JUDGMENT ASHIM KUMAR BANERJEE.J: 1. Sanjoy married Dipanwita on December 7, 1995 according to Hindu rights and customs. Out of their wedlock a male child was born on November 19, 1997. The couple were passing their married life peacefully for about ten years when the dispute arose principally for extra marital affairs Sanjoy had with one of his co-actress in a theatre group where Sanjoy was also a member. Earlier Sanjoy had relationship with a married lady initially staying in the complex where Sanjoy was also residing. According to Sanjay, Dipanwita caused mental cruelty to him. She was not offering even a glass of water or a cup of tea when Sanjay used to come back from his office. Significant to note, although qualified, Dipanwita was housewife at that time. According to Sanjay, Dipanwita was not respectful to his aged parents. At one point of time, she caused injury to his aged father on the issue of touching of the child. Dipanwita did not like others to touch the child. Dipanwita abruptly left her matrimonial home. Sanjay went to take her back when he was ill-treated. Dipanwita lodged criminal complaint with the Police Station. She also spread scandal that caused mental cruelty to Sanjoy. The director of the theatre group rebuked him at the instance of Dipanwita. Dipanwita created a scene in the office of Sanjoy, thereby caused immense embarrassment to him. 2. On the allegations as above Sanjay prayed for divorce. Dipanwita contested the suit. In her written statement, she denied each and every allegation that was brought against her. According to her, she was respectful to her parents-in-law. She was also respectful to her husband. She also asserted about the extra-marital relationship, which Sanjay had with Suparna Mondal, a thespian belonging to the theatre group where Sanjoy was also a member. She also asserted that the other relationship that Sanjoy had with a married lady in the same complex, was disclosed by Sanjoy himself to her when she advised her husband for desisting from such activity. On the issue of injury, she claimed that it was an accident. The child was insisting upon staying with the aged father-in-law who needed rest. She was trying to forcefully take back the child from the lap of the father-in-law when accidentally he got hurt. On the issue of injury, she claimed that it was an accident. The child was insisting upon staying with the aged father-in-law who needed rest. She was trying to forcefully take back the child from the lap of the father-in-law when accidentally he got hurt. On the issue of complain to the Police Station, she contended that Sanjoy and Suparna planned to leave India for good and arranged VISA for going to Australia. To desist Sanjoy, she had to lodge a complaint with the Police Station. 3. Sanjoy adduced evidence by himself and one of his friends being PW2 whereas Dipanwita adduced evidence only through herself. Sanjoy was consistent with his stand taken in the plaint while deposing as PW-1. In cross-examination, he denied of any extra marital relationship he had with Suparna or a married lady of the complex. He also denied having applied for Passport along with Suparna to plan to go to Australia and settle there. He admitted that he had supported Suparna being patient of mental depression. He also admitted that he brought her once in the house. His friend Abhijit Deb (PW- 2) admitted that he had no personal knowledge about the conjugal life of the couple. He also admitted that his knowledge was based upon what had been divulged to him by Sanjoy. He was not even present at the time of marriage. 4. Dipanwita in her deposition was also consistent. She denied the allegations brought by Sanjoy against her. She however, asserted the extra-marital relationship Sanjoy had. Even then, she was agreeable to maintain the marital tie. Sanjoy however, wanted to marry Suparna and disclosed such intention to his parents. She also named the other lady as “Munai” with whom Sanjoy had relation earlier. In cross-examination, she could not be shaken. 5. The Learned Judge considered the rival contentions and ultimately held that the plaintiff Sanjoy could not justify the claim for divorce within a meaning of Section 13 of the Hindu Marriage Act 1955. The Learned Judge observed “the husband making wild allegations of disloyalty of wife has no basis at all in absence of the best witnesses in support of his allegation. The parents of the petitioner were the best witnesses and he withheld their evidences for the reason best known to him”. He also observed that the allegations against Dipanwita would not amount to cruelty. The parents of the petitioner were the best witnesses and he withheld their evidences for the reason best known to him”. He also observed that the allegations against Dipanwita would not amount to cruelty. Those allegations were “totally baseless and unfounded”. 6. Being aggrieved, Sanjoy preferred the instant appeal. 7. Mr. Mukul Lahiri, learned counsel, appearing for the appellant/husband inter alia, contended that there was no allegation of disloyalty alleged by the wife. There was no allegation from the wife that Sanjoy was not supportive to the family. Even then, she committed mental cruelty to him that would deserve divorce in favour of Sanjoy. Significant to note, after this litigation Sanjoy left his house for good and is now posted at Andaman while working with Indian Airlines. Sanjoy no more maintained any relation with his family including his aged parents. 8. Mr. Lahiri also contended that the allegation of extra-marital affair could not be proved by the wife. That would itself amount to mental cruelty attracting the Decree of Divorce as claimed by Sanjoy. 9. Mr. Lahiri relied on the following decisions:- i) Nemai Kumar Ghosh –VS- Smt. Mita Ghosh (All India Reporter 1986 Calcutta page 150) ii) Smt. Santana Banerjee –VS- Sachindra Nath Banerjee (All India Reporter 1990 Calcutta page 367) iii) A. Jayachandra –VS- Aneel Kaur (All India Reporter 2005 Supreme Court page 534) 10. Mr. Lahiri lastly contended that admittedly the marriage became stale as of date. Parties separated from each other nearing for a decade that would itself be sufficient to pass a Decree of Divorce. The learned Judge did not look into this aspect. He also contended that the evidence was not considered in their true perspective. He claimed for setting aside of the judgement and decree of the Court below denying divorce to Sanjoy. 11. Mr. Milan Chandra Bhattacharya, learned Counsel, appearing for Dipanwita, the wife/respondent contended that each and every allegation made by Sanjoy, was duly dealt with by Dipanwita in her written statement. Sanjoy also in his evidence admitted to have brought Suparna once in the house that would itself demolish his initial ignorance about Suparna. In fact, Sanjoy also admitted that he wanted to support Suparna to come out of the depression, which she was suffering at one point of time. On the allegations made by Sanjoy, Mr. Sanjoy also in his evidence admitted to have brought Suparna once in the house that would itself demolish his initial ignorance about Suparna. In fact, Sanjoy also admitted that he wanted to support Suparna to come out of the depression, which she was suffering at one point of time. On the allegations made by Sanjoy, Mr. Bhattacharya contended that despite the extra-marital relationship which Sanjoy had with two ladies Dipanwita did not want divorce and opposed the same that would itself show her serious intention to maintain the marital tie. 12. Distinguishing the cases cited by Mr. Lahiri, Mr. Bhattacharya contended that in the case of Nemai Ghosh (Supra), the allegation of extra marital relationship was based upon a mere suspicion by one spouse against the other. The Division Bench held, that would amount to mental cruelty. However, in the instant case, it did not remain as a mere suspicion as would appear from the evidence. In any event, despite such allegation, Dipanwita wanted to maintain the marital tie. Hence, this decision would have no application. With regard to the Division Bench decision of our Court in the case of Santana Banerjee (Supra) he referred to the facts involved therein and submitted that it was a case of sexual perversity that would have no application in the instant case. 13. The decision in the case of A. Jayachandra (Supra) was cited by Mr. Lahiri for apprising this Court as to what would amount to “mental cruelty”. 14. Mr. Bhattacharya on the other hand relied on three Supreme Court decisions:- i) Vishnu Dutt Sharma –VS- Manju Sharma (2009 Volume-VI Supreme Court Cases Page-379) ii) Gurbux Singh –VS- Harminder Kaur (2010 Volume-XIV Supreme Court Cases Page-301) iii) Neelam Kumar –VS- Dayarani (2010 Volume-XIII Supreme Court Cases Page-298) 15. We have considered the rival contentions. If we look to the evidence and closely scan the same it would only show a discord between the couple on the issue of extra-marital affairs of the husband. If it was mere suspicion by the wife against the husband that would lead to making a prayer for divorce on the part of the wife. In the present case, wife did not approach the Court for a divorce. It was other way round. The husband in his plaint alleged that wife caused mental cruelty to him raising suspicion on that score. In the present case, wife did not approach the Court for a divorce. It was other way round. The husband in his plaint alleged that wife caused mental cruelty to him raising suspicion on that score. Wife candidly stated that she had no personal knowledge about the affairs of married lady apart from her knowledge that was derived from Sanjoy. She was however, critical about relationship with Suparna. Even then she was willing to maintain the marital tie. 16. Allegation of disrespect to the aged parents-in-law was really illusory. When the appeal started appearing before us we asked the couple to be present. We also asked the parents-in-law to be present. The father-in-law of Dipanwita being the father of Sanjoy appeared before us and stated that Dipanwita was still staying with them and looked after them as Sanjoy did not maintain any relation with his family. We also came to know that Dipanwita had to take up a job to support the family, even the aged mother-in-law was doing private tuition to maintain themselves. The family is not getting a single penny from Sanjoy. Sanjoy was neither paying any maintenance to his aged parents nor was looking after his only son or the wife. 17. Sanjoy appeared before us subsequently. On our persistence, he went to his house, however, his one day stay at the house could not soften his stand. He came back to us on the next day and categorically asserted that he wanted a divorce and nothing short of it. In this backdrop, we had to continue with the hearing of the appeal. 18. We have considered the rival contentions and the cases cited at the Bar. As observed hereinbefore, the decision in the case of A. Jaychandra (Supra) would only help us to understand what would mean, “cruelty” within the meaning of Section 13 of the Hindu Marriage Act, 1955. The decision in the case of Nemai Ghosh (Supra) could be made applicable in case Dipanwita came to us with a prayer for divorce on the existing evidence. That is not the case here. We are only concerned with the sum total of the evidence to find out whether there was any plausible ground for divorce at the instance of the husband within the ambit of Section 13. The Learned Judge observed that the parent’s evidence was material. That is not the case here. We are only concerned with the sum total of the evidence to find out whether there was any plausible ground for divorce at the instance of the husband within the ambit of Section 13. The Learned Judge observed that the parent’s evidence was material. We do not dispute such view, however, in a case of discord between the couple, absence of the parent’s evidence could not be fatal. On that score we accept the contention of Mr. Lahiri. However, such view does not take us to anywhere. Two decisions of the Apex Court in the case of Gurbux Singh (Supra) and Neelam Kumar (Supra) would however, help us to come to a positive conclusion in the present case. In the case of Neelam Kumar (Supra), the Apex Court observed as follows:- “We are not impressed by this submission at all. There is nothing to indicate that the respondent has contributed in any way to the alleged breakdown of the marriage. If a party to a marriage, by his own conduct brings the relationship to a point of irretrievable breakdown, he/she cannot be allowed to seek divorce on the ground of breakdown of the marriage. That would simply mean giving someone the benefits of his/her own misdeeds.” 19. In the case of Gurbux Singh (Supra) paragraph 16 being relevant herein, is quoted below:- “The married life should be assessed as a whole and a few isolated instances over certain period will not amount to cruelty. The ill conduct must be precedent for a fairly lengthy period where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, one party finds it extremely difficult to live with the other party no longer may amount to mental cruelty. Making certain statements on the spur of the moment and expressing certain displeasure about the behaviour of elders may not be characterised as cruelty. Mere trivial irritations, quarrels, normal wear and tear of married life which happens in day to day life in all families would not be adequate for grant of divorce on the ground of cruelty. Sustained unjustifiable and reprehensible conduct affecting physical and mental health of the other spouse may lead to mental cruelty. Mere trivial irritations, quarrels, normal wear and tear of married life which happens in day to day life in all families would not be adequate for grant of divorce on the ground of cruelty. Sustained unjustifiable and reprehensible conduct affecting physical and mental health of the other spouse may lead to mental cruelty. Both the appellant and the respondent being highly qualified persons, the appellant being Principal in ITI College, the respondent working as a Librarian in a government institute, an isolated friction on some occasion like festival of lohri even in the presence of others cannot be a valid ground for dissolving the marriage.” 20. If we closely analyse the paragraphs quoted (Supra) we would find that Court must preserve a Marital Institution unless it is compelled to sign a Decree of Divorce. Each and every allegation on discord would not amount to a ground of divorce unless it would fit in the grounds mentioned in Section 13. We are prompted to say so taking a cue from the observation of the Apex Court, “the married life should be assessed as a whole and a few isolated instances over certain period will not amount to cruelty”. We also cannot check our temptation but to repeat the Apex Court observation “mere trivial irritations, quarrels, normal wear and tear of married life which happens in day to day life in all families would not be adequate for ground of divorce on the ground of cruelty”. We are of the view sustained, unjustifiable and reprehensible conduct affecting physical and mental health of the other spouse would only lead to mental cruelty and nothing short of it would attract the decree of divorce on the allegation of mental cruelty. 21. The appeal fails and is hereby dismissed. 22. There would be no other as to costs. 23. Urgent Photostat copy will be given to the parties, if applied for.