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2011 DIGILAW 326 (CHH)

MITHILESH SHRIVASTAVA v. KIRAN SHRIVASTAVA

2011-09-29

N.K.AGARWAL

body2011
JUDGMENT 1. This appeal, in a matrimonial case, is by the husband and is directed against the judgment and decree dated 22.09.2004 passed by 3rd Additional District Judge, Bilaspur in Civil Suit No.14-A/2004 whereby the petition for dissolution of marriage filed under Section 5 (i) (b) read with Section 12, Section 13 (1) (iii) and Section 13 (ia) of the Hindu Marriage Act, 1955 (for short 'the Act') by the appellant/husband has been dismissed. 2. Facts of the case in brief are as under :- (i) The marriage between the appellant Mithilesh Shrivastava and the respondent Smt. Kiran Shrivastava was solemnized on 16.04.1998, as per Hindu Rites and Customs. No child was born from the wedlock. The marriage, according to the appellant, lasted upto 11.01.2000. (ii) According to the appellant, immediately after marriage, the appellant noticed some abnormal behaviour of the respondent. He earlier informed Smt. Indu Verma, who was a mediator in the marriage, on telephone and then to the parents of the respondent and afterwards remained requesting the members of the in-laws family to sit together and discuss regarding abnormal behaviour and mental illness of the respondent but in vein. Ultimately, he consulted Dr. Prakash Narayan Shukla (P.W.2), a renowned Psychiatrist at Raipur, who advised to examine the patient with the previous prescriptions to facilitate the treatment. Neither the sittings were made by the in-laws nor the prescriptions were made available. Ultimately, Dr. Prakash Narayan Shukla (P.W.2) examined the respondent and diagnosed her case to be 'Paranoid Schizophrenia'. According to the appellant, the respondent was suffering from the above mental disorder at the time of marriage and the above fact has been concealed from him. As per Doctors advice, the child born out of above wedlock may suffer mental disorder, which the appellant does not want. (iii) When this fact was revealed, members of the in-laws family took respondent and did not hand over the prescriptions. The respondent, thereafter, lodged dowry harassment case against the appellant, as a result of which, the appellant had to suffer mental agony and financial crunch. (iv) The defendant/respondent denied all the allegations levelled against her. She specifically denied that she is suffering from 'Paranoid Schizophrenia' or any type of mental disorder. According to the respondent, she did M.Sc. in Botany and was working as a Teacher in Maharshi Vidya Mandir. (iv) The defendant/respondent denied all the allegations levelled against her. She specifically denied that she is suffering from 'Paranoid Schizophrenia' or any type of mental disorder. According to the respondent, she did M.Sc. in Botany and was working as a Teacher in Maharshi Vidya Mandir. According to her, sister of the appellant is an origin of all disputes. The appellant, his mother and sister instigated her to bring mort money from her maternal home. Despite of marriage with the appellant, she had to spend several years in her maternal home. Due to demand of dowry, the report was lodged by her. (v) She never took any medicine nor was under treatment of any Doctor. With an ulterior motive, the appellant had obtained a certificate from Dr. Prakash Naravan Shukla, who never examined her nor she was under his treatment. The above story was cooked up in order to procure decree of divorce, by hook or crook and the petition being devoid of merit is liable to be dismissed. 3. The trial Court framed the following issues : okn fo”k; ¼1½ D;k] vukosfndk fdj.k fookg iwoZ ekufld jksx ls xzLr Fkh] ftl rF; fNikdj /kks[kk nsdj vkosnd dk fookg mlls djk;k \ ¼2½ D;k] vukosfndk fdj.k vkosnd ds lkFk dzwjrkiwoZd O;ogkj djrh gS \ ¼3½ D;k] vukosfndk fdj.k bl gn rd rF;] bl izd`fr ds ekufld jksx ,oa ekufld fod`fr ls ihfM+r gS] ftlds QyLo:i vkosnd dk mlds lkFk jguk laHko ugha gS \ ¼4½ D;k \ vkosnd fefFkys’k viuh ifRu vukosfndk ds lkFk dzwjrkiwoZd O;ogkj djrk gSa] ftls dkj.k mls ifr ls vyx jguk iM+ jgk gS \ ¼5½ lgk;rk ,oa O;; \ 4. The appellant examined himself and Dr. Prakash Naravan Shukla (A.W.2), The respondent, however, got only her statement recorded but her cross-examination could not be concluded as she did not appear in the witness box to complete her deposition. 5. The trial Court, vide judgment and decree impugned, dismissed the divorce petition filed by the appellant/husband inter alia on the ground; appellant failed to prove respondent is suffering from 'Paranoid Schizophrenia' prior to marriage or subsequent thereto and also failed to prove, he was subjected to mental cruelty by the respondent. 6. Shri Anil Khare with Ms. Namrata Keshwarwani, learned counsel appearing for the appellant would submit: evidence of Dr. 6. Shri Anil Khare with Ms. Namrata Keshwarwani, learned counsel appearing for the appellant would submit: evidence of Dr. Prakash Narayan Shukla (A.W.2) clearly illustrates that the respondent was a case of' Paranoid Schizophrenia'; the respondent before her cross-examination could be concluded, deliberately did not appear in the witness box to complete his deposition and in the absence of any evidence led by the respondent, the appellant's evidence had to be relied upon; the appellant was denied the matrimonial bliss of physical relation by the respondent because of her incompetence which itself constitutes cruelty for a married man; filing of false case of dowry harassment against the appellant itself constitutes cruelty; and the appellant and respondent are living separately for a sufficient length of time, marriage has broken down irretrievably, there is no chance of their living together, therefore, the appellant is also entitled for grant of decree of divorce on the ground of irretrievable breakdown of marriage. Learned counsel for the appellant cited the following decisions: 1. Naveen Kohli Vs. Neelu Kohli1. 2. A. Jayachandra Vs. Aneel Kau2 3. Vinita Saxena Vs. Pankaj Pandit3. 4. Dev Das Darsena Vs. Smt. Girija Darsena4. 7. On the other hand, Shri Pramod Verma, learned Senior Advocate for the respondent, after referring to the ground of divorce and the findings recorded by the trial Court, submitted that the appellant utterly failed to prove, respondent is suffering from mental disorder of such a kind or to such an extent, as to be unfit for marriage and procreation of children or has been subjected recurrent attacks of insanity. 8. It was further contended that in order to make out a ground for divorce under Section 13(1)(iii) of the Act, it is not sufficient to establish that the respondent is suffering from continuously or intermittently from mental disorder but it must further be established that it is of such a kind and to such an extent that the appellant cannot reasonably be expected to live with the respondent. In other words, the burden is not discharged by merely establishing that the respondent is suffering from mental disorder i.e. Schizophrenia but the appellant must further lead evidence to establish that the mental disorder is of such a kind and to such an extent that the appellant cannot reasonably be expected to live with the respondent. 9. According to Mr. In other words, the burden is not discharged by merely establishing that the respondent is suffering from mental disorder i.e. Schizophrenia but the appellant must further lead evidence to establish that the mental disorder is of such a kind and to such an extent that the appellant cannot reasonably be expected to live with the respondent. 9. According to Mr. Pramod Verma, learned Senior Advocate, there is no evidence to prove respondent is suffering from Paranoid Schizophrenia and is taking medicines for it or was, at any point of time, under treatment for above mental disorder. The certificate issued by Dr. Prakash Narayan Shukla, after half an hour friendly sitting with the respondent has been rightly disbelieved by the trial Court. 10. Institution of criminal proceedings by the respondent would not by itself constitute cruelty. The criminal case is still pending consideration. 11. Even in the absence of any evidence on the part of respondent, the heavy burden lies upon the appellant to prove his case, in which, he utterly failed. The trial Court, on a due and proper appreciation of facts and material of the case, has dismissed the petition and the appeal deserves to be dismissed. 12. I have heard learned counsel for the parties and perused the record of the trial Court including judgment and decree impugned. 13. The relevant statutory provisions of Sections 5, 12 (1) (b) (c), 13(ia) and 13 (1) (iii) of the Act for adjudication of this case are outlined as follows: "5. Conditions for a Hindu marriage.-A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely:- (i) neither party has a spouse living at the time of marriage; (ii) at the time of marriage, neither party- (a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or (b) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or (c) has been subject to recurrent attacks of insanity. (iii) the bridegroom has completed the age of twenty-one years and the bride, the age of eighteen years at the time of the marriage; (iv) the parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two; (v) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two;" "12. Voidable marriages.-(1) Any marriage solemnized, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely:- (b) that the marriage is in contravention of the condition specified in clause (ii) of section 5; or (c) that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner was required under section 5 as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act, 1978 (2 of 1978), the consent of such guardian was obtained by force or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent; or" "13. Divorce.-( 1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party- (ia) has, after the solemnization of the marriage, treated the petitioner with cruelty; or (iii) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent. Explanation.-In this clause,- (a) the expression "mental disorder" means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia; (b) the expression "psychopathic disorder" means a persistent disorder or disability of mind (whether or not including sub-normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it requires or is susceptible to medical treat; or" 14. Clause (ii) (b) of Section 5 of the Act provides for one of the conditions for a valid Hindu marriage that neither party must be suffering from unsoundness of mind, mental disorder or insanity. In terms of Section 12 (a) (b) of the Act, a marriage may be annulled if the other party was suffering from mental disorder or insanity at the time of marriage. Section 13 (1) (iii) of the Act provides that a party to the marriage may present a petition for dissolution of marriage by a decree of divorce inter alia on the ground that the other party has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind that the petitioner cannot reasonably be expected to live with the respondent. It is beyond any cavil that a marriage in contravention of the aforesaid provisions of the Act is per se not void but is merely voidable. 15. A sound mind, indisputably, is a key to a happy married life. A party to the marriage must, thus, have normal and sound mind so as to live a happy marital life. A disorder of thought, behaviour and mind leading to unsoundness of mind may give rise to the cause of action for filing an application under Section 13(1) (iii) of the Act. The burden of proof of the existence of requisite degrees of mental disorder is on the spouse making the claim on that state I of fact. 16. A decree for divorce in terms of Section 13 (1) (iii) of the Act can be granted in the event of unsoundness of mind is held to be incurable. A party may behave strangely or oddly, inappropriate, and progressive, in deterioration, in the level of work, may lead to a conclusion that he or she suffers from an illness of slow growing developing over the years. The disease, however, must be of such a kind that the other spouse cannot reasonably be expected to live with him or her. 17. A few strong instances indicating a short temper and somewhat erratic behaviour on the part of the spouse may not amount to his/her suffering continuously or intermittently from mental disorder, as held by the Supreme Court in the case of 8harda Vs. Dharmpal5. 18. The Supreme Court, in the case of Ram Narain Gupta Vs. 8mt. 17. A few strong instances indicating a short temper and somewhat erratic behaviour on the part of the spouse may not amount to his/her suffering continuously or intermittently from mental disorder, as held by the Supreme Court in the case of 8harda Vs. Dharmpal5. 18. The Supreme Court, in the case of Ram Narain Gupta Vs. 8mt. Rameshwari Gupta6, while dealing with a case of similar mental disorder, i.e. Schizophrenia, has observed in paragraphs 24, 25, 26, 27, 28 and 29 as under: 24. But the illnesses that are called mental are kept distinguished from those that ail the 'body' in a fundamental way. In "Philosophy and Medicine", Vol. 5 at page-X, the learned Editor refers to what distinguishes the two qualitatively: "Undoubtedly, mental illness is so disvalued because it strikes at the very roots of our personhood. It visits us with uncontrollable fears, obsessions, compulsions, and anxieties .." " .... This is captured in part by the language we use in describing the mentally ill. One is an hysteric, is a neurotic, is an obsessive, is a schizophrenic, is a manic-depressive. On the other hand, one has heart disease, has cancer, has the flu, has malaria, has smallpox....." (emphasis supplied) 25. 'Schizophrenia', it is true, is said to be difficult mental-affliction. It is said to be insidious in its onset and has hereditary pre-disposing factor. It is characterized by the shallowness of emotions and is marked by a detachment from reality. In paranoid-states, the victim responds even to fleeting expressions of disapproval from others by disproportionate reactions generated by hallucinations of persecution. Even well meant acts of kindness and of expression of sympathy appear to the victim as insidious traps. In its worst manifestation, this illness produces a crude wrench from reality and brings about a lowering of the higher mental functions. 26. "Schizophrenia" is described thus: "A severe mental disorder (or group of disorders) characterized by a disintegration of the process of thinking, of contact with reality, and of emotional responsiveness. Delusions and hallucinations (especially of voices) are usual features, and the patient usually feels that his thoughts, sensations, and actions are controlled by, or shared with, others. He becomes socially withdrawn and loses energy and initiative. Delusions and hallucinations (especially of voices) are usual features, and the patient usually feels that his thoughts, sensations, and actions are controlled by, or shared with, others. He becomes socially withdrawn and loses energy and initiative. The main types of schizophrenia are simple, in which increasing social withdrawal and personal ineffectiveness are the major changes; hebephrenic, which starts in adolescence or young adulthood (see hebephrenia); paranoid, characterized by prominent delusion; and catatonic, with marked motor disturbances (See catatonia). Schizophrenia commonly-but not inevitably-runs a progressive course. The prognosis has been improved in recent years with drugs such as phenothiazines and by vigorous psychological and social management and rehabilitation. There are strong genetic factors in the causation, and environmental stress can precipitate illness." (See Concise Medical Dictionary at page 566: Oxford Medical Publications, 1980) 27. But the point to note and emphasise is that the personality disintegration that characterises this illness may be of varying degrees. Not all schizophrenics are characterised by the same intensity of the disease. F.C.Redlich & Daniel X. Freedman in "The Theory and Practice of Psychiatry" (1966 Edn.) say: " .......... Some schizophrenic reactions, which we call psychoses, may he relatively mild and transient; others may not interfere too seriously with many aspects of everyday living ........." (p.252) "Are the characteristic remissions and relapses expressions of endogenous processes, or are they responses to psychosocial variables, or both? Some patients recover, apparently completely, when such recovery occurs without treatment we speak of spontaneous remission. The term need not imply an independent endogenous process; it is just as likely that the spontaneous remission is a response to non-deliberate but none-the-less favourable psychosocial stimuli other than specific therapeutic activity. ........ ..." (p. 465) (Emphasis Supplied). 28. The reasoning of the High Court is that the requisite degree of the mental disorder which alone would justify dissolution of the marriage has not been established. This, it seems to us, to be not an unreasonable assessment of the situation-strong arguments of Shri Goel to the contrary notwithstanding. 29. The High Court referred to and relied upon the decision of the Calcutta High Court in 8mt. Rita Roy Vs. 8itesh Chandra, AIR 1982 (Cal.) 138. In; that case the Division Bench of the Calcutta High Court observed: "....each case of schizophrenia has to be considered on its own merits..........." . "........... 29. The High Court referred to and relied upon the decision of the Calcutta High Court in 8mt. Rita Roy Vs. 8itesh Chandra, AIR 1982 (Cal.) 138. In; that case the Division Bench of the Calcutta High Court observed: "....each case of schizophrenia has to be considered on its own merits..........." . "........... According to the aforesaid clause (iii), two elements are necessary to get a decree. The party concerned must be of unsound mind or intermittently suffering from schizophrenia or mental disorder. At the same time that disease must be of such a kind and of such an extent that the other party cannot reasonably be expected to live with her. So only one element of that clause is insufficient to grant a decree." 19. The Supreme Court, in the case of A. Jayachandra Vs. Aneel Kaur2 (supra) while interpreting the expression "cruelty" has held in paragraphs 10 to 12 as under: "10. The expression "cruelty" has not been defined in the Act. Cruelty can be physical or mental. Cruelty which is a ground for dissolution of marriage may be defined as willful and unjustifiable conduct of such character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such a danger. The question of mental cruelty has to be considered in the light of the norms of marital ties of the particular society to which the parties belong, their social values, status, environment in which they live. Cruelty, as noted above, includes mental cruelty, which falls within the purview of a matrimonial wrong. Cruelty need not be physical. If from the conduct of the spouse same is established and/or an inference can be legitimately drawn that the treatment of the spouse is such that it causes an apprehension in the mind of the other spouse, about his or her mental welfare then this conduct amounts to cruelty. In a delicate human relationship like matrimony, one has to see the probabilities of the case. The concept, proof beyond the shadow of doubt, is to be applied to criminal trials and not to civil matters and certainly not to matters of such delicate personal relationship as those of husband and wife. In a delicate human relationship like matrimony, one has to see the probabilities of the case. The concept, proof beyond the shadow of doubt, is to be applied to criminal trials and not to civil matters and certainly not to matters of such delicate personal relationship as those of husband and wife. Therefore, one has to see what are the probabilities in a case and legal cruelty has to be found out, not merely as a matter of fact, but as the effect on the mind of the complainant spouse because of the acts or omissions of the other Cruelty may be physical or corporeal or may be mental. In physical cruelty, there can be tangible and direct evidence, but in the case of mental cruelty there may not at the same time be direct evidence. In cases where there is no direct evidence, courts are required to probe in to the mental process and mental effect of incidents that are brought out in evidence. It is in this view that one has to consider the evidence in matrimonial disputes. 11. The expression "cruelty" 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. Cruelty is a course or conduct of one, which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. If it is physical, the court will have no problem in determining it. It is a question of fact and degree. If it is mental, the problem presents difficulties. First, the enquiry must begin as to the nature of cruel treatment, second the impact of such treatment in the mind of the spouse, whether it caused reasonable apprehension that it would be harmful or injurious to live with the other. Ultimately, it is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. However, there may be a case where the conduct complained of it self is bad enough and per se unlawful or illegal. Then the impact or 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. (See Shobha Rani Vs. Madhukar Reddi, (1988) 1 SCC 105. 12. Then the impact or 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. (See Shobha Rani Vs. Madhukar Reddi, (1988) 1 SCC 105. 12. To constitute cruelty, the conduct complained of should be "grave and weighty" so as to come to the conclusion that the petitioner spouse cannot be reasonably expected to live with the other spouse. It must be something more serious than "ordinary wear and tear of married life". The conduct, taking into consideration the circumstances and background has to be examined to reach the conclusion whether the conduct complained of amounts to cruelty in the matrimonial law. Conduct has to be considered, as noted above, in the background of several factors such as social status of parties, their education, physical and mental conditions, customs and traditions. It is difficult to lay down a precise definition or to give exhaustive description of the circumstances, which would constitute cruelty. It must be of the type as to satisfy the conscience of the court that the relationship between the parties had deteriorated to such an extent due to the conduct of the other spouse that it would be impossible for them to live together without mental agony, torture or distress, to entitle the complaining spouse to secure divorce. Physical violence is not absolutely essential to constitute cruelty and a consistent course of conduct inflicting immeasurable mental agony and torture may well constitute cruelty within the meaning of Section 10 of the Act. Mental cruelty may consist of verbal abuses and insults by using filthy and abusive language leading to constant disturbance of mental peace of the other party." 20. The Supreme Court, in the case of Vinita Saxena Vs. Pankaj Pandit3 (supra), has held in paragraph 29 as under: "29. In our view, the trial court failed to appreciate the uncontroverted evidence of the appellant who had proved the case on every count. It has been established beyond doubt by the medical doctors who ~ad deposed as witnesses and brought the original medical record of the respondent that the respondent is suffering from mental disorder. Further ground for grant of divorce on the plea of mental insanity/mental disorder is different than cruelty. It has been established beyond doubt by the medical doctors who ~ad deposed as witnesses and brought the original medical record of the respondent that the respondent is suffering from mental disorder. Further ground for grant of divorce on the plea of mental insanity/mental disorder is different than cruelty. The appellant, in our view, had proved beyond doubt that the respondent suffered from mental disorder and that the appellant suffered cruelty by and at the behest of the respondent." 21. Coming to the facts of the present case, the learned trial Court while rejecting the plea of respondent being suffered from Schizophrenia has recorded: (i) In the month of April, 1998 i.e. immediately after marriage, the appellant was on tour with respondent for 10 - 12 days. In between, they visited Vaishno Devi and other religious places as well as Chandigarh and Delhi and stayed in the hotels without any need of Psychiatrist. Again, he visited along with respondent in the month of April, 1999 to religious places like Tirupati, Rameshwaram, Kanyakumari, Kanchipuram and at that time also they were staying in the hotels, without noticing any need of consulting Psychiatrist. (ii) They lived together for a period of about two years. In between the appellant never saw respondent taking any medicine. It was only his doubt as admitted by him in paragraph 106 of his statement. (iii) Only on the basis of half an hour friendly talk, without informing her, she is being examined by a Psychiatrist, certificate given by Dr.Prakash Narayan Shukla cannot be believed, that too, issued on 10.01.2000 i.e. immediately 20 days before the divorce petition was filed. Dr. Shukla has admitted in his statement that in adverse atmosphere in a stressed condition, symptoms of above disease -may appear. 22. I have gone through the statements of the appellant as well as Dr. Prakash Narayan Shukla (A.W.2). There is no evidence suggesting respondent was under treatment of any Doctor with respect to alleged mental disorder or was taking any medicines. Appellant lived with her for a period of about two years. Had she been a case of acute Schizophrenia, the appellant could not have lived with her for such a long period without medical assistance. In fact, in the facts and circumstances of the case, the allegation against respondent that she was is suffering from 'Paranoid Schizophrenia' amounts to cruelty on the part of the appellant. Had she been a case of acute Schizophrenia, the appellant could not have lived with her for such a long period without medical assistance. In fact, in the facts and circumstances of the case, the allegation against respondent that she was is suffering from 'Paranoid Schizophrenia' amounts to cruelty on the part of the appellant. 23. The matter when examined in the context of above broad features of the case and in the light of dicta of Supreme Court as referred hereinabove, in my opinion, the appellant failed to make out any case for annulling marriage took place between him and the respondent under Section 5 (i) (b) read with Section 12 of the Act and for grant of decree of divorce under Section 13(1) (iii) of the Act. The learned trial Court has rightly held accordingly. 24. So far as the ground of cruelty is concerned, on the complaint of respondent criminal case has been registered against the appellant under Section 498A of the I.P.C., which is still pending consideration. Invoking of legal remedy by the parties cannot be termed as cruelty unless the same is launched malafidely and with a view to harass and torture, the opposite party i.e. the appellant and his witness have not adduced any evidence to show that respondent has intentionally or malafidely launched prosecution with a view to harass and torture him. On the other hand, levelling incorrect allegation of suffering from Paranoid Schizophrenia amounts to appellant's cruelty. I am unable to accept such launching of prosecution as a cruelty. Therefore, the appellant also failed to make out any case for grant of decree of divorce under Section 13 (ia) of the Act. 25. A Division Bench of High Court of Bombay, in the case of Mrs. Deeplakshmi Sachin Zingade Vs. Sachin Rameshrao Zingade7, has held: filing of complaint by wife under Domestic Violence Act by itself would not amount to act of cruelty on the part of wife unless it was found by positive evidence that it was a false complaint. When Act permits the wife to approach Court under the provisions of Domestic Violence Act and if that remedy is availed of, such act should not be treated as an act of cruelty, otherwise in no case:, a lady can file any complaint, if filing of complaint is to be treated as act of cruelty. 26. When Act permits the wife to approach Court under the provisions of Domestic Violence Act and if that remedy is availed of, such act should not be treated as an act of cruelty, otherwise in no case:, a lady can file any complaint, if filing of complaint is to be treated as act of cruelty. 26. Learned counsel for the appellant has placed the reliance upon a decision of the Supreme Court in the case of Naveen Kohli Vs. Neelu Kohli1 (supra), wherein it has been held by the Supreme Court that when parties are living separately for a sufficient length of time and one of them brings a petition for divorce decree, it can be presumed that marriage has broken down irretrievably. 27. It is required to be noted that the Legislature has not provided irretrievable breakdown of marriage as one of the grounds under Section 13 of the Act for dissolution of marriage. The Supreme Court, in the case of Naveen Kohli Vs. Neelu Kohli1 (supra) has held: irretrievable break down of marriage is not a ground for divorce under the Hindu Marriage Act, 1955. It is only in extreme circumstances that the Court may use this ground of irretrievable breakdown of marriage of divorce. Marriage results in unity of marital relation between husband and wife. Even otherwise, the powers of the Supreme Court under Article 142 of the Constitution of India are different and, therefore, the decision of the Supreme Court under Article 142 of the Constitution of India cannot be straightway made applicable so far as proceedings before the High Courts are concerned, as this Court in an appeal is required to find out as to whether any statutory ground is available for passing a decree of divorce. 28. Further, a party cannot be permitted to take advantage of his own wrong. 29. Considering the aforesaid aspect of the matter, in my view, the trial Court has not committed any error in rejecting the petition for divorce. 30. For the foregoing reasons, I do not find any merit in the appeal preferred by the appellant. Appeal, being devoid of substance, liable to be and is hereby dismissed. 31. No order as to costs. 32. A decree be drawn accordingly. Appeal Dismissed.