Judgment : ASHIM KUMAR BANERJEE, J. BACKDROP Dipak Kumar Roy, the appellant was an employee of the Railway. He retired from service on January 1, 2001. Just on the eve of his retirement on January 30, 2001, he was arrested by the Police on a distress warrant issued by the learned Magistrate for recovery of monthly maintenance that he was supposed to pay to his wife and the lone child with whom he had a long discord. The facts would depict, Dipak was married to Anjali, the respondent on May 31, 1978. Out of the wedlock their only son Koushik was born. According to Dipak, soon after the marriage when Anjali entered the matrimonial home, she refused to perform the Hindu rites and removed the vermilion from her forehead and became extremely wild and ill tempered. In June 1978 Dipak went to Udaipur for an official job where he took his wife along with him. He had to come back before the scheduled date in view of indifferent behaviour of his wife. After coming back he took her to Onda in the district of Bankura on July 1, 1978 and since then she had been residing there at her parental place. On October 14, 1978 she was again brought to her matrimonial home by her brother who assured that there would be no further unpleasant incident. In March 1979 Dipak became suddenly ill. According to him, poison was administered in his food. Dipak alleged, she had illicit connection with one Krishna Pali alias Jharu. In 1980 Dipak filed a suit for divorce under Section 13 of the Hindu Marriage Act. The learned Additional District Judge by his judgment and decree dated April 6, 1993 dismissed the suit on the ground that Dipaks complaint stood condoned by him. This Court dismissed his appeal. Fact remains, despite dismissal of the suit and/or the appeal the couple remained separated since 1979. Dipak contended, he went twice to his matrimonial home to bring back his wife and child back, once in 1988 and then in 1997. However they refused to come. Dipak filed his second suit for divorce being Matrimonial Suit No.5, of 2000. During pendency of the suit Dipak was arrested as discussed above. Dipak contended, he went twice to his matrimonial home to bring back his wife and child back, once in 1988 and then in 1997. However they refused to come. Dipak filed his second suit for divorce being Matrimonial Suit No.5, of 2000. During pendency of the suit Dipak was arrested as discussed above. At the time of hearing of the suit Dipak could lay his support on two isolated incidents i.e., refusal to come back to matrimonial home on two occasions in 1988 and 1997 and causing arrest on the eve of his retirement without any reason whatsoever. Dipak contended, there was no occasion for his arrest as by that time he had already paid the maintenance and there had been no due on that account. The learned Judge dismissed the suit again vide judgment and order dated June 24, 2004 that gave rise to the present appeal which we heard on April 11 and 12, 2012. CONTENTIONS Mr. Sabyasachi Bhattacharya, learned counsel being ably assisted by Ms. Sohini Bhattacharya, learned counsel appearing for the appellant, contended that the couple admittedly lived separately for last thirty-three years. This was practically a dead marriage where chances were remote to have re-union. Mr. Bhattacharya further contended, the respondent all along unsuccessfully alleged that Dipak married for the second time and was living marital life with one Chanda Roy that had no basis whatsoever. Such bold allegation would itself amount to cruelty. Mr. Bhattacharya took us to the exhibits where we find that the people’s representatives from rival political parties supported the case of Anjali whereas the gas delivery boy and the newspaper boy deposed in favour of Dipak. Mr. Bhattacharya tried to contend that such allegation was a result of confusion as there were three “Dipak Roy” in the dame locality and one of whom had his wife called as Chanda Roy. Mr. Bhattacharya relied on three High Court decisions and one Apex Court decision to support his contentions. The decisions are – i) All India Reporter 1979 Punjab & Haryana Page-71 (Mohinder Kaur –VS- Bhag Ram) ii) All India Reporter 1986 Delhi Page-60 (Dr. Autar Singh Paintal –VS- Mrs. Iris paintal) iii) All India Reporter 1990 Calcutta Page-367 (Sm. Santana Banerjee –VS-Sachindra Nath Banerjee) iv) 1999 Volume-III Supreme Court Cases page-620 (S. Hanumantha Rao –VS- S. Ramani) Mr. Manish Sen, learned counsel appearing for Anjali strenuously opposed the appeal. Mr. Autar Singh Paintal –VS- Mrs. Iris paintal) iii) All India Reporter 1990 Calcutta Page-367 (Sm. Santana Banerjee –VS-Sachindra Nath Banerjee) iv) 1999 Volume-III Supreme Court Cases page-620 (S. Hanumantha Rao –VS- S. Ramani) Mr. Manish Sen, learned counsel appearing for Anjali strenuously opposed the appeal. Mr. Sen contended, even if it was a dead marriage the decree of divorce would only legalize the Dipak’s attempt to marry for second time. Mr. Sen contended that Anjali deposed that she was subjected to cruelty by Dipak and she was driven out from her house. Her son Kousik Roy deposed as DW-1 who supported his mother. Mr. Sen took us to the evidence of Kousik wherefrom we find that Kousik aged about twenty-four years old at the time of deposition, blamed his father for not maintaining him. He deposed that his maternal uncle spent for his upbringing. Mr. Sen informed us that Kousik would be now busy with his research work after completion of his post graduation. Kousik deposed, in 1997, he went to Adra to meet his father however, he did not get any fatherly affection. He was rather treated as an illegitimate child threatening him with dire consequence in case of repetition of his visit. He deposed that his father was living with one Chanda Roy that he came to know from the Voter List. In cross-examination, he however, deposed that he did not meet his father in 1997 when he was a student of BSC. He however recognized him at Adra Station by the help of his photograph. He categorically denied about his father Section visit to take them back. Mr. Sen took us to the deposition of the appellant where the appellant initially had denied his visit and then had asserted that he had not visited the respondent and his child in 1988 and 1977. Mr. Sen lastly contended that the learned Judge scanned the evidence and rightly dismissed the suit that did not deserve any interference by this Court. REPLY Replying to the contentions of the respondent Ms. Sohini Bhattacharya, learned counsel appearing for the appellant contended, the respondent consistently claimed, he did visit the respondent and his child in 1988 and 1997 that could not be shaken in cross-examination. REPLY Replying to the contentions of the respondent Ms. Sohini Bhattacharya, learned counsel appearing for the appellant contended, the respondent consistently claimed, he did visit the respondent and his child in 1988 and 1997 that could not be shaken in cross-examination. She also referred to the evidence of PW-3, newspaper boy who corroborated that he had accommodated Dipak in his father-in- law’s house in 1997 when his wife had refused to come. She contended that Mr. Sen could not justify the reasoning so assigned by the learned Judge while refusing divorce that would certainly deserve interference by us. OUR VIEW In the Case of Mohinder Kaur (Supra), Punjab and Haryana High Court considered a controversy that would arise on a proceeding brought under Section 9 of the Hindu Marriage Act for restitution of conjugal rights. The learned single Judge held that incorrect allegation by the husband against the wife about her second marriage and living in adultery would certainly amount to cruelty. In the said case the learned Judge considered the allegations and counter-8 allegations and ultimately came to conclusion that only ground on which a decree for restitution of conjugal rights was granted in favour of the husband was that the wife had not been able to show sufficient cause for keeping away from the society of the husband. The learned Judge ultimately granted judicial separation. While doing so, observed that once the Trial Court was convinced that there was no second marriage as alleged that would amount to cruelty. In the case of Autar Singh Paintal (Supra), the learned single Judge of Delhi High Court considered a petition for divorce under the special marriage Act where the learned Judge held, writing defamatory complaint and letter to the employer or other authorities or colleagues of the husband, would amount to cruelty. In the case of Smt. Santana Banerjee (Supra), the Division Bench of our Court considered a case under Section 13 of the Hindu Marriage Act and observed, wife persistently made disparaging, derogatory and ugly remarks against his husband and his closed relations that would amount to cruelty justifying a Decree of Divorce. In the case of S. Hanumantha Rao (Supra), the Apex Court defined “mental cruelty” within the meaning of Section 13 of the said Act of 1955. In the case of S. Hanumantha Rao (Supra), the Apex Court defined “mental cruelty” within the meaning of Section 13 of the said Act of 1955. Coming to the factual matrix, we would find that the husband miserably failed to prove the allegation against the wife in the earlier suit of 1980. He accepted the decision of the Court of Law rejecting his prayer for divorce up to the High Court level. Hence, the incidents prior to 1997 being the period when the appeal got dismissed by the High Court would be of no consequence. Admittedly, the parties did not live together even on a single day since then. There was no new fact that would deserve a re-consideration of the prayer. It is true that the parties have been living separately for last thirty-three years. However, such prolonged separation per se, is still not a ground of divorce. Even if we give full credence to the fact that he tried twice, once in 1988 and the other in 1997, to bring them back, such solitary incident would not per se give rise to justify a claim for divorce. Similarly, we are not impressed on the second ground being the incident of arrest. From the record, it appears that the Criminal Court also did record further payment to be made by the appellant that would pre-suppose that there had been something due on account of maintenance as on the date of passing of the order. We find from the order dated January 31, 2001 being exhibit 7 wherein the learned Magistrate released him on condition that he would pay the dues within a fortnight from that date. Hence, there was illegality or malice. We thus do not accept the contention of Mr. Bhattacharya that such arrest was unwarranted or based on a frivolous complaint. In the case of S. Hanumantha Rao (Supra), we would find that the Apex Court observed, “the party, who has committed wrong is not expected to live with the other party. It is in this background we have to test the argument raised by the learned counsel for the appellant. The respondent after having admitted the removal of Mongolsutra stated that while in privacy the husband often used to ask her to remove the chain and bangles. It is in this background we have to test the argument raised by the learned counsel for the appellant. The respondent after having admitted the removal of Mongolsutra stated that while in privacy the husband often used to ask her to remove the chain and bangles. She has also stated that in her parent’s house when her aunt and mother used to go to bathroom they used to take out Mongolsutra from their neck and therefore she thought that she was not doing anything wrong in removing Mongolsutra when she was asked to do so by her husband.” The Apex Court scanned the evidence and rejected the contention of the husband that the wife removed the Mongolsutra after tearing the same and walked out of her husband’s house. The Apex Court declined to give divorce. In the instant case, mere refusal, even if give full credence to, to come back to matrimonial home would not per se, amount to cruelty as the backdrop must be considered in its true spirit. The husband was paying maintenance at a very low rate and that too, on repeated litigation being initiated at her instance. In this regard, we may refer to the son’s evidence where he would say that he was getting only rupees two hundred and fifty per month after attaining majority. Significant to note, such payment was also being made in terms of the Court’s order. For a Hindu lady being a house wife having no means to earn her livelihood particularly when she had come back with a baby in her womb to her parental place, the Court must be cautious to scan the evidence to find out the real reason for discord. No one, except an insane, would leave her peaceful place of stay and jump into uncertainty, unless compelled. We are not oblivion to keep it in mind, the allegation of adultery as against the wife was rejected by the Court below at the first instance that too, affirmed by the High Court and the Husband accepted such decision. A young boy of twenty-four years old came to Court and openly deposed against his father and blamed him that he had been living in adultery. The Court must consider such evidence in its true spirit. In our view, the Court below was successful in such respect. A young boy of twenty-four years old came to Court and openly deposed against his father and blamed him that he had been living in adultery. The Court must consider such evidence in its true spirit. In our view, the Court below was successful in such respect. Lot was said on a complaint made by the wife to the employer. If we come to page 22 (Part-II) of the Paper Book we would find that she complained that her husband had not been looking after the family and no salary was given to her. She was residing with her minor son. The husband had contacted second marriage. She prayed for necessary arrangement to maintain her family and her child. She did not pray for any action against the husband. It is a fact that she had to approach the Court of Law repeatedly to get maintenance. If she wrote to the authority for maintenance that would not amount to mental cruelty to justify divorce, Due respect to Mr. Bhattacharya , we respectfully disagree. RESULT The appeal fails and is hereby dismissed. There would be no order as to costs. DIRECTION The Registry is directed to send down the lower court record at once, if received by this time. Urgent xerox certified copy of this order, if applied for, be given to the parties, on priority basis. Shukla Kabir (Sinha), J. I agree.