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2012 DIGILAW 2308 (BOM)

Abha W/o Nitin @ Ganesh Rakatsinge v. Nitin @ Ganesh Rakatsinge

2012-12-10

A.S.CHANDURKAR, G.A.SANAP

body2012
JUDGMENT : G.A. SANAP, J. In both these appeals the parties are same and therefore, these two appeals are disposed of by common Judgment. The Family Court Appeal No. 25 of 2015 is filed by the appellant being aggrieved by the judgment and decree passed in Petition No. A-203 of 2013 whereby, the Family Court granted the decree for restitution of conjugal rights, as prayed by the respondent. The Family Court Appeal No. 26 of 2015 is filed by the appellant being aggrieved by the judgment and decree passed in Petition No. A-962 of 2011 whereby, the Family Court rejected the decree for divorce, as prayed by the appellant. 2. The facts giving rise to these appeals are as follows : The petitions filed by both the parties before the Family Court, Nagpur was the second round of litigation between them praying the identical reliefs. The marriage between the appellant and respondent is the inter caste love marriage. They got married on 10-7-2000 at Nagpur. The couple was blessed with a daughter, on 28-6-2008. In the year 2002, the appellant had filed petition bearing No. A-421 of 2002 for divorce. The respondent had filed the petition bearing No. 1824 of 2004 for restitution of conjugal rights. The petition filed by the appellant for divorce was dismissed and the petition filed by the respondent for restitution of conjugal rights was allowed. The friends and relatives after this first round of litigation intervened and therefore, the misunderstanding between them was sorted out. They decided to continue their married life. The marriage between the appellant and the respondent was kept secret from the families and therefore, at the insistence of the families on 5-10-2006, by performing the religious ceremonies, they again got married. The appellant and the respondent, thereafter, resumed cohabitation. They resided together with mother of the respondent, his sister, his elder brother and one family friend. The house of respondent consists of two bedrooms, living room and kitchen. 3. It is the case of the appellant, that prior to 5-10-2006, she was working as ‘Medical Practitioner’ with Charitable Trust-Bhauji Daftari Smarak Trust at Mahal, Nagpur. As far as the allegations of cruelty is concerned, according to the appellant, the family members of the respondent compelled her to do all household work alone. They did not engage maid/servant. 3. It is the case of the appellant, that prior to 5-10-2006, she was working as ‘Medical Practitioner’ with Charitable Trust-Bhauji Daftari Smarak Trust at Mahal, Nagpur. As far as the allegations of cruelty is concerned, according to the appellant, the family members of the respondent compelled her to do all household work alone. They did not engage maid/servant. The household work of washing utensils, clothes, sweeping and mopping was below the dignity and status of the appellant, being a Medical Practitioner. The family members of the respondent used to continuously criticize and taunt the appellant inasmuch as the marriage between the appellant and respondent was inter-caste marriage. The appellant was subjected to insult and humiliation by the respondent and his family members. The grievance made by the appellant to the respondent, about her miseries and agonies, fell on deaf ear. On the contrary, the respondent told her that due to their inter caste marriage, they were unable to find a suitable match for his sister. The appellant would, therefore, be required to tolerate and bear with the situation. The appellant was conceived in January-February, 2007. It is the case of the appellant that during her first pregnancy, she was tortured and humiliated. During this period of her pregnancy she was subjected to insurmountable cruelty. It is stated that due to the stress and depression, there was miscarriage. On 25-6-2007, the family members came to know that it was a male fetus. Therefore, the harassment and cruelty was increased. They blamed the appellant for the miscarriage. They told her that the father of the respondent-Nitin, who expired on 25-12-2000 was destined to take rebirth in the family. The respondent and his family members cursed the appellant for denying them an opportunity of company of the father of the respondent on re-birth. However, the medical check up revealed that the abortion was caused due to the ‘Rubella infection’. It is stated that they blamed the appellant for murdering the father of Nitin. The appellant, therefore, underwent serious mental torture, stress and trauma. It is stated that the cruelty was meted out to her for no fault on her part. 4. The appellant pleaded the ground of desertion. The appellant was again conceived in October, 2007. The ill-treatment, insult and humiliation to her at the hands of respondent and family members continued. The doctor advised her bed-rest. It is stated that the cruelty was meted out to her for no fault on her part. 4. The appellant pleaded the ground of desertion. The appellant was again conceived in October, 2007. The ill-treatment, insult and humiliation to her at the hands of respondent and family members continued. The doctor advised her bed-rest. During her pregnancy, they did not take her proper care. They did not provide her timely food and medicines. Her health was deteriorated. In the 7th month of pregnancy, her health had become delicate. The respondent after performing 7th month ceremony took the appellant to her parents’ house. The appellant delivered daughter on 28-6-2008 at Saboo Nursing Home. It is stated that after dropping the appellant, at her parents’ house, he did not bother to make the inquiry of her well-being. The parents of the appellant took her care and borne the expenses for her delivery. The respondent only visited twice or thrice to take the photographs of child. The appellant insisted him to take her back to his house. But, the respondent on one pretext or the other prolonged it. He did not take her back. On the other hand, he insisted that he would join her company at her parents house, provided the flat of her parents is transferred to his name. It is the case of the appellant that since then she has been residing at her parents house. The respondent did not show any interest either in appellant or in the daughter. The respondent became greedy. He wanted the property of her parents. He neglected the appellant and the daughter. He completely stopped attending house of the parents of the appellant from December, 2008. It is alleged that the respondent completely deserted the appellant for more than two years without any justifiable cause or reason. 5. The respondent opposed the petition. He denied the material allegations made by the appellant. According to the respondent, the allegations of cruelty and desertion made by the appellant are false and frivolous. The respondent and his family members neither subjected the appellant to cruelty nor he deserted the appellant. They lived together at his house after their marriage. It is stated that the appellant is a woman of independent nature. The appellant did not like the family home of the respondent. She went to her parents’ house for delivery. She did not come back. They lived together at his house after their marriage. It is stated that the appellant is a woman of independent nature. The appellant did not like the family home of the respondent. She went to her parents’ house for delivery. She did not come back. The respondent requested her to come back, but to no avail. The appellant flatly refused to come back. It is the case of the respondent that he has sincere desire to resume cohabitation with the appellant. He made sincere efforts in that direction. It is stated that the love marriage between the appellant and respondent in the year 2000 was secret affair. The parents of the appellant started search for suitable groom. The parents at that time came to know about the marriage between the appellant and respondent. They scolded the appellant. The family members of the appellant came to his house and made inquiry with them about the marriage certificate, letters etc. The respondent handed over the documents to them. They did not approve the marriage between the appellant and respondent. They gave proposal for dissolution of marriage. The respondent did not agree. They were, therefore, annoyed. It is the case of the respondent that, therefore, they conspired to trouble the respondent and his family members. The false report was filed by the appellant on the insistence of her parents under section 498-A and 506 of the Indian Penal Code against the respondent and his family members. The respondent was arrested in the said case by Police. In this way, they tried to pressurize and persuade him to give a divorce to the appellant. However, the respondent did not succumb to their pressure. 6. The appellant after settlement joined the company of the respondent on 5-10-2006 and they lived happily. They visited Delhi, Shimla, Kullu-Manali, Kalaka and Chandigarh together with closed friends of the respondent. They celebrated their first Diwali at the house of the respondent. In January and April, 2007 they attended the marriage of relatives at Barhanpur with the parents of the appellant. It is stated that the appellant became pregnant. However, during pregnancy she did not take care and therefore, miscarriage occurred. The respondent paid for her medical treatment. 7. The parents of the appellant performed the pooja of their Kuldaivat at their house and at that time, on their suggestions the respondent left the appellant at her parents’ house. It is stated that the appellant became pregnant. However, during pregnancy she did not take care and therefore, miscarriage occurred. The respondent paid for her medical treatment. 7. The parents of the appellant performed the pooja of their Kuldaivat at their house and at that time, on their suggestions the respondent left the appellant at her parents’ house. During this period, he regularly visited her. After miscarriage when she recovered, the respondent brought her back. They enjoyed their married life. His family members took care of her. All the family members celebrated her birthday on 25-10-2007. The daughter was born on 28-6-2008. She went to her parents house. The respondent regularly visited her. He provided all help and assistance to her. He took her care. Her family members were on good terms with him. 8. It is denied that the appellant was subjected to cruelty as alleged. It is also denied that the respondent deserted her. According to the respondent, they employed the maid/servant for doing household chores. The appellant was not required to do any household work. A separate room with all facilities was provided to her. Their baby was healthy. It is the case of the respondent that after the birth of their daughter the appellant insisted that his other family members should leave their home and shift with his elder brother at Chandrapur. Since it was not possible, the respondent gave proposal that they would reside separately in a tenanted premises. The appellant and respondent purchased the household articles. They searched for the tenanted premises. However, the brother of the appellant was against this idea. The appellant after the birth of the daughter did not return back. The respondent tried his best, however, it proved futile. On these grounds the respondent prayed for dismissal of the petition for divorce. 9. The respondent filed a petition for restitution of conjugal rights. In the petition filed for restitution of conjugal rights the respondent reiterated the facts stated in his written statement. The appellant filed her written statement in the petition filed for restitution of conjugal rights. In the written statement, she has reiterated the facts stated in the divorce petition and opposed the same. 10. Both the petition were clubbed together and disposed of by the common judgment. The parties adduced their oral and documentary evidence. The divorce petition filed by the appellant was dismissed. In the written statement, she has reiterated the facts stated in the divorce petition and opposed the same. 10. Both the petition were clubbed together and disposed of by the common judgment. The parties adduced their oral and documentary evidence. The divorce petition filed by the appellant was dismissed. The petition filed by the respondent for restitution of conjugal rights was decreed. Being aggrieved by the judgment and order, the appellant has filed two separate appeals. 11. We have heard the learned Advocate for the appellant and the learned Advocate for the respondent. We have perused the record and proceedings. In view of the facts and evidence, following points fall for our determination. 1) Whether the appellant has made out a case for granting the decree of divorce on the ground of cruelty and desertion ? 2) Whether the judgment and decree granted for restitution of conjugal rights is sustainable ? 3) What order ? 12. The learned Advocate for the appellant submitted that the findings recorded by the learned Judge of the Family Court that the allegations made by the appellant on the point of cruelty and desertion are general in nature is not at all sustainable in as much as the appellant has pleaded the material facts in the petition and adduced the evidence to prove the same. The learned Advocate submitted that there is a specific pleading in the petition on the point of cruelty and desertion and the evidence adduced is consistent with the facts stated in the petition. The learned Advocate took us through the pleadings and evidence to substantiate his submission that the findings recorded vis-à-vis general nature of the pleadings is contrary to the record. The learned Advocate relying upon the cross examination of the respondent and the evidence of the other witnesses submitted that the material fact on the point of desertion and cruelty substantiated with the cogent and concrete evidence of the appellant, has not been rebutted. In the submission of the learned Advocate for the appellant the learned Judge of the Family Court without recording appealable reasons discarded the case and evidence of the appellant on the point of cruelty and desertion put forth for seeking the decree of divorce. In the submission of the learned Advocate for the appellant the learned Judge of the Family Court without recording appealable reasons discarded the case and evidence of the appellant on the point of cruelty and desertion put forth for seeking the decree of divorce. It is the submission of the learned Advocate that a well educated woman like the appellant would not take the extreme decision of dissolution of marriage unless she has been compelled to take such a decision after delving deep on such decision multiple times. The evidence adduced by the appellant according to the learned Advocate is sufficient to accept the case of the appellant on both the grounds. She has proved the ground of cruelty and desertion by elaborating facts pleaded in the petition at the time of the evidence. The learned Advocate submitted that the evidence adduced by the respondent is not cogent and reliable to rebut the claim of the appellant. According to the learned Advocate, the learned Judge of the Family Court ought to have granted the decree for divorce on the ground of cruelty and desertion. In order to substantiate his submission the learned Advocate relied upon the following decisions and submitted that the case of the appellant has been fully covered by the law laid down in the decisions. i) Naveen Kohli vs. Neelu Kohli, Civil Appeal No. 812 of 2004. ii) Praveen Mehta vs. Inderjit Mehta, AIR 2002 SC 2582 iii) Sujata Uday Patil vs. Uday Madhukar Patil, reported in 2007 AIR SCW 896 13. The learned Advocate for the respondent submitted that in the first as well as in the second round of litigation between the parties on identical provisions of law he has pleaded for restitution of conjugal rights. This conduct of the respondent reflects mainly on his intention that all throughout he intended to preserve his marriage with the appellant. The respondent has adduced the evidence of six independent witnesses to corroborate all the points pleaded by him in his written statement. In the submission of the learned Advocate for the respondent, the facts, circumstances and the evidence brought on record by the respondent are sufficient to reject the decree for divorce. The respondent has adduced the evidence of six independent witnesses to corroborate all the points pleaded by him in his written statement. In the submission of the learned Advocate for the respondent, the facts, circumstances and the evidence brought on record by the respondent are sufficient to reject the decree for divorce. The learned Advocate took us through the oral as well as voluminous documentary evidence adduced by the respondent to contend that the same would establish the sincerity of the respondent to lead the remaining life in the company of the appellant. The learned Advocate took us through the relevant part of the judgment of the learned Judge of the Family Court and pointed out that the entire evidence and the relevant facts and circumstances have been taken into consideration to reject the prayer made by the appellant for divorce and to accept the prayer made by the respondent for restitution of conjugal rights. The learned Advocate submitted that the evidence adduced by the appellant is not sufficient to make out either the ground of cruelty or desertion as pleaded by the appellant for seeking the decree of divorce. The learned Advocate pointed out from the evidence that in order to continue and maintain the sanctity of his marriage, he made compromise and even expressed the desire at the insistence of the appellant to stay separately from his family members. In short the learned Advocate supported the judgment and decree passed by the learned Judge of the Family Court. In order to substantiate his contention that this is not a fit case for granting the decree of divorce he has relied upon the decision in the case of Savitri Pandey vs. Prem Chandra Pandey, reported in (2002) 2 SCC 73 . 14. The burden to prove that the appellant was subjected to ill-treatment/cruelty and desertion at the hands of the respondent was on the appellant. Whether a given case is fit case for granting the decree of divorce on the ground of cruelty and desertion is a question of fact. In order to accept the prayer for divorce on these grounds there must be specific pleading and concrete evidence. It is needless to state that there cannot be any straight jacket formula to arrive at one or the other conclusion. The conclusion has to be arrived at on scrutiny and appreciation of the evidence. In order to accept the prayer for divorce on these grounds there must be specific pleading and concrete evidence. It is needless to state that there cannot be any straight jacket formula to arrive at one or the other conclusion. The conclusion has to be arrived at on scrutiny and appreciation of the evidence. The learned Judge on minute scrutiny and appreciation of the evidence found that no case was made out for granting prayer made by the appellant for the decree of divorce on the ground of cruelty and desertion. The learned Judge took note of the sincerity of the purpose and intention of the respondent to ensure that the marriage does not get dissolved on such trivial grounds and instances. The learned Judge, therefore, accepted the case of the respondent and granted the prayer made by him for restitution of conjugal rights. 15. In order to appreciate the rival submissions made by the learned Advocates for the parties we have minutely perused the evidence adduced by the parties. We have also perused the reasons recorded by the learned Judge in the judgment and order. On taking a fresh look at the evidence and subjecting the same to scrutiny, we are satisfied that the evidence on record is not sufficient to prove the ground of cruelty and desertion put forth by the appellant for seeking the decree of divorce. It is pertinent to note that the marriage between two unknown persons is destined sacrosanct union meant for the remaining life of those persons. The law therefore mandates that it cannot be dissolved merely for asking. In her evidence, the appellant has deposed consistent with her pleading. She was thoroughly cross examined on all the material facts stated by her in her examination-in-chief. The marriage was inter caste love marriage. This litigation is a second round seeking the identical reliefs by both the parties. It has come on record in the evidence that the secrecy of the marriage which was performed in the year 2000 was maintained by the appellant and respondent inasmuch as it was inter caste love marriage and should not be made known to the family of the appellant and her relatives. 16. The appellant is a doctor practicing in Homeopathy. The appellant and respondent stayed under one roof with the respondent’s family. 16. The appellant is a doctor practicing in Homeopathy. The appellant and respondent stayed under one roof with the respondent’s family. Due to the dispute and discord between them the appellant filed the petition for divorce. The respondent also filed the petition for restitution of conjugal rights. Both petition were decided on 30-5-2006. As stated above, the petition filed by the appellant for divorce was dismissed and the petition filed by the respondent for restitution of conjugal rights was allowed. Admittedly, when the marriage between them did not remain secret, at the insistence of the parents of the appellant, the marriage was again performed with all marriage ceremonies on 5-10-2006 in presence of friends and relatives of both the sides. The second phase of their married life began after 5-10-2006. 17. The appellant conceived in February, 2007, however, unfortunately due to infection the miscarriage occurred. According to the appellant, the sole cause of miscarriage was the stress and depression undergone by her due to the ill-treatment meted out to her. In this case it has been proved that the miscarriage occurred due to ‘Rubella infection’. The appellant is a Doctor by profession. Therefore, the case of the appellant that the sole cause of miscarriage was ill-treatment and cruelty meted out to her cannot be accepted. The appellant has deposed that at the house of the respondent she alone was forced to do the entire household work besides attending her duties as a ‘Medical Officer’. In our view, this statement made by the appellant cannot be accepted. The respondent has examined Satyabhama Raut at Exh.83 to rebut this contention. Satyabhama Raut in her evidence has deposed that she was employed by the parents of the respondent to do entire household work. The learned Judge of the Family Court found evidence of Satyabhama Raut cogent and reliable. On perusal of evidence, we do not see any reason to discard her evidence. In the totality of the facts and circumstances, the evidence of Satyabhama Raut corroborates the evidence of respondent on this point. Besides the statement made by the appellant in her cross examination there is no other evidence to accept her case on the ground of cruelty. The perusal of the petition and her evidence would show that no specific instance/incident of cruelty has been stated. Besides the statement made by the appellant in her cross examination there is no other evidence to accept her case on the ground of cruelty. The perusal of the petition and her evidence would show that no specific instance/incident of cruelty has been stated. The facts stated in the petition and deposed on the point of cruelty have been rebutted on the basis of cogent evidence. 18. It is specific case of the respondent that being a Medical Practitioner the appellant was treated respectfully by him as well as his family members. He has deposed that during her second pregnancy his mother took care of the appellant and ensured that she is not made to meet with the fate of the first pregnancy. The learned Judge made minute scrutiny of pleadings and evidence and came to the conclusion that in absence of the specific act of ill-treatment attributed to the family members and the nature of the ill-treatment, the facts pleaded in the petition has to be said to be general. It is pertinent to mention that in a family there are bound to be dispute amongst members at times on trivial reasons. Each and every incident cannot be painted as an incident of cruelty and ill-treatment. The cruelty must be grave and witty to form the concrete opinion that the dissolution of marriage between the parties would be the last solution. The appellant has admitted that the separate room in the family home was provided to her and her husband. She has further admitted that as per the advise of Dr. Saboo she took complete rest from January, 2008. She has admitted that in 7th month of her pregnancy the respondent and his family with the family of the appellant celebrated the same at her matrimonial home. She has admitted that respondent accompanied her every time to Dr. Kala Saboo for her check up during her second pregnancy. It has come on record that the daughter was weighing 7 pound at the time of the birth. This fact clearly indicates that in the backdrop of the miscarriage at the time of first pregnancy the proper care of the appellant at the matrimonial home was taken by the respondent and his family members. It has come on record that the daughter was weighing 7 pound at the time of the birth. This fact clearly indicates that in the backdrop of the miscarriage at the time of first pregnancy the proper care of the appellant at the matrimonial home was taken by the respondent and his family members. She has admitted that the respondent and her family members came to meet her and made inquiry about her well-being at the hospital at the time of delivery. It is pertinent to note at this stage that the appellant did not make any complaint either with the police or with any other authority about the cruelty and ill-treatment meted out to her. It is pertinent to mention that since her marriage was inter caste love marriage and was not liked by her parents, her parents would not have waited for a moment to report the matter to the Police or to the other authorities, if she had been subjected to cruelty and ill-treatment. 19. It has come on record that till her admission in the hospital she was provided separate room and all comforts at the house of the respondent. It is not out of place to mention that at times the problems of attitude may became a stumbling block in the married life. Undisputedly, the appellant is a Doctor practicing Homeopathy. She was attending the duties at one nursing home. The case of the appellant that during her stay at the house of the respondent she was made to do the entire household work and subjected to cruelty cannot be accepted inasmuch as, if she had been required to do all the work and subjected to cruelty, she would not have been in a position to attend her duties. This fact would further indicate that her freedom to practice a profession was not at all curtailed. In view of this position, we fully agree with the findings of fact recorded by the learned Judge of the Family Court. The evidence of the respondent and the independent evidence of witnesses examined by him fortify the claim of the respondent that he took all possible care of the appellant and ensured that she was not subjected to any hardship at the matrimonial home as well as during her pregnancy. 20. The second ground pleaded by appellant is desertion. The evidence of the respondent and the independent evidence of witnesses examined by him fortify the claim of the respondent that he took all possible care of the appellant and ensured that she was not subjected to any hardship at the matrimonial home as well as during her pregnancy. 20. The second ground pleaded by appellant is desertion. It is undisputed that till the birth of the daughter there was no question of desertion. The appellant has stated that after delivery, from hospital she went to her parents’ house. It is her case that respondent neither came to meet her nor bothered to make inquiry of her well-being. In short it is her case that the respondent by his act and conduct indicated that he was no more interested to continue his married life with the appellant. The case of the respondent is that he took all possible care of the appellant during her pregnancy as well as at the time of delivery and after delivery. It is his case that he regularly visited the house of parents of the appellant to meet the appellant and his daughter and to ensure that all possible help is extended to the appellant. It is the case of the respondent that when he insisted the appellant to come back to his home the appellant put a condition to return back to his house. The appellant insisted that the mother and other family members of the respondent should shift to Chandrapur at the place of his brother and the appellant and respondent should alone live separately at the matrimonial home. It has come on record in the evidence that when the respondent found that it was not possible for him to suggest his family members to leave the home he searched the premises on rental basis. It has come on record in the evidence of the respondent that in order to establish his separate home with the appellant he went to purchase the required utensils and other household articles. This fact has been supported by other witnesses. The conduct of the respondent is consistent with his evidence. 21. As stated above, this is the second petition filed by the respondent for restitution of conjugal right. If the respondent had no intentions and sincere desire to remain in the company and to resume cohabitation with the appellant, he would not have undertaken such exercise. The conduct of the respondent is consistent with his evidence. 21. As stated above, this is the second petition filed by the respondent for restitution of conjugal right. If the respondent had no intentions and sincere desire to remain in the company and to resume cohabitation with the appellant, he would not have undertaken such exercise. The appellant has admitted in her evidence that till December, 2008, the respondent used to meet her at her parents house. Admittedly, the delivery took place on 28-6-2008. The respondent has stated in his evidence that he stopped visiting after December, 2008 because he was humiliated and neglected by the appellant and her family members so that he does not go there. The evidence on record does not permit us to accept this ground as well. 22. The respondent has placed on record voluminous documentary evidence to prove that he all throughout ensured that his marriage does not get dissolved. The reference to one important document would suffice to weigh the balance in favour of the respondent. It is the letter written by the respondent to the appellant on 20-3-2009. It is at Exh.49. This letter was sent by the respondent to the appellant by registered post acknowledge due. However, it was returned back unserved to the appellant. The envelope on production was opened in the Court. It found containing the document Exh.49. Exh.49 is the letter written by the respondent to the appellant. In this letter he has expressed his feelings and love towards appellant and his daughter. Besides, he has narrated all the relevant facts which led to the dead lock between them. Perusal of this letter in entirety would reflect upon the sincerity of the respondent to preserve his marriage at all cost with the appellant. In this letter he has placed on record his plight due to behavior of the appellant. Perusal of this letter further shows that the respondent made an emotional appeal to the conscience of the appellant to join his company and remove him from the spell of darkness which he felt without the company of the appellant and his daughter. In our view this letter and other documentary evidence clearly proves that there was no desertion of the appellant at the hands of the respondent. It has come on record that he deposited money in the bank account of the appellant. In our view this letter and other documentary evidence clearly proves that there was no desertion of the appellant at the hands of the respondent. It has come on record that he deposited money in the bank account of the appellant. He also purchased gold ring for the appellant. In our opinion, this evidence clearly indicates that there was no irretrievable break down in the marriage between the appellant and respondent. The learned Judge of the Family Court found that the evidence adduced by the appellant was not sufficient to accept her case, in view of the fact that her evidence was fully rebutted by the evidence adduced by the respondent. The learned Judge of the Family Court found the evidence adduced by the respondent credible, cogent and reliable. In our opinion, on the basis of the available evidence, the conclusion other than the one drawn by the learned Judge of the Family Court is not possible. 23. In the case of V. Bhagat vs. Mrs. D. Bhagat, reported in AIR 1994 SC 710 , the Hon’ble Supreme Court has held that the mental cruelty in section 13(1)(i-a) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it impossible for that party to live with the other. It is held that the 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 further held that 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 as to cruelty 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. 24. In the case of Savitri Pandey vs. Prem Chandra Pandey (cited supra), on the point of cruelty it is held that the mental cruelty consist of conduct which causes mental or emotional suffering or induces fear in respect of the matrimonial relationship. 24. In the case of Savitri Pandey vs. Prem Chandra Pandey (cited supra), on the point of cruelty it is held that the mental cruelty consist of conduct which causes mental or emotional suffering or induces fear in respect of the matrimonial relationship. It is held that in order to dissolve the marriage on the ground of cruelty, the cruelty established must be distinguished from the ordinary wear and tear of family life. The issue cannot be decided on the basis of the hypersensitivity of a party. It is held that on the basis of evidence it must be established that there has been irretrievable break down of marriage. Such a irretrievable breakdown alone should be made a ground for dissolution of marriage. As far as the issue of desertion is concerned it is held that in order to prove dissolution in matrimonial matter, it is not always necessary that one of the spouses should have left the company of the other as desertion could be proved while living under the same roof. Desertion cannot be equated with separate living by the parties to the marriage. Desertion may also be constructive which can be inferred from the attending circumstances. It is held that it has always to be kept in mind that the question of desertion is a matter of inference to be drawn from the facts and circumstances of each case. 25. On the point of desertion and cruelty, the preposition of law laid down is similar and identical to the one stated above, in the decisions relied upon by the learned Advocate for the appellant viz. Naveen Kohli vs. Neelu Kohli (cited supra), Praveen Mehta vs. Inderjit Mehta (cited supra) and Sujata Uday Patil vs. Uday Madhukar Patil (cited supra). 26. In this case, the law laid down in the judgments cited supra does not support the case of the appellant. The evidence led by the appellant is found woefully lacking to prove the ground of cruelty and desertion. The facts and circumstances and other evidence, on minute scrutiny, does not permit us to accept the case of the appellant for dissolution of marriage. In this case, the evidence adduced by the appellant falls short to establish that the appellant was subjected to mental or physical cruelty and as such there has been irretrievable break down in the marriage. The facts and circumstances and other evidence, on minute scrutiny, does not permit us to accept the case of the appellant for dissolution of marriage. In this case, the evidence adduced by the appellant falls short to establish that the appellant was subjected to mental or physical cruelty and as such there has been irretrievable break down in the marriage. The evidence of the appellant if appreciated in proper perspective would show that the grievance of the appellant could be termed as ordinary wear and tear of family life. The facts established on the basis of the evidence clearly indicate that it is nothing but usual and ordinary bickering and family dispute. In our opinion, it cannot be allowed to be painted as cruelty and desertion. The evidence adduced by the respondent and corroborated by independent witnesses clearly proved that the respondent all throughout endeavoured to preserve and maintain his marriage. The evidence of the respondent clearly indicates that he made all efforts within his control to convenience the appellant to join his company, but to his mis-fourtune he could not succeed. The evidence on record indicates that to preserve his marriage he even took a decision to separate from his mother and other family members and stay elsewhere. The evidence indicates that the wish and desire of the respondent could not be fructified due to non responsive attitude of the appellant. In the facts and circumstances we are of the view that there is no substance in the appeal. The judgment and order passed by the learned Judge of the Family Court does not warrant interference. Hence, the following order. ORDER i) Both the Family Court Appeals stand dismissed. ii) The judgment and decree passed by the Family Court, Nagpur in Petition No. A-203 of 2013 and Petition No. A-962 of 2011 is upheld. iii) Parties to bear their own costs. Both Family Court Appeals stand disposed of.