JUDGMENT : Sharad Kumar Sharma, J. 1. A wife though in one of the rare case is an applicant plaintiff who seeks for a decree of dissolution of marriage, for the reasons, that in the society, as normally found in India irrespective of castes and creed barring few examples, normally, the females are considered to be a docile, humanistic and have too perseverance, as member of the wider population of this Country. It is when the wife becomes a petitioner or plaintiff seeking a dissolution of marriage, it always attaches a seriousness to the allegation of cruelty, and if at all not seriousness than atleast some genuineness because by applying for a decree of divorce, a lady herself would be attracting social repercussions. 2. This is what has happened in the instant case. Both the parties to the matrimony had lead themselves under such a precarious situation of their life, where though they were gradually gathering age and with the said passage of time, they too were withering of their youth-hood and they were approaching to an age where a partner to understand one another, a partner to exchange the feelings becomes imminent and unavoidable. 3. Keeping this in mind, both the appellant as well as the respondent thought of that by entering into the matrimony with one another, they would be resolving major crisis of their life which has chanced because of untoward incidents which has happened with them earlier. 4. In the case at hand, the appellant husband was earlier married and out of the first marriage, he was blessed with two sons and a daughter, but, unfortunately, the first wife met with the sad demise. On the other hand, the respondent wife, according, to her case being faced with the atrocities of the first husband had been given a divorce by the first husband, meaning thereby, she was a dovorcee at the time when the appellant and respondent solemnized their second marriage on 28th November, 2004. 5. On the other hand, the respondent wife, according, to her case being faced with the atrocities of the first husband had been given a divorce by the first husband, meaning thereby, she was a dovorcee at the time when the appellant and respondent solemnized their second marriage on 28th November, 2004. 5. The case of the appellant in the instant appeal is that the divorce with the first wife has occurred for many unforeseen reasons and one of the reasons is on which the husband has harped upon is that the wife was having cyst in the womb, due to which, there was a difficulty in consummation of marriage and furthermore, even if it was consummated then there was a difficulty in conceiving the child. Hence, the husband contended that this amounted to be a situation where continuance with the matrimony may at time create obstruction for one another. But, here the case is slightly different. 6. In the present case, it is the respondent wife who was forced upon by the circumstances created by the husband had to file petition invoking Section 2/3 of the Muslim Divorce Act, seeking dissolution of marriage held on 28.11.2004, amongst themselves. In the plaint thus filed by the wife, she submitted that after the marriage held between them when she joined the home of the appellant, then it was revealed for the first time that the husband was working in the police force and this fact was concealed by him before the marriage and also there was concealment pertaining to the ill habits which the husband was carrying of taking liquor and when she lived with the appellant after marriage as wife, she pleaded that she came to know that the theory which was developed by the appellant for the purposes of solemnization of second marriage, that the first wife met a natural death is absolutely false because it was revealed to the plaintiff respondent that the first wife was rather murdered by the appellant. She contended that after couple of days of marriage, he started misbehaving with the wife and often used to beat her and use to level frivolous allegations but still as a consequence of the marriage and relationship, she became pregnant but later on she aborted. She contended that after couple of days of marriage, he started misbehaving with the wife and often used to beat her and use to level frivolous allegations but still as a consequence of the marriage and relationship, she became pregnant but later on she aborted. She contended that on a number of occasions, the husband made an attempt to get rid of her but somehow the situation was thwarted by her own diligence and she continued to discharge her matrimonial responsibility which she had to perform being a wife. 7. She submitted that despite of the fact that she used to take all due care of the children of the appellant from his first wife but a false allegation was leveled by the husband that she misbehaved with the children because of being the step mother. 8. Wife in her plaint submitted that on 16th May, 2006, the family members of the wife visited her, at her in-laws place and they requested to send the respondent wife with them and after staying for some time with the parents, she would be returning back. This aggravated the attitude of family members of the appellant and when they tried to assault them, i.e. family members of wife, they have lodged a complaint to the Police, because in the said case of altercation, the mother as well as the brother of the wife suffered injuries for which they got their treatment done in Dehradun and also lodged a complaint. She contended that ever since 16.06.2005 when the scenario in the house became practically impossible for her to reside, she accompanied the family members to Dehradun and is residing there. 9. It was all frivolous allegations which have been leveled against the wife that she has committed a theft in the in-laws home, and when she was threatened by the in-laws, she alongwith the entire family members migrated from Dehradun and shifted to Kolkatta as the parents of the wife had a residence at Kolkatta. According to the wife, the attitude of the husband did not cease even despite of the fact that she has migrated to Kolkatta, still he started interring by visiting Kolkatta and creating problems for her. In one of the visits when the husband misbehaved, the wife contends that she has lodged a complaint to the Police Station. 10. According to the wife, the attitude of the husband did not cease even despite of the fact that she has migrated to Kolkatta, still he started interring by visiting Kolkatta and creating problems for her. In one of the visits when the husband misbehaved, the wife contends that she has lodged a complaint to the Police Station. 10. Her case was that when the husband saw that the complaint has been lodged in the police Station, he sought apology and forgiveness and the wife after living separately for some time separately from him, acceded the request of the husband and once again joined back the matrimonial home. She contended that after her return, for some time, the attitude of the appellant husband remained normal but subsequently, the previous attitude which has resulted into the wife, leaving the matrimonial home, again persisted, and was rather aggravated and even so much so, he used to create artificial crisis of money and even declined to meet the bare necessity of hers. She further contended that looking to the environment in which the husband is residing and forcing her to reside since the husband home is full with ammunition and other weapon, she had a strong notion that the attitude of the entire family of husband is rather aggressive then it was not conducive place where she could have safely resided as a wife. She contended that all during this period while she stayed with the in-laws, she had to live with extreme diligence and docility to avoid any untoward incident. 11. She submitted that the husband was of such a brutal nature that he used to even forced her to have sexual relationship during her menstrual period which too in itself will amount to inflicting cruelty on her. She submitted that taking an advantage of the husband being in the Police Department, he had some notion in his mind that nobody would be able to do anything against him and he has got a free hand to exert any pressure on the wife which he wants without there being any retaliation. She submitted that taking an advantage of the husband being in the Police Department, he had some notion in his mind that nobody would be able to do anything against him and he has got a free hand to exert any pressure on the wife which he wants without there being any retaliation. According to the wife, it was on 07.07.2007, at about 11:30 P.M., husband on his return to home and for no valid reason started physically assaulting the respondent wife indirectly raising the demand that he has been deprived of money as dowry from the wife’s parental home was not given as per his wishes. It was due to this reason that on 9th July, 2007, when the husband had gone for his duty, she dropped the children to the school and under the threat of return from service, he will again misbehave with her, she without taking anything from the home, went to Dehradun where she started residing and she lodged a complaint with the S.S.P. Dehradun, with the copy sent to S.SP. Badaun and Bareilly. 12. Looking to the attitude and the incident which has chanced, the wife contended that continuance of relationship and her stay in the home of the husband would not be safe as looking to the attitude and the environment of the family, it has become practically difficult for her to survive and continuance of marriage with him as the same would be dangerous to her life and liberty. 13. In the written statement thus filed by the husband, he partly admitted some of the averments made in the suit but denied major portion of the pleadings. He submitted that it is a blatant lie that there have been any exchange of dowry to the tune of Rs. 2 lacs as alleged by the wife in her petition. He submitted that the marriage was held in a simple manner without any dowry. In response to the pleadings pertaining to the first marriage, he submitted that the allegations levelled by the wife that the first wife was murdered by the husband, is denied and he submitted that rather she expired due to cardiac arrest. He submitted that the marriage was held in a simple manner without any dowry. In response to the pleadings pertaining to the first marriage, he submitted that the allegations levelled by the wife that the first wife was murdered by the husband, is denied and he submitted that rather she expired due to cardiac arrest. He further denied that the allegation of wife that at the time of second marriage with the plaintiff, she was having a surviving wife is false because he submitted that prior to the marriage, his wife was already predeceased, and thus, the marriage with the plaintiff was not during the period when the first marriage was subsisting. He further submitted that as a consequence of the marriage, they lived at various places in intervals at Dehradun, Bareilly, Badaun at times according to their place of choice and convenience of residing. 14. He submitted that the allegations levelled by the wife for the purpose of developing a case for dissolution of marriage to the effect that the husband was in the habit of having liquor and used to misbehave in an intoxicated stage is absolutely false and he submitted that he is a person who is a staunch believer of Islam and he can never in his faintest of imagination or conduct had ever think of taking liquor. 15. He further submitted that the contention of the wife to the effect that when she conceived she has aborted because of the physical assault and misbehavior of the husband, was denied from the view point that it was not any act of husband due to which the abortion has taken place but rather it was because of biological infirmity which the wife was suffering from as she was having a cysts in the womb, due to which, she could not conceive because of consistent bleeding. The wife in the plaint has raised an allegation pertaining to the incident which has occurred on 16th June, 2005, where the wife has alleged that on the said date the parents and the brother of the wife had visited Badaun, where at the relevant time, the husband and wife were residing and they were misbehaved by the husband. The wife in the plaint has raised an allegation pertaining to the incident which has occurred on 16th June, 2005, where the wife has alleged that on the said date the parents and the brother of the wife had visited Badaun, where at the relevant time, the husband and wife were residing and they were misbehaved by the husband. The allegation as levelled by the wife in the plaint is to the effect that she has reported the incident of 16th June, 2005 to the police was denied by the husband on the ground that he has got no such knowledge about the lodging of the complaint of the incident which has been alleged by the wife, which is said to have occurred on 16th June, 2005. 16. There was another incident which according to the husband has been taken as to be the ground for atrocious activity on the part of the wife, for which she has contended that when on 19th June, 2005, mother of wife and brother Muzzafar of wife had visited Badaun, they by force wanted to take plaintiff/wife to her parent home at Dehradun, he requested them not to take her to Dehradun, because at that point of time he was suffering from some ailment and he refused to permit the wife accompanying alongwith them. It was husband’s case that despite of request made to leave the wife at Badaun, they did not accede to it and in-laws took her by force to Dehradun. 17. Instead of taking any action pertaining to the incident of 19th June, 2005, the husband contended that after a week when he recovered from ailment, he went to Dehradun to bring back his wife. She came back alongwith the husband. 18. According to the husband, though she joined back the matrimonial home in June, 2005, but when the husband was on duty, he contends that in July, 2005, itself, when he was not in home, the mother and the brother of the wife had gone to Badaun to take her and it was in July, 2005, that the wife had carried away all the valuables and went to Dehradun. The husband submitted that when he realized that the wife has deserted him in July, 2005, he went to Dehradun to bring her back. The husband submitted that when he realized that the wife has deserted him in July, 2005, he went to Dehradun to bring her back. On reaching there, he found that the entire family of the wife, had sold their residence in Dehradun and they had gone to Kolkatta where they owe a house. On 20th September, 2005, the husband submitted that he went to Calcutta to take her wife back to matrimonial home, there he was misbehaved and even so much so they refused to permit the husband to talk to his wife and refused to send back the wife alongwith the appellant husband. 19. The first effort, according to the husband, to bring back his wife failed, but since according to him, he carried love and affection for his wife, he had been consistently sending money for her maintenance and parcel / gifts including goods to meet her day-to-day requirement. The husband made a second effort to bring back his wife from Calcutta, when he visited the said place somewhere in December, 2005, but when there was a blatant refusal and there was no hope of the controversy being pacified between them, he lodged a complaint before the DM and SSP Hoogly, though, this fact of lodging of complaint by the husband has been denied by the wife in her pleadings. 20. When two efforts of the husband failed to bring her back, on return to Bareilly, he had instituted a proceeding for restitution of conjugal rights and he filed a Case No. 13 of 2006 at Bareilly on 6th January, 2006. It is the case of the husband that when despite of due notice, the wife did not appear and participate of the proceeding for restitution of conjugal rights, the suit proceeded ex parte and the same was decreed in May, 2006, and as per the husband’s case, he after obtaining the certified copy of the decree dated 20th April, 2006, has sent the copy of the decree on the Calcutta address of the wife and informed her about the said decree on telephone and then he went to Calcutta alongwith the decree of restitution of conjugal rights to bring her back. It is the case of the husband that faced with decree of restitution of conjugal rights dated 20th April, 2006, the wife returned back to Bareilly and lived as husband and wife. It is the case of the husband that faced with decree of restitution of conjugal rights dated 20th April, 2006, the wife returned back to Bareilly and lived as husband and wife. As per the husband, this stay of wife with him too, remained for a very short period because the wife submitted that the entire proceedings of restitution of conjugal rights was nothing but a ground which has been developed by the husband to protect himself legally in the eyes of law. Purpose of Section 9 of the Act is quoted hereunder : “The more practical importance, however, of this relief by way of a decree for restitution of conjugal rights is that it affords a ground for divorce to either party under Section 13 (1A) which lays down that either party to a marriage, whether solemnized before or after the commencement of the Act, may obtain a decree of divorce on the ground that there has been no restitution of conjugal rights between them for a period of one year or upward after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.” 21. Wife submitted that in the night of 7th July, 2007, at about 11:30 p.m., when the husband returned from his official work, he after taking liquor started beating the wife without any reason. Though, this fact has been denied by the husband contending that the incident of 7/7/2007, as alleged by the wife is not correct because according to the pleading, he was on his duty and discharging his official responsibility, and no such incident of 07.07.2007 has taken place as pleaded by the wife. 22. It is a case of the husband that to overcome the ex parte decree of restitution of conjugal rights dated 20th April, 2006, though the wife has joined back the matrimonial home but she has alleged that the incident of 7th July, 2007, about the mis-behaviour by the husband, but, on the other hand, according to the husband, she had further aggravated the controversy by submitting that on 9th July, 2007, the brother and the sister in law (Bhabhi) of the wife visited their home at Bareilly and they took the wife with them with all the valuables. It is the case of the husband that he had reported about the said incident to Police on 11th July, 2007 and to the SSP Bareilly and submitted in the compliant that the allegation of 7/7/2007, as it has been alleged by wife is a false allegation and submitted that after her return from Calcutta to Bareilly in pursuance to the decree of restitution of conjugal rights, he had made all efforts and met all the demands of the wife and showered all love and affection to her. He further submitted that whatsoever, he was earning due to his official engagement, he used to hand it over to his wife and even so much so for meeting his personal requirement, he used to take the money form the wife. He reiterated that he does not take liquor, he reiterated that he is a strong follower of Islam, he reiterated that he has never exercised any cruelty on the wife and all her allegations about the cruelty which she alleges to have been done by the husband by entering into physical relationship at the time when she was in menstrual period itself will amount to cruelty was denied. He further denied that he had never taken advantage of being a member of Police Force while dealing with the plaintiff wife. 23. Ultimately, the husband case was that there was no cruelty on his behalf but rather the cruelty has been commissioned by the wife when she after getting the children admitted on 9th July, 2007, had taken all the valuables and left the house. 24. In additional plea, he submitted that it is in the habit of the family members of wife to create such situation and extract money because in the earlier marriage, too, which was solemnized by the plaintiff with the son of her Buwa (khala), there was the same attitude of the family members of wife to create pressure on the husband side to extract money and then to give divorce and thereby make it as a source of earning and this is what they have done when the wife was able to force upon the earlier husband to give her divorce. 25. 25. The husband submitted when despite of all efforts, she did not join the matrimonial home, he had given a legal notice on 11th September, 2009, and has lodged a complaint on 3rd October, 2007 to the S.S.P. 26. On exchange of the pleadings, the learned Trial Court framed the following issues :- ^1- D;k foi{kh us ;kph ds lkFk 'kknh ds i'pkr ekufld o 'kkjhfjd :i ls izrkMuk ds lkFk dwzjrk dk O;ogkj fd;k tkrk jgk gS A 2- D;k ;kph okni= ds lyaXu lwph lEifRr ikus dh vf/kdkfj.kh gSA 3- D;k ;kph ekaxk x;k vuqrks'k ikus dh vf/kdkfj.kh gSA^ 27. The plaintiff wife in support of her case appeared in the witness box as PW1. The defendant husband appeared as DW1 and produced Smt. Angura Begum as DW2 and the documents by way of list paper No. 33-Ga to 13 which included money order, receipt of parcel, decision of the family Court in the proceedings under restitution of conjugal rights, photographs, the admission slips of the children, bill receipts of treatment, notice, compliant to the SSP etc. 28. The learned Trial Court, while dealing with the issue No. 1 pertaining to the physical and mental cruelty, it has been a consistent stand of the wife with regard to the incident of 19th June, 2005 that when her mother and brother Muzafar Ali visited the husband’s home at Badaun and made efforts to bring the plaintiff to Dehradun, the husband misbehaved and instead of giving a docile reply or a reasonable reply had rather entered into hot conversation and even gone to the extent of abusing one another and it reached to such a stage where according to the wife, the husband had beaten her brother. She submitted that when the mother of the plaintiff wife tried to intervene, she was also manhandled by the husband, due to which, the wife had to lodge a complaint to the Police and all of them were placed in the lock-up in the Police Station. After two or three days, they were released from the lock up and it was the police who had made the arrangement for making them, i.e. wife and her family members to return to Dehradun safely by providing them a taxi. 29. After two or three days, they were released from the lock up and it was the police who had made the arrangement for making them, i.e. wife and her family members to return to Dehradun safely by providing them a taxi. 29. In relation to the injuries which the mother and the brother of the wife had suffered because of the incident of 19th June, 2005, they got themselves medically examined in the Doon Hospital on 20th June, 2005, and in support thereof, the wife has produced the photocopy of the medical certificate, paper No. 55-A / 18, 55-A/17 and 55-A / 19. 30. What is important is that even if a party to a dispute raises a certain plea, no doubt, that burden to prove the same is always to be discharged by the person who claims a happening of certain events. But in the instant case, since the incident of 19th June, 2005, has been almost practically admitted by the husband, wherein, he admits that on 19th June, 2005, they were residing together in Badaun, when he admits that the mother and brother and brother-in-law of the wife had visited Badaun and stayed in a hotel, when he admits that on 19th June, 2005, his wife was abducted by his in-laws, it goes without saying that the husband admits the incident of 19th June, 2005. 31. When the wife found that staying for a single minute with the husband was not safe for her, coupled with the fact that looking to the past conduct and atrocities exercised by husband, which has been rather admitted and proved by evidence, she contended that for eight months, she had to live separately from her husband to safeguard herself as there was eminent danger to her person. 32. The wife’s contention pertaining to incident of 07/07/2017, where she was manhandled in the night 11:30 after the husband return from his Office in an intoxicated state, she submits that after realizing of mistake, the husband has asked for forgiveness, which we feel amounts to be an admission of guilt about the incident of 07.07.2017. 33. On 11th July, 2007, she had lodged a complaint to SSP Bareilly, Police Station Patel Nagar, Dehradun, SSP Badaun and filed the copy of the said complaint lodged by the wife about the incident of 11th July, 2007, before the Court below as an exhibit. 34. 33. On 11th July, 2007, she had lodged a complaint to SSP Bareilly, Police Station Patel Nagar, Dehradun, SSP Badaun and filed the copy of the said complaint lodged by the wife about the incident of 11th July, 2007, before the Court below as an exhibit. 34. According to the findings recorded and the admission made by the husband in his cross examination before the Court below he has admitted the fact that on 11th July, 2007, the husband had lodged the complaint before the SSP Bareilly, Dehradun and Badaun, as well as in Police Station Patel Nagar. He further admits that the Police did conduct an investigation about the incident of 7/7/2007, and he was called for by Police to record his statement before the Investigating Officer. 35. In the proceedings before the Court below, the husband has produced a list of documents paper 33-C, which included in it, paper No. 33-C, i.e. the notice dated 9th July, 2007, where the wife is said to have left the home. In the list of documents, the complaints to the three SSPs have been admitted and proved before the Court below. Even so much so, the husband himself has produced paper No. 48-C, which is the notice by husband to the wife, dated 11th September, 2007. 36. This Court on scrutinizing the aforesaid notice dated 11th September, 2007, and in particular its contents given in para 4 and 7, show that the husband has raised an allegation against the family members on the ground that the family members of the wife are responsible for an offence of abduction, as they have taken the wife forcefully from the matrimonial home. According to the wife, and on a simplicitor reading of the language used in para 7 and 8 of the notice dated 11th September, 2007, shows that it was a clear intent of the husband that when he alleges an offence of abduction against the family members, it amounts to be a cruelty, as it is a humiliation to the family members. The incident of 9th July, 2007, is also established on the evidence adduced by the husband himself, because the husband has produced before the Court below and produce as exhibit paper No. 44-C, which is a document which refers the incident of 9th July, 2007, wherein, he has submitted that after great efforts, he was able to persuade the wife to join him and discharge her matrimonial obligations, this shows that husband almost had admitted incident of 09.07.2007. 37. The learned Family Court rightly held and this Court too also feels so that when the husband raises an allegation against the family members of the wife to the effect that the family members of the wife are in the habit of using the wife as an commodity for the purposes of earning money by getting married, getting divorce and to earn money by adopting the said process, itself, will amount to cruelty, but it also amounts to be an allegation about the conduct of each family members and would be character assassination. 38. It has always been a subject matter of interpretation depending upon the circumstances, which keep on varying from case to case and circumstances to circumstances. The cruelty may not be an actual infliction of injuries, it can be also by silence which may be too lethal for the other persons. Looking to the admission made, looking to the observation given in the various notices issued by the husband, it was not only the humiliation with regard to conduct of the wife which has been brought to the public, it was an issue which could otherwise be subsided amongst the four corners of the house, has been made public. 39. It goes without saying that when an allegation is raised to the extent by the husband that the family members of the wife has abducted the wife herself, there cannot be any worse humiliation than this to be inflicted on family members of wife. 40. The Court further takes cognizance to a document submitted by the husband paper No. 32-D, wherein, he has raised an allegation that wife is in the habit of giving divorce and that is why she has yet again resorted to the said act by initiating the proceedings of giving divorce to the husband also. He had in the complaint submitted that wife is in the habit of treating husband as her puppet. He had in the complaint submitted that wife is in the habit of treating husband as her puppet. This not only tarnishes the social image of the wife but it also causes psychological stress on the wife where her own stature is questioned by the allegations leveled by the husband. 41. The evidence revealed that the husband has also pleaded in his correspondences while lodging complaints that wife has escaped from the home of her earlier husband Salim, after taking Rs.1,00,000/-and other valuables. The Court held that even such type of an allegation to the effect that the wife has committed a theft, in her own home, amounts to cruelty and shows what stature has been given to her by her in-laws, which cannot be forgiven and it would be too difficult for her to discharge her matrimonial obligations. Not only this, the husband by his register letter, which finds place on record as documentary evidence 18-C and 19-C, in which he has used abusive languages for his mother-in-law and has also given a copy of the divorce deed to be signed by the wife. This fact of writing letter to the wife, paper No. 18C and 19-C, the fact which has been admitted by the husband in his cross examination in para 30. In his cross examination, he has further admitted that the letter which has been adduced by the wife as evidence, is in his own handwriting, which has been addressed to his mother-in-law Angura. 42. It has been established by evidence that there has been a series of misunderstanding and autocratic communications between them which included in it levelling of criminal allegations and consequently an investigation on the same, because she submitted that the husband by lodging a false complaint on 9th July, 2007, a false case was registered against the brother’s of the wife under Section 406 and 506 I.P.C. in which a final report has been submitted. All the documents pertaining to the said criminal proceedings have been placed on record by the plaintiff as paper No. 58-Ga. It is established preposition if either of the spouses lodges a criminal proceeding against the another and after investigation, if it is found that the criminal allegations were false, this in itself since it tarnishes the social image, would amount to cruelty. 43. It is established preposition if either of the spouses lodges a criminal proceeding against the another and after investigation, if it is found that the criminal allegations were false, this in itself since it tarnishes the social image, would amount to cruelty. 43. What is remarkable in this case is that after the investigation, the Police had submitted the chargesheet in which it has been prima facie settled that the husband was guilty of raising dowry demand from the wife and his family members and the FIR which was lodged on 13th October, 2007, at Police Station Patel Nagar pertaining to the incident, has been found to be true. 44. The husband has further admitted that in pursuance to the lodging of the criminal Case No. 52 of 2010, he was arrested and was sent to jail. All these incidents, do go to show that there have been a cruelty exerted by the husband against the wife. 45. Thus, as a matter of fact, the level of cruelty has gone into an extent that it would be falling within the parameters of cruelty as laid down by the Apex Court in the case of K. Srinivas Vs. K. Sunita reported in (2014) 16 SCC 34 . Para 5 of the judgment is quoted hereunder :- “5 The Respondent-Wife has admitted in her cross-examination that she did not mention all the incidents on which her Complaint is predicated, in her statement under Section 161 of the Cr.P.C. It is not her case that she had actually narrated all these facts to the Investigating Officer, but that he had neglected to mention them. This, it seems to us, is clearly indicative of the fact that the criminal complaint was a contrived afterthought. We affirm the view of the High Court that the criminal complaint was “ill advised”. Adding thereto is the factor that the High Court had been informed of the acquittal of the Appellant-Husband and members of his family. In these circumstances, the High Court ought to have concluded that the Respondent-Wife knowingly and intentionally filed a false complaint, calculated to embarrass and incarcerate the Appellant and seven members of his family and that such conduct unquestionably constitutes cruelty as postulated in Section 13(1)(i-a) of the Hindu Marriage Act.” Hon’ble Supreme Court in its judgment reported in AIR 1975 SC 1534 in the case of Dr. N.G. Dastane Vs. Mrs. N.G. Dastane Vs. Mrs. S. Dastane has held as under :- “23. But before doing so, it is necessary to clear the ground of certain misconceptions, especially as they would appear to have influenced the judgment of the High Court. First, as to the nature of burden of proof which rests on a petitioner in a matrimonial petition under the Act. Doubtless, the burden must lie on the petitioner to establish his or her case for, ordinarily, the burden lies on the party which affirms a fact, not on the party which denies it. This principle accords with common-sense as it is so much earlier to prove a positive than a negative. The petitioner must therefore prove that the respondent has treated him with cruelty within the meaning of Section 10(1)(b) of the Act. But does the law require, as the High Court has held, that the petitioner must prove his case beyond a reasonable doubt ? In other words, though the burden lies on the petitioner to establish the charge of cruelty, what is the standard of proof to be applied in order 10 judge whether the burden has been discharged ? 24. The normal rule which governs civil proceedings is that a fact can be said to be established if it is proved by a preponderance of probabilities. This is for the reason that under the Evidence Act, Section 3, a fact is said to be proved when the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. The belief regarding the existence of a fact may thus be founded on a balance of probabilities. A. prudent man faced with conflicting probabilities concerning a fact-situation will act on the supposition that the fact exists, if on weighing the various probabilities he links that the preponderance is in favour of the existence of the particular fact. As a prudent man, so the court applies this test for finding whether a fact in issue can be said to be proved. The first step in this process is to fix the probabilities, the second to weigh them, though the two may often intermingle.” 18. Hon’ble Bombay High Court in its judgment reported in AIR 1995 Bom 246 in the case of Rajan Vasant Revankar Vs. The first step in this process is to fix the probabilities, the second to weigh them, though the two may often intermingle.” 18. Hon’ble Bombay High Court in its judgment reported in AIR 1995 Bom 246 in the case of Rajan Vasant Revankar Vs. Shobha Rajan Revankar has held as under:- “7. It is now well-settled that though the word 'cruelty' has not been defined in the Hindu Marriage Act, 'cruelty' contemplated under Cl. (ia) of S. 13(1) neither attracts the old English doctrine of danger, nor the statutory limits embodied in the old Section 10(1)(b) of the Hindu Marriage Act. After the amendment of 1976, 'cruelty' contemplated by S. 13(1)(ia) is a conduct of such type that the petitioner cannot reasonably be expected to live with the respondent or that it has become impossible for the spouses to live together. This is now clear in view of the recent decision of the Supreme Court in the case of N. Bhagat v. Mrs. D. Bhagat, reported in Judgment Today MANU/SC/0155/1994 : AIR 1994 SC 710 . On a review of the earlier Supreme Court decisions, right from the case of Dr. N. G. Dastane v. Mrs. S. Dastane, reported in [1975] 3 SCR 967. the Supreme Court has laid down the legal position which now obtains after the amendment of 1976 to the Hindu Marriage Act. In Para 17 of the judgment in Bhagat's case: AIR 1994 SC 710 , the Supreme Court has observed, thus, at page 437 (of JT (SC)) : (at p. 717 of AIR):-- "17. Mental cruelty in S. 13(1)(ia) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must he of such as nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. While arriving at such conclusion, regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made". 19. Hon’ble Bombay High Court in its judgment reported in AIR 1993 Bom 70 in the case of A v. H has held in its para no. 11 (relevant portion) as under :- “11……………………….."13(1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party- (i)..... (ia) has, after the solemnization of the marriage, treated the petitioner with cruetly;" In our opinion, it is clear from the above provisions that the petitioner must have been treated with cruelty prior to the filing of the petition. No subsequent acts either by way of allegations in written statement, responsible or not, baseless or not, can be taken help of in order to come to the conclusion that the respondent in a matrimonial petition has treated the petitioner with cruelty. It is settled law that the right of a party is determined by the facts as they existed on the date the action is instituted. In other words, a petitioner approaching Court with a petition for divorce on the ground of cruelty can succeed only if he proves the act of cruelty on which he has based his petition. It is settled law that the right of a party is determined by the facts as they existed on the date the action is instituted. In other words, a petitioner approaching Court with a petition for divorce on the ground of cruelty can succeed only if he proves the act of cruelty on which he has based his petition. Even requirements of Section 20 of the Hindu Marriage Act are mandatory which require every petitioner to state in his petition as distinctly as the nature of the case permits the facts on which the claim is founded. Moreover, the aggrieved spouse must show that he had suffered cruelty as a result of the treatment meted out to him. We are supported in our view by an un-reported judgment of a Division Bench of this Court in Krishnakant Salvi v. Sadhna Salvi, in Letters Patent Appeals Nos. 113 and 114 of 1983, where a similar situation had arisen inasmuch as the husband who had approached the Court was confronted by the wife in her written statement with having illicit relations with another woman. The Division Bench in that case, inter alia, held that the petitioner cannot rely on the allegations made by the respondent in the written statement, the same being made after the filing of the petition.” 20. Hon’ble Bombay High Court in its judgment reported in AIR 1984 Bom 413 in the case of Kesaorao Krishnaji Londhe Vs. Nisha Londhe has held in its para no. 15 as under :- “15. To conclude, in our view, the cruelty contemplated under S. 13(1)(i-a) of the Act neither attracts the old English doctrine of danger nor the statutory limits embodies in old S. 10(1)(b). the cruelty contemplated is a conduct of such type that the petitioner cannot reasonably the expected to live with the respondent, and, therefore, Madanlal's case 1980 Mah LJ 391 does not lay down the law on the point correctly.” 46. The ill-treatment and physical assaults and consequent police report is a cruelty more particularly when it is supported by the medical evidence which in the instant case was not controverted. This physical assault will tantamount to be cruelty as settled by the Hon’ble Punjab and Haryana High Court reported in AIR 1961 P and H 521 in the case of Smt. Kaushalya W/o Wisakhi Ram Vs. Wisakhi Ram Mohan Lal. 47. This physical assault will tantamount to be cruelty as settled by the Hon’ble Punjab and Haryana High Court reported in AIR 1961 P and H 521 in the case of Smt. Kaushalya W/o Wisakhi Ram Vs. Wisakhi Ram Mohan Lal. 47. On an overall scrutiny of the dispute prevailing, and looking to the field of litigation both on the Criminal and Civil side, it could be inferred that the marriage has become irretrievable. There is no avenue to re-settle the relationship. The plaintiff is so much terrorized by the attitude of the appellant. It has been established that there was a cruelty exercised by the appellant and thus the Court while deciding issue no. 1 held that the respondent succeeded in establishing that the appellant has exercised cruelty, which is one of the ingredients under Section 13 of the Act for dissolving the marriage and thus the marriage was dissolved. 48. In the case at hand, a marriage was laid on the acceptance of a normal behaviour, all care and affection and concern from her husband and not the manner in which the treatment has been given to the respondent by the appellant. Apart from using sarcastic dialect and even physically assaulting will fall to be within the ambit of the definition of cruelty. Although not defined under the Act but is seen under the normal analogy. The circumstances which prevailed in the instant case is a situation whereas spouse cannot be reasonably except to live with other spouse more particularly when there had been criminal allegations also. 49. A Division Bench of Andhra Pradesh High Court in its judgment reported in AIR 2016 AP 12 in the case of Anchuri Subbaraju Vs. Anchuri Sunitha in its para nos. 22, 23, 33 & 34 has held as under: “22. So far as the allegations in the counter or reply whether tantamounts to cruelty or not concerned, it is categorically observed that mere allegations per se do not constitute cruelty in the absence of any evidence in this regard of such allegations constitute cruelty to decide by Court by framing any issue or point for consideration and without that such an allegation cannot be taken as a basis for granting divorce. 23. 23. In this regard, the Apex Court in Gurubux Singh: AIR 2011 SC 114 (1) (supra) by distinguishing the earlier expression in Vijaykumar Ramchandra Bhate v. Neela Vijaykumar Bhate, held that all the allegations made in the written statement or the allegations specified in the course of cross examination by itself does not tantamount to cruelty though it was held as cruelty in the earlier expression. 33. It was also observed in N.K. Somani: AIR 1999 AP 1 (DB) (supra) differing to the earlier expression of this Court in Jayakrishna Panigrahi v. Surekha Panigrahi of the allegations made in the written statement not proved, will amount to cruelty is not correct. It is to say such allegations are to be proved as wild, baseless, false or the like as per Section 3 of the Indian Evidence Act, which defines proved, not proved and disproved. As per which, a fact is said to be not proved, when it is neither proved nor disproved and as such unless the allegations are disproved which is akin to say false, wild or baseless to make a ground of that tantamount to cruelty, mere allegations not proved which may be true or may not be true cannot be taken as wild or baseless or false to say those constitute mental cruelty. For that conclusion this Court in N.K. Somani: AIR 1999 AP 1 (DB) (supra) placed reliance on the proposition, laid down in the earlier expression of this Court in Lalitha Kumari v. K. Ram Prasada Rao that followed a division bench expression of the Punjab & Haryana High Court in Paras Ram v. Kamlesh and in concluding that in order to succeed that the allegations made in the pleadings by the opposite party to constitute cruelty, those allegations must be disproved by showing false or wild or baseless and there from constitute the mental cruelty; as unless truth or falsity of such allegations establish one way or other, no legal consequences can flow therefrom for the purpose of deciding cruelty or not under Section 13(1)(ia) of Hindu Marriage Act. 34. 34. Having regard to the above propositions referred supra; unless the allegations are per se illegal and unlawful from the conduct is per se wild, bad and unlawful to make that itself constitutes act of cruelty; in other respects every conduct alleged that tantamounts to cruelty must be proved by preponderance of probabilities and even the giving of police report or filing of complaint or pursuing of the case under Section 498-A IPC and Sections 4 & 6 of D.P Act by wife against the husband or his family members per se do not constitute cruelty including from the result of acquittal therein; in the absence of showing and proving by the husband that the complaint filed or report given or pursuing of the case is aimed to harass and ill treat the husband that constitute mental cruelty. Equally mere allegations appearing wild or grave in the pleadings of the parties, if not proved does not constitute cruelty; in the absence of evidence showing the same are false or made with intend to ill-treat or harass; by disproving said allegations.” 50. The Rajasthan High Court in a judgment reported in AIR 2000 Raj 362 in the case of Smt. Pramila Bhatia Vs. Vijay Kumar Bhatia has held that where either party to the marriage has caused physical harm should be such harm which manifests hostility and an attempt to cause harm and this will amount to be a cruelty. In the instant case, the cruelty was extended to such an extent that there had been a criminal case alleged, not denied by the appellant. 51. A physical assault is an act where a person looses his or her esteem for another and it cannot be expected that after such type of assault or suffering in public any person would ever agreed to live and discharge matrimonial obligations. 52. Under the Hindu cult of life, ladies normally refraining from alleging criminal complaints as they brought up in a condition to have perseverance. But in the case at hand since there had been an FIR lodged which was registered before the police station, it leads to a situation where there is a complete failure of understanding and absolute discord between husband and wife. Thus the decree of divorce as granted by the court below was just and proper. 53. But in the case at hand since there had been an FIR lodged which was registered before the police station, it leads to a situation where there is a complete failure of understanding and absolute discord between husband and wife. Thus the decree of divorce as granted by the court below was just and proper. 53. In that view of the matter, the decree rendered by the Family Court, Dehradun, decreeing the dissolution of marriage under Section 2 of the Dissolution of Muslim Marriage Act, do not suffer from any error or mistake apparent on record. 54. Thus, the appeal is dismissed. No order as to costs.