JUDGMENT Shree Chandrashekhar, J. The husband who lost Original Suit No. 267 of 2016 for divorce is the appellant before us, challenging the judgment dated 24th September 2019 and the decree dated 30th September 2019 prepared thereon. 2. Original Suit No. 267 of 2016 was instituted for a decree of divorce by dissolution of marriage under sections 13(1)(i-a) and 13(1)(iii) of the Hindu Marriage Act, 1955. The marriage of the appellant was solemnized with Shilpa Devi on 27th February 2015 at the house of maternal uncle (Fufa) of Shilpa Devi at Bara Bazar, district-Purulia in the State of West Bengal. After the marriage Shilpa Devi came to her matrimonial home at Chas, Bokaro and after a brief stay there she left her matrimonial home on 12th June 2015. The appellant made several allegations against his wife who according to him on her own left his company on 12th June 2015 and did not come back thereafter to join him and discharge her matrimonial obligations. The appellant pleaded that his wife was a lady of poor intellect; she would not understand the responsibility of matrimony; she was not interested in discharging her matrimonial obligations and; she was not even interested in living in his company for enjoying the conjugal life. The appellant further pleaded that he took his wife to B.G.H., Bokaro for treatment of her mental illness and gave Rs.80,000/-to the maternal uncle (Fufa) of his wife Shankar Baral for better treatment of his wife. The respondent-wife contested the suit by filing a written statement controverting the allegations by her husband about her behaviour, causing cruelty and of not being interested to discharge her matrimonial obligations. She took a stand that on 12th June 2015 she was forcibly ousted from her matrimonial home and thereafter her husband did not take care to bring her back at Bokaro. She would further allege that she was compelled to lodge a criminal case vide Bara Bazar PS Case No. 1 of 2016 under sections 498A/506/34 of the Indian Penal Code and sections 3/4 of the Dowry Prohibition Act as her husband and his family members were harassing her in connection to demand of dowry. 3. The following issues were framed by the Family Court on the basis of the pleadings of the parties: (i) Whether the suit is maintainable in its present form? 3. The following issues were framed by the Family Court on the basis of the pleadings of the parties: (i) Whether the suit is maintainable in its present form? (ii) Whether the petitioner has valid cause of action for filing the suit? (iii) Whether the respondent is suffering from mental disorder of such a kind and to such an extent prior to solemnization of her marriage that she cannot reasonably be expected to live with the petitioner? (iv) Whether the petitioner was subjected to cruelty by the respondent by filing a false case/alleging Demand of Dowry against the petitioner? (v) Whether the petitioner is entitled to get the relief as prayed for? 4. The appellant produced five witnesses to establish that his wife suffered from mental illness and she refused to live in his company and filed a false criminal case which caused mental torture and agony amounting to cruelty. Shilpa Devi also produced five witnesses to resist the divorce petition filed by her husband. Except a copy of the First Information Report, the appellant did not produce any documentary evidence whereas the wife laid in evidence her educational certificates disclosing that she is a Graduate. 5. The issue no.(iii) which can be read as “whether the respondent is suffering from mental disorder of such a kind and to such an extent prior to solemnization of her marriage that the appellant cannot reasonably be expected to live with his wife” and; issue no.(iv) “whether the petitioner was subjected to cruelty by the respondent by filing a false case/alleging demand of dowry against the petitioner” were taken up together for determination and both were answered against the appellant. 6. Original Suit No. 267 of 2016 was dismissed on contest against which the husband has preferred the present First Appeal under section 19(1) of the Family Courts Act, 1984. 7. Under section 7 of the Family Courts Act, the Family Court shall have and exercise all the jurisdiction exercisable by any District Court or any Sub-ordinate Civil Court under any law for the time being in force in respect of suits and proceedings of the nature which are described in the explanation to section 7(1). 7. Under section 7 of the Family Courts Act, the Family Court shall have and exercise all the jurisdiction exercisable by any District Court or any Sub-ordinate Civil Court under any law for the time being in force in respect of suits and proceedings of the nature which are described in the explanation to section 7(1). Sub-section (1) to section 19 of the Family Courts Act provides that an appeal shall lie from every judgment or order not being an interlocutory order of a Family Court to the High Court “both on facts and on law”. Therefore, section 19 of the Family Courts Act is akin to section 96 of the Code of Civil Procedure the scope of which has been dealt with by the Hon'ble Supreme Court in a catena of judgments. The law is well settled that the High Court in a First Appeal can examine every question of law and fact which arises in the facts of the case and has powers to affirm, reverse or modify the judgment under challenge. In “Jagdish Singh v. Madhuri Devi” (2008) 10 SCC 497 the Hon'ble Supreme Court observed that it is lawful for the High Court acting as the First Appellate Court to enter into not only questions of law but questions of fact as well and the appellate Court therefore can reappraise, reappreciate and review the entire evidence and can come to its own conclusion. 8. The appellant came to the witness box and deposed as PW2 that he could observe that his wife was not behaving properly rather her acts were childish as she was suffering from mental illness. He got her treated at B.G.H., Bokaro and provided financial support to her maternal uncle (Fufa) for her treatment. On the other hand, Shilpa Devi produced her educational certificates to show that any person of unsound mind could not have completed graduation after the marriage. 9. Section 13(1)(iii) of the Hindu Marriage Act provides that if a party to the marriage has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that one spouse cannot reasonably be expected to live with the other spouse or that one is suffering from such unsoundness of mind which is incurable. 9. Section 13(1)(iii) of the Hindu Marriage Act provides that if a party to the marriage has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that one spouse cannot reasonably be expected to live with the other spouse or that one is suffering from such unsoundness of mind which is incurable. The so-called childish behaviour of the wife or even her indifferent attitude towards matrimonial obligations are not reflections of such mental illness which would entitle the appellant to seek dissolution of marriage. We would agree with the Family Court that the appellant failed to establish that Shilpa Devi was suffering from any incurable unsoundness of mind or was suffering from such mental disorder on account of which it was not possible for her husband to live together with her. We may, however, indicate that it is yet to be examined considering the entire materials on record, in the context of behaviour of Shilpa Devi, whether the appellant has been able to establish that the various acts of his wife caused mental cruelty to him. 10. Mr. Mukesh Kumar, the learned counsel for the appellant would refer to the decision in “Vidhya Viswanathan v. Kartik Balakrishnan” (2014) 15 SCC 21 to persuade us to take a view that not only the act of refusal to cohabit with the husband but long duration of staying away from the husband would also cause mental agony and torture which would definitely come within the purview of the expression “cruelty” as envisaged under section 13(1) (i-a) of the Hindu Marriage Act. 11. The expression “cruelty” is not defined in the Hindu Marriage Act or any other Statute but the issue has been under intense discussion before the Courts in India – one of the earliest cases was “N.G. Dastane (Dr) v. S. Dastane” (1975) 2 SCC 326 . The law on the subject has consistently developed through the interpretation of the expression “cruelty” by the Courts. 12. In “K. Srinivas Rao v. D.A. Deepa” (2013) 5 SCC 226 the Hon'ble Supreme Court dealt with the recent trends and causes for dissatisfaction in matrimony and observed that even filing or making false statements against the husband which may cause harm to him would amount to cruelty. 13. In “K. Srinivas Rao” the Hon’ble Supreme Court has observed as under: “16. 13. In “K. Srinivas Rao” the Hon’ble Supreme Court has observed as under: “16. Thus, to the instances illustrative of mental cruelty noted in Samar Ghosh, we could add a few more. 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.” 14. Some of the illustrations what would amount to cruelty have been discussed in paragraph no.101 of “Samar Ghosh v. Jaya Ghosh” (2007) 4 SCC 511 . 15. Paragraph no.101 of the reported judgment is extracted below: “101. No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour 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 behaviour 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. (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 behaviour of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty. (vii) Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty. (viii) The conduct must be much more than jealousy, selfishness, possessiveness, which causes unhappiness and dissatisfaction and emotional upset may not be a ground for grant of divorce on the ground of mental cruelty. (ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day-to-day life would not be adequate for grant of divorce on the ground of mental cruelty. (x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour 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 sterilisation without medical reasons and without the consent or knowledge of his wife and similarly, if the wife undergoes vasectomy or abortion without medical reason or without the consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty. (xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty. (xiii) Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty. (xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty.” 16. As PW2, the appellant stated that on 12th June 2015 his wife left his company and thereafter did not join him in her matrimonial home at Chas, Bokaro. He has spoken about a criminal case lodged by his wife in connection to which he had to apply for bail and his stand that his wife left her matrimonial home on 12th June 2015 has not been controverted by the respondent-wife. Furthermore, her defence that she was ousted from her matrimonial home is contradicted by her own statement in paragraph no.32 of her cross-examination wherein she admitted that her maternal brother (Fufera Bhai) came at Chas and took her to Maike (Bara Bazar). In paragraph no. 39 of the cross-examination, she has further stated that she did not lodge any criminal case against her husband or his family members. Mr. Rajesh Kumar, the learned counsel for the respondent would try to explain the aforesaid statement by the respondent arguing that the respondent intended to say that except Bara Bazar PS Case No. 1 of 2016 she did not lodge any other case. Though this is the difficulty faced by the appellate/revisional Courts as cross-examination of the witnesses is not recorded in question and answer form, but, in the circumstances of the case, it is difficult to take a view different from what is recorded in paragraph no. 39 of the cross-examination of the respondent and it appears that the criminal case against the appellant was not lodged by her but by her relatives to harass and humiliate the appellant to come to their terms. No information is available regarding outcome of the criminal case filed against the appellant and, therefore, it may not be proper to say anything on this issue. But the fact remains that the respondent is staying away from the company of the appellant since 12th June 2015. In paragraph no.25 of the cross-examination, the appellant stated that after his wife left for her parents' place he visited her 2-3 times. But the fact remains that the respondent is staying away from the company of the appellant since 12th June 2015. In paragraph no.25 of the cross-examination, the appellant stated that after his wife left for her parents' place he visited her 2-3 times. This shows willingness on the part of the appellant to bring his wife back in the matrimonial home. However, the respondent could not produce any evidence to suggest that she was willing to discharge her matrimonial obligations. Therefore, it can be reasonably inferred that the respondent intentionally deprived the appellant physical intimate union with her and thereby caused mental cruelty to him, as it must have been very agonising and frustrating for the appellant who inspite of being married was not able to establish physical relations with his wife. The other witnesses examined by both parties did not tender evidence of definite nature and just tended to support one or the other party and, therefore, we are not discussing their evidence in any detail. 17. The test in a civil trial is preponderance of probability which would imply a positive element about possibility of existence of a fact. On weighing evidence of PW2 and RW5, we are of the opinion that the respondent stayed away from the company of her husband on her own and she failed to discharge her matrimonial obligations and denied her husband physical union which is an essential and integral part of any marriage. On a consideration of the materials on record, we are of the opinion that the Family Court did not appreciate the evidence laid by both the parties in the correct prospective and its decision is influenced by non-consideration of the material evidence brought on record by the husband and what would appear in the cross-examination of the wife. 18. In the present proceeding before us, the respondent filed affidavit dated 1st April 2022 stating that her relationship with her husband is not good and she has realized that no useful purpose would be served by mud-slinging, but, at the same time, she states that she is ready to live in the company of her husband if she is maintained well with full dignity. Finally, she says that her husband has “handsome income” and she can part ways with her husband if he pays her Rs.15 Lakhs as permanent alimony. 19. Finally, she says that her husband has “handsome income” and she can part ways with her husband if he pays her Rs.15 Lakhs as permanent alimony. 19. It is well settled that rights of the parties are crystallized on the day when the suit is instituted and notwithstanding Rule 27 of Order XLI of the Code of Civil Procedure providing that no party shall be permitted to lead additional evidence, there can be circumstances in which subsequent events can be considered by the appellate Court provided it is necessary for arriving at a just decision in the case [refer, “Gaiv Dinshaw Irani v. Tehmtan Irani” (2014) 8 SCC 294 ]. 20. The appellant has filed an affidavit of disclosure of assets and liabilities as indicated in Enclosure-I of the judgment in “Rajnesh v. Neha & Anr.” (2021) 2 SCC 324 stating that he is not filing any income tax return; there is no other dependent family member; he is not suffering from any life threatening disease; he has no children and; he has no house or rental income. The respondent also did not claim that except income from fruit vending business her husband has any other source of income. The wife does not disclose the approximate income of her husband and simply says that her husband has “handsome income” whereas the appellant has filed bank statements of Indian Overseas Bank, Chas, B.S. City Branch for the period between 1st April 2019 to 18th April 2022 vide Annexure-1 to the affidavit dated 19th April 2022. 21. There can be cruelty without any physical violence. In "Jem v. Jem" (1937) 34 Haw 312, it has been observed that, cruel treatment not amounting to physical cruelty is mental cruelty. The mental cruelty may cause more serious injury than the physical harm and if such conduct of the spouse is proved or admitted which amounts to cruelty then the impact or the injurious effect on the other spouse need not be deeply enquired into. It is stated that the mental cruelty is a state of mind which may be in the feeling of deep anguish, disappointment or frustration in one spouse caused by the conduct of other. In “K. Srinivas Rao”, the law as regards mental cruelty discussed in “Samar Ghosh” has been expanded by adding few more illustrations. It is stated that the mental cruelty is a state of mind which may be in the feeling of deep anguish, disappointment or frustration in one spouse caused by the conduct of other. In “K. Srinivas Rao”, the law as regards mental cruelty discussed in “Samar Ghosh” has been expanded by adding few more illustrations. The further developments in law on the subject provide sufficient indications that mental cruelty as envisaged under section 13(1)(i-a) of the Hindu Marriage Act may have different manifestations and one such instance would be to pressurize the husband to pay alimony beyond his capacity. 22. We are of the opinion that the wife is trying to strike a bargain for divorce which no Court of law shall permit. Her statement made in paragraph no.13 of the affidavit dated 1st April 2022 that she wants Rs.15 Lakhs for agreeing for divorce would cause further mental agony and torture to the appellant in as much as his income which is reflected in the affidavit filed by him is too meager to afford Rs.15 Lakhs for divorce. 23. In the above circumstances, the judgment dated 24th September 2019 and the decree dated 30th September 2019 passed in Original Suit No. 267 of 2016 are set aside. The suit is decreed on contest in favor of the appellant. 24. Section 25 of the Hindu Marriage Act provides that the Court at the time of passing any decree or at any time subsequent thereto may order that the spouse shall pay for maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the other spouse. At the same time, section 25 provides that the order for maintenance and support of the other spouse shall be made having regard to the income and other property of both the parties, conduct of the parties and other circumstances of the case. 25. The appellant is a fruit vendor and as would appear from the evidence of the parties the respondent was brought up and is living with her maternal uncle (Fufa). 26. In course of the arguments, Mr. Mukesh Kumar, the learned counsel for the appellant states that to buy peace the appellant is intending to take loan to pay Rs. 5 Lakhs to pay permanent alimony to his wife. 27. 26. In course of the arguments, Mr. Mukesh Kumar, the learned counsel for the appellant states that to buy peace the appellant is intending to take loan to pay Rs. 5 Lakhs to pay permanent alimony to his wife. 27. In our opinion, it would be just and proper to award permanent alimony to the tune of Rs.7 Lakhs to be paid to the respondent in three installments. The first installment of Rs.2.5 Lakhs shall be paid by the end of June 2022, the second installment of Rs 2.5 Lakhs shall be paid in the end of July 2022 and third installment of Rs.2 Lakhs shall be paid in end of August 2022. On failure of the appellant to pay the amount of alimony or committing any default in payment, the same shall be recovered in accordance with law. 28. First Appeal No. 11 of 2020 is allowed and, consequently, Original Suit No. 267 of 2016 is decreed in the above terms.