JUDGMENT (Rajiv Sharma, J.) - This FAO is directed against the judgment dated 13.11.2006 passed by the learned District Judge, Kangra at Dharamshala in H.M.A.P. No. 5-K/III/2002. 2.Brief facts necessary for the adjudication of this appeal are that the respondent (hereinafter referred to as ‘the husband’) filed a petition against the appellant (hereinafter referred to as ‘the wife’) under Section 13 of the Hindu Marriage Act, 1954 for the dissolution of their marriage by granting decree of divorce. The parties are Hindus. The marriage was solemnized at village Kulthi, Tehsil and District Kangra according to Hindu rites and customs on 22.4.1983. They lived together for about 16 years and lastly resided at village Nandrool, Tehsil and District Kangra. Three children were borne to them. It is stated that the husband took good care of the wife at different places of posting in the Army, however, she failed to give due respect to him and also treated his family members, including his aged parents with utter disrespect and contempt. She made false and fictitious complaints to the police and Panchayat from time to time. She also alleged that the husband had illicit relation with the wife of his elder brother. These incidents caused immense torture and insult to the husband. The allegations made by her, before the Gram Panchayat, were found to be incorrect. She left matrimonial house in the month of December, 1999 on her own accord. She also filed complaint with the Army authorities. Primarily, the husband has sought dissolution of marriage on the account that the wife had willfully deserted him for continuous period of more than two years and the wife had treated him with cruel physical as well as mental. The petition as resisted by the wife. The allegations contained in the petition were vehemently denied. It is stated in the reply that the husband used to beat her after consuming liquor. She has reported the matter to the Gram Panchayat on 1.3.1996. She has to make complaint to the police and Panchayat since she was getting threats from the possession and his family members. Sh. Jarnail Singh, brother of the husband is working in the local post Office and when she did not get the money orders through the Post Office, she reported the matter to the police authorities. She was given beatings by Jarnail Singh also. Sh. Jarnail Singh, brother of the husband is working in the local post Office and when she did not get the money orders through the Post Office, she reported the matter to the police authorities. She was given beatings by Jarnail Singh also. In nutshell, her case is that it was due to the circumstances created by her husband and his family members that she has to leave the matrimonial house. 3.The learned District Judge on the basis of the pleadings of the parties, framed the following issues :- 1. “Whether the petitioner has been treated with cruelty by respondent, as alleged? If so, to what effect ? OPP 2. Whether respondent has deserted the petitioner without any cause or excuse, for more than two years? OPP 3. Whether the petition is not maintainable ? OPR 4. Whether the petitioner, by his acts and conduct, estopped to sue? OPR 5. Relief.” 4.The learned District Judge returned the following findings on the issues framed : Issue No. 1 Yes Issue No. 2 Yes Issue No. 3 No. Issue No. 4 No. ReliefThe petition is allowed as per operative part of the judgment. 5.Mr. Romesh Verma has strenuously argued that the judgment dated 13.11.2006 is not sustainable in the eyes of law. He vehemently argued that it was due to the circumstances created by the husband and his family members that his client was forced to leave the matrimonial house and it cannot be treated as desertion. He further contended that his client has never caused mental or physical agony resulting in cruelty to her husband. 6.Mr. Neeraj Gupta has supported the judgment dated 13.11.2006. He has argued with vehemence that his client has not forced his wife to leave the matrimonial house and she has left the matrimonial house of her own. He has denied the allegations with regard to cruelty. 7.I have heard the learned Counsel for the parties and perused the record carefully. 8.PW-1 Karnail Singh has deposed that the wife has left the house in the month of December, 1999 and thereafter she never joined him. According to him, his parents are aged. He has denied the factum that he has given the beatings to her. He has denied the allegations of infidelity against his Bhabhi (Versha). He was informed by the police on 16.12.1999 that the FIR was lodged against him. The FIR was cancelled. According to him, his parents are aged. He has denied the factum that he has given the beatings to her. He has denied the allegations of infidelity against his Bhabhi (Versha). He was informed by the police on 16.12.1999 that the FIR was lodged against him. The FIR was cancelled. She also filed application under Section 125 of the Code of Criminal Procedure against him, which was dismissed. He has deposed in his cross-examination that he has constructed a separate house. He has admitted that he had been sending money orders to the wife. He has denied the accusation made against his brother that he has misappropriated the amount of money orders. PW-2 Head Constable Ashok Kumar has produced the copy of FIR Ex.PW-2/A registered under Sections 498-A and 506 of the Indian Penal Code. PW-3 Sagar Singh, Junior Assistant and PW-4 Amin Chand, Senior Assistant, Senior Assistant Office of the sub Division Magistrate, Kangra are formal witnesses and they have placed on record and proved the copy of statement Ex.W-4/A. PW-5 Randev Singh belongs to the same village where the husband is residing. He has remained Pradhan of Gram Panchayat, Nandrool. He had issued certificate Ex.PW-5/A. The same was prepared according to him in the presence of parties. The husband had requested the wife to accompany him to matrimonial house but the wife had refused to do so. He then deposed that the husband is Radha Soami. He has admitted in his cross-examination that Maya Devi was the Pradhan of the Gram Panchayat and she is the Bhabhi of Jarnail Singh. PW-6 Kumari Vienta Angaria is the daughter of the parties. She has supported the version of her father. She has deposed that her mother had been coercing her father to live separately from the family. She was student of +2 at the time when her statement was recorded. She has admitted that her father was paying Rs. 2,000/- to her as maintenance. 9.RW-1 is Smt. Swarna Devi. She is the neighbour of the husband. She has testified that the husband, his parents and his brothers were harassing and torturing the wife. She then deposed that as and when Karnail Singh (husband) used to come on leave, he would beat Saroj Kumari. According to her, husband was not happy because she had insulted them by disclosing about misappropriating of the money orders by Jarnail Singh. She has testified that the husband, his parents and his brothers were harassing and torturing the wife. She then deposed that as and when Karnail Singh (husband) used to come on leave, he would beat Saroj Kumari. According to her, husband was not happy because she had insulted them by disclosing about misappropriating of the money orders by Jarnail Singh. She then deposed that Karnail Singh brought meat and liquor and to Saroj Kumari to take liquor with him. Saroj Kumari (wife) told this to this witness, who advised her to leave the matrimonial house and return when the situation normalizes. She has admitted that Saroj Kumari (wife) had been living with the husband at different places of his posting. She has also admitted that husband is Radha Soami. The age of the parents of the husband according to this witness is about 80 and 70 years. She also admitted that when the matter was reported to the police by the wife, he was on Army duty. RW-2 is Saroj Kumari. She has stated that the family members of her husband had been interfering in her married life. She had reported the matter to the Gram Panchayat in the year 1996. She was beaten up by Jarnail Singh when she inquired about the money orders. She moved an application to the Gram Panchayat and the same was forwarded by the Gram Panchayat to the Police. She was advised by the children to leave the matrimonial house in December, 1999. her eldest daughter was borne at Almora and second one at Assam and son was born at the native place. She lived with her husband at Almora for 2-1/2 years and her husband got her operated at hospital in Delhi. She has admitted that she filed a complaint for maintenance. RW-3 Gurpreet is the son of the parties. He has supported the version of his mother. He has stated that Jarnail Singh has beaten up his mother with broom. He than deposed that when his father used to come home, he used to make his mother stand in the courtyard. He has deposed that his father is non-vegetarian and also takes liquor. He was born in the year 1991. He had been residing in the rented quarter in the Temple Mohalla at Kangra. He than deposed that when his father used to come home, he used to make his mother stand in the courtyard. He has deposed that his father is non-vegetarian and also takes liquor. He was born in the year 1991. He had been residing in the rented quarter in the Temple Mohalla at Kangra. 10.It is in this backdrop that the case is required to be adjudicated upon to see whether the appellant-wife has left the matrimonial house of her own volition. 11.It is evident from Ex.PW-5/A that the Panchayat was convened under the supervision of Deputy Superintendent of Police, Kangra and he asked her to company the husband to matrimonial house. The Gram Panchayat had also advised her to go to matrimonial house but she maintained that she would live only at the house of her parents’. This certificate has been proved by PW-5 Randev Singh, who was the member of the Gram Panchayat. The explanation given by RW-2 in her statement for leaving the house in December, 1999 is that the husband had brought the meat and asked her to prepare it and also to take liquor. It has come in the evidence that the husband is Radha Soami. PW-6 Vaneeta Kumari has categorically deposed that her father is vegetarian and does not consume liquor. PW-5 Randev Singh has also deposed that the husband is Radha Soami and he does not consume non-vegetarian food or take liquor etc. RW-1 has also admitted in her cross-examination that the husband is Radha Soami. The wife has failed to prove by tangible evidence that her act of leaving matrimonial house was due to circumstances beyond her control and which were directly attributable to her husband. It has also come in the evidence that prior to December, 1999, the wife had left the matrimonial house and it was only on the persuasion of the family members that she came back. She has admitted in her cross-examination that as and when husband used to come on leave from Army, he would go to the house of her parents to bring her back. It has also come in the evidence that the husband had constructed a separate house and had been residing separately from the joint family. The allegations as per Ex.PW-5/C have been made against the brother of the husband. She had accompanied the husband when he was posted in Assam and Almora. It has also come in the evidence that the husband had constructed a separate house and had been residing separately from the joint family. The allegations as per Ex.PW-5/C have been made against the brother of the husband. She had accompanied the husband when he was posted in Assam and Almora. He has got her operated in Delhi. Two daughters were born in Almora and Assam. The son was born in the native place. Her application filed under Section 125 of the Code of Criminal Procedure was dismissed. The FIR Ex.PW-2/A was also cancelled. 12.In view of the discussion made hereinabove, it can safely be concluded that the wife has left the matrimonial house of her own and the husband in no manner is responsible for the same. She is thus guilty of ‘desertion’ under the Hindu Marriage Act, 1954. The appellant-wife had deserted the husband without any just and reasonable cause. 13.Their Lordships of the Hon’ble Supreme Court in Bipinchandra Jaisinghbhai Shah v. Prabhavati, AIR 1957 SC 176 have held that two essential conditions must be there to prove the desertion : (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Their Lordships have held that desertion is a matter of interference to be drawn from the facts and circumstances of each case. Their Lordships have held as under :- “What is desertion ? “Rayden on Divorce” which is a standard work on the subject at p. 128 (6th Edn.) has summarized the case-law on the subject in these terms :- “Desertion is the separation of one spouse from the other, with an intention on the part of the deserting spouse of bringing cohabitation permanently to an end without reasonable cause and without the consent of the other spouse; but the physical act of departure by one spouse does not necessarily make that spouse the deserting party.” The legal position has been admirably summarised in paras 453 and 454 at pp. 241 to 243 of Halsbury’s Laws of England (3rd Edn.), Vol. 12, in the following words :- “In is essence desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that other’s consent and without reasonable cause. It is a total repudiation of the obligations of marriage. 241 to 243 of Halsbury’s Laws of England (3rd Edn.), Vol. 12, in the following words :- “In is essence desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that other’s consent and without reasonable cause. It is a total repudiation of the obligations of marriage. In view of the large variety of circumstances and of modes of life involved, the Court has discouraged attempts at defining desertion, there being no general principle applicable to all cases. Desertion is not the withdrawal from a place but from the state of things, for what the law seeks to enforce is the recognition and discharge of the common obligations of the married state; the state of things may usually be termed, for short, ‘the home’. There can be desertion without previous cohabitation by the parties, or without the marriage having been consummated. The person who actually withdraws from cohabitation is not necessarily the deserting party. The fact that a husband makes an allowance to a wife whom he has abandoned is no answer to a charge of desertion. The offence of desertion is a course of conduct which exists independently of its duration, but as a ground for divorce it must exist fro a period of at least three years immediately preceding the presentation of the petition where the offence appears as a cross-charge, of the answer. Desertion as a ground of divorce differs from the statutory grounds of adultery and cruelty in that the offence founding the cause of action of desertion is not complete, but is inchoate, until he suit is constituted. Desertion is a continuing offence.” Thus the quality of permanence is one of the essential elements which differentiates desertion from wilful separation. If a spouse abandons the other spouse in a state of temporary passion, for example anger or disgust, without intending permanently to cease cohabitation, it will not amount to desertion. for the offence of desertion, so far as the desertion spouse is concerned, two essential conditions must be there namely, 91) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly two elements are essential so far as the deserted spouse is concerned; (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. Similarly two elements are essential so far as the deserted spouse is concerned; (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. The petitioner for divorce bears the burden of proving those elements in the two spouses respectively. Here a difference between the English law and the law as enacted by the Bombay Legislature may be pointed out. Whereas under the English law those essential conditions must continue throughout the course of the three years immediately preceding the institution of the suit for divorce, under the Act, the period is four years without specifying that it should immediately precede the commencement of proceedings for divorce. Whether the omission of the last clause has any practical result need not detain us, as it does not call for decision in the preset case. Desertion is a matter of inference to be drawn fro the facts and circumstances to each case. The inference may be drawn from certain facts which may not in another case be capable of leading to the same inference; that is to say, the facts have to be viewed as to the purpose which is revealed by those acts or by conduct land expression of intention, both anterior and subsequent to the actual acts of separation. If in fact, there has been a separation, the essential question always is whether that act could be attributable to an animus deserendi. The offence of desertion commences when the fact of separation and the animus deserendi co-exist. But it is not necessary that they should commence at the same time. He de facto separation may have commenced without the necessary animus or it may be that the separation and the (animus deserendi) coincide in point of time; for example, when the separating spouse abandons the marital home with the intention, express or implied of bringing cohabitation permanently to a close. The law in England has prescribed a three years period and the Bombay Act prescribed a period of four yeas as a continuous period during which the two elements must subsist. The law in England has prescribed a three years period and the Bombay Act prescribed a period of four yeas as a continuous period during which the two elements must subsist. Hence, if a deserting spouse takes advantage of the locus poenitentiae thus provided by law and decides to come back to the deserted spouse by a bona fide offer of resuming the matrimonial home with all the implications of marital life, before the statutory period is out or even after the lapse of that period, unless proceedings for divorce have been commenced, desertion comes to an end, and if the deserted spouse unreasonably refuses to offer, the latter may be in desertion and not the former. Hence it is necessary that during all the period that there has been a desertion, the deserted spouse must affirm the marriage and be ready and willing to resume married life on such conditions as may be reasonable. It is also well settled that in proceedings for divorce the plaintiff must prove the offence of desertion, like and other matrimonial offence, beyond all reasonable doubt. Hence, though corroboration is not required as an absolute rule of law the courts insist upon corroborative evidence, unless its absence is accounted for to the satisfaction of the court. In this connection the following observations of Lord Goddard CJ. in the case of Lawson v. Lawson, 1955(1) All E R 341 at p. 342(A), may be referred to :- “These cases are not cases in which corroboration is required as a matter of law. It is required as a matter of precaution......” With these preliminary observations we now proceed to examine the evidence led on behalf of the parties to find out whether desertion has been proved in this case and, if so, whether there was a bona fide offer by the wife to return to her matrimonial home with a view to discharging marital duties and, if so, whether there was an unreasonable refusal on the part of the husband to take her back. 14.Their Lordships of the Hon’ble Supreme Court in Lachman Utamchand Kirpalani v. Meena alias Mota, AIR 1964 SC 40 have held that in its essence desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that other’s consent and without reasonable cause. It is a total repudiation of the obligations of marriage. 14.Their Lordships of the Hon’ble Supreme Court in Lachman Utamchand Kirpalani v. Meena alias Mota, AIR 1964 SC 40 have held that in its essence desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that other’s consent and without reasonable cause. It is a total repudiation of the obligations of marriage. Their Lordships have further held that the burden of proving desertion - the ‘factum’ as well as the ‘animus deserendi’ is on the petitioner and he or she has to establish beyond reasonable doubt to the satisfaction of the court, the desertion throughout the entire period of two years before the petition as well as that such desertion was without just cause. Their Lordships have held as under :- “The question as to what precisely constitutes “desertion” came up for consideration before this Court in an appeal for Bombay where the Court had to consider the provisions of Section 3(1) of the Bombay Hindu Divorce Act, 1947 whose language is in pari materia with that of Section 10(1) of the Act. In the judgment of this Court in Bipin Chandra v. Prabhavati, 1956 SCR 838 : (S) AIR 1957 SC 176 there is an elaborate consideration of the several English decisions in which the question of the ingredients of desertion were considered and the following summary of the law in Halsbury’s Laws of England (3rd Edn.) Vol. 12 was cited with approval : “In its essence desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that other’s consent, and without reasonable cause. it is a total repudiation of the obligations of marriage. In view of the large variety of circumstances and of modes of life involved, the Court has discouraged attempts at defining desertion, there being no general principle applicable to all cases.” The position was thus further explained by this Court. “If a spouse abandons the other spouse in a state of temporary passion, for example, anger or disgust, without intending permanently the cease cohabitation, it will not amount to desertion. For the offence of desertion so far as the deserting spouse is concerned, two essential conditions must be there, (1) the factum of separation, and (2) the intention of bring cohabitation permanently to an end (animus deserendi). For the offence of desertion so far as the deserting spouse is concerned, two essential conditions must be there, (1) the factum of separation, and (2) the intention of bring cohabitation permanently to an end (animus deserendi). Similarly two elements are essential so far as the deserted spouse is concerned : (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid..... ..........Desertion is a matter of inference to be drawn from the facts and circumstances of each case. The inference may be drawn from certain facts which may not in another case be capable of leading to the same inference; that is to say, the facts have to be viewed as to the purpose which is revealed by those acts or by conduct and expression of intention, both anterior and subsequent to the actual acts of separation. If, in fact, there has been a separation, the essential question always is whether that act could be attributable to an animus deserendi. The offence of desertion commences when the fact of separation and the animus deserendi co-exist. But it is not necessary that they should commence at the same time. The de facto separation may have commenced without the necessary animus or it may be that the separation and the animus deserendi coincide in point of time.” Two more matters which have a bearing on the points in dispute in this appeal might also be mentioned. The first relates to the burden of proof in these cases, and this is a point to which we have already made a passing reference. it is settled Law that the burden of proving desertion - the “factum” as well as the “animus deserendi” - is on the petitioner; and he or she has to establish beyond reasonable doubt, to the satisfaction of the Court, the desertion throughout the entire period of two years before the petition as well as that such desertion was without just cause. In other words, even if the wife, where she is the deserting spouse, does not prove just cause for her living apart, the petitioner-husband has still to satisfy the Court that the desertion was without just cause. In other words, even if the wife, where she is the deserting spouse, does not prove just cause for her living apart, the petitioner-husband has still to satisfy the Court that the desertion was without just cause. As Dunning, L. observed : (Dunn v. Dunn, 194892) All ER 822 at p. 823) : “The burden he (counsel for the husband) said was on her to prove just cause (from living apart). The argument contains a fallacy which has been put forward from time to time in many branches of the law. The fallacy lies in a failure to distinguish between a legal burden of proof laid down by law and a provisional, burden raised by the state of the evidence.................... The legal burden throughout this case is on the husband, as petitioner, to prove that this wife deserted him without cause. To discharge that burden, he relies on the fact that he asked her to join him and she refused. That is a fact from which the Court may infer that she deserted him without cause, but it is not bound to do so. Once he proves the fact of refusal, she may seek to rebut the inference of desertion by proving that she had just cause for her refusal; and, indeed, it is usually wise for her to do so, but there is no legal burden on her to do so. Even if she does not affirmatively prove just cause, the Court has still, at the end of the case, to ask itself; is the legal burden discharged ? Has the possession proved that she deserted him without cause? Take this case. The wife was very death, and for that reason could not explain to the Court her reasons for refusal. The judge thereupon considered reasons for her refusal which appeared from the acts in evidence, though she had not herself stated that they operated on her mind. Counsel for the husband says that the judge ought not to have done that. If there were a legal burden on the wife he would be right, but there was none. The legal burden was on the husband to prove desertion without cause, and the judge was right to ask himself at the end of the case. Counsel for the husband says that the judge ought not to have done that. If there were a legal burden on the wife he would be right, but there was none. The legal burden was on the husband to prove desertion without cause, and the judge was right to ask himself at the end of the case. Has that burden been discharged?” 15.Their Lordships of the Hon’ble Supreme Court in Smt. Rohini Kumari v. Narendra Singh, AIR 1972 SC 459 have explained the expression ‘desertion’ to mean the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party and includes the willful neglect of the petitioner by the other party to the marriage. “Under Section 10(1)(a) a decree for judicial separation can be granted 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. According to the Explanation the expression “desertion” with its grammatical variation and cognate expression means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party and includes the willful neglect of the petitioner by the other party to the marriage. The argument raised on behalf of the wife is that the possession had contracted a second marriage on May 17, 1955. The petition for judicial separation was filed on August 8, 1955 under the Act which came into force on May 18, 1955. The burden under the section was on the husband to establish that the wife had deserted him for a continuous period of not less than two years immediately preceding the presentation of the petition. In the presence of the Explanation it could not be said on the date on which he petition was filed that the wife had deserted the husband without reasonable cause because the latter had married Countess Rita and that must be regarded as a reasonable cause for her staying away from him. Our attention has been invited to the statement in Rayden on Divorce, 11th Edn. Page 223 with regard to the elements of desertion. Our attention has been invited to the statement in Rayden on Divorce, 11th Edn. Page 223 with regard to the elements of desertion. According to that statement for the offence of desertion there must be two elements present on the side of the deserting spouse namely, the factum, i.e. physical separation and the animus deserendi i.e. the intention to bring cohabitation permanently to an end. The two element present on the side of the deserted spouse should be absence of consent and absence of conduct reasonably causing the deserting spouse to form his or her intention to bring cohabitation to an end. The requirement that the deserting spouse must intend to bring cohabitation to an end must be understood to be subject to the qualification that it without just cause or excuse a man persists in doing things which he knows his wife probably will not tolerate and which no ordinary woman would tolerate and then she leaves, he has deserted her whatever his desire or intention may have been. The doctrine of “constructive desertion” is discussed at page 229. It is stated that desertion is not to be tested by merely ascertaining which party left the matrimonial home first. If one spouse is forced by the conduct of the other to leave home, it may be that the spouse responsible for the driving out is guilty of desertion. There is no substantial difference between the case of a man who intends to cease cohabitation and leaves the wife and the case of a man who with the same intention compels his wife by his conduct to leave him.” 16.Now, adverting to the cruelty, the appellant-wife had lodged the FIR Ex.PW-2/A against the husband. She has stated in the same that her husband had illicit relations with the wife of his brother. She has tried to wriggle out from the contents of Ex.PW-2/A. In her statement Ex.PW-4/A, she has deposed that Karnail Singh had illicit relations with his Bhabhi. The statement made by wife while appearing as RW-2 has been belied on the basis of the statement by her daughter Vaneeta Kumari (PW-6). Her application filed under Section 125 of the Code of Criminal Procedure stood dismissed. She has made unsubstantiated allegations against her husband with regard to his character. She has tried to project as if her husband had developed illicit relations with his Bhabhi. Her application filed under Section 125 of the Code of Criminal Procedure stood dismissed. She has made unsubstantiated allegations against her husband with regard to his character. She has tried to project as if her husband had developed illicit relations with his Bhabhi. The allegations made by her that her husband had forced her to prepare meet and take liquor are also not proved. As noticed above, it has come in the evidence that the husband and other members of the family are Radha Soami. The members of the Radha Soami sect are teetotaler and they are vegetarian. The husband had been taking good care of the family. It has come in the statement of PW-6 Vaneeta Kumari that her father was paying her Rs. 2000/- per month towards maintenance. She has also stated that the mother left the house and went away to her parental house since she had been pressurizing her father to stay in the house of her parents’. She had made allegations against her brother-in-law, who was working in the Post office. Her allegations that she was being tortured by the members of the family for giving birth to two daughters, has also not been substantiated. 17.Their Lordships of the Hon’ble Supreme Court in A. Jayachandra v. Aneel Kaur, AIR 2005 SC 534 have held that expression “cruelty” has been sued in relation to human conduct or human behaviour. Their Lordships have held to constitute cruelty, conduct complained of should be grave and weighty for arriving at conclusion that petitioner spouse cannot be reasonably expected to live with other spouse. Their Lordships have further held that evidence showing that respondent wife asked husband to do certain things casting doubt on reputation, character and fidelity of her husband cannot be termed as simple advice but amounts to cruelty. Their Lordships have held as under :- “The expression `cruelty’ has been sued in relation to human conduct or human behaviour. It is the conduct in relation to or in respect of matrimonial duties and obligations. Cruelty is a course or 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 in determining it. It is a question of fact and degree. If it is mental, the problem presents difficulties. Cruelty is a course or 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 in determining it. It is a question of fact and degree. If it is mental, the problem presents difficulties. First, the enquiry must begin as to the nature of cruel treatment, second the impact of such treatment in 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 inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. However, there may be a case where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or 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 (See Sobh Rani v. Madhukar Reddi, AIR 1988 SC 121). To constitute cruelty, the conduct complained of should be “grave and weighty” so as to come to the conclusion that the petitioner spouse cannot be reasonably expected to live with the other spouse. It must be something more serious than “ordinary wear and tear of married life”. The conduct, taking into consideration the circumstances and background has to be examined to reach the conclusion whether the conduct complained of amounts to cruelty in he matrimonial law. Conduct has to be considered, as noted above, in the background of several factors such as social status of parties, their education, physical and mental conditions, customs and traditions. It is difficult to lay down a precise definition or to give exhaustive description of the circumstances, which would constitute cruelty. It must be of the type as to satisfy the conscience of the Court that the relationship between the parties had deteriorated to such an extent due to the conduct of the other spouse that it would be impossible for them to live together without mental agony, torture or distress, to entitle the complaining spouse to secure divorce. It must be of the type as to satisfy the conscience of the Court that the relationship between the parties had deteriorated to such an extent due to the conduct of the other spouse that it would be impossible for them to live together without mental agony, torture or distress, to entitle the complaining spouse to secure divorce. Physical violence is not absolutely essential to constitute cruelty and a consistent course of conduct inflicting immeasurable mental agony and torture may well constitute cruelty within the meaning of Section 10 of the Act. Mental cruelty may consist of verbal abuses and insults by using filthy and abusive language leading to constant disturbance of mental peace of the other party. On reading of judgments of the trial Court and the High Court one thing is clear. While the trial Court analysed the evidence in great detail and found that the accepted stand of the respondent-wife regarding her behaviour and conduct caused mental agony and amounted to mental cruelty, the High Court did not discuss the evidence at all. On the specious ground that witnesses from the hospital were not examined and, therefore, adverse inference was to be drawn. There was not even any discussion as to how the evidence led was insufficient to establish mental cruelty. The High Court’s view that if at all it was a fact that respondent was using abusive language and making allegations of adultery with nursing staff, some witnesses from the hospital were necessary to be examined is clearly indefensible. That alone should not have been made the determinative factor to discard evidence on record. On that ground alone the judgment of the High Court is vulnerable. The evidence as led and which is practically undisputed is that the respondent had asked the husband to do certain things which cannot be termined to be a simple advice for proper behaviour. For example in her evidence respondent clearly accepted that she had said five things to be followed by him. Surprisingly, most of them related to ladies working in the hospital. Though respondent tried to show that they were simple and harmless advice, yet on a bare reading thereof it is clear that there were clear manifestations of her suspecting the husband’s fidelity, character and reputation. Surprisingly, most of them related to ladies working in the hospital. Though respondent tried to show that they were simple and harmless advice, yet on a bare reading thereof it is clear that there were clear manifestations of her suspecting the husband’s fidelity, character and reputation. by way of illustration, it may be indicated that the first so called advice awas not to ask certain female staff members to come and work on off-duty hours when nobody else was available in the hospital. Second was not to work behind the closed doors with certain members of the staff. Contrary to what she had stated about having full faith in her husband, the so called advises were nothing but casting doubt on the reputation, character and fidelity of her husband. Constant nagging on those aspects, certainly amounted to causing indelible mental agony and amounts to cruelty. The respondent was not an ordinary woman. She was a doctor in the hospital and knew the importance of the nature of duty and the necessity of members of the staff working even during off hours and the working conditions. There was another instance which was specifically dealt with by the trial Court. Same related to the alleged extra marital relationships of the appellant with another married lady who was wife of his friend. Though the respondent tried to explain that she was not responsible for making any such aspersions, the inevitable conclusion is to the contrary. The matter can be looked at from another angle. If acts subsequent to the filing of the divorce petition can be looked into to inference condonation of the aberrations, acts subsequent to the filing of the petition can be taken note of to show a pattern in the behaviour and conduct. In the instant case, after filing of the divorce petition a suit for injunction was filed, and the respondent went to the extent of seeking detention of the respondent. She filed a petition for maintenance which was also dismissed. Several caveat petitions were lodged and as noted above, with wrong address. The respondent in her evidence clearly accepted that she intended to proceed with the execution proceedings, and prayer for arrest till the divorce case was finalized. She filed a petition for maintenance which was also dismissed. Several caveat petitions were lodged and as noted above, with wrong address. The respondent in her evidence clearly accepted that she intended to proceed with the execution proceedings, and prayer for arrest till the divorce case was finalized. When the respondent gives priority to her profession over her husband’s freedom it points unerringly at disharmony, diffusion and disintegration of marital unity, from which the Court can deduce about irretrievable breaking of marriage. Several decisions, as noted above, cited by learned Counsel for the respondent to contend even if marriage has broken down irretrievably decree of divorce cannot be passed. In all these cases it has been categorically held that in extreme cases he Court can direct dissolution of marriage on the ground that the marriage broken down irretrievably as is clear from paragraph 9 of Shiv Sunder’s case (supra). The factual position in each of the other cases is also distinguishable. It was held that long absence of physical company cannot be a ground for divorce if the same was on account of husband’s conduct. In Shiv Sunder’s case (supra) it was noted that the husband was leading adulterous life and he cannot take advantage of his wife shunning his company. Though the High Court held by the impugned judgment that the said case was similar, it unfortunately failed to notice the relevant factual difference in the two cases. It is true that irretrievable breaking of marriage is not one of the statutory grounds on which Court can direct dissolution of marriage, this Court has with a view to do complete justice and shorten the agony of the parties engaged in long drawn legal battle, directed in those cases dissolution of marriage. But as noted in the said cases themselves those were exceptional cases. In the aforesaid legal and factual background the inevitable conclusion is that the appellant is entitled to a decree of divorce and we direct accordingly.” 18.Their Lordships of the Hon’ble Supreme Court in Smt. Mayadevi v. Jagdish Prasad, AIR 2007 SC 1426 have held that the concept of proof beyond reasonable doubt is not applicable to matrimonial disputes while proving cruelty. Their Lordships have held as under :- “Learned Counsel for the appellant submitted that the foundation of decree for divorce is the alleged conviction for which the appeal is pending and, therefore, the High Court should not have disposed of the matter. In any event, it is submitted that it was the husband and his family members who were torturing her and being threatened by the husband she had not made any grievance with the police. Unfortunately, when she made the allegation, the police did not properly investigate the matter and gave a final report exonerating the husband. Learned Counsel for the respondent on the other hand submitted that the instances highlighted by the trial Court and analysed in great detail by the High Court clearly made out a case for dowry and no interference is called for in this appeal. 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 his 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 amounts to cruelty. In delicate human relationship like matrimony, one has to see the probabilities of the case. The concept, a proof beyond the shadow of doubt, is to be applied to criminal trials and not to civil matters and certainly not to mattes of such delicate personal relationship as those of husband and wife. In delicate human relationship like matrimony, one has to see the probabilities of the case. The concept, a proof beyond the shadow of doubt, is to be applied to criminal trials and not to civil matters and certainly not to mattes 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. In physical cruelty, there can be tangible and direct evidence, but in the case of mental cruelty there may not at the same time be direct evidence. In 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.” 19.Their Lordships of the Hon’ble Supreme Court in Sujata Udai Patil v. Udayi Madhukar Patil, 2006(13) SCC 272 have held the cruel treatment can be inferred from the entire course of conduct and incidents showing display of temperament, emotion and perversion by one spouse causing hurt and humiliation to the other spouse. Their Lordships have further held that neither actual nor presumed intention to cause hurt to the other spouse is a necessary element in cruelty. Their Lordships have held as under :- “The word “cruelty” and the kind or degree of “cruelty” necessary which may amount to a matrimonial offence has not been defined in the Act. What is cruel treatment is to a large extent a question of fact or a mixed question of law and fact and no dogmatic answer can be given to the variety of problems that arise before the court in these kind of cases. The law has no standard by which to measure the nature and degree of cruel treatment that may satisfy the test. It may consist of a display of temperament, emotion or pervasion whereby one gives vent to his or her feelings, without intending to injure the other. The law has no standard by which to measure the nature and degree of cruel treatment that may satisfy the test. It may consist of a display of temperament, emotion or pervasion whereby one gives vent to his or her feelings, without intending to injure the other. It need not consist of direct action against the other but may be misconduct indirectly affecting the other spouse even though it is not aimed at that spouse. It is necessary to weigh all the incidents and quarrels between the parties keeping in vie the impact of the personality and conduct of one spouse upon the mind of the other. Cruelty may be inferred from the facts and matrimonial relations of the parties and interaction in their daily life disclosed by the evidence and inference on the said point can only be drawn after all the facts have been taken into consideration. Where there is proof of a deliberate course of conduct on the part of one, intended to hurt and humiliate the other spouse, and such a conduct is persisted, cruelty can easily be inferred. Neither actual nor presumed intention to hurt the other spouse is a necessary element in cruelty.” 20.The Hon’ble Single Judge of this court in FAO (HMA) No. 396 of 2001, Shyam Sunder Gupta v. Smt. Homa Gupta, decided on 26.7.2007 has held that the wife levelling false allegations of adultery against the husband itself amount to an act of cruelty and the wife should have either proved the same or should have led evidence to show that she had reasonable grounds for making such allegations. The Hon’ble Single Judge has held as under :- “In my opinion, though the husband did not prove cruelty as alleged by him in the petition, the allegations of the wife levelling false allegations of adultery against the husband itself amount to an act of cruelty and the wife should have either proved the same or should have led evidence to show that she had reasonable grounds for making such allegations. In my opinion, the wife in fact has not made out any justifiable ground to level such allegations and these allegations are false and defamatory in nature. In my opinion, the wife in fact has not made out any justifiable ground to level such allegations and these allegations are false and defamatory in nature. Therefore, this act of the wife amounts to cruelty.” 21.Cumulatively, it is held that the appellant-wife Saroj Kumari had caused mental cruelty to her husband and deserted him without any reasonable cause and thus the marriage of the parties had broken irretrievably. The learned District Judge has correctly appreciated the oral as well as documentary evidence produced by the parties while coming to the conclusion that the wife had deserted the husband and she has caused cruelty to her husband. 22.In view of the aforesaid reasoning, there is no merit in this appeal, and the same is dismissed. There will, however, be no order as to costs. M.R.B.———————