JUDGMENT 1. - Aggrieved of the judgment dated 18-11-2011 passed by the District Judge Sikar (hereinafter 'the trial court') dismissing applicant-appellant's (hereinafter 'the applicant') divorce petition under Section 13(1) of the Hindu Marriage Act, 1955 (hereinafter 'the 1955 Act') this appeal under Section 28 of the 1955 Act has been filed. 2. The facts of the case are that the applicant and the respondent-non applicant (hereinafter 'the non applicant') were married at Chirawa on 21-2-2002. It is the case of the applicant that three months subsequent to the marriage the non applicant insisted on a separate kitchen in an otherwise joint family/household. This was so done and the applicant and the non applicant shifting to the first floor of the parental house. According to the applicant this did not satisfy the non applicant and she began nagging him about the purported lack of culture in Sikar and insisting upon the applicant selling his share of joint family property and shifting to Dibrugarh (Assam) where the non applicant's father had an ongoing business. During this period a daughter was born to the married couple on 7-3-2003. According to the applicant his reluctance to accept the non applicant's demand of leaving Chirawa entailed a gradual unwinding of the marriage. Soon after the Holi of March, 2004 the non applicant without just cause left her matrimonial home and begun to reside at her parental house first in Suhasada (Haryana) and thereafter in Dibrugarh (Assam). The applicant went to fetch the wife and returned with her to Sikar on or about 11-4-2005. It was stated that however in spite of her return to Sikar, the non applicant could not reconcile herself to stay with the applicant and his family. She once again left her matrimonial home on 1-7-2005 along with the minor daughter. Matters between the couple thereafter deteriorated, consequent to which FIR No.151/2005 for the offences under Sections 406 and 498A IPC was lodged at Police Station Chirawa against the applicant, his parents, brothers and sister-in-law i.e. Vishvanath, Smt. Narbada Devi, Pramod Kumar, Smt. Nirupama Devi, Manoj Kumar and Mukesh Kumar. Further alleging that the non applicant and her father were threatened with their lives having lodged the FIR, a criminal complaint was also lodged by the non applicant and her father under Section 107/116 Cr.P.C. before the ADM Chirawa. Further alleging that the non applicant and her father were threatened with their lives having lodged the FIR, a criminal complaint was also lodged by the non applicant and her father under Section 107/116 Cr.P.C. before the ADM Chirawa. Proceedings were also taken against the applicant and his family before the Women's Commission Jaipur inter alia alleging that Sikar police was under the influence of the applicant and apart from lethargic investigation into FIR No.151/2005 the accused applicant's parents, brothers and sister-in-law viz. Smt. Nirupama Devi, Manoj Kumar and Mukesh Kumar were not being challaned for the offence under section 307 IPC in spite of specific allegation on that count. Thereon the applicant and his parents were summoned. Stating that the conduct of the non applicant amounted to desertion and mental cruelty a divorce petition was filed by the applicant praying that the application for divorce be allowed and the marriage be dissolved. 3. On service of notice on the divorce petition, the non applicant appeared and denied the facts alleged. It was stated that matrimonial relations between the non applicant and the applicant sustained till June 2005 when owing to threat to the non applicant's life owing to her refusal to pledge her jewellery against a loan for the applicant's business the non applicant was constrained to leave her matrimonial home with intervention of the Chirawa Police following her father's phone call who had in turn been earlier telephonically informed by the non applicant herself of the intolerable situation in her matrimonial home. It was alleged that the applicant, his parents, brothers and sister-in-law were constantly harassing the non applicant with demands of dowry/ unlawful demands for property and are guilty of criminal breach of trust qua the non applicant's stridden.On the pleadings of the parties the trial court framed 14 issues rather carelessly, inasmuch as every averment made in the application and denied in the reply was made into a separate issue. The learned trial court thereafter at the time of the judgment on the divorce petition rightly formulated three points for determination for the disposal of divorce petition i.e. (1) whether the non applicant had willingly withdrawn herself from the company of the applicant, deserted him and failed to discharge her obligations as wife; and (2) whether the conduct of the non applicant tantamounted to cruelty within the meaning of Section 13 (1) (ia) of the 1955 Act; and finally (3) as to what relief-if any, the applicant was entitled to.On consideration of the evidence before it, the learned trial court held that no case of desertion within the meaning of Section 13 (1) (ia) of the 1955 Act was made out as the non applicant was forced to leave her matrimonial home for reasons beyond her control. On the issue of cruelty the learned trial court held that the applicant and his witnesses had not been able to make out any case of cruelty under Section 13 (1) (ia) of the 1955 Act. It was further held that there was no substance in the case of the applicant that in the overall facts of the case more particularly the fact that the non applicant had been admittedly residing separately commencing July, 2005 and the fact that various complaints criminal and otherwise had been filed by the non applicant against the applicant and his family, decree of divorce ought to be granted on the ground of irretrievable break down of marriage. The reasoning was that irretrievable break down of marriage was not a ground for divorce recognised under Section 13 (1) of the 1955 Act and merely because the Hon'ble Supreme Court in the case of Samar Ghosh v. Jaya Gosh [ (2007)4 SCC 511 ] exercised its powers under Article 142 of the Constitution of India on that count and had indeed dissolved a marriage on the ground of irretrievable break down of marriage, it was not within the powers of the trial court to pass a decree of divorce on a similar ground. Hence this appeal. 4. Hence this appeal. 4. Learned counsel for the applicant has limited his submissions in the appeal to the issue of the non applicant's cruelty and submitted that from the facts and evidence on record before the trial court, documents in support thereof and even the pleadings of the non applicant in the reply to divorce petition a clear case of cruelty within the scope of Section 13 (1) (ia) of the 1955 Act was made out. He further submitted that the learned trial court also erred in failing to take into consideration the irretrievable break down of the marriage from the facts on record, inasmuch as irretrievable break down of marriage has been included by the judgment of the Hon'ble Supreme Court to fall within the meaning of cruelty under the 1955 Act for the reason that it supplied the tipping point for the courts adjudicating divorce petitions such that fundamentally dead marriages were not perpetuated by overemphasis on counter productive legality in emotive human affairs. 5. Learned counsel for the non applicant on his part has supported the judgment of the trial court. 6. The concept of cruelty under Section 13 (1) (ia) of the 1955 Act is amorphous. This aspect has been noted by the Hon'ble Supreme court amongst others in the case of Samar Ghosh v. Jaya Ghosh [(2007)4 SCC 551] , wherein it has been held that on a proper analysis of the earlier judgments of the Hon'ble Supreme Court itself as also the courts in Canada, Australia, USA and United Kingdom the only definite conclusion is that there cannot be any comprehensive definition of the concept of "mental cruelty" in which every conceivable case can be covered. This is because the human mind is extremely complex and human behaviour equally complicated as is human ingenuity. What is cruelty in one case may not amount to cruelty in another case, as cruelty differs from person to person depending upon the upbringing, level of sensitivity, education, family, cultural background, financial position, social status, customs, traditions, religious beliefs, human values and a whole world view. Noting that even though no uniform standard can ever be laid for guidance, the Hon'ble Supreme Court enumerated illustratively some instances of human behaviour entailing mental cruelty. Noting that even though no uniform standard can ever be laid for guidance, the Hon'ble Supreme Court enumerated illustratively some instances of human behaviour entailing mental cruelty. Some of them are as under:- (i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other, could come within the broad parameters of mental cruelty. (ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party. (iii) Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language, (but) petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable. (iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty. (v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse. (vi) Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty. (vii) Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty. (viii) The conduct must be much more than jealousy, selfishness, possessiveness, which causes unhappiness and dissatisfaction and emotional upset may not be a ground for grant of divorce on the ground of mental cruelty. (ix) Mere trivial irritation, quarrels, normal wear and tear of the married life which happens in day-to-day life would not be adequate for grant of divorce on the ground of mental cruelty. (x) the married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. (ix) Mere trivial irritation, quarrels, normal wear and tear of the married life which happens in day-to-day life would not be adequate for grant of divorce on the ground of mental cruelty. (x) the married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty. (xi) If a husband submits himself for an operation of sterilisation without medical reasons and without the consent or knowledge of his wife and similarly, if the wife undergoes vasectomy or abortion without medical reason or without the consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty. (xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty. (xiii) Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty. (xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage, on the contrary it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty. 7. In the case of K. Sriniwas Rao v. D.A. Deepa, [ (2013)5 SCC 226 ] the Hon'ble Supreme Court adding to the illustrations of mental cruelty as noted in the case of Samar Ghosh (supra) held that making unfounded indecent defamatory allegations against the spouse or relatives in the pleadings, filing of complaints or issuing notices or news items which may impact the business prospect or job of spouse and filing of repeated false complaints and accusation in courts against the spouse would in fact also tantamount to mental cruelty. 8. 8. In case of V. Bhagat v. D. Bhagat (Mrs.) [ (1994)1 SCC 337 ] the Hon'ble Supreme Court held that the averments in the written statement, or statements in the evidence or in cross examination can be looked at for ascertaining as to whether a divorce on the ground of mental cruelty is justifiable. Similarly it was held by the Hon'ble Supreme Court in case of Vijaykumar Ramchandra Bhate v. Neela Vijaykumar Bhate [ (2003)6 SCC 334 ] that allegations in the pleadings in reply to the divorce petition can leave behind profound and lasting disruption justifying on their own strength a decree of divorce on the ground of mental cruelty. In the case of Naveen Kohli v. Neelu Kohli, [ (2006)4 SCC 558 ] the Hon'ble Supreme Court held that repeated unwarranted complaints which cause harassment to a spouse constitute a reason for divorce on the ground of cruelty. In the case of Vishwanath Agrawal v. Sarla Vishwanath Agrawal, [ (2012)7 SCC 288 ] the Hon'ble Supreme Court while dealing with the concept of mental cruelty held that when the evidence on record clearly establishes a sustained attitude of causing humiliation and calculated torture on the part of one spouse to make the life of the other miserable it would amount to mental cruelty. Emphasis was specially laid on the behavioural pattern of the spouse and conduct denting the reputation of other spouse as "reputation is the salt of the life". In the case of Ravi Kumar v. Julmidevi [(2010)4 SCC 476] the Hon'ble Supreme Court held that cruelty would obviously mean absence of mutual respect and understanding between the spouses which embitters the relationship. Some time it may take a violent form and some time it may be confined to an unacceptable attitude or approach with silence itself in some situation amounting to cruelty. 9. In the backdrop of decisions of the Hon'ble Apex Court as to what constitutes mental cruelty under Section 13 (1) (ia) of the 1955 Act the facts of the present case and evidence thereon needs to be looked at. The applicant's case was that his wife had no desire to live in Sikar. She did not respect his business of a medical agency. Therefore she wanted to him shift out of Sikar and commence business with the aid of her father either at Suhasada (Haryana) or Dibrugarh (Assam). The applicant's case was that his wife had no desire to live in Sikar. She did not respect his business of a medical agency. Therefore she wanted to him shift out of Sikar and commence business with the aid of her father either at Suhasada (Haryana) or Dibrugarh (Assam). Towards this end she persistently nagged and instigated him to sell his share of the ancestral property in Sikar which she thought and called an uncultured place. Testimony of the applicant on this count before the trial court was supported by the evidence of Aw-2 Niranjan Lal Sharma, an independent witness, and in fact a relative of the non-applicant wife who remained unshaken in his cross examination. The evidence of Aw-3 Kishan Lal Pareek towards this end was also not seriously dislocated in his cross examination, albeit the facts remains that he was a relative of the applicant Babu Lal. As against the evidence of applicant's witnesses, the non applicant's father Ghanshyam Das Pareek appeared as NAW-2 in support of the non-applicant who was NAW-1. He denied the allegations of applicant that his daughter had debunked the city of Sikar or had instigated her spouse to live and work at Suhasada (Haryana) or Dibrugarh (Assam) after selling his share of the ancestral property. 10. Mr. Gupta, learned counsel for the applicant has submitted that the learned trial court has completely misdirected itself in law and come to a perverse finding with regard to applicant failing to make out a case of cruelty and therefore not being entitled to a divorce. It was submitted that the learned trial court overlooked the fact that the non applicant's conduct more particularly her pattern of behaviour was indicative of her determined vindictiveness and lack of respect towards the applicant and his family members. He submitted that the learned trial court overlooked the testimony of Aw-2 Niranjan Lal Sharma, who was an independent witness and in fact related to the non applicant. The said witness, counsel pointed out, had stated before the trial court that within three months of the marriage the applicant was coerced much against his wishes to have a kitchen separate from other members of the joint family on the first floor of the parental house. The said witness, counsel pointed out, had stated before the trial court that within three months of the marriage the applicant was coerced much against his wishes to have a kitchen separate from other members of the joint family on the first floor of the parental house. It was also stated by Aw-2 that the non applicant was insistent on the applicant selling his share of his ancestral property and moving out of Sikar as the non applicant did not like the culture and environment of the city. Counsel submitted that in the cross examination of Aw-2 not even a contrary suggestion was put to him to create a doubt with regard to veracity of his testimony before the trial court. It was submitted that the learned trial also acted perversely in overlooking the fact that FIR No.151/2005 at Police Station Sikar for offences under Sections 498-A and 406 IPC was filed not only against the applicant and his parents but also his two brothers and sister-in-law Smt. Nirupama Devi, Manoj Kumar and Mukesh Kumar. The police found the brothers and sister-in-law innocent and did not even challan them. This established the non applicant's spite against the applicant's family. Counsel submitted that it was also on record of the trial court that in her reply to the divorce petition the non applicant had stated that she was duped into marrying the applicant giving out his name as Pramod and not as Babu Lal. This, counsel submitted, was indicative of an allegation of fraud underlying the very marriage and was sufficient to lower the esteem of the applicant in the eyes of the general public as an impostor having married a woman with a false identity in the absence of which the woman would probably not have married him. It was further pointed out that the learned trial court also overlooked the admission of NAW-2 Ghanshyam Das Pareek, the father of non applicant wife that she had indeed addressed a letter Ex.A-45, wherein she had made allegations against the applicant and his parents of having stolen her jewelery. It was further pointed out that the learned trial court also overlooked the admission of NAW-2 Ghanshyam Das Pareek, the father of non applicant wife that she had indeed addressed a letter Ex.A-45, wherein she had made allegations against the applicant and his parents of having stolen her jewelery. Counsel further submitted that aside of FIR No.151/2005 at Police Station Chirawa for offences under Sections 498-A and 406 IPC falsely implicating at least the three relatives of her husband, the non applicant in her spirit of vengeance to harm the applicant and his parents filed a criminal complaint under Section 107/116 IPC before the ADM Chirawa on 5-11-2005 alleging that she was being threatened with physical harm and even loss of life by the applicant and his parents and being pressurised into not prosecuting the FIR No. 151/2005 for the offences under Sections 498-A and 406 IPC and Section 4 of the Dowry Prohibition Act,1961. The said application was palpably false with the sole object of queering the pitch for the applicant and his parents in obtaining bail in FIR No.151/2005 PS Chirawa. It was further submitted that the non applicant had also approached the Women's Commission, Jaipur with an allegation that the police at Chirawa were not booking the applicant and his parents for an offence under Section 307 IPC, in respect of the incident of 26-6-2005. Counsel further submitted that the over implication of the family members of the applicant in FIR No.151/2005 PS Chirawa the false allegations in the criminal complaint before the ADM Chirawa and before the Women's Commission Jaipur were found of no credence with the jurisdictional authorities and establish that the non applicant was pursuing the applicant and his family members with the determination of an arch enemy and not just an allegedly harassed wife solely with the intent of damaging them in body and spirit, lowering their prestige in the city where they lived and demeaning them in the eyes of the people in their support system and social base. It was further submitted that the hatred of non applicant for the applicant and his parents was also established by the fact that subsequent to the grant of bail under Section 439 Cr.P.C. to the applicant and his parents in FIR No.151/2005 PS Chirawa, an application for cancellation of bail No.457/2006 was moved by the non applicant before the Rajasthan High Court Jaipur seeking cancellation of their bail on false grounds of, under prosecution by exclusion of Section 307 IPC from the array of offences, obstruction of justice and tampering with evidence. The said application was however dismissed by the Hon'ble High Court. Counsel submitted that all these aspects of the matter were not considered by the trial court which casually proceeded to negate the allegation of cruelty as agitated for the grant of a decree of divorce only on the ground that as was prosecution following investigation into FIR No. 151/2005 PS Chirawa was pending against the applicant and his parents before the Munsif Magistrate Chirawa (being Cr.Case No. 631/2005), no view on the evidence in this regard could be taken. Counsel submitted that several of the aspects detailed herein above were not part of the criminal prosecution of applicant and his parents and ought to have been considered by the trial court to determine as to whether the pattern of conduct of the non applicant and her vindictiveness in approach was wholly unreasonable and constituted mental cruelty. Counsel submitted that the learned trial court also completely misconstrued the submission of the applicant for the grant of decree of divorce for reasons of irretrievable break down of marriage. It was submitted that the trial court overlooked the dictum of the Hon'ble Apex Court in case of K. Sriniwas Rao (supra) wherein the Hon'ble Supreme Court judicially recognised the concept of irretrievable break down of marriage as a cause for divorce in view of the fact that even though the said ground was not incorporated as a ground of divorce under the 1955 Act, yet where a marriage was beyond repair on account of the bitterness created by the acts of the spouses or either of them, the courts have taken the said circumstance as an aspect of cruelty necessitating severance of marital ties. Counsel referred to para 34 of the judgment, which reads as under:- "In the ultimate analysis, we hold that the respondent wife has caused by her conduct mental cruelty to the appellant husband and the marriage has irretrievably broken down. Dissolution of marriage will relieve both sides of pain and anguish. In this court the respondent wife expressed that she wants to go back to the appellant husband, but, that is not possible now. The appellant husband is not willing to take her back. Even if we refuse decree of divorce to the appellant husband, there are hardly any chances of the respondent wife leading a happy life with the appellant husband because a lot of bitterness is created by the conduct of the respondent wife." 11. Per contra, Mr. Gaur, learned counsel for the non applicant wife submitted that the applicant cannot take advantage of his own wrong as is sought to be done in the appeal, where the applicant and his parents first committed offences under Sections 498-A and 406 IPC against the wife and thereafter seeks to take advantage of consequential criminal proceedings and other steps available in law to the wife to protect herself. Reference has been made to the judgment of Hon'ble Supreme Court in the case of Shyam Sunder Kohli v. Sushma Kholi [ (2004)7 SCC 747 ] , wherein the Hon'ble Supreme Court has held that where the respondent wife was forced to leave her matrimonial home because of the conduct of her husband, the husband could not take advantage of any kind from the consequence flowing from his own conduct. He could not be allowed to set up a situation of his own making as an irretrievable break down of marriage. It has been further submitted that in any event irretrievable break down of marriage is not a ground statutorily recognised under Section 13 (1) of the 1955 Act. Reference has also been made to the judgment of the Hon'ble Supreme Court in the case of Vishnu Dutt Sharma v. Manju Sharma [ (2009)6 SCC 379 ] wherein the Hon'ble Apex Court has held that even the Apex Court could not superimpose a ground for divorce over the provisions of Section 13 (1) of the 1955 Act as it would tantamount to amending the Act which was purely a legislative function. Counsel has emphatically submitted that judgments of the Hon'ble Supreme court dissolving marriages on the ground of irretrievable break down of marriage being beyond the statutory provision cannot be treated as a precedent as emphasised by the Hon'ble Supreme Court in the case of Vishnu Dutt Sharma (supra). 12. Heard learned counsel for the parties and perused the material available on record including the enunciation of law by the Hon'ble Apex Court on as to what test are to be applied for determining cruelty within the scope of Section 13 (1) of the 1955 Act.Cruelty is an open ended concept and can vary in a relationship between the wife on the one hand and husband and his relatives on the other hand with reference to time, place, sensitivity, world view, culture and the belief systems of the individuals involved. Illustrations of cruelty have been detailed out by the Hon'ble Supreme Court in the case of Samar Ghosh (supra) and in the case of U. Sree v. U. Srinivas [ (2013)2 SCC 114 ]. Effectively the obtaining legal position is that when the evidence brought on record clearly establishes a sustained attitude, a pattern of conduct causing humiliation of a spouse and family ruining the family's reputation and making the life of husband and his parents miserable without just cause, it would tantamount to mental cruelty. The key to my mind is the observation of the Hon'ble Supreme Court that while determining cruelty emphasis is to be laid "on the behavioural pattern of the wife whereby a dent is created in the reputation of the husband, regard having had to the fact that reputation is the salt of life". 13. It is true that incidents of harassment of wife on account of dowry/unjust demand for property are not unusual. It is also true that a harassed wife has recourse in law against unlawful demands for dowry/property such as by prosecuting the perpetrators under Sections 498-A IPC, Dowry Prohibition Act,1961 or the Protection of Women from Domestic Violence Act, 2005. 13. It is true that incidents of harassment of wife on account of dowry/unjust demand for property are not unusual. It is also true that a harassed wife has recourse in law against unlawful demands for dowry/property such as by prosecuting the perpetrators under Sections 498-A IPC, Dowry Prohibition Act,1961 or the Protection of Women from Domestic Violence Act, 2005. The vexed question before the court at all times in matrimonial disputes is as to where the fault lies and whether resort to the beneficial provisions of law by the harassed wife is lawfully and properly made and whether beneficial provisions of law are resorted to as a tool of vengeance in an unhappy and disintegrating marriage for lack of harmony between the married couple. No doubt the day to day friction in a marriage can be exacerbated in a joint family with the newly married wife and the joint family adjusting with the new situation. Evidence in a court of law in divorce petition are as a matter of course on pattern and for obvious reasons exaggerated by each of the parties with liberal dose of subjectivity and even plain falsehood-equally by both parties. Yet it is for the applicant to show, where cruelty is alleged, a behavioural pattern from the evidence on record adequate in uniformity and consistent in time to establish his case under Section 13 (1) (ia) of the 1955 Act and claim a decree of divorce on that ground. 14. Now back to the evidence on record. In my considered opinion the approach of the learned trial court in shutting out the fact of FIR No.151/2005 for the offences under Sections 498-A and 406 IPC read with Section 4 of the Dowry Prohibition Act completely on account of the fact that the applicant and his parents had been challaned thereunder is not sustainable. This is for the reason that the learned trial court failed to notice that as against the accusation for demand of dowry/unlawful demands for property against the applicant, his parents and three others (two brothers and one sister-in-law) the police had challaned only the applicant and his parents while filing a negative report against the three other accused. This is for the reason that the learned trial court failed to notice that as against the accusation for demand of dowry/unlawful demands for property against the applicant, his parents and three others (two brothers and one sister-in-law) the police had challaned only the applicant and his parents while filing a negative report against the three other accused. The learned trial court also failed to notice the fact that criminal complaint set up against the applicant and his parents under Section 107/116 Cr.P.C. before the ADM Chirawa also did not appear to be fully established and therefore would partake the character of a false complaint. The trial court also failed to consider the fact that the non applicant also approached the Women's Commission at Jaipur alleging that the applicant and his family members were all guilty of the offence under Section 307 IPC for having allegedly attempted to murder her in the intervening night of 25/26-6-2005. It is an admitted case the neither the applicant nor his family members were challaned for an offence under section 307 IPC nor are being prosecuted therefor falsifying the non applicant's allegation in regard thereto. It also ought to be noticed that on the applicant and his parents having been granted bail subsequent to their arrest on 11-7-2005 and 14-7-2005 respectively the non applicant moved before this court an application for cancellation of bail (467/2006) on false allegations with regard to threats to her emanating from the applicant and his parents. The application for cancellation of bail failed. Subsequently an application was filed against brothers and sister-in-law of the applicant who had not been challaned by the police that they were also threatening the non applicant and her father with dire consequences in the event the criminal prosecution under Section 498-A and 406 IPC and Section 4 of the Dowry Prohibition Act,1961 not being withdrawn. To my mind the vindictive approach and apparent spite of the non applicant towards the applicant and his family members as deducible from the pattern of conduct cannot be construed as a normal incident of a married life or they were invoking of legal process for the protection of the wife and vindication of justice. To my mind the vindictive approach and apparent spite of the non applicant towards the applicant and his family members as deducible from the pattern of conduct cannot be construed as a normal incident of a married life or they were invoking of legal process for the protection of the wife and vindication of justice. A consistent pattern of vindictiveness by the non applicant wife is clearly evident wherefrom it is quite clear that she was intent upon harming the whole of the applicant's family, and destroy them socially and economically. Lowering them down in public esteem was the inevitable consequence. In the facts and circumstances cruelty under Section 13 (1) (1a) of the 1955 Act stood made out. As held by the Hon'ble Supreme Court in the case of K. Srinivas Rao (supra) filing of false cases even in a situation of provocation tantamounted to mental cruelty. The learned trial court overlooked this important aspect of the matter and therefore its order on this count needs correction by this court. 15. On the point of irretrievable break down of marriage, a Two Judge Bench of the Hon'ble Supreme Court in the case of Vishnu Dutt Sharma (supra) has indeed observed that it not being a statutorily recognised ground under the 1955 Act a decree of divorce passed thereon would be against law and even where the Hon'ble Supreme Court had exercised its powers under Article 142 of the Constitution of India invoking the said circumstances for grant of a decree of divorce would not constitute a judicial precedent. 16. However a Three Judge Bench of the Hon'ble Supreme Court of India in the case of Samar Ghosh (supra) has held that subsequent to a long period of continuous separation a fair conclusion would be that the matrimonial bond has broken beyond repair and the marriage rendered a mere fiction though supported by a legal tie. The Hon'ble Supreme Court observed that refusal of severing the matrimonial bond in such cases would not render the law serving the sanctity of marriage but instead would entail a situation where the feelings and emotions of the parties to matrimonial dispute would be forever scared. That consequences would entail mental cruelty to both the parties. The Hon'ble Supreme Court observed that refusal of severing the matrimonial bond in such cases would not render the law serving the sanctity of marriage but instead would entail a situation where the feelings and emotions of the parties to matrimonial dispute would be forever scared. That consequences would entail mental cruelty to both the parties. The same view has also been earlier propounded by the Hon'ble Supreme Court in the case of K. Srinivas Rao (supra) and in the case of V. Bhagat v. D. Bhagat (Mrs.), [ (1994)1 SCC 337 ] wherein the Hon'ble Supreme Court held that even though irretrievable break down of marriage was not a statutorily recognised ground for divorce, yet in determining the relief to be granted on the basis of evidence on record, the said circumstance was to have a bearing on the mind of the Judge. In the case of Navin Kohli (supra) the Hon'ble Supreme Court had even made recommendations to the Union of India to consider amending the 1955 Act and incorporating irretrievable break down of marriage as a ground for divorce, as mere a mechanical and legal marriage brings happiness to none and only cause unavoidable mental agony to the parties involved. 17. To my mind, the legal position deducible therefore is that even though irretrievable break down of marriage is not a statutorily recognised ground of divorce, yet where such a situation is found as arising out of prolonged separation (in this case about seven years), along with other attendant circumstances such as disinclination of parties to reconcile and of the wife's post separation conduct exhibiting unwarranted aggression to harm the husband and his immediate family members, it supplies an important input to the conclusion of the court on the making out or otherwise of a ground of cruelty under Section 13(1) of the Act of 1955 i.e. it tilts the balance as a relevant piece of evidence in the adjudication by the court. 18. In the instant case aside of the conduct and behavioural pattern of the non-applicant-wife as detailed above, as early as on 4-9-2006 the order-sheet of the trial court indicates that a statement was made by the non applicant that there was no possibility of reconciliation between the parties. 18. In the instant case aside of the conduct and behavioural pattern of the non-applicant-wife as detailed above, as early as on 4-9-2006 the order-sheet of the trial court indicates that a statement was made by the non applicant that there was no possibility of reconciliation between the parties. Subsequently this court made another attempt at resolving the dispute by referring the matter to Mediation Centre before the nominated Mediator (Ms.Chandra Kanta Gupta, retired RHJS). She noted that even though both the applicant Babu Lal and non applicant Aruna Pareek were present before her no possibility of a settlement between the parties existed. Therefore a failure report of mediation was filed. A letter dated 18-2-2013 under the hand of the non-applicant-wife on the record of this misc. appeal states that " gekjk fookn le>kSrs ls fuiVuk lEHko ugha gSA " 19. In the circumstances of the case, I find that all efforts at reconciliation have failed apparently owing to deep rooted disharmony between the spouses exacerbated no doubt following FIR No.151/2005 for the offences under Section 498-A and 406 IPC read with Section 4 of the Dowry Prohibition Act against the applicant and his family members and thereafter no holds barred approach by the non-applicant in seeking the cancellation of bail granted to the applicant and his parents, of accusing them of an offence under section 307 IPC in spite of the police not finding such an offence in investigation and in accusing the brothers and sister-in-law of the applicant of offences under section 498-A and 406 IPC in which they were not even challaned by the police. No purpose would be sub-served by prolonging the state of freeze in the relations between the applicant husband and the non applicant wife, who stand separated for over seven years effective 01.07.2005. As held by the Hon'ble Supreme Court in the case of K. Srinivas Rao v. D.A. Deepa (supra) though irretrievable breakdown of marriage is not a ground for divorce under the Act of 1955, where a marriage is beyond repair on account of bitterness created by the acts of the husband or wife or both, courts have taken the irretrievable breakdown of marriage as a very weighty circumstance amongst others to grant a decree of divorce. The logic of such an approach, held the Hon'ble Apex Court, was that marriage involves human sentiments and emotions and where they have dried up (from facts on record) there would little or no chance of revival on account of an artificial union being perpetuated. It is thus evident to this Court that the Hon'ble Apex Court has taken a pragmatic approach in matrimonial matters as against an overtly legalistic view with the desire to eschew, a dead marriage, being perpetuated. 20. The instant dispute between the applicant and the non-applicant has been pending for the last about seven years and the important years of both the parties have been spent litigating. On the facts on record, reunion appears to be impossible. Consequently taking a overview of the evidence and facts on record, I find that the conclusion of the trial court that a case of mental cruelty was not made out deserves to be set aside. It is held that the behavioural pattern of the non-applicant was not that of a reasonable spouse most particularly her determination of seeing the applicant and his parents in jail by moving an application for cancellation of their bail (unsuccessfully) and seeking their prosecution for an offence under Section 307 IPC (again unsuccessfully) as also the non-applicant's desire to prosecute the brothers and sister in law of the applicant for offences under Section 498A and 406 IPC (also unsuccessfully). It is held that in the overall state of evidence and facts on record the applicant has been able to make out a case of mental cruelty as against the non-applicant within the meaning of Section 13(1)(1a) of the Act of 1955 and is entitled to a divorce. So ordered. The marriage between the applicant and non-applicant stands dissolved. 21. Even though this Court finds that the applicant is entitled to a divorce, it is the duty of this Court to ensure that the non-applicant is positioned to live a life of dignity post the dissolution of her marriage. The applicant has a good business and runs a medical store. He has agricultural lands and urban property albeit stated to be joint with his family. Presently under interim orders of this Court the applicant is paying Rs. 3,500/- p.m. to the non-applicant and Rs. 3,500/- p.m. to his minor daughter as maintenance. The applicant has a good business and runs a medical store. He has agricultural lands and urban property albeit stated to be joint with his family. Presently under interim orders of this Court the applicant is paying Rs. 3,500/- p.m. to the non-applicant and Rs. 3,500/- p.m. to his minor daughter as maintenance. Taking into consideration the notorious fact that incomes/ assets in the country are under-reported and on a overview of the facts of the case as also the statement of the applicant and his counsel in court that permanent alimony/maintenance as directed by this Court would be paid in the event of a grant of decree of divorce, I would direct that the applicant pay an aggregate sum of Rs. 20 lacs (Rupees Twenty Lacs) as permanent alimony to the non-applicant wife and maintenance of the minor daughter. A sum of Rs. 5 lacs shall be paid within one month. Thereafter the remainder Rs. 15 lacs shall be paid in two instalments of Rs. 7.5 lacs each with interval of 3 months. It is directed that the interim maintenance of Rs. 3,500/- p.m. to the non-applicant-wife and Rs. 3,500/- p.m. to the minor daughter shall be continued to be paid separately till the deposit of the amount of Rs. 20 lacs as directed. Of the sum of Rs. 20 lacs aforesaid, Rs. 6 lacs would be kept in a long term fixed deposit in the name of the minor child born from the wedlock of the applicant and non-applicant till she attains the age of 21 years or till she gets married whichever is earlier. FDR shall be held in the name of the minor girl child through her mother till she attains majority. The remainder amount of Rs. 14 lacs shall kept in a FD-monthly/ quarterly interest wherefrom shall provide for the day to day expenses of the non-applicant and her minor child. 22. The miscellaneous appeal stands allowed accordingly.Misc. Appeal Allowed as Above. *******