JUDGMENT Swapan Chandra Das, J. 1. By this matrimonial appeal, under Section 28 of the Hindu Marriage Act, 1955, the Appellant Dr. Nirmal Nath (husband), challenged the judgment and decree dated 23.12.2010 (decree signed on 03.01.2011) passed by learned District Judge, Tinsukia in Title Suit (matrimonial) No. 27 of 2008. By the impugned judgment and decree, learned District Judge directed dissolution of the Hindu marriage solemnized between the appellant and the respondent on 20.06.1999 as per Hindu rites and customs. Heard learned counsel, Mr. K. Agarwal for the appellant and learned counsel, Mr. D.R. Gogoi for the respondent. 2. The respondent (wife) set the law in motion presenting a petition under Section 13 of Hindu Marriage Act seeking dissolution of the marriage between her and her husband alleging interalia that their marriage was solemnized on 20.06.1999 as per Hindu rites and social customs in her parental house at Gela Pukhuri road, Tinsukia, on negotiation with the consent of the parents of both side. Before marriage, the respondent was working as a Lecturer in English, in a Govt. College, Kamki, Arunachal Pradesh and the appellant (husband) was working as a Veterinary doctor and was posted at Changlang, Arunachal Pradesh. After marriage, they lived and cohabited as husband and wife in the place of their posting after taking leave or on convenient holidays. The respondent thereafter got herself transferred to a College at Changlang, 15 KM away from Changlang town with a view to live with her husband. She alleged that though her husband had a vehicle, he was reluctant to provide the vehicle for her way to college and back and therefore, she had to arrange a quarter in the college campus. However, the matrimonial life continued and a female child Ritika was born to them on 10.09.2002. She alleged that her husband did not make any arrangement for their stay together with the newly born daughter and also did not take any care of her and the daughter and left them alone in the government quarter. With a view to live together in the year 2005, she got herself transferred to a govt. college at Deomali of Tirup District and her husband also made a prayer for such transfer but ultimately her husband through his department did not take step for such transfer. With a view to live together in the year 2005, she got herself transferred to a govt. college at Deomali of Tirup District and her husband also made a prayer for such transfer but ultimately her husband through his department did not take step for such transfer. It is alleged by the respondent that during their conjugal life, her husband used to quarrel with her on petty issues and would hurl abusive words to her and thereby inflict torture on her both mentally and physically. He also used to abuse her with slang language uttering the name of her parents and whenever she would raise protest, her husband would get excited and would physically assault her. On many occasions she was subjected to cruelty both mentally and physically. She also alleged that her husband through cell phone scolded her in filthy and slang language and also used to send her SMS with abusive words in filthy language. On some occasions, her husband, while went to live with her in her government quarter, used to unnecessarily create disturbance and quarrel with her but she would tolerate it considering her social status and prestige in the locality. On 05.11.2006, her husband went to her govt. quarter at Deomali and scolded her with slang language and brought out various valuable articles such as fridge, TV, blankets, utensils etc. and when she objected to such activity, she was physically assaulted. In the worst situation, police was informed and her husband, before the police, told that he snapped off relations with her and thereafter taken away all articles. After 05.11.2006 her husband never resided with her and he was also not taking care of their minor daughter. For maintaining their daughter, she has been spending Rs. 6000/- and she demanded half of the expenditure from her husband. She prayed for a decree of divorce. 3. The appellant contested the suit by filing written statement denying the allegations made in the petition and interalia stated that prior to their marriage they have developed a good relation and occasionally they used to meet one another on their way to working place and ultimately they decided to enter into a wedlock. Thereafter both of them informed their parents and with the consent of their respective parents they performed their marriage on 20.06.1999. Thereafter both of them informed their parents and with the consent of their respective parents they performed their marriage on 20.06.1999. After the marriage, they led their conjugal relation peacefully and out of their wedlock a girl child was born and both of them gave her name as Ritika Nath and accordingly on 08.11.2002 a Birth Certificate was issued from Changlang vide Registration No. CLG-501/02. At the time of marriage, the respondent was working on Adhoc basis as she was only a post graduate. For the purpose of permanent appointment of the respondent a Ph.D. degree was essential as such the appellant extended all sorts of co-operation to the respondent, such as giving her all opportunity for study, visiting Capital Library in Itanagar, collecting material for preparing thesis, field works, and many a times visited Naharlagan for the said purpose and ultimately she got the Ph.D. and got her permanent appointment. But after having Ph.D degree, he observed that the respondent's mother started interfering in their marital relation and off and on she used to insist the respondent to come to her house at Deomali and to stay there. It is further alleged that as and when the Appellant visited the house of his in-laws to see his child and wife, the mother of the respondent misbehaved with him and thereby many a times humiliated him. In the meantime, though both of them tried to get their transfer at Deomali, the respondent succeeded to get her transfer at Deomali, but the appellant's transfer application was not considered for want of any vacancy at Deomali in the veterinary department. Accordingly, the respondent shifted to Deomali and the appellant used to visit and stay together as and when he got the opportunity in weekly holidays and even after taking leave. But as and when he visited the respondent at Deomali, her mother came there and humiliated him on this or that pretext even in presence of the respondent, but the respondent did never raise protest to her mother. It is further stated that at the time of admission of Ritika in the school the respondent without the consent of the appellant got her surname changed and gave as Ritika Dowarah Nath and thereby ignored the identity of her father, i.e. the appellant. It is further stated that at the time of admission of Ritika in the school the respondent without the consent of the appellant got her surname changed and gave as Ritika Dowarah Nath and thereby ignored the identity of her father, i.e. the appellant. He further stated that even after all this he used to maintain the marital relation with the respondent, as and when possible and even on 04.06.2008 he visited the house of the respondent along with some other officials on his way to some official works in the said area and also took his meal jointly and also discussed their family affairs. But the respondent did not disclose anything about the filing of the suit and/or her intention to get divorce. The appellant further stated that he never tortured the respondent and also never neglected her and as there is no desertion, the respondent is not entitled to any relief of divorce. He also stated that he has been working as a Veterinary doctor with a basic pay of Rs. 8000/- per month and his wife (respondent) also working as a Lecturer and her salary is also Rs. 8000/- per month. 4. The trial court considering the pleadings of the parties, formulated following issues:- (i) Whether the defendant husband has treated the petitioner with cruelty? (ii) Whether the petitioner is entitled to any decree of divorce? (iii) Whether the petitioner is entitled to take custody of the minor daughter Ritika Dowara (Nath) for her education and welfare? (iv) Whether the minor Ritika Dowara (Nath) is entitled to Rs. 3,000/-per month from the defendant as a part of her maintenance? (v) Whether the petitioner is entitled to any other relief? 5. In support of her case, the respondent examined herself as P.W. 1 and she was cross examined on behalf of the appellant. The appellant also examined himself as D.W. 1 and he was cross examined on behalf of the respondent. The trial Judge considering the facts and circumstances and the evidence on record. decided all the issues in favour of the respondent and accordingly, directed dissolution of marriage by a decree of divorce. 6. Learned counsel, Mr. Agarwal appearing for the appellant, has submitted that the respondent presented the petition under Section 13 of the Hindu Marriage Act seeking dissolution of marriage by a decree of divorce on the ground of cruelty and desertion. 6. Learned counsel, Mr. Agarwal appearing for the appellant, has submitted that the respondent presented the petition under Section 13 of the Hindu Marriage Act seeking dissolution of marriage by a decree of divorce on the ground of cruelty and desertion. But the respondent has failed to adduce any cogent evidence in support of her allegation that the appellant exercised cruelty on her which was sufficient to hold that it was of such a degree or magnitude that the marital relation between them should be ceased for ever. Whatever has been alleged are of ordinary wear and tear of the matrimonial life and some vague and baseless allegation of physical and mental torture has been alleged by the respondent-wife in her deposition, in support of which there is no other evidence on record and learned District Judge thereby committed a gross error in decreeing the suit. He has also submitted that the appellant never exercised any cruelty on the respondent and that he tried his level best to live together but the wife is not willing and reluctant to live together and to mend the marital bond. 7. In contrast, learned counsel, Mr. Gogoi has submitted that both the appellant and the respondent are educated and highly placed in the society. Their marriage was solemnized in the year 1999 and a girl child was also born to them during their fractured married life. The matrimonial relation has already reached a point of no return because of the cruelty and abnormal behaviour and treatment of the appellant. Drawing our attention to the SMSs sent by the appellant to the respondent which have been recorded in the deposition of the respondent, learned counsel submits that such filthy and vulgar SMSs are enough to cause severe mental cruelty to the respondent for which alone the respondent may pray for a decree of divorce. He has also submitted that the broken marriage somehow subsisted till 2006, and thereafter the matrimonial bond completely severed and no love and affection left between the parties for living together as husband and wife. The marital relation between them broken irretrievably and therefore, the trial court has rightly considered the evidence and materials in respect of cruelty and desertion, and the decree of dismissal of marriage need not be interfered by this court. 8. The marital relation between them broken irretrievably and therefore, the trial court has rightly considered the evidence and materials in respect of cruelty and desertion, and the decree of dismissal of marriage need not be interfered by this court. 8. Admittedly, marriage between the appellant and the respondent was solemnized on 20.06.1999 as per Hind rites and a girl child, Ritika, was born to them on 10.9.2006. They lived and cohabited as husband and wife at Changlang and also thereafter at Deomali. The allegation made by the respondent is that at Changlang while they lived and cohabited as husband and wife in the residence of the appellant at Changlang town and also in the quarter of the respondent in her college compound about 15 KM away from Changlang town, the matrimonial discord started between them. The respondent alleged that her husband used to pick up quarrel on petty issues and would hurl abusive words with filthy and vulgar language even uttering the name of her parents and her parental family. When she would raise protest the respondent used to physically assault her. In her evidence she specifically stated that on many occasions she was subjected to physical assault. She has also alleged that in her quarter also the appellant quarreled with her raising petty issues and used to create unhealthy scene but she would tolerate it with a view to preserve her dignity in the society. She stated that on 05.11.2006 her husband went to her quarter at Deomali and taken away house hold articles and she was also physically assaulted. At that time, police also arrived and her husband in presence of police warned her that all matrimonial relation between them had been snapped off. In cross examination of the respondent the appellant rather admitted the incident occurred on 05.11.2006. The respondent in her evidence placed before the trial court some of the SMSs she received in her mobile phone from the mobile phone of her husband and also stated that she brought her mobile phone with her to prove those SMSs she received from her husband. Some of the SMSs which the respondent placed on record are as follows:- (i) Reason, you are from prostitute family (sent on 06.05.06 at 10.52 Pm) (ii) It is your family profession since long back. (prostitution). (Sent on 04.05.06 at 10.52 pm) (iii) I fuck your mother and mahi. Some of the SMSs which the respondent placed on record are as follows:- (i) Reason, you are from prostitute family (sent on 06.05.06 at 10.52 Pm) (ii) It is your family profession since long back. (prostitution). (Sent on 04.05.06 at 10.52 pm) (iii) I fuck your mother and mahi. (Sent on 05.05.06 at 9.35 pm) (iv) M.B. Singh needs you for tonight. (Sent on 05.05.06 at 11.41 pm) (v) I know you had slept many times with Riddi at many places. (sent on 05.05.06 at 12.59 am) (vi) On coming Friday meet me at Margherita court with father. (Sent on 09.05.06 at 4.53 pm) (vii) If you are product from single father, then meet me tomorrow at Tinsukia at 10.00 hr near bus stand. (Sent on 13.05.06 at 12.38 pm) (viii) If you want divorce from my side, I will happily give you. Tomorrow we will meet at Tinsukia. (Sent on 13.05.06 at 3.30 pm) (ix) I am coming for all my belongings/luggage (Sent on 13.10.06 at 2.38 pm) (x) If you want divorce, tell me directly. Don't play games with me. You are at Banaras. (Sent on 11.02.07 at 2.40 pm) 9. The appellant in his evidence denied the allegation of exercise of cruelty on the respondent and further alleged that the respondent after doing her doctorate, totally changed her attitude towards the appellant and she took her mother to her quarter at Deomali and her mother started harassment and humiliation on him. She was a changed woman after completion of her doctorate and was indifferent to her husband i.e. the appellant but the appellant was all along interested and keen to maintain the marital relation. It is the further case of the appellant that the allegations made against him in respect of cruelty and desertion is imaginary and not true at all. 10. The expression "cruelty" has not been defined in the Hindu Marriage Act, 1955. The legal conception of 'cruelty' and the kind or degree of 'cruelty' necessary to amount to a matrimonial offence has also not been defined under the Act. But the judgment laws, by now, well defined the term. Probably the legislature has consciously refrained from making any attempt in giving a comprehensive definition of the expression that may cover all the cases, realising the danger in making such attempt. But the judgment laws, by now, well defined the term. Probably the legislature has consciously refrained from making any attempt in giving a comprehensive definition of the expression that may cover all the cases, realising the danger in making such attempt. The accepted legal meaning in England and also in India of this expression, which is rather difficult to define, had been conduct of such character as to have caused danger to life, limb, or health (bodily or mentally), or as to give rise to a reasonable apprehension of such danger. A consistent and continuous unreasonable conduct or behaviour of one spouse to the other also, in a given case will constitute cruelty. Trivialities, which can be called as reasonable wear and tear of married life, do not, however, constitute cruelty. To constitute cruelty, the misconduct on the part of a spouse must amount to more than mere wear and tear of the married life. Pin-pricks without more will not amount to cruelty. Day to day behaviour of the respondent spouse, which disturbed the mental peace and harmony of the appellant, may amount to legal cruelty. Law requires that the appellant will have to prove that the cruelty is of such a character as to cause a reasonable apprehension in the mind of the appellant that it will be harmful or injurious for him or her to live with the other. The question whether the act complained of so cruel, is to be determined from the whole of the facts and the matrimonial relation between the spouses regard being had to their culture, temperament, status in life and state of the health of the parties, interaction between them in their daily lives etc. Every act or conduct of one spouse, which makes the other spouse unhappy, cannot amount to cruelty in ordinary sense. It has been used in relation to human conduct or human behaviour and it is no doubt a difficult task for a divorce court to take a decision taking into account such matrimonial discord as to whether a particular act or omission on the part of one spouse constitutes cruelty as against the other. It is expected that both the spouse shall respect the matrimonial duties and obligations. The foundation of a sound marriage is tolerance, adjustment and respecting one another. It is expected that both the spouse shall respect the matrimonial duties and obligations. The foundation of a sound marriage is tolerance, adjustment and respecting one another. Tolerance to each others fault to a certain bearable extent has to be inherent in every marital life. Petty quibbles, trifling differences should not be exaggerated and magnified to destroy what is said to have been made in heaven. All quarrels must weighed from that point of view in determining what constitutes cruelty in each particular case and always keeping in view the physical and mental conditions of the parties, their character and social status. A too technical and hypersensitive approach would be counter productive to the institution of marriage. The courts do not have to deal with the ideal husbands and ideal wives. It has to deal with particular man and woman before it. 11. While keeping ourselves alive, with the principles settled by now, let us consider the factual aspects which have been accepted by the divorce court as sufficient to prove the cruelty. The appellant admittedly did not make any serious allegation against the respondent whereas, the respondent has made categorical allegation against the appellant that the appellant is not at all a responsible husband and that he, by his acts and omissions made the life of the respondent miserable. It is observed by the divorce court that both the appellant and the respondent are highly educated and well placed persons in the society. The respondent made categorical allegation that the appellant would pick up quarrel on a very trifling issues and would hurl abusive words even naming her parents and parental family. That was not in one occasion, but continued for few years. The respondent brought on record certain SMSs sent by her husband which have been reflected hereinabove and those SMSs clearly indicates the mental state of the appellant that he would hurl such abusive vulgar language to his wife which amounts to serious mental cruelty. Except denial, there is nothing in the evidence on record to disbelieve the allegation made by the wife respondent about the slang and vulgar words used in the SMSs which alone is sufficient to hold that the appellant is guilty of matrimonial offence of cruelty. 12. Except denial, there is nothing in the evidence on record to disbelieve the allegation made by the wife respondent about the slang and vulgar words used in the SMSs which alone is sufficient to hold that the appellant is guilty of matrimonial offence of cruelty. 12. Learned counsel of the respondent has further contended that the marital bond between the appellant and the respondent, for all practical purpose, is dead and there is no use at all of keeping the bond alive while the conjugal relation has already ceased for a continuous period of more than 7 years. Learned counsel, Mr. Agarwal, per contra. has submitted that irretrievable break down of marriage is not at all a ground for granting divorce and the burden of proving the allegation of cruelty heavily lies on the appellant and so the court is to see whether the appellant successfully proved the allegation of cruelty or not. 13. The Supreme Court in the case of Vishnu Dull Sharma Vs. Manju Sharma reported in (2009) 6 SCC 379 ; Anil Kumar Jain Vs. Maya Jain reported in (2009) 10 SCC 415 ; Manish Gael Vs. Rohini Gael reported in (2010) 4 SCC 393 ; Neelam Kumar Vs. Dayarani, reported in (2010) 13 SCC 298 and in numerous other cases categorically held that "irretrievable breakdown of marriage" is not provided by the legislature as a ground for granting divorce under Section 13 of the Hindu Marriage Act and so, neither the divorce court nor the High Court grant a decree of divorce on that ground. In the case at hand, the respondent has made categorical statement in her pleadings and in her deposition that there is no matrimonial relation between them from 05.11.2006. The appellant in his pleadings stated that he last visited the house of the respondent at Deomali with some other officials on 04.06.2008 on his way to some other official work in that locality. But in support of his such pleadings, he stated nothing in his deposition before the court and hence, the statement of the respondent that the matrimonial relation between them has ceased w.e.f. 05.11.2006 sustains. It shows that love and affection between them has permanently been ceased. But in support of his such pleadings, he stated nothing in his deposition before the court and hence, the statement of the respondent that the matrimonial relation between them has ceased w.e.f. 05.11.2006 sustains. It shows that love and affection between them has permanently been ceased. According to the respondent, she is no longer willing to have the matrimonial relation with the appellant The appellant though contested the case, but foiled to bring on record any convincing evidence, that he is still intending to restore the conjugal life and that at least something remains for them to live together in near future. 14. "Irretrievable breakdown of marriage" is not a ground to grant divorce under Section 13 of the Hindu Marriage Act. In the case of Smt. Bhulu Rani Dey (Das) Vs. Rabi Dey reported in AIR 2012 Gau 128 , Division Bench of this Court, in which one of us (S.C. Das, J) was in the Bench almost in similar facts and circumstances held- The irretrievable breakdown of marriage even though cannot be availed of as a ground directly for grant of divorce under Section 13 of the Hindu Marriage Act, but continuance of such category of marriage inflicts the spouse with cruelty within the meaning of Section 13(1)(i-a) of the Hindu Marriage Act and it constitutes 'cruelty' attributable to the spouse who resisted the prayer for granting divorce. Agony of the breakdown of marriage cannot be excluded from the realm and category of cruelty. 15. It is evident in the facts and circumstances of this case, that matrimonial relation between the appellant and the respondent was already fractured while they had been living at Changlang. It has completely ceased w.e.f. 05.11.2006. Under such circumstances, while the marital bond between the parties is already dead, resistance of the prayer for granting divorce by the husband may be termed to have been intended only to inflict mental agony to the wife-respondent. Human life is for a short span of time. A man and a woman, who were completely unknown to each other, tie their knot of marriage with a high hope and aspiration looking forward for a life full of mirth and merriment. Nobody, perhaps start their marital life with an anxiety that it will collapse soon thereafter. Human life is for a short span of time. A man and a woman, who were completely unknown to each other, tie their knot of marriage with a high hope and aspiration looking forward for a life full of mirth and merriment. Nobody, perhaps start their marital life with an anxiety that it will collapse soon thereafter. Once it is collapsed because of the gap in the understanding of the spouses or because of other surrounding factors or for the cruel behavior by one of them, in our considered opinion, it will be totally useless in keeping the thread of marital bond alive while all mutual love and affection and earthly feeling between them vanished. We may gainfully quote here a observation made by the Hon'ble Andhra pradesh High Court in the case of Smt. S. Vijaylakshmi Vs. S. Bheem Reddy reported in AIR 1988 (AP) 296, thus:- We are reminded of a well-found saying that "A House is Built with Bricks and Stones But a home is Built with Love and Affection." A matrimonial home cannot be built by bricks and stones but only built by love and affection. If there is no love-lost between the partners, the home collapses and any attempt to bring reconciliation between the partners would be a futile exercise. Indian tradition & culture may not permit granting of divorce on trivial grounds. Law may not agree that small disputes could be a ground for divorce. As we have observed that a matrimonial home is built with love and affection and when such love and affection are absent, instead hatred has marred the homely atmosphere, the matrimonial home becomes hell. We are rather distressed to observe that love & affection between the parties have vanished & in its place hatred have been blossomed. Therefore we are of the view that no useful purpose would be served if they are 'ordered' to stay together. Irretrievable breakdown of marriage is not a ground for divorce by itself. But while scrutinizing the evidence on record to determine whether the grounds on which the divorce is sought are made out, the circumstances can be taken to consideration. No divorce can be granted on the ground of irretrievable breakdown of marriage if the party seeking divorce on this ground is herself or himself at fault. But while scrutinizing the evidence on record to determine whether the grounds on which the divorce is sought are made out, the circumstances can be taken to consideration. No divorce can be granted on the ground of irretrievable breakdown of marriage if the party seeking divorce on this ground is herself or himself at fault. Here, in the case at hand, the appellant husband alleged nothing attributable to the respondent for the breakdown of marriage. He has only alleged that his wife after doing her doctorate completely changed her attitude and that her mother inflicted harassment and humiliation when he visited his wife's house. Such statement of the appellant can in no way be termed as a willful misconduct by the respondent towards her husband. For a better appreciation of breakdown of marriage, we may refer here a few excerpts from the 71st report of the Law Commission of India on the Hindu Marriage Act, 1955--"irretrievable breakdown of marriage"--dated April 7, 1978 which throw much light on the matter:- Irretrievable breakdown of marriage is now considered, in the laws of a number of countries, good ground of dissolving the marriage by granting a decree of divorce.................................. Proof of such a breakdown would be that the husband and wife have separated and have been living apart for, say, a period of five or ten years and it has become impossible to resurrect the marriage or to reunite the parties. It is stated that once it is known that there are no prospects of the success of the marriage, to drag the legal tie acts as a cruelty to the spouse and gives rise to crime and even abuse of religion to obtain annulment of marriage......................... The theoretical basis for introducing irretrievable breakdown as a ground of divorce is one with which, by now, lawyers and others have become familiar. Restricting the ground of divorce to a particular offence or matrimonial disability, it is urged, caused injustice in those cases where the situation is such that although none of the parties is at fault, or the fault is of such nature that the parties to the marriage do not want to divulge it, yet there has arisen a situation in which the marriage cannot be worked. The marriage has all the external appearances of marriage, but none of the reality. The marriage has all the external appearances of marriage, but none of the reality. As is often put pithily, the marriage is merely a shell out of which the substance is gone. In such circumstances, it is stated, there is hardly any utility in maintaining the marriage as a facade, when the emotional and other bounds which are of the essence of marriage have disappeared. After the marriage has ceased to exist in substance and in reality, there is no reason for denying divorce. The parties alone can decide whether their mutual relationship provides the fulfillment which they seek. Divorce should be seen as a solution and an escape route out of a difficult situation. Such divorce is unconcerned with the wrongs of the past, but is concerned with bringing the parties and the children to terms with the new situation and developments by working out the most satisfactory basis upon which may regulate their relationship in the changed circumstances............................ Moreover, the essence of marriage is a sharing of common life, a sharing of all the happiness that life has to offer and all the misery that has to be faced in life, an experience of the joy that comes from enjoying, in common, things of the matter and of the spirit and from showering love and affection on one's offspring. Living together is a symbol of such sharing in all its aspects. Living apart is a symbol indicating the negation of such sharing. It is indicative of a disruption of the essence of marriage "breakdown" and if it continues for a fairly long period, it would indicate destruction of the essence of marriage "irretrievable breakdown" 16. The Supreme court in the case of Dastane Vs. Dastane reported in AIR 1975 SC 1534 , has held that the court should consider the facts and totality of the circumstances, for the purpose of finding whether the alleged lapses are ordinary wear and tear of married life, spouses are undoubtedly supposed and expected to conduct their joint venture as best as they might, but it is no function of the court inquiring into a charge of cruelty to philosophies on the modalities of married life. In the case of Manish Goel (supra) the Apex Court has held in no uncertain terms that where the marriage has broken down irretrievably, it causes insurmountable agony and misery. In the case of Manish Goel (supra) the Apex Court has held in no uncertain terms that where the marriage has broken down irretrievably, it causes insurmountable agony and misery. In view of this court, the state of suffering agony and misery cannot be excluded from the general sweep and connotation of the word "cruelty". In the case of V. Bhagat Vs. V.D. Bhagat reported in AIR (1994) 1 SCC 337 the Supreme Court approving the ratio laid down in Sheldon V. Sheldon has held that the "the categories of cruelly 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, capacity or incapability to tolerate the conduct complained of. Such is the wonderful realm of cruelty." In the case at hand, we are of considered opinion that the divorce court appreciated the evidence on record and the facts and circumstances in its right perspective and has rightly held that the appellant has exercised cruelty on the respondent both mentally and physically and the marital relation between them for all practical purpose, is dead and we find nothing to disapprove the finding of the divorce court. 17. In view of the discussions made above, we find no merit in the appeal. 18. The maintenance, which has been allowed to the minor daughter, since a consenting order, deserves no interference. 19. Accordingly, the appeal fails and is dismissed, but in the circumstances without cost. Send back the L.C. records along with a copy of this judgment. Appeal dismissed