JUDGEMENT Hemant Kumar Srivastava, J. 1. This appeal under Section 19 of the Family Court Act, 1984 is directed against the judgment and order dated 22.6.2009 passed by Additional Principal Judge (Additional Family Court) at Patna in Matrimonial Case No. 55 of 2001 (Rana Sujit Kumar Tuntun V/s. Jyoti Kumari) by which and whereunder the learned Additional Principal Judge dismissed the abovesaid Matrimonial suit on contest with cost. 2. The appellant (hereinafter referred to as husband) preferred the aforesaid Matrimonial Case under Section 13 of the Hindu Marriage Act, 1955 against the respondent (hereinafter referred to as wife) for divorce on the ground of desertion, cruelty and adultery. 3. The case of the husband is that his marriage was solemnized with the respondent-wife on 30.5.1997 according to Hindu rites and rituals. The couple was blessed with a female child on 28.6.1998. After the marriage, the wife came at the house of appellant (husband) but on 1.5.1999, she was taken away by her parents and thereafter, she never returned to her in-laws house though umpteen attempts were taken by the husband to take his wife to his house. Furthermore, the case of the husband is that whenever he went to the natal place of his wife with a view to take her back, he was mentally tortured by his wife as well as her parents. And, finally, on 23.11.1999, when respondent-wife flatly refused to accompany the appellant-husband, the husband filed a suit i.e. Matrimonial Case No. 4 of 2000 against his wife and others for restitution of his conjugal rights. But in spite of notice issued in the aforesaid suit, the wife did not appear in the said suit and subsequently, on 28.4.2000, the husband filed a petition in Family Court praying therein to proceed ex parte against the wife and, thereafter, a forged written statement was filed in the aforesaid suit on behalf of the wife. The learned Family Court started reconciliation proceeding but in the aforesaid reconciliation proceeding, the wife flatly refused to go alongwith the husband and thereafter, husband withdrew the aforesaid case of restitution of conjugal right and filed present suit for divorce. The learned Family Court started reconciliation proceeding but in the aforesaid reconciliation proceeding, the wife flatly refused to go alongwith the husband and thereafter, husband withdrew the aforesaid case of restitution of conjugal right and filed present suit for divorce. Further the case of the husband is that his wife had stayed at his home only for 6-7 months and in the aforesaid period, her behaviour was abnormal and aggressive and on several times, she attempted to flee away from the house of the husband and also misbehaved with the parents of husband. And lastly, she left her matrimonial home and she has been residing at her natal place since long. The husband also came to know from a confidential source that the marriage of his wife has been solemnized with another person. On the basis of aforesaid pleadings, the husband sought a decree for divorce. 4. The wife appeared before the learned court below and filed written statement denying all the pleadings placed by the husband before the learned court below. The specific case of the wife is that she was subjected to cruelty by her husband as well as his other family members in both ways; mentally and physically after the birth of a female child on account of non-fulfillment of demand of dowry and on account of the aforesaid reasons, she was compelled to reside at her natal place. It is also the specific case of the wife that she still wants to live with her husband if her husband gives assurance to protect her life and if she is kept by her husband with full honour and dignity. The wife also denied the story of her second marriage as well as the allegation of desertion, cruelty and adultery. 5. On the basis of the pleadings of the parties, the learned court below framed the following issues: (i) Is the case as framed maintainable? (ii) Has the petitioner got valid cause of action for the case? (iii) Has the petitioner been deserted by the Opposite Party (respondent) as alleged? (iv) Has the petitioner been treated with cruelty at the hands of the opposite party (respondent)? (v) Is the petitioner entitled to get his matrimonial tie with the opposite party (respondent) dissolved by a decree of divorce as prayed for? (vi) To what other relief/reliefs, if any, the petitioner is entitled to get? 6. (iv) Has the petitioner been treated with cruelty at the hands of the opposite party (respondent)? (v) Is the petitioner entitled to get his matrimonial tie with the opposite party (respondent) dissolved by a decree of divorce as prayed for? (vi) To what other relief/reliefs, if any, the petitioner is entitled to get? 6. Both parties led oral as well as documentary evidence and the learned court below having considered the pleadings as well as evidence adduced on behalf of the parties, dismissed the above- said suit passing the impugned order dated 22.6.2009 on the ground that husband could not succeed to prove the factum of cruelty, desertion as well as adultery. 7. The appellant-husband assailed the impugned judgment submitting that the learned court below did not consider the materials available on the record in right perspective and failed to appreciate the law laid down by this court as well as Honble Apex Court of this country. He further submitted that the materials available on the record would show that the relationship between the husband and wife has completely broken down and there is no chance of retrieval at all. He submitted that in the case of Samar Ghosh V/s. Jaya Ghosh reported in 2007(4) SCC 511 , it has been held by the Apex Court that "where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair and the marriage becomes a fiction though supported by a legal tie and 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 and in such like situations, it may lead to mental cruelty." Another decision cited by the learned counsel for the husband is (Sudhanshu Mauli Tripathi V/s. Meena Kumari) reported in 2010(2) PLJR 251 in which it has been held by Division Bench of this court that once the parties separate for whatever reason and the separation is followed by a petition of divorce, the process of break-down of the marriage is set in motion and if there is no chance of marriage being retrieved, the continuance of such marriage would itself amount to cruelty. 8. 8. In the backdrop of the aforesaid two decisions, learned counsel for the husband submitted that in the instant case, admittedly, the husband and wife are leading their life separately since long and there is no cohabitation between them since long period. Therefore, the aforesaid circumstance clearly indicates this fact that marriage between the husband-appellant and wife-respondent has already been broken down and in the aforesaid circumstances, it would not be proper to permit them to continue the aforesaid marriage but the learned court below did not consider the aforesaid circumstance and arbitrarily dismissed the suit filed by the husband. 9. He further submitted that the appellant-husband has never pleaded the factum of adultery but in spite of that the learned court below not only framed the issue of adultery but also dealt with it under issue no. 1. 10. He further submitted that admittedly wife-respondent filed Criminal Case against the husband-appellant as well as his family members and in that case, the family members of the husband-appellant were sent to jail. And, therefore, the aforesaid circumstance also amounts to cruelty towards the husband and his other family members but the learned court below did not take notice of the aforesaid fact and summarily dismissed the suit without discussing the abovesaid circumstances. 11. On the other hand, learned counsel appearing for wife-respondent supported the impugned judgment arguing that the wife is always ready to lead her conjugal life with her husband and she had never refused before any court to lead her conjugal life with her husband but she has only one caveat that she should be protected by her husband and treated with honour and dignity by him. He further submitted that every matrimonial conduct, which may cause annoyance to the other, may not amount to cruelty and mere trivial irritations, quarrels between spouses which happen in day-to-day marital life, may also not amount to cruelty. He further submitted that no doubt the wife-respondent filed a Criminal Case under Section 498A of the IPC against her husband as well as in-laws but mere filing of a criminal case seeking justice never comes under the ambit of cruelty. He further submitted that the wife-respondent was ill-treated by husband-appellant and his family members and thereafter, she was taken to her natal place by her parents. He further submitted that the wife-respondent was ill-treated by husband-appellant and his family members and thereafter, she was taken to her natal place by her parents. So the aforesaid circumstance suggests that the wife has been residing at her natal place on account of sufficient reasons and, therefore, it cannot be said that the wife has deserted her husband. Learned counsel for wife-respondent prays to dismiss this appeal. 12. Having heard the contentions of the parties, we went through the records alongwith the lower court record. The point arises for consideration as to whether husband-appellant has been able to prove the grounds of adultery, cruelty and desertion as pleaded by him and whether he is entitled for decree of divorce on the basis of aforesaid grounds. 13. Certain facts are admitted in this case. It is an admitted position that the marriage of husband-appellant was solemnized with wife-respondent on 30.5.1997 and out of the aforesaid wedlock, the wife- respondent gave birth to a female child on 28.6.1998 and after the birth to the aforesaid female child, the dispute arose between the parties and, thereafter, the wife- respondent started residing at her parents house. 14. Learned court below has dealt with the issue Nos. 2 to 6 at Paragraph-6 of the impugned judgment and came to the conclusion that the husband-appellant failed to prove the factum of desertion and cruelty. And, accordingly, the learned court below refused to dissolve the marriage of the parties by passing a decree of divorce. 15. Similarly, learned court below has dealt with the issue of adultery under issue No. 1 at Paragraph-5 of the impugned judgment and held that since husband has not made the alleged adulterer as co-respondent and has also not sought any leave from the court on the ground as mentioned in Rule 214(16) of the Civil Court Rules, the suit as framed is not maintainable. 16. The stand of the husband-appellant is that he has not taken ground of adultery in his plaint, so the learned court below has wrongly framed and decided the aforesaid issue but the perusal of paragraph-10 of the plaint of the husband as well as from perusal of the paragraph-20 of deposition of P.W. 1, who is the husband, it is explicit clear that the husband has impliedly pleaded the factum of adultery against his wife. Apart from this, the paragraphs-5 & 11 of deposition of O.P. No. 2, who is wife-respondent, also clearly goes to show that the husband-appellant has questioned the paternity of his child by putting certain questions to the O.P. No. 1 i.e. wife during her cross-examination and therefore, the aforesaid circumstance, clearly goes to show that the husband has brought the above said suit on the ground of adultery also. And, therefore, in our view, the learned court below has rightly decided the issue No. 1 against the husband. 17. The question of desertion and cruelty has been dealt with by learned court below at Paragraphs-6, 7 & 8 of the impugned judgment. To prove the factum of desertion and cruelty, the husband examined altogether four witnesses including himself. The husband has been examined in the case as P.W. 1 but he has nowhere stated about any specific instance which could show that he was mentally tortured by his wife. He has stated at paragraphs-15 & 18 of his deposition that when he went to the parents house of his wife and requested her to accompany him, his wife refused to go alongwith him. The aforesaid instance is not sufficient to constitute cruelty because specific case of the wife is that she was being ill-treated by her husband. Similarly, P.W. 4 is the father-in-law of the wife and he has also not stated any specific instance of cruelty of the wife-respondent. This witness simply stated at Paragraph-2 of his deposition that only on one occasion, the wiferespondent left her matrimonial home after confining her husband in a room. 18. The depositions of wife as well as her witnesses show that she was illtreated by her husband as well as family members of husband and that was the reason she filed a criminal case against them. And, therefore, the aforesaid circumstance goes to show that the wife was residing separately From her husband appellant on account of sufficient reasons.