JUDGMENT : Sharad Kumar Sharma, J. Being aggrieved against the impugned judgment dated 09.09.2016, whereby the husband’s petition under Section 13 of the Hindu Marriage Act, seeking dissolution of marriage which was held between the parties on 07.02.2010, on the ground of cruelty has been decreed. The said judgment has been put to challenge by the wife in the present appeal. The case of the appellant is that the learned trial Court while interpreting the ingredients of the cruelty have not applied its judicious mind and the findings recorded pertaining to the establishment of cruelty based on the criminal proceedings is not logical and without any basis. 2. Another ground which the wife has agitated while questioning the impugned judgment is that whether the Court below has failed to interpret as to whether the husband has been able to prove the factors of cruelty as laid down under the law for the grant of decree of divorce, because the cruelty is a variable factor which varies with the attitude and temperament of a partner to the marriage and for its securitization and judicious scrutiny, the Court has to consider the surrounding circumstances and facts which has laid for the foundation for commissioning of cruelty. There cannot be a strict stringent principle to arrive for coming at a conclusion as to whether a particular act would constitutes to be a cruelty, until and unless the party to the marriage proves the same by establishing it by evidence, which according to the wife in the instant case is lacking, in the pleadings and evidence raised by the husband. 3. The appellant-wife’s contention is further that the reliance which has been placed by the learned Court below pertaining to the incident which has chanced on 14.11.2011 is absolutely untenable for the reason that the first information report, which was lodged with regards to the incident in which on preliminary investigation the charges have been found to be true after investigating the incidents and hence the learned Court below has wrongly shifted the burden to prove the charge on the appellant-wife. Though these charges are still to be scrutinized by the Criminal Court in an independent criminal proceeding and the learned family Court ought not to have been swayed by the charge sheet in the proceedings pertaining to the incident of 14.11.2011. 4. Though these charges are still to be scrutinized by the Criminal Court in an independent criminal proceeding and the learned family Court ought not to have been swayed by the charge sheet in the proceedings pertaining to the incident of 14.11.2011. 4. The wife has contended that in the proceedings before the learned family Court, there were various set of allegations which were leveled against one another and in particular on husband who claimed a decree of divorce based on a cruelty. But those incidents in itself will not take the shape of a cruelty because under the law, the magnitude of cruelty should be such that it would be practically impossible for a partner to live together as the actions of either of the party to the marriage is such that there happens to be the complete breakdown of marriage and spending life together would be too dangerous for the other partner. 5. The wife’s contention was that on the basis of vague allegations, the sacrament of matrimony under the Hindu law ought not to be dissolved, because there is no such family which constitutes of husband, wife and other family members where misunderstanding or disturbances do not take place. All these misunderstandings or disturbances are the part of the routine life which has to be faced by the partner instead of invoking Section 13 of the Hindu Marriage Act for dissolving the marriage. 6. The wife further contended that in the appeal, learned trial Court has lost sight of the fact that the person who goes in a Court claiming a relief of dissolution of marriage under Section 13 of the Hindu Marriage Act, he has to discharge his burden to prove the establishment of cruelty pleaded by him beyond doubt and merely on a hypothetical assertions, a decree of divorce ought not to be granted for dissolving the marriage. The wife submitted that she is still willing to discharge her matrimonial obligations and she had never showed any intention to sever the relationship between them in any manner whatsoever. On this premise, the wife has challenged the impugned judgment dated 09.09.2016. 7. Brief facts which arose and were the basis of filing of the proceedings before the Court below is that admittedly the parties to the appeal were married on 07.02.2010 in accordance with Hindu rites and rituals at District Kasganj. On this premise, the wife has challenged the impugned judgment dated 09.09.2016. 7. Brief facts which arose and were the basis of filing of the proceedings before the Court below is that admittedly the parties to the appeal were married on 07.02.2010 in accordance with Hindu rites and rituals at District Kasganj. As a consequence of the marriage they started residing together at Kripal Nagar, Rawli Mehdod, District Haridwar, but as consequence of the marriage solemnized in 2010, no child had taken birth and the husband while initiating the proceedings under Section 13 of the Hindu Marriage Act, he contended that on account of non conception of child the wife had lost her mental imbalance and started behaving in a peculiar manner which often created difficulties in the family. The husband felt that this was psychological depression which the wife was suffering he made efforts to get his wife treated in various hospitals but it was of no benefit and the attitude of mental imbalance continued, which often created problem in their matrimonial life. 8. The husband contended, that under this peculiar state of mind, gradually wife started misbehaving with the respondent and other family members and there was a sudden spurt of anger, rudeness which was exercised by the wife against the family members which constituted to be the cruelty. He contended that the wife was durressing upon the husband. Looking to the family circumstances of the husband she will not be able to discharge her matrimonial obligations in the matrimonial home and become adamant and forced the husband to live separately from his parents which he denied, looking to the fact that he was the only son. 9. On account of this attitude and the discord in the family, parents of the husband too did not like the atmosphere which was falling upon then and gradually they also felt to be secluded and alone. The agony of husband and family had gone to such an extent that looking to the attitude of the wife, the father of the husband has disowned his son and has disowned him from his property. The agony of husband and family had gone to such an extent that looking to the attitude of the wife, the father of the husband has disowned his son and has disowned him from his property. Furthermore, the father has even partition the property and gave a part of it to his son but still the action of the wife of being atrocious to the family member continued unabatedly and it was on 26.05.2011 at about 7 PM the brother and father of the wife visited Haridwar to his home and infront of them wife has misbehaved, by leveling allegations against parents of the husband, she on 26.05.2011 left the matrimonial home and had started residing with her parents in an accommodation which was taken on rent in Haridwar itself. 10. As soon as the wife was got a rented accommodated and started living separately, she took a job and started working. It is husband’s case that on 10.07.2011, the husband went to the wife’s home to make her understand and to enable her to join him back and discharge the matrimonial obligations by staying with the parents and in the matrimonial home, and to leave the rented accommodation but she blatantly refused to join back and to restore the matrimonial relationship. 11. When there was denial by the wife to discharge her matrimonial obligations, the plaintiff/husband instituted the proceedings under Section 9 of the Hindu Marriage Act by filling the same on 13.07.2011. The case for restitution of conjugal rights which was registered as Case No. 252 of 2011 Mr. Vivek Vs. Dayawati, respondent-wife was noticed but despite of all the efforts to serve notice, she has not put in appearance to contest Section 9 proceedings. Hence it was decided in favour of the husband on 30.04.2012. Copy of the order dated 30.04.2012 decreeing the Section 9 of the proceedings of the husband was supplied to the wife on 15.05.2012. 12. Dayawati, respondent-wife was noticed but despite of all the efforts to serve notice, she has not put in appearance to contest Section 9 proceedings. Hence it was decided in favour of the husband on 30.04.2012. Copy of the order dated 30.04.2012 decreeing the Section 9 of the proceedings of the husband was supplied to the wife on 15.05.2012. 12. The husband and his family members felt annoyed when on 14.08.2011, the wife has lodged false complaints to the police raising an allegation thereof that she was physically assaulted and also complaint pertaining to the demand of dowry and thus a criminal case was lodged being Case Crime No. 235 of 2012 under Section 498-A IPC read with 3/4 Dowry Prohibition Act, that the filing of said criminal proceedings the knots between them became more tightened and it was becoming difficult to unknots the same. In these circumstances, husband felt that the revival of the relationship was not possible because all this will amount to be a cruelty falling within the purview of under Section 13(1)(i-a) & ((b) of Hindu Marriage Act. 13. In pursuance thereto wife filed her written statement registered as paper No. 15B, she partly admitted some of the pleadings raised in the proceedings under Section 13 of the Hindu Marriage Act. She submitted that she was being tortured by her in-laws by raising demand of dowry despite of the fact that handsome amount was spent by her family members at the time of solemnization of marriage. She submitted that she was often maltreated and abused by the family members of the husband and was humiliated in public on the ground that she has not brought a four wheeler (vehicle) which the husband desired to have from the in-laws. Hence she submitted that there was no cause of action but still the husband instituted the proceedings under Section 13. 14. In her written statement, the appellant-wife had specifically denied the incident of 14.08.2011, but she has rather pleaded that on the said date, she was fearlessly beaten by the husband and his family members and they made all efforts to kill her and in that tattered condition she left the home. She planned to leave the home and thus she called her parents to the in-laws home and consequently also lodged the criminal proceedings under Section 498-A IPC and 3/4 Dowry Prohibition Act. 15. She planned to leave the home and thus she called her parents to the in-laws home and consequently also lodged the criminal proceedings under Section 498-A IPC and 3/4 Dowry Prohibition Act. 15. The wife’s case in defense was further that the husband and his family members in order to protect themselves from the criminal proceedings, they have lodged the instant case under Section 13 as proceedings for dissolution of marriage as an afterthought. She contended that she is always willing to live with the husband and discharge her matrimonial obligations, provided that the husband looses his vicious conviction against the wife. She submitted that her mental state of mind is absolutely perfect and the husband has unnecessarily leveled allegation against her to tarnish her social image, due to which she also remained annoyed despite of the fact that she has always treated in-laws home as to be her own home. 16. She submitted that the allegation as leveled against her on 22.05.2011 that she has gone to her parent’s home without informing the husband and his family members, is a false story which is not born out from the records or evidences produced by plaintiff. Based on the aforesaid pleadings, the learned trial Court on 01.05.2014 framed two issues primarily pertaining to cruelty and secondly as to what other relief husband was entitled to. 17. In support of his case the plaintiff husband has appeared in witness box as PW1. Apart from submitting his affidavit examination in chief as paper no. 41B and also produced Asha Chauhan as PW-2 and Sunil Grover as PW-3 who submitted their affidavit paper nos. 47B and 48B respectively in evidence. 18. The respondent-wife in support of her evidence had submitted affidavit in examination in chief as paper no. 55-B and appeared in witness box as DW-1. In support of her evidence she produced her oral testimonies and produced Bishan Singh who submitted his affidavit paper No. 58 B and appeared in witness box as DW-2. She adduced Shivnath as DW-3 who filed his affidavit paper No. 59 B and Anoop Singh as DW-4 who filed is affidavit as paper no. 68-B. Apart from it no other documentary evidence was filed by the wife. 19. She adduced Shivnath as DW-3 who filed his affidavit paper No. 59 B and Anoop Singh as DW-4 who filed is affidavit as paper no. 68-B. Apart from it no other documentary evidence was filed by the wife. 19. While dealing with issue No. 1 primarily the Court have recorded its finding with regards to the fact that the wife has left the home on 26.05.2011 and despite of the fact that the husband had asked her to come back, she declined and rather on the same day father and the brother of the wife visited Haridwar and she, after taking all the valuables and stridhan has left the matrimonial home and thus a desertion has commenced at the behest of the wife. 20. Though the learned trial Court has not framed any issue on desertion, hence it is not safe at this stage to record any finding on the plea of having left the matrimonial home on 26.05.2011, because under law since desertion is an independent ground for seeking decree of divorce, it ought to have pleaded and thereafter Court should have decided the same after framing issues. 21. Another ground which has been taken by the Court below, while passing a decree of divorce was the inception of the criminal proceedings lodged by the wife. Merely because a party to the matrimony to save her interest or atrocities if initiates the proceedings by invoking the criminal proceedings and the proceedings are pending investigation or trial is in progress, it will not amount to establishment of an offence or an acquittal till its finality adjudicated on merits after considering evidences. 22. In the instant case, the criminal proceedings of the incident dated 14.08.2011 is pending consideration has not yet been decided. Hence it is premature to contend that there is occasioned cruelty merely because the wife has lodged a criminal proceedings and furthermore it would be premature to observe that merely lodging of criminal proceedings would be a cruelty because the recourse to the judicial remedy cannot be obstructed upon merely under the garb of the allegation of cruelty. 23. Hence it is premature to contend that there is occasioned cruelty merely because the wife has lodged a criminal proceedings and furthermore it would be premature to observe that merely lodging of criminal proceedings would be a cruelty because the recourse to the judicial remedy cannot be obstructed upon merely under the garb of the allegation of cruelty. 23. Let us presume that the cruelty was to be taken as a ground for grant of decree of divorce, it was equally necessary for the Court to have considered the fact that it simultaneously ought to be established by evidence and also it was necessary on the part of the Court to bring the element of cruelty based on pleadings within the framework of ingredients of cruelty as laid down by Hon’ble Apex Court in the case of Samar Ghosh Vs. Jaya Ghosh reported in 2007 (4) SCC 511 which was not discharged by the Court and hence merely by considering and interpreting the statement given by the witnesses, who are derived and interested witnesses the marriage between them ought not be dissolved. Para 98, 99, 100 and 101 of the said judgment are quoted as under: “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. 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. 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 strait jacket 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. 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. 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. In such like situations, it may lead to mental cruelty.” 24. 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.” 24. At this stage, till the allegations of the criminal nature is established by the decision being rendered by the Criminal Court on account of the fact that the finding which has been recorded while interpreting the oral testimony and recording the contents of the affidavit submitted by the DW-3 and various other witnesses, it goes to show that the proceedings before the Court below were vitiated and the entire controversy has not been determined in its correct perspective itself vis-à-vis Court felt that non recording in findings on the merits of the matter the impugned judgment cannot be sustained as it fails to justify the test of evidence. 25. As such the same is quashed, the Appeal is allowed. The matter is remitted back to the learned trial Court to decide the controversy afresh after providing due and appropriate opportunity to the parties to lead their evidences after framing appropriate issues in accordance with the pleadings, exchanged by the parties before the Court below. Thus the appeal is allowed. Impugned order and decree dated 09.09.2016 passed in matrimonial case No. 411 pf 2012 “Vivek Vs. Smt. Dayawati” is quashed. The matter is remitted back to the learned family Court to decide the controversy afresh.