S. Talapatra, J.1. This is an appeal under Section 19(1) of the Family Courts Act, 1984 from the judgment dated 28.2.2015 delivered in T.S.(Div) 37 of 2014 by the Judge, Family Court, Udaipur, Gomati Judicial District.2. By the said judgment, the Judge, Family Court dismissed the suit for divorce as brought by the appellant on the ground of cruelty and desertion having observed that the appellant has failed to prove that the respondent treated him with cruelty after marriage. It has been further observed in the said judgment that by violating the terms and conditions of promise that was entered between the parties, the appellant refused to reunite with the respondent and to restitute their conjugal life. Thus, the ground for desertion has fallen through. The said judgment has been challenged in the present appeal. For purpose of appreciating the grounds as adverted in the memorandum of appeal it is apposite to introduce the relevant facts material for the purpose.The appellant has complained that after their marriage on 10.3.2010 they led their matrimonial life for some weeks. However, in the wedlock, one female child was born. On the day of presenting the suit, the said girl child, namely Samudrita Das was aged about 2 years 8 months. The allegations are broadly that the respondent is obdurate and not prone to adjustment. The appellant has been treated with serious mental and physical cruelty. The respondent did not allow the appellant to take rest or to take proper sleep by using abusive slang languages. The respondent had provoked him to commit suicide or else, she would file a case for commission of offence punishable under Section 498-A of the IPC. The respondent was, according to the appellant, reluctant to discharge her duties in the matrimonial home. Often times she used to misbehave with the appellant. Since she was pressing him for separating the mess, the appellant shifted their residence to a rented house on 6.5.2011. Even the respondent filed a written complaint to the Chief Judicial Magistrate, Udaipur, South Tripura, as he then was, on 31.3.2012. The said complaint dated 31.3.2012 was sent to the Officer-in-Charge, R.K. Pur Police Station. Based on the said complaint, R.K. Pur P.S. case No. 130 of 2012 under Sections 498-A and 201 of the IPC was registered against the appellant and other inmates. The said case being PRC 202 of 2012 under Section 498-A of the IPC was disposed of by the judgment dated 3.1.2013 on acquitting the appellant and others. Thereafter, the respondent refused to restitute the conjugal life with the appellant. Thus, the marital tie has been perceived to have irretrievably broken. Apart from the said criminal proceeding being PRC 202 of 2012, the respondent had instituted a proceeding under Section 125 of the Cr.P.C. for her maintenance being Criminal Misc. FC/UDP/69/2012 before the Judge, Family Court, Udaipur, Tripura. The Judge, Family Court ordered the maintenance @ Rs. 4,000 per month for the respondent. Against the order of maintenance dated 18.2.2013, the appellant preferred a revision petition in the Court of the Sessions. Hearing of the said revision was taken up by the Additional Sessions Judge. The Additional Sessions Judge had ordered in the said criminal revision petition No. 24 of 2013 as follows:“The petitioner [the appellant] is to pay total Rs. 7,000 per month as maintenance.”The respondent has also filed a petition under Section 12 read with Section 18 of the Protection of Women from Domestic Violence Act, 2005. However, the said proceeding was disposed of on compromise arrived at between the parties on 13.11.2013, but the respondent did not go by the terms of the settlement nor restituted the conjugal life. There is no controversy that from 6.5.2011 the parties are living separately.3. By filing the written statement, the respondent had contested the pleadings of the appellant and stated that the appellant was found guilty of the offence punishable under Section 498-A of the IPC but having an eye to the matrimonial relation between the appellant and the respondent, the case was ended on a compromise after administering serious admonition to the appellant. Thereafter, it has been contended that since the appellant neglected to maintain the respondent and their child, the respondent was persuaded to file a petition for maintenance.4. Mr. Das Choudhury, learned Counsel appearing for the appellant has submitted that the marriage has been irretrievably broken for the deviant conduct of the respondent. But the Judge, Family Court without proper appreciation of the evidence has observed that the evidence of the petitioner [the appellant herein] cannot be believed but the evidence of the respondent-wife can be relied. It has been further observed that it was the appellant who continuously acted with cruelty, both physical and mental with the wife-respondent, even in the rented house. It was he who had deserted the wife-respondent without any cogent and justifiable reason. In the light of all facts, the Family Court was of the view that the respondent-wife had never treated the petitioner-husband, the appellant herein, with cruelty after 5 months of their marriage.5. Mr. Das Choudhury, learned Counsel has contended that the evidence as led by the appellant stood, on the contrary, to show that for the deviant conduct of the respondent, the appellant had suffered torture both mental and physical. Mr. Das Choudhury, learned Counsel in support of his contention has referred a decision of the Apex Court in Shyam Sunder Kohli v. Sushma Kohli @ Satya Devi, reported in II (2004) DMC 586 (SC)=114 (2004) DLT 1 (SC)=VI (2004) SLT 1=(2004) 7 SCC 747, where the Apex Court has observed as under:“11. ………it was submitted that the marriage has irretrievably broken down. It was submitted that on this ground the divorce may be granted by this Court. In support of this submission, reliance was placed on the authority of this Court in L.V. Jadhav v. Shankarrao Abasaheb Pawar, (1983) 4 SCC 231.12. On the ground of irretrievable break down of marriage, the Court must not lightly dissolve a marriage. It is only in extreme circumstances that the Court may use this ground for dissolving a marriage. In this case, the Respondent, at all stages and even before us, has been ready to go back to the Appellant. It is the Appellant who has refused to take the Respondent back. The Appellant has made baseless allegations against the Respondent. He even went to the extent of filing a complaint of bigamy, under Section 494, IPC, against the Respondent. That complaint came to be dismissed. As stated above, the evidence shows that the Respondent was forced to leave the matrimonial home. It is the Appellant who has been at fault. It can hardly lie in the mouth of a party who has been at fault and who has not allowed the marriage to work to claim that the marriage should be dissolved on the ground of irretrievable break down. We, thus, see no substance in this contention.” [Emphasis added]6. Mr. Das Choudhury, learned Counsel having substantive reliance on the said decision, has contended that the marital tie has been irretrievably broken down. It does not have any future and hence, the appellant be granted divorce. The parties will bear the pain of a dead relation lift long. In the backdrop, it has been urged that this Court on revisiting the evidence would find that the evidentiary elements of cruelty and irretrievable breaking down of marriage are in abundance. However, before closing the submissions, Mr. Das Choudhury, learned Counsel has placed his reliance on Gurbux Singh v. Harminder Kaur, reported in VII (2010) SLT 282=IV (2010) CLT 107 (SC)=(2010) 14 SCC 301, where the Apex Court has observed that a particular conduct may amount to cruelty in one case but the same conduct necessarily may not amount to cruelty due to change of various factors, in the different set of circumstances. Therefore, it is essential for the appellant, who claims relief, to prove that a particular/part of the conduct or behavior resulted in cruelty to him. No prior assumptions can be made in such matters, meaning hereby that it cannot be assumed that a particular conduct will, under all circumstances, amount to cruelty, vis-a-vis the other party.7. In Gurbux Singh (supra), the Apex Court, having substantively referred to Samar Ghosh v. Jaya Ghosh, reported in I (2007) DMC 597 (SC)=IV (2007) SLT 76=II (2007) CLT 72 (SC)=(2007) 4 SCC 511, has culled out the guidelines. In Samar Ghosh (supra), it has been held that:“98. On proper analysis and scrutiny of the judgments of this Court and other Courts, we have come to the definite conclusion that there cannot be any comprehensive definition of the concept of “mental cruelty” within which all kinds of cases of mental cruelty can be covered. No Court in our considered view should even attempt to give a comprehensive definition of mental cruelty.99. 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 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 while taking aforementioned factors in consideration.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.(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. In such like situations, it may lead to mental cruelty.” [Emphasis added]8. These illustrations are not exhaustive but representative in nature, but it appears that the respondent had instituted a criminal case on allegation of cruelty which was later on disposed over settlement. Mr. Das Choudhury, learned Counsel has further referred to Gurbux Singh (supra), to draw attention of this Court to the observation as extracted hereunder:“No doubt, in that decision, this Court has held that allegations made in the written statement or suggested in the course of examination and by way of cross-examination satisfying the requirement of law has also to be taken note of while considering the claim of either party. In the case on hand, it is true that the respondent-wife has made certain allegations against her husband-appellant. However, admittedly based on the same, the Trial Court has not framed any issue and no evidence let in in support of the same. In such circumstances, the said decision is not helpful to our case. Admittedly, no such issue was framed by the Trial Court or any point determined by the High Court based on such averments in the reply/written statement. Accordingly, we reject the said contention.”9. Mr. Das Choudhury, learned Counsel has closed the submission by stating that it is on record that despite the initiative taken by the appellant, the respondent did not come forward to restitute the conjugal life. Even the allegation of filing the complaint has not been disputed by her. Mr. Das Choudhury, learned Counsel has made a robust attempt to persuade this Court by referring the evidence. According to him, the appellant has proved the allegation of cruelty and desertion. Therefore, the denial of decree of divorce is wholly unwarranted.10. In the reply, Mr. R. Datta, learned Counsel appearing for the respondent has submitted that there is no infirmity in the judgment under challenge inasmuch as it would be apparent that the proceeding as launched by the respondent in respect of the domestic violence being CR No. 14 of 2012 [DV] has ended on compromise on promise that the matrimonial relation would be restored. Even in the judgment dated 3.1.2013 delivered in PRC No. 202 of 2012 whereby the appellant was acquitted from the charge under Section 498-A of the IPC on the observation inter alia that even the offence is not compoundable offence, keeping in mind the welfare of the concerned parties i.e. the husband and wife, it has been noticed that the evidence of PWs-3, 4, 5, 6 & 7 as led by the prosecution corroborates each other. According to the trial court, ‘the evidence warrants conviction of the accused persons namely, Sajal Das and Smt. Santabala Das. However, in the matrimonial interest of such woman namely, Smt. Champa Das who is the complainant of the present case, is restored, I am not going to deal with the conviction and sentence of the accused person though the aforesaid point is decided in affirmative and against the accused persons at this stage and keeping the discussion over the conviction and sentence at this stage withheld to take up the matter again in future in case any complaint is received for and on behalf of the complainant against her husband towards any sort of disturbance and or nuisance by the husband of the complainant towards breaking of the matrimonial interest of the complainant.’11. Finally, it has been observed by the Trial Court by the judgment dated 3.1.2013 delivered in PRC No. 202 of 2012 as follows:“In the light of above, accused Sajal Das and Smt. Santa Bala Das are given serious admonition to keep peace and tranquility in the family and to keep peaceful atmosphere in the life with the complaint/victim and thereby they are acquitted with the aforesaid observation at this stage from the liability of the charge under Section 498-A, IPC in the instant case.In case in future, any complaint is received from the complainant/victim towards causing nuisance to break the peaceful matrimonial interest of the complainant, this Court may take the case again for f
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urther consideration in accordance to the evidence recorded without taking any consideration of the additional evidence of the complainant/victim and the case is adjudicated accordingly.”12. Mr. Datta, learned Counsel has submitted that all the allegations brought against the appellant have been accepted by the Court. Even though the Trial Court has abruptly held that the appellant is not found guilty. The said judgment and order dated 3.1.2013 is an outcome of a promise or assurance by the parties to live peaceful conjugal life, but the appellant and his mother were admonished for their conduct being detriment to the matrimonial life of the respondent.13. Having appreciated the submissions made by the learned Counsel for the parties, the pertinent question that falls for consideration is that whether the appellant has made out a case to grant a divorce on the ground of cruelty and desertion. In Gurbux Singh (supra), it has been stated that sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness and causing injury to mental health or deriving sadistic pleasure can amount to mental cruelty but mere trivial irritations, quarrels, normal wear and tear of the married life which happen, day-to-day, will not include within such reprehensible conduct. Even unhappiness, dissatisfaction and emotional upset may not be a ground for grant of divorce.True it is that this Court does not find any possibility of restitution or revival of the conjugal life of the parties, but having regard to the judicial observation as relied by the respondent, we are unable to grant divorce. However, the parties will be at liberty, notwithstanding what has been observed in this judgment, to approach the Court of the competent jurisdiction to have their marriage dissolved by mutual consent.In the result, this appeal stands dismissed.Send down the LCRs forthwith.Draw the decree accordingly.Appeal dismissed.