruelty. 11. From perusal of the order we find that Family Court had not taken any steps for conciliation as provided under Section 9 of the Family Court Act. We might have ourself taken steps for conciliation or might have remitted the litigation back for such steps being taken. It is found that husband has stated that after conclusion of the proceeding before the Family Court waiting for 30 days he has married again We need no express any opinion whether such marriage is valid which will be adjudicated if and when the question arises. We are, however, satisfied that where the another woman gives company to the husband as wife no useful purpose would be served by conciliation. In the modern age it is but natural that two women cannot give company to husband together and there is likelihood or perpetual disturbance in the family. 12. From the discussion as made above, we are satisfied that there is no clear evidence led by the husband to prove that wife was guilty of cruelty directly or indirectly and conduct of the wife which might have appeared to have some resemblance of cruelty, has been condoned in the year 1987. After wife has been brought back to matrimonial home, there is up clear evidence of cruelty in this case. 13. In result, impugned order cannot be sustained which is reversed. Appeal is allowed. Composite application for declaring the marriage void and for divorce is dismissed. Appellant is entitled to costs. Hearing tee is assessed at Rs. 1,500. Appeal allowed. .