Judgment ( 1. ) THIS appeal under Section 28 of the Hindu Marriage Act, 1955 has been preferred by the appellant being aggrieved by the judgment and decree dated 10. 10. 2003 passed by the Additional District Judge, damoh in Civil Suit No. 5-A/2000, whereby the divorce petition filed by the appellant has been dismissed. ( 2. ) THE facts of the case in short are that the marriage of appellant and respondent was solemnized on 06. 05. 1989 as per Hindu rites and customs at Dhamtari, District Raipur. At that time appellant was employed as an U. D. T. at village Khartuli whereas respondent was employed as a Lecturer at Dhamtari. After marriage respondent was brought to village Khartuli but she was not willing to live there, therefore, the appellant brought her at Dhamtari where they started living peacefully as husband and wife. But later on she started misbehaving with him. On 08. 05. 1990 she kicked at his scrotum on account of which he became unconscious. Meanwhile she left the house and went to her parental house. On 17. 05. 1990 she delivered a son but she did not permit him even to touch his son. Thereafter on 21. 07. 1990 he filed the divorce petition at Raipur. The respondent also lodged F. I. R. under Section 498-A of I. P. C. He faced the trial but was convicted and sentenced in that case. The criminal appeal was preferred. The parties entered into compromise. Consequently, he was acquitted from the charge and the divorce petition was withdrawn. Thereafter in the year 1997 he was transferred from khartuli to a village in Sagar Division and subsequently he was transferred to Damoh. Respondent also got her transfer from dhamtari to Damoh where they lived as husband and wife. She delivered a female child in the year 1998 but the behaviour of respondent did not improve. Appellant took a house on loan in housing Board Colony, Damoh in August 1999. The father and brother of the respondent started living there therefore he used to live in the house of his relatives. On the false report of the respondent he was called at police station, Damoh on 05. 09. 1999 but on the basis of compromise no action was taken by the police. The respondent after selling her ornaments gave the money to her parents. On the false report of the respondent he was called at police station, Damoh on 05. 09. 1999 but on the basis of compromise no action was taken by the police. The respondent after selling her ornaments gave the money to her parents. The election material was kept in his house but she prevented him to carry the same and at the intervention of police only he could carry the election material on 18. 09. 1999. He was treated to cruelty by respondent. Hence filed the divorce petition under Section 13 (1) (i-a)of the Hindu Marriage Act, 1955 to dissolve the marriage. ( 3. ) THE respondent filed the written statement denying the allegations made in the petition mainly contending that she has never misbehaved with the appellant. She has never insulted, threatened, taunted, or caused marpeet and has never subjected him to cruelty. On the contrary, the appellant himself caused her marpeet several times, used to harass her and on account of which she has to lodge the report against him. He tried to withhold the supply of water and electricity with intent to evict her from the house. The appellant did not change his behaviour and used to cause her marpeet. He has made the false grounds for divorce hence the petition be dismissed. ( 4. ) ON the basis of the pleadings of the parties, several issues were framed by the trial Court. Both the parties adduced the evidence and after appreciating the evidence trial court found that the appellant has failed to prove the case hence divorce petition was dismissed. Being aggrieved by the impugned judgment and decree passed by the court below, the instant appeal has been preferred by the appellant on the grounds mentioned in the memo of appeal. ( 5. ) SHRI Pradeep Naveria, learned counsel for the appellant submitted that the court below has not appreciated the evidence in proper perspective. The trial Court erred in holding that the respondent did not treat the appellant with cruelty hence the finding is erroneous. Learned counsel further submitted that the appellant and respondent are residing separately. The respondent has been shifted to State of Chhattisgarh due to allocation hence there are bleak and remote chances of cohabitation in between them hence the marriage be dissolved. ( 6. Learned counsel further submitted that the appellant and respondent are residing separately. The respondent has been shifted to State of Chhattisgarh due to allocation hence there are bleak and remote chances of cohabitation in between them hence the marriage be dissolved. ( 6. ) ON the contrary, Shri J. A. Shah, learned counsel appearing for the respondent supported the judgment and decree passed by the court below mainly contending that the appellant himself is responsible for desertion. Trial Court has rightly appreciated the evidence, therefore, the finding of the court below is proper and hence does not call for interference in the appeal. ( 7. ) THE main point for consideration in this appeal is that whether the court below has committed any illegality in dismissing the petition filed by appellant/plaintiff under Section 13 of the Hindu Marriage act, 1955. ( 8. ) SECTION 13 of Hindu Marriage Act provides for grant of divorce in certain cases. It enacts that any marriage solemnised whether before or after the commencement of the Act may be dissolved on a petition presented either by the husband or by the wife on any of the grounds specified therein. Clause (i-a) of sub-section (1) of Section 13 declares that a decree of divorce may be passed by a court on the ground that after the solemnization of marriage, the opposite party has treated the petitioner with cruelty. ( 9. ) EXPRESSION cruelty includes both (i) physical cruelty; and (ii)mental cruelty. The concept of cruelty has been dealt with in halsburys Laws of England (Vol. 13, 4th Edn. , Para 1269) as under: "1269. . . . The general rule in all cases of cruelty is that the entire matrimonial relationship must be considered, and that rule is of special value when the cruelty consists not of violent acts but of injurious reproaches, complaints, accusations or taunts. In cases where no violence is averred, it is undesirable to consider judicial pronouncements with a view to creating certain categories of acts or conduct as having or lacking the nature or quality which renders them capable or incapable in all circumstances of amounting to cruelty; for it is the effect of the conduct rather than its nature which is of paramount importance in assessing a complaint of cruelty. Whether one spouse has been guilty of cruelty to the other is essentially a question of fact and previously decided cases have little, if any, value. The court should bear in mind the physical and mental condition of the parties as well as their social status, and should consider the impact of the personality and conduct of one spouse on the mind of the other, weighing all incidents and quarrels between the spouses from that point of view; further, the conduct alleged must be examined in the light of the complainants capacity for endurance and the extent to which that capacity is known to the other spouse. " ( 10. ) IN Dastane Vs. Dastane, AIR 1975 SC 1534 , the Supreme court has observed thus: "that where an allegation of cruelty is made, the inquiry in any case covered by that provision had to be whether the conduct charged as cruelty is of such a character as to cause in the mind of the petitioner a reasonable apprehension that it will be harmful or injurious for the petitioner to live with the respondent. It was also pointed out that it was not necessary, as under the English law, that the cruelty must be of such a character as to cause danger to life, limb or health, or as to give rise to a reasonable apprehension of such a danger though, of course, harm or injury to health, reputation, the working character or the like would be an important consideration in determining whether the conduct of the respondent amounts to cruelty or not. What was required was that the petitioner must prove that the respondent has treated the petitioner with such cruelty as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the respondent. ( 11. ) IN Smt. Maya v. Brij Nath, AIR 1982 Delhi 240, while dealing with the concept of cruelty in the Hindu Marriage Act, the court observed as under: "cruelty has not been defined in the Act. But it is now well settled that the conduct should be grave and weighty so as to make cohabitation virtually unendurable. It must be more serious than the ordinary wear and tear of marriage. But it is now well settled that the conduct should be grave and weighty so as to make cohabitation virtually unendurable. It must be more serious than the ordinary wear and tear of marriage. The cumulative conduct taking into consideration the circumstances and the background of the parties has to be examined to reach a conclusion whether the act amounts to cruelty. The petitioner in a divorce petition has to prove that he was treated with cruelty. The burden of proving the cruelty lies on him. " ( 12. ) THE Supreme Court in the case of V. Bhagat v. Mrs. D. Bhagat, AIR 1994 SC 710 , has defined mental cruelty in the following manner : "mental cruelty in S. 13 (1) (ia) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be asked to put up with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. While arriving at such conclusion, regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made. " ( 13. ) IN Parveen Mehta v. Inderjit Mehta, (2002) 5 SCC 706 , the apex Court has held thus:- " (21) Cruelty for the purpose of section 13 (1) (ia) is to be taken as a behaviour by one spouse towards the other which causes reasonable apprehension in the mind of the latter that it is not safe for him or her to continue the matrimonial relationship with the other. Mental cruelty is a state of mind and feeling with one of the spouses due to the behaviour or behavioural pattern by the other. Unlike the case of physical cruelty, the mental cruelty is difficult to establish by direct evidence. It is necessarily a matter of inference to be drawn from the facts and circumstances of the case. A feeling of anguish, disappointment and frustration in one spouse caused by the conduct of the other can only be appreciated on assessing the attending facts and circumstances in which the two partners of matrimonial life have been living. The inference has to be drawn from the attending facts and circumstances taken cumulatively. In case of mental cruelty it will not be a correct approach to take an instance of misbehaviour in isolation and then pose the question whether such behaviour is sufficient by itself to cause mental cruelty. The approach should be to take the cumulative effect of the facts and circumstances emerging from the evidence on record and then draw a fair inference whether the petitioner in the divorce petition has been subjected to mental cruelty due to conduct of the other. " ( 14. ) IN Vinita Saxena v. Pankaj Pandit, (2006) 3 SCC 778 , it has been held thus:- "31. It is settled by a catena of decisions that mental cruelty can cause even more serious injury than the physical harm and create in the mind of the injured appellant such apprehension as is contemplated in the section. It is to be determined on whole facts of the case and the matrimonial relations between the spouses. To amount to cruelty, there must be such willful treatment of the party which caused suffering in body or mind either as an actual fact or by way of apprehension in such a manner as to render the continued living together of spouses harmful or injurious having regard to the circumstances of the case. 32. The word "cruelty" has not been defined and it has been used in relation to human conduct or human behaviour. It is the conduct in relation to or in respect of matrimonial duties and obligations. It is a course of conduct and one which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. 32. The word "cruelty" has not been defined and it has been used in relation to human conduct or human behaviour. It is the conduct in relation to or in respect of matrimonial duties and obligations. It is a course of conduct and one which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. There may be cases where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or the 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. 35. Each case depends on its own facts and must be judged on these facts. The concept of cruelty has varied from time to time, from place to place and from individual to individual in its application according to social status of the persons involved and their economic conditions and other matters. The question whether the act complained of was a cruel act is to be determined from the whole facts and the matrimonial relations between the parties. In this connection, the culture, temperament and status in life and many other things are the factors which have to be considered. 36. The legal concept of cruelty which is not defined by the statute is generally described as conduct of such character as to have caused danger to life, limb or health (bodily and mental) or to give rise to reasonable apprehension of such danger. The general rule in all questions of cruelty is that the whole matrimonial relation must be considered, that rule is of a special value when the cruelty consists not of violent act but of injurious reproaches, complaints, accusations or taunts. It may be mental such as indifference and frigidity towards the wife, denial of a company to her, hatred and abhorrence for wife, or physical, like acts of violence and abstinence from sexual intercourse without reasonable cause. It must be proved that one partner in the marriage however mindless of the consequences has behaved in a way which the other spouse could not in the circumstances be called upon to endure, and that misconduct has caused injury to health or a reasonable apprehension of such injury. There are two sides to be considered in case of cruelty. It must be proved that one partner in the marriage however mindless of the consequences has behaved in a way which the other spouse could not in the circumstances be called upon to endure, and that misconduct has caused injury to health or a reasonable apprehension of such injury. There are two sides to be considered in case of cruelty. From the appellants side, ought this appellant to be called on to endure the conduct? From the respondents side, was this conduct excusable? The court has then to decide whether the sum total of the reprehensible conduct was cruel. That depends on whether the cumulative conduct was sufficiently serious to say that from a reasonable persons point of view after a consideration of any excuse which the respondent might have in the circumstances, the conduct is such that the petitioner ought not be called upon to endure. " ( 15. ) IN Samar Ghosh v. Jaya Ghosh (2007) 4 SCC 511 , the Apex court has held thus: "99. 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. (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. (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 kindness 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. (xiii) 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. (xiii) 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. " ( 16. ) NOW we revert to the facts and circumstances of this case. There are allegations and counter allegations against each other since the very beginning of the marriage. The appellant earlier filed a divorce petition which was withdrawn in the year 1997. One criminal case was also launched against the appellant under Section 498-A of i. P. C. at the instance of respondent. This resulted into conviction and sentence of the appellant, but, later on, on the basis of compromise the appellant was acquitted from this charge. The proceedings for preventive measures under Section 151, 107/116 of the Code of criminal Procedure were also launched against the appellant. ( 17. ) THE evidence has been adduced on behalf of both the parties regarding the misbehavior, harassment and causing of marpeet with each other. But, in spite of they lived together at Damoh and respondent delivered a female child in 1998. It indicates that they have condoned the previous act, conduct and behaviour of each other and lived together peacefully. Therefore, the conduct thereafter needs to be considered whether it amounts to cruelty or not. ( 18. ) THE first allegation is that the family members of the respondent started living in his house in August, 1999 and he had to live with his other relatives. It does not indicate that he was not living in that house. The reason is that he himself has stated that the election material was kept in this house which he carried with the assistance of the police on 18. 09. 1999. If he was not living there, how he could have kept the election material there. Apart from it, the evidence of respondent is that appellant tried to withhold the essential supplies of water and electricity with intent to vacate the house. 09. 1999. If he was not living there, how he could have kept the election material there. Apart from it, the evidence of respondent is that appellant tried to withhold the essential supplies of water and electricity with intent to vacate the house. The supplies of essential services could only be restored at the intervention of Ashok swami, Union Leader of Third Class Employees Association. Now respondent has been allocated in the State of Chhattisgarh and there is no question of her occupying the house in question at Damoh so this is not a ground to bring his case within the ambit of cruelty. ( 19. ) ANOTHER alleged incident is of 05. 09. 1999. According to him the respondent made false complaint to Superintendent of Police, Damoh. He was called at police station Damoh but the respondent also reached there and on her assertion that the matter has been compromised no action was taken against him. Thus this act also does not bring the case of appellant within the ambit of cruelty. ( 20. ) NEXT alleged incident is of 18. 09. 1999. According to appellant the respondent was preventing him to carry the election material kept in the house, therefore, he has to take the assistance of police. Vijay kumar Mishra (AW-3) has been examined on behalf of the appellant to support the fact. But it does not reflect from the evidence of Vijay kumar Mishra that the respondent tried to prevent the appellant to carry the election material. His evidence is that she was saying that if he carried the election material he would not return to the house. So this is an indicative fact that respondent was trying that appellant should not leave the house and live with her. ( 21. ) IT has also been brought on record that respondent was taking help of Ashok Swami because appellant used to harass her. In such circumstances, it can not be said that she was having some illicit relations with him. ( 22. ) THE other allegations are that respondent used to misbehave with him with intent to downgrade him regarding his position and low profile. She used to harass him through her father who has been the police Inspector. She also threatened her to implicate in the false case and also caused marpeet. ( 22. ) THE other allegations are that respondent used to misbehave with him with intent to downgrade him regarding his position and low profile. She used to harass him through her father who has been the police Inspector. She also threatened her to implicate in the false case and also caused marpeet. The respondent has also given almost similar evidence that appellant himself was misbehaving with her. He used to cause her marpeet, therefore, she would have to lodge the f. I. R. under Section 498-A of I. P. C. He anyhow wanted to vacate his house. Thus the appellant himself was misbehaving and subjecting her to cruelty. ( 23. ) ON appreciation of the entire evidence, it reveals that the respondent wants to live with the appellant but appellant himself was trying to live separately. The appellant got his transfer from Khartuli to Sagar Division. Thereafter he was transferred to Damoh and within 4-5 months and respondent also got her transfer to this place. This indicates that she wanted to live with the appellant and in fact they lived together at Damoh where she gave birth to a female child. Again when the appellant was carrying the election material from the house she apprehend whether he would return to the house or not after carrying the material therefrom. It indicates that she was desiring that the appellant should live with her. No doubt, she has been allocated to the State of Chhattisgarh and the place is not too far to visit each other. Service at different place can not be a ground to dissolve the marriage. Generally the approach must be to preserve the marriage rather than to dissolve it. ( 24. ) LEARNED counsel for the appellant has placed the reliance on the decision rendered in the case of Suman Kapur Vs. Sudhir Kapur, (2009) 1 SCC 424, wherein the Apex Court has held thus: "36. There may, however, be cases were the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or the 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. There may, however, be cases were the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or the 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. The absence of intention should not make any difference in the case, if by ordinary sense in human affairs, the act complained of could otherwise be regarded as cruelty. Mens rea is not a necessary element in cruelty. The relief to the party cannot be denied on the ground that there has been no deliberate or wilful ill-treatment. " ( 25. ) LEARNED counsel for the appellant has also placed the reliance on the decision rendered in the case of Rishikesh Sharma v. Saroj sharma (2007) 2 Supreme Court Cases 263, wherein it has been held thus: "in the instant case the marriage is irretrievably broken down with no possibility of the parties living together again. It will not be possible for the parties to live together and therefore there is no purpose in compelling both the parties to live together. Therefore, the best course is to dissolve the marriage by passing a decree of divorce so that the parties who are litigating since 1981 and have lost valuable part of life can live peacefully for remaining part of their life. " ( 26. ) IT depends upon the facts and circumstances of the each case where the conduct of the parties amounts to cruelty or not. So far as the present case is concerned, the conduct of respondent, as discussed above, is not of such a nature, as to amounts cruelty, therefore, the appellant has failed to prove the ground of cruelty. The court below has discussed the evidence in great detail and considered every aspect of the matter. We do not find any infirmity in such finding hence requires no interference, therefore, this appeal deserves to be dismissed. ( 27. ) CONSEQUENTLY, appeal fails and is dismissed accordingly. The judgment and decree passed by the court below in Civil Suit No. 5-A/2000 dated 10. 10. 2003 is hereby affirmed. Appellant shall bear the cost of the respondent. Counsel fee is quantified as per schedule. Decree be drawn up accordingly.