JUDGMENT : R.N. Biswal, J. - The wife-Respondent has preferred this appeal against the judgment dated 4.10.2002 passed by the Learned Judge, Family Court, Cuttack in Civil Proceeding No. 93 of 1994 allowing the petition u/s 13 of the Hindu Marriage Act. 2. The present Appellant was the Respondent and the Respondent was the petitioner before the Judge, Family Court, Cuttack. The parties are Hindus and governed under the Mitakhar School of Law. They entered into a wedlock on 5.5.1977 according to Hindu rites and their Caste custom and lived in the house of the petitioner at Haridapal as husband and wife. During the time of marriage the petitioner was serving as a clerk and subsequently he joined as a Lecturer in Commerce in Rajendra College, Bolangir on ad hoc basis. Subsequently his service was confirmed and he served as a Lecturer in different Colleges. As per the case of the petitioner while he was coming to his native place during holidays, very often the Respondent on some plea or the other, was keeping away from the matrimonial home. She developed a peculiar sexual behavior towards the petitioner and did not cooperate him in sexual relationship. She willfully neglected to look after the household affairs and treated the petitioner with cruelty. So, ultimately in the year 1980 both of them decided not to continue the conjugal life any further. On 30.1.1980 the Respondent swore an affidavit before the Executive Magistrate, Jajpur stating that her relationship with the petitioner as wife ceased to exist and since then they lived separately and there was no sexual relationship between them. It is the further case of the petitioner that the Respondent filed a false complaint case bearing I.C.C. No. 368 of 1983 against him, his mother and some others on false allegation that the petitioner married for the second time, while his first marriage was in subsistence and on some other allegations, wherein all of them got acquitted. During pendency of this case, there was an understanding that the Respondent would file a divorce suit against the petitioner, and the latter would not resist it. It was agreed upon that the petitioner would pay a lump sum amount of Rs. During pendency of this case, there was an understanding that the Respondent would file a divorce suit against the petitioner, and the latter would not resist it. It was agreed upon that the petitioner would pay a lump sum amount of Rs. 10,000/- as permanent alimony to the Respondent, but as the petitioner had no ready cash it was further agreed upon that he would execute a security bond in respect of 1/3rd of his interest in the joint family property for payment of Rs. 10,000/-towards permanent alimony. Instead of a bond the Respondent fraudulently managed to get a gift deed executed in her favour and did not file the suit. Subsequently, when she tried to alienate the so-called gifted property, the petitioner cancelled the deed on 25.4.1994. Ultimately, he filed a petition u/s 13 of the Hindu Marriage Act before the Judge, Family Court, Cuttack bearing Civil Proceeding No.93 of 1994 for dissolution of the marriage and a decree of divorce on the aforesaid grounds. 3. The Respondent-wife in her written objection denied the allegations of torture and desertion as levelled against her. She contended that she never behaved abnormally with the petitioner and that she fully co-operated him in their conjugal life. She was also looking after the house-hold affairs in her in-laws' house sincerely. It is her specific case that the petitioner married one Puspita Nayak of village Bhusandpur for the second time on 14.6.1983, whereafter he started misbehaving and harassing her (Respondent) in many a ways. He gifted 1/3rd interest of his undivided joint family property in her favour with a view that she would not object to his second marriage. It is her further case that the petitioner has filed a suit on 1.10.1994 before the Civil Judge (Junior Division), Jajpur to cancel the gift deed. Under such circumstances she pressed to dismiss the case. 4. To prove their respective cases, while the petitioner examined four witnesses including himself as P.W. 1, the Respondent examined five witnesses including herself as O.P.W-1. After assessing the evidence on record, the Learned Judge, Family Court allowed the Civil Proceeding and dissolved the marriage holding that the Respondent treated the petitioner with cruelty, deserted him with an intention to put an end to their marital life and that the marriage between the parties had been broken down irretrievably. After assessing the evidence on record, the Learned Judge, Family Court allowed the Civil Proceeding and dissolved the marriage holding that the Respondent treated the petitioner with cruelty, deserted him with an intention to put an end to their marital life and that the marriage between the parties had been broken down irretrievably. Being aggrieved with this judgment of the Judge, Family Court, the wife Respondent (here-in-after referred to as" Appellant") has preferred this appeal. 5. Learned Counsel appearing for the Appellant submits that both the parties swore an affidavit on 30.1.1980 before the Executive Magistrate, Jajpur vide ext. 1 to the effect that they would live separately and accordingly both of them lived on their own ways. So, the Trial Court committed gross error in holding that the Appellant deserted the petitioner-husband (hereinafter referred to as Respondent) with an intention to put an end to the marital life. On the other hand, Learned Counsel for the Respondent urged that the Respondent did not swear any affidavit but the Appellant treated him in such harsh and cruel manner that he was compelled to live separately from her and as such gave consent for separate living in Ext. 1. In other words the cruel treatment emanated from the side of the wife-Appellant for which the Respondent gave consent for separate living in Ext.1. So, in fact the wife-Appellant constructively deserted the husband-Respondent. In support of his submission, Learned Counsel for the Respondent relies on the decision in Smt. Asha Handa Vs. Baldev Raj Handa, Learned Counsel for the Appellant further submits that this decision would hold good, if it is established that the Appellant treated the Respondent with cruelty. According to him, even though there is no evidence worth the name, the Trial Court committed gross error in arriving at a conclusion that the Appellant treated the Respondent with cruelty. Now it is to be seen whether the finding of the Trial Court that the Appellant treated the Respondent with cruelty is justified. 6. The Respondent has averred in his petition that whenever he was coming to his native village from the place of his service, the Appellant on some plea or the other, was leaving the matrimonial home and was not co-operating him in sharing her bed. She developed a peculiar sexual behavior towards him and treated him with cruelty. 6. The Respondent has averred in his petition that whenever he was coming to his native village from the place of his service, the Appellant on some plea or the other, was leaving the matrimonial home and was not co-operating him in sharing her bed. She developed a peculiar sexual behavior towards him and treated him with cruelty. No doubt refusal of cohabitation by either of the spouses without reasonable cause amounts to mental cruelty as held in the decisions of this Court in Mrs. Gayatri Mishra Vs. Pramod Kumar Nanda, and Usharani Lenka and Panigrahi Subash Chandra Dash ' Sahoo Vs. Panigrahi Subash Chandra Dash ' Sahoo and Usharani Lenka. But onus to prove such cruelty lies heavily with the suing spouse. In his examination before the Court below, the Respondent-husband (P.W.1) deposed that during his visit to his native place the Appellant was not permitting him to share her bed. Again he deposed that she often refused cohabitation. In our view occasional refusal to perform marital obligation is not sufficient to attract mental cruelty. To attract such cruelty there must be persistent refusal to have sexual relationship. In the present case there being no such evidence, the Trial Court erred in holding that the Appellant treated the Respondent with mental cruelty by refusing to share her bed with him. Again in his evidence before the Trial Court the Respondent-husband (P.W. 1) stated that the Appellant was often abusing him in filthy language, but the petition u/s 13 of the Hindu Marriage Act is conspicuously silent in this regard. This allegation being beyond the pale of pleading is not admissible under law and as such cannot be taken into consideration. 7. It is further found from the petition u/s 13 of the Hindu Marriage Act that the Appellant filed a false complaint case bearing I.C.C. No. 365 of 1983 before the S.D.J.M., Jajpur against the Respondent, his mother and some others wherein all of them got acquitted. So Learned Counsel for the Respondent, relying on the decision in G.V.N. Kameswara Rao Vs. G. Jabilli, submits that filing of false complaint case by a spouse against the other spouse amounts to mental cruelty. So Learned Counsel for the Respondent, relying on the decision in G.V.N. Kameswara Rao Vs. G. Jabilli, submits that filing of false complaint case by a spouse against the other spouse amounts to mental cruelty. Ext C, the certified copy of the judgment in I.C.C. case No. 365 of 1 983 shows that the allegation u/s 494 I.P.C. leveled against the Respondent and others could not be established as performance of SAPTAPADI in the second marriage could not be proved; even though there was ample evidence to show that the Respondent married one Puspita as per their caste custom while his first marriage was in subsistence. The evidence adduced on behalf of the Respondent is silent with regard to falsity of the complaint case. So in our view it can not be said that the allegation made in the complaint petition was false. In the case of G.V.N. Kameswar Rao (supra) the allegations were false for which the case was not even registered. Besides proving false allegation of assault, other grounds of mental cruelty were also proved against the wife. It also appears that there was evidence to show that because of false accusation and detention of the husband and his mother at the police station their reputation in the society was lowered down and they were mentally upset. In the present case, there is even no pleading touching the mental state of the Respondent because of the criminal prosecution. There is also nothing to show that because of filing of complaint case the Respondent was offended or mentally upset. So it cannot be held that the Respondent suffered mental torture because of filing of the complaint case. 8. Learned Counsel for the Respondent further submits that it is found from the evidence on record that on the self same allegation, the Appellant initiated a G.R. case against the Respondent and some others, wherein, all of them got acquitted. There is no whisper about registration of such a case in the pleading. So even if evidence is led in this regard, the same cannot be entertained. Under such circumstances we are of the view that the Trial Court erred in holding that the Appellant treated the Respondent with cruelty. There is no whisper about registration of such a case in the pleading. So even if evidence is led in this regard, the same cannot be entertained. Under such circumstances we are of the view that the Trial Court erred in holding that the Appellant treated the Respondent with cruelty. Once it is held that the Appellant did not treat the Respondent with cruelty, the submission of the Learned Counsel for the Appellant that cruelty emanated from the Appellant for which the Respondent was compelled to gave consent for separate living in Ext-1 falls to the ground. Accordingly it is held that Ext. 1 was sworn on consent of both the parties and they lived separately on their own accord and as such it cannot be said that the Appellant deserted the Respondent. 9. Learned Counsel for the Appellant further submits that though there is ample evidence on record showing the marriage of the Respondent with another lady and begetting two daughters through her, the Judge family Court erred in disbelieving it. It is found from the evidence of O.P.W Nos. 1, 2, 4 and 5 that the Respondent married for the second time and two daughters were born out of the said marriage, all of whom are living in a different village. Admittedly O.P.W No. 5 is the elder-brother of the Respondent and O.P.W No. 2 is his (O.P.W No. 5) wife. It transpires from the evidence on record that the Respondent is in litigating terms with O.P.W. No. 5. So, the Learned Counsel for the Respondent submits that evidence of O.P.W. No. 5 and his wife, O.P.W No. 2 cannot be relied upon. Only because O.P.W No. 5 has filed some civil suits against the Respondent his evidence and the evidence of his wife cannot be brushed aside altogether when they could withstand the piercing cross-examination and their evidence has been corroborated by O.P.W Nos. 1 and 4 and particularly when it is said that blood is thicker than water. Even if the second marriage is accepted to have not been proved in accordance with law, the fact remains that the Respondent is living with another lady as husband and wife while his first wife is alive and as such it amounts to adultery, which is a ground of divorce as envisaged u/s 13 of the Hindu Marriage Act. 10. Even if the second marriage is accepted to have not been proved in accordance with law, the fact remains that the Respondent is living with another lady as husband and wife while his first wife is alive and as such it amounts to adultery, which is a ground of divorce as envisaged u/s 13 of the Hindu Marriage Act. 10. At last, Learned Counsel for the Respondent submits that admittedly the parties have been living separately since 1980. In the meantime 26 years has elapsed. As such there is no chance of their re-union. In other words, the marriage between them has been broken down irretrievably. So there was no need in keeping the empty shell and as such the Trial Court rightly dissolved the marriage In support of his submission he relies upon the decisions in Praveen Mehta Vs. Inderjit Mehta, and Smt. Poonam Gupta Vs. Ghanshyam Gupta. In Praveen Mehta's case (supra) the wife was not co-operating with her husband in having sexual relationship. She left the matrimonial home few months after the marriage. Despite several attempts, made by the elatives and well-wishers of the spouses, conciliation between them could not be possible. They lived separate for ten years. Ultimately finding no other way the husband filed a petition u/s 13 of the Hindu Marriage Act for dissolution of the marriage. In this context the apex Court held that the marriage between the parties had broken down irretrievably because of conduct of the wife without any fault of the husband and accordingly allowed the petition for divorce. In the case of Poonam Gupta (supra) the petition for divorce was filed by the husband on the ground of cruelty, but the same could not be established. There was counter allegation of misbehavior and mental torture against the husband by the wife. They could not live together. So, the Hon'ble Allahabad High Court held that directing the parties to live together would be meaningless and accordingly allowed the petition for divorce. 11. Marriage is a sacrament according to Hindu Law. A divorcee is looked down upon in the society. No Hindu woman likes to die as a diversee. Here in the case at hand, as it has already been held, the Appellant is neither guilty of cruelty nor desertion; on the contrary the Respondent is leading an adulterous life. 11. Marriage is a sacrament according to Hindu Law. A divorcee is looked down upon in the society. No Hindu woman likes to die as a diversee. Here in the case at hand, as it has already been held, the Appellant is neither guilty of cruelty nor desertion; on the contrary the Respondent is leading an adulterous life. The Appellant does not-like to dissolve the marital tie, so as to be branded as a divorsee and to be humiliated in the society. Furthermore, as borne out from the evidence on record, the Appellant has been staying in the ancestral house of the Respondent while the Respondent has been staying in a separate village with another lady and their children. Appellant has no issue. As transpires from the evidence on record the elder brother of the Respondent and his wife are in good terms with the Appellant, all of whom are living under one roof. As it appears the Appellant has an emotional attachment with the ancestral house and the other family members of the Respondent. If the order of dissolution of marriage is allowed to subsist, the Appellant would be ousted from her in-laws' house and her emotional attachment to the said house and other family members of the Respondent would be severed causing much mental shock to her without any fault on her part and it would be a premium to the Respondent despite leading an adulterous life. Under such premises in our considered opinion the decisions in the case of "Praveen Meheta" and "Poonam Gupta" (supra) would not be applicable to the present case. The Learned Court below without considering the case in its proper perspective erred in allowing the petition u/s 13 of the Hindu Marriage Act dissolving the marriage, which warrants to be interfered with. 12. In the result, the appeal is allowed and the judgment of the Judge, Family Court is set aside. The parties are to bear their own cost. P.K. Mohanty, J. 13. I agree. Final Result : Allowed