JUDGMENT : SONIA GOKANI, J. 1. The appellant has preferred the present appeal against the judgment dated 15.11.2014 passed by the learned Principal Senior Civil Judge, Gandhinagar in Hindu Marriage Petition No.8 of 2014, filed on 17.11.2009 by respondent-husband herein under Section 13(1)(a) of the Hindu Marriage Act, 1955 (‘the Act’ hereinafter) on the ground of mental cruelty and desertion, which is in challenge in this First Appeal. 2. Brief facts in capsulized form are as follow: 2.1 The marriage between the parties, who are both primary school teachers was solemnized on 06.05.1993 as per the Hindu Customs and traditions at Prantij. On 03.07.2006, the appellant gave birth to a baby boy named Pratyaksha at her parental home, where she had gone for her delivery in the month of February 2006. She went back to her matrimonial home at Lavarpur after delivering the baby boy. 2.3 It is the allegation of the appellant-wife that she was illegally driven out from matrimonial home in village Lavarpur and had to stay with her parents in Gandhinagar in the year 2006 and she came back to her matrimonial home in 2009 prior to the filing of the Hindu Marriage Petition on 17.11.2009. It is the allegation of the appellant-wife that the respondent-husband had extra marital affairs and he perpetrated cruelty upon the appellant-wife, who was deserted and the Court committed grave error in coming to the conclusion that she went away to her parental home and never returned to the matrimonial home. In fact, it is a matter of fact that she has continued to be in matrimonial home and is residing there. However, it is the respondent-husband, who has chosen not to return home and has gone elsewhere for staying, which is nothing but an intentional negligence on his part. He, therefore, is disentitled to get the decree for desertion as the statutory period of desertion was not completed. 2.4 It is further the case of the appellant-wife that the essential ingredients of the desertion are (i) the factum of separation, (ii) the intention to bring cohabitation permanently to an end and (iii) these both ingredients should continue during the entire statutory period. 2.4 It is further the case of the appellant-wife that the essential ingredients of the desertion are (i) the factum of separation, (ii) the intention to bring cohabitation permanently to an end and (iii) these both ingredients should continue during the entire statutory period. On the basis of Section 13(1)(i-a) of the Act, and the explanation to Section 13 (1)(i-b), it cannot be said that the conduct of appellant-wife is indicative of firm determination not to return to marital home or to discharge her obligations. 2.5 It is a specific case of the appellant-wife that she is residing at her matrimonial home and even after she was driven out by the husband, she had returned back to her matrimonial home in the month of October 2009. 2.6 It is the say of the appellant that the respondent-husband is, in fact, not performing his obligation and he cannot take disadvantage of his own wrong when the wife is already staying at matrimonial home. It appears that the appellant-wife and the minor son have preferred Regular Civil Suit No.344 of 2009 seeking declaration of the rights in the ancestral property which includes the matrimonial home. 2.7 Serious grievance is raised on some of the findings and observations of the Family Court Judge, where he has said that there is no possibility of any retrieval of the relationship. The Family Court, according to the appellant-wife, ought to have dismissed the petition for dissolution holding that he had an extra marital relationship with one lady Jyotshnaben at Prantij Primary School, which had led to the unfortunate situation for the appellant-wife and her son who is presently aged 16 years. 2.8 An application for additional evidence is also filed which is supported by the affidavit of Patel Indiraben, a school teacher and who is a wife of Mr.Harshadbhai Patel i.e. brother of appellant’s husband thus, she is sister-inlaw. 3. On admission, the matter had come up for hearing where along the line of memo of appeal, learned advocate, Mr.K.V.Shelat has argued for and on behalf of the appellant-wife. He has strenuously urged that the Court may allow the additional evidence, which supports the case of the appellant-wife. 3. On admission, the matter had come up for hearing where along the line of memo of appeal, learned advocate, Mr.K.V.Shelat has argued for and on behalf of the appellant-wife. He has strenuously urged that the Court may allow the additional evidence, which supports the case of the appellant-wife. He has also relied on the following authorities in support of his submissions: a. Malathi Ravi M.D vs. B.B.Ravi M.D., reported in (2014) 7 SCC 640 b. Neelam Kumar vs. Dayarani, reported in (2010) 13 SCC 298 c. Ravi Kumar vs. Julmidevi, reported in (2010) 4 SCC 476 d. Darshan Gupta vs. Radhika Gupta, reported in (2013) 9 SCC 1 e. Rajesh Chandrakan Majmudar vs. Rekhaben Rajeshbhai Majmudar d/o Shantilal Vani, reported in (2013) GLR (3) 2257. 3.1 It is further his submission that while deciding the First Appeal, the Court shall need to independently appreciate the evidence. How and in what manner the same needs to be done is laid down by the Apex Court, for which he has also relied upon the decision. Written submissions are also tendered after detailed oral submissions. 4. On behalf of the respondent-husband, learned advocate, Mr.Mahesh Bhavsar has argued strenuously. According to him, for the past 16 years the appellant-wife and the respondent-husband do not have any cohabitation. The marriage has irretrievably broken down and there is no reasonable chance of getting back together. Under Section 13 of the Act, the original petitioner-respondent had sought the divorce. 4.1 It is further argued that the appellant-wife had treated the respondent-husband and his old aged disabled mother with cruelty. She had also deserted the husband and abandoned his mother since three years preceding the presentation of divorce petition. The disability certificate of the mother of the respondent-husband is also placed on the record. Both the grounds of cruelty and desertion are borne out from the evidence. They are also suffering from various ailments in wake of the filthy and abusive language and objectionable conduct on the part of appellant-wife. She has made all sorts of false allegations and has acted very cruelly. She has left no stone unturned in preferring various kinds of litigations, which included the FIR under Section 498A of the Indian Penal Code and the false case under the Domestic Violence Act being Criminal Misc. Application No.719 of 2009. She has made all sorts of false allegations and has acted very cruelly. She has left no stone unturned in preferring various kinds of litigations, which included the FIR under Section 498A of the Indian Penal Code and the false case under the Domestic Violence Act being Criminal Misc. Application No.719 of 2009. 4.2 It is the say of the respondent-husband that he and his mother both have been acquitted from the charges levelled under Section 498A of the Indian Penal Code where she had alleged of extra marital relations and this acquittal has been confirmed by the Appellate Court. A copy of Criminal Case No.7027 of 2008 has been produced. After the decision was rendered in a case under Section 498A of the Indian Penal Code, she had again preferred the case under the Domestic Violence Act and that too was rejected by the trial Court, Gandhinagar. This appeal, therefore, is misconceived and is urged to be dismissed. 4.3 It is further the say of the respondent-husband that the appellant-wife has miserably failed to prove any allegations against the husband. Nothing is on the record to prove that the respondent-husband was using abusive or derogatory language. The behavior of wife has created acute mental pain, agony and suffering. They both are teachers serving as teachers in Government Primary Schools and the wife is earning Rs.72,000/- per month towards the salary. No maintenance has been provided by the Family Court to her and again the respondent-husband is paying Rs.18,500/- per month to the child and till today he has paid nearly Rs.10 Lakh to Rs.12 Lakh towards the maintenance. 4.4 In support of his submissions, the decisions placed on the record by Mr.Mahesh Bhavsar, learned advocate for the respondent are as follow: (i) N.G.Dastane vs. S.Dastane, reported in (1975) 2 SCC 326 (ii) Samar Ghosh vs.Jaya Ghosh, reported in (2007) 4 SCC 511 (iii) Vishwanath Agrawal vs. Sarla Vishwanath Agrawal, reported in (2012) 7 SCC 288 (iv) K.Shrinivas Rao vs. D.A. Deepa,reported in (2013) (5) SCC 226 4.5 With regard to the additional evidence sought to be requested for by the appellant-wife, it is urged that it does not satisfy the requirement of Order XLI Rule 27 of the Code of Civil Procedure. It is an afterthought by exercising undue influence on the sister-in-law of the respondent-husband. It is an afterthought by exercising undue influence on the sister-in-law of the respondent-husband. 4.6 It is the say of the respondent that the husband of Indiraben i.e. the brother-in-law of the appellant-wife was also arraigned as an accused namely Mr.Harshidbhai Patel in case under the Domestic Violence Act. So, therefore, she was pressurized and threatened that if she would not give evidence in her favour, the appellant-wife would ensure that her husband is sent to the jail. 4.7 Again, the dispute created by the appellant-wife in relation to the ancestral property and that also is a reason for her to get the affidavit of her sister-in-law. No such application had been moved before the trial Court and it was never the case where Indiraben was threatened by anyone as the allegation of the respondent giving threat to her own sister-in-law is baseless. 4.8 It is further averred that the appellant’s sister has taken divorce from her husband and now she is staying with the appellant in the house of the respondent at Lavarpur. She also continues to instigate the appellant-wife to make false allegations against the respondent-husband. 4.9 Affidavit of Indiraben has been taken in English whereas she is not in a position to either read, write or understand English language. The attempt on the part of the appellant to create new evidence is urged to be deprecated. When there is no satisfactory reason for non-production of the evidence in the trial Court, the additional evidence must not be permitted. In support of his submission, the respondent has relied upon the following decisions: (i) Union of India vs. Ibrahim Uddin and anr, reported in (2012) 8 SCC 148 (ii) Satishkumar Gupta and Ors. vs. State of Haryana and Ors, reported in (2017) 4 SCC 760 4.10 It is the say of the respondent-husband that he is having only one house at Lavarpur, which is in possession of the appellant-wife. She has forcefully entered the house, trespassed the same and has compelled the respondent to stay at Gandhinagar with his aged mother. At village Lavarpur one house is in the name of the brother of the respondent Mr.Harshadbhai Patel and the one which is in the name of the respondent is presently occupied by the appellant-wife, thus, he does not have his house in Gandhinagar. At village Lavarpur one house is in the name of the brother of the respondent Mr.Harshadbhai Patel and the one which is in the name of the respondent is presently occupied by the appellant-wife, thus, he does not have his house in Gandhinagar. She has heavily relied on the ancestral properties of the respondent-husband for which she has filed a suit in the name of minor son. It is thus urged that no interference is desirable in the decree of dissolution passed by the Family Court. 5. At this stage, it is necessary to refer to the decision of Malathi Ravi M.D (supra), where the Apex Court has held thus: “19. Dealing with the concept of desertion, this Court in Savitri Pandey v. Prem Chandra Pandey has ruled thus: “Desertion”, for the purpose of seeking divorce under the Act, means the intentional permanent forsaking and abandonment of one spouse by the other without that other’s consent and without reasonable cause. In other words it is a total repudiation of the obligations of marriage. Desertion is not the withdrawal from a place but from a state of things. Desertion, therefore, means withdrawing from the matrimonial obligations i.e. not permitting or allowing and facilitating the cohabitation between the parties. The proof of desertion has to be considered by taking into consideration the concept of marriage which in law legalises the sexual relationship between man and woman in the society for the perpetuation of race, permitting lawful indulgence in passion to prevent licentiousness and for procreation of children. Desertion is not a single act complete in itself, it is a continuous course of conduct to be determined under the facts and circumstances of each case. After referring to a host of authorities and the views of various authors, this Court in Bipinchandra Jaisinghbai Shah v. Prabhavati held that if a spouse abandons the other in a state of temporary passion, for example, anger or disgust without intending permanently to cease cohabitation, it will not amount to desertion. 20. In the said Savitry Pandey case, reference was also made to Lachman Utamchand Kirpalani’s case wherein it has been held that desertion in its essence means the intentional permanent forsaking and abandonment of one spouse by the other without that other’s consent, and without reasonable cause. 20. In the said Savitry Pandey case, reference was also made to Lachman Utamchand Kirpalani’s case wherein it has been held that desertion in its essence means the intentional permanent forsaking and abandonment of one spouse by the other without that other’s consent, and without reasonable cause. For the offence of desertion so far as the deserting spouse is concerned, two essential conditions must be there (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly two elements are essential so far as the deserted spouse is concerned: (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. For holding desertion as proved the inference may be drawn from certain facts which may not in another case be capable of leading to the same inference; that is to say the facts have to be viewed as to the purpose which is revealed by those acts or by conduct and expression of intention, both anterior and subsequent to the actual acts of separation. xxx 29. Before we proceed to deal with the issue of mental cruelty, it is appropriate to state how the said concept has been viewed by this Court. In Vinit Saxena v. Pankaj Pandit, while dealing with the issue of mental cruelty, the Court held as follows: - “31. It is settled by a catena of decisions that mental cruelty can cause even more serious injury than the physical harm and create in the mind of the injured appellant such apprehension as is contemplated in the section. It is to be determined on whole facts of the case and the matrimonial relations between the spouses. To amount to cruelty, there must be such wilful treatment of the party which caused suffering in body or mind either as an actual fact or by way of apprehension in such a manner as to render the continued living together of spouses harmful or injurious having regard to the circumstances of the case. xxx xxx xxx 35. Each case depends on its own facts and must be judged on these facts. xxx xxx xxx 35. Each case depends on its own facts and must be judged on these facts. The concept of cruelty has varied from time to time, from place to place and from individual to individual in its application according to social status of the persons involved and their economic conditions and other matters. The question whether the act complained of was a cruel act is to be determined from the whole facts and the matrimonial relations between the parties. In this connection, the culture, temperament and status in life and many other things are the factors which have to be considered.” 30. In Samar Ghosh v. Jaya Ghosh, this Court has given certain illustrative examples wherefrom inference of mental cruelty can be drawn. The Court itself has observed that they are illustrative and not exhaustive. We think it appropriate to reproduce some of the illustrations: “(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. xxx xxx xxx (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. xxx xxx xxx (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. xxx xxx xxx (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 behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty. xxx xxx xxx (xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. xxx xxx xxx (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.” 31. In the said case the Court has also observed thus: - “99. … The human mind is extremely complex and human behaviour is equally complicated. Similarly human ingenuity has no bound, therefore, to assimilate the entire human behaviour in one definition is almost impossible. What is cruelty in one case may not amount to cruelty in the other case. The concept of cruelty differs from person to person depending upon his upbringing, level of sensitivity, educational, family and cultural background, financial position, social status, customs, traditions, religious beliefs, human values and their value system. 100. Apart from this, the concept of mental cruelty cannot remain static; it is bound to change with the passage of time, impact of modern culture through print and electronic media and value system, etc. etc. What may be mental cruelty now may not remain a mental cruelty after a passage of time or vice versa. There can never be any straitjacket formula or fixed parameters for determining mental cruelty in matrimonial matters. The prudent and appropriate way to adjudicate the case would be to evaluate it on its peculiar facts and circumstances….” 32. In Vishwanath Agrawal, s/o Sitaram Agrawal v. Sarla Vishwanath Agrawal, while dealing with mental cruelty, it has been opined thus: - “22. The expression “cruelty” has an inseparable nexus with human conduct or human behaviour. It is always dependent upon the social strata or the milieu to which the parties belong, their ways of life, relationship, temperaments and emotions that have been conditioned by their social status.” 33. In the said case, analyzing the subsequent events and the conduct of the wife, who was responsible for publication in a newspaper certain humiliating aspects about the husband, the Court held as follows: - “54….In our considered opinion, a normal reasonable man is bound to feel the sting and the pungency. In the said case, analyzing the subsequent events and the conduct of the wife, who was responsible for publication in a newspaper certain humiliating aspects about the husband, the Court held as follows: - “54….In our considered opinion, a normal reasonable man is bound to feel the sting and the pungency. The conduct and circumstances make it graphically clear that the respondent wife had really humiliated him and caused mental cruelty. Her conduct clearly exposits that it has resulted in causing agony and anguish in the mind of the husband. She had publicised in the newspapers that he was a womaniser and a drunkard. She had made wild allegations about his character. She had made an effort to prosecute him in criminal litigations which she had failed to prove. The feeling of deep anguish, disappointment, agony and frustration of the husband is obvious.” 34. In U. Sree v. U. Srinivas, the Court, taking note of the deposition of the husband that the wife had consistently ill treated him inasmuch as she had shown her immense dislike towards his “sadhna” in music and had exhibited total indifference to him, observed as follows: - “It has graphically been demonstrated that she had not shown the slightest concern for the public image of her husband on many an occasion by putting him in a situation of embarrassment leading to humiliation. She has made wild allegations about the conspiracy in the family of her husband to get him remarried for the greed of dowry and there is no iota of evidence on record to substantiate the same. This, in fact, is an aspersion not only on the character of the husband but also a maladroit effort to malign the reputation of the family.” 35. In K. Srinivas Rao v. D.A. Deepa, while dealing with the instances of mental cruelty, the court opined that to the illustrations given in the case of Samar Ghosh certain other illustrations could be added. In K. Srinivas Rao v. D.A. Deepa, while dealing with the instances of mental cruelty, the court opined that to the illustrations given in the case of Samar Ghosh certain other illustrations could be added. We think it seemly to reproduce the observations: - “16…Making unfounded indecent defamatory allegations against the spouse or his or her relatives in the pleadings, filing of complaints or issuing notices or news items which may have adverse impact on the business prospect or the job of the spouse and filing repeated false complaints and cases in the court against the spouse would, in the facts of a case, amount to causing mental cruelty to the other spouse.” xxx xxx xxx 42. For the present, we shall restrict our delineation to the issue whether the aforesaid acts would constitute mental cruelty. We have already referred to few authorities to indicate what the concept of mental cruelty means. Mental cruelty and its effect cannot be stated with arithmetical exactitude. It varies from individual to individual, from society to society and also depends on the status of the persons. What would be a mental cruelty in the life of two individuals belonging to particular strata of the society may not amount to mental cruelty in respect of another couple belonging to a different stratum of society. The agonized feeling or for that matter a sense of disappointment can take place by certain acts causing a grievous dent at the mental level. The inference has to be drawn from the attending circumstances. 43. As we have enumerated the incidents, we are disposed to think that the husband has reasons to feel that he has been humiliated, for allegations have been made against him which are not correct; his relatives have been dragged into the matrimonial controversy, the assertions in the written statement depict him as if he had tacitly conceded to have harboured notions of gender insensitivity or some kind of male chauvinism, his parents and he are ignored in the naming ceremony of the son, and he comes to learn from others that the wife had gone to Gulbarga to prosecute her studies. That apart, the communications, after the decree for restitution of conjugal rights, indicate the attitude of the wife as if she is playing a game of Chess. The launching of criminal prosecution can be perceived from the spectrum of conduct. That apart, the communications, after the decree for restitution of conjugal rights, indicate the attitude of the wife as if she is playing a game of Chess. The launching of criminal prosecution can be perceived from the spectrum of conduct. The learned Magistrate has recorded the judgment of acquittal. The wife had preferred an appeal before the High Court after obtaining leave. After the State Government prefers an appeal in the Court of Session, she chooses to withdraw the appeal. But she intends, as the pleadings would show, that the case should reach the logical conclusion. This conduct manifestly shows the widening of the rift between the parties. It has only increased the bitterness. In such a situation, the husband is likely to lament in every breath and the vibrancy of life melts to give way to sad story of life. 44. From this kind of attitude and treatment it can be inferred that the husband has been treated with mental cruelty and definitely he has faced ignominy being an Associate Professor in a Government Medical College. When one enjoys social status working in a Government hospital, this humiliation affects the reputation. That apart, it can be well imagined the slight he might be facing. In fact, the chain of events might have compelled him to go through the whole gamut of emotions. It certainly must have hurt his self-respect and human sensibility. The sanguine concept of marriage presumably has become illusory and it would not be inapposite to say that the wife has shown anaemic emotional disposition to the husband. Therefore, the decree of divorce granted by the High Court deserves to be affirmed singularly on the ground of mental cruelty. 5.1 It is quite clear from this decision that the concept of desertion for the purpose of seeking divorce would mean intentional permanent forsaking and abandonment of one spouse by the other without other’s consent and without any reasonable cause. It would mean the withdrawal from the matrimonial obligations that would also include non-permission or facilitation of cohabitation between the parties. It is not a single act, but a continuous course of conduct to be judged from the facts and circumstances of each case. 5.2 Whereas the mental cruelty is said to be causing the serious injury than the physical harm, which is a state of mind. It is not a single act, but a continuous course of conduct to be judged from the facts and circumstances of each case. 5.2 Whereas the mental cruelty is said to be causing the serious injury than the physical harm, which is a state of mind. The feeling of deep anguish, disappointment, frustration caused by the conduct of spouse for a long time leading to the cruelty. Viewing the marital life as a whole, the ill-conduct should be persistent for a fairly long time. The continuous separation is also concluded to be beyond repair. What is cruelty in one set of facts may not amount to cruelty in the other. It would also differ and would depend upon the upbringing the level of sensitivity, cultural background, financial position, etc. 6. In case of Rajesh Chandrakan Majmudar (supra) where husband filed an application for divorce alleging that the wife had deserted him. He had relation with another woman and two children were born out of the said marriage. His application for divorce had been dismissed by the trial Court. When the matter travelled to this Court in First Appeal, the Court held that the husband cannot be permitted to take advantage of his own wrong and accordingly, had not chosen to interfere with the judgment and order passed by the Family Court. 7. In case of Neelam Kumar (supra), there was irretrievable breakdown of the marriage under Section 13 of the Act. It is held by the Apex Court in this decision that when the party with his/her own conduct brings a relationship to a point of irretrievable breakdown, he/she cannot be allowed to seek divorce on the ground of such breakdown and it amounts to giving someone the benefits of his/her own misdeeds. In the matter before the Apex Court there was nothing to indicate that the respondent-wife contributed to the alleged breakdown and therefore, the Court did not interfere with the order of the High Court. 7.1 It was further held that while discussing Section 13 (1)(i-a) of the Act that the single instance of the ill treatment or of not taking care of the spouse while hospitalized is not sufficient for dissolution of the marriage on the ground of cruelty. It also discusses the onus of proving cruelty to hold that burden lies on the person alleging the same. It also discusses the onus of proving cruelty to hold that burden lies on the person alleging the same. No decree of divorce can be granted unless person seeking divorce proves cruelty on the basis of pleadings and evidence. The relevant discussion finds place in the following paragraphs: “13. The counsel for the appellant then submitted that the appellant's marriage with the respondent had completely broken down with no hope of revival and compelling them to live together would be very hard and unjust. He made a plea for dissolution of marriage on the ground of its irretrievable breakdown. In support of the submission, learned counsel relied on the judgment of this Court in Satish Sitole v. Gangal, wherein it was held in the last paragraph as follows: "14. that since the marriage between the parties is dead for all practical purposes and there is no chance of it being retrieved, the b continuance of such marriage would itself amount to cruelty, and, accordingly, in exercise of our powers under Article 142 of the Constitution we direct that the marriage of the appellant and the respondent shall stand dissolved.…" 14. We are not impressed by this submission at all. There is nothing to indicate that the respondent has contributed in any way to the alleged breakdown of the marriage. If a party to a marriage, by his own conduct brings the relationship to a point of irretrievable breakdown, he/she cannot be allowed to seek divorce on the ground of breakdown of the marriage. That would simply mean giving someone the benefits of his/her own misdeeds. 15. Moreover, in a later decision of this Court in Vishnu Dutt Sharma v. Manju Sharma, it has been held that irretrievable breakdown of marriage is not a ground for divorce as it is not contemplated under Section 13 and granting divorce on this ground alone would amount to adding a clause therein by a judicial verdict which would amount to legislation by Court. In the concluding paragraph of that judgment, the Court observed: "12. If we grant divorce on the ground of irretrievable breakdown, then we shall by judicial verdict be adding a clause to Section 13 of the Act to the effect that irretrievable breakdown of the marriage is also a ground for divorce. In our opinion, this can only be done by the legislature and not by the Court. If we grant divorce on the ground of irretrievable breakdown, then we shall by judicial verdict be adding a clause to Section 13 of the Act to the effect that irretrievable breakdown of the marriage is also a ground for divorce. In our opinion, this can only be done by the legislature and not by the Court. It is for Parliament to enact or amend the law and not for the courts." 8. Yet another decision which is sought to be relied upon is of Ravi Kumar (supra) where again the issue was of desertion under Section 13(1)(i-a)(i-b) of the Act. The Apex Court held that pleadings and particulars necessary in respect of ground of cruelty, the party alleging desertion must not only prove that the other spouse living separately, but also animus deserendi on his part and the spouse claiming desertion must prove that he/she has not conducted himself/herself in a manner which furnishes the reasonable cause for the other spouse to stay away from the matrimonial home. 8.1 In the matter before the Apex Court the respondent-wife was found to have sufficient ground to stay separately. The daughter had deposed that the mother was repeatedly beaten by the father for unknown reasons. There were no specific allegations of cruelty with material particulars pleaded against the wife and hence, the judgment of setting aside the decree of divorce had called for no interference. 8.2 The Apex Court also held in this case that in a matrimonial discord the testimony of a child witness is significant. 8.3 While considering the cruelty under Section 13(1)(i-a) of the Act, it held that cruelty in matrimonial behavior defies any definition and can be of infinitely various categories, which can never be closed. The cruelty has to be judged taking into account entire facts and circumstances of the case and not by any predetermined rigid formula. It can mean absence of mutual respect and understanding between the spouses which embitters the relationships. Sometimes, it may take form of violence or at times, it may be just an attitude or approach. Silence in such situation also may amount to cruelty. 8.4 Relevant findings and observations of the Apex Court are as follow: “19. It may be true that there is no definition of cruelty under the said Act. Actually such a definition is not possible. Silence in such situation also may amount to cruelty. 8.4 Relevant findings and observations of the Apex Court are as follow: “19. It may be true that there is no definition of cruelty under the said Act. Actually such a definition is not possible. In matrimonial relationship, cruelty would obviously mean absence of mutual respect and understanding between the spouses which embitters the relationship and often leads to various outbursts of behaviour which can be termed as cruelty. Sometime cruelty in a matrimonial relationship may take the form of violence, sometime it may take a different form. At times, it may be just an attitude or an approach. Silence in some situations may amount to cruelty. 20. Therefore, cruelty in matrimonial behaviour defies any definition and its categories can never be closed. Whether the husband is cruel to his wife or the wife is cruel to her husband has to be ascertained and judged by taking into account the entire facts and circumstances of the given case and not by any predetermined rigid formula. Cruelty in matrimonial cases can be of infinite variety-it may be subtle or even brutal and may be by gestures and words. That possibly explains why Lord Denning in Sheldon v. Sheldon held that categories of cruelty in matrimonial cases are never closed. 21. This Court is reminded of what was said by Lord Reid in Gollins v. Gollins about judging cruelty in matrimonial cases. The pertinent observations are: "... In matrimonial cases we are not concerned with the reasonable man as we are in cases of negligence. We are dealing with this man and this woman and the fewer a priori assumptions we make about them the better. In cruelty cases one can hardly ever even start with a presumption that the parties are reasonable people, because it is hard to imagine any cruelty case ever arising if both the spouses think and behave as reasonable people." The aforesaid passage was quoted with approval by this Court in N.G. Dastane (Dr.) v. S. Dastane. 22. About the changing perception of cruelty in matrimonial cases, this Court observed in Shobha Rani v. Madhukar Reddi at AIR p. 123, para 5 of the report: "5. It will be necessary to bear in mind that there has been [a] marked change in the life around us. In matrimonial duties and responsibilities in particular, we find a sea change. About the changing perception of cruelty in matrimonial cases, this Court observed in Shobha Rani v. Madhukar Reddi at AIR p. 123, para 5 of the report: "5. It will be necessary to bear in mind that there has been [a] marked change in the life around us. In matrimonial duties and responsibilities in particular, we find a sea change. They are of varying degrees from house to house or person to person. Therefore, when a spouse makes complaint about the treatment of cruelty by the partner in life or relations, the court should not search for standard in life. A set of facts stigmatised as cruelty in one case may not be so in another case. The cruelty alleged may largely depend upon the type of life the parties are accustomed to or their economic and social conditions. It may also depend upon their culture and human values to which they attach importance. We, the Judges and lawyers, therefore, should not import our own notions of life. We may not go in parallel with them. There may be a generation gap between us and the parties." 9. In case of Darshan Gupta (supra) the grant of divorce was again on the grounds of cruelty and/or unsound mind/mental disorder of wife. It was a case where a wife had suffered brain damage and severe cognitive deficiencies immediately after she was subjected to cesarean operation for delivery of child. According to the opinion of Medical Experts, by virtue of therapeutic and neuro-psychological rehabilitation measures, she had recovered to a considerable extent so much so that she had only mild to moderate cognitive deficiencies and moderate intelligence. The Experts opined that she had exhibited normal and adequate emotional responses and was able to discharge her matrimonial obligation. There was no evidence to show the wife’s alleged intemperate or aggressive behaviors, but such as shouting and screaming without provocation or a cause getting up at midnight or not allowing the husband to sleep etc. The Court held that the plea of divorce in such circumstances needed to be rejected. 9.1 The Apex Court held that if the petitioner himself or herself is guilty or at fault he or she would be disentitled to seek divorce. In the matter before the Apex Court the husband himself was found responsible for the faults which were made the basis. 9.1 The Apex Court held that if the petitioner himself or herself is guilty or at fault he or she would be disentitled to seek divorce. In the matter before the Apex Court the husband himself was found responsible for the faults which were made the basis. In the following paragraph, the Apex Court held thus: “46. Despite our aforesaid conclusions, it is necessary to examine the instant controversy from another point of view. As noticed hereinabove, it was the vehement contention of the learned counsel for the respondent wife, based on the pleadings filed by Radhika Gupta, as also, the evidence produced by her, that it was the husband Darshan Gupta alone, who was blameworthy of the medical condition of the respondent. It was submitted, that Darshan Gupta desires to encash on his own fault by seeking dissolution of marriage for a consequence of which he himself was blameworthy. The instant submission, though not canvassed in that manner, can be based on a legal premise. A perusal of the grounds on which divorce can be sought under Section 13(1) of the Hindu Marriage Act, 1955, would reveal that the same are grounds based on the "fault" of the party against whom dissolution of marriage is sought. In matrimonial jurisprudence, such provisions are founded on the "matrimonial offence theory" or the "fault theory". Under this jurisprudential principle, it is only on the ground of an opponent's fault, that a party may approach a court for seeking annulment of his/her matrimonial alliance. In other words, if either of the parties is guilty of committing a matrimonial offence, the aggrieved party alone is entitled to divorce. The party seeking divorce under the "matrimonial offence theory"/"fault theory" must be innocent. A party suffering "guilt" or "fault" disentitles himself/herself from consideration. Illustratively, desertion for a specified continuous period is one of the grounds for annulment of marriage. But the aforesaid ground for annulment is available only if the desertion is on account of the fault of the opposite party, and not fault of the party which has approached the court. Therefore, if a husband's act of cruelty compels a wife to leave her matrimonial home, whereupon, she remains away from the husband for the stipulated duration, it would not be open to a husband to seek dissolution of marriage on the ground of desertion. Therefore, if a husband's act of cruelty compels a wife to leave her matrimonial home, whereupon, she remains away from the husband for the stipulated duration, it would not be open to a husband to seek dissolution of marriage on the ground of desertion. The reason being that it is the husband himself who was at fault and not the wife. This is exactly what the respondent has contended. Her claim is that in actuality the appellant is making out a claim for a decree of divorce on the basis of allegations for which he himself is singularly responsible. On the said allegations, it is Darshan Gupta who deserves to be castigated. Therefore, he cannot be allowed to raise an accusing finger at the respondent on the basis of the said allegations, or to seek dissolution of marriage thereon.” 10. From all these decisions, which are sought to be relied upon by the appellant it can be concluded that the decree of divorce when is sought on the ground of cruelty and irretrievable breakdown of the marriage, not only there is need for breaking down with no hope of revival and insisting on the parties to live together would be absolutely an unjust approach on the part of the Court. It is a fundamental principle that if a party to a marriage has brought the relationship to a point of irretrievable breakdown, he obviously would be disentitled to any benefit or advantage because of such conduct of his. No one can be given any benefit of his own mistakes. Therefore, what is in each case to be considered by the Court is whether on the strength of the material adduced and from overall circumstances as to whether the parties seeking the severing of the ties on the basis of irretrievable breakdown was a contributor to the situation. He surely is debarred from seeking such benefit. His conduct surely must not furnish any cause for the other spouse to stay away from matrimonial home or to stay separately. 11. In the instant case, the specific allegations of cruelty with material particulars have been pleaded against the appellant-wife. 12. He surely is debarred from seeking such benefit. His conduct surely must not furnish any cause for the other spouse to stay away from matrimonial home or to stay separately. 11. In the instant case, the specific allegations of cruelty with material particulars have been pleaded against the appellant-wife. 12. What is necessary to be considered is that in the decision of Vishwanath Agrawal (supra), the Apex Court has held that the conduct and circumstances if make it graphically clear that the respondent-wife had humiliated him and caused mental cruelty by making wild allegations about his character and she had made an effort to prosecute him in criminal litigations which she had failed to prove. The feeling of deep anguish, disappointment, agony and frustration of the husband would be obvious. 13. In case of K.Shrinivas Rao (supra) also the Apex Court repeated this by saying that if unfounded indecent defamatory allegations are made or the complaints are filed, this would amount to causing mental cruelty to the other spouse. 14. If the decision of the Family Court is considered, the learned Presiding Officer framed the issues at Exhibit 43 which are as follow: “a. whether the petitioner proves that the Respondent has deserted him since three years preceding the filing of the petition? b. whether the petitioner proves that he has been treated with cruelty by the Respondent? c. Whether the Respondent proves that she has been deserted by the petitioner? d. Whether the respondent proves that petitioner has extra marital relation to another woman? e. Whether the petitioner is entitled to relief as claimed for? f. What order and decree?” 14.1 It appears that the respondent-husband has filed an affidavit in the examination in chief at Exhibit 46, which had led the Court to believe that the allegation of his having been treated with cruelty and the appellant having deserted the respondent is duly proved. 14.2 The Family Court has also taken note of the fact that the mother of the respondent-husband has been examined whereas the appellant-wife has not examined any witness except herself. Along with the depositions of the parties, the Family Court has also examined the aspect of cruelty, desertion and extra marital relations alleged by the appellant-wife of the respondent-husband. 14.2 The Family Court has also taken note of the fact that the mother of the respondent-husband has been examined whereas the appellant-wife has not examined any witness except herself. Along with the depositions of the parties, the Family Court has also examined the aspect of cruelty, desertion and extra marital relations alleged by the appellant-wife of the respondent-husband. It has also considered at length the cruelty in its proper perspective by dint of various judgments which are as follow: “[15] Cruelty plays an important ground in the divorce matter under the Hindu Law. What is cruelty is also required to be understood in its proper perspective by dint of various judgments. [i] The mental cruelty is one of the grounds for divorce under Hindu Marriage Act. By number of judgments, our higher courts have held that the cruelty means such type of conduct and behaviour of the spouse, which creates acute mental pain, agony and suffering as would not make possible for the parties to live with each other. It is a sustained course of abusive and humiliating treatment calculated to torture, it is discommode or render, miserable life of the spouse, thus it is unjustifiable conduct of one spouse actually affecting physical and mental health of other spouse. However, no straight-jacket formula can be fixed for the parameters of mental cruelty. The cruelty may be physical or mental. In 2007(4) SCC 511 Samar Ghosh vs. Jaya Ghosh, wherein, Hon'ble Supreme Court has illustratively and inclusively set out some instances of mental cruelty and in para-40 has referred the Black's Law Dictionary (8th Edition, 2004) giving the meaning of mental cruelty as under: "Mental Cruelty. As a ground for divorce, one spouse's course of conduct (not involving actual violence) that creates such anguish that it endangers the life, physical health, or mental health of the other spouse". As a ground for divorce, one spouse's course of conduct (not involving actual violence) that creates such anguish that it endangers the life, physical health, or mental health of the other spouse". [ii] While appreciating such grounds of mental cruelty, entire matrimonial relationship must be considered, and that rule is of special value when the cruelty consists not of violent acts but of injurious reproaches, complaints, accusations or taunts, therefore, dealing with such human issue, the court should bear in mind the physical and mental condition of the parties as well as their social status and should consider the impact of the personality and conduct of one spouse on the mind of the other, weighing of incidents and quarrels between the spouse from that point of view. The Hon'ble Supreme Court in the judgment reported in 1975(2) SCC 326 N.G.Dastane vs. S.Dastane, has held that "the inquiry, therefore, has to be whether the conduct charges as cruelty is of such a character as to cause in the mind of the petitioner a reasonable apprehension that it will be harmful or injurious to live with the respondent. To establish the legal cruelty, it is not necessary that physical violence should be used. In 1994(1) SCC 337 : V. Bhagat vs. V. Bhagat's (Mrs.), it is held that the conduct which inflicts upon the other party such mental pain and suffering and would make it not possible for that party to live with other, therefore, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot be reasonably be asked to put up with such conduct and continue to live with the other party. 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 a matter to be determined in each case having regard to the facts and circumstances of that case. What is cruelty in one case may not amount to cruelty in another case. It a matter to be determined in each case having regard to the facts and circumstances of that case. [iii] The Hon'ble Supreme Court in 2001(4) SCC 250 : Chetandass v. Kamladass, has observed that "matrimonial matters are matters of delicate human and emotional relationship. It demands mutual trust, regards, respect, love and affection with sufficient play for reasonable adjustments with the spouse. The institution of marriage occupies an important role to play in the society, in general. [iv] Unlike case of physical cruelty, mental cruelty is difficult to establish, by direct evidence. It is necessarily a matter of inference from the facts and circumstances of the case. A feeling of anguish, disappointment and frustration in one spouse caused by the conduct of the other can only be appreciated on assessing the attending facts and circumstances in which the two partners of matrimonial life have been living. Thus, it is very clear that the expression 'cruelty' has not been defined in the Act, however, it may be physical or mental, therefore, it can be said that it is wilful and unjustifiable conduct of such character as to cause danger to life, limb or health bodily or mental or COL NAGE as to give rise to reasonable apprehension of such a danger. [v] The court dealing with the petition of divorce on the ground of cruelty has to bear in mind the problems before it are those of human beings and the psychological changes in a spouse's conduct have to be borne in mind before disposing the petition for divorce. However, before the conduct can be called cruelty, it must touch a certain pitch of severity and it is for the court to weigh the gravity. Every matrimonial conduct, which may cause annoyance to the other may not amount to cruelty. While dealing with such problems, this court is obliged to seriously make endeavour to reconcile the parties, yet, if is found that break-down is irreparable then divorce fequires to be granted. Therefore, mere trivial irritations, disputes, 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. Therefore, mere trivial irritations, disputes, 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. Therefore, the marriage 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, whether the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty.” 14.3 Thereafter, considering the deposition of the petitioner, the Presiding Officer had taken notice of facts and conduct of the respondent for the past seven years, the wife had been quarreling and the mother is treated in cruel manner and this also agonized by the rude behavior and conduct of the appellant-wife, coupled with the fact that the false complaint under Section 498A with allied provisions of the Indian Penal Code resulted into the acquittal of respondent are the factum, which have weighed with the Court to hold that alleging a spouse for illicit relation, if is not proved, it amounts to cruelty. 14.4 The ground of desertion alleged by the respondent against the wife also has been scanned thoroughly. It had been noticed that the wife left the respondent since three years preceding the presentation of the petition in the year 2009 and thus, for more than eight years they have not enjoyed the conjugal right. She did not return after leaving the inlaw’s house and the marriage life has ended emotionally. No possibility of retrieval is noticed. 14.5 The Family Court also had examined the deposition of appellant-wife given at Exhibit 58 to note that she had alleged of the treatment meted out to her of cruelty. She had alleged of his extra marital relations with a lady teacher, who was serving with the respondent-husband. She was deserted, according to her, in the year 2008 and therefore filed an application under Section 498A of the Indian Penal Code. The appellant has denied the cruelty and desertion on her part. Threat to commit suicide is also denied. She had alleged of his extra marital relations with a lady teacher, who was serving with the respondent-husband. She was deserted, according to her, in the year 2008 and therefore filed an application under Section 498A of the Indian Penal Code. The appellant has denied the cruelty and desertion on her part. Threat to commit suicide is also denied. The Court found that her deposition does not inspire confidence in the minds of the Court and therefore it held that the appellant treated the respondent with cruelty and she has deserted the husband as rightly alleged by the petitioner. Accordingly, it allowed the petition with the cost and dissolved the marriage between the appellant and respondent. 15. Independently looking at the material which has been presented before this Court and thus also viewing some of the decisions which have been presented before this Court shall need to be considered. 15.1 In case of Malathi Ravi M.D (supra), the essential ingredients and elements of desertion under Section 13(1) (i-b) of the Act are succinctly considered by the Apex Court. It also has provided as to in what manner the inference of desertion can be drawn. The respondent-husband before the Apex Court was an associate professor in Government Medical College in Bangalore, who filed a petition in 2001 under Section 13(1)(i-b) of the Act seeking dissolution of marriage by way of divorce. It was averred that the marriage between the parties was solemnized on 23.11.1994 and they lived together for one and half year in the house of father of the husband, but the wife was non-cooperative, arrogant and her behavior towards the family members was unacceptable. A male child was born out of the said wedlock and she took the child and left the home and never came back for a period of three years. It was pleaded that there was a marital discord and total non-compatibility. She deserted and severing all ties, she also left the child into the custody of her parents and pursued her Post Graduation Course in Medical College. All efforts of the respondent-husband to bring her back were an exercise in futility in as much as the letters written by him also were not replied to and despite this non responsive attitude of the wife, he went to the house of in-laws with a hope to reconcile and to lead a normal married life. All efforts of the respondent-husband to bring her back were an exercise in futility in as much as the letters written by him also were not replied to and despite this non responsive attitude of the wife, he went to the house of in-laws with a hope to reconcile and to lead a normal married life. However, he was ill treated and was thrown out. According to him, a set-forth in the petition the conduct of the wife caused immense mental hurt and trauma and he suffered unbearable mental agony when the family members of his wife abused and ill treated him. All his solicitations and beseechments through letters to have normalcy went in vain which compelled him to issue a notice through his counsel, which was also not responded to and the petition was filed for judicial separation and eventually sought dissolution of marriage on the ground of desertion as the wife had deliberately withdrawn from his society. 15.2 Affirming the decree for divorce passed by the High Court and disposing of the appeal, the Apex Court held that two essential conditions must be there for the aspect of desertion is concerned: (i) the factum of separation and (ii) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly, two elements are essential so far as the deserted spouse is concerned: (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention. For holding desertion as proved the inference may be drawn from certain facts which may not in another case be capable of leading to the same inference. Thus essentially what needs to be viewed are the facts as to the purpose for which is revealed by those acts or by conduct and expression of intention, both anterior and subsequent to the actual acts of separation. 15.3 The petition was filed under Section 13(1)(i-b) of the Act and was presented in the year 2001, the husband had during the cross examination admitted that he had gone to Gulberg in May 1999 for two days. Therefore, the Family Court had opined that there was no sufficient cause to come to a definite conclusion that the wife deserted him with an intention to bring the matrimonial relationship to an end, and further the period of two years was not completed. Therefore, the Family Court had opined that there was no sufficient cause to come to a definite conclusion that the wife deserted him with an intention to bring the matrimonial relationship to an end, and further the period of two years was not completed. 15.4 The Apex Court held that the allegation of desertion as enshrined under Section 13(1)(i-b) of the Act had not been established. The finding on that score as recorded by the Principal Judge had been confirmed. However, on a perusal of petition, there were assertion of ill-treatment and mental agony suffered by the husband. Having not accepted the ground of desertion, the Court considered whether the issue of mental cruelty deserves to be accepted in the factual matrix in absence of specific prayer in the relief clause and further whether the situation had become such that it can be held that the existing factual scenario would not be proper to keep the marriage ties alive. The Court deemed it appropriate to put to rest the issue on the strength of the subsequent facts which were incontrovertible. 15.5 It is appropriate to reproduce the relevant two paragraphs: “42. For the present, we shall restrict our delineation to the issue whether the aforesaid acts would constitute mental cruelty. We have already referred to few authorities to indicate what the concept of mental cruelty means. Mental cruelty and its effect cannot be stated with arithmetical exactitude. It varies from individual to individual, from society to society and also depends on the status of the persons. What would be mental cruelty in the life of two individuals belonging to a particular strata of the society may not amount to mental cruelty in respect of another couple belonging to a different stratum of society. The agonised feeling or for that matter a sense of disappointment can take place by certain acts causing a grievous dent at the mental level. The inference has to be drawn from the attending circumstances. 44. From this kind of attitude and treatment it can be inferred that the husband has been treated with mental cruelty and definitely he has faced ignominy being an Associate Professor in a Government Medical College. When one enjoys social status working in a government hospital, this humiliation affects the reputation. That apart, it can be well imagined the slight he might be facing. When one enjoys social status working in a government hospital, this humiliation affects the reputation. That apart, it can be well imagined the slight he might be facing. In fact, the chain of events might have compelled him to go through the whole gamut of emotions. It certainly must have hurt his self-respect and human sensibility. The sanguine concept of marriage presumably has become illusory and it would not be inapposite to say that the wife has shown anaemic emotional disposition to the husband. Therefore, the decree of divorce granted by the High Court deserves to be affirmed singularly on the ground of mental cruelty.” 16. We have taken note of the fact that the criminal complaint under Section 498A of the Indian Penal Code was preferred where the appellant-wife has alleged against the respondent-husband of having extra marital relations with his colleague, who too was a teacher. This resulted into the acquittal of his and his mother and yet she has also preferred another criminal complaint under the Domestic Violence Act, which also ended in giving a clean chit to the husband. What can be noticed is that the appellant-wife has insisted on such allegations against the respondent-husband and yet has insisted on restitution of conjugal rights. She has also chosen to go to the matrimonial home and has shown such a conduct that according to the respondent-husband, it had made it impossible for them to live together. Her consistent efforts to prove the allegations of immorality or extra marital affairs when have failed miserably, she cannot be permitted to continue with the very allegations without any independent proof of such aspects. 16.1 According to the Apex Court, this would also amount to cruelty. Her very basis of allegations is that the husband had contributed in having alleged illicit relationship with his colleague. This has not been founded on any valid proof. The mere allegations on the part of the appellant-wife without any basis and in her having completely failed to have proved the very factum in two criminal litigations, if have led the Court to conclude that on the aspect of cruelty the husband has succeeded in establishing his case, the same warrants no interference. 17. The mere allegations on the part of the appellant-wife without any basis and in her having completely failed to have proved the very factum in two criminal litigations, if have led the Court to conclude that on the aspect of cruelty the husband has succeeded in establishing his case, the same warrants no interference. 17. So far as the request of additional evidence is concerned Order XLI Rule 27 of the Code of Civil Procedure, 1908 requires reproduction: “Order XLI Rule 27:—(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if— (a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or [(aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or] (b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced or witness to be examined. (2) Whenever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.” 17.1 The provision makes it quite clear that for the party to seek to produce additional evidence, it is needed to establish that notwithstanding the exercise of diligence such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed. 18. Here is not the case where the Court requires any document to be produced or any witness to be examined to enable it to pronounce the judgment or for any other substantial course, the Court is requiring to allow such evidence. The Appellate Court is required to record the reason for its admission before it allows such evidence to be produced. The Appellate Court is required to record the reason for its admission before it allows such evidence to be produced. 18.1 Here is not the case that the Family Court had refused to admit the evidence which ought to have been admitted, nor is it the case where the appellant is in a position to establish that notwithstanding the exercise of due diligence such evidence was not within her knowledge or could not after exercise of due diligence be produced at the time when the decree appealed against was passed. It is the additional evidence of the sisterin- law, who is a wife of the brother of the respondent-husband that is sought to be produced. There are allegations on the part of respondent-husband that by exercising the undue influence on her and by giving her threat or luring him to be out of the Domestic Violence Petition that she had obtained the support of her sister-in-law. 18.2 The Court will choose not to go into this aspect. However, the request that Indiraben was not coming to the Court on account of the threat appears to be far from truth as the appellant could have surely approached the Court which would have granted the protection. With regard to the affidavit of Indiraben being in English, who does not follow that language has also not curried favour with this Court. This appears to be an afterthought after the husband has succeeded in getting the decree of divorce. The influence of the real sister of the appellant-wife, who is a divorcee and is staying with her at matrimonial home of the appellant-wife also is not the reason for the Court to be influenced. 18.3 However, it is to be noted that she has left no stone unturned by continuing to stay at matrimonial home. The situation is created is of such a nature where the respondent-husband and his old mother have chosen to move away. She has also through her son sought injunction by asking for the share in the ancestral property of the respondent. The two houses which the respondent-husband’s ancestors had, one of them is right now in the possession of the appellant-wife and one is with the brother of the respondent-husband. This also speaks a lot about the conduct of the appellant-wife. She has also through her son sought injunction by asking for the share in the ancestral property of the respondent. The two houses which the respondent-husband’s ancestors had, one of them is right now in the possession of the appellant-wife and one is with the brother of the respondent-husband. This also speaks a lot about the conduct of the appellant-wife. Although she would be entitled to a place of abode with her son, the fact remains that the respondent-husband having been driven out, the time where largely the role is reversed, no further order of any permanent alimony is desirable. She herself is a teacher and is drawing salary of around Rs.70,000/- per month and the husband is paying the boy, who was young and the maintenance which was being paid to the tune of around Rs.18,500/-. 19. The reasonings given by the trial Court and those supplemented by this Court in this First Appeal would not warrant any interference in the final conclusion of grant of decree by dissolution of marriage. 20. The appeal is accordingly dismissed.