Judgment B. K. NARAYANA, J. :- Heard Sri C.B. pandey, learned counsel for the appellant and Sri Anil Kumar Tiwari, learned counse1 for the respondent. 2. The instant first appeal has been preferred by the defendant-appel1ant against the judgment and decree dated 4-12-2002 passed by Additional Principal Judge, Family Court, Lucknow decreeing the Original Suit No.613 of 1998. 3. Plaintiff-respondent, Rajesh Dubey, who is the husband of the defendant-appellant, Smt. Mamta Dubey, filed Original Suit No.613 of 1998 before the Family Court, Lucknow under Section 13 of the Hindu Marriage Act. 3. Plaintiff-respondent, Rajesh Dubey, who is the husband of the defendant-appellant, Smt. Mamta Dubey, filed Original Suit No.613 of 1998 before the Family Court, Lucknow under Section 13 of the Hindu Marriage Act. 1955, hereinafter referred to as "the Act" filed by the plaintiff-respondent for dissolution of the marriage between the plaintiff and the defendant by a decree of divorce on the allegations interalia, that the plaintiff and the defendant were married in accordance with the Hindu Vedic rites on 23-2-1993 at the residence of father of the respondent at Gorakhpur; that in the very first week after marriage, the defendant expressed her unhappiness over the way, the plaintiff interacted with his sisters and sisters-in-law and the suspicious nature of the respondent caused acute pain to the plaintiff but he was hopeful that she would gain her confidence and trust with the passage of time; that the insistence of the defendant to live separately from the parents of the plaintiff compelled the plaintiff to move into a flat allotted by his employers at 406 Meenaxi B Wing Gokuldham Goregaon, East Mumbai; that towards the end of April, 1993 the respondent became pregnant, she insisted upon aborting the child but however due to effective persuasion of the plaintiff and the advice of the Gynaecologist the defendant reluctantly agreed to go through the pregnancy and in the meantime, the defendant realising need for assistance during the pregnancy agreed that the plaintiffs parents should join them at their official residence; that in the month of May, 1993, the plaintiffs mother-in-law and two brothers-in-law visited the plaintiffs house and within a week of their departure, the father-in-law of the plaintiff reached Bombay to fetch defendant back to Gorakhpur alleging maltreatment of the defendant by the plaintiff and his parents and the defendant went back to Gorakhpur with her father in the third week of June 1993; that the defendant delivered a baby girl on 13-2-1994 at her parents house in Gorakhpur and when the plaintiff reached Gorakhpur on 27-2-1994 after getting information about the birth of the child, the plaintiff learnt that his daughter was hospitalised on account of high fever coupled with convulsions and after the child was discharged on 3-3-1994, the Doctors attending on her had advised the defendant to take proper care of the child and not to neglect her; that the plaintiff intended to bring the defendant with him to Mumbai along with the child but on insistence of her parents, the plaintiff agreed to leave her behind and returned to Mumbai on 26-3-1994; that the plaintiff again went to Gorakhpur in June 1994 and brought the defendant along with him to Mumbai on 20-6-1994; that after defendants return to Mumbai, her suspicious nature towards the plaintiff had become more intense and she suspected that the plaintiff was having adulterous affairs with his colleagues in the office and the defendant started indulging in the habit of making phone calls in the office of the plaintiff to find out whether the plaintiff was having adulterous affairs with colleagues; that on one occasion the defendant went to the residence of one of the colleagues of the plaintiff, Ms. Deepti Rawal and accused her of having adulterous relationship with the plaintiff; that on 18-1-1995 defendant left for Gorakhpur accompanied by her youngest brother after accusing the plaintiff that he is living in adultery with his colleagues; that the plaintiff was transferred from Mumbai Office to the Head Office at Lucknow on 24-6-1995; that the defendant came to Lucknow in mid August, 1995 for regular medical check up the daughter whose condition had deteriorated considerably since she had left Mumbai for Gorakhpur in January, 1995; that upon coming to know of the condition of his ailing daughter, the plaintiff took his daughter to S.G.P.G.I, Lucknow for treatment, however, before the medical investigations could be completed, the daughter of the plaintiff passed away on 2-9-1995; that the death of the daughter left the petitioner totally heart broken because the daughter had been utterly neglected by the defendant while staying at Gorakhpur from January, 1995 to mid August, 1995 where the defendant had stayed totally against the wishes of the plaintiff; that the defendant and her parents accused the plaintiff and his parents of having killed the daughter which resulted in great cruelty to the plaintiff; that in February, 1996, the defendant again conceived, however, the defendant continued to accuse the plain tiff of having illicit relationship with another girl; that the second child was born on 22-9-1996 and the defendant left the plaintiffs home on 16-11-1996 on the pretext of visiting her father at Gorakhpur and returned on 25-11-1996 informing the plaintiff that she was leaving for Gorakhpur to complete her studies there and the defendant finally left Lucknow on 26-11- 1996 along with her two month old child; that the second child of the plaintiff also passed away on 14-6-1997 after remaining in coma for eight days in Gorakhpur Medical College and when the plaintiff learnt about the illness of his child he immediately rushed to Gorakhpur on 8-6-1997 but only to see his child dead; that the death of the second child of the plaintiff left him totally shattered as it was result of persistent neglect on the part of the defendant which had resulted in the death of both the children while she was residing at Gorakhpur; that the defendant accused the plaintiff of killing the child; that the conduct of the defendant comprising making phone calls to the seniors of the plaintiff in the office as well as at their residence levelling all kinds of frivolous and baseless allegations regarding the character of the plaintiff alleging him to be an adulterous man caused tremendous mental agony to the plaintiff and the behaviour of the defendant constituted cruelty towards the plaintiff who was left with no alternative but to file the suit for divorce. 4. That the said suit was contested by the defendant wife who filed her written statement on 29-5-2000 denying the plaint allegations in general. The defendant-appellant however in paragraphs-25, 32 and 39 asserted that the plaintiff was living in adultery with his colleague Ms. Deepti Rawal. She also alleged that the plaintiff always displayed undue affection towards his female colleagues. Allegations regarding constant harassment" of the defendant immediately after the marriage by the plaintiff and his family members for having brought inadequate dowry and persistent and constant demand of dowry were also made in the written statement. The defendant also stated in her written statement that the plaintiff forcibly turned her out of his house along with her daughter and she had not deserted the plaintiff. The factum of the death of two daughters is not disputed in the written statement. The filing of the divorce petition by the plaintiff has been attributed to the defendants desire to remarry his colleague Ms. Deepti Rawal after the annulment of marriage between the plaintiff and the defendant. The defendant-appellant in her written statement admitted that she had filed three cases against the plaintiff and his family members under Section 125 Cr.P.C., under Section 498-A IPC and suit for restitution of conjugal rights. The defendant also alleged in her written statement that the plaint does not disclose any ground for passing a decree of divorce and the defendant is still ready to live with the plaintiff. 5. The plaintiff filed his replica on 18-1-2002. 6. The defendant filed a counter-claim in Regular Suit No.613 of 1998 on 11-1-2002 with a prayer for grant of decree for restitution of conjugal rights. Against the counterclaim the plaintiff filed a preliminary objection regarding the maintainability of the counter-claim on 18-1-2002. 7. On the basis of the pleadings of the parties, the trial court framed the following issues:- 1. Whether the defendant has treated the plaintiff and his family members with cruelty? If yes then what will be its effect? 2. Whether the defendant had deserted the plaintiff on 26-11-1996? If yes then what will be its effect? 3. Whether the defendant was being harassed by the plaintiff for dowry as pleaded in the written statement? If yes then what will be its effect? 4. If yes then what will be its effect? 2. Whether the defendant had deserted the plaintiff on 26-11-1996? If yes then what will be its effect? 3. Whether the defendant was being harassed by the plaintiff for dowry as pleaded in the written statement? If yes then what will be its effect? 4. Whether the plaintiff has filed the suit against the defendant on the basis of surmises and conjectures as pleaded in the written statement? 5. To what relief, if any, is the plaintiff entitled? 8. After considering the oral and documentary evidence on record, the trial court decided all the issues in favour of the plaintiff and against the defendant and by the impugned judgment decreed the plaintiffs suit under Section 13 of the Act. 9. The instant judgment and decree of the trial court has been challenged by the appellant on the grounds inter alia, that the trial court erred in law in upholding the allegations of mental cruelty against the appellant while there was no material or evidence on record to prove the same; that the trial court totally misconstrued the meaning and import of cruelty and illegally failed to consider the provisions of Section 23 (1) (a) of the Act while holding that the conduct of the defendant amounted to cruel treatment of the plaintiff by the defendant as there was ample material on record which indicated that the plaintiff himself was responsible for creating the circumstances which compelled the defendant to leave his house and further the defendant did not leave her husbands house willingly but was in fact turned out of her husbands house by her own husband; that the trial court erred in decreeing the suit on the ground of desertion although admittedly the suit was filed within two years of the alleged date of desertion of the plaintiff by the defendant; that the failure of the trial court to decide the counter-claim preferred by the defendant along with the suit has vitiated the judgment and decree of the trial court. 10. Sri Anil Kumar Tiwari, learned counsel appearing for the plaintiff-respondent has submitted that the findings recorded by the court below do not suffer from any infirmity or illegality and being based upon cogent evidence and consideration of the entire facts and circumstances of the case are not liable to be interfered with. 10. Sri Anil Kumar Tiwari, learned counsel appearing for the plaintiff-respondent has submitted that the findings recorded by the court below do not suffer from any infirmity or illegality and being based upon cogent evidence and consideration of the entire facts and circumstances of the case are not liable to be interfered with. Sri Tiwari further submitted that in the case in hand it cannot be said that the requisite ingredients for constituting cruelty have not been satisfied. It is undisputed that the plaintiff and the defendant have been living separately since 26-11-1996 and have not cohabited for the last 13 years and there is sufficient material on record including the own statement of the appellant which indicates that the defendant accused the plaintiff of having adulterous relationship with his colleague Ms. Deepti Rawal, his cousin sister and his other female colleagues and that the defendant has filed several cases including criminal complaint under Section 498-A IPC against the plaintiff and his family members including his parents. sister and sister-in-law and the father of the plaintiff was arrested and was sent to jail along with the plaintiff in connection with the case filed under Section 498-A IPC and the relations between the plaintiff and the defendant have soured to such an extent that the marriage between them has broken down irretrievably and in the circumstances, divorce would be the remedy in the case of both the parties and allowing of the appeal of the defendant and refusing to grant the decree would be disastrous to them and hence the instant first appeal is liable to be dismissed on the ground that the marriage between the plaintiff and the defendant irretrievably broken down and it is not possible for them to live together alone. 11. Having heard the learned counsel for the parties, the following points arise for determination in the present first appeal. 1. Whether the finding of the trial court that the conduct of the defendant amounted to cruel treatment of the plaintiff is not based upon any evidence and is vitiated on account of non-consideration of the provisions of Section 23 (1) (a) of the Hindu Marriage Act? 2. Whether the trial court misconstrued the meaning and import of cruelty while deciding the issue No.1 in favour of the plaintiff? 3. 2. Whether the trial court misconstrued the meaning and import of cruelty while deciding the issue No.1 in favour of the plaintiff? 3. Whether the trial court committed a manifest error of law in decreeing the suit for divorce, also on the ground of desertion although admittedly the suit was filed within two years from the date of the alleged desertion of the plaintiff by the defendant? 4. Whether the judgment and decree of the trial court is liable to be set aside on the ground that the counter-claim preferred by the defendant was not decided by the trial court along with the suit? 5. Whether the marriage between the plaintiff and the defendant has irretrievably broken down leaving the court with no option but to grant divorce. Points No.1 and 2. 12. Points No.1 and 2 are inter connected and hence they are taken up together. 13. It has been submitted on behalf of the defendant-appellant that incidents and the instances of the parties matrimonial life and the material relied upon by the court below while coming to the conclusion that the defendant had treated the plaintiff with cruelty do not constitute cruelty so as to entitle the plaintiff to a decree for divorce. It has further been submitted that the circumstances which were taken into consideration by the trial court while holding that the