JUDGMENT : 1. Aggrieved by the judgment and decree passed by the Family Court at Shivamogga in M.C. No. 107/2012 dated 05.04.2013, whereby the petition filed under Section 13(l)(ia) of the Hindu Marriage Act, 1955, by the appellant/wife, seeking dissolution of her marriage on the ground of cruelty is dismissed, the wife is in appeal before this Court. 2. As the facts unfurl: The wife filed a petition for divorce against respondent/husband on the ground of cruelty. Her case was, that the parties were married on 05.05.2002, as per the customs prevailing in their Rajaputh community; after the marriage the wife joined the husband in the matrimonial home at Bhadravathi; the said house was located in a slum area though the respondent and his family is very rich. During her stay in the matrimonial home, she was witnessing quarrels in her neighbourhood every day; the husband was quarrelling with her for petty matters; he was alcoholic and in his intoxicated state, he beat her many times; his parents were scolding him for his bad behaviour. Her way of life was different from that of the husband and if at any time she expressed her opinion, he used to tell her that he would divorce her and marry again. He is very weak in private life; she did not conceive even after two years of her marriage; she never enjoyed the marital life to the fullest satisfaction. As days went on he became averse to cohabitation due to his inability to have it. The couple consulted one doctor by name Dr. Mallesh Hulamani at City Hospital, Shivamogga; thereafter she came to know that her husband is infertile and she had no hopes of begetting a child; even after treatment, his potency did not improve; she came to her parents house on 15.11.2007 and stayed for a long time; the respondent/husband called her back over phone and scolded her in filthy language and she apprehends threat to her life. By way of amendment, she further pleaded that the husband on 10.11.2008, married one Seema, daughter of Kamala Bai and now, is residing with her and leading marital life with her. 3. The husband/respondent contested the petition, admitted the relationship but traversed the allegations, touching the locality of his house, the quarrels in the neighbourhood, his alcoholic attitude, his weakness in private life, marrying again etc. 3. The husband/respondent contested the petition, admitted the relationship but traversed the allegations, touching the locality of his house, the quarrels in the neighbourhood, his alcoholic attitude, his weakness in private life, marrying again etc. He admitted about consulting the doctor but denied the petition allegation pertaining to alleged cruelty, impotency and second marriage. His defence was, her parents and other elders had visited his house prior to the marriage. After fully consenting about the standard of his living, she has married him. She insisted for a separate residence and was not willing to stay with his parents. He told her that he is the only son to his parents and can not be separated from his parents. He is ready to take her back and lead happy marital life. 4. The petition was allowed at the first instance and in the appeal by the husband, the judgment of Court below was set aside and the matter was remanded to the Court below. After the remand, the petition was amended by the wife by incorporating the allegations of second marriage. Both parties lead evidence and marked documents Exs.P. 1 to P.4 and Exs. Rl to R.5. After giving audience to both parties, the learned Family Court has dismissed the petition. 5. Sri. R. Gopal, learned Counsel for the appellant submits that the Court below failed to appreciate the evidence adduced by the wife in it's proper perspective and has come to erroneous conclusion that the wife failed to prove the ground of cruelty. She had proved the second marriage of the husband by examining the witnesses but the evidence of PWs.2 to 3 was disbelieved on the fragile ground that they are related to her. It is not reasonable to expect direct evidence in respect of second marriage which is secretly performed. The Family Court erroneously held that, infertility/impotency of the husband is not proved for not examining the doctor who has given the report Ex.P.2, though the husband has not disputed the xerox copy of the report produced by her. The Court below ought to have appreciated the documentary evidence. As per the report, the husband suffers from primary infertility due to testicular failure. The husband produced documents Exs.R.l to R.5, among them Exs.R. 1 and R.3/medical reports demonstrate that he has no problem to lead normal sexual life. The Court below ought to have appreciated the documentary evidence. As per the report, the husband suffers from primary infertility due to testicular failure. The husband produced documents Exs.R.l to R.5, among them Exs.R. 1 and R.3/medical reports demonstrate that he has no problem to lead normal sexual life. Those documents are appreciated by the Court, though the authors of those documents are not examined. There is enough evidence on record establishing that during the stay with the husband, she is subjected to cruelty both physical and mental which is a valid and legal ground for her to seek decree of divorce. 6. Learned Counsel further submits that appellant/wife has filed I.A. No. 2/2013 seeking permission to adduce further evidence. After the petition was dismissed by the Court below, she met Kamala Bai who is the mother of Seema alias Shruthi on 11.05.2013. Said Kamala Bai admitted the marriage of her daughter with the respondent and the appellant has recorded the said conversation in her mobile phone. Her conversation with Seema dated 23.05.2013 confirms the second marriage of the respondent with Seema. On 26.05.2013, the husband contacted her over his mobile phone and the conversation exposes that he has relationship with his second wife Seema whom he calls by other name Shruthi. Again, he contacted her over landline telephone on 10.07.2013. During the course, he admitted the fact of having two wives etc. She has made copy of CDs of all the conversation and intends to produce those CDs and the written transcript of the conversation as additional evidence. Some time after meeting Kamala Bai, Seema contacted her over phone and expressed her feeling for having committed wrong in marrying the respondent. These materials if admitted in evidence, would fortify her case that the husband has gone for second marriage even before the wife filed the divorce petition in the year 2012. The parties are separated for last 7 years. If really the husband intended to save the marriage, he would have made effort to get her back to the marital fold without any intention to lead life with her he is contesting the case only to harass the wife. Even without the ground of second marriage, the wife has made out a case of physical and mental cruelty. She is not seeking any alimony from her husband except a decree of divorce. 7. In reply, Sri. Even without the ground of second marriage, the wife has made out a case of physical and mental cruelty. She is not seeking any alimony from her husband except a decree of divorce. 7. In reply, Sri. K. Chandra Mohan, learned Counsel for the respondent, while sustaining the judgment of the Court below, submits that the wife has fabricated false story against him. Even now he has abundant love for her; her father is not earning in lawful manner and with an ulterior motive to grab his money and property, he has brain washed the appellant/wife to separate from him and got the petition filed. He is ready to look after her to the best of his ability. The husband produced documentary proof before the Court below, that he is physically fit to lead healthy marital life. He never spoke to his wife over phone either through landline or mobile phone, as alleged in the affidavit tiled in support of I. A.No.2/2013. In fact, his mobile phone was not in his possession, on which date he is alleged to have spoken to his wife over mobile phone. He had lost the mobile phone and asked the jurisdictional police to search of his mobile. Kamala Bai and Seema are all fictitious persons. There is no truth in any of the contentions made before this Court and the appeal is liable to be rejected. 8. On considering the rival submissions of learned Counsel for both parties and on perusal of the records, the following point arises for our consideration is: Whether the wife has made out a case of cruelty entitling her for a decree of divorce? 9. The wife sought divorce firstly on the ground of physical disability of the husband to have conjugal relation with her in their private life, secondly on the ground of his abusive behaviour towards her and thirdly, on the ground of his second marriage. The trial Court dismissed petition allegation regarding location of marital home in slum area, since it surfaced in the cross-examination of the wife that the house was surrounded by offices and located by the side of highway. In our considered opinion, the topography of the marital home is of no consequence, unless there was any pleading to the effect that the husband was influenced by rude demeanour of his neighbourers and adopted the same, in his treatment to the wife. In our considered opinion, the topography of the marital home is of no consequence, unless there was any pleading to the effect that the husband was influenced by rude demeanour of his neighbourers and adopted the same, in his treatment to the wife. The allegation of physical harassment is brushed aside on the observation that the evidence of the wife is interesting testimony and lacks corroboration. Para No. 16 of the judgment is spent only to negate the allegation that the ways of the wife differs from that of husband, perhaps assuming that was one of the allegation regarding cruelty. Conveniently, the Court overlooked further allegation that 'if at any time she expressed her opinion the respondent used to tell her that he would divorce her and take a second wife......'. 10. Further, the learned Single Judge proceeds on the assumption that the petitioner made allegation against the husband's impotency. On a careful reading of the pleading, no where such contention is taken. What is stated could at the best be interpreted that the husband was weak in his private life and she did not enjoy the married life in full satisfaction. Even after treatment his potency did not improve. According to the learned Family Court Judge, since the wife has not made any effort to accept the open offer given by the husband tendering himself before any doctor of her choice, falsifies her allegation. Ex.P.2, the Xerox copy of consultation and lab report is disbelieved for not examining the author. Ignoring the fact that the husband himself did not dispute Ex.P.2 and consulting the doctor. He did not contradict the wife while she was in witness box, that Ex.P.2 was a concocted document. It is a matter to be noted that he was cross-examined on 01.03.2013, thereafter, he filed application on 16.03.2013, seeking permission to produce additional documents i.e., his lab reports from another doctor manifesting that he is a physically fit person. His documents are said to be of 16.07.2008. If really these documents were in his possession as early as 2008, we are at loss to understand, what prevented him to plead so in his defence or produce these documents at the first instance itself. The learned Judge who discarded Ex.P.2 does not doubt the medical report Exs.R. 1 and R3 allegedly pertaining to the semen analysis report of the husband indicating normal fertility. The learned Judge who discarded Ex.P.2 does not doubt the medical report Exs.R. 1 and R3 allegedly pertaining to the semen analysis report of the husband indicating normal fertility. The observation was 'the contention of the wife that the respondent is impotent is falsified by the documentary evidence placed by both of them'. Unfortunately, impotency was not at all the case of the wife. Further, on evaluation of the evidence pertaining to the second marriage of the husband, it was observed that the wife did not plead about the second marriage at the earliest though she knew about the second marriage during November, 2008 itself. PWs.2 and 3 who give evidence about the second marriage were disbelieved as hearsay evidence. We have no comment about this particular observation of the Court below because neither of them have seen the husband marrying Seema nor seen them living together under the same roof as husband and wife. 11. During the course of the appreciation of evidence by the Court below there was much discussion on the facts which was not the real controversy that warrants revaluation of evidence in this appeal. It is undisputed between the parties that when the marriage was celebrated on 05.05.2002, the wife was not yet completed 18 years. They lived together under the same roof until 15.11.2007. It is the solemn testimony of the wife that the husband was weak in private life. It was never her case that the marriage was not consummated nor she alleged that the husband is impotent. Ex.P.2 is an admitted document. It is the xerox copy and the original is said to be with the husband. On the careful consideration of this document dated 08.05.2004, we are able to extract the following: "case seen by doctor Rajeev Pandurangi Married for two years Semen analysis Azoospermia, fructose-negative On examination decreased body hair and facial hair Testes slightly smaller size - Penes normal? Vas.... Felt bilaterally query but hypoplastic Epidedimus right side not felt Impression - primary infertility due to testicular failure - to rule out obstructive seminal vasicle - azoospermia ED obstruction - etc. Advice: Serum testosterone, TRUS: for seminal vasical pathology Serum FSH, LH Repeat seminal analysis after one month. Patient not willing for TRUS Ultra sound (transvasical) study done shows prominent bilateral seminal vesicles? Advice: Serum testosterone, TRUS: for seminal vasical pathology Serum FSH, LH Repeat seminal analysis after one month. Patient not willing for TRUS Ultra sound (transvasical) study done shows prominent bilateral seminal vesicles? FSH Normal LH PPL Advice: to get seminal analysis after two weeks Semen for fructose Analysis Tablet - Amoxt (Not eligible)" The lab report annexed, discloses sperm counts 'nil'. 12. It is not explained by the husband what necessitated him to go for consultation and it is not his case that Ex.P.2 is a fabricated document. He produced a counter medical report Exs.R.l, R.3 and R.5, pertaining to 16.07.2008, 20.12.2008 and 14.03.2013, respectively. If really his health improved in between periods that has no bearing on the cause of action on which the petition is filed. The veracity of Ex. or Exs. R1, R2 and R5 are neither proved nor disproved. His case was, the wife was not willing to reside where his parents were residing and that was the reason for the differences between them. But it has come in the evidence of his wife during cross-examination that the parents-in-law for one year harassed her and thereafter coming to know the defect of their son, showered love and affection on her. This piece of her evidence appears to be the factuality. She never threw aspersion on her in-laws. In fact, she had pleaded that her in-laws used to scold their son for his behaviour. 13. It is interesting to note that in her affidavit evidence dated 03.04.2010, she has categorically stated "even after two years of marriage I did not conceive. My husband was also very weak in private life. I have never enjoyed the married life to full satisfaction. As days went on, the respondent became more and more averse to cohabitaton due to his inability to have it. This necessitated us to consult doctors". During the cross-examination, this piece of evidence was not at all touched. In her further affidavit dated 15.12.2012, she stated to the effect that on the first night itself her dreams were shattered; her husband would toss and turn on her body, unable satisfy her sex, he used to consume alcohol and beat her everyday. Unable to bear with his barbarism, she returned to her parents house. He used to approach her in her parental home to harass her, come home with alcohol bottle, consume the same and repeat his harassment. Unable to bear with his barbarism, she returned to her parents house. He used to approach her in her parental home to harass her, come home with alcohol bottle, consume the same and repeat his harassment. The above piece of affidavit evidence was neither touched nor contradicted during her cross-examination. In his affidavit filed as his rebuttal evidence, on his own, stated to the effect that, the wife has made out a specific case of his impotency but taken a contrary view of his second marriage. He never made out a case that during her stay with him they had normal cohabitation and enjoyed the marital bliss. As a respondent, he has taken a casual stand of total denial of wife's case but did not con- structure a specific defence of his own. The Court to appreciate, whether the parties had normal sexual life or not has to depend upon the credit worthiness of the parties only. In the absence of proper rebuttal or failure to put one's case forward, would tantamount to admission of wife's case that the wife suffered without normal cohabitation. The Division Bench of High Court of Bombay in the matter of Mrs. Rita Nijhawan v. Mr. Bai Krishan Nijhawan reported in AIR 1973 Delhi 200 portrays the mental condition of women similar to that to appellant/wife herein, the extract is as below :- "In these days it would be unthinkable proposition to suggest that the wife is not an active participant in the sexual life and therefore, the sexual weakness of the husband which denied normal sexual pleasure to the wife is of no consequence and therefore cannot amount to cruelty. Marriage without sex is an anathema. Sex is the foundation of marriage and without a vigorous and harmonious sexual activity it would be impossible for any marriage to continue for long. It cannot be denied that the sexual activity in marriage has an extremely favourable influence on a woman's mind and body, the result being that if she does not get proper sexual satisfaction it will lead to depression had frustration. It has been said that the sexual relations when happy and harmonious vivifies woman's brain, develops her character and trebles her vitality. It must be recognised that nothing is more fatal to marriage than disappointments in sexual intercourse". It has been said that the sexual relations when happy and harmonious vivifies woman's brain, develops her character and trebles her vitality. It must be recognised that nothing is more fatal to marriage than disappointments in sexual intercourse". Without adding any annotation or connotation, we import the above portrayal to the case on hand. 14. Further her allegation about ill-treatment by her husband, there is no eye-witness and no documentary proof like lodging any sort of complaint to the police. It is matter of common sense for any one to understand, why a woman raised and brought up in a traditional family hesitates to approach the police to complain against her in-laws. Even today a large section of our Society has inhibition to take family dispute to the Court or Police Station. If the neighbourhood of the matrimonial home is not acquainted with the family affairs of the parties, how could she procure independent eyewitnesses about the abusive conduct of her husband. The husband being only son for his parents, what sort of assistance can a daughter-in-law expect from her in-laws in this matrimonial case? As observed above, husband has not come with a definite nature of defence. If the wife is not speaking out truth there must be some hidden agenda which the husband shall in all probability sense the clue. In his affidavit evidence, he avers to the effect 'the father of the petitioner is not earning in lawful manner and his intention is to grab the landed property belongs to his father and created a story with his wife and he successfully brainwashed her to leave his company'. But we do not get any support in such contention. She is not at seeking any alimony for her husband. We do not understand how the father in law who is an ex-serviceman from military can lay his hands on the family properties of the husband? It is nothing but a scandalous and baseless statement on the part of the husband. 15. Next question would be whether acts alleged and proved by the wife amounts to "Cruelty in the eye of law?". The concept of cruelty has been dealt with in Halsbury's Laws of England (Vol. 13, 4th Edition Para 1269) as under; ".......................Whether one spouse has been guilty of cruelty to the other is essentially a question of fact and previously decided cases have little, if any, value. The concept of cruelty has been dealt with in Halsbury's Laws of England (Vol. 13, 4th Edition Para 1269) as under; ".......................Whether one spouse has been guilty of cruelty to the other is essentially a question of fact and previously decided cases have little, if any, value. The court should bear in mind the physical and mental condition of the parties as well as their social status, and should consider the impact of the personality and conduct of one spouse on the mind of the other, weighing all incidents and quarrels between the spouses from that point of view; further, the conduct alleged must be examined in the light of the complainant's capacity for endurance and the extent to which that capacity is known to the other spouse. The test of cruelty as laid down by the Apex Court in the classical case of Dastane v. S. Dastane reported in (1975) 2 SCC 326 ( AIR 1975 SC 1534 ) is, it must be of such a character as to cause in the mind of the petitioner a reasonable apprehension that it will be harmful or injurious to the petitioner to live with the respondent. The wife here complains that she apprehends threat to her life considering his past behaviour continuous cessation of marital intercourse or total in differences on the part of one spouse against the other, amounts to legal cruelty as pronounced by Apex Court in Siraj Mohmed khan Janmohamad Khan v. Haizunnisa Yasinkhan and another reported in (1981) 4 SCC 250 : ( AIR 1981 SC 1972 ), 16. 'Wife beating', when the civilised society looks upon it as abusive or atrocious conduct in some strata of the population, it is an acceptable gesture a husband exhibits his intimacy towards the wife. The bottom line is, whether or not the cruel act is intentional or unintentional but how it is perceived by the other side. We are not at recording a finding about physical fitness or fertility of the husband but about the impact of treatment on her during her stay with the husband in specific reference to her private life. The yardstick, of proof of a fact in a matrimonial case differs from a criminal case. The pleading in the plaint and affidavit evidence may not successfully express delicate vibration of emotions of the parties. They are usually drafted with focus on legal technicalities. The yardstick, of proof of a fact in a matrimonial case differs from a criminal case. The pleading in the plaint and affidavit evidence may not successfully express delicate vibration of emotions of the parties. They are usually drafted with focus on legal technicalities. It is for the Court to draw inference on the basis of attending facts and circumstances, the dimensions of the lis between the parties. 17. Coming back to the pavilion, the parties were married in the year 2002. Wife walked out of the matrimonial home in November 2007. She filed this Divorce petition in April, 2008. If really the respondent is a responsible and affectionate husband as posed by him, he would not have waited until receiving notice from the Court. Nothing is shown from his side, any attempt being made to persuade his wife to return to marital home. That again fortifies the case of wife about his indifferent attitude. 18. In Samar Ghosh v. Jaya Ghosh reported in (2007) 4 SCC 511 , the Apex Court enumerated some instances of human behaviour, relevant while dealing cases of mental cruelty. One among them was : "(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". 19. Irretrievable breakdown of marriage is not a ground to dissolve a marriage unless any of the grounds made available for divorce is proved. Here is couple before us separated from each other for eight years, still young at age and long life ahead of them. Dismissal of petition by the Court below did not serve any remedy for them. It is not the case of them that cruelty alleged and proved in this case was condoned at any point of time. Before the shadow of time takes hold, it is appropriate that their marital bond is severed so that they can shape their future, far better. 20. It is not the case of them that cruelty alleged and proved in this case was condoned at any point of time. Before the shadow of time takes hold, it is appropriate that their marital bond is severed so that they can shape their future, far better. 20. We have also given our mindful consideration, whether wife by alleging second marriage of her husband, which she could not prove to the satisfaction of the Court, is herself guilty of marital offence. That is not so, she has placed some evidence to justify herself that she had reason to believe about the second marriage of the husband. 21. For the reasons stated in the preceding paras, we hold that appellant wife has successfully proved her case of cruelty in both physical and mental, as enumerated under Section 13(1) (ia) of Hindu Marriage Act and is entitled for dissolution of her marriage with the respondent. 22. Accordingly, the appeal is allowed. 23. The judgment and decree passed by the Family Court at Shivamogga in M.C. No. 107/2012 dated 05.04.2013 is set aside. The marriage of the appellant and respondent solemnized on 05.05.2002 is dissolved by decree of divorce. 24. In view of the disposal of the main matter, I.A. Nos. 2/2013 and 1/2014 are also disposed of as they do not survive for consideration.