JUDGMENT The appellant 'the wife' has filed this appeal u/s. 19 of the Family Courts Act feeling aggrieved by judgment and decree dated 4.3.2016 whereby at the instance of the respondent 'the husband' the marriage solemnized on 31.5.2010 between them has been dissolved on the ground of cruelty. The facts of the case, in short, are as under : 1. The bio-data of the wife was published in the Magazine published by 'Brahmin Samaj' in which her qualification was mentioned as B.Com. (studying) and the date of birth was mentioned as 2.2.1982. After seeing the bio-data, the proposal was sent for marriage by the respondent. Thereafter, the appellant, the respondent, and their family met and settled their marriage. The marriage was solemnized on 31.5.2010 as per Hindu customs and rituals at Indore. According to the respondent, after the marriage, he came to know that certain wrong information was given in the biodata of the appellant such as date of birth and qualification. The correct date of birth of the wife is 28.2.1981 and she did not possess the degree of B.Com. According to the respondent it was made to believe that she drives the two-wheeler and cooks the food, but she did not know anything. Hence the foundation of the marriage is based on lies. After living together for some days, the husband felt that his wife is a very egoistic and stubborn lady in her decisions as she refused to learn two-wheeler driving as well as to complete her Graduation. Accordingly to the respondent, she suffers from smelly sweat which is intolerable for him. She suppressed this serious disease before marriage and tried to hide this by using fragrances and perfumes. She started insisting on partition in the family and his separation from his father and mother. According to the respondent, the brother of his wife is a habitual offender and known criminal of the locality, as many as 7 criminal cases are registered against him. The appellant used to give threats she would falsely implicate his family in a false Criminal case to compel the husband and his family. 2. According to him on 24.10.2010, the appellant created the scene and misbehaved with his mother on a petty issue of washing of handkerchief, she fought the whole night and threatened to commit suicide. The appellant used to give threats she would falsely implicate his family in a false Criminal case to compel the husband and his family. 2. According to him on 24.10.2010, the appellant created the scene and misbehaved with his mother on a petty issue of washing of handkerchief, she fought the whole night and threatened to commit suicide. According to the husband, the wife left the matrimonial home on 25.10.2010 with her all ornaments and threatened to implicate all the family members in a criminal case. On these aforesaid grounds, on 3.6.2011 the respondent approached the Family Court, Indore by way of petition u/s. 13(1) (i-a) of the Hindu Marriage Act, 1955 seeking dissolution of the marriage on the ground of cruelty. 3. The wife appeared and filed a written statement stating that her father had fulfilled all the demands of cash, gold, good reception, etc. at the time of the marriage. She denied all the allegations levelled against her., however, she did not allege anything against the respondent/husband. By way of counterclaim, she claimed the decree of restitution of conjugal rights u/s. 9 of the Hindu Marriage Act. The husband filed the reply denying all such rights. Thereafter, an amendment was made in the memo of a petition by the husband contending that he was subjected to the cruelty by the wife as her brother Santosh Sharma is a known criminal of the 'Banganga' area. The appellant/wife made a complaint at Mahila Police Station, Banganga, Indore against his family members by levelling false and baseless allegations. The wife denied all the amended pleadings by way of amendment in the written statement. 4. The learned Family Court framed 6 issues for adjudication. The husband examined himself and his mother as P.W.1 and P.W.2 respectively and got exhibited as many as 23 documents as Exh. P/1 to P/23. In defence, the wife examined herself as well as her brother as D.W.1 and D.W.2 and got her exhibited driving license as Exh. D/1. 5. After evaluating the evidence that came on record, the learned Family Judge has found that the conduct of the wife as alleged by the respondent/husband has been proved which constitute mental cruelty to him. Since he has suffered mental cruelty, hence entitled to a decree of divorce and accordingly, the marriage solemnized on 31.5.2010 has been dissolved. Hence, the present appeal before this Court. Submissions of appellant/wife 6. Since he has suffered mental cruelty, hence entitled to a decree of divorce and accordingly, the marriage solemnized on 31.5.2010 has been dissolved. Hence, the present appeal before this Court. Submissions of appellant/wife 6. Shri Satish Tomar, learned counsel appearing for the wife, submitted that the learned Family Court has wrongly granted the decree of divorce on imaginary and baseless allegations. No medical report has been produced to establish that the wife was suffering from a severe disease of smelly sweat. Only on the evidence of the husband and his mother, the decree of divorce has been granted. Merely, the fact that there are FIRs registered against the brother of the wife cannot constitute cruelty. No document has been filed to establish that he has been convicted by the court or he has ever threatened the respondent. So far as the date of birth is concerned, there is a hardly difference of a few months and there was no wrong declaration about the qualification. Every detail was published in the magazine and after satisfying in several personal meetings, the respondent/husband agreed to him. marriage. No FIR was lodged by the appellant/wife against the respondent or his family members hence no mental or physical cruelty was committed. The appellant is still ready to live with the respondent as his wife to perform all marital obligations. Therefore, the impugned decree of divorce is unsustainable in law and is liable to be set aside. Submissions of respondent/Husband 7. Shri Avinash Sirpurkar, learned senior counsel for the husband, supported the impugned decree by contending that the husband and wife both are living separately since 25.10.2010 i.e. more than 12 years. The marriage has virtually become a dead marriage and irretrievable. There are no feelings for each other between them to live as husband and wife in future. It is further submitted by the learned senior counsel that cruelty has not been defined in any of the enactment, it depends on the conduct of the one party which has caused mental cruelty to the other. From the evidence that came on record, the learned Family Judge has rightly come to the conclusion that the conduct of the wife comes under the category of mental cruelty and without any reason, she left the house of her husband and started living with her parents. From the evidence that came on record, the learned Family Judge has rightly come to the conclusion that the conduct of the wife comes under the category of mental cruelty and without any reason, she left the house of her husband and started living with her parents. Hence, no interference is called for and the appeal is liable to be dismissed. Appreciations and Conclusion 8. The bio-data of the wife/appellant was published in 'Samajik Patrika' and thereafter, the family members of the respondent/husband met with the family members of the wife and the marriage was finalised, which took place on 31.5.2010 at Indore. According to the husband, the wife wrongly disclosed her date of birth and qualification in the bio-data, therefore, this marriage was started on the foundation of lies. He has deposed that it was made to believe that the appellant/wife is capable of making food, knows driving, and can operate a computer, but after marriage, he came to know that she is B.Com. fail. She has refused to learn to drive, complete the graduation etc. She started mentally torturing him and he was not permitted to sleep the whole night, his mother suffered bypass surgery, and he was compelled to remove the handkerchief from the toilet. He also alleged that brother of the wife is a known criminal of that locality and she used to threaten the entire family that she would commit suicide to falsely implicate all of them in a dowry case. All these acts of the wife have tortured him which constitutes mental cruelty to the husband and his family and for which he made a complaint to the police also. It is further deposed that he served a legal notice to the wife and thereafter filed a divorce petition. According to him, the wife had filed a complaint at the Mahila Police Station from where he received a notice on 27.7.2011 vide (Exh. P/10). He went there and recorded his statement vide Exh. P/11. According to his statement, he is living separately with his parents since 25.10.2010 and paying the maintenance @ Rs.6,000/- per month, he did not avert the above allegations against the appellant in it. In support of aforesaid allegations, he examined himself as well as his mother as P.W.1 and P.W.2 respectively. No other independent witness has been examined i.e. relatives, neighbours, etc. to corroborate the aforesaid allegations. In support of aforesaid allegations, he examined himself as well as his mother as P.W.1 and P.W.2 respectively. No other independent witness has been examined i.e. relatives, neighbours, etc. to corroborate the aforesaid allegations. According to him, the wife is suffering from smelly sweat which is a serious disease and she is not ready to take treatment. But, no such medical document has been filed in support of the aforesaid allegation. He deserted his wife on 25.10.2010 and no efforts have been made to bring her back. All these alleged episodes took place within one year of marriage and the respondent has decided to take divorce from the appellant. He did not give second chance to her. even today appellant is ready to go with him from the court but he has refused straightway which shows that he has deserted the wife on the basis of a few instances which are normal between newly wedded couples. Law does not permit him to spoil the whole life of an innocent lady by giving divorce on grounds other than enumerated in section 13 of the HM Act. 9. The wife has filed the written statement and also filed an application 9 of the Hindu Marriage Act for restitution of conjugal rights. In the entire written statement, she has not made any allegation against the husband or his parents and has shown her willingness to live with her him. The complaint lodged in the Mahila Police Station is not on record. Only once the respondent/husband appear at the Mahila Police Station and recorded his statement on 26.6.2011 in which he only stated that his wife lives 15 days in her parents' house and lives 5 days in his house and there is a difference in thinking between them. She used to threaten him and his family for false implications in the criminal case. She is not interested in serving his old-aged father and mother and because of this, he has filed a petition for divorce. No such allegation has been made about the criminal background of the brother of the wife; the wrong declaration of date of birth, suppression of qualification, etc. No FIR was registered based on the complaint, hence it cannot be held that by calling the police station any mental cruelty was caused to him. 10. No such allegation has been made about the criminal background of the brother of the wife; the wrong declaration of date of birth, suppression of qualification, etc. No FIR was registered based on the complaint, hence it cannot be held that by calling the police station any mental cruelty was caused to him. 10. In the cross-examination, the respondent has admitted that in the bio-data it is written that the appellant is studying in B.Com. and the word 'Pass' is not mentioned. The divorce of his sister has already taken place in the year 2006 before his marriage. There is hardly a difference of 9 months between the date of birth mentioned in the bio-data and the date of birth mentioned in the mark sheet. It is not the case of the respondent/ husband that the appellant is elder than him marriage has been done by disclosing the wrong date of birth. 11. So far as qualification is concerned, the husband himself pursued a B.E. Degree after the marriage and he could have convinced his wife for obtaining a Degree after the marriage if he wanted her to be a graduate. There is no allegation of demand of dowry against the husband and there is no evidence that she had ever threatened him. During arguments, both husband and wife were present before this Court. The wife has still shown her willingness to live with her husband but the husband was adamant and was not ready to take his wife back to his home. The husband has not shown any strong legal ground on which he can claim divorce from his wife. It can be safely held that the respondent has deserted the appellant without any valid reason. 12. It was an arranged marriage after several meetings between family members of each other, community, and relatives and after satisfying the bio-data of the wife. The husband agreed to the marriage, therefore, without any reason, the husband cannot be permitted to spoil the wife's life for no fault on her part. The minor differences cannot be termed as cruelty between husband and wife. There should be no expectation of overnight change in the husband and wife. Time should be given by both of them to each other to transpose as a wife and as a husband in married life. 13. The minor differences cannot be termed as cruelty between husband and wife. There should be no expectation of overnight change in the husband and wife. Time should be given by both of them to each other to transpose as a wife and as a husband in married life. 13. After the marriage, the appellant/wife hardly lived for six months with the respondent/ husband and thereafter he deserted her and which the law does not permit. Given the aforesaid discussion, we think that in the present case neither mental cruelty nor physical cruelty has been established and the impugned decree of divorce is liable to be set aside. 14. We have examined the rival submissions of the parties in the light of the law laid down by the apex Court as well as the Division Bench of this Court under : (i) The apex Court in the case of Romesh Chander V/s. Savitri : (1995) 2 SCC 7 has held that in case the marriage is dead, emotionally and practically, and there is no chance of its being retrieved, the continuance of it would be cruelty. In the case of Vinita Saxena V/s. Pankaj Pandit : (2006) 3 SCC 78, the apex Court has held that if the facts indicate that the parties had crossed the point of return and it would be futile to drag a dead relationship, and the wife's stay with the husband may be injurious to her health, the decree of divorce can be granted. In the case of Rishikesh Sharma V/s. Saroj Sharma : (2007) 2 SCC 263 , in the backdrop of the facts, husband and wife living separately for a long period, there was an allegation by the wife that the husband has already remarried and living with another lady and there were criminal cases the apex Court has held that decree of divorce should be granted in favour of the husband. (ii) In the case of K. Srinivas V/s. K. Sunita: 2014 (III) MPWN 127 the apex Court has held that if a wife filed a false criminal complaint, even one such complaint is sufficient to constitute matrimonial cruelty, hence the marriage of the parties should be dissolved. (ii) In the case of K. Srinivas V/s. K. Sunita: 2014 (III) MPWN 127 the apex Court has held that if a wife filed a false criminal complaint, even one such complaint is sufficient to constitute matrimonial cruelty, hence the marriage of the parties should be dissolved. In the case of Samar Ghosh V/s. Jaya Ghosh : (2007) 4 SCC 511 the apex Court has held that where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. There cannot be a comprehensive definition of mental cruelty. There can never be a straitjacket formula to determine mental cruelty in a matrimonial matter. The prudent and appropriate way to adjudicate the case would be to evaluate it on its peculiar facts and circumstances while considering the factors. (iii) In the case of Smt. Ranjeet Kaur V/s. Surendra Singh Gill: AIR 20123 MP 74 the Division Bench of this Court has held that the cruelty for Section 13(1)(i-a) is to be taken as behaviour by one spouse towards the other, which causes reasonable apprehension in the mind of the latter that it is not safe for him or her to continue the matrimonial relationship with the other. Unlike the case of physical cruelty, mental cruelty is difficult to establish by direct evidence. It is necessarily a matter of inference to be drawn from the facts and circumstances of the case. In the case of Shikha Tamrakaar V/s. Rohit Kumar Tamrakaar: 2014 (3) MPLJ 337 , another Division Bench of this Court has held that the word 'cruelty' is not defined in Act in a specific manner. 'Cruelty' depends upon the facts of every case. The wife deserted her husband for more than two years without any reason, it amounts to cruelty. In the case of Rajkumari V/s. Sonu Vishwakarma: 2015 (1) MPLJ 182 the Division Bench of this Court has held that once the marriage has broken down beyond repair, it would be unrealistic for the law not to take notice of the fact and it would be harmful to society and injurious to the interest of the parties. In several cases, the apex Court has granted a decree of divorce primarily in a situation where it found no purpose in keeping the legal bond alive de jure when de facto it is particularly dead. In several cases, the apex Court has granted a decree of divorce primarily in a situation where it found no purpose in keeping the legal bond alive de jure when de facto it is particularly dead. In the case of Aradhana V/s. Pradeep Mishra: 2012 (4) MPLJ 208 , the Division Bench of this Court, the decree of divorce has been granted as one of the parties has not come forward for reconciliation and has voluntarily deserved the other since 2006 and there being no chance of a reunion between them. (iv) in the case of Ravinder Kaur v. Manjeet Singh, (2019) 8 SCC 308 the hon'ble The Apex court has held as under:- 12. In the above background, keeping in view the nature of allegations made and the evidence tendered in that regard, we find that the consideration made by the trial court with reference to the reliability of the evidence is more appropriate. As already noticed the High Court, while taking note of the nature of allegations made has proceeded on the basis that there is irretrievable breakdown of the marriage. Needless to mention that irretrievable breakdown of marriage by itself is not a ground provided under the statute for seeking dissolution of marriage. To this effect it would be apposite to refer to the decision rendered by this Court to that effect in Vishnu Dutt Sharma v. Manju Sharma [Vishnu Dutt Sharma v. Manju Sharma, (2009) 6 SCC 379 : (2009) 2 SCC (Civ) 897] relied upon by the learned counsel for the appellant. No doubt on taking note of the entire material and evidence available on record, in appropriate cases the courts may have to bring to an end, the marriage so as not to prolong the agony of the parties. However, in the present facts, at this point in time, even that situation does not arise in view of the changed scenario on the death of the respondent herein. Accordingly, this appeal is allowed, and the impugned judgment and decree of divorce are hereby set aside the decree of restitution of conjugal right under section 9 of the HM Act is hereby granted to the appellant/wife. The appellant/wife is entitled to get maintenance @ Rs 8,000.00 per month from the respondent till the date of compliance with the decree of restitution of conjugal right. 15. The appellant/wife is entitled to get maintenance @ Rs 8,000.00 per month from the respondent till the date of compliance with the decree of restitution of conjugal right. 15. The cost of litigation is here awarded as 10,000/-( In words Ten Thousand only) in favour of the appellant/wife. Decree be drawn accordingly.