JUDGMENT 1. - This appeal filed by the wife-non-applicant under s. 19 of the Family Courts Act read with s. 28 of the Hindu Marriage Act, 1955 is directed against the Judgment and decree of the learned Judge, Family Court, Jodhpur dated 12.7.1995 by which the learned Judge passed the decree of dissolution of marriage in favour of the husband-applicant under s. 13 of the Hindu Marriage Act, 1955 (for short 'the Act'). 2. The wife-appellant and the husband-respondent were married according to the Hindu customs on 28.11.1985 at Jodhpur. The relations between the two were normal up to December 1985. Thereafter, the wife-appellant went to her parents' house in January 1986 and did not return back. It appeared that her parents were not willing to send her to her matrimonial home. However, after negotiations, she was sent to her matrimonial home but she remained there for a week and then again went to her parents' house. The wife-respondent again came to her husband but she left for good on 13.3.1986. The husband-respondent made efforts to persuade her to return to her matrimonial home but she refused to come. She asked the husband-respondent to come and live with her in her parents' house. The husband-respondent did not agree to such unreasonable request. Thereafter, in the month of October or November 1986, the wife-appellant took the job of a Teacher in Central School, Jodhpur without the consent of the husband-respondent. By the above act of the wife-appellant, the husband-respondent was deprived of her company and she further deprived the husband-respondent of the matrimonial pleasure without any reasonable cause. 3. The husband-respondent, therefore, filed a petition for dissolution of marriage under s. 13 of the Hindu Marriage Act on the ground of cruelty as defined ins. 13(1-A)(i) of the Act. During the pendency of the petition, the husband-respondent moved an application purporting to be under 0.6, R. 17 C.P.C. seeking amendment in the petition. The husband-respondent sought to add the ground of dissolution of marriage on account of desertion as contained in proposed Para 6-A of the application. The learned Judge, by his order dated 2.9.1992 allowed the application of the husband-respondent. Thereafter, the amended petition was filed in which new Para 6-A containing the allegations based on cruelty was added. 4. The husband-respondent sought to add the ground of dissolution of marriage on account of desertion as contained in proposed Para 6-A of the application. The learned Judge, by his order dated 2.9.1992 allowed the application of the husband-respondent. Thereafter, the amended petition was filed in which new Para 6-A containing the allegations based on cruelty was added. 4. The wife-appellant resisted the application of the husband-respondent on the ground that the behaviour and conduct of the husband-respondent immediately after the marriage were intolerable. He always insisted for more dowry. He asked the appellant to bring more gold ornaments. She also alleged that immediately after the marriage, she and her husband went to Bombay but the latter obtained the expenses of the two from her parents. She also alleged that the husband-respondent forcibly relieved her of her Stridhan. The respondent treated her with cruelty and made her life miserable. In March 1986, the husband-respondent left his parents and began to live in a temple. She had no alternative but to leave her matrimonial home because the behaviour of the respondent was harsh and cruel. She denied the allegation that she was not willing to live with the respondent. She even offered to live with her husband if the latter assures her of good and affectionate behaviour. 5. On the above pleadings of the parties, the learned Judge framed the following issues, which when translated into English read as under : 1. Whether the wife-non-applicant deserted the husband applicant without any reasonable cause? 2. Whether the behaviour of the wife-non-applicant with the husband-applicant was cruel? 3. Whether the behaviour of the husband-applicant with the wife-non-applicant was cruel? 4. Relief. The husband examined 7 witnesses including himself in support of his case and he wife-appellant produced herself and 6 other witnesses. The learned Judge decided ssues No. 1, 2 and 3 together. 6. According to the learned Judge, the husband-respondent levelled three allegations with regard to issues No. 1 and 2. The first allegation is that the wife-appellant left the husband- respondent for good on 13.3.1986 and deprived him of cohabitation and thereby caused mental cruelty. Secondly, when the wife-appellant lived with the husband-respondent for three months, she persistently refused to have sexual intercourse, which legally amounted to mental cruelty. When the husband- respondent attempted to have cohabition with the wife-appellant, she threatened to commit suicide. Secondly, when the wife-appellant lived with the husband-respondent for three months, she persistently refused to have sexual intercourse, which legally amounted to mental cruelty. When the husband- respondent attempted to have cohabition with the wife-appellant, she threatened to commit suicide. The last allegation is that the wife-appellant never liked the husband-respondent and often told that she wanted to marry with some Gazetted Officer. The above explanation of the feeling of the appellant caused shock and mental agony to the husband-respondent. While dealing with these three allegations, the learned Judge stated that the respondent did not state first two grounds in his original petition for dissolution of marriage. These two grounds were incorporated later on by way of amendment. He, therefore, thought that the above two allegations were after thought and are baseless. He, therefore, felt unable to accept the same. While dealing with the third allegation, the learned Judge referred to the evidence of the parties and observed that the evidence of both the parties was balanced and it was difficult for him to decide the point in favour of either of the parties. He, however, observed that the appellant in her statement clearly admitted that the behaviour of her mother-in-law and sisters-in-law towards her was good and when the appellant joined the service, she did not inform the respondent nor took his permission, which was not proper. 7. The crux of the finding of the learned single Judge was that the marriage of the parties has irretrievably broken down and there was no chances of husband and wife living together. Relying on the observations of the Hon'ble Supreme Court made in V. Bhagat v. D. Bhagat, 1994 (1) SCC-337 , the learned Judge came to the conclusion that the decree of divorce was the only alternative to give relief to the parties to get out of the deadlock in their marital relations. He, therefore, passed a decree of dissolution of marriage under issues No. 1, 2 and 3. 8. We have heard Mr. Dinesh Maheshwari, the learned counsel appearing for the wife-appellant and M/s. S.G. Ojha and S.C. Maloo for the husband-respondent and have carefully gone through the record of the case. 9. Before we refer to the arguments of the parties, it would be proper to state that the ground of desertion was not originally taken by the husband-respondent in his petition filed before the learned Judge. 9. Before we refer to the arguments of the parties, it would be proper to state that the ground of desertion was not originally taken by the husband-respondent in his petition filed before the learned Judge. This ground was added by way of amendment and the learned Judge framed issues No. 1 and 2 regarding the above allegations. The husband-respondent filed the petition on 18.5.1987 and they were married on 28.11.1985. The ground of desertion for divorce is contained in s. 13(1)(ib) of the Act. According to this provision, any marriage solemnized, whether before or after the commencement of this Act, may on the petition presented by either the husband or the wife, be dissolved by a decree or divorce on the ground that the other party has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition. It is, thus, clear that the desertion as a ground of divorce must be of not less than two years immediately preceding the presentation of the petition. The petition was admittedly filed before expiry of two years and the amendment sought by the husband-respondent incorporating the ground of desertion was, therefore, not sustainable because the period of two years has to be reckoned up to the date of presentation of the petition. The learned Judge, Family Court, therefore, committed an error in allowing the husband-respondent to seek the amendment taking an additional ground of desertion for divorce. Issue No. 1 was, therefore, unwarranted and it ought not to have been framed. We are, therefore, not considering the appeal on the ground of desertion. 10. The learned counsel appearing for the wife-appellant vehemently assailed the finding of the learned Judge, Family Court and submitted that the learned Judge committed a serious error in law as well as facts. He was convinced by the allegation of desertion and while deciding the ground of cruelty, he also took into consideration the allegation of the respondent regarding desertion. He was, therefore, confused about deciding the real controversy or the legal ground on which the respondent could have availed himself of the relief of divorce. From the evidence produced by the husband-respondent, no ground of dissolution of marriage existed and the conclusion drawn by the learned Judge was, therefore, without any basis. He was, therefore, confused about deciding the real controversy or the legal ground on which the respondent could have availed himself of the relief of divorce. From the evidence produced by the husband-respondent, no ground of dissolution of marriage existed and the conclusion drawn by the learned Judge was, therefore, without any basis. Thus, the learned Judge committed a serious error of law in assuming that the marriage of the parties has irretrievably broken down and the relief of dissolution of marriage was the only remedy mutually beneficial for both the parties. The learned Judge has himself observed that the grounds of cruelty as alleged by the husband-respondent were not substantiated inasmuch as they were after thought. These grounds were based on facts and were within the knowledge of the husband-respondent and there was no reason why he failed to offer the same in the original petition filed by him. If the allegations would have been correct, the husband-respondent could have averred these allegations in the original petition. 11. The husband-respondent miserably failed to establish anything to prove that the wife-appellant treated him with cruelty. This petition of divorce was filed as back as on 18.5.1987 and was being contested throughout by the husband-respondent without making any efforts for reconciliation. Suddenly, the husband- respondent came out with the proposal for his being prepared to live with the wife-appellant. This suggestion cropped up only at the time when the husband-respondent completed his evidence. From the above, it is clear that the husband-respondent made false allegations and wanted to get rid of the wife-appellant on one pretext or the other. 12. The learned Judge further misinterpreted the law by accepting the ground of so called irretrievably break down of the marriage between the parties. The wife-appellant in her reply as also in her evidence categorically stated that she was prepared and willing to live with the husband-respondent provided the latter made the atmosphere congenial and treat her with respect and affection. The learned Judge also went out of the context and observed that the marriage is a complicated human institution and social concept. It was, therefore, wholly irresponsible for him to have approached the matter with such misplaced and wrong notions. The marriage is a sacred institution and the society considers the acceptance of marriage as a essential social phenomenon. Both the parties got mutual obligations and duties to each other. It was, therefore, wholly irresponsible for him to have approached the matter with such misplaced and wrong notions. The marriage is a sacred institution and the society considers the acceptance of marriage as a essential social phenomenon. Both the parties got mutual obligations and duties to each other. The wife-appellant on her part made very sincere efforts to save the marriage and enjoyed the matrimonial pleasure but the husband-respondent thwarted all her attempts. The contention of the wife-appellant is, therefore, that the husband-respondent could not prove cruelty and the allegations made by him are all false, frivolous and after-thought. 13. The learned counsel appearing for the husband-respondent has supported the judgment and decree of the learned judge. He has referred to the evidence of the parties and submitted that from the evidence of the husband-respondent, it was proved satisfactorily that the wife-appellant lived with the husband- respondent only for three months and during this short stay also, she did not perform her marital obligations. The Wife-appellant from the very beginning was harsh, cruel and insensitive towards the husband-respondent. The appellant did not allow cohabitation and the respondent was deprived of sexual pleasures. She left her matrimonial home for good on 13.3.1986 and did not return thereafter even though sincere efforts were made by the husband- respondent and his relatives. The appellant acquired more academic qualifications and this created complex in the appellant. She became ambitious and always insisted that she did not like the marriage as she wanted to marry a Gazetted Officer. She also insisted the husband-respondent to come and live with her at her parents' house. This unreasonable request could not have been exceeded to by the husband-respondent because it outrages his self respect. The respondent always tried to persuade the appellant to come and live with him. Whenever the appellant met him, he wanted to talk to her but she refused. All these acts constitute cruelty as defined in s. 13(1)(i-a) of the Act. There is a clear finding of the learned Judge that the marriage of the parties irretrievably broke down and it was impossible for them to live together as husband and wife. The learned Judge has considered this ground to be relevant and the relief of dissolution of marriage was granted. 14. There is a clear finding of the learned Judge that the marriage of the parties irretrievably broke down and it was impossible for them to live together as husband and wife. The learned Judge has considered this ground to be relevant and the relief of dissolution of marriage was granted. 14. In this connection reliance was placed on V. Bhagat v. D. Bhagat, 1994 (1) SCC-337 ; Ramesh Chandra v. Smt. Savitri, 1995 (1) Current Civil Cases-97 and Senh Prabha v. Ravindra Kumar, AIR 1995 SC 2170 . 15. We have considered the rival submissions and perused the case-law cited at the bar. 16. It is an admitted case of the parties that cruelty alleged and sought to be proved consisted of mental cruelty and there are no allegations of physical cruelty. In V. Bhagat's case (supra), the Apex Court dealing with mental cruelty observed : "Mental cruelty in s. 13 (1)(i-a) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. Mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. While arriving at such conclusion, regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made." In the above case, the Apex Court referred to the observations made by Lord Reid in Collins v. Gollins, 1964 AC 644 : 2 All ER-966 :- "No one has ever attempted to give a comprehensive definition of cruelty and I do not intend to try to do so. Much must depend on the Knowledge and intention of the respondent, on the nature of his (or her) conduct, and on the character and physical or mental weaknesses of the spouses, and probably no general statement is equally applicable in all cases except the requirement that the party seeking relief must show actual or probable injury to life, limb or health." Reference was also made to Shobha Rani v. Madhukar Reddi, (1988) 1 SCC 105 , in which the phrase 'treated the petitioner with cruelty' was interpreted in the following words : "Sec. 13(1)(i-a) uses the words `treated the petitioner with cruelty'. The word `cruelty' has not been defined. Indeed it could not have been defined. It has been used in relation to human conduct or human behaviour. It is a conduct in relation to or in respect of matrimonial duties and obligations. It is a course of conduct of one which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. If it is physical the court will have no problem to determine it. It is a question of fact and degree. If it is mental, the problem presents difficulty. First, the enquiry must begin as to the nature of the cruel treatment. Second, the impact of such treatment on the mind of the spouse. Whether it caused reasonable apprehension that it would be harmful or injurious to live with the other. Ultimately, it is a matter of reference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. There may, however, be cases where the conduct complained of itself is bad enough and perse unlawful or illegal. Ultimately, it is a matter of reference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. There may, however, be cases where the conduct complained of itself is bad enough and perse unlawful or illegal. Then the impact or the injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted. It will be necessary to bear in mind that there has been marked change in the life around us. In matrimonial duties and responsibilities in particular, we find a sea change. They are of varying degrees from house to house or person to person. Therefore. when a spouse makes a complaint about the treatment of cruelty by the partner in life or relations, the court should not search for standard in life. A set of facts stigmatised as cruelty in one case may not be so in another case. The cruelty alleged may largely depend upon the type of life the parties are accustomed to or their economic or social conditions. It may also depend upon their culture and human values to which they attach importance. We, the Judges and lawyers, therefore, should not import our own notions of life. We may not go in parallel with them. There may be a generation gap between us and the parties. It would be better if we keep aside our customs and manners. It would be also better if we less depend upon precedents. Because as Lord Denning said in Sheldon v. Sheldon, (1966) 2 All ER 257 , the categories of cruelty are not closed. Each case may be different. We deal with the conduct of human beings who are not generally similar. Among the human beings there is no limit to the kind of conduct which may constitute cruelty. New type of cruelty may crop up in any case depending upon the human behaviour, capacity or incapability to tolerate the conduct complained of. Each case may be different. We deal with the conduct of human beings who are not generally similar. Among the human beings there is no limit to the kind of conduct which may constitute cruelty. New type of cruelty may crop up in any case depending upon the human behaviour, capacity or incapability to tolerate the conduct complained of. Such is the wonderful (sic) realm or cruelty." In V. Bhagat's case (supra), while dealing with the concept of irretrievable break down of the marriage, it was observed that the another circumstance to be kept in mind is that even where the marriage has irretrievably broken down, the Act even after the 1976 (Amendment) Act, does not permit dissolution of the marriage on that ground and this circumstance may have to be kept in mind while ascertaining the type of cruelty contemplated by S. 13(1)(i-a). 17. Now, in view of the above observations, we may refer to the evidence of the parties. The learned Judge was right in observing that the husband-respondent made three allegations to prove the cruelty of the wife-appellant. We have stated above those three allegations while narrating the facts of the case. The learned Judge has held that the first two allegations averred and attempted to be proved by the husband-respondent were not stated in the original petition. These two allegations were incorporated when the application for amendment filed by the husband- respondent was allowed by the learned Judge. A new Para 6-A was added in the petition. These two allegations were not averred in the original petition and were incorporated only subsequently by way of amendment and therefore, they cannot be held to have been proved in favour of the wife-appellant because obviously they were after-thought and were added only in order to make up the case of cruelty. The learned Judge was, therefore, correct in rejecting the above two allegations. We agree with the view taken by the learned Judge. These two allegations were purely based on facts and were definitely within the knowledge of the husband-respondent when he filed the original petition. If he omitted to mention the same, it may be presumed that they did not exist. Subsequent addition of these two allegations were, therefore, after-thought and were incorporated only to strengthen the ground of cruelty alleged by the husband-respondent. If he omitted to mention the same, it may be presumed that they did not exist. Subsequent addition of these two allegations were, therefore, after-thought and were incorporated only to strengthen the ground of cruelty alleged by the husband-respondent. Merely on the ground of leaving the house of the husband-respondent, it cannot be presumed that it was an act of cruelty. The wife-appellant has made the averments that the husband-appellant always demanded dowry from her and when she failed to fultil such unreasonable demand, she was treated with cruelty and she was compelled to leave her matrimonial home. The burden of proof lay on the husband-respondent to prove the mental cruelty as alleged by him. He has failed to do so. The learned Judge was not correct in stating the concept that the marriage institution is a complicated social phenomenon. His approach with this concept to the facts of the present case was unwarranted and unreasonable. It appears that the learned Judge was very much influenced by the fact that the marriage between the parties has irretrievably broken down and there was no possibility that they can live together in future. 18. We may also state that even after hearing the arguments, we tried to reconcile the matter and both the parties were consulted and we tried to resolve their dispute but both of them appear to be adament and our reconciliation efforts failed. Both the parties were given an opportunity to discuss their problems mutually but that effort also failed. However, it is very difficult to give a finding that the marriage has irretrievably broken down. Even assuming that such circumstances exist, a decree for dissolution of marriage cannot be granted on this ground alone. We have already referred to the observations made by the Apex Court in V. Bhagat's case (supra). It was clearly stated that s. 13 (1)(i-a) of the Act does not permit dissolution of marriage on this ground alone.In Ramesh Chander's case (supra), the facts were that 25 years elapsed since the appellant and respondent (husband and wife) have joined the company of each other as husband and wife. It was clearly stated that s. 13 (1)(i-a) of the Act does not permit dissolution of marriage on this ground alone.In Ramesh Chander's case (supra), the facts were that 25 years elapsed since the appellant and respondent (husband and wife) have joined the company of each other as husband and wife. There was second inning of litigation within these 25 years and while making reference to V. Bhagat's case (supra) it was observed that the concept of cruelty both mental and physical can entitle the applicant to claim divorce under s. 13(1)(i-a) of the Act in the particular facts and circumstances of the case. The Apex Court found that the marriage was dead both emotionally and practically. It was stated that the continuance of marriage for name's sake would prolong the agony and affliction. Hence a decree for divorce was granted. 19. In Sneh Prabha's case (supra), there was an order confirming the decree of restitution of conjugal rights under s. 9 of the Act and despite conciliation and much efforts by Supreme Court, the Court felt that the marriage of parties has irretrievably broken down and there were no chances of husband and wife living together. A decree for divorce was granted. 20. However, it may be stated that the principle laid down in V. Bhagat's case (supra) that the circumstances that the marriage has irretrievably broken down could not constitute a ground for dissolution of marriage. It was further observed that the circumstance may have to be kept in mind while ascertaining the type of cruelty. This case, though referred in Rameshchander's case (supra) but the above view was not disturbed. In Sneh Prabha's case (supra) the decision was given under s. 9 of the Act. There was a decree for restitution of conjugal rights and despite that, reconciliation efforts by the Court failed and therefore, a decree of divorce was granted. In this case also, the dictum laid down in V. Bhagat's case (supra) was not disturbed. 21. We, therefore, disposed to hold that the circumstance that the marriage between the parties has irretrievably broken down cannot constitute a ground of cruelty entitling the husband respondent to claim a decree of divorce under s. 13(1)(i-a) of the Act. 22. Our conclusion, therefore, is that the husband-respondent has failed to prove cruelty and the learned Judge was not right in passing the decree of dissolution of marriage. 23. 22. Our conclusion, therefore, is that the husband-respondent has failed to prove cruelty and the learned Judge was not right in passing the decree of dissolution of marriage. 23. We, therefore, accept this appeal, set aside the judgment and decree passed by learned Judge, Family Court dated 12.7.1995 and dismiss the petition of the husband-respondent for dissolution of marriage. 24. The parties are left to bear their own costs of this appeal.Appeal allowed. *******