Judgment :- Ashim Kumar Banerjee, J. Marriage is an institution. Responsibility to preserve the institution would lie upon the couple having equal responsibility to maintain it. It is most unfortunate when science is advancing; country is prospering with the advent of globalization; personal life would become complex and more complex causing discord between members of the family particularly the married couple. Earlier, in our society it was common; the male members of the family would have the responsibility to arrange for means of livelihood whereas the female members would be busy in maintaining the household, upbringing the child. Now, that the system is totally changed, the members of the fairer sex equally contribute to the financial need of the family hence, it would warrant, the male members should be more accommodative. However, the mindset is yet to change in the patriarchal society of ours. FACTS: Subrata and Mithu tied the marital knot on February 6, 2003. The marriage was solemnized at Shiv Parbati Bhavan, Bagnan, Howrah. The respective guardians arranged the match. Subrata was a Group ‘D’ employee in Agriculture Department of the State. He was possibly Higher Secondary passed. In absence of evidence we are not sure of his qualification. Mithu is a Post Graduate in English coupled with B.Ed qualification. She was an assistant teacher in Jaipur Jogmaya Adarsha Balika Vidyalaya. She is now the headmistress in a school. Subrata was residing with his parents and brothers in a rental accommodation at Uluberia, Moirapara. Due to insufficient accommodation, the couple initially stayed for few days with Mithu’s mother, thereafter shifted to a rental accommodation and stayed there for a considerable time. The facts would depict, both the families had their own dwelling house subsequent to the marriage. According to Subrata, he had to clear off the house building loan that he took for their family dwelling house. Subsequent to the marriage, Subrata got a promotion and was transferred to Jhargram where the couple stayed for some time. We do not know the actual reason for discord that the couple had. However, we could appreciate, the respective status of the parties, their respective educational qualifications and placement in the society as a whole, might be the cause. According to Subrata, the discord occurred due to his refusal to stay at the in-laws place as a domesticated son-in-law. We do not know the actual reason for discord that the couple had. However, we could appreciate, the respective status of the parties, their respective educational qualifications and placement in the society as a whole, might be the cause. According to Subrata, the discord occurred due to his refusal to stay at the in-laws place as a domesticated son-in-law. Mithu would however, contend, her in-laws place was initially a rental accommodation that was insufficient. Her mother did not have any intention at all forcing Subrata to become a domesticated son-in-law. They, of their own, left her mother’s place within a couple of weeks by arranging accommodation of their own. Subsequently, they built their own house on the land gifted by her mother. Subrata insisted, her mother should transfer the property in his favour that Mithu and her mother declined. Subrata left the place where the couple was residing and put up with his family and stayed in the new house constructed by Subrata’s family. If we make a scan of the plaint, we would find, Subrata filed the divorce suit in less than two years’ time. According to him, Mithu and her mother committed cruelty upon him. Hence, he was entitled to decree for divorce. Attempt was also made to advance the plea of desertion that possibly failed in view of the period mentioned above, as rightly contended by Mr. Biswajit Basu appearing for Mithu. Significant to note, Subrata being the husband not only prayed for a divorce but also prayed for litigation cost to the tune of Rs.5000 as we find from the reliefs claimed in the plaint. EVIDENCE: Subrata examined himself as well as his brother whereas Mithu examined herself along with her mother and the priest who performed the Griha-prabesh Ceremony in the new house constructed by Mithu. Subrata deposed, he was physically and mentally harassed. He lodged a police complaint to the said effect. He also produced a personal note book containing brief narration of the day to day incident that happened in the couple’s life. The medical papers came in evidence to prove the treatment of the wife due to infertility. Relevant to note, the couple had no issue. Mithu and her mother denied the assertion, they caused cruelty to Subrata. The priest proved the Griha-prabesh Ceremony. He also deposed, Subrata was also participating in the process. The medical papers came in evidence to prove the treatment of the wife due to infertility. Relevant to note, the couple had no issue. Mithu and her mother denied the assertion, they caused cruelty to Subrata. The priest proved the Griha-prabesh Ceremony. He also deposed, Subrata was also participating in the process. Mithu exhibited photographs to show, they were happy at Jhargram. CASES CITED: 1. Smt. Krishna Sarbadhikary Vs. Alok Ranjan Sarbadhikary reported in All India Reporter 1985 Calcutta Page-431. 2. Smt. Parimi Mehar Seshu Vs. Parimi Nageswara Sastry reported in All India Reporter 1994 Andhra Pradesh Page-92. 3. Romesh Chander Vs. Savitri (Smt) reported in 1995 Volume-II Supreme Court Cases Page-7. 3. Manisha Tyagi Vs. Deepak Kumar reported in 2010 Volume-IV Supreme Court Cases Page-339. 4. Smt. Sumita Gupta Vs. Sri Kisholay Gupta reported in 2011 Volume-II Calcutta Law Times Page-213. 5. Vishwanath Agrawal Vs. Sarla Vishwanath Agrawal reported in 2012 Volume-VII Supreme Court Cases Page-288. 6. A.E.G. Carapiet Vs. A.Y. Derderian reported in All India Reporter 1961 Volume-48 Calcutta Page-359. 7. Smt. Kakali Das (Ghosh) Vs. Dr. Asish Kumar Das reported in All India Reporter 2003 Calcutta Page-287 EVIDENCE-PLEADINGS-JUDGMENT IMPUGNED: A BRIEF ANALYSIS: Before we go into the controversy let us first scan the evidence and pleadings and its appreciation by the learned Judge of the Court below. Subrata tried to pose a picture, Mithu and her mother caused mental cruelty to him. He deposed, on the earlier occasions the mother daughter combine indulged in-descent quarrel in social functions causing immense embarrassment to him. He would refer to the police complaint where we would find, the complaint was against Mithu mostly for mental cruelty. According to Subrata, very often Mithu would laugh at his Group ‘D’ engagement. Per contra Mithu deposed, they had no discord at all till the time of Griha-prabesh when Subrata demanded property to be transferred to him. W hen they declined he left the house that happened on June 29, 2005. On a close look to the evidence we do not find any proof of physical assault. Mr. Souradipta Banerjee learned Counsel appearing for Subrata did not press such issue. The learned Judge of the Court below did not examine the evidence properly. He stated the gist of the evidence, however, did not examine it properly. CONTENTIONS: Mr. Sauradipta Banerjee learned Counsel appearing for Subrata placed the evidence in detail. Mr. Souradipta Banerjee learned Counsel appearing for Subrata did not press such issue. The learned Judge of the Court below did not examine the evidence properly. He stated the gist of the evidence, however, did not examine it properly. CONTENTIONS: Mr. Sauradipta Banerjee learned Counsel appearing for Subrata placed the evidence in detail. He would say, the evidence so came out, would definitely prove mental cruelty as well as desertion. The parties were living separately since 2006, more than eight years a passed thereafter. The discord could not be reconciled hence; it was a fit case for divorce. Per contra Mr. Biswajit Bose learned Counsel appearing for Mithu would rely upon the pleadings to show, even if the pleadings were given its full credence it would not support the grounds of divorce as per the provisions of the Hindu Marriage Act 1955. With regard to desertion, Mr. Bose would contend, the suit was filed less than two years of period since the parties had been living separately. He would contend, Subrata filed the suit on May 10, 2007 making an allegation, his wife left the rental accommodation on June 23, 2005 that would be less than two years. He would further contend, immediate stay at mother’s place soon after the marriage would prove the inadequacy of space at the rental accommodation. Further evidence would also suggest, the couple used to visit Subrata’s family every weekend in the rented accommodation. However, Mithu was not invited in Griha-prabesh as she had no issue and would be considered as epitome of bad fortune. According to Mr. Bose, if there was any mental cruelty that would be applicable in case of Mithu and not Subrata. OUR VIEW: We have considered the evidence on record, we have also considered the decisions cited at the bar. Mental cruelty is recognized as a ground of divorce for which parties need not cite authority, so is the case of desertion. In the case of Smt. Krishna Sarbadhikary (supra) our Division Bench held, a solitary incident might not constitute cruelty however, series of acts committed by the wife that would lead to a discord, would definitely constitute a ground of divorce. In the case of Smt. Krishna Sarbadhikary (supra) our Division Bench held, a solitary incident might not constitute cruelty however, series of acts committed by the wife that would lead to a discord, would definitely constitute a ground of divorce. In the case of Smt. Parimi Mehar Seshu (supra) the Andhra Pradesh High Court recognized desertion as a ground of divorce where frequent desertion by wife without any reason was considered relevant for the purpose of grant of divorce. In the case of Romesh Chander (supra) the Apex Court considered the discord for 25 years however, granted divorce applying the special power granted under Article 142 of the Constitution. In the case of Manisha Tyagi (supra) the Apex Court granted divorce on the ground of cruelty. The Apex Court observed, continued ill treatment, cessation of marital intercourse, studied neglect, indifference of one of the spouses may lead to an inference of cruelty. In the case of Smt. Sumita Gupta (supra) the Division Bench took note of the fact that the husband was offered to remain in the marital place as a domesticated son-in-law. The Division Bench dismissed the appeal of the wife against the decree of divorce passed by the Court at the first instance. In the case of Vishwanath Agrawal (supra) the Apex Court once again considered the meaning of “cruelty” where the Apex Court observed, husband cannot be expected to continue to live with the wife in face of her sustained attitude of causing humiliation. In the case of Smt. Kakali Das (Ghosh) (supra) before the Division Bench the husband contended, there was irretrievable broke down of marital relationship. The Division Bench observed, such doctrine could not be invoked when one of the spouses is still interested in living with the other spouse forgetting and forgiving the existing bitterness. The present case would squarely fit in. In the present case, the case of desertion would automatically fall as the suit was premature on such issue. The case would only rest on mental cruelty. Subrata’s brother said to be the only independent witness based his evidence on hearsay. He had no personal knowledge of discord. He narrated what he had heard from his brother. Subrata relied on his note book where he used to note down days’ happening. We tried to go through the said note book, it was not completely readable. Subrata’s brother said to be the only independent witness based his evidence on hearsay. He had no personal knowledge of discord. He narrated what he had heard from his brother. Subrata relied on his note book where he used to note down days’ happening. We tried to go through the said note book, it was not completely readable. We do not know what was in the back of his mind to write unfortunate incidents in a small handmade note book. Ordinarily, the people would use diary to note down days’ happenings. Why Subrata did not use it, we do not know. However, ongoing through the said document we are not convinced as to the bona fide approach of Subrata. Significant to note, the said note book would contain only the discord part and nothing else. It would be little bit difficult for us to accept the said evidence without a pinch of salt. It was a late marriage. The husband was 37 years old whereas wife was 29 years. It is true, the marriage took place in 2002 and since 2005 the dispute is going on. We heard the matter one year back and thereafter we adjourned the matter from time to time. On our request, the wife went to her husband’s place to stay. For a considerable period, the wife stayed at her marital place. Very often, Subrata would come to Court and complain they were not in talking terms. He would however, agree, there was no untoward incident for last one year. Taking a sum total of it and taking note of the fact, the couple are separated for last eight years, if Mithu would ask for divorce we would have considered. If we grant divorce at the instance of Subrata that would be a gross injustice to Mithu. Mithu was quite educated. She is the headmistress of a Higher Secondary school. She has social prestige in the society. Last one year we interacted with the couple many a times. Mithu would never complain against her husband. However, from the day one, Subrata would insist for divorce. If there is any short coming in the life of the couple, we would rate Subrata little less than Mithu. Even then Mithu was prepared to adjust and stay with her husband. Last one year we interacted with the couple many a times. Mithu would never complain against her husband. However, from the day one, Subrata would insist for divorce. If there is any short coming in the life of the couple, we would rate Subrata little less than Mithu. Even then Mithu was prepared to adjust and stay with her husband. The parties reached the age where it would be too difficult for them to start a new life with a new partner. If we deny divorce, the parties would again be separated as Subrata is bent upon not to stay with Mithu. We are not oblivion of the fact, our society and the marital law would still not recognize the plea of irretrievable break down a ground for divorce. Even if it is so if we grant it, it would be a premium to the wrong committed by Subrata. As observed earlier, discord between couple is not uncommon. A couple sharing the marital relation would often confront with each other on issues however, at the end of the day they would again reunite on other issues and would continue the bonding that is the social happening and the normal circumstance in the life of a marital couple. We are not sure, why Subrata is so adamant. He would insist from divorce from the day one and would still continue to do so. Such insistence would only prompt the Court to come to his aid when he would have concrete evidence for the purpose. We have no hesitation to hold, the evidence so depicted, would not suggest a decree of divorce at his instance. The appeal fails and is hereby dismissed. There would be no order as to costs. Urgent photostat certified copy of this judgment, if applied for, be given to the parties on their usual undertaking. Dr. Mrinal Kanti Chadhuri, J: I agree.