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2011 DIGILAW 331 (GAU)

Gourab Datta v. Arundhuti Majumder (Datta)

2011-04-12

C.R.SARMA, UTPALENDU BIKAS SAHA

body2011
JUDGMENT C.R. Sarma, J 1. The judgment and order, dated 1.4.2005, passed by the learned Judge, Family Court, Agartala in T.S. (Divorce) No. FC/15 of 2004, thereby negating the Appellant's prayer for dissolution of marriage is in challenge in this appeal. 2. We have heard Mr. A.K. Bhowmik, learned senior counsel assisted by Mr. R. Datta, Learned Counsel appearing for the Appellant and Mr. Rattan Datta, Learned Counsel appearing for the Respondent. 3. The facts, in brief, that will be required for the purpose of consideration of the instant appeal are set out herein below: The Appellant and the Respondent entered into marriage on 9.5.1997, according to the Hindu rites and they used to live at Agartala and Mumbai. After the Appellant's joining service under the Industries Department, Government of Tripura, Agartala, the said couple started, permanently, living at Agartala along with the parents of the Appellant. According to the Appellant (husband), the Respondent used to show disregard to her parents-in-law and picked up quarrel with them. It is also stated that the Respondent, who was a mother of a child, terminated her second pregnancy, without the permission of the Appellant-husband and that she was all along busy with her service and tuition and she did not look after the necessities of the family. As stated by the Appellant, in his petition, the Respondent, on 18.7.2007, accompanied by some of her students, created disturbance in the house, for which her mother-in-law had lodged a G.D. entry with the police, at the West Agartala police station. He further alleged that, on 7.10.2003, at about 9 p.m., the Respondent had assaulted to her old father-in-law causing injury, for which he had to undergo medical treatment at IGM hospital. On the next day, i.e., on 8.10.2003, when discussion for solving the matter was going on, in presence of the local elderly people, the Respondent, agreed to the proposal of divorce, subject to payment of Rs. 15 lakhs as compensation and alimony. It is also alleged that the Respondent left her marital home, along with her minor son and that, despite repeated approaches made by the Appellant, she declined to join the family life with him. Finding it impossible to continue with the said married life, the Appellant filed an application under Section 13(1)(ia) of the Hindu Marriage Act, 1955 ('the Act') seeking dissolution of the marriage on the ground of cruelty and desertion. Finding it impossible to continue with the said married life, the Appellant filed an application under Section 13(1)(ia) of the Hindu Marriage Act, 1955 ('the Act') seeking dissolution of the marriage on the ground of cruelty and desertion. 4. The Respondent, by filing written statement; denied the allegations, brought against her and contested the prayer, made by her husband, for dissolution of their marriage. She, in her written statement, contended that their marriage followed ten years of love affairs and that her mother-in-law used to torture her in the name of family discipline. She stated that she never left the marital home, without the permission of her mother-in-law and that her second pregnancy was terminated with the consent of her husband. She alleged that her husband who had earlier taken rupees one lakh from her father in 2002, demanded another amount of rupees one lakh in the month of August 2003 and that due to failure to meet the said demand, the Appellant and his family members started torturing her and ultimately, on 8.10.2003, drove her out of her marital home, for which she had lodged a complaint, with the police, against the Appellant and her parents-in-law, which was registered as Women PS case No. 64 of 2003 under Section 498A, Indian Penal Code. Expressing her profound respect to the Appellant and her parents-in-law, the Respondent, in her written statement, stated that though she was all along ready to lead a family life, her mother-in-law created obstacle in her way to leading a peaceful family life. She denied the allegations that she assaulted her father-in-law and that she had left her marital home after demanding Rs. 15 lakhs as compensation from the Appellant. She categorically stated that she was driven out from her marital home by her husband and parents-in-law and that finding no other alternative, she, along with her minor son, was compelled to take shelter in her parents' house with effect from 10.10.2003 and that she was all along ready to live with her husband peacefully without interference from her parents-in-laws. 5. Upon the pleadings of both the parties, the learned trial Judge framed the following issues: (a) Whether the Respondent is the legally married wife of the Petitioner and if so whether the Respondent deserted the Petitioner without any cogent ground? 5. Upon the pleadings of both the parties, the learned trial Judge framed the following issues: (a) Whether the Respondent is the legally married wife of the Petitioner and if so whether the Respondent deserted the Petitioner without any cogent ground? (b) Whether the Petitioner is entitled to have divorce with the Respondent on the ground of cruelty? (c) Whether the Petitioner is entitled to have any relief and if so, up to what extent ? 6. In order to prove his case the Appellant-petitioner examined four witnesses, while the Respondent examined two witnesses. 7. Mr. A.K. Bhowmik, learned senior counsel, appearing for the Appellant, taking this Court through the plaint filed by the Appellant, the impugned judgment and order and the evidence on record has submitted that though the Respondent is ready and willing to join the family life with the Appellant, considering the fact that the Respondent assaulted her father-in-law and her conduct towards the members of the family as well as the Appellant, it is not possible for the Appellant to accept the Respondent and continue with the married life with her. The learned senior counsel further submits that the marriage has, practically, broken down and that the learned trial Judge committed error by refusing to grant the divorce as prayed for. 8. Controverting the said argument, advanced by the learned senior counsel appearing for the Appellant, Mr. Ratan Datta, Learned Counsel, appearing for the Respondent has submitted that in spite of the torture committed on her, the Respondent was all along ready to live with the Appellant and that being unable to bear the torture, committed on her, by the Appellant and her mother-in-law, she was compelled to take shelter in her parents' house. The Learned Counsel further submitted that there is no reliable and cogent evidence, on record, to show that the Respondent had assaulted her father-in-law or that she treated the Appellant or his parents with cruelty. The Learned Counsel appearing for the Respondent, supporting the impugned judgment and order, has submitted that in view of absence of any evidence regarding cruelty, the learned trial Judge rightly refused to grant the divorce. 9. From the arguments, advanced by the Learned Counsel for the parties, it appears that, the Respondent was ready and willing to continue her married life with the Appellant husband, but the husband refused to take her back. 9. From the arguments, advanced by the Learned Counsel for the parties, it appears that, the Respondent was ready and willing to continue her married life with the Appellant husband, but the husband refused to take her back. Therefore, the only ground, on which the divorce has been sought is "cruelty". Section 13(1)(ia) of the Hindu Marriage Act, which reads as follows, provides the grounds on which divorce can be sought and "cruelty" is one of the grounds, amongst others, for dissolution of marriage by a decree of divorce. 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. 10. A careful perusal of the said provision makes it clear that in the petition, filed under Section 13of the Hindu Marriage Act, on the ground of cruelty it is required to show that the Petitioner has been treated with cruelty. Here, the term "petitioner" indicates either the husband or the wife, as the case may be, who files the petition seeking a divorce. Therefore, the husband being the Petitioner, it was his burden to establish that he was treated with cruelty, by the wife Respondent. The contentions of the Appellant is that his wife, i.e., the Respondent used to defy her parents-in-law, that on the night of 7.10.2003, the Respondent had badly assaulted her father-in-law, for which he was required to be taken to hospital for treatment, that she used to spend most of her time in her school, where she worked as a teacher and in attending tuition till 7.30 p.m., that she spent time with her friends and returned home at 10-00-10-30 p.m., that she had aborted her pregnancy without his consent, and that, on 18.7.2007, the Respondent being accompanied by some of her students caused disturbance in the house. The said allegations have been categorically denied by the Respondent. In view of the above rival contentions, it is to be examined if the Petitioner could establish the said allegations, brought against the Respondent and if so, whether these amounted to cruelty within the meaning of Section 13(1)(ia) of the Act. The said allegations have been categorically denied by the Respondent. In view of the above rival contentions, it is to be examined if the Petitioner could establish the said allegations, brought against the Respondent and if so, whether these amounted to cruelty within the meaning of Section 13(1)(ia) of the Act. Though the term 'cruelty' has not been defined in the Act, the Supreme Court and various High Courts have dealt with the term 'cruelty' and laid down the principles and circumstances under which an alleged act(s) can be treated as 'cruelty' within the meaning of Section 13(1)(ia) of the Act. In the case of Shobha Rani v. Madhukar Reddi, (1988) 1 SCC 105 ; AIR 1994 SC 710 , the Supreme Court while discussing the term "cruelty" observed as follows: Section 13(1)(ia) uses the words "treated the Petitioner with cruelty" The word 'cruelty' has not been defined. It could not have been defined. It has been used in relation to human conduct or human behavior. It is the conduct in relation to or in respect of matrimonial duties or obligations. It is a course of 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 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. 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. There may, however, 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. It will be necessary to bear in mind that there has been marked change in the life around us. In matrimonial duties and responsibilities in particular, we find a sea change. They are of varying degrees from house to house or person to person. In such cases, the cruelty will be established if the conduct itself is proved or admitted. It will be necessary to bear in mind that there has been marked change in the life around us. In matrimonial duties and responsibilities in particular, we find a sea change. They are of varying degrees from house to house or person to person. Therefore, when a spouse makes complaint about the treatment of cruelty by the partner in life or relations, the court should not search for standard in life. A set of facts stigmatized as cruelty in one case may not be so in another case. The cruelty alleged may largely depend upon the type of life the parties are accustomed to or their economic 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 our 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 (1966) 2 All ER 257 (CA) '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 behavior, capacity or incapability to tolerate the conduct complained of. Such is the wonderful (sic) realm of cruelty. In the case of V. Bhagat v. D. Bhagat, (1994) 1 SCC 337 , the Supreme Court while explaining the concept of mental cruelty, observed as below: Mental cruelty in Section 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 expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party 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 decided 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. The Supreme Court in the case of Naveen Kohli v. Neelu Kohli, (2006) 4 SCC 558 : AIR 2006 SC 1675 relied on the case of A. Jayachandra v. Aneel Kaur (2005) 2 SCC 22 : AIR 2005 SC 534 and observed: 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. 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 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. 13. The court dealing with the petition for divorce on the ground of cruelty has to bear in mind that the problem before it are those of human beings and the psychological changes in a spouse's conduct have to be borne in mind before disposing of the petition for divorce. However, insignificant or trifling, such conduct may cause pain in the mind of another. But before the conduct can called cruelty, it must touch a certain pitch of severity. It is for the court to weigh the gravity. It has to be seen whether the conduct was such that no reasonable person would tolerate it. It has to be considered whether the complainant should be called upon to endure as a part of normal human life. Every matrimonial conduct, which may cause annoyance to the other, may not amount to cruelty. Mere trivial irritations, quarrels between spouses, which happen in day-to-day married life, may also not amount to cruelty. Cruelty in matrimonial life may be of unfounded variety, which can be subtle or brutal. It may be words, gestures or by mere silence, violent or nonviolent. A learned Single Judge of the Delhi High Court, in the case of Subhash Chander Sharma v. Anjali Sharma AIR 2011 CC 151 (Del.) referring to above mentioned observations observed: 14. Cruelty in matrimonial life may be of unfounded variety, which can be subtle or brutal. It may be words, gestures or by mere silence, violent or nonviolent. A learned Single Judge of the Delhi High Court, in the case of Subhash Chander Sharma v. Anjali Sharma AIR 2011 CC 151 (Del.) referring to above mentioned observations observed: 14. As would be evident from the aforesaid observations of the Apex Court, it is not the ordinary wear and tear of the married life which would cause any sort of mental pain or cruelty to the Petitioner. The conduct complained of must be proved to be grave and weighty due to which the Petitioner cannot be reasonably expected to live with his spouse. The Apex Court has also held that it is difficult to lay down any precise definition or to give exhaustive description of the circumstance which would constitute cruelty. Therefore, in the facts of each case the conscience of the court should be satisfied that the relationship between the parties had reached to such an extent that it has become impossible or unbearable for them to stay together. Under the Rules of Hindu Marriage Act, framed by this Court, the Petitioner approaching the court is required to plead specific acts of cruelty and the occasions when and where such acts were committed by the other spouse. The Supreme Court in the case of Samir Ghosh v. Jaya Ghosh, (2007) 4 SCC 511 observed: 96. On proper analysis and scrutiny of the judgments of this Court and other courts, we have come to the definite conclusion that there cannot be any comprehensive definition of the concept of "mental cruelty" within which all kinds of cases of mental cruelty can be covered. No court in our considered view should even attempt to give a comprehensive definition of mental cruelty. 99. Human mind is extremely complex and human behaviour is equally complicated. Similarly human ingenuity has no bound, therefore, to assimilate the entire human behaviour in one definition is almost impossible. What is cruelty in one case may not amount to cruelty in other case. The concept of cruelty differs from person to person depending upon his upbringing, level of sensitivity, educational, family and cultural background, financial position, social status, customs, traditions, religious beliefs, human values and their value system. 100. What is cruelty in one case may not amount to cruelty in other case. The concept of cruelty differs from person to person depending upon his upbringing, level of sensitivity, educational, family and cultural background, financial position, social status, customs, traditions, religious beliefs, human values and their value system. 100. Apart from this, the concept of mental cruelty cannot remain static; it is bound to change with the passage of time, impact of modern culture through print and electronic media and value system, etc., etc. What may be mental cruelty now may not remain a mental cruelty after a passage of time or vice versa. There can never be any strait-jacket formula or fixed parameters for determining mental cruelty in matrimonial matters. The prudent and appropriate way to adjudicate the case would be to evaluate it on its peculiar facts and circumstances while taking aforementioned factors in consideration. 101. 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 or 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. (vi) Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. (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. 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. 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. 11. Keeping in mind the above principles, laid by the Supreme Court and the statutory provisions, we are required to examine if the allegations, brought against the Respondent, amounted to cruelty under the purview of Section 13(1)(ia) of the Act. 12. For correct appreciation of the matter at hand, we feel it appropriate to briefly scan the evidence on record. The Appellant, who deposed as PW 1, stated that, during his absence from home, the Respondent had assaulted his old father causing bleeding injuries on his chest, for which he was taken to IGM hospital for treatment. As the Appellant was not present at the time of the said occurrence, he had no personal knowledge regarding the alleged assault. He did not even disclose as to who had reported him about the said assault. Therefore, his evidence is not found to be cogent and sufficient to inspire confidence to believe that the Respondent had assaulted her father-in-law. In his cross-examination, this witness stated "it is also not a fact that I had not demanded Rs. 1 lakh from the parents of the Respondent as dowry". From the above admission, it is clear that the Appellant as alleged by the Respondent, had demanded dowry from the parents of the Respondent. This supports the contention of the Respondent, more particularly, the evidence of DW 2, i.e., the father of the Respondent that the Appellant had demanded dowry of Rs. 1 lakh. According to the Respondent, due to the failure, on the part of her father, to pay the said amount, her husband and mother-in-law used to torture her and ultimately they drove her out of the marital house. The said admission, on the part of the Appellant, lends support in favour of the Respondent's contention that she was tortured in her marital home requiring her to bring money from her parents and that this compelled her to take shelter in parents' house. However, she in her written statement expressed her willingness to live with the Appellant. The said admission, on the part of the Appellant, lends support in favour of the Respondent's contention that she was tortured in her marital home requiring her to bring money from her parents and that this compelled her to take shelter in parents' house. However, she in her written statement expressed her willingness to live with the Appellant. Hence, there is sufficient force in her statement that she was compelled to take shelter in her parents' house. This indicates that she did not desert her husband, but she was compelled to stay in her parents' house. 13. Mr. Madhusudan Paul, a resident of the same locality, deposing as PW 2, stated that hearing hue and cry, in the house of the Appellant, on the night of 7.10.2003, at about 10 p.m., he rushed to the Appellant's house and found Sri Himangshu Datta, i.e., the father of the Appellant with bleeding injuries on his chest. He further stated that he found the Respondent present in her marital home and on being enquired by him regarding the injury, Mr. Himangshu Datta had told him that he was tortured by his daughter-in-law, i.e., the Respondent. According to this witness, he had taken the said injured to hospital for treatment. This witness was not an eye witness to the occurrence. He was informed, by the injured that the injured that he was assaulted by the Respondent. Therefore, his evidence regarding causing injury by the Respondent, was nothing more than hearsay evidence, which cannot be relied upon without corroboration. This witness stated that on the next day a meeting, attended by the neighbourers, was held for amicable settlement of the matter and that in the said meeting, the Respondent had expressed that, in the event of payment of Rs. 15 lakh, she was ready to accept divorce and saying so she had left her matrimonial home. This witness did not state anything regarding other alleged conduct of the Respondent. 14. Mr. Bhabesh Debbarma, who deposed as PW 3, stated that on 7.10.2003, he found PW 2 and the father of the Appellant proceeding towards the hospital in a rickshaw. He further stated that he saw bleeding injury on the chest of Sri Himangshu Datta, i.e., the father of the Appellant. He did not state as to who had caused the said injury. He further stated that he saw bleeding injury on the chest of Sri Himangshu Datta, i.e., the father of the Appellant. He did not state as to who had caused the said injury. From his evidence, it is found that PW 2 and the said injured, after their return from the hospital, met this witness in the house of the Appellant. Considering the seriousness of the allegation, i.e., a daughter-in-law assaulting her old father-in-law, it is quite surprising as to why the injured did not inform this witness, whom he met after his return from hospital. PW 3 stated that he used to see the Respondent returning home after 10 p.m. Therefore, the evidence of PW 3 also does not substantiate the allegation that the Respondent had caused the injury to her father-in-law. 15. Sri Dwijendra Home Roy, PW 4, who was the maternal uncle of the Appellant stated that he was informed by his sister, i.e., the mother-in-law of the Respondent that, on 7.10.2003, the Respondent had assaulted her father-in-law. 16. From the above evidence, rendered by the prosecution witnesses, it is found that none of the said witnesses saw the Respondent assaulting her father-in-law or causing the injuries, as alleged by the Appellant. According to PW 4, he was informed, about the said incident, by the mother-in-law of the Respondent. In our considered opinion, as there was no eye witness to the occurrence, the injured himself as well as his wife, i.e., the mother-in-law of the Respondent were the most vital witnesses to support the Appellant's allegation that the Respondent had assaulted her father-in-law, But, for the reasons best known to him, the Appellant withheld the said two star witnesses. No reason has been cited for withholding such vital and important witnesses. There can be no dispute that had the said two persons been examined, the truth would have certainly come out. Therefore, withholding of such material witnesses, without any reasonable explanation, that too in the absence of any eye witness, belies the allegation of assault and torture, brought against the Respondent. Even the Medical officer, who is claimed to have treated the injured, has also not been examined to substantiate the claim that the father of the Appellant had sustained injuries at the hand of the Respondent. Even the Medical officer, who is claimed to have treated the injured, has also not been examined to substantiate the claim that the father of the Appellant had sustained injuries at the hand of the Respondent. In our considered opinion, the Appellant, by withholding his father, i.e., the injured, his mother and the Medical officer failed to adduce the best available evidence and, thus, miserably failed to establish that the Respondent had assaulted her father-in-law. 17. The Appellant in his evidence, given as PW 1, stated that the Respondent used to leave her house at 6 a.m. for attending her school and returned home at about 10-30 p.m. From the evidence of the Appellant (PW 1) and his maternal uncle, i.e., PW 4, it is found that the Respondent worked in a school and after attending her school, she did tuition also and after completing her tuition she returned home at 10-00 or 10-30 p.m. Mr. Bhabesh Debbarma (PW 3) stated that he could notice that the Respondent returned home at 10 p.m. But he did not state the circumstances under which she returned home at that hour of the night. From the said evidence of PW 3 there is nothing to gather anything adverse to the conduct of the Respondent. This witness clearly stated that, prior to 7.10.2003, i.e., the night on which the father-in-law of the Respondent was taken to hospital, he did not notice anything abnormal in the house of the Appellant. As claimed by PW 3, he was social worker doing social service in between 7 p.m. to 11 p.m. every day in the locality. A careful scrutiny of his evidence indicates that, except returning home at 10 p.m., there is nothing adverse against the conduct of the Respondent. Admittedly, as stated by PW 4, who is the maternal uncle of the Appellant, the Respondent, for maintaining a high standard of life, used to earn money by doing tuition from 6 am and working in a school, followed by tuition up to 8 am. The said witness as well as the Appellant stated that after her tuition she met her friends and returned home at 10 a.m. As there is no evidence adverse to the conduct and character of the Petitioner, her returning home at 10 p.m., after attending her school, tuition and meeting her friends, etc., does not indicate anything against her. The said witness as well as the Appellant stated that after her tuition she met her friends and returned home at 10 a.m. As there is no evidence adverse to the conduct and character of the Petitioner, her returning home at 10 p.m., after attending her school, tuition and meeting her friends, etc., does not indicate anything against her. Therefore, keeping in mind, the principles laid down in the above referred cases, we are not inclined to hold that such late arrival of the Respondent amounted to cruelty to her husband. 18. Though the Petitioner-appellant stated that the Respondent had terminated her second pregnancy, without his consent, the Respondent categorically denied the said allegation and there is no substantive evidence to show that the pregnancy was terminated without the consent of the Appellant. In order to substantiate the said allegations, the Appellant could have examined the concerned Medical officer. His failure to do so negates his claim. 19. Keeping in mind the observations and the principles laid down in the case of Samir Ghosh (supra), we are required to examine if the conduct/behaviour of the Respondent amounted to mental cruelty. Admittedly, the couple have been living separately from 8.10.2003. The Respondent has stated that she has been compelled to leave the marital home due to the torture meted out to her and that she is very much willing to reside with her husband peacefully. As discussed above, the husband-petitioner failed to establish the ground of cruelty by proving any specific allegation of cruelty on the part of the Respondent. In his evidence, given as PW 1, the Petitioner-husband stated that the false statements as well as the activities made by the Respondent caused embarrassment and damage to the reputation of the family of the Petitioner, in the eye of society and that it is not possible to get reunited. In her written statement, the Respondent-wife has clearly stated that she has profound respect to her parents-in-law and the Petitioner and that she never disregarded or disobeyed the inmates of her in laws' house. No specific instance or allegation of disregard or disobeying the Petitioner as well as his parents has been proved. There is no material on record to show that the Respondent had shown scant regard towards the feeling or emotions of the Petitioner. 20. According to the Respondent, the torture meted out to her compelled to live separately. No specific instance or allegation of disregard or disobeying the Petitioner as well as his parents has been proved. There is no material on record to show that the Respondent had shown scant regard towards the feeling or emotions of the Petitioner. 20. According to the Respondent, the torture meted out to her compelled to live separately. The said separation, in the attending circumstances cannot lead to the conclusion that the marital bond was beyond repair. Though the Respondent, as alleged by the Petitioner admitted filing of a criminal case under Section 498A, Indian Penal Code against the Petitioner and his parents, which is stated to be pending, the Petitioner stated that the Respondent, in her FIR, did not mention anything against him. That apart, though the Petitioner alleged ill activities against the Respondent, no substantial evidence could be adduced in order to prove that the Respondent was involved in any ill activities and that her conduct amounted to causing mental cruelty to the Petitioner. 21. It would not be out of context to mention here that during the reconciliation proceeding, held by this Court, the Respondent expressed her willingness to live with the Petitioner husband. By order, dated 23.6.2000, passed by this Court, during the said re-conciliation, keeping in mind the future of their minor son, both the couple were directed to meet with their son once in a week in a suitable place. It is also on record that both the parties complied with the said direction and vide order dated 11.10.2010, the said arrangement was extended for a period of six weeks. In view of the above meetings of the parties, for the welfare of their son, it cannot be concluded that there is no scope for their reunion. The above fact indicates that there is possibility of bridging the difference between the parties by the love and affection, they have towards their said minor son. 22. That apart, according to the Petitioner, after her departure from the marital home, the Petitioner went to his father-in-law's house to bring her back, but she refused to come back. Thus, it appears that he had condoned all the acts, committed by the Respondent, during her stay in the marital home. As indicated above, there is no evidence to show, that she had uttered or publish anything against the Petitioner and that there is extreme difficulty in living together. Thus, it appears that he had condoned all the acts, committed by the Respondent, during her stay in the marital home. As indicated above, there is no evidence to show, that she had uttered or publish anything against the Petitioner and that there is extreme difficulty in living together. Also there is no evidence to show that the conduct of the Respondent was sufficient to cause deep anguish, frustration in respect of the Petitioner or that she had made the life of her husband miserable by adopting a calculated course of torture and humiliation. The petitioner himself admitted that, even in the criminal case filed by the Respondent, she did not state anything against him. What is alleged by the Petitioner is that the Respondent had ill treated his parents and assaulted his father. We have already discussed and observed that the Petitioner, by failing to examine his parents, without any explanation for such withholding, failed to prove the said allegations. There is no pleading that any mental or physical cruelty was committed by the Respondent against the Petitioner. In view of the above discussion, the Petitioner having failed to establish desertion on the part of the Respondent and anything adverse against the conduct of the Respondent, we are of the considered opinion that the long period of continuous separation, in the present case, cannot be treated as mental cruelty. 23. The specific allegation regarding cruelty is that the Respondent had assaulted her father-in-law. But in view of absence of any cogent and reliable evidence, as discussed earlier, in support of the said allegation, it cannot be held that the Respondent had assaulted her father-in-law. Therefore, the learned trial Judge, in our considered opinion, rightly came to the conclusion that the Appellant failed to prove the allegation of cruelty by adducing reliable evidence. 24. As provided by Section 13 of the Hindu Marriage Act, a Petitioner, seeking divorce is required to prove the existence of the grounds, provided in the said section. In the present case, the only ground taken by the Appellant was "cruelty" which is a ground seeking dissolution of marriage under Section 13(1)(ia) of the Hindu Marriage Act, 1955. Here, the term "petitioner" indicates either the husband or the wife, as the case may be. In the present case, the only ground taken by the Appellant was "cruelty" which is a ground seeking dissolution of marriage under Section 13(1)(ia) of the Hindu Marriage Act, 1955. Here, the term "petitioner" indicates either the husband or the wife, as the case may be. A Petitioner, in order to get a decree for dissolution of marriage on the ground of "cruelty", is required to prove that he or she has been treated with cruelty by the other side. As discussed above, there is not an iota of evidence to show that the Appellant, i.e., the husband was treated with cruelty by the Respondent. Therefore, on careful perusal of the entire evidence on record and in the light of the decisions cited above, we have no hesitation in holding that the Appellant-husband failed to establish that he was treated with cruelty by the Respondent-wife. Therefore, the Appellant failed to substantiate the ground, taken by him, for seeking a decree for dissolution of the marriage. In view of the above, we find no difficulty in holding that the learned trial Judge committed no error by refusing to grant the prayer for divorce. Therefore, we find no merit in this appeal requiring interference with the impugned judgment and order. 25. In the result, the appeal stands dismissed. No cost. Return the lower court records. Appeal dismissed.