JUDGMENT : Sharad Kumar Sharma, J. 1. The situation, which has arisen in the instant case, ought not to have been chanced, being a situation which has resulted into filing of a suit for dissolution of marriage after 22 years of marriage which was solemnized as back as on 10th May, 1989. What is astonishing is not only the age of marriage but also the age of children who were born out of the wedlock. At the time, when the proceedings was initiated, the parties to the matrimony had four children. The eldest daughter, Ranjita, was 19 years of age, Km. Ruchi, the second daughter, was 17 years of age, Km. Anjali, the third daughter, was 11 years of age and Dipanshu, was 9 years of age. 2. Looking to the age of the children, they themselves, have attained the majority or some of them were on the verge of attaining majority and were of marriageable age. The nature of the controversy, which was gradually germinated between the husband and wife, would be having a very tortuous impact on the future of the children in their personal and social life, their attitude towards life and their future, and, since parties to the marriage, being matured old husband and wife, they should have, before stepping into the controversy of dissolution of marriage, should have thought of their honorous duty towards the family as a whole. 3. Yet, the husband instituted a suit for dissolution of marriage, which was numbered as Suit No. 147 of 2011, before the Family Court, Haridwar, which has been dismissed by the impugned judgment dated 23rd July, 2016, resulting into filing of the instant appeal by appellant husband seeking setting aside of the impugned judgment and simultaneously praying for that the suit instituted for dissolution of marriage, may be decreed. 4. The prime reason for the husband for filing the suit was that in a very close vicinity of the house of the husband, where the respondent is residing together as his wife, there lies a residence of her brother-in-law (saddu), who often, now and then, interferes in the family issues and decision making process and has greatly influenced his sister-in-law (Saali) by creating fictitious pictures as against the appellant in the eyes of the respondent. Being conscious of the fact that the females are very prone to such type of inducement of being influenced by the statements of others without rationally applying their mind, though, was to be avoided, but still, it is due to these instigations given at the behest of brother-in-law of the respondent, that the matrimonial life of the appellant was ruined. 5. As per plaint allegation, he has submitted that he is a person of very meager income and earns his livelihood by doing the business of vegetable hawkers and, after toiling arduous labour throughout the day, the net income hardly which accrues to him is Rs.100/- per day. The reasons for the disturbance amongst the family members arose when, according to the husband in July, 2010, the respondent wife called her brother Mange Ram to her home, which was not welcomed by the husband and when he requested the wife not to invite the Mange Ram to his home, it was not accepted by the wife and thus, Mange Ram, on his visit, called upon the brother-in-law (Saddu) and felling annoyed by the act of the appellant of directing wife not to call upon Mange Ram to his home, they have closed the room and beaten the appellant. This action of Mange Ram and brother-in-law (Saddu) was quite humiliating for the husband before his children. 6. According to the plaint allegation, it was further contended by the husband that most of the time, she used to stay at the home of her sister and some times she even overstay there in night hours also. This act of wife of overstaying without permission or the consent of the husband, no husband would accept the said mode of living and that too when the same is made prevalent amongst the person belonging to the economic strata as that of the appellant. When the acrimony, due to the conspired attitude of Mange Ram, brother-in-law and the wife became unbearable, according to the husband, he was forced to leave his own house and started living with his sister. 7. Taking advantage of the fact that the husband started living with his sister, the wife who had her own ventures in life, as per the husband, got herself engaged in a factory at Haridwar called as Lotus Company and started working there. 7. Taking advantage of the fact that the husband started living with his sister, the wife who had her own ventures in life, as per the husband, got herself engaged in a factory at Haridwar called as Lotus Company and started working there. The allegation of the husband was that often, now and then, the fellow male staff members of the wife, used to visit the home alongwith her and often used to overstay, which created doubt with regard to the chastity of the wife in the minds of the husband as if she is having more attraction and affinity towards other male members and thus, she was gradually isolating the husband. Not even this, according to the husband, his case was that apart from the fact that she has engaged herself in the Lotus Company and is working there, she is also forcing upon her elder daughter to leave her study and join the same company. This was detrimental to the future of the daughter as it would not be conducive for her who could develope her career a later stage after completing her studies. 8. The husband further submitted that for last more than three years, looking to the family condition, coupled with the fact that despite of living together in the family, there had been no physical relation between the husband and wife which was quite an abnormal behaviour of wife will amount to cruelty. He also sought dissolution of marriage on the ground of desertion. 9. With regard to the incident which has been consistently occurring due to interference of brother Mange Ram and brother-in-law, he had lodged complaint before Police for redressal of his grievance but was not heeded for by the Police official and it resulted into no consequence. He further submitted that to place atrocities of the wife and her family members before the administration, he has also lodged complaints to the SHO, Jwalapur as well as to the District Magistrate on 7th March, 2011, but since nothing proceeded and there was a consistent danger towards his life and liberty because there had been instances where he has been criminally assaulted by Mange Ram and brother-in-law. There was an apparent threat and staying with the wife would amount to be an insecure preposition posing imminent threat towards his life and thus, in accordance with the plaint allegation, the matrimony between them became irretrievable and, hence, it was desirable that the same may be dissolved under Section 13 of the Act. 10. Based on the averments made in plaint, the respondent plaintiff submitted that looking to the circumstances, it would be unsafe for him to spend life in the capacity of the husband as it would be posing more danger to his life and liberty and, hence, he contended that under these strenuous circumstances, Section 13 for dissolving the marriage ought to be invoked. 11. On issuance of notice, the respondent wife has put in appearance and filed her written statement, paper No. 11-A, wherein, in her written statement, she contended that his brother-in-law saddu (Nathi Ram) who was an employee of BHEL, since was working in a respectable place, he has got his own status in the society and to preserve the same, Nathi Ram would never submit himself to any act which would be detrimental to his service and to his own career. 12. She further submitted that the income accruing to husband from vending goods and vegetable hawking, as alleged by the husband, is too low because, according to the wife, the husband from his engagement is earning about 500/- per day and has sufficient income, but, whatsoever he earns, is spent by him lavishly on the bad habits of his taking liquor, etc. and thus, the income accruing to the husband has not been profitably utilized by him. 13. She further contended that looking to the manner in which the husband is spending his life, she contended that for the last 1-1/2 years, the husband is residing with his Bhabhi and thus, she doubted that the husband has got an illicit relationship with the Bhabhi which, too, according to the wife was rather a cruelty which was caused on her by the husband. She submitted that often in discussion and in anger, she contended that the appellant accused her since she being an aged lady is of no use to him and he wants to get marriage for the second time after giving divorce to her. She submitted that often in discussion and in anger, she contended that the appellant accused her since she being an aged lady is of no use to him and he wants to get marriage for the second time after giving divorce to her. She contended that whatsoever the allegations have been raised with regard to the criminal assault at the behest of Mange Ram or Nathi Ram are false and concocted story as developed by the appellant for the purposes of getting a decree of divorce because his intention is that he wants to solemnize the second marriage. 14. While dealing with the issue of desertion, the wife contended that the pleading raised by the husband that for last three years there had been no cohabitation between them as husband and wife, is not acceptable. She further pleaded that the allegation as leveled by the husband that he has been dressed upon by the wife by alleging that she will commit suicide and would entrap the family in false criminal cases, is a false story which has been developed by the husband for the purposes of present instant suit for dissolution of the marriage. 15. On exchange of the pleadings, the learned Trial Court framed the following issues on 17th September, 2011. ^^1- D;k foi{kh }kjk ;kph ds lkFk dwzjrkiowZd O;ogkj fd;k x;k gS \ tSlk fd ;kphdrkZ }kjk viuh ;kfpdk esa vfHkdfFkr fd;k x;k gS A 2- ;fn gka] rks ;kphdrkZ fdl vuqrks”k dks ikus dk vf/kdkjh gS \** 16. At this stage, it is necessary to point out that no issues were framed pertaining to the desertion based on the pleadings raised by the parties. Any discussion on the same or making as to be basis of decree would be too catastrophic as it will amount to asking party to get a vital issue decided without a specific issue of debate. 17. In support of the respective cases, the plaintiff husband appeared in the witness box and recorded his statement as PW1. He produced Smt. Bharti as PW2 and Kirat Singh as PW3. All the three witnesses of the husband had filed their respective affidavits, being affidavit Paper No. 13-A, 28-B and 29-B respectively. 17. In support of the respective cases, the plaintiff husband appeared in the witness box and recorded his statement as PW1. He produced Smt. Bharti as PW2 and Kirat Singh as PW3. All the three witnesses of the husband had filed their respective affidavits, being affidavit Paper No. 13-A, 28-B and 29-B respectively. In support of the stand taken by the husband, he also placed on record the complaint which he has submitted to the City Magistrate as well SSP with regard to the incident of July, 2010, and various other incidents thereafter where the husband was beaten by Mange Ram and Nathi Ram. These papers were number as Paper No. 15-B and 16-B respectively. 18. So far as the respondent is concerned, she in support of her stand, had produced herself as DW1 and Mange Ram, a brother as DW2, who filed their respective affidavits in chief, being Paper No. 33-B and 34-B respectively. However, the witnesses of the defendant had not filed any documentary affidavit in support of their respective cases. 19. After the exchange of the pleadings and during the cross examination, it has come on record that wife is living separately in the same house for last more than six years and has not cohabitated and thus, according to the husband, even if the wife lives separately in the same house, without permitting the husband, to have physical relationship, this itself will amount to cruelty and desertion which is a ground sufficient enough for dissolution of marriage. 20. According to the husband, living with the wife became unbearable, but still he has always shown his willingness to keep the wife with him but since she has her own way and ideology of living which was not acceptable in accordance with the family norms, he was forced upon to institute a suit for dissolution of marriage and thus, he pleaded ever since April, 2011, there has been continuous unrecognized desertion for period beyond statute which amounts to cruelty, hence was entitled for decree of divorce. 21. The version of physical assault by Mange Ram and Nathi was supported by the statements of PW2 and PW3 as recorded on 12th April, 2011. PW2 in his cross examination has stated that for the previous five years, the wife has been often entering into physical assault against her husband. 21. The version of physical assault by Mange Ram and Nathi was supported by the statements of PW2 and PW3 as recorded on 12th April, 2011. PW2 in his cross examination has stated that for the previous five years, the wife has been often entering into physical assault against her husband. That according to the husband, in his witness as recorded and in his examination in chief, he has submitted while they were staying in Rishikesh, the wife has misbehaved and there was physical assault which was reported by him to the Police of Rishikesh, but, no action was taken and owing to the fact that it was an old incident, he expressed his inability to make any statement as to the effect as to who was present at the time of said incident. 22. The appellant husband in support of the incident of physical assault dated 12th April, 2011, produced PW2 and PW3. As far as PW2 is concerned, he has stated that about five years back, the appellant wife was inflicting criminal assault and action on the husband and she contended that she has floated the information when she has gone out in the market. 23. The husband, in support of his affidavit, has produced PW2 and PW3, who were their relatives. The Court below declined to accept the evidence recorded on behalf of the husband on the pretext that the oral evidence as produced by him, since being that of his relatives, cannot be accepted and, according to the husband, the wife, too, in support of her contention, since has produced Mange Ram as DW2, who too was an interesting witness, being brother of wife, her version too could not have been accepted by the Court. Hence, according to the husband, the Court below could not have a dual stand towards the parties, while appreciating there evidence. 24. The learned Family Court has recorded a finding that in cross examination, it was admitted by the wife that during the course of proceedings of the suit, the parties have entered into a compromise but the said compromise could not be acted upon because the misunderstandings between the husband and wife increased in a multifold manner. 24. The learned Family Court has recorded a finding that in cross examination, it was admitted by the wife that during the course of proceedings of the suit, the parties have entered into a compromise but the said compromise could not be acted upon because the misunderstandings between the husband and wife increased in a multifold manner. The husband further submitted that the petition under Section 13 has been filed on the ground of desertion too, because the respondent wife has knowingly declined to discharge the matrimonial obligation for last three years as there was no physical relationship, which was though denied by the wife in her written statement but the same was not proved. The Court held that pertaining to the assertion of desertion, having been committed by the wife, there is only a blank denial, though, it has not been proved that there had occurred an actual desertion between husband and wife. So merely because of hearsay statement, the factum of desertion cannot be proved until and unless, it is established. 25. The appeal has been filed by the appellant on the ground that the entire exercise, being undertaken by the husband, was nothing but an action to get a divorce and to enter into a second marriage. The appellant has further condemned that the allegations raised by the wife against him are all probable and concocted as against him. According to the wife, in the appeal, she submitted that since all the four children have forbidden to accompany the husband, their father, and have taken a stand as against the conduct of the respondent, the decree of divorce ought not to have been granted because the respondent, cannot be permitted to take the benefit of his own wrong. 26. Looking to the findings recorded all the allegations pertaining to the cruelty committed by the wife pertaining to the criminal assault, pertaining to desertion, has not been established by the husband, for the purpose of getting the decree of divorce. Thus, the Court wrongly held that the issue of cruelty stood established at the hands of the wife because the cruelty and desertion has not been established and in the cross examination the husband has admitted the fact that he is willing to keep the wife with him. 27. Thus, the Court wrongly held that the issue of cruelty stood established at the hands of the wife because the cruelty and desertion has not been established and in the cross examination the husband has admitted the fact that he is willing to keep the wife with him. 27. That for establishing cruelty for getting a decree of dissolution of marriage, there has to be unflinching establishment of cruelty, desertion etc. as contemplated under Section 13 of the Act. A decree of divorce and that too particularly in the instant case where the marriage happens to be of 23 years old, cannot be dissolved because it will affect the life of the entire family, having grown up children or which may in future pose difficulty in solemnization of marriage of children. That is why, the Hon’ble Apex Court has held that since the establishment of cruelty, there cannot be uniform formula which can be adopted for dissolving the marriage, which has to be logically interpreted by applying the principle as laid down in the case of Samar Ghosh Vs. Jaya Ghosh reported in 2007 (4) SCC 511 , whether there was cruelty or not. As well as for the purpose of bringing the case within the ambit of cruelty the parameter of Samar Ghosh (Supra) has to be considered, which are enumerated hereunder :- “98. On proper analysis and scrutiny of the judgments of this Court and other Courts, we have come to the definite conclusion that there cannot be any comprehensive definition of the concept of 'mental cruelty' within which all kinds of cases of mental cruelty can be covered. No court in our considered view should even attempt to give a comprehensive definition of mental cruelty. 99. Human mind is extremely complex and human behavior is equally complicated. Similarly human ingenuity has no bound, therefore, to assimilate the entire human behavior in one definition is almost impossible. What is cruelty in one case may not amount to cruelty in other case. The concept of cruelty differs from person to person depending upon his upbringing, level of sensitivity, educational, family and cultural background, financial position, social status, customs, traditions, religious beliefs, human values and their value system. 100. What is cruelty in one case may not amount to cruelty in other case. The concept of cruelty differs from person to person depending upon his upbringing, level of sensitivity, educational, family and cultural background, financial position, social status, customs, traditions, religious beliefs, human values and their value system. 100. Apart from this, the concept of mental cruelty cannot remain static; it is bound to change with the passage of time, impact of modern culture through print and electronic media and value system etc. etc. What may be mental cruelty now may not remain a mental cruelty after a passage of time or vice versa. There can never be any straitjacket formula or fixed parameters for determining mental cruelty in matrimonial matters. The prudent and appropriate way to adjudicate the case would be to evaluate it on its peculiar facts and circumstances while taking aforementioned factors in consideration. 101. No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behavior which may be relevant in dealing with the cases of 'mental cruelty'. The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive: (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, 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 behavior of one spouse actually affecting physical and mental health of the other spouse. (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 behavior 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 irritations, 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 behavior 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 sterilization 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. 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.” 28. Thus, the Court feels that a 23 years old matrimony, where there are four children, should not be logically dissolved because the circumstances between the husband and wife is not such which would render the family life to be irretrievably broken down. Thus, there is no necessity to decree the suit for dissolution of divorce of marriage. Since, the impugned judgment runs contrary to the evidence on the record and the statement recorded before the court below pertaining to the allegations which levelled the husband which stood non established, the decree of divorce ought not to have been granted. 29. Thus, the appeal succeeds. The impugned judgment is set aside. No order as to costs.