Judgment : ( Shree Chandrashekhar, J.) : This Civil Miscellaneous Appeal has been filed by Mahendra Prasad to challenge the judgment and decree dated 19 th May 2012 passed in Civil Misc. (Divorce) Case No.67/2008 (23/2003) titled “Mahendra Prasad v. Smt. Parmeshwari Devi”. By this judgment, the suit for divorce filed by the appellant under section 13(1)(ia) and (ib) of the Hindu Marriage Act, 1955 seeking dissolution of the marriage on the ground of cruelty and desertion has been dismissed by the Additional District Judge, Sujangarh (Churu). 2. In Civil Misc. (Divorce) Case No.67 of 2008, the appellant pleaded that his marriage with the respondent was solemnized about 35 years before instituting the suit for divorce. His marriage was solemnized following the rituals observed by the Hindus and, in particular, by observing Saptapadi. From the wedlock, one daughter Kiran and two sons, namely, Ram Ratan and Laxmi Narayan were born. The appellant further pleaded that he constructed a house at Sujangarh and lived there with his mother, brother and wife. About 3-4 years after the marriage, he got employment in the Army and he lived in the joint family whenever he came home on vacation. According to the appellant, his wife was quarrelsome from the beginning and she used to fight with his family members. Therefore, he purchased a piece of land and constructed a house for his wife to live there with the children. But there was no change in her behaviour and she used to quarrel with him, abused him and treated him with cruelty. The appellant further pleaded that his wife developed illicit relationship with his cousin Om Prakash who had deserted his wife and started living with the respondent as husband and wife. This fact was brought to his notice by his neighbours whenever he visited home on vacation. He tried to reason with the respondent but she, in turn, gave a false application on 16 th August 1999 to the District Collector at Churu for restraining him from visiting Sujangarh. Not only that, the respondent instituted a false case vide Criminal Case No.218/2000 and made allegation against him for committing the offence under section 498-A, 494 and 109 of the Indian Penal Code and in that case he was sent to judicial custody. However, the criminal case was closed and Final Form was submitted by the police. Not only that, the respondent instituted a false case vide Criminal Case No.218/2000 and made allegation against him for committing the offence under section 498-A, 494 and 109 of the Indian Penal Code and in that case he was sent to judicial custody. However, the criminal case was closed and Final Form was submitted by the police. The appellant made a specific reference of illicit relationship of the respondent with Om Prakash when he visited home in the midnight around 12:30 A.M. on 08 th September 1998 and found his wife indulged in sexual intercourse with Om Prakash. According to the appellant, his wife and Om Prakash started marpeet with him and threw him out of home. The appellant made allegation against the respondent that she grabbed his properties and Rs.4,00,000/- which was invested in Kisan Vikas Patra and Rs.64,800/- deposited in the post office. He made fruther allegations against Om Prakash and the respondent that they threatened him on 18 th January 2003 when he was returning from the Court appearance and the respondent told him that she was no longer in relationship with him and Om Prakash was everything for her. 3. In her written statement, the respondent denied the plaint allegations levelled against her by her husband and raised a preliminary objection to maintainability of the divorce suit on the ground of suppression of material facts. The respondent raised such objection in view of Order VII Rule 5 of the Rajasthan Hindu Marriage and Divorce Rules, 1984 which requires the applicant to furnish the details of previously instituted or pending petitions/applications. The respondent pleaded that she had filed Petition No.08/2001 titled “Smt. Parmeshwari v. Mahendra Prasad” under sections 9 and 11 of the Hindu Marriage Act which was pending consideration before the Court. She had filed an application under section 24 of the Hindu Marriage Act and that application was also pending in the Court. Taking the matter further on the point of maintainability of the divorce suit, the respondent raised another objection on the ground that Om Prakash was not made a party-defendant in the divorce proceeding as mandated under Rule 7 of the Marriage and Divorce Rules and the divorce suit was liable to be dismissed on that ground. Taking the matter further on the point of maintainability of the divorce suit, the respondent raised another objection on the ground that Om Prakash was not made a party-defendant in the divorce proceeding as mandated under Rule 7 of the Marriage and Divorce Rules and the divorce suit was liable to be dismissed on that ground. As regards the allegation of cruelty against her, the respondent made a counter attack alleging that her husband committed marpeet with her and inflicted cruelty upon her but she suffered all such assaults by her husband and surrendered herself to the service of her husband. Denying the allegation of sexual relationship with Om Prakash, the respondent pleaded that Om Prakash is a married person and he is like her son. According to the respondent, the appellant made such allegation against her because he left her company and developed illicit relation with Chotudi and two daughters were born from such illicit relation with Chotudi. She further alleged that one son of Chotudi born from the wedlock with her previous husband was also staying with her. Offering a justification for lodging of the criminal case, the respondent pleaded that her husband came to Dungargarh and committed marpeet with her and the children and threatened to throw them out of the matrimonial house. The respondent specifically pleaded that she has no source of income and her husband did not provide any maintenance to her and the children. 4. On the basis of the aforementioned pleadings of the parties, the trial Judge framed the following issues : (1) whether the respondent subjected the petitioner to cruelty, (2) whether the respondent is guilty of committing adultery, (3) whether the petitioner suppressed the proceeding in Case No.8/2001 and what would be the effect thereof, (4) whether the petition for divorce is not maintainable on the ground of non-joinder of Om Prakash, (5) whether the petitioner filed the case after inordinate delay and what would be the effect of such delay on his petition. 5. 5. In the trial, the appellant tendered oral evidence by examining himself as AW-1 and laid in evidence a copy of the application under section 125 of the Code of Criminal Procedure vide exhibit-1, a copy of the F.I.R. vide exhibit-2, a copy of the Final Form vide exhibit-3, a copy of the order accepting F.R. vide exhibit-4, and the statement of Parmeshwari Devi as PW-1 in Case No.192/2005 vide exhibit-5. On the other hand, the respondent tendered evidence as NAW-1 in support of the stand set up by her in the written statement. 6. In the judgment rendered on 19 th May 2012, the trial Judge decided all the issues in favour of the respondent. 7. Before us, the appellant-in-person submitted that even if the relief for dissolution of marriage on the ground of adultery is not granted, the divorce suit must be decreed on the ground that the respondent inflicted physical cruelty and caused mental cruelty on account of her various acts of misbehaviour and by filing a false criminal case against him. On the other hand, the learned counsel appearing for the respondent submitted that Final Form filed in the criminal case is by itself not a ground to infer mental cruelty inflicted upon the appellant. On the contrary, the appellant who left his wife and children at the mercy of others and started living with another woman and fathered two daughters has rightly been held to have committed cruelty upon the respondent. 8. Under section 13(1) of the Hindu Marriage Act, a marriage solemnized between the parties can be dissolved by a decree of divorce on a petition presented either by the husband or by wife on the grounds specified therein. A decree of divorce may be granted under clause (i-a) to sub-section 1 of section 13 when the petitioner establishes that the other party treated him with cruelty after solemnization of marriage. Though the expression “cruelty” is not defined under the Hindu Marriage Act, there has been a series of judgments by the Hon’ble Supreme Court which provides sufficient guidelines to the Courts to deal with the allegation of cruelty as envisaged under section 13 of the Hindu Marriage Act. A cruelty may be mental or physical and any allegation of cruelty has to be seen in the light of the impact of such treatment in the mind of the other party. A cruelty may be mental or physical and any allegation of cruelty has to be seen in the light of the impact of such treatment in the mind of the other party. It is the conduct in relation to or in respect of the matrimonial duty and obligation that shall constitute cruelty if it adversely affects the other party. In “A Jayachandra v. Aneel Kaur” , (2005) 2 SCC 22 , the Hon’ble Supreme Court observed that it shall constitute cruelty if the conduct complained is grave and substantial so as to draw a conclusion that the aggrieved party cannot be reasonably expected to live in the company of other spouse. However, the normal wear and tear of the middle-class married life cannot be construed as a broken marital relationship (refer, “Joydeep Majumdar v. Bharti Jaiswal Majumdar, AIR 2021 SC 1165 ”). 9. The case set up by the appellant is that he suffered mental cruelty on account of various acts and indiscretions of the respondent. But this does not seem to be the reason for instituting a suit for divorce about 35 years after the marriage. His evidence that he was unhappy with the cruel behaviour of the respondent and was undergoing severe mental agony and pain was seriously challenged by the respondent who deposed in the Court that she was happily married with the appellant but trouble started when the appellant established illicit relationship with Chotudi and started living with her at Dungargarh since 1998. Notably, the appellant admitted in the cross-examination that his wife had made allegation of his illicit relationship with Chotudi in restitution of conjugal rights petition filed by her. The respondent gave details of the said woman such as her parentage and her parental place of living. She stated in her evidence that Chotudi herself informed her that she is the daughter of Rameshwar and her mother’s name is Bhuri. She also told her that her brother’s name is Gumandas and her paternal village is Dhadheru. The appellant did not produce any evidence except his own mere ipse dixit to prove the allegation of heaping filthy abuses upon him. Even the other family members did not step into the witness box to support him and no explanation was offered by the appellant why he did not examine his brother or mother who according to him also suffered at the hands of the respondent. Even the other family members did not step into the witness box to support him and no explanation was offered by the appellant why he did not examine his brother or mother who according to him also suffered at the hands of the respondent. The appellant who himself stated in the Court that he could visit home only once every 3-4 months would not have continued in marriage for about three decades had there been any truth in his version. He fathered three children and started living separately at Dungargarh after his retirement from the Army. Since 1998, he had accepted the assignment of Patwari and did not provide sustenance to his wife and children. In the present proceeding, the appellant made a statement that he was paying Rs.15,000/- to his wife as maintenance but his stand was seriously controverted by the learned counsel for the respondent who informed the Court that the appellant had stopped paying the said amount to the respondent after some time and now there are huge arrears of maintenance amount to be paid by the appellant. 10. In “Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511 ”, the Hon’ble Supreme Court observed that it is difficult to lay down any uniform standard or guidance to ascertain the human behaviour whether or not that falls within the sweep of expression “cruelty”. Sounding a note of caution that the examples enumerated in paragraph No.101 are only illustrative and not exhaustive, the Hon’ble Supreme Court referred to the following instances which would fall within the broad parameters of the expression “cruelty” :- “………………………………………………………………………………………………………… ………………………………………………………………………………………………………… (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. (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. (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. (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.” 11. The appellant admitted in the cross-examination that after the incident of 08 th September 1998 he did not visit even his children and, in the divorce suit contested by his daughter, he tendered evidence against his daughter. In our opinion, the learned counsel for the respondent rightly contended that mere filing of Final Form may not be construed as a conclusive proof that a false First Information Report was lodged by the respondent and, that has caused immense mental agony and pain to the appellant. The conduct of the appellant had been such that the defence set up by the respondent cannot be brushed aside. As regards his illicit relationship with another woman, the appellant offered a vague defence of mere denial of his relationship with Chotudi. Even more importantly, he instituted the suit for divorce about 8 years after he was allegedly thrown out of his home. The allegation of adultery levelled against the respondent is also a kind of wild allegation set up by him. Clearly, the appellant failed to demonstrate that the respondent inflicted physical or mental cruelty upon him. 12. This is the stand of the appellant that Om Prakash is a married man with whom the respondent developed illicit relation and they were living together. The appellant, however, did not examine any neighbour or the wife of Om Prakash to support this stand. The respondent who has been living in her matrimonial home cannot be said to have deserted the appellant. The appellant, however, did not examine any neighbour or the wife of Om Prakash to support this stand. The respondent who has been living in her matrimonial home cannot be said to have deserted the appellant. The alleged incident that happened in the night of 8 th September 1998 is not established by the appellant and no other witness has been produced by him to support the happening of such an incident or, at least, to prove that the respondent and Om Prakash had committed marpeet with him on that night. In course of the hearing, the appellant-in-person submitted that he could not have produced any witness to prove adultery on the part of the respondent and his evidence stand alone is sufficient and a proof thereof. In “Dunn v. Dunn, (1948) 2 All. E.R. 822(2)”, Dunning L.J. observed that the legal burden shall be on husband to prove that his wife deserted him without cause. This view in “Dunn” was affirmed by the Hon’ble Supreme Court in “Lachman Utamchand Kirpalani v. Meena, AIR 1964 SC 40 ” Even before that, the Hon’ble Supreme Court elucidated the law on the subject in “Bipinchandra Jaisinghbai Shah v. Prabhavati, AIR 1957 SC 176 ”thus; “if a spouse abandons the other spouse in a state of temporary passion, for example, anger or disgust without intending permanently to cease cohabitation, it would not amount to desertion”. From the materials on record, it does not appear that the appellant took any sincere effort to bring his wife back home; he did not file a petition for restitution of conjugal rights and; on the contrary, the respondent filed such a petition which was opposed by him. No doubt the appellant is guilty of matrimonial misconduct and he was hell bent to get rid of his wife. Simply put, the appellant failed to establish that the respondent without a just cause refused to live with him. The respondent has no animus deserendi and it is the appellant who on his own and for a different purpose is not staying in the company of his wife. The respondent has a valid reason not to join the company of the appellant at Dungargarh. In the circumstances of the case, it can be reasonably inferred that the respondent has been living at Sujangarh not by her own choice and she was forced to live separately there. The respondent has a valid reason not to join the company of the appellant at Dungargarh. In the circumstances of the case, it can be reasonably inferred that the respondent has been living at Sujangarh not by her own choice and she was forced to live separately there. In fact, it was the appellant who took a pledge that he would sever his relationship with the respondent and would not visit her and live separately. There is another reason for drawing such an inference that the appellant intentionally left the company of his wife inasmuch as he opposed the petition filed by the respondent seeking restitution of her conjugal rights. This is also a matter of record that the appellant had suppressed the filing of a petition by the respondent seeking restitution of conjugal rights and another petition for maintenance. As per the plaint averments, the cause of action for filing the divorce suit arose on 08 th September 1998 but it was filed in the year 2003. The import of section 23(1)(d) of the Hindu Marriage Act is that the Court shall not decree any relief if the Court is satisfied in any proceeding under this Act whether defended or not that there has been any unnecessary delay or improper delay in instituting the proceeding. 13. Following the aforesaid discussions, D.B. Civil Misc. Appeal No. 1468 of 2012 is dismissed.