JUDGMENT : MAULIK J.SHELAT, J. 1. The present appeal is filed under Section 19 of the Family Courts Act, 1984 (hereinafter referred to as “the Act, 1984”) against the Judgement and Decree dated 05.08.2017 passed by the learned Principal Judge, Family Court, Anand in Family Suit No.306 of 2015. 2. The parties are referred to as per their original positions before the Family Court. Brief Facts of the case 3. The short facts of the case, which are necessary for the adjudication of the present appeal, are as follows:- 3.1 The Plaintiff happens to be the husband of the defendant, whose marriage was solemnized with the defendant on 28.02.2013 at Anand. It is a case of the plaintiff that the defendant was residing in Australia at the time of marriage, so she returned to Australia on 14.03.2023 after their honeymoon. 3.2 It has been further alleged that they were in touch over the phone and internet and in the meantime, plaintiff had started preparing for IELTS examination to get a Visa/permanent residency of Australia. 3.3 It has been further alleged by plaintiff that somewhere in August, 2013, defendant – wife came back to India for sometime but during her short visit, disputes erupted between the spouses on simple issues. The defendant returned to Australia in September, 2013 and then after, she went to London in February, 2014 without informing the plaintiff and after returning India from London, she has not contacted the plaintiff. 3.4 It has been further alleged by the plaintiff that when he tried to contact the defendant at Anand on her return journey from London to India, defendant had pressurized him to obtain permanent residency of Australia at any cost, failing which, she would not live together. 3.5 According to the plaintiff, after June, 2014, they have never lived as husband and wife under one roof. The plaintiff has further alleged that without any reasonable excuse, the defendant – wife has deserted him and noncohabitation between them throughout this period amounts to mental cruelty to him. 3.6 It is the case of the plaintiff that when defendant had completely stopped talking with plaintiff, he had no option but to file divorce petition before Family Court under Section 13(a)(i)(ii) of Hindu Marriage Act, 1955 (hereinafter referred to as ‘the Act, 1955”), and thereby he had filed Family Suit No.306 of 2015 against the defendant wife on 30.11.2015. 3.6 It is the case of the plaintiff that when defendant had completely stopped talking with plaintiff, he had no option but to file divorce petition before Family Court under Section 13(a)(i)(ii) of Hindu Marriage Act, 1955 (hereinafter referred to as ‘the Act, 1955”), and thereby he had filed Family Suit No.306 of 2015 against the defendant wife on 30.11.2015. 3.7 The Defendant had appeared in the suit through her power of attorney i.e. her father and denied all the allegations leveled against her. She had come out with a case that the plaintiff had married her with an intention to settle in Australia. Nonetheless, no documentary evidence were submitted by her in support of her case. 3.8 The plaintiff has submitted documentary evidence and so also examined himself at Exh.21. So far as the defendant is concerned, she has never appeared in person before the Family Court either for her oral evidence/ crossexamination or for any conciliation to settle dispute with plaintiff. 3.9 After appreciating the evidence and hearing the parties, the Family Court vide its impugned judgment and decree has dismissed the suit of plaintiff – husband by neither believing that husband is subjected to mental cruelty by the wife nor a case of desertion is made out by husband. 4. Being aggrieved and dissatisfied with the judgment and decree, due to non-granting of the relief in favour of the plaintiff, thereby, not being granted the prayer of dissolution of marriage, the present appeal is filed at the instance of plaintiff to get decree of divorce. SUBMISSIONS OF THE PLAINTIFF – HUSBAND – APPELLANT 5. Learned advocate appearing for the appellant, Mr. Shashvata U Shukla, has vehemently submitted that the Family Court has erroneously dismissed the suit of the plaintiff, who has suffered a lot by the conduct of the defendant – wife, which is nothing but mental cruelty inflicted upon husband at the instance of wife. 5.1 Learned advocate for the appellant would further submit that since around June, 2014, there is no relationship and cohabitation between the plaintiff and defendant, which is in fact not in dispute as defendant has not refuted such fact, which were clearly stated in Para 4 of the plaint as well as para 9 of his oral evidence at Exh.21, while filing her written statement and cross-examination of the plaintiff. He would further submit that since last more than 10 years, there is no cohabitation between couple and it is evident from the record and the conduct of defendant that there is a complete breakdown of all meaningful bond. He submitted that her unwillingness to join her matrimonial house at Anand is nothing but cruelty as defined under Section 13(1) (ia) of the Act, 1955. 5.2 Mr. Shukla would further submit that the defendant had deserted the plaintiff and never fulfilled her matrimonial obligation without any reasonable excuse. He submitted that they are considering various decisions of Hon’ble Supreme Court of India, the plaintiff has proved desertion as claimed in his suit. 5.3 Mr. Shukla would further submit that Family Court has completely gone into a wrong direction when it has been observed that the plaintiff has not produced any documentary evidence to substantiate his claim to prove mental cruelty as well as desertion. He would submit that facts, are so eloquent and speak for itself, that it is the wife, who has withdrawn herself from the society of husband and never tried to cohabit with husband at her matrimonial home. He would submit that there is no contrary evidence led by defendant to substantiate her claim made in the written statement, albeit, filed through her power of attorney, who never came for oral evidence. According to the learned advocate for the plaintiff, there is no evidentiary value attached to the written statement. 5.4 Lastly, he would submit that it is by now well settled position of law that proceedings conducted before the Family Court touching matrimonial dispute requires to be proceeded on the principle of preponderance of probability. To buttress his argument, he has placed reliance upon a recent decision of Division Bench of this Court dated 22.11.2024 passed in Regular First Appeal No. 3862 of 2024. He would request this Court to allow the present appeal and accept the prayers of plaintiff made in his suit. SUBMISSIONS OF RESPONDENT 6. Per contra, learned advocate Mr. Mrudul M Barot, appearing for the defendant would submit that the plaintiff has failed to prove his case beyond reasonable doubt and there is no error committed by Family Court while dismissing the suit. SUBMISSIONS OF RESPONDENT 6. Per contra, learned advocate Mr. Mrudul M Barot, appearing for the defendant would submit that the plaintiff has failed to prove his case beyond reasonable doubt and there is no error committed by Family Court while dismissing the suit. 6.1 Mr.Barot would further submit that burden of proof to prove the allegation made in the suit was upon the plaintiff – appellant herein, which was never discharged by him during course of trial before the Family Court, which ultimately resulted into dismissal of his suit. 6.2 Mr.Barot would further submit that defendant has been cheated by plaintiff as since inception, it was the intention of plaintiff to settle himself at Australia and due to such reason, he got married with defendant. He would further submit that plaintiff was unable to get permanent residency/ Visa of Australia for which he cannot blame his wife. According to learned advocate for the defendant, the plaintiff has not proved his case and so, the plaintiff is not entitled to get any relief as prayed for in his application. Hence, he would request this Court to dismiss the present appeal. 7. We have heard the learned advocates for the respective parties and have gone through the oral and documentary evidence on record. No other submissions are made. Points for consideration 8. The following points require to be determined by this Court:- 1. Whether in the facts and circumstances of the case, the Family Court has committed any error while dismissing the suit filed by appellant? 2. Whether in the facts and circumstances of the case, the appellant-plaintiff is entitled to get relief as prayed in the suit? Appreciation and findings of the Court 9. At the outset, we would like to observe that the defendant - wife is not residing with plaintiff- husband since 2014 and as we have been told by the learned advocate for the respective parties that currently also, couple is not living together as defendant is not in India. So, it has remained undisputed during the course of trial as well as during pendency of the appeal that there is no cohabitation between plaintiff and defendant since 2014 till date. 10. So, it has remained undisputed during the course of trial as well as during pendency of the appeal that there is no cohabitation between plaintiff and defendant since 2014 till date. 10. Now, adverting to the facts of the case, which were pleaded before Family Court and the evidence led during course of trial, it remained undisputed that after solemnization of marriage on 28.02.2013, defendant went back to Australia on 14.03.2013 as she was living in Australia prior to marriage. It further appears from the record that plaintiff and defendant have hardly lived together as the defendant is staying at Australia and the plaintiff was unable to secure permanent residency and / or visa of Australia. Thereafter, somewhere around June, 2014, dispute started between them due to non-securing visa of the plaintiff. The defendant, from her conduct, has clearly shown her intention not to come back to India and fulfill her matrimonial obligation by living with plaintiff, which ultimately resulted into filing of suit by plaintiff seeking divorce. 11. It is a specific case of plaintiff in his suit as well as in his oral evidence so stated in para 4 and para 9 respectively that without any reasonable excuse, defendant has deserted the plaintiff, which has resulted into mental cruelty to plaintiff – husband. It has been so stated in the oral evidence of plaintiff that due to such conduct of the defendant – wife, he is continuously facing mental torture/cruelty. The plaintiff was cross-examined by the lawyer of defendant engaged by her power of attorney but we have observed that such part of his pleading / oral evidence, is not questioned by defendant at given point of time either in her written statement or cross-examination of plaintiff respectively. 12. It is also required to be observed that defendant though appeared and filed her written statement through her power of attorney holder i.e., father of defendant, she did not remain present for her oral evidence and crossexamination. According to this Court, when the defendant has not stepped into witness box to prove her allegation levelled against plaintiff then there is no evidentiary value attached to her written statement, which requires to be ignored in absence of her oral evidence. 13. It is true that burden of proof was upon the plaintiff to prove his case and he cannot fall back upon the weakness of defendant. 13. It is true that burden of proof was upon the plaintiff to prove his case and he cannot fall back upon the weakness of defendant. At the same time, the Family Court could not have ignored the essential element of object and reason of the Family Courts Act, 1984, that a dispute concerning a family ought not to be adjudicated like ordinary civil proceedings and as per settled principle of law as laid down by Hon’ble Supreme Court of India in its various decisions that facts so claimed in the Family Suit requires to be proved on the principle of preponderance of probability. 14. At this state, we would like to refer to decision relied upon by the learned advocate for the plaintiff – appellant passed by this Court in First Appeal No.3862 of 2024, wherein, after discussing the objects and reasons of 1984 Act, as well as various decisions of Hon’ble Supreme Court of India, touching the issue at hand, this Court ultimately, observed as under:- “29.1 The Family Court must keep in mind the Object and Reasons whereby the Family Court Act, 1984 was brought by the Parliament. 29.2 The Family dispute of any kind, which is brought before Family Court, would not be considered as an adversarial litigation like any other civil or commercial dispute. The Family Court has to deal with it in a more sensitive and humane manner. 29.3 It is the duty of the Family Court to get rid of normal rule of procedure set out for civil litigation rather its approach is more of a conciliator first then adjudicator. 29.4 At the cost of repetition, we would like to state that it always must be an endeavour to achieve the object of the Act, 1984 rather frustrate it by unnecessary creating lengthy procedure like civil trial. Albeit, the evidence, which is prohibited in law, should not form basis of final opinion. 29.5 The Family Court must be sensitive towards issue of marriage, child custody and maintenance and requires different approach while dealing with family issues, which touches life of the parties. It always try to avoid mechanical, myopic and hyper technical approach towards the issue germane in the suit and always act for betterment and welfare of victim of family dispute to sub-serve the object of Act, 1984. It always try to avoid mechanical, myopic and hyper technical approach towards the issue germane in the suit and always act for betterment and welfare of victim of family dispute to sub-serve the object of Act, 1984. 29.6 The burden of proof lies on the shoulder of the plaintiff, who is seeking divorce, but such a degree of proof is not beyond a reasonable doubt but should be judged on the principle of preponderance of probability. 29.7 It should keep in mind that what is cruelty for a woman in a given case may not be cruelty for a man, and a relatively more elastic and broad approach is required when a Family Court examines a case in which a wife seeks divorce. What is found by us is that the Family Court by merely reproducing the case law take a decision without really appreciating the facts of each case on its own merits. 29.8 When in a given case, the Family Court is granting decree of divorce then it should consider the issue of permanent alimony of spouse who is considered weak/poor not in a position to maintain herself/himself and pass appropriate order of permanent alimony in favour of such a party and also, where there is/are child/children out of such a wedlock, the alimony has to be worked out accordingly.” 15. We would further like to place reliance upon a decision of Hon’ble Supreme Court of India in the case of Rakesh Raman vs. Smt.Kavita, reported in AIR 2023 SC 2144 , wherein the Hon’ble Supreme Court has held as under:- 16. Matrimonial cases before the Courts pose a different challenge, quite unlike any other, as we are dealing with human relationships with its bundle of emotions, with all its faults and frailties. It is not possible in every case to pin point to an act of “cruelty” or blameworthy conduct of the spouse. The nature of relationship, the general behaviour of the parties towards each other, or long separation between the two are relevant factors which a Court must take into consideration. In Samar Ghosh v. Jaya Ghosh, three judge Bench of this Court had dealt in detail as to what would constitute cruelty under Section 13(1) (ia) of the Act. An important guideline in the above decision is on the approach of a Court in determining cruelty. In Samar Ghosh v. Jaya Ghosh, three judge Bench of this Court had dealt in detail as to what would constitute cruelty under Section 13(1) (ia) of the Act. An important guideline in the above decision is on the approach of a Court in determining cruelty. What has to be examined here is the entire matrimonial relationship, as cruelty may not be in a violent act or acts but in a given case has to be gathered from injurious reproaches, complaints, accusations, taunts, etc. The Court relied on the definition of cruelty in matrimonial relationships in Halsbury’s Laws of England (Vol 13, 4th Edn, Para 1269, Pg 602) which must be reproduced here: “The general rule in all cases of cruelty is that the 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, 6 (2007) 4 SCC 511 accusations or taunts. In cases where no violence is averred, it is undesirable to consider judicial pronouncements with a view to creating certain categories of acts or conduct as having or lacking the nature or quality which renders them capable or incapable in all circumstances of amounting to cruelty; for it is the effect of the conduct rather than its nature which is of paramount importance in assessing a complaint of cruelty. Whether one spouse has been guilty of cruelty to the other is essentially a question of fact and previously decided cases have little, if any, value. 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 all incidents and quarrels between the spouses from that point of view; further, the conduct alleged must be examined in the light of the complainant's capacity for endurance and the extent to which that capacity is known to the other spouse. Malevolent intention is not essential to cruelty but it is an important element where it exists.” The view taken by the Delhi High Court in the present case that mere filing of criminal cases by the wife does not constitute cruelty as what has also to be seen are the circumstances under which cases were filed, is a finding we do not wish to disregard totally, in fact as a pure proposition of law it may be correct, but then we must also closely examine the entire facts of the case which are now before us. When we take into consideration the facts as they exist today, we are convinced that continuation of this marriage would mean continuation of cruelty, which each now inflicts on the other. Irretrievable breakdown of a marriage may not be a ground for dissolution of marriage, under the Hindu Marriage Act, but cruelty is. A marriage can be dissolved by a decree of divorce, inter alia, on the ground when the other party “has, after the solemnization of the marriage treated the petitioner with cruelty” 7. In our considered opinion, a marital relationship which has only become more bitter and acrimonious over the years, does nothing but inflicts cruelty on both the sides. To keep the façade of this broken marriage alive would be doing injustice to both the parties. A marriage which has broken down irretrievably, in our opinion spells cruelty to both the parties, as in such a relationship each party is treating the other with cruelty. It is therefore a ground for dissolution of marriage under Section 13(1) (ia) of the Act. 17. Cruelty has not been defined under the Act. All the same, the context where it has been used, which is as a ground for dissolution of a marriage would show that it has to 7 Section 13(1) (ia) of the Hindu Marriage Act, 1955 be seen as a ‘human conduct’ and ‘behavior” in a matrimonial relationship. While dealing in the case of Samar Ghosh (supra) this Court opined that cruelty can be physical as well as mental:- “46…If it is physical, it is a question of fact and degree. If it is mental, the enquiry must begin as to the nature of the cruel treatment and then as to the impact of such treatment on the mind of the spouse. If it is mental, the enquiry must begin as to the nature of the cruel treatment and then as to the impact of such treatment on the mind of the spouse. Whether it caused reasonable apprehension that it would be harmful or injurious to live with the other, ultimately, is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. Cruelty can be even unintentional:-…The absence of intention should not make any difference in the case, if by ordinary sense in human affairs, the act complained of could otherwise be regarded as cruelty. Intention is not a necessary element in cruelty. The relief to the party cannot be denied on the ground that there has been no deliberate or wilful ill - treatment.” This Court though did ultimately give certain illustrations of mental cruelty. Some of these are as follows: (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. (xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty. (xiii) Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty. (xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty. (emphasis supplied) 18. We have a married couple before us who have barely stayed together as a couple for four years and who have now been living separately for the last 25 years. There is no child out of the wedlock. The matrimonial bond is completely broken and is beyond repair. We have no doubt that this relationship must end as its continuation is causing cruelty on both the sides. There is no child out of the wedlock. The matrimonial bond is completely broken and is beyond repair. We have no doubt that this relationship must end as its continuation is causing cruelty on both the sides. The long separation and absence of cohabitation and the complete breakdown of all meaningful bonds and the existing bitterness between the two, has to be read as cruelty under Section 13(1) (ia) of the 1955 Act. We therefore hold that in a given case, such as the one at hand, where the marital relationship has broken down irretrievably, where there is a long separation and absence of cohabitation (as in the present case for the last 25 years), with multiple Court cases between the parties; then continuation of such a ‘marriage’ would only mean giving sanction to cruelty which each is inflicting on the other. We are also conscious of the fact that a dissolution of this marriage would affect only the two parties as there is no child out of the wedlock. 16. Thus, in view of the aforesaid pronouncement of law by the Hon’ble Supreme Court, in a case where matrimonial bond is completely broken and is beyond repair, there is a long separation and absence of cohabitation, the complete breakdown of meaningful bond between the couple has to be read as cruelty under Section 13 (1) (i-a) of the Act, 1955. 17. If we apply the aforesaid ratio of decision of Hon’ble Supreme Court in the case of Rakesh Raman (supra) as well as decision of this Court in First Appeal No.3862 of 2024 in the case on hand, we are of the view that Family Court has committed a serious error in law while dismissing the suit of plaintiff by observing that he has not proved his case by leading necessary documentary evidence. 18. As observed herein, in the present case also, there is long separation between the spouses since 2014, i.e., period of separation of more than 10 years. There is no cohabitation after the separation since 2014 and there is even no remote chance of reunion. 18. As observed herein, in the present case also, there is long separation between the spouses since 2014, i.e., period of separation of more than 10 years. There is no cohabitation after the separation since 2014 and there is even no remote chance of reunion. There is a complete breakdown of matrimonial bond, which is beyond repair and the same is so evident from pleading and evidence recorded before the Family Court as well as it had remained undisputed that the defendant has never come back to her matrimonial home to fulfill her legal obligation as wife of plaintiff for this period. We are not even informed by the ld. advocates of respective parties that defendant-wife at any point of time claimed any maintenance and/or had filed suit under section-9 of the Act, 1955 seeking conjugal rights against plaintiff-husband. Considering all these facts and evidence on record, lead to only one conclusion that plaintiff – husband has successfully proven that he has been subjected to mental cruelty by the defendant – wife, who could not, by all means, retain the pious matrimonial bond by fulfilling her obligation to live with plaintiff – husband at her matrimonial home. 19. Thus, according to this Court, the plaintiff has made out a clear case of cruelty under Section 13 (1) (i-a) of the Act, 1955. The Family Court has committed a serious error while answering the issue against plaintiff by not believing that plaintiff is subjected to mental cruelty by defendant. To that extent, the impugned judgment and decree requires to be interfered with and accordingly quashed and set aside. 20. Although, in view of above, there is no need to touch upon the second ground of seeking divorce i.e., desertion but we only state that from plain reading of suit and oral evidence of plaintiff, it is evident that desertion as alleged is from June, 2014 and the suit came to be filed on 30.11.2015. The plaintiff could not have maintained his suit under Section 13(i) (i-b) of the Act, 1955 as the statutory period of two years of desertion by the defendant prior to presentation of suit is not fulfilled. To that extent, we are in agreement with Family Court that plaintiff is not entitled to get decree of divorce on the ground of desertion. CONCLUSION 21. To that extent, we are in agreement with Family Court that plaintiff is not entitled to get decree of divorce on the ground of desertion. CONCLUSION 21. As an upshot of aforesaid discussions, observations and our finding and so considering the facts and circumstances of the case, we hold that the Marriage solemnized by and between the plaintiff – husband with defendant – wife is hereby dissolved on the ground of cruelty under Section (1) (i-a) of Hindu Marraige Act, 1955 with effect from the date of this judgment . 21.1 In view of the above, the impugned judgment and decree dated 05.08.2017 passed by Family Court, Anand in Family Suit No.306 of 2015 is hereby quashed and set aside. The plaintiff – husband is entitled to and accordingly is granted decree of divorce as prayed for in para-7 of his Family Suit No.306 of 2015 before Family Court, Anand. 21.2 Ordinarily, while dissolving marriage of the parties and granting decree of divorce in favour of the husband, this Court would like to make provision of permanent alimony in favour of wife. Nonetheless, considering the peculiar facts and circumstances of the present case, the short span of marriage, the fact that the defendant never came back to plaintiff to fulfill her matrimonial obligation as well as the fact that she has not claimed any maintenance all throughout due to her good financial status, we are not awarding any permanent alimony to defendant – wife. We make it clear that this will not be treated as precedence as we have passed this order, considering the peculiar facts and circumstances of the case. 21.3 Accordingly, in view of the above, the present appeal is allowed to the aforesaid extent with no orders as to costs. 21.4 Decree of divorce be drawn up accordingly as aforesaid. 21.5 Records and proceedings be sent back forthwith to the learned Trial Court.