JUDGMENT : B.P. Das, J. - This Appeal has been filed by the Appellant, who was the Opposite Party in Civil Proceeding No. 782 of 2004 filed by the Respondent for dissolution of marriage u/s 13 of the Hindu Marriage Act, 1955 (in short, 'the Act'), on the ground of cruelty and desertion. The Civil Proceeding was finally decided by the Family Court, Cuttack, by Judgment dated 20th September, 2007 allowing the divorce u/s 13 of the Act by dissolving the marriage solemnized between the parties on 30th November, 1992. The Appellant has raised the following questions of law for adjudication in this appeal: A. Whether the Learned Judge, Family Court, Cuttack was right in passing the decree of divorce u/s 13 of the Act when a proceeding u/s 9 -thereof was pending consideration before the same Court for restitution of conjugal right? B. Whether the decree of divorce can be passed on the ground of cruelty without observing that the marriage between the parties has broken down irretrievably and there is no scope for conciliation? C. Whether the Learned Judge, Family Court can pass a decree of divorce on the ground of cruelty without giving a scope to the Respondent in the Civil Proceeding for leading his evidence to counter the allegation of cruelty if any? D. Whether the Learned Judge, Family Court was right in passing a decree of divorce without giving an opportunity to the Petitioner/husband to lead evidence and does the same not amount to violation of Fundamental Rights under Article 14 of the Constitution of India? 2. The case of the Appellant is as follows: The Appellant is an Officer of Indian Police Service (IPS) belonging to Nagaland cadre and his marriage was solemnized with the Respondent on 30th November, 1992 as per the Hindu Rites and Customs. After marriage, they started their conjugal life at Phek in Nagaland where the Appellant was posted as Additional S.P., but the Respondent came to Cuttack to stay in her in-laws house for her first delivery, as there was no scope for advanced medical care at the place of posting her husband. To their wedlock, a male child was born on 26.10.1993. 3. Thereafter, in the year, 1997 the Appellant was transferred to Delhi as Superintendent of Police (CBI) and on such transfer the Respondent along with her son moved to Delhi. To their wedlock, a male child was born on 26.10.1993. 3. Thereafter, in the year, 1997 the Appellant was transferred to Delhi as Superintendent of Police (CBI) and on such transfer the Respondent along with her son moved to Delhi. While working as S.P., CBI, the Appellant was selected for U.N. deputation to Bosnia in 1998. The Appellant with the consent of the Respondent went to Bosnia leaving his wife and son at Delhi. According to the Appellant, though he was posted at Bosnia, he was regularly visiting Delhi almost every weekend for meeting his wife and son at his own expenses. The Appellant, in every summer vacation used to take his wife and son to Bosnia for spending vacation there. In 2002 the Respondent got pregnant and delivered a female child on 2.2.2002. As the Appellant was away from Delhi, he had requested one of his batch mates, Mr. Manoj Kumar Lall, to assist and help in the delivery of second child and accordingly, on the assistance of Mr. Lal, the delivery of the second child was done in a Nursing Home in East Delhi. But the Appellant soon after his arrival heard about the early delivery of their daughter. According to him, though he was abroad, he planned to be in Delhi for delivery but he could not do so as the child was delivered more than a week ahead of the expected date. While Appellant was in Bosnia, the Respondent had taken a job in the Modern School, Delhi as a teacher, which was not for the purpose of earning money as there was no dearth of it owing to the Appellant, who was regularly providing support to the Respondent and their children for their living expenses in Delhi. 4. The Appellant wanted the Respondent to join him in Bosnia with their children, but she did not want to do so owing to the education of their son and the fact that she was enjoying her work in Modern School, Delhi. The Appellant respected her decision. 4. The Appellant wanted the Respondent to join him in Bosnia with their children, but she did not want to do so owing to the education of their son and the fact that she was enjoying her work in Modern School, Delhi. The Appellant respected her decision. While the Appellant was still serving abroad, it was decided between the parties that their son would be admitted in a good residential public school for better education, for which the Respondent trained and prepared her son for the entrance test and after qualifying the test, he was admitted in Lawrence School, Ooty and the entire admission expenses and tuition fees of their son was borne by the Appellant. As the son was resided at Ooty, the Respondent wanted to be closer to him and took up a teaching job at Chinmaya International Residential School, Coimbatore. Thereafter, they took a decision that their son would be withdrawn from Lawrence School and get him admitted in Chinmaya International Residential School, Coimbatore. 5. After the Respondent shifted from Delhi to Coimbatore, according to the Appellant, he had visited her several times at Coimbatore and other places, and continued his conjugal relationship and obligations. The Appellant all through out his stay abroad used to visit India regularly almost every weekend and spend time with his family besides taking them for vacation at regular intervals right from the day of marriage. However, the Respondent without intimating the Appellant, resigned from her service and shifted to Bhubaneswar and started living there with her parents. It was only during this time, the Respondent withdrew herself from the society of the Appellant and did not allow him to have conjugal relationship with her in their house and accordingly, he was prevented from having a conjugal life. 6. After arrival in Bhubaneswar, the Respondent filed Civil Proceeding No. 82/2004 u/s 13 of the Act before the Family Court, Cuttack. According to him, the Family Court has acted with total arbitrariness by not giving importance to both the petitions filed under, Sections 13 and 9 of the Act by the Respondent and Appellant respectively. Before passing the decree of divorce, as the facts and evidence to be adduced for both the aforesaid cases are similar, it would have been logical and appropriate to hear both the proceedings together. Before passing the decree of divorce, as the facts and evidence to be adduced for both the aforesaid cases are similar, it would have been logical and appropriate to hear both the proceedings together. It is further argued that the Appellant was not given equal opportunity by the Family Court for leading evidence to establish his case, whereas the wife was allowed such an opportunity. 7. The sum and substance of the case of the Appellant is that there was no cruelty and desertion on his part and the marriage had not been broken down irretrievably before passing the decree of divorce. 8. In this regard, Learned Counsel for the Appellant, Mr. G. Acharya, relied upon a decision of the Apex Court rendered in A. Jaychandra v. Anil Kaur reported in 2005 (1) OLR 457 and drawing our attention to paragraphs-10, 12, 13, 15 & 17 of the said decision submitted that there is nothing in the evidence before the Family Court to show that the conduct of the Appellant complained of was grave and weighty, so as to conclude that the other spouse cannot live with him. According to Mr. Acharya, this has not been in the case at hand, hence the decree of divorce is illegal. Thereafter, he relied upon the decision of the Apex Court rendered in Naveen Kohli Vs. Neelu Kohli, and argued that cruelty should be grave and weighty but the day-to-day quarrel will not certainly amount to cruelty. Mr. Acharya further relied upon the decision of the Apex Court in Samar Ghosh Vs. Jaya Ghosh wherein the Apex Court has observed that while deciding a divorce petition: a) The entire married life of husband and wife has to be reviewed as a whole; b) Granting divorce on isolated instances over a period of years will not amount to cruelty; c) Emotional upset by either of the spouse can not amount to cruelty, so as to grant divorce; d) The nature of suffering/torture must be grave and serious; and e) Marriage must have broken down irretrievably. According to Mr. According to Mr. Acharya, on analysis and scrutiny of all those decisions of the Apex Court, divorce can be granted on the following grounds: a) Irretrievable break down of marriage; b) Evidence of both sides has to be considered; c) Merely long absence from physical company can not be a ground of divorce; d) The suffering/torture has to be a continuing process; and e) the cruelty imposed on the spouse has to be severe, intolerable, grave and weighty. 10. Relying upon the aforesaid decisions of the Apex Court, Learned Counsel for the Appellant prayed for setting aside the Judgment dated 20.9.2007 passed by the Family Court, Cuttack in C.P. No. 782/2004. In other hand, Mr. Y. Mohanty, Learned Counsel for the Respondent, submitted that during the year 1994 the Respondent was a teacher in St. Mary School, Dimapur, Nagaland and in the year 1997, she taught Sanskrit in Chinmaya School, New Delhi and in 1998-2003, she taught in Modern School, Vasant Vihar, New Delhi. In September, 2003, the Respondent joined Chinmaya International Residential School, Coimbatore as a faculty member and was teaching Hindi and Sanskrit in different classes. According to the Respondent, after 1998 her husband never took the responsibility of the family and on the contrary, he asked his friends, strangers to look after the family, which made her uncomfortable and even while they were staying in New Delhi, the Appellant used to abuse her with filthy language in front of guests and some times physically assaulted her. According to her, the physical assault and harassment to her by the Appellant in presence of their children has completely damaged the dignity of motherhood. Regular repetition of such incidents has broken down her and has caused tremendous mental harassment, which forced her to take the extreme step for filing a petition u/s 13 of the Act. According to her, the Appellant has willfully and intentionally repudiated the obligations of marriage since July, 2002, by willfully deserting her without any reasonable cause for a continuous period of more than two years. There was no physical relationship between the parties after July, 2002, which is another evidence to show that the marital relationship between them has been totally broken down. That too, there was an attempt to delay, the proceeding u/s 13 of the Act and the husband kept no stone unturned in that respect. 11. According to Mr. There was no physical relationship between the parties after July, 2002, which is another evidence to show that the marital relationship between them has been totally broken down. That too, there was an attempt to delay, the proceeding u/s 13 of the Act and the husband kept no stone unturned in that respect. 11. According to Mr. Mohanty; Civil Proceeding No. 782/2004 was filed on 20.12.2004 and the Appellant entered appearance on 17.3.2005. The evidence on behalf of the Respondent was closed on 27.6.2007. Thereafter, the matter was posted to 18.7.2007 for evidence of the Appellant. On the said date, the Learned Advocate appearing for the Appellant filed a list of 11 witnesses and thereafter the case was posted to 6.8.2007 and 16.8.2007 for evidence of the Appellant. On 18.7.2007 the Family Court refused the prayer of both the parties to be represented by Counsel. The same was challenged by the Appellant in W.P.(C) No. 9209/2007, which was dismissed. According to the Learned Counsel for the Appellant, the Appellant thoroughly cross- examined the Respondent-wife and thereafter did not cooperate with the Court and took several adjournments. Ultimately, after granting adjournments for more than six times, i.e., on 18.7.2007, 6.8.2007, 16.8.2007, 23.8.2007, 29.8.2007 and 6.9.2007, the Family Court passed the Judgment and decree on 20.9.2007. 12. Let us now examine whether the Judgment of the Family Court dated 20.9.2007 has been passed denying the Appellant the opportunity to lead evidence, as alleged. 13. From the Lower Court's Record, we find that on 19.2.2005, Mr. G. Acharya, Learned Advocate filed a memo for time to file Vakalatnama for the present Appellant, i.e., prior to service of notice on him. The Family Court observed that the O.P. had known about the litigation. However, the case was fixed to 17.3.2005, on which date the Appellant entered appearance through his Advocate, who filed Vakalatnama. On 11.4.2005 the Appellant filed a petition for time, which was granted till 27.4.2005, on which date it was recorded that the Appellant was absent and filed a petition for time and the same was allowed till 5.7.2005. On 5.7.2005 the Appellant also prayed for time and time was allowed and the matter was directed to be listed on 5.8.2005. On that date the Appellant took no step and remained absent. 14. Thereafter, the matter was fixed to 29.8.2005 for ex parte hearing. On 5.7.2005 the Appellant also prayed for time and time was allowed and the matter was directed to be listed on 5.8.2005. On that date the Appellant took no step and remained absent. 14. Thereafter, the matter was fixed to 29.8.2005 for ex parte hearing. Subsequently, Learned Counsel for the Appellant prayed for time but his time petition was rejected. On 29.8.2005 both the parties were present and the Appellant filed a petition for setting aside the ex parte order and it was posted to 30.8.2005, on which date both the parties were present in the conciliation cell and the report of conciliation was recorded on 31.1.2006. As it appears, the conciliation failed and as the written statement was not filed, the matter was fixed to 24.4.2006 for filing written statement by the Appellant. On 24.4.2006 the Respondent was present but the Appellant was absent. The application for setting aside the ex parte order was allowed. Time was granted till 22.6.2006, on which the Appellant was also absent and his Advocate asked for time to file written statement. Time was granted till 3.8.2006 subject to payment of cost of Rs. 400/-. On 3.8.2006 the written statement was filed and the matter was called on 9.10.2006. On 9.10.2006 the Respondent filed a list of witnesses and the matter was fixed to 20.11.2006 and thereafter to 4.12.2006. 15. Ultimately, the matter was adjourned to 15.12.2006 and thereafter to 10.1.2007 and on 3.2.2007 examination of witnesses was started and it continued till 5.5.2007. The order sheet dated 5.5.2007 indicates that the Family Court had earlier suggested both the parties to have mutual discussions in between them at an exclusive place, where there should not be any external force to influence anyone of them. The husband was very eager for re-union according to his expression but the wife reserved her expression until discussion. On that date both the parties turned up and said that the discussion yielded no result. So the matter was placed to another date for further cross-examination of P.W.1. In the meantime, the present Appellant filed I.A. No. 92 of 2007 u/s 26 of the Hindu Marriage Act read with Sections 6 and 13 of the Hindu Minority and Guardianship Act for interim custody of the children. The order sheet dated 20.6.2007 indicates that the Respondent-wife produced her two children (son and daughter) before the Family Court. In the meantime, the present Appellant filed I.A. No. 92 of 2007 u/s 26 of the Hindu Marriage Act read with Sections 6 and 13 of the Hindu Minority and Guardianship Act for interim custody of the children. The order sheet dated 20.6.2007 indicates that the Respondent-wife produced her two children (son and daughter) before the Family Court. The daughter was younger one, who was reading in Prep Class, and she said that her father was good and he had come few days back and presented her a dress. 16. The Judge, Family Court recorded as follows: I have also, interacted with the son Saurav, who is unhappy, because his father had no contact with him for the last ten years. But he is not hostile to his father. He does not want to stay at Delhi with his father, leaving his mother. The same is opinion of the daughter. P.O. had some other interactions with them, relating "to, their study and happy stay with their mother." They also stated not to be separated from their mother and well come joint stay of their parents. Saurav also signed in the margin of the order-sheet. " The Family Court by Order Dated 3.7.2007 passed in Misc. Case No. 92 of 2007 rejected the prayer of the Appellant to give him temporary custody of the minor children. 17. Ultimately, in course of proceeding in Civil Proceeding No. 782/2004, Learned Counsel for the Appellant cross-examined the Respondent on 3.2.2007, 19.4.2007 and 27.6.2007. Thereafter, a list of witnesses was filed by the Appellant. On that date at about 12 noon, an application was filed by the Appellant through his Advocate seeking time to produce the witnesses. The Family Court passed an order on that date refusing the Lawyer's representation from both the sides relying upon the decision of this Court in Sadhana Patra v. Subrata Pradhan W.P.(C) No. 14326/2005 because both the parties were sufficiently educated and established in the society. One Smt. Mamata Mohanty, Advocate, was appointed as Amicus Curiae for the Appellant (present Respondent) and Mr. RK. Nayak, Advocate, as Amicus Curiae for the Respondent (present Appellant). One Smt. Mamata Mohanty, Advocate, was appointed as Amicus Curiae for the Appellant (present Respondent) and Mr. RK. Nayak, Advocate, as Amicus Curiae for the Respondent (present Appellant). Thereafter, when the matter was taken upon, 6.8.2007, the Amicus Curiae for the husband filed an application for time, as he could not come from Delhi to Cuttack because of non-confirmation of his ticket and the Family Court gave ten days time to the present Appellant for his evidence fixing the date to 16.8.2007, on which date the husband again filed an application for two weeks' time on the ground that W.P.(C) No. 9209/2007 filed by him before this Court was expected to be disposed of. 18. The Family Court recorded in his order-sheet that the husband was not attending the Court since 18.7.2007 and rejected the time petition and closed his evidence. One week's time was granted to him for argument and the matter was fixed to 23.8.2007. On the said date even though the Appellant did not appear, he filed a time petition and the matter was fixed to 29.8.2007, on which date again another time petition was filed by the husband and the matter was adjourned to 6.9.2007. On 6.9.2007 the Appellant filed another time petition for adjournment of the case till disposal of C.P. No. 639/2007, which was filed u/s 9 of the Act. Ultimately, on 12.9.2007 W.P.(C) No. 9209/2007 filed by the Appellant was dismissed by this Court, the order of which reads as follows: This petition has been filed before this Court under Articles 226 and 227 of the constitution of India for quashing the Order Dated 18.7.2007 passed by the Learned Judge, Family Court, Cuttack in Civil Proceeding No. 782 of 2004. The present dispute is between two private individuals relating to family affairs, which cannot be the subject matter of a Writ Petition. Apart from that, in a family Court proceeding, the question is one of granting remedy in personal law. The Writ Petition being a proceeding for a remedy in public law as held by the Supreme Court in number of Judgments, the petition under Article 226 against the order of Judge, Family Court is not maintainable. Therefore, it is treated under Article 227 of the Constitution of India. The Writ Petition being a proceeding for a remedy in public law as held by the Supreme Court in number of Judgments, the petition under Article 226 against the order of Judge, Family Court is not maintainable. Therefore, it is treated under Article 227 of the Constitution of India. It has been held by the Hon'ble Supreme Court time and again that the power under Article 227 of the constitution of India has to be exercised very sparingly inasmuch as under Article 227, the High Court has been given merely the power of superintendence. Such power of superintendence is to be exercised in a very rare case. The purpose of such jurisdiction is to keep the Tribunal within the bounds of their authority. Unless there is a miscarriage of justice or lack of jurisdiction of the Court to deal with the proceeding, the jurisdiction under Article 227 of the Constitution of India cannot be restored to correction of errors of facts. From the impugned order we do not find any such circumstance for our interference. Apart from the above, this application arises out of a matrimonial proceeding, which was filed in the year 2004. It appears that though the said proceeding has been dragged for more than three years and the Respondent-husband filed a petition seeking time by filing 11 witnesses, the Learned Judge, Family Court has rightly deprecated the said attempt of the Respondent, which is virtually for keeping the matter pending for a longer time. Therefore, Learned Judge, Family Court directed both the parties to argue their cases themselves. The Respondent, who is the Petitioner before us, is an I.P.S. Officer and the wife of the Petitioner is also a qualified lady. That being the factual position, we do not think that the order passed by the Learned Judge, Family Court is unreasonable nor does the same required any interference by this Court under Article 227 of the Constitution of India. Thus the petition is dismissed. 19. Thereafter, the matter was fixed to 20.9.2007 and on that date the Appellant was absent and the matter was closed and the marriage solemnized between both the parties was dissolved by a decree of divorce. 20. Thus the petition is dismissed. 19. Thereafter, the matter was fixed to 20.9.2007 and on that date the Appellant was absent and the matter was closed and the marriage solemnized between both the parties was dissolved by a decree of divorce. 20. In this regard, we may refer to Section 21B(2) of the Act, which reads as follows: Every petition under this Act shall be tried as expeditiously as possible and endeavour shall be made to conclude the trial within six months from the date of service of service of the petition on the Respondent. 21. On a bare perusal of the aforesaid provision, we find, it is the bounden duty of the Court to see that trial in the matrimonial matters are concluded within six months from the date of service of notice. So the allegation of the present Appellant that dates were given In a gap of two to three months and as the Judge, Family Court was to retire in September, 2007, he had a pre-conceived mind to close the case before his retirement and pass a decree of divorce, is not acceptable. The entire order-sheet shows that sufficient opportunities were given to him. He also approached this Court in a Writ Petition, in which he also failed. The objection of the Appellant to the decree that the same was passed without giving him opportunity of leading evidence was not valid. Rather, the Appellant without availing the opportunity to lead the evidence from his side, tried his best to stall and delay the proceeding as far as possible. 22. In course of hearing of this Appeal, this Court also tried for reconciliation between the parties. On 28.3.2008, while Learned Counsel for the Respondent submitted that there was no chance of re-union of the parties and Learned Counsel for the Appellant submitted that he had no instruction to that effect, this Court, in order to know from both the parties whether there was any chance of their re-union, directed Learned Counsel for both the parties to suggest a date, on which both the parties could appear before this Court in person. On 4.4.2008 both the Counsel submitted that on 11.4.2008, both the parties would appear in person along with their Counsel and accordingly, they appeared on that date. On 4.4.2008 both the Counsel submitted that on 11.4.2008, both the parties would appear in person along with their Counsel and accordingly, they appeared on that date. This Court tired to have a reconciliation by persuading the Respondent-wife to join her husband, but she submitted that she was not inclined to join with her husband for the reasons stated in her application filed u/s 13 of the Act. As there was no chance of their re-union, it was submitted by both the parties that some arrangement be made regarding their children, for which this Court directed both the Counsel along with their clients to discuss about the future of their children and file an affidavit to that effect. The Appellant submitted that he had not seen his children for the last seven to eight months and wanted to see them on the same day in Piza Hut at Bhubaneswar. The Respondent agreed to the suggestion of the Appellant. The Appellant filed Misc. Case No. 18/2008 before this Court for interim custody of his children in order to take them to New Delhi during the summer holidays, to which the Respondent objected. The Appellant submitted that his parents were staying at Bhubaneswar and his sister at Cuttack, for which he might be allowed to take his children for 5 to 7 days with him to be accommodated in the house of his parents or his sister. This Court directed the Appellant-husband to take his children, in case of son, if he agrees and in case of daughter, if the mother permits. It was further ordered that if the Appellant took the custody of the children, it would be for maximum seven days subject to filing of an affidavit that they would not be taken beyond the limit of Cuttack and Bhubaneswar Municipal Corporations and restore the custody of the children to the mother. 23. So far as our direction issued to both the parties regarding the well being of the minor children, the Respondent-wife filed an affidavit, inter alia, indicating therein that since she has all along been maintaining the children despite all odds and tile Appellant-husband has never discharged his moral duty nor maintained the children since 1998, the children should be allowed to stay at Bhubaneswar under the care and custody of the mother and the father ought to be directed to pay Rs. 15,000/- per month for maintenance of children. As against this, the Appellant-husband filed an affidavit denying the allegation of the Respondent that he had not taken care of his children. It is stated that in such case the paramount importance is to weigh the welfare of the children. Hence, the Appellant, who is quite capable of giving proper upbringing to the children, is always to be considered for having custody of the children. It is further stated that he is fully prepared to shoulder the responsibility of his family and like to see his children living comfortably without facing any hardship. 24. With this background, as the effort of re-union failed, this Court proceeded with the matter to examine; 1) whether opportunity to lead evidence was given to the Appellant in the proceeding 2) whether the Judgment of the Family Court suffers from infirmity because the same has been passed during pendency of the application for restitution of conjugal life . . 25. So far as point No. 1 is concerned, in the foregoing paragraphs, we have already answered the point saying that opportunity to lead evidence was given to the Appellant but he did not avail the same, and on the contrary, he tried to prolong the proceeding. 26. As regards point No. 2, we have already indicated in the foregoing paragraphs and on perusal of the LCR, we further find that the Judge, Family Court has taken all steps for re-union of the parties and similar attempt has also been made by this Court where the wife is reluctant to re-unite with the husband. The entire evidence on record would show that the Respondent in her examination-in-chief has clearly indicated that at the time of her marriage, her husband was serving as Additional S.P. at Phek in Nagaland. She stayed back in her matrimonial home and her husband had gone to resume his duty at Nagaland. Thereafter, her husband took her to Nagaland after much persuasion from her side towards the end of January, 1993 and she stayed with him till April, 1993. Though she was pregnant and not willing to come back and desired to stay with her husband, she was forced to come back to her parents' house. During her stay, her father deposited Rs. Though she was pregnant and not willing to come back and desired to stay with her husband, she was forced to come back to her parents' house. During her stay, her father deposited Rs. 21,000/- in her name in Andhra Bank, Buxi Bazar Branch, Cuttack for her personal expenses but her husband wanted to withdraw the amount for purchase of a washing machine for his mother, to which she did not agree. On her refusal, the husband got angry and pulled her out of the quarters and asked her to follow her up to Andhra Bank. He walked fast ahead of her towards the Bank and did not bother about her conveyance to cover the distance of 2 Kms. while she was carrying and suffering from fever. She withdrew the amount of Rs. 21,000/- and gave it to her husband. It is further stated in her examination- in-chief that in September, 1993 her father was transferred to Bhawanipatna as A.D.M. Since her father-in-law wanted her delivery at Cuttack, her father was forced to take a rented house at Cuttack. She delivered a male child in Sun Clinic and her father had borne all expenses of delivery. On the 12th day of such delivery, her husband came and spent only 2 to 3 hours and left. He did not take any interest to take her and her son to his place of service. Ultimately, after much persuasion from her side and her parents, he agreed for her going to Dimapur but did not turn up to take them. So the Respondent along with her son proceeded to Dimapur in August, 1994. In Dimapur she suffered from continuous fever and even he did not bother to take her to hospital for treatment. She herself went to Army Hospital and on her return, she found that the Appellant was taking break fast with 3 or 4 Army Officers. It was further alleged that the husband had not given her any financial assistance from 1998 to 2000. During the Summer Vacation of 1999-2000, she went with her son to Bosnia, where her husband was posted then and to the utter surprise of the Respondent, the Appellant behaved her abnormally and did not even introduce her to others as wife. Again in the Summer Vacation of 2001, she went to Bosnia keeping her son with her parents as per the desire of the Appellant. Again in the Summer Vacation of 2001, she went to Bosnia keeping her son with her parents as per the desire of the Appellant. There she was not allowed to talk to her son over phone and when once she talked to her son without his (Appellant's) consent, she was abused in filthy language. In one evening she came drenched to the resident of her husband, but he did not allow her to change her dress, rather directed her to go to the residence of one Pakistani Officer to wait there till his permission. Though she waited there till midnight, he did not call her to change her dress. After returning from Bosnia she started staying in the quarters allotted to her husband in Delhi. Since the Respondent was m advance stage, her mother went to Delhi to help her. On 1st February, 2002 she got admitted to a nursing home in midnight. Though her husband had come to Delhi in January, 2002, he did not stay back for her delivery, which was caesarean delivery. He came to Delhi after twelve days of her delivery, and did not give any money for the post-delivery treatment or for the care of the child. In April, 2002 the Appellant forcibly took her son and admitted him in Lawrence School, Ooty despite her protest. After paying the school fees of her son for some quarters, he defaulted, for which the Respondent paid fees for the last two quarters amounting to Rs. 50,000/- and ultimately, she was forced to withdraw her son from that school, as her purse did not permit to pay the dues of the said school. 27. It was further alleged that she had some complicacies in her abdomen, for which a surgical intervention was required and she came to Cuttack in October, 2002 and operation was done in Link Nursing Home, expenses of which were borne by her father. Her husband did not turn up to see her during the period of her illness. While the Respondent was at Delhi and serving in Modern School, Delhi, her husband came to Delhi and asked her to vacate his quarters and to shift to Coimbatore to get another job. Thereafter, she went to Coimbatore and joined Chinmaya International Residential School. 28. The Respondent was duly cross-examined by the Appellant on four dates, i.e., 3.4.2007, 19.4.2007, 4.5.2007 & 27.6.2007. Thereafter, she went to Coimbatore and joined Chinmaya International Residential School. 28. The Respondent was duly cross-examined by the Appellant on four dates, i.e., 3.4.2007, 19.4.2007, 4.5.2007 & 27.6.2007. In cross-examination, she denied to the suggestion of the Appellant that after the killing of one Ved Prakash, a friend of her husband, during insurgency at Nagaland, her husband sent her to Cuttack and opted for his transfer to Delhi on the ground of their security. 29. The long and thorough cross-examination has not in any manner dislodged the evidence of the Respondent, rather certain facts, which were not said in the examination-in-chief, were brought out in the cross-examination fortifying the plea of the Respondent. When the re-union failed after a sincere effort, the Judge, Family Court proceeded with the matter and concluded the Civil Proceeding under Section-13 of the Act by passing the decree of divorce. Proceeding with the Civil Proceeding u/s 13 of the Act, during pendency of. the. application filed u/s 9 of the said Act for restitution of conjugal life, in view of the aforesaid circumstances and evidence on record, is not fatal and cannot be said that the Judgment and decree of divorce is bad in law, as alleged. 30. Mr. Acharya, Learned Counsel for the Appellant, has referred to a decision of the Apex Court in Samar Ghosh Vs. Jaya Ghosh paragraph-99 of which reads as follows: No uniform standard can ever be laid down for guidance; yet we deem it appropriate to enumerate some instances of human behaviour 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) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty. (ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party. (iii) Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable. (iii) Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable. (iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty. (v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse. (vi) Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty. (vii) Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindles causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty. (viii) The conduct must be much more than jealousy, selfishness, possessiveness, which causes unhappiness and dissatisfaction and emotional upset may not be a ground for grant of divorce on the ground of mental cruelty. (ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day to day life would not be adequate for grant of divorce on the ground of mental cruelty. (x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill-conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty. (xi) If a husband submits himself for an operation of sterilization without medical reasons and without the consent or knowledge of his wife and similarly if the wife undergoes vasectomy or abortion without medical reason or, without the consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty. (xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty. (xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty. (xii) Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty. (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. 31. On consideration of the case at hand, we are of the view that the feeling of deep anguish, disappointment, and frustration in the Respondent-wife is apparent and evident from her evidence. Review of the married life of the Appellant as well as the Respondent as a whole would show that the relationship between them is deteriorated because of the acts and behaviour of the husband, who has neglected the Respondent-wife right from the date of their marriage. The examination-in-chief of the Respondent before the Family Court has no way been dislodged during the course of thorough and rigorous cross-examination. Further perusal of the LCR shows that continuous effort has been made to harass: the Respondent on different dates by adjourning the matter and protracting the litigation since 2004. Though the Respondent was examined, the husband never offered himself for examination in the first date nor did he file any affidavit. On the contrary, the Appellant filed a list of eleven witnesses to be examined one after other placing him at the last. 32. Under such circumstances, continuance of the married life of the Appellant as well as the Respondent will be a cruelty and their re-union will be more painful than separation. So, as the marriage has completely broken down and there is no chance of reconciliation/re-union between the parties, the Judge, Family Court has rightly granted the decree of divorce by dissolving the marriage solemnized between the parties on 30.11.1992. Accordingly, we confirm the Judgment dated 20th September, 2007 passed by the Judge, Family Court, Cuttack, in C.P. No. 782/2004. 33. So, as the marriage has completely broken down and there is no chance of reconciliation/re-union between the parties, the Judge, Family Court has rightly granted the decree of divorce by dissolving the marriage solemnized between the parties on 30.11.1992. Accordingly, we confirm the Judgment dated 20th September, 2007 passed by the Judge, Family Court, Cuttack, in C.P. No. 782/2004. 33. So far as custody of the children is concerned, law is well settled that the controlling consideration governing the custody of the children is the welfare of the children and not the right of their parents (See- Rosy Jacob Vs. Jacob A. Chakramakkal, ). Father's right to the custody of child is neither an absolute nor indefeasible one. The welfare of the children is paramount consideration. The mother is to be given the custody of minors, if their welfare or their interest should require it, even if the father is otherwise fit to act as guardian. In the present case, the son is now aged about 15 years and the daughter is aged about 7 years. Section 6 of the Hindu Minority and Guardianship Act, 1956 provides that the natural guardians of a Hindu minor, in case of a boy or unmarried girl, are the father, and after him, the mother, provided that the custody of a minor, who has not completed the age of five years, shall ordinarily be with the mother. Here, both the minor children have crossed the aforesaid age. It is decided in Rosy Zacob's case (supra) that the paramount consideration is the welfare of the children. 34. Keeping the aforesaid decision in view, we are of considered opinion that in the case at hand since both the minor children are staying with their mother and prosecuting their study in different schools, if the custody of the son is given to the father, it will certainly disturb the boy mentally and also affect his study. For that reason, it will be in the interest of the boy that he should be allowed to reach the age of majority and thereafter it will be left to him to decide whether he would prefer to stay with his father or mother. For that reason, it will be in the interest of the boy that he should be allowed to reach the age of majority and thereafter it will be left to him to decide whether he would prefer to stay with his father or mother. So far as the daughter is concerned, as she is only aged seven years, it will be in her interest if she stays with her mother till she attains the age of majority and thereafter it shall be left to her to decide whether she would prefer to stay with her father or mother. However, the Appellant-father shall have the right to visit the children and interact with them and financially help them in their further study. As the Respondent-wife has not claimed any permanent alimony or has not received any maintenance during pendency of the proceeding, we direct the Appellant to pay Rs. 8,000/-(rupees eight thousand) per month to his children for meeting their educational expenses. It is open to the father, if he so likes, to pay more money for the aforesaid purpose till the children are self-sufficient. 35. The Matrimonial Appeal is accordingly dismissed. Final Result : Dismissed