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Rajasthan High Court · body

2007 DIGILAW 2201 (RAJ)

Mahendra Kumar v. Smt. Tulsi

2007-11-16

RAJESH BALIA, SANGEET LODHA

body2007
JUDGMENT 1. - This appeal is directed against the judgment and decree dated 25.08.05, passed by the Family Court, Jodhpur, rejecting the petition seeking divorce, preferred by the appellant against the respondent under Section 13 of the Hindu Marriage Act, 1955 (in short "the Act" hereinafter) . 2. The appellant and respondent entered into marriage on 16.02.1993, at Jodhpur. Out of the wedlock, their daughter Khushbu and son Krishna were born. It is alleged that quarrelsome and stubborn behaviour of the respondent towards the appellant, resulted in separation of the spouses and the respondent left the company of the appellant on 18.03.1997. A first information report was lodged by the respondent against the appellant in Mahila Police Station, Jodhpur on 17.9.1997, alleging commission of offences under Section 498 A, 406 of IPC. However, the spouses entered into a compromise, accordingly, final report was submitted by the police. It is alleged that the compromise was entered into on the condition that the appellant shall be taking respondent along with children to Bayatu, where the appellant was posted as teacher, away from the company of his old aged parents staying at Jodhpur. Adhering to the condition of compromise so as to keep marital life intact the appellant started living with the respondent and children at Bayatu. According to the appellant the respondent did not mend her ways and continued her stubborn and quarrelsome behaviour unabatedly. She raised a demand that the appellant should pay his entire salary to her and he should not pay a single penny to his old aged parents staying at Jodhpur.It is further alleged that one day the respondent picked up quarrel with the appellant and started abusing him in filthy language. She insisted for return to the her parents' house. In the meantime, the mother of the respondent also came to Bayatu and aggravated the problem further. The respondent and her mother abused the appellant in presence of crowd of neighbours. The mother of the respondent also insisted that the appellant should pay entire salary to the respondent. The respondent's mother left Bayatu on the same day, but, after her return the respondent became much more furious and started beating and ill treating the children, particularly, in presence of relatives and friends. Thereafter, on 18.08.1997 when the appellant was away from home at the school where he was employed, the respondent left the matrimonial home. The respondent's mother left Bayatu on the same day, but, after her return the respondent became much more furious and started beating and ill treating the children, particularly, in presence of relatives and friends. Thereafter, on 18.08.1997 when the appellant was away from home at the school where he was employed, the respondent left the matrimonial home. She also left the children behind unattended. The appellant went to Jodhpur along with the children and persuaded the respondent for return to the matrimonial home but, all his efforts proved futile. The respondent was not even ready to keep the son who was just four years of age with her. However, after intervention of her mother she agreed to keep the son with her but, declined for return to the matrimonial home.On 15.04.1998, the respondent lodged yet another FIR against the appellant and his family members. It is alleged that in the said FIR, she levelled baseless and false allegations against the appellant and his family members including the allegation in terms that " fnukad 15-8-1997 dh lka; eq>s esjs ifr us Nkrh ij cSBdj esjs eqag es tcjnLrh vkB&nl tgjhyh xksfy;ka eq>s tku ls ekjus dh fu;r ls Mky nh esjs fojks/k djus ij mijksDr lHkh yksxksa us esjs gkFk iSj tcjnLrh idM+ fy;s xksfy;ka f[kykus dh otg ls esjh rch;r cgqr T;knk fcxM+us yxh rks os ,dne ?kcjk x;sA eq>s ,fcy VscysV [kkus ds fy, dgka esjs euk djus ij mUgksaus ekjihV dj eq>s ,fcy ,scysV f[kyk nhA "Consequently, the appellant was arrested by the police and remained in the judicial custody till the date he was bailed out. The allegations levelled regarding the appellant forcefully administering the poison to the respondent were found to be false, however, the challan was filed against the appellant for offences under Section 498 A, 406 and 323 of IPC. After trial, the appellant was acquitted of the charges by the trial court vide judgment dated 23.05.2002.In the meantime, on 29.02.2002, the respondent gave a severe beating to her son Krishna and left him alone on the high traffic road. It is averred that the mother and brother of the appellant approached the Police Station Khandafalsa, and lodged a report. After trial, the appellant was acquitted of the charges by the trial court vide judgment dated 23.05.2002.In the meantime, on 29.02.2002, the respondent gave a severe beating to her son Krishna and left him alone on the high traffic road. It is averred that the mother and brother of the appellant approached the Police Station Khandafalsa, and lodged a report. The custody of the child Krishna was given by the police to the appellant's mother and brother and thereafter, he is also living with the appellant continuously.Thus, on the basis of these assertions the appellant pleaded that the respondent is guilty of causing mental cruelty unabatedly and on that account the matrimonial bond between the parties has irretrievably broken, therefore, he is entitled for decree for divorce. 3. The respondent filed a counter to the petition wherein while denying the allegations levelled against her by the appellant , she levelled counter allegation that since she could not bring the desired dowry from her parents, the appellant and his family members started ill treating her. It was stated that the complaint was lodged by her with the police on account of persisting demand for dowry and physical and mental torture caused by the appellant and his family members. It was further stated that the compromise was arrived at only for the reason that the appellant had assured that no demand for dowry shall be made in future and he will not give beating to the respondent. However, after compromise being arrived at the respondent continued to torture the appellant and consequently yet another FIR was lodged by the respondent on 15.04.1998. It was not disputed that on account of the FIR lodged the appellant was arrested and the appellant and his family members had to rush to the Court to obtain bail. It is further stated that since the appellant was found prima facie guilty for the commission of the offence therefore, the challan was filed against him before the court of competent jurisdiction. It was contended that the criminal case was lodged by the respondent against the appellant exercising her legal rights and on that account no cruelty can be attributed to her. It was stated that the appellant never treated the respondent as her wife and always ill treated her. It was contended that the criminal case was lodged by the respondent against the appellant exercising her legal rights and on that account no cruelty can be attributed to her. It was stated that the appellant never treated the respondent as her wife and always ill treated her. It is stated that she tolerated the physical and mental cruelty, and looking to the future of children she always made the efforts to live the marital life and discharge her marital obligations. 4. It is relevant to mention here that the petition originally filed was got amended by the appellant after seeking permission from the court. On 02.07.2002, the respondent filed a reply to the original petition, however, since amendment prayed for had already been allowed by the learned Family Court, the respondent was advised to file a reply to the amended petition and accordingly a reply to the original petition presented was returned to the respondent. However, even thereafter, the respondent did not choose to file a reply to the amended petition and again filed the self same reply i.e. reply to the original petition. Suffice it to say that all allegations incorporated by the appellant in the petition by way of amendment, remained uncontroverted. 5. On the basis of the pleadings of the parties, the learned court framed following issues for determination:- 1."Whether non petitioner cause cruelty against the petitioner after the marriage as mentioned in the petition? if yes, whether the petitioner is entitled for decree of divorce? 2. Relief?" 6. On behalf of the appellant, he himself appeared as witness PW1 and got examined four more witnesses viz. PW2 Tara Chand PW3 Madan Lal , PW4 Khushbu and PW 5 Smt. Shanti Devi. The respondent herself appeared as witness NAW1 and got examined NAW2 Sugan,NAW3 Tikam Chand and NAW4 Poonam Chand as witnesses. The appellant also produced documentary evidence i.e. Prescription slip of treatment of appellant's father (Ex.P/1), certified copy of the judgment dated 23.05.2002 whereby the appellant was acquitted of the charges under section 498A, 406, 323 IPC (Ex. 2), Police Report dated 29.02.2000 whereby the custody of appellant son Krishna Kumar @ Kailash was handed over to appellant's mother and brother by the police(Ex.3), a reply of the respondent to the application under section 127 Cr.P.C., statement of respondent in case no. 161/02 before the trial court (Ex. 2), Police Report dated 29.02.2000 whereby the custody of appellant son Krishna Kumar @ Kailash was handed over to appellant's mother and brother by the police(Ex.3), a reply of the respondent to the application under section 127 Cr.P.C., statement of respondent in case no. 161/02 before the trial court (Ex. 5), affidavit in support of reply to the application under Section 127 Cr.P.C. filed by the respondent (Ex. 6), marksheet of appellant's son Krishna Kumar (Ex. 7), copy of order dated 11.02.2004 passed by the trial court in case no. 162/04 taking cognizance against the respondent for the commission of the offences under section 420, 467, 468, 471, 191 and 193 of IPC (Ex. 8) and statement of mother of the respondent recorded by the learned trial court in Criminal Case No.57/98. 7. The learned Family court after hearing the parties and consideration of the evidence on record, arrived at the conclusion that the appellant has not been able to establish cruelty on the part of the respondent so as to make him entitle for decree of divorce. The learned Family Court arrived at the finding that even if the F.I.R. lodged by the respondent in the year 1997 is taken to be false on the saying of the respondent then too, after entering into a compromise and living together with the respondent as husband in pursuance thereof, the act of cruelty,if any, stands pardoned. The allegation with regard to the respondent demanding entire salary from the appellant was not found to be proved by the learned trial court on account of alleged contradiction in the statements of the appellant P.W. 1 and P.W. 3 Madan Lal. The learned Family Court observed that nothing has been stated by the appellant in his statement regarding the respondent picking up quarrel and abusing the appellant in filthy language. The learned Family Court further arrived at the finding that on the basis of the evidence on record it is not established that the respondent abandoned the child Krishna on the highway. The learned Family Court further arrived at the finding that on the basis of the evidence on record it is not established that the respondent abandoned the child Krishna on the highway. Regarding the second criminal case registered against the respondent at the instance of the appellant wherein the appellant was acquitted of the charges after trial, the learned Family Court observed that the appellant has been acquitted of the charges giving him benefit of doubt , therefore, it cannot be said that since the charges have not been proved, therefore, the case registered against the appellant was false. The learned trial Court opined that if the husband fails to return the articles belonging to the wife then, she has a right to lodge case against him, therefore, on that basis, no cruelty can be attributed to the wife. Regarding the allegations of relations with one lady Smt. Sushila levelled against the appellant by the respondent by putting him a question in the cross examination, during his deposition before the Family Court, it has been observed that mere asking a question to the appellant regarding his intention to marry a lady Smt. Sushila, does not amount to character assassination of the appellant. The learned Family Court observed that mere irretrievable breaking of matrimonial relationship is not a ground for divorce and if one of the spouse has deserted the other spouse without justifiable reason then, it cannot be presumed that the marital relationship between them has broken irretrievably . 8. The learned counsel for the appellant has contended that the learned Family Court has miserably failed to appreciate the evidence on record in correct perspective. The learned counsel has drawn our attention to the pleadings of the parties and submitted that the most of the allegations contained in the petition remains uncontroverted. That apart, the appellant has been able to prove the allegations levelled by producing cogent evidence on record . The learned counsel contended that the learned Family Court has altogether ignored the documentary evidence on record. The learned counsel submitted that the learned Family Court has seriously erred in holding that since the appellant has been acquitted of the criminal charges giving him benefit of doubt, therefore, it cannot be said that the prosecution lodged against the appellant at the instance of the respondent was not false. The learned counsel submitted that the learned Family Court has seriously erred in holding that since the appellant has been acquitted of the criminal charges giving him benefit of doubt, therefore, it cannot be said that the prosecution lodged against the appellant at the instance of the respondent was not false. The learned counsel contended that from bare perusal of the judgment dated 23.5.2002 passed by the learned trial Court, it is apparent that the appellant has been acquitted of the charges for the reason that the same were found to be not proved. Thus, the learned Family Court has misread and misconstrued the judgment passed by the learned trial Court.The learned counsel further contended that unabeted quarrelsome and stubborn attitude of the respondent stands proved from the testimony of the independent witnesses examined on behalf of the appellant. In this regard, the attention of the Court was drawn to the statement of P.W. 2 Tara Chand and P.W. 3 Madan Lal.The learned counsel further contended that the respondent has throughout indulged in sheer falsehood and have levelled an absolutely reckless and false allegation against the appellant. The respondent has levelled the allegation against the appellant vide F.I.R. dated 15.4.1998 even to the extent that he made an attempt to kill her by forcefully administering the poison, the allegation which has been found to be false after investigation. Learned counsel submitted that the averments contained in the petition regarding the falsity of these allegations have not even been controverted by the respondent. The learned counsel urged that it also stands proved on the basis of the evidence on record that the appellant during the various litigations between the parties, have stated blatant lie on oath. The attention of the Court in this regard was drawn to the reply of the respondent to the application u/s 127 Cr.P.C. filed before the Family Court,Jodhpur and an affidavit filed in support thereof (Ex.4 & 5), her statement before the Family Court in the said proceedings (Ex.6) and order dated 11.2.2004 whereby the cognizance for commission of offences u/ss. The attention of the Court in this regard was drawn to the reply of the respondent to the application u/s 127 Cr.P.C. filed before the Family Court,Jodhpur and an affidavit filed in support thereof (Ex.4 & 5), her statement before the Family Court in the said proceedings (Ex.6) and order dated 11.2.2004 whereby the cognizance for commission of offences u/ss. 420, 467, 468, 471, 191 and 193 has been taken against the respondent by the court of competent jurisdiction(Ex.8) and the police report dated 29.2.2000 whereby custody of the child Krishna was handed over to the appellant's mother and brother(Ex.3).The learned counsel contended that where a wife lodges a false report of commission of non bailable offences against the husband and his family members and on that account either they are arrested or have to rush to the court to obtain bail in order to avoid the arrest then obviously, she is guilty of causing mental cruelty of the worst kind. That apart, the scandalous allegation by the respondent against the appellant that he has relation with one lady Smt. Sushila is an illustration of yet another act of cruelty, which makes the appellant entitle for decree of divorce against the respondent.The learned counsel submitted that on the basis of the allegations proved ,it is apparent that the respondent has been habitually guilty of causing mental cruelty. Besides, her attitude was also harsh towards the children as she used to beat and ill treat them for no reason. The learned counsel submitted that considering the totality of facts and circumstances, it stands amply proved that the marital relationship between the parties have broken irretrievably and it is not possible for them to live together without agony, torture and distress. 9. Per contra, the learned counsel appearing on behalf of the respondent urged that the evidence on record has been examined by the learned Family Court in its entirety and objectivity. The findings recorded do not suffer from any infirmity or illegality. The learned counsel contended that if the husband ill treats the wife and refuses to return the articles belonging to the wife and thus commits criminal breach of trust then, the wife has a right to lodge a complaint against the husband for commission of an offence. The findings recorded do not suffer from any infirmity or illegality. The learned counsel contended that if the husband ill treats the wife and refuses to return the articles belonging to the wife and thus commits criminal breach of trust then, the wife has a right to lodge a complaint against the husband for commission of an offence. In this view of the matter, even if the appellant has been acquitted from the charges , the respondent taking proceedings against the husband for commission of cognizable offences by him, cannot be said to be an act of mental cruelty. The learned counsel submitted that the respondent had to withdraw from the company of the appellant on account of his ill treatment but, she is ready to live the marital life with him and discharge her marital obligations. The learned counsel submitted that after due appreciation of evidence on record, all the allegations levelled by the appellant against the respondent have been found to be not proved by the learned Family Court and the findings recorded cannot be said to be perverse warranting interference by this Court . Thus, the learned counsel supported the findings recorded by the learned trial Court for the reasons given in support thereof. 10. We have considered the rival submissions and have also perused the record of the case. 11. From the perusal of the judgment and material on record, it appears that the learned Judge, Family Court has examined the evidence on record with an yardstick of strict proof applicable to the criminal case. It is settled law that the cruelty for the purpose of Section 13(1) (i-a) is to be taken as behaviour by one spouse towards the other, which causes reasonable apprehension in the mind of the latter that it is not safe for him or her to continue the matrimonial relationship with each other. Mental cruelty is state of mind and feeling, which is necessarily a matter of inference to be drawn from the facts and circumstances of each case. The inference has to be drawn from attending facts and circumstances taken cumulatively. Mental cruelty is state of mind and feeling, which is necessarily a matter of inference to be drawn from the facts and circumstances of each case. The inference has to be drawn from attending facts and circumstances taken cumulatively. In case of mental cruelty, an individual instance of mis behaviour cannot be taken in isolation so as to determine as to whether such behaviour by itself is sufficient to cause mental cruelty.In the matter of Jaichandra v. Aneel Kaur ,2005(2) SCC , 22 , the Hon'ble Apex Court observed:- "10. The expression `cruelty' has not been defined in the Act. Cruelty can be physical or mental. Cruelty which is a ground for dissolution of marriage may be defined as wilful and unjustifiable conduct of such character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such a danger. The question of mental cruelty has to be considered in the light of the norms of marital ties of the particular society to which the parties belong, their social values, status, environment in which they live. Cruelty, as noted above, includes mental cruelty, which falls within the purview of a matrimonial wrong. Cruelty need not be physical, If from the conduct of the spouse same is established and/or an inference can be legitimately drawn that the treatment of the spouse is such that it causes an apprehension in the mind of the other spouse, about his or her mental welfare then this conduct amount to cruelty. In a delicate human relationship like matrimony, one has to see the probabilities of the case. The concept, proof beyond the shadow of doubt, is to be applied to criminal trials and not to civil matters and certainly not to matters of such delicate personal relationship as those of husband and wife. Therefore, one has to see what are the probabilities in a case and legal cruelty has to be found out, not merely as a matter of fact, but as the effect on the mind of the complainant spouse because of the acts or omissions of the other . Cruelty may be physical or corporeal or may be mental. Therefore, one has to see what are the probabilities in a case and legal cruelty has to be found out, not merely as a matter of fact, but as the effect on the mind of the complainant spouse because of the acts or omissions of the other . Cruelty may be physical or corporeal or may be mental. In physical cruelty, there can be tangible and direct evidence, but in the case of cases where there is no direct evidence, courts are required to probe into the mental process and mental effect of incidents that are brought out in evidence. It is in this view that one has to consider the evidence in matrimonial disputes."(emphasis added) From bare perusal of the findings recorded by the learned Family Court , we may notice that the learned Family Court has examined the individual instances of ill treatment and recorded its finding thereupon in isolation adopting an yardstick of strict proof. That apart, the cumulative effect of various aspects emerging from the pleading of the parties and evidence on record, has not been taken into consideration so as to determine as to whether the respondent is guilty of causing mental cruelty to the appellant and whether the matrimonial relationship between the parties have broken irretrievably and there is no possibility of their living together without anguish, mental agony and distress. 12. We may notice that the learned Judge, Family Court has failed to appreciate the evidence on record in correct perspective. On careful scrutiny of the pleadings of the parties, and the evidence adduced on their behalf , it stands amply proved that the respondent has ill treated the appellant and the element of cruelty in the acts and omissions on her part is apparent . It is to be further noticed that the various allegations levelled by the appellant attributing mental cruelty on the part of the respondent set out in para 1(ka) and 5-(ka) and( kha ) of the amended petition have not even been controverted by the respondent by filing a proper counter. It is to be further noticed that the various allegations levelled by the appellant attributing mental cruelty on the part of the respondent set out in para 1(ka) and 5-(ka) and( kha ) of the amended petition have not even been controverted by the respondent by filing a proper counter. That apart, the allegations contained stands substantiated by the oral and documentary evidence on record.It is not in dispute that in the first instance , a F.I.R. Was lodged by the respondent against the appellant on 17.7.97 in the Mahila Police Station, Jodhpur, which culminated in the police filing the final report in view of the compromise arrived at between the parties. It is also not in dispute that adhering to the compromise arrived at , the appellant had taken the respondent to the matrimonial home at Bayatu, as per her desire away from the company of the appellant's parents.The allegation of the appellant that after return to the matrimonial home in pursuance of the compromise arrived at , the respondent again picked up quarrel with the appellant and abused him in filthy language in presence of the crowd of the neighbours, stands proved from the testimony of PW 2 Tara Chand who is an independent witness and there is no reason to disbelieve his testimony. The learned Judge,Family Court has seriously erred in holding that in view of the contradictions in statements of PW 1, the appellant, PW 2 Tara Chand and PW 3 Madan Lal , the allegation is not wholly proved. A perusal of the statement of PW 1 , the appellant goes to show that he has categorical deposed that the respondent alongwith his mother who had come to Bayatu from Jodhpur insisted that he should pay the entire salary to her and picked up quarrel with him . He has further stated that ultimately she left Bayatu for Jodhpur without informing him. The statement of PW 1 stands corroborated by the statement of PW 2 Tara Chand who has categorically confirmed the occurrence of the incident of quarrel picked up by the respondent and her mother and so also the incident that the respondent left the matrimonial home and abandoned the children unattended. We do not find any material contradiction in the statements of PW 1 and PW 2 regarding the occurrence of the incident. 13. We do not find any material contradiction in the statements of PW 1 and PW 2 regarding the occurrence of the incident. 13. Coming to the act of the respondent lodging F.I.R. against the appellant on 15.4.98,it is to be noticed that apart from the allegation regarding commission of offences u/s. 498A, 406 and 323 IPC, the respondent also levelled allegation that on 15.8.97 the appellant forcefully compelled the respondent to swallow the poisonous pills with an intention to kill her. It is not in dispute that after due investigation those allegations were found to be false and the appellant was charge sheeted for the offences u/ss. 498A, 406 and 323 IPC. The averments made in the petition regarding falsity of these allegations have not even been controverted by the respondent by filing any counter. On being pointedly asked by this Court about the basis of these allegations, the learned counsel appearing on behalf of the respondent has not been able to justify the same. Thus, it can be safely concluded that the respondent has deliberately levelled absolutely reckless and false allegation against the appellant which has caused deep anguish and brought disgrace to him. 14. In our considered opinion, the learned Judge, Family Court has seriously erred in construing the judgment dated 23.5.2002 passed by the learned trial Court whereby after due trial, the appellant was acquitted of the charges u/ss. 498A, 406 and 323 IPC levelled against him. From the perusal of the judgment, by no stretch of imagination it can be said that the appellant has been extended benefit of doubt. As a matter of fact, the learned trial Court has recorded the finding that the prosecution has failed to prove the charges against the appellant beyond reasonable doubt which is the basic requirement for convicting an accused in a criminal trial. Thus, the finding recorded by the learned Judge , Family Court is ex facie contrary to record and perverse. 15. The learned Judge, Family Court has also erred in holding that the incident dated 29.2.2000, the respondent leaving the child Krishna on the highway has not been proved. It is true that there exists some contradiction in the statement of the witnesses examined to prove the incident . 15. The learned Judge, Family Court has also erred in holding that the incident dated 29.2.2000, the respondent leaving the child Krishna on the highway has not been proved. It is true that there exists some contradiction in the statement of the witnesses examined to prove the incident . The contradiction appears only with regard to the place where the respondent has left the child either outside the residence of the appellant or on the highway as alleged. But, the fact remains that the respondent abandoned the child straying on the road and his custody was handed over to the mother and brother of the appellant by the police vide Ex.3. That apart, the ill treatment being extended to the children by the respondent time and again stands proved from the oral deposition of PW 1 the appellant , PW 2 Tara Chand ,PW 3 Madan Lal ,PW 4 Khushbu Goyal and PW 5 Shanti Devi. 16. The allegation that the respondent stated a blatant lie on oath regarding the custody of the children stands duly proved from the documentary evidence on record i.e. Reply to the application u/s 127 Cr.P.C.and affidavit in support thereof(Ex.5 & 6), and order dated 11.2.2004 passed by the trial Court taking cognizance against the respondent for the commission of the offence of various description referred hereinabove(Ex.8). The allegation further stands substantiated by the oral deposition of the respondent herself before the Family Court, wherein she has admitted in unequivocal terms that since year 2000 her son is also living with the appellant. 17. The learned Judge, Family Court has also erred in holding that since no allegation of illicit relation with the lady Smt. Sushila has been levelled against the appellant in the pleadings , therefore, merely asking a question to him in the cross examination regarding his intention to marry Smt. Sushila does not constitute mental cruelty. 17. The learned Judge, Family Court has also erred in holding that since no allegation of illicit relation with the lady Smt. Sushila has been levelled against the appellant in the pleadings , therefore, merely asking a question to him in the cross examination regarding his intention to marry Smt. Sushila does not constitute mental cruelty. From the perusal of relevant portion of the cross examination of the appellant, it appears that the question asked was not only with regard to his intention to marry Smt. Sushila but, also with regard to his existing relations with Smt. Sushila.Thus, from the discussion hereinabove , it is apparent on the face of record that the respondent implicated the appellant in an absolutely false case of non bailable offences and in consequence thereof , the appellant was arrested and had to remain in the judicial custody till he was bailed out. Therefore, it goes without saying that the appellant has suffered deep anguish and such an act of the respondent has caused immense loss to the reputation of the appellant in the society. The allegation levelled against the appellant regarding his alleged relation with Smt. Sushila is also such an act of cruelty which by itself is sufficient for grant of decree of divorce in favour of the appellant. That apart, the various acts of atrocious and cantankerous behaviour of the respondent found to be proved as aforesaid has obviously caused mental torture to the appellant. 18. Thus, we are of the considered opinion that the cumulative effect of various aspects of the case clearly and unambiguously depict that the respondent was guilty of causing mental cruelty to the appellant. Therefore, the appellant is entitled for decree of divorce. 19. There is yet another aspect of the matter which required to be noticed that in the recent judgments in the matter of Navin Kohl v. Neelu Kohli , 2006(4) SCC 885 and in the case of Samar Ghose v. Jaya Ghose, 2007(4) SCC 511 , the Hon'ble Apex Court has propounded broken house theory rather than fault theory for dissolution of marriage and has laid down the manner in which the problem of broken marriage where there is no hope of retrieval is to be dealt with. 20. 20. Having considered a large number of decisions of the Apex Court and other courts including that of Australian, American and English Courts, the Hon'ble Supreme Court summarised the position in Samar Ghose's case as under:- "95. Once the parties have separated and the separation has continued for a sufficient length of time and one of them has presented a petition for divorce, it can well be presumed that the marriage has broken down. The court, no doubt, should seriously make an endeavour to reconcile the parties; yet, if it is found that the breakdown is irreparable, then divorce should not be withheld. The consequences of preservation in law of the unworkable marriage which has long ceased to be effective are bound to be a source of greater misery for the parties. 96. Law of divorce based mainly on fault is inadequate to deal with a broken marriage. Under the fault theory, guilt has to be proved; Divorce Courts are presented with concrete instances of human behaviour as bring the institution of marriage into disrepute. 98. On proper analysis and scrutiny of the judgments of this court and other courts, we have come to the definite conclusion that there cannot be any comprehensive definition of the concept of "mental cruelty" within which all kinds of cases of mental cruelty can be covered. No court in our considered view should even attempt to give a comprehensive definition of mental cruelty. 99. Human mind is extremely complex and human behaviour is equally complicated. Similarly human ingenuity has no bound, therefore, to assimilate the entire human behaviour in one definition is almost impossible. What is cruelty in one case may not amount to cruelty in other case. The concept of cruelty differs from person to person depending upon his upbringing, level of sensitivity, educational, family and cultural background, financial position, social status, customs, traditions, religious beliefs, human values and their value system. 100. Apart from this, the concept of mental cruelty cannot remain static; it is bound to change with the passage of time, impact of modern culture through print and electronic media and value system, etc. etc. What may be mental cruelty now may not remain a mental cruelty after a passage of time or vice versa. There can never be any straitjacket formula or fixed parameters for determining mental cruelty in matrimonial matters. etc. What may be mental cruelty now may not remain a mental cruelty after a passage of time or vice versa. There can never be any straitjacket formula or fixed parameters for determining mental cruelty in matrimonial matters. The prudent and appropriate way to adjudicate the case would be to evaluate it on its peculiar facts and circumstances while taking aforementioned factors in consideration. 101. No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behavior which may be relevant in dealing with the cases of "mental cruelty". The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive; (i) xxx (xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty".(emphasis added) It is difficult to discern whether the instances of misbehavior and ill treatment on the part of the respondent discussed hereinabove, have led to the breaking of the matrimonial bond between the parties beyond repair or these acts are the manifestations of the marriage already broken. But while keeping in mind the aforesaid principles/the instances of human behavior laid down by the Hon'ble Supreme Court for guidance, in totality of the circumstances and material on record it is apparent that the matrimonial bond between the parties stands irretrievably broken on account of mental cruelty caused by the respondent. The various instances of mental cruelty found to be proved are illustrative of the fact that the parties have no emotions, sentiments, feelings or love for each other. Thus, the relationship between the parties having been deteriorated to such an extent that compelling them to live together will amount to inflicting more mental cruelties on them. Suffice it to say that it is in interest of society and the parties that such relationship is not continued any further. We are of the considered opinion that learned Family Court has seriously erred in refusing the dissolution of marriage by decree of divorce. 21. Suffice it to say that it is in interest of society and the parties that such relationship is not continued any further. We are of the considered opinion that learned Family Court has seriously erred in refusing the dissolution of marriage by decree of divorce. 21. In the result, the appeal succeeds and it is hereby allowed. The impugned judgment and decree passed by the Family Court, Jodhpur is set aside. The petition of the appellant for divorce is allowed. The marriage between appellant and respondent is hereby dissolved by a decree of divorce.In the facts and circumstances of the case, at the oral request of the learned counsel for the respondent as an alternative prayer to resolve the future litigation in the interest of the parties, we further direct that the appellant to pay Rs. 4,00,000/- to the respondent towards permanent maintenance within a period of four months.No order as to costs. However, the amount already paid to the respondent under the direction of this court as provisional cost to be incurred by the respondent shall not be refunded.Appeal Allowed. *******