GITESH RANJAN BHATTACHARJEE, J. ( 1 ) THIS appeal is directed against the judgment and decree passed by the Additional District Judge, 3rd Court, Murshidabad in Matrimonial Suit No. 67 of 1982 by which the learned trial court dismissed the matrimonial suit which was filed by the appellant husband against the respondent wife praying for a decree of divorce under Section 13 (1) (ia) and (ib) of the Hindu Marriage Act, 1955 ( 2 ) ADMITTEDLY the parties were married according to Hindu rites on the 6th Falgun 1385 B. S. corresponding to Feb. 1979. Admittedly a daughter was born to the parties. The husband prayed for divorce off grounds of cruelty and desertion. The case of the appellant husband is that the respondent wife always used to quarrel with the husband and his parents without any just reason and she also used to insist upon the petitioner to 5 live separately from his family which the petitioner did not agree. It is the contention of the husband that on 12th May, 1980 the wife left the matrimonial home secretly for residing at her father's house and on 13th/14th May, 1980 she along with her brother went to Lalgola P. S. and lodged a false F. I. R. against the husband and his parents and the husband had to surrender and apply for bail and was ultimately released on bail. If may be mentioned here that the matrimonial home of the parties is at Lalgola and the wife's father's house is at Muragachha which is about three hours journey from Lalgola as we get it from evidence. It may also be noted here that at the relevant time the husband was an employee of the J. D. R. O's office at Jangipar. The wife also filed an application under Section 125, Cr. P. C. against the husband for maintenance. The husband's contention is that the wife has deserted hid since 12th May, 1980. It is also the contention of the husband that by lodging F. I. R. and thus initiating a criminal case and also by filing a petition under Section 125, Cr. P. C. for maintenance, the wife has committed cruelty for which the husband is entitled to divorce. In the application for divorce the husband has also stated that several times he went to bring back the wife to her matrominal home but she turned down his request. P. C. for maintenance, the wife has committed cruelty for which the husband is entitled to divorce. In the application for divorce the husband has also stated that several times he went to bring back the wife to her matrominal home but she turned down his request. In paragraph 2 of the application the husband says that in view of the circumstances that the wife has deserted him for about two years and has caused cruelty by instituting two criminal proceedings, he prays for judicial separation. However, in the prayer portion the husband prays for decree of divorce under Section 13 (1) (ia) and (ib) of the Hindu Marriage Act. It is also to be mentioned here that in paragraph 2 of the application the husband has stated that the wife arrived at Lalgola about four days before the husband filed the application for divorce and she also threatened the father of the petitioner with the help of a few local people as the petitioner permanently resides at Jangipur where he is an employee in the office of the J. L. R. O. The application for divorces was filed in the Court of the District Judge Beharmpur on 9-9-1992 ( 3 ) THE suit was contested by the wife by filing a written statement. She denied all the allegations made against her. On the other hand she stated in the written statement that she was tortured in her matrimonial home by her husband, mother-in-law, husband's sister and the climax of such torture reached sometime in May 1980 when she was made to go without food for days and was assaulted and manhandled on the slightest protest to their acts of violence and insult. It is also alleged in the written statement that her father-in-law left for Puri on 10-5-1980 and on 13-5-1980 the husband, his mother and his sister badly assaulted the wife as she refused to leave the house leaving the baby daughter at their mercy and on the following day, that is, on 14-5-1980 these three persons again assaulted her mercilessly and when she was lying unconscious in the room in which she was confined her elder brother Harihar Mukherjee arrived there and with the help of neighbours and police rescued her and she was brought to her father's house by her brother, but her daughter was not allowed to go with her. According to the cases of the wife the incident was reported at Lalgola P. S. on which a police case was started and on investigation a charge-sheet was submitted. It is also an admitted fact that the wife, while she was staying in her brother's house, filed an application for maintenance against the husband under Section 125, Cr. P. C. In paragraph 11 of the written statement it is stated that subsequently as the husband fell flat on the feet of the respondent wife's brother and mother the wife went to the matrimonial home and withdrew the criminal case as well as the maintenance case. It is also alleged by the wife in the written statement that while she had been to the husband's house the same acts of insult and oppression continued and the husband brought in his house one Tripti Chakraborty, an unmarried girl of Jangipur, who had an immoral intrigue with the husband for which the said Tripti was driven away by the people of her locality and he expressed his determination to marry her. It may be noted here that while the wife was staying in the matrimonial home at Lalgola she received summons of the divorce suit. It is also alleged by the wife in the written statement 6 that similar ill-treatment, as was done to the wife, was also done to Ashoka, the wife of the husband's brother and as a result of such ill-treatment and torture and humiliation Ashoka left for her father's house with her unmarried daughter ( 4 ) AT the trial both sides led evidence and the learned trial Court in the impugned judgment rather found that the allegation of desertion and cruelty of the wife was not substantiated. The learned trial Court also observed that the allegation of the wife that the petitioner was involved in an illicit affair with Tripti Chakraborty will not amount to cruelty as nobody knows if the allegation was false or true. It may be mentioned here that it was argued on behalf of the husband that the false allegation of illicit affair with Tripti itself amounts to cruelty for which alone the husband is entitled to a decree of divorce. That was however turned down by the learned trial Court as noted above. It may be mentioned here that it was argued on behalf of the husband that the false allegation of illicit affair with Tripti itself amounts to cruelty for which alone the husband is entitled to a decree of divorce. That was however turned down by the learned trial Court as noted above. The learned trial Court dismissed the suit and against such dismissal the appellant husband has preferred the present appeal ( 5 ) IN going to consider the question whether this Court in this appeal should interfere with the judgment and decree of the learned Court below, we will rather now proceed to look into the evidence adduced by the parties before the trial Court. We have already gone through respective cases of the parties as pleaded in their respective pleadings. Here at the very outset we would like to mention that the learned Advocate for the appellant has rightly criticised that the learned Court below has discussed the case, particularly the evidence adduced by the parties, in a very cryptic way. Indeed we endorse this view of the learned Advocate that the discussion of the evidence and the facts and circumstances of the case by the learned Court below was rather cryptic and there should have been a mere elaborate discussion, particularly by the trial Court, on the different aspects of the matter which the learned trial Court unfortunately did not do. But at the same time we must also note that failure on the part of the trial court to discuss the matter properly or to scrutinize the evidence mere elaborately will not by itself be a ground for reversing the decision of the trial Court and for granting decree in favour of the appellant husband. Rather, we for ourselves will go into the details of the evidence and see whether the appellant husband on the basis of such evidence is really entitled to a decree in this case, whatever may be the shortcomings of the judgment appealed against ( 6 ) P. W. 1 Tapan Kumar Chakraborty is the appellant husband. He says that after the marriage the O. P. (wife) came to reside with him at his house at Lalgola and that thereafter his relation with her became strained as she used to insist on her living separate from his parents to which he did not agree. He says that after the marriage the O. P. (wife) came to reside with him at his house at Lalgola and that thereafter his relation with her became strained as she used to insist on her living separate from his parents to which he did not agree. He says that as he did not agree to the proposal of his wife, she used to abuse him all the time and also used to quarrel with him and after persistent quarrel on 12-5-1980 his wife left his house for good and went to reside in the house of her father. He further says that his wife left his house without informing them and without their knowledge. This seems to us rather improbable that the wife will leave the house of the husband without informing and beyond the knowledge of any one, leaving behind her own child there. The husband further says that on 14-5-1980 his wife accompanied by her brother went to Lalgola P. S. and lodged false F. I. R. against himself, his parents and his elder sister and elder brother. He says that they had to surrender in Court and take bail from criminal Court. He further says that subsequently the criminal case was compromised on 4-5-1981. The husband has, in the application for divorce, taken the plea that filing of the F. I. R. or for that matter the initiation of the criminal case by the wife constitutes an act of cruelty. It was therefore, incumbent upon the husband to produce before the Court a copy of the F. I. R. lodged by or on behalf of the wife as the best evidence on the point so that the Court could scrutinise the same and find out for itself as to what were the exact allegations made therein and against whom. The fact that the respondent also admits that one F. I. R. was lodged over the incident of assault and torture allegedly committed on her on the 13th/14th May, 1980 does not by itself give a clear 7 picture of the criminal proceeding started by or at the instance of the wife. The fact that the respondent also admits that one F. I. R. was lodged over the incident of assault and torture allegedly committed on her on the 13th/14th May, 1980 does not by itself give a clear 7 picture of the criminal proceeding started by or at the instance of the wife. It is said by the husband that the police also submitted charge-sheet and it was a case under Section 307, I. P. C. It is not understood, if really police submitted charge-sheet under Section 307, I. P. C. in that event how the case could be withdrawn by the wife or compromised by the parties. Be that as it may, the husband, as we have seen, in his own evidence has stated that criminal case was compromised. But at the same time the fact remains that we do not know exactly what were the allegations made in the F. I. R. and against whom and what were the sections under which trial F. I. R. was recorded and what was the precise chargesheet, if any, submitted in the matter after investigation. The husband says in his deposition that he has no connection with his Lalgola house since 1979 as he has to stay at Jangipur. He further says that since his wife left his house on 12-5-1980 he has no connection or relationship with his wife and his wife never came to reside with him as his wife. He says that he tried to bring his wife back but in vain. He says that as his wife instituted criminal case and maintenance case against him he has been put to indignity and he was mentally and physically harassed. He also says that he knows the allegations made by his wife against him in her written statement and after knowing this he was mentally depressed. In his cross-examination he says that the police submitted charge-sheet in this case filed by his wife at Lalbag court and it was a case under Section 307, I. P. C. He says that his parents, brother and sister did not compromise that case but his wife herself withdrew the case. As we have noticed, in his examination in chief he however, told that this case was compromised but now in cross-examination he says that it was not compromised hut his wife withdrew the case. As we have noticed, in his examination in chief he however, told that this case was compromised but now in cross-examination he says that it was not compromised hut his wife withdrew the case. We do not understand how a police case of under Section 307, I. P. C. , if it was really under that section, could be withdrawn by the wife. No paper relating to that case has at all been produced before the Court as a result of which the correct picture about the matter cannot be obtained and the matter rather seems to be nebulous and confusing. The husband in his cross-examination says that after withdrawal of the criminal case the wife came to reside at this father's house at Lalgola with his parents, as he has heard. He admits that he filed the application of divorce in August 1982 and served the summons on the wife at his father's Lalgola house address. In the cause title of the application for divorce it is stated that the O. P. is presently residing at Lalgola Haripatti. It is therefore evident and rather admitted that at the time when the divorce suit was filed the wife was living in the matrimonial home with the members of the husband's family and summons of the suit was also served on her in that matrimonial home. The husband says in his cross-examination that after his wife left their house without informing any one he searched for her and his father sent a man in search of her at her father's house and it was found that his wife had been staying at her father's house. He however does not know the name of the man who was sent by his father in search of his wife. He say's that the man was sent by his father on 13-5-1961. He says that he resides in a mess at Jangipur. He denies the defence suggestion that at Jangipur he resides in the house of Dilip Chakraborty who is his relative. He however admits that Tripti is the sister of Dilip Chakraborty and Tripti is still unmarried. He denies the defence suggestion that he has an illicit connection with this Tripti Chakraborty. He also denies the defence suggestion of similar torture and ill-treatment to Ashoka Chakraborty. He however admits that Tripti is the sister of Dilip Chakraborty and Tripti is still unmarried. He denies the defence suggestion that he has an illicit connection with this Tripti Chakraborty. He also denies the defence suggestion of similar torture and ill-treatment to Ashoka Chakraborty. In cross-examination the husband says that his wife is very quarrel some and she used to quarrel all the times with his parents and always insisted on living with him separate from his parents. He says that his wife also used to suspect his character and also filed false criminal case against him and for these reasons he does not want her to be brought back. He denies the defence suggestion that he used to go to the house of the wife and had marital relationship with her. He also denies the defence suggestion that he filed the divorce case to get rid of the wife so that he could marry Tripti Chakraborty ( 7 ) P. W. 2 Sachindranath Chakraborty is the father of the husband. He denies that the wife was ever tortured or ill-treated at their house. He says that the O. P. (wife) filed a 8 criminal case against his son, daughter and his wife at the Lalbag criminal Court and the O. P. herself came and compromised the case. He says that the allegations in the criminal case were all false. He further says that after the case was compromised he requested the O. P. to reside at their house but in vain and thereafter the O. P. left for her father's house and after the O. P. left for her father's place she came back to their house at Lalgola. This statement of the father-in-law of the wife when read in a composite way rather lends support to the wife's case that after the case was compromised she came to the matrimonial home to stay there and this also is a natural sequence of events. As we have already seen, at the time when the suit was filed the wife was admittedly residing at the matrimonial home. He (P. W. 2) says that the husband never brought any Tripti Chakraborty of Jangipur at their Lalgola house. He also denies any illicit connection between the husband and Tripti Chakraborty. He says that Ashoka, the wife of his other son is in the family way. He (P. W. 2) says that the husband never brought any Tripti Chakraborty of Jangipur at their Lalgola house. He also denies any illicit connection between the husband and Tripti Chakraborty. He says that Ashoka, the wife of his other son is in the family way. In his cross-examination he says that he does not go to the appellant petitioner and the appellant petitioner also does not visit their Lalgola house and his wife and other sons and his daughter visit the petitioner's house at Jangipur. The criminal case, he says, was compromised within 4th to 7th May, 1981 and a compromise petition was filed in Court and that the terms of the compromise were mentioned in that petition of compromise. No such compromise petition has been put in evidence in this case. He says that towards the beginning of August, 1982 the O. P. visited their Lalgola house and they were all happy and she stayed there for five or seven days. He says that the petitioner filed this divorce case when the O. P. was staying in their house and the O. P. received a summons of the divorce case in their house. He denies the defence suggestion that the O. P. came to their house with him in the month of May 1981 and continuously stayed at their Lalgola house till 11-9-1982. He says that O. P. came to their house in the month of August, 1982 and stayed there for four or five days, and he informed the petitioner about it through his other son. It may be noticed that one thing is certain that the appellant husband was ordinarily staying at Jangipur which was the place of his work and at the time of filing the divorce suit he was fully aware that the wife was living with his parents in the matrimonial home at Lalgola and summons was also served on her at the matrimonial home at Lalgola. If really she had come to the matrimonial homes only in August 1982 and not after the compromise of the criminal case in May 1981 and if really she stayed in the matrimonial home after coming there in August 1982 only for five or seven days, it would not have been possible during these five or seven days to inform the appellant husband at Jangipur by his father that his wife had come to Lalgola and then to get the application for divorce drafted by contacting a lawyer in the District Court at Murshidabad and file the same in the Court there and get the summons served during these five or seven days upon the wife at the matrimonial home at Lalgola. All these series of events starting from communication of the information of the arrival of the wife at the matrimonial home at Lalgola to the husband at Jangipur and culminating into filing of the divorce suit and service of summons upon her at the Lalgola address within 5 or 7 days would be a physical impossibility. Moreover, what could have been the reason for the wife to suddenly come to the matrimonial home in August 1982 after the case was compromised in May 1981? The circumstances are therefore eloquent to support the wife's version that after the compromise of the case she came to stay at the matrimonial home at Lalgola in May 1981 and stayed there up to Sept. 1982 till after the filing of the divorce suit and received the summons at Lalgola in her matrimonial home. In his cross-examination P. W. 2 the father of the husband says that usually the wife did not quarrel with himself, his wife or daughter. The allegation that the wife is a quarrel some woman therefore gets belied rather. In answer to question put by the Court P. W. 2, the father of the husband says that Tripti Chakraborty happens to be their relative and the petitioner resides in a mess at Jangipur. He says that Tripti Chakraborty never came to their house at Lalgola and denies that the petitioner had only illicit 9 connection with her. ( 8 ) P. W. 3 Satyendra Nath Das says that his house is very close to the house of P. W. 2 intervened by a Rasta. He says that Tripti Chakraborty never came to their house at Lalgola and denies that the petitioner had only illicit 9 connection with her. ( 8 ) P. W. 3 Satyendra Nath Das says that his house is very close to the house of P. W. 2 intervened by a Rasta. He says that he does not know if on 13-5-1980 the O. P. was assaulted mercilessly and kept confined inside a room and if her elder brother rescued her from the room. He says that he has never seen the O. P. being assaulted, tortured or ill-treated by any inmate of the petitioner's house. ( 9 ) ON the other hand four witnesses were examined on behalf of the defence. D. W. 1 Jyotsna Chakraborty is the wife herself. She says that after marriage her husband, mother-in-law and husband's sister used to ill-treat her and often she was subjected to physical torture. She says that Ashoka is the wife of his husband's brother and Ashoka (sic) her. She however says that as Ashoka could not stand the ill-treatment and torture, she left for her father's house and after Ashoka left torture on the O. P. increased. She says that on 10-5l980 her father-in-law had been to Puri and on 13-5-1980 her husband, mother-in-law and husband's sister mercilessly assaulted her. She says that they tortured her as she refused to leave the house leaving her daughter. On 14-5l980, she says, she was again mercilessly beaten and she become unconscious and she was kept confined inside a room and her elder brother Harihar Mukherjee rescued her with the help of police and some neighbours. It has been submitted by the learned Advocate for the appellant that if she was really rescued with the help of police then police witness should have been examined on behalf of the defence which the defence did not do. She says that her ornaments and all other wearing apparels were taken away by her husband and she went to the police station with her elder brother Harihar Mukherjee and lodged a complaint there against her husband, mother-in-law and husband's sister and thereafter she was taken to her father's house by her elder brother. She says that her ornaments and all other wearing apparels were taken away by her husband and she went to the police station with her elder brother Harihar Mukherjee and lodged a complaint there against her husband, mother-in-law and husband's sister and thereafter she was taken to her father's house by her elder brother. She also says that at Krishnanagar Court she filed a maintenance case against her husband as he neglected to maintain her and then three or four months thereafter her husband came to their house and compromised that there would not be any further repetition of the torture and ill-treatment and promising this he took her with him at his Lalgola house and since then she began to live with her husband at their Lalgola house and she stayed there for about one and a half year and during this period she was again tortured and ill-treated at the Lalgola house. She says that her husband and his father and other inmates of the house obtained her signatures on some blank papers under compulsion. It may be mentioned here that this allegation has been denied by the husband and his father. She says that she knows Tripti Chakraborty and her husband had illicit connection with Tripti and the people of Jangipur assaulted her husband for his illicit connection with this Tripti. She further says that Tripti used to come to their Lalgola house and her husband used to express that he was going to marry Tripti and her husband used to present her sarees and other things to Tripti. She says that while she was staying in Lalgola house she received summons of this case on 10-9-1982 and on receiving the summons she came to her father's house and thereafter entered appearance in the suit. The fact that the wife received the summons of the divorce suit on 10-9-1982 at her matrimonial home at Lalgola after the suit was filed in 9th August, 1982 in Beharampur Court mentioning in the plaint that the wife was living at that time in the Lalgola house, falsifies the husband's case that the wife came and stayed in the matrimonial home at Lalgola only for five or seven days in August, 1982. Rather the facts and circumstances, at the cost of repetition, we reiterate strongly support the wife's case that she came back to the matrimonial home at Lalgola some time in May 1981 when the case was compromised and stayed there for about one and a half year till she received the summons of the matrimonial suit. This is also supported by the husband's statement that he heard that after withdrawal of the criminal case his wife came to reside at his father's house at Lalgola with his parents. In her cross-examination she says that on 14-5-1980 when she went to lodge the criminal case against her husband and other inmates of his family, besides her elder brother Harihar Mukherjee some local people namely, Adhir Dutta, 0 Dilip Sarkar, Jitendra Nath Bhattacharjee, Mrinal Bose, Sanat Choubey and many others accompanied them. She says that these persons are all neighbours of her husband and all those persons knew of the torture and her confinement inside a room. It has been submitted on behalf of the appellant husband that none of these persons except Dilip Sarkar has been examined on behalf of the wife. The wife says that on 14-5-80 she was kept confined inside a room and at about 4 p. m. they had been to the police station on that day. In cross-examination the wife says that she did not make any allegation of illicit connection of her husband with Tripti. Chakraborty in the previous case and that in the year 1980 she heard about the illicit connection of her husband with Tripti Chakraborty at her father's house and in the month of April or May 1981 she saw her husband's illicit connection with this Tripti Chakraborty. She says that for the last three years her Ja Ashoka is residing in the house of her father and some time Ashoka writes letter to her and she has not filed those letters as those letters were snatched away by the inmates of her father-in-law's house, but she says that she can file one such letter which is still with her. It is commented by the learned Advocate for the appellant husband that even that one letter also has not been filed in the Court. She denies the suggestion in cross-examination that her husband attempted to bring her back several times but she refused to go with him. It is commented by the learned Advocate for the appellant husband that even that one letter also has not been filed in the Court. She denies the suggestion in cross-examination that her husband attempted to bring her back several times but she refused to go with him. She says that she never disclosed the illicit connection of her husband with Tripti Chakraborty to anyone as it was a matter between husband and wife ( 10 ) D. W. 2 Harihar Mukherjee is the brother of the wife. He says that since after the marriage the petitioner used to ill-treat and torture his sister. She further says that about 4 or 5 years back in the month of May he went to the house of the petitioner and found an assembly of a large number of men and that his sister was kept confined in a room and she was unconscious. He says that he went to the Lalgola Police Station and informed the matter there and with the help of some police men of Lalgola P. S. he managed to rescue his sister and thereafter he brought his sister to their house. He also speaks of the filing of the maintenance case by the wife against the husband and says that thereafter one day the petitioner went to their house and promised that in future the torture and ill-treatment would n7ot be repealed and thereafter they sent the respondent with the petitioner. He says that after withdrawal of the criminal case his sister was again tortured by the petitioner and other inmates of his house and at present his sister is staying at his house. He is a dealer in bel metal utensils. In his cross-examination he says that he was informed at about 8 a. m. by a man of Lalgola that his sister had been kept confined after severe torture and on getting this information he came to Lalgola by train. He however cannot say where that person went. He says that the information was conveyed to him by one Sentu Choubey and Adhir Dutta of Lalgola but he did not communicate with them thereafter. He says that he boarded the train for going to Lalgola from Muragachha at 9. 15 a. m. and reached Lalgola at about 12. He however cannot say where that person went. He says that the information was conveyed to him by one Sentu Choubey and Adhir Dutta of Lalgola but he did not communicate with them thereafter. He says that he boarded the train for going to Lalgola from Muragachha at 9. 15 a. m. and reached Lalgola at about 12. 15 p. m. He says that amongst the local people present at the house of the petitioner on that day there were Sentu Choubey, Adhir Dutta and many others whose names he cannot remember. He further says that after rescuing the respondent he came to Lalgola P. S. again and lodged a complaint there and thereafter took his sister to his house. He further says that many people of the locality also accompanied them to the police station and in that connection he names Binoy Sarkar, Atul Shil, , Bhupen Singh, Mangal Tewari. It is commented by the learned Advocate for the respondent that none of these persons has been examined in this case. It is suggested on behalf of the husband to this witness in cross-examination, which however he denies, that while his sister was staying at their house the petitioner went there on several occasions to bring her back but they did not allow the petitioner to take his wife ( 11 ) D. W. 3 Dilip Kr. Sarkar is a resident of Lalgola and claims to be a neighbour of the appellant petitioner. He says that the petitioner ill-treats the O. P. He further says that he has seen the petitioner assaulting the O. P. about 4 years back and hearing an alarm some 1 of the people of the neighbourhood assembled near the house of the petitioner and there was a great commotion and they heard that the O. P. was crying for help. He further says that when the door was opened they found that the O. P. was lying in a room in an injured condition with marks of injuries on her body. He says that when they entered inside the room where the O. P. was lying in injured condition, she disclosed to them that she was being assaulted by her husband, father-in-law, mother-in-law and other relations. He says that when they entered inside the room where the O. P. was lying in injured condition, she disclosed to them that she was being assaulted by her husband, father-in-law, mother-in-law and other relations. In cross-examination he says that P. W. 2 Harihar Babu deals in bell metal utensils at Lalgola and the elder brother of the witness also is a dealer of such utensils at Lalgola and his brother has business acquaintance with Harihar Babu. He says that the incident took place at about 6. 30 or 7 p. m. It has been commented by the learned Advocate for the husband that while the wife herself says that she was rescued by her brother and others and then went to the police station at about 4 p. m. , this witness D. W. 3 says that incident took place at about 6. 30 or 7 p. m. and therefore there is a discrepancy. This witness has however not given the date of the incident. As we have seen, it is the case of the respondent wife that assault and torture took place both on the 13th May and the 14th May. In the circumstances the evidence of D. W. 3 can be reasonably referred to the incident that took place on 13th May and in that view of the matter there is no discrepancy. D. W. 4 Sanatan Das is also a resident of Lalgola and is also a neighbour of the petitioner husband. He says that about four years back there was an incident and he saw that the O. P. was being assaulted by the petitioner and others and petitioner took her outside the house and was assaulting her. He is a rickshaw puller. He says that he came to know Harihar Babu as the latter used to carry utensils and other goods in his rickshaw. He also says in his cross-examination that at the time of incident of assault he found that a large number if people had assembled there. It is however suggested to him in cross-examination that he is not a close neighbour of the petitioner which he however denies. P. W. 5 Majommal Hossain is also a resident of Lalgola and claims to be a close neighbour of the petitioner. He also says that the petitioner and his family members used to assault and ill-treat his wife. It is however suggested to him in cross-examination that he is not a close neighbour of the petitioner which he however denies. P. W. 5 Majommal Hossain is also a resident of Lalgola and claims to be a close neighbour of the petitioner. He also says that the petitioner and his family members used to assault and ill-treat his wife. He says that about four years back there was an incident and in the late evening on that day he saw that the petitioner assaulted the O. P. and kept her confined in a room and there was a large assembly of neighbours. He says that he went inside the house of the petitioner and saw the incident. He however did not see anything on the roadside. He says that he saw the incident at about 5. 30 p. m. or 6 p. m. Having regard to the case of the wife it is also evident that his witness also speaks about the incident that took place on 13th May, 1980. From the evidence led and the same being studied in the back-ground of the case of the respondent wife it appears that the incident spoken of by the witnesses was the incident that took place on 13th May, 1980 and then somebody reported the matter to the brother of the respondent at Muragachha in the next morning and on receipt of that information the brother of the respondent came to the petitioner's house at Lalgola and took the respondent from the house of the petitioner and reported the matter at the Lalgola P. S. and then came back to his own house at Muragachha with his sister, the respondent. It has been criticised by the learned Advocate for the appellant husband that if the respondents brother had reached Lalgola at about 12. 30 p. m. on 14th May, 1980 it should not have taken so much of time for him thereafter to go to the P. S. at 4 p. m. with his sister. In our opinion there is nothing unusual in it. 30 p. m. on 14th May, 1980 it should not have taken so much of time for him thereafter to go to the P. S. at 4 p. m. with his sister. In our opinion there is nothing unusual in it. Firstly, the deposition about time must be only approximate and secondly having regard to the nature of the incident it cannot be said that there was an unusual delay for them to go to the P. S. at about 4 p. m. after rescuing the respondent from the petitioner's house as stated by the respondent's brother ( 12 ) AFTER discussing all the evidence on record and for reasons which we have already discussed, we are inclined to find that the respondent-wife came to live in the matrimonial home some time in or about May 1981 when the criminal case and the maintenance 2 case were compromised and thereafter she stayed in the matrimonial home till receipt of the summons of the divorce suit in September 1982. This finding is a rejection of the appellant-husband's ground of desertion by the wife. We also find it difficult to accept the plea of the husband that the wife was not willing to stay in the matrimonial home. The facts, circumstances and evidence on record also do not inspire us to hold that the wife left the matrimonial home on the 12th May, 1980 without informing any one and beyond the knowledge of the inmates of the husband's house, leaving behind her child there. As regards the plea of the husband that the filing of the criminal case and maintenance case by the wife on false charge constitutes cruelty on the part of the wife, we would however like to note that since admittedly those cases were subsequently compromised and since the respondent also came or was brought back to live in the matrimonial home and in fact lived there for nearly one and a half year after the compromise the husband cannot avail of the plea that filing of these cases constitutes cruelty on the part of the wife, because by making a compromise of these cases cruelty, if any, on the part of the wife had been condoned by the husband and, alternatively because, the compromise indicates that the wife filed those cases possibly on genuine grounds in which case the filing of such cases did not constitute cruelty. From the evidence of the husband's father we have seen that a compromise petition was also filed in the Court containing the terms and conditions of compromise but that compromise petition has not been brought in evidence in the matrimonial suit by the husband which rather raises a presumption that the production of the compromise petition in evidence has been withheld by the husband because its production would have disclosed a state of affairs Adverse to the petitioner ( 13 ) THE learned Advocate for the appellant husband argues very forcefully that even apart from the question whether the allegations of cruelty and desertion have been proved and even assuming for the sake of argument that in this case such allegations of cruelty and desertion have not been proved against the respondent wife, yet the fact remains that the parties are living separate since 1980 after a brief conjugal life of a year or so and, therefore there is no difficulty in finding that the marriage between the parties has broken down irretrievably and the parties are living separate for the last 16 years. It is submitted on behalf of the appellant that in this back-ground the Court may consider it to be a fit case for passing a decree of dissolution of the marriage on the ground of irretrievable back-ground of marriage. In this connection the learned Advocate for the appellant husband refers to a decision of a Division Bench of this court presided over by Samir Kumar Mookherjee, J. in Sukhomoy Bag v. Mrs. Jaya Bag, 1996 (1) Cal HN 210. In that case the husband prayed for divorce on the ground of cruelty etc. The trial Court however dismissed the suit against which the husband preferred an appeal before this Court which was disposed of by the Division Bench by the said decision. The Division Bench also could not find that the ground of cruelty as alleged by the husband against the wife had been established. Even then the Division Bench considered the question whether a decree could be passed behind Sections 24 and 27 of the Special Marriage Act. It may be mentioned here that the said case was a case under the Special Marriage Act, 1954. Even then the Division Bench considered the question whether a decree could be passed behind Sections 24 and 27 of the Special Marriage Act. It may be mentioned here that the said case was a case under the Special Marriage Act, 1954. In paragraph 24 of the said decision the Division Bench recognised the position that the Special Marriage Act does not contain any provision that a decree for divorce could be granted by a Court when the marriage had irretrievably broken down. The Division Bench also recorded in paragraph 24 that the relief under S. 27 of the Special Marriage Act, in their view, was not available but from the tenor of the evidence the fact remained that the chance of restoring marital bond was beyond any possibility. In this connection the Division Bench in paragraph 25 of the decision referred to the decision of the Supreme Court in Saroj Rani v. Sudarsan Kumar, AIR