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2010 DIGILAW 658 (GAU)

Beauty Karmakar v. Basu Karmakar

2010-08-26

C.R.SARMA, RANJAN GOGOI

body2010
JUDGMENT C.R. Sarma, J. 1. This appeal is directed against the judgment and decree, dated 7.6.2008, passed by the learned Sessions Judge in T.S.(Divorce) No. 06 of 2007. By the impugned judgment and decree, the learned trial Judge granted a decree of dissolution of marriage, be the Act and that she was entitled when the Appellant-wife and the Respondent-husband, directing the Respondent-husband to pay monthly allowance @ Rs.2,000 per month for the maintenance of the Appellant-wife and another amount of Rs.1,500 per month for maintenance of their minor son. The case of the Respondent-husband, who instituted the suit, may, in brief, be stated as follows: On 3rd July, 2003, the Respondent and the Appellant got married and after solemnizing their marriage, the said couple used to live in their matrimonial home at Guwahati. On 21.12.2003, the Respondent decided go to Kolkata, in connection with his business and the Appellant-wife also wanted to accompany him, but in view of the pregnancy of his wife, i.e., Appellant, the Respondent declined to take her to Kolkata. Being aggrieved and annoyed by the refusal of her husband to take her to Kolkata, she, on 21.12.2003 itself, picked certain altercation with the members of her in-laws and scolded her old parents-in-law in abusive words. Disregarding the request, made by her parents-in-law, the Appellant-wife left the matrimonial home for her parents' house at Bongaigaon. After his return from Kolkata, the Respondent-husband approached the Appellant to persuade her return to the matrimonial house, but the Appellant refused to respond. According to the Respondent, he himself went to Bongaigaon, in the first part of January, and on 18.1.2004, sent his father and younger brother to bring back the Appellant, but the latter refused to return to the matrimonial home. Again, on 15.2.2004, the Respondent along with his friend Sri B.J. Deka visited the paternal house of the Appellant, but they were misbehaved by the Appellant. According to the Respondent, on 22.5.2004, on being requested by him, Sri Krishna Datta also visited the paternal house of the Appellant, but the father of the Appellant, instead of sending the Appellant to her matrimonial home, assaulted Sri Datta causing injuries to him, for which an FIR was lodged with the Bongaigaon police and in the trial, arising out of the said FIR, the father and the brother of the Appellant were convicted and sentenced to suffer imprisonment. Thereafter, the Appellant filed a suit for restitution of conjugal right and the same got dismissed for default. After the disposal of the said suit, the Appellant filed a petition under Section 125, Code of Criminal Procedure against the Respondent, seeking maintenance and the same has been disposed of by granting maintenance @ Rs.2,000 per month in favour of the Appellant and Rs. 1,500 in favour of her child. According to the Respondent, he has been living alone without the company of his wife from 21.12.2003 and as such he suffered mental torture, pain and loss of status and prestige in the society. He further averred that the leaving of the matrimonial home by the Appellant during his absence and her refusal to return to join the Respondent's life amounted to cruelty against the Respondent. The Respondent also pleaded that his marriage with the Appellant had irretrievably broken down and that there was no possibility of living together. In view of the above, the Respondent by filing an application under Section 13(ia) of the Hindu Marriage Act ('the Act') prayed for a decree of divorce by way of dissolving the marriage tie of the Respondent with the Appellant. 2. The Appellant-wife contested the Respondent's claim by filing a written statement. Admitting the marriage between the parties, the Appellant-wife denied all the allegations brought against her. She alleged that the parents of the Respondent used to provoke the Respondent to misbehave with her and that her husband, i.e., the Respondent too used to indulge in intoxication and caused physical torture, demanding the Appellant to bring money from her parents' house. It is also alleged that, due to her failure to meet the said demand, the Respondent and his parents took away all her ornaments and that as she was pregnant, at that time, apprehending further assault on her, her brother-in-law brought her to her parents' house at Bongaigaon, wherein she has been living since then. The Appellant categorically denied the claim of the Respondent that he had visited her parents' house for the purpose of taking her to the matrimonial home. The Appellant categorically denied the claim of the Respondent that he had visited her parents' house for the purpose of taking her to the matrimonial home. Admitting the institution of a suit for restitution of conjugal right, the Appellant stated that the said suit was dismissed for default and that the Appellant was compelled to file a petition, under Section 125 of the Code of Criminal Procedure, 1973 (' Code of Criminal Procedure ') seeking maintenance allowance for herself as well as her minor son. In her written statement, the Appellant contended that the Respondent was not entitled to get a decree for dissolution of marriage under Section 13(1)(a) of the Act and that she was entitled to permanent alimony from the Respondent till her re-marriage. She prayed for dismissal of the suit with permanent alimony @ Rs.5,000 per month for herself and her son. Upon the pleadings of both the parties, the learned trial Judge framed the following issues: (i) Whether the Respondent on 21.12.2008 left the house of the Petitioner in the absence of the Petitioner by declaring in presence of the parents of the Petitioner that she would leave for Bongaigaon for ever? (ii) Whether the Petitioner came to the house of the Respondent situated at Bongaigaon to bring back the Respondent but the Respondent refused to go to house of the Petitioner? (iii) Whether the Petitioner faced any mental torture pain and agony including cruelty from the Respondent ? (iv) Whether the Petitioner is entitled to get the decree of divorce as prayed for? (v) What relief/reliefs, if any the parties are entitled under law and equity? 3. To substantiate their respective claims both the parties examined two witnesses each. 4. In deciding the Issue Nos. (i) and (ii) aforesaid, the learned trial Judge came to the conclusion that though the Respondent-husband alleged that his wife went to her parents' house, on 21.12.2008 that too in his absence, he could not establish that she left the matrimonial house declaring that she would not stay with the Petitioner-husband any further and that the Respondent, i.e., the Petitioner, in the suit aforesaid had failed to substantiate his plea that he had approached the Appellant-wife for the purpose of taking her back to their marital home. No cross appeal or objection has been preferred against the said findings. No cross appeal or objection has been preferred against the said findings. Therefore, in the absence of any challenge to the said findings, the same attained finality in the eye of law. 5. The Respondent-husband contended that, apart from sending his parents and brother, he, along with his friend Sri B.J. Deka, went to the paternal house of his wife, but failed to persuade her to return to the marital home. According to him, again on 22.5.2004, he sent Sri Krishna Datta to his in-law's house, but Sri Datta was assaulted by the members of his in-law's house. In order to substantiate the said claim, the husband could have examined his parents, his brother, his friend Sri B.J. Deka and Sri Krishna Datta. But for the reasons best known to him, the husband chose not to examine any one of the said vital witnesses. 6. PW2, Sri Bibhu Sarkar stated that he came to know from the parents of the Petitioner, i.e., husband that the Respondent-wife tortured the Petitioner and his parents mentally. The source of the said information, received by PW2, was the parents of the Respondent. Therefore, the evidence given by PW1, regarding torture, etc., being hearsay evidence, cannot be acted upon. In view of the above, the learned trial Judge rightly held that the husband failed to substantiate his plea that he had approached his wife, i.e., the Appellant for the purpose of bringing her back to the marital home and that she had refused to come back to his house. 7. Now the question is whether the husband/Respondent could establish a case for getting a decree of divorce. 8. From the pleadings of the Respondent - Petitioner, it is found that he claimed divorce on the ground of cruelty. As provided by Section 13(1)(a) of the Act, 1955, cruelty is also a ground for dissolution of marriage by a decree of divorce. It is settled law that the burden of proof of cruelty lies on the party, who brings such allegation and the standard of proving cruelty is not as high as that of a criminal prosecution. The term cruelty as mentioned in Section 13(1)(a) has not been defined in the Act. It has to be understood in relation to human conduct and behaviour, which is sufficient to adversely affect the other in respect of their matrimonial duties and obligations. The term cruelty as mentioned in Section 13(1)(a) has not been defined in the Act. It has to be understood in relation to human conduct and behaviour, which is sufficient to adversely affect the other in respect of their matrimonial duties and obligations. Cruelty, which may be both mental or physical, can be intentional or unintentional. When the alleged cruelty is physical, there is no difficulty in ascertaining the same. But when the alleged cruelty is mental cruelty, an enquiry is to be made regarding the nature and gravity of the alleged cruel treatment. Because it affects the mind of the spouse. In the case of Shobha Rani v. Madhukar Reddy (1988) 1 SCC 105 , the Supreme Court, while laying down the test of cruelty observed - The truelty may be mental or physical, intentional or unintentional. If it is physical the court will have no problem to determine it. It is a question of fact and degree. If it is mental the problem presents difficulty. First, the enquiry must begin as to the nature of the cruel treatment. Second, the impact of such treatment on the mind of the spouse. Whether it caused reasonable apprehension that it would be harmful or injurious to live with the other. 9. In view of the ratio laid down by the Supreme Court in the above referred case, in case of mental cruelty, the person bringing the allegation of such cruelty, must establish that the conduct and the behaviour of the spouse of such person is sufficient to infer reasonable apprehension that it would be harmful or injurious to live with such spouse. The facts pleaded and established by evidence must lead to the existence of such mental cruelty. The Supreme Court in the above referred case further observed - The cruelty alleged may largely depend upon the type of life the parties are accustomed to or their economic and social conditions. It may also depend upon their culture and human values to which they attach importance. We, the Judges and lawyers, therefore, should not import out own notions of life. We may not go in parallel with them. There may be a generation gap between us and the parties. It would be better if we keep aside our customs and manners. It would be also better if we less depend upon precedents. We, the Judges and lawyers, therefore, should not import out own notions of life. We may not go in parallel with them. There may be a generation gap between us and the parties. It would be better if we keep aside our customs and manners. It would be also better if we less depend upon precedents. Because as Lord Denning said in Sheldon v. Sheldon "the categories of cruelty are not closed". Each case may be different. We deal with the conduct of human beings who are not generally similar. Among the human beings there is no limit to the kind of conduct which may constitute cruelty. New type of cruelty may crop up in any case depending upon the human behaviour, capacity or incapability to tolerate the conduct complained of. Such is the wonderful (sic) realm of cruelty." 10. In the case of Rakesh Sharma v. Survi Sharma AIR 2002 Raj. 138 , the Supreme Court observed - Thus, 'cruelty' postulates a treatment of the applicant with such cruelty as to cause a reasonable apprehension in the applicant's mind that it will be harmful or injurious for him/her to live with the other spouse. 11. In the case of Naval Kishore Somani v. Poonam Somani AIR 1999 AP 1 while discussing the term 'cruelty', the Supreme Court observed - It is necessary to remember that the term "cruelty" has nowhere been defined in the Act. It is also not possible to define the same. Human conduct is so complex that a rigid definition of 'cruelty' is not possible. The Legislature has purposely avoided to define "cruelty". It is for the courts to interpret, analyse and define as to what would constitute 'cruelty' in the facts of a particular case. While deciding, so many factors have to be borne in mind. In particular social status, customs, traditions, caste and the community, upbringing and the public opinion which prevails in particular society, as well as in the particular locality. Thus, before deciding as to whether "cruelty" has been proved or not variety of factors have to be considered. It is however, almost accepted by and large that cruelty means such conduct of the other side by which the Petitioner cannot reasonably be expected to live with the Respondent. This is of course a very broad approach. Thus, before deciding as to whether "cruelty" has been proved or not variety of factors have to be considered. It is however, almost accepted by and large that cruelty means such conduct of the other side by which the Petitioner cannot reasonably be expected to live with the Respondent. This is of course a very broad approach. When a Petitioner comes to the court for seeking relief on the ground of "cruelty", it is expected that the Petitioner would give particulars of the alleged cruelty. It is not that by merely averring in the petition that the Respondent treated the Petitioner with cruelty, the Petitioner can hope to make out his case. Particulars of "cruelty" have to be given. The mere fact that parties are unhappy of some usual wear and tear or due to some failings in the temper, would not be sufficient to spell out a case of cruelty. This is because different temperaments of spouses. The expression "cruelty" comprehends both physical and mental cruelty. It is not possible to say that every averments or allegations made against the other party showing some incompatibility amount necessarily to "cruelty". It is of course true that of finding out whether conduct of one party towards other amounts of "cruelty" it is not necessary to prove the intention of the Respondent irrespective of the intention of the Respondent if his/her conduct or behaviour makes it impossible to cohabit for any reasonable person, that would constitute "cruelty". It is the result which is more important. Therefore, it is for the Petitioner to state and prove as to what was the effect on him of the alleged conduct or behaviour of the Respondent. As pointed out earlier, it is quite possible that a particular conduct may amount of 'cruelty' in one case but the same conduct necessarily may not amount to "cruelty" due to change of various factors, in different set of circumstances. We are, therefore, of the view that it is essential for the Petitioner, who claims relief, to prove that a particular/part of conduct or behaviour resulted in "cruelty" to him. No prior assumptions can be made in such matters. Meaning thereby that it cannot be assumed that particular conduct will under all circumstances amount to "cruelty" vis-a-vis the other party. The aggrieved party has to make a specific case that the conduct of which exception is taken amount of "cruelty". No prior assumptions can be made in such matters. Meaning thereby that it cannot be assumed that particular conduct will under all circumstances amount to "cruelty" vis-a-vis the other party. The aggrieved party has to make a specific case that the conduct of which exception is taken amount of "cruelty". 12. In the light of the above decisions, rendered by the Supreme court, it is abundantly clear that the Petitioner, claiming divorce, under Section 13(1)(a) of the Act, on the ground of cruelty, on the part of other spouse is required to establish that the conduct and behaviour of such other spouse is sufficient to give reasonable apprehension that the living with the said spouse would be harmful or injurious to the Petitioner. 13. In the backdrop of the above principle of law, we are required to examine if the Respondent-husband, in the case in hand, could establish existence of such apprehension. 14. From the pleadings of the Petitioner, as revealed from the petition filed under Section 13(i) of the Act, it is found that he clearly averred that, on 21.5.2003, i.e., the date on which he left for Kolkata, his wife, i.e., the Appellant, after picking up some altercation with the family members and his old parents and scolding the members of her in-laws in abusive words, left the marital home and continued to stay in her parents' house at Bongaigaon, where she delivered a male child. It is further pleaded that in spite of repeated approach by himself as well as his parents, his brothers and other relatives, the Appellant-wife refused to come back and that she had misbehaved with the persons, who went to bring her back. It is also stated, in the said petition, that the Appellant, as Petitioner, instituted a case under Section 125, Code of Criminal Procedure, seeking maintenance allowance for her behalf, as well as on behalf of her minor child. After making the above averments, in his petition aforesaid, the Respondent Petitioner at paragraphs 12, 13, 14 and 15 stated the following grounds for seeking divorce: 12. That the Petitioner has been living all alone since 21.12.2003 till this date facing extreme hardship and problems in his day to day life tolerating heavy mental torture, pain and agony. 13. After making the above averments, in his petition aforesaid, the Respondent Petitioner at paragraphs 12, 13, 14 and 15 stated the following grounds for seeking divorce: 12. That the Petitioner has been living all alone since 21.12.2003 till this date facing extreme hardship and problems in his day to day life tolerating heavy mental torture, pain and agony. 13. That the entire acts of the Respondent for living separately to such a long period has lost social status, prestige, position of the Petitioner and his family. 14. That in order to get rid of such long pathetic mental pain and sufferings from the Respondent and his family a decree of divorce is utmost necessary on the part of the Petitioner. 15. That due to the above facts, it is impossible for the Petitioner to live with the Respondent as husband and wife any more, and the marriage between the Petitioner and Respondent has irretrievably been broken down and there is no possibility to live with the Respondent as husband and wife, for which the Petitioner has filed this petition for a decree of dissolution of marriage between the Petitioner and Respondent before this Hon'ble court. 15. The Appellant-wife, by filing a written statement, categorically denied the said allegations, brought against her, and stated that due to the ill treatment meted out to her by her in-laws, she had to be brought to her parents' house by her brother-in-law. She categorically denied the claim of her husband that he had ever visited her parents' house to take her back although she was waiting with high hope and aspiration to lead a conjugal life with her husband (Respondent). 16. In his evidence given as PW1, the said husband, supporting his pleadings, stated that, on 21.12.2003, due to his refusal to take the Appellant-wife to Kolkata, she left the marital home, after scolding her parents-in-laws in abusive words and that in spite of repeated approach made by him, the members of his family, his friends Sri B.J. Deka and Sri Krishna Datta, the Appellant refused to return to the marital home. In order to substantiate his said contention regarding attempts, taken by him, to bring back the Appellant to the marital home, the husband-Respondent ought to have examined the said persons, who, as stated by the Respondent, had visited the Appellant in her parents' house. In order to substantiate his said contention regarding attempts, taken by him, to bring back the Appellant to the marital home, the husband-Respondent ought to have examined the said persons, who, as stated by the Respondent, had visited the Appellant in her parents' house. By failing to examine the said persons, i.e., the members of his family and his friends, namely, Sri B.J. Deka and Sri Krishna Datta, the Respondent miserably failed to substantiate his claim that attempts were made by him to bring back the Appellant and that the Appellant had misbehaved with the Respondent as well as the persons, who had approached her. In his evidence given under order 18, Rule 4, Code of Civil Procedure, while deposing regarding cruelty, the Respondent-husband, at paragraphs 11 to 15 of his affidavit, reiterated the statements made in paragraphs 12 to 15 of his petition aforesaid. 17. PW 2, namely, Sri Bibhu Sarkar stated nothing about any conduct on the part of the Appellant indicating cruelty, if any. He stated that he came to know from the parents of the Petitioner that the Respondent, i.e., the wife tortured the Petitioner and his family members. This statement of PW2, being hearsay evidence and a bald statement, lacks evidentiary value to inspire confidence to believe that the said wife had treated her husband with cruelty. A careful scrutiny of the evidence of PW1 and the pleadings, made by him does not reveal anything, substantive, to believe that there existed any ground for reasonable apprehension, on the part of the husband-Petitioner, that his living with his wife, i.e., the Appellant would have been harmful and injurious. The facts that the wife-Appellant has been living in her parents' house along with her child and that she instituted a case, under Section 125, Code of Criminal Procedure, seeking maintenance allowance for herself and her minor child, cannot be sufficient and good grounds to give rise to the apprehension that the living of the husband with the said wife would be injurious and harmful. That apart, from the pleadings of the Petitioner, as well as from the evidence adduced by him, it is found that till 21.12.2003, i.e., the date, on which he left for Kolkata and the date on which the Appellant-wife left the marital home for her parents' house, he had no difficulty in living with the said wife. That apart, from the pleadings of the Petitioner, as well as from the evidence adduced by him, it is found that till 21.12.2003, i.e., the date, on which he left for Kolkata and the date on which the Appellant-wife left the marital home for her parents' house, he had no difficulty in living with the said wife. That apart, as stated by the Petitioner till 22.5.2004, he was repeatedly trying to bring his wife back to continue their marital life. Therefore, till the said date, the Appellant-wife was acceptable to her husband, i.e., the Petitioner-husband. The pleaded case of the husband is that as his wife is living separately for such a long time, he lost his social status, prestige and position and that in order to get rid of such mental pain and suffering he is in need of a decree of divorce. It is also averred that it is impossible for the Respondent to live with the said wife any more as the marriage between the said couple has irretrievably broken down. It is settled law that irretrievable break down of marriage is not a ground for dissolution of marriage under the Act. Therefore, in our considered opinion, the Petitioner, seeking divorce, in the circumstances aforementioned, failed to substantiate as to how and in what manner, the living of the wife-Appellant in her parents' house lowered his social status and prestige, thereby causing cruelty to him. The Respondent-husband failed to establish any misconduct or misbehaviour on the part of his wife to show that her conduct was sufficient to constitute cruelty, so as to cause reasonable apprehension, in the mind of the husband, to believe that it would be harmful or injurious for him to live with his said wife. 18. The learned trial Judge further observed that the Appellant-wife failed to prove the allegation of ill treatment and misbehaviour, brought by her against husband, by adducing reliable evidence, and that, she after leaving the marital home on 21.12.2003, failed to return to the Petitioner’s house. The learned trial Judge, having regard to the nature of the accusation, made against the Petitioner, opined that the said allegations amounted to mental pain, agonies and suffering for the Petitioner and that the same caused mental cruelty to the Petitioner. The learned trial Judge, having regard to the nature of the accusation, made against the Petitioner, opined that the said allegations amounted to mental pain, agonies and suffering for the Petitioner and that the same caused mental cruelty to the Petitioner. It is also observed that the wife-Appellant failed to return to her marital home, in spite of repeated requests made by the Petitioner and filing of a suit for restitution of conjugal right. With the above observations, the learned trial Judge came to the finding that living of the said couple together would not be possible and as such there was no alternative but to grant a decree of divorce. It is settled law that a decree of divorce by dissolution of marriage can be granted only on the grounds, mentioned in Section 13(1)(a) of the Act. In his petition under Section 13(1)(a) of the Act, the husband-Respondent, as indicated above, has taken cruelty as the ground for dissolution of the marriage. Except the allegation of scolding the parents-in-law in abusive words and leaving the house, defying their request, no other allegation has been made against the wife-Appellant with regard to her conduct and behaviour during her stay in the marital home. Even after her leaving of the marital home, there is no allegation of any misbehaviour or misconduct on the part of the Appellant. The husband-Respondent failed to substantiate the allegation that his wife, i.e., the Appellant had left the marital home without permission and after scolding her parents-in-law. If she conducted herself in the said way, there was no difficulty for the husband-Respondent to establish the said allegations by examining his parents or any other members of his family. Admittedly, as he had already left for Kolkata, in view of his absence in his residence at Guwahati on the relevant day, he had no personal knowledge about the alleged conduct of his wife. His parents as well as other members of his family were the best persons to support his said allegation. Therefore, by failing to examine any member of his family, the husband-Respondent failed to substantiate/establish the said allegation, brought against the Appellant-wife. The Petitioner, who examined himself as PW1, did not whisper anything against the conduct and behaviour, so as to show that his said wife had ill treated him or misbehaved with him. Therefore, by failing to examine any member of his family, the husband-Respondent failed to substantiate/establish the said allegation, brought against the Appellant-wife. The Petitioner, who examined himself as PW1, did not whisper anything against the conduct and behaviour, so as to show that his said wife had ill treated him or misbehaved with him. In his evidence given as PW 1, the husband-Respondent did not state that his wife had levelled any ill founded or injurious allegation, affecting his mental peace. He did not state anything to substantiate that there was sufficient ground for reasonable apprehension that his living with the said wife would be injurious and harmful. Filing of a petition, under Section 125, Code of Criminal Procedure, seeking maintenance for herself and her minor son cannot be treated as cruelty within the meaning of Section 13(1)(a) of the Act. In the case of v. Bhagat v. D. Bhagat AIR 1994 SC 710 , which case has been referred by the learned trial Judge, the wife-Respondent, in her written statement alleged that the Petitioner-husband suffered from psychopathic disorder or other disorders, that the Petitioner lost his mental health, that he was a mental patient and that all the members of his family including his grand father were lunatics. Mr. V. Bhagat, i.e., the Appellant, who was a practicing advocate in the Supreme Court and the High Court filed a divorce petition against his wife on the ground of cruelty. The wife was also working as Vice President in a public sector corporation. In her written statement as well as the questions put by her counsel in the cross-examination, had made the allegations that the Petitioner was a mental patient, that he was not a normal person, that he required psychological treatment to restore his mental health and that he was suffering from paranoid disorder and mental hallucinations and that he and all the members of his family were lunatics. The Supreme Court while granting dissolution of marriage observed that the wife-Respondent resolved to live in agony only to make the life a miserable hell for the Petitioner as well. The Supreme Court while granting dissolution of marriage observed that the wife-Respondent resolved to live in agony only to make the life a miserable hell for the Petitioner as well. The Supreme Court observed: It is relevant to notice that the allegations of the wife in her written statement amount in effect to "psychopathic disorder or any other disorder" within the meaning of the Explanation to Clause (iii) of Sub-section (1) of Section 13, though, she has not chosen to say that on that account she cannot reasonably be expected to live with the Petitioner-husband nor has she chosen to claim any relief on that ground. Even so, allegations of 'paranoid disorder', mental patient, needs psychological treatment to make him act a normal person, etc., are there coupled with the statement that the Petitioner and all the members of his family are lunatics and that a streak of insanity runs through his entire family. These; assertions cannot but constitute mental cruelty of such a nature that the Petitioner, situated as he is and in the context of the several relevant circumstances, cannot reasonably be asked to live with the Respondent thereafter. The husband in the position of the Petitioner herein would be justified in saying that it is not possible for him to live with the wife in view of the said allegations. 19. In the present case before us, there is nothing substantive to find that the wife had made any such allegation against her husband or the members of the family of her husband, or put such questions to him in the witness box. As discussed above, the Respondent-husband, who examined himself as PW 1, did not state anything indicating that his wife had made any false allegations affecting his mental peace and prestige and position in society. Therefore, the fact of v. Bhagat (supra) and the present case being different, the observations made in the above referred case will not help the Respondent-husband. 20. That apart, the Respondent-husband in his evidence given as PW1 stated that on 22.5.2005, a request was made to the father of the Appellant to forget all the past happenings and to allow the Appellant to go back to her husband's house. 20. That apart, the Respondent-husband in his evidence given as PW1 stated that on 22.5.2005, a request was made to the father of the Appellant to forget all the past happenings and to allow the Appellant to go back to her husband's house. This statement of the husband, made on oath, sufficiently indicate that no harm or damage was caused to the husband-Respondent by any conduct on the part of his wife and that the said wife was acceptable to the Respondent-husband. In the case of Rakesh Sharma (supra), the husband, i.e., Rakesh Sharma filed an application for divorce on the grounds of cruelty and desertion. The wife-Respondent made allegations against her husband alleging that her husband and his father consumed liquor and smoked jointly, that they often used filthy and abusing language, husband is suffering from bronchitis and on account of that, her minor son had also got infection, that the mother of the husband was also suffering from mental disorder and other ailments and thus, it would not be in the interest of child to give his custody to the husband that the husband was guilty of adulterous conduct. It was also alleged by the husband that wife made certain false complaints against him to his office and one such complaint was enquired by his seniors and that the same caused mental tension to him amounting to cruelty. In the above referred case, it was found that wife-Respondent completely failed to prove those serious allegations, brought against her husband and that she made serious, false and scandalous allegations alleging adulterous life of her husband which constituted mental cruelty. The Supreme Court with the above observation, while granting decree of divorce in favour of the husband-Appellant dismissed the appeal filed by his wife aforesaid. In the above referred case, the wife-Respondent had made some serious and scandalous allegations against her husband and she failed to establish those allegations. It is not the case of the Respondent-husband, in the case in hand, that his wife made any such serious and scandalous allegations against him. In view of the above, the decision, rendered in the above referred case, does not extend any help to, the Respondent-husband. 21. It is not the case of the Respondent-husband, in the case in hand, that his wife made any such serious and scandalous allegations against him. In view of the above, the decision, rendered in the above referred case, does not extend any help to, the Respondent-husband. 21. In the absence of any allegation of misconduct or ill treatment, the husband-Respondent's averments that he has been living alone after the departure of his wife, facing much hardship in his day-to-day life and that the separate living of his wife-Appellant has lowered (sic) sufficient to draw inference that the Appellant treated the (sic) with cruelty within the meaning of 13(1)(a) of the Act. The Respondent-husband has not adduced any evidence to substantiate that due to such separate living of his wife, his status, position and prestige in the society has been lowered causing mental pain and agony. He has also filed to establish, by adducing sufficient evidence, that his wife refused to return to his life. On the other hand, the Appellant-wife, in her evidence given as DW 1, at paragraph 5 of the affidavit, filed under order 18, Rule 4, Code of Civil Procedure, stated as follows: That the Petitioner never visited at any occasion to take her to his residence, although, I with high hope with aspiration was looking forward to lead conjugal life with the Petitioner considering my physical condition at that time. 22. Fact remains that the suit, filed by the Respondent-husband, for restitution of conjugal right was dismissed for default. The said wife also denied the suggestion that in the written statement filed by her in the suit for restitution for conjugal right, filed by the husband-Respondent, she did not state that she was ready to go with her husband. She also denied the suggestion that she was not willing to live with her husband. She further denied the suggestion that she had left the marital home at her own will. From the above, it appears that the Respondent-wife was all along ready to live with her husband. Therefore, we find no sufficient force in the contention of the husband-Respondent that due to separate living of his wife, in here parents' house, the social prestige and position of the husband-Respondent was lowered, causing mental pain and agony sufficient to constitute cruelty. 23. Therefore, we find no sufficient force in the contention of the husband-Respondent that due to separate living of his wife, in here parents' house, the social prestige and position of the husband-Respondent was lowered, causing mental pain and agony sufficient to constitute cruelty. 23. Considering the entire facts and circumstances of the case and the evidence on record, we unhesitatingly hold that the Respondent-husband, who was the Petitioner in the proceeding under Section 13(1)(a) of the Act, failed to substantiate, by adducing sufficient evidence, that his wife, i.e., the Appellant conducted herself in such a manner, which was sufficient to cause reasonable apprehension, in his mind, that it would be harmful or injurious to live with her and that the wife-Appellant was deliberately feigning posture, which was wholly unnatural and beyond the comprehension of a reasonable person. 24. In the light of the above discussion, we find sufficient merit in this appeal, requiring interference with the impugned judgment and order under appeal. Accordingly, the appeal is allowed and the impugned judgment and decree, dissolving the marriage between the Appellant and the Respondent by decree of divorce, is set aside and quashed. No cost. Return the records of the trial court. Appeal allowed.