Surajit Debbarma vs Sonali Debbarma

S.G. Chattopadhyay, J

[1] The husband is the appellant before us impugning the judgment and order dated 17.04.2015 passed by the Judge, Family Court at Agartala in Matrimonial proceedings No. TS (Divorce) 305 of 2012 whereby the learned trial court dismissed the petition of the appellant seeking dissolution of marriage with the respondent wife under section 10 of The Divorce Act, 1869 on the ground of cruelty.

[2] The appeal was once heard and considered ex parte by this court against the respondent since she did not appear after receiving notice and it was disposed of by order dated 08.03.2017 whereby the appeal was allowed granting decree of divorce in favor of the appellant. Thereafter, on consideration of review petition No. 35 of 2017 filed on behalf of the respondent, the said ex parte order dated 08.03.2017 was recalled by this court by order dated 17.01.2018 passed in review petition No. 35 of 2017 and this matrimonial appeal was heard afresh by us.

[3] The undisputed facts are that both the appellant husband and respondent wife are Christians and the marriage between the parties took place on 12.08.2002 according to Christian rights and customs at the Baptist Church at Krishnanagar, Agartala and 2 [two] sons were born to them from their wedlock.

[4] The brief facts which are necessary for disposal of the appeal are as under.

[5] In his petition presented before the Family Court, the appellant husband stated that right from the beginning quarrel on trivial matters was a daily affair in their conjugal life. Their family members and even the local club members held several sessions of counseling for restoration of normalcy in their relationship but no effort worked. In April, 2009 his respondent wife left him along with their elder son and thereafter she lodged an FIR with the Officer-in-Charge of Women Police Station at Agartala against him, his mother in law and a lady [name withheld] alleging that only a few days after their marriage the appellant husband started torturing her for dowry in connivance with his mother. He demanded Rs.24,000/- in cash and other valuables like refrigerator, washing machine, bike etc. She somehow managed Rs.15,000/- and a bike from her parents and gave the cash and bike to her husband which could not appease his demand and he continued torturing her. She further alleged in her FIR that her appellant husband also contacted second marriage with the lady named in her FIR and the second wife had also joined her husband in committing physical torture on her. Agartala PS case No. 60 of 2009 under section 498A, 494 read with section 34 IPC was registered on her complaint against the appellant, his mother and his second wife. During investigation police arrested him and as a result of his detention in custody he was suspended from the government job. After investigation police submitted charge sheet against him but his mother could not be sent up for trial for lack of evidence against her. It culminated in case No. GR 314 of 2009 which was tried in the court of Additional Chief Judicial Magistrate, West Tripura, Agartala. The lady, alleged to be the second wife of the appellant, was discharged from the court before the trial begun and the trial proceeded only against the appellant.

[6] After conducting trial, the learned Additional Chief Judicial Magistrate found the accused appellant husband not guilty of the charges and acquitted him from those charges. The learned trial court in its judgment and order dated 16.11.2011 in case No. GR 314 of 2009 found as follows:

"Prosecution could not produce any independent witness to support the evidence of the victim and her mother to substantiate that the informant was subjected to cruelty or torture for unlawful demand of money. From the evidence on record I find no specific evidence regarding causing torture upon the informant by the accused. In a case of this nature burden lied upon the prosecution to prove the charge beyond all reasonable doubt. But in this case at hand from the evidence of PW1 & 2 it appears that both the witnesses contradicted each other in respect of cruelty upon the victim by the accused and other witnesses, examined in this case, did not say any incriminating evidence showing the involvement of the accused with the alleged offence for unlawful demand. There is also no satisfactory cogent evidence on record to presume that the accused caused injury or torture to the life, limb or health of the informant. Furthermore the I/O during examination specifically stated that she could not collect any information that the mother of the informant paid Rs.15000/- to the accused as alleged by the informant. There is also no evidence that accused married another lady [name withheld] as alleged by the prosecution. So in such a situation on the face of evidence on record I find no reason to presume the accused to be guilty as such the aforesaid point is accordingly answered against the prosecution and accused is liable to be acquitted from the charge henceforth which I hereby do."

[7] According to the appellant husband, even after his wife prosecuted him on criminal charge, he along with his relatives kept persuading her to come back and resume conjugal life wife him but there was no response from her. He then approached the Family Court seeking dissolution of the marriage.

[8] The respondent wife contested the suit by filing written statement. In her written statement she pleaded that her husband fabricated the case against her and there was no truth in it. According to her, she lodged the FIR against her husband under a compelling situation to save her life and the lives of her 2 [two] sons. She has stated that the matrimonial discord between her and her husband developed 8 [eight] years after their marriage and her husband was at fault. Allegedly, he had enough money which made him feel that he could do anything he liked. It was stated by her that she was always willing to live with her husband but her husband was always desirous of having their marriage dissolved by a decree of divorce. The respondent wife urged for dismissal of the appeal of her husband.

[9] Learned trial court, on the basis of the pleadings of the parties framed the following issues in the suit:

Whether the petitioner was subjected to cruelty by his respondent wife to such an extent that it would be harmful for him to live with his respondent wife.

Was the appellant petitioner entitled to a decree of divorce?

[10] During the trial of the case the appellant husband adduced the evidence of himself and 2 [two] other witnesses namely, Smt. Khana Debbarma [PW-2] who was the land lady in whose house the appellant used to live with his wife and children after their marriage and Smt. Andali Debbarma [PW-3] who was the mother of the appellant.

[11] The respondent wife on the other hand examined herself and 2 [two] other witnesses namely Sri Mangal Debbarma [DW-2] who was a neighbor of her and Smt. Sindhu Kanna Jamatia [DW-3], another neighbor of her.

[12] The trial court examined the matter in detail in the background of evidence available on record and after considering all the evidence and the facts and circumstances of the case proceeded to dismiss the petition of the appellant petitioner husband refusing to allow a decree of divorce. Feeling aggrieved and dissatisfied with the trial court's judgment and decree dated 17.04.2015 passed in TS (Divorce) 305 of 2012, the appellant husband has presented this appeal.

[13] We have heard Mr. K.N. Bhattacharjee, learned senior advocate appearing for the appellant and Smt. A.S. Lodh appearing along with Mr. J. Majumder, learned advocate for the respondent.

[14] Learned counsel for the appellant vehemently contended that the trial court committed error in not appreciating the fact that conduct of the respondent caused grave mental cruelty to her appellant husband. According to learned counsel, behaviour of the respondent wife had gone to such an extent that it caused reasonable apprehension in the mind of her husband that it was not safe for him to continue the relationship with her. It was argued by Mr. Bhattacharjee, learned counsel for the appellant that the respondent wife made unfounded allegations against her appellant husband and her old and ailing mother under section 498A, IPC in which both of them were arrested and sent to prison which was later proved to be false during trial. It is further contended by learned counsel that one of the essential elements of mental cruelty is a reasonable apprehension in the mind of one of the spouses that it would be harmful or injurious to live with the other spouse and the conduct of the respondent generated such apprehension in the mind of the appellant and entitled him to a decree of divorce.

[15] In support of his contention learned counsel has relied on the decision of Apex Court in Parveen Mehta Vs. Inderjit Mehta reported in (2002) 5 SCC 706 and the decision of this High Court in Jayanti Deb (Das) Vs. Manas Kumar Das reported in (2015) 1 TLR 433. It is finally argued by learned counsel of the appellant that the learned trial court did not appreciate the fact and erroneously refused to allow decree of divorce to the appellant. Learned counsel, therefore, urges us for allowing the appeal.

[16] Per contra, the learned counsel for the respondent supported the judgment and decree of the trial court and vehemently contended that the petitioner husband, appellant herein, could not prove any cruelty against the respondent wife except referring to the litigation filed by her against her husband. According to learned counsel, the wife was legally entitled to seek judicial remedy for the wrongs done to her by her appellant husband and therefore, cruelty cannot be attributed to her for prosecuting her husband and her mother in law under section 498A, IPC. According to learned counsel, the appellant husband has always shown neglect to his wife and treated her cruelty which disturbed their conjugal life right from the beginning of their marriage. The respondent wife was however, always willing to resume their conjugal life after their separation which could not take place as a result of the negative attitude of her husband. Learned counsel, therefore, urges us for dismissal of the appeal.

[17] Situated thus, the question which is arising for our consideration in the present appeal is whether the learned trial court erred in refusing the decree of divorce to the petitioner, the appellant herein.

[18] The record of the trial court reveals that the petitioner, appellant herein, categorically asserted in his plaint that after their marriage his wife always used to quarrel with him and his mother on trivial issues and kept them under constant threat of prosecution under section 498A, IPC and ultimately after leaving her husband's place she lodged a police complaint against him, his mother and the woman who was alleged to be his second wife under section 498A and 494, IPC in which he was arrested and sent to prison. In consequence, he was suspended from his government job. He then approached the Family Court seeking decree of divorce on the ground of cruelty which was dismissed by the learned trial court.

[19] The respondent wife on the other hand denied the allegations of her husband in her written statement. Her specific case is that she lodged the criminal case against her husband and mother in law under compelling circumstances to save her life and lives of her 2[two] minor sons from their torture and according to her, if a wife takes legal recourse against the atrocities meted out to her by her husband and his associates, it does not constitute a cause of action for the husband to file a suit for divorce. It is stated by her that her husband was always very aggressive and torturous who kept insisting her for bringing money from her parents. He never showed any responsibility towards her and her children and he desperately wanted to sever their marital tie by a decree of divorce and therefore he never acceded to her proposal for being responsive to the family to live a happy conjugal life.

[20] We have gone through the evidence adduced on behalf of the parties. The petitioner [PW-1] supported his case at the trial court and told the court that few days after marriage, his wife started misbehaving with him and his mother and she even committed physical torture on his mother. It was stated by the PW that his respondent wife always used to quarrel with him and his relatives and he was always suspected by her in the day to day life. Besides, she was in a habit of leaving her matrimonial home frequently and in the month of May, 2009, she left his place for parental home along with their elder son and she never returned back thereafter. When she was living at her parental home, the appellant met her there to bring her back but she refused. Thereafter, she lodged a false complaint against him at the police station. Having felt that there was no chance of their reunion, the appellant filed the case at the Family Court at Agartala seeking divorce.

The PW was subjected to cross examination on behalf of his respondent wife and it was suggested to him during cross examination that he developed illicit relationship with another woman of his locality. The suggestion was denied by him. It was also suggested to him that he used to torture his respondent wife which compelled her to leave his house. It was also denied by the petitioner husband. He stated in his cross examination that both of their sons were living with their respondent mother.

[21] Smt. Khana Debbarma [PW-2] rented a room in her house to the petitioner and his respondent wife where they lived along with their sons for about 5 [five] years from 2003 to 2007. It was deposed by the PW that during their stay in her house they always used to quarrel with each other and ultimately PW-2 asked them to leave her house. It was also deposed by the PW that several meetings were held in her house for counseling the parties which did not work.

[22] PW-3 is the father of the petitioner. In his examination in chief the PW stated that his respondent daughter in law started quarrelling with his appellant son few days after their marriage. She even physically assaulted the PW on one occasion when he asked her to sweep the courtyard. Ultimately his daughter in law left her in laws' house and refused to come back.

In his cross examination, the PW denied the suggestion of the respondent that his respondent daughter in law did not assault him.

[23] The respondent wife was examined as DW-1. It was deposed by her that her husband developed extra marital relationship with one lady [name withheld] of Champahour, Khowai and he married her and started living with her. When she voiced her protest against his illicit relationship, he committed inhuman torture upon her and the respondent left him in April, 2009 to get rid of his torture. After leaving her husband, she initially started living with her parents at her parental home. Thereafter, she rented a house at Badharghat from where she was prosecuting her studies in Ramthakur College at Agartala. According to her, her husband filed the divorce case against her only with a view to get rid of the relationship with her so that he could live comfortably with his paramour.

In her cross examination, it was suggested to her that her husband did not develop any extra marital relationship with any other woman which was denied by the witness.

[24] Sri Mangal Debbarma [DW-2] was a neighbour of the parties. In his examination in chief, the DW supported the case of the respondent and deposed that after their marriage, a matrimonial dispute developed between the couple when the appellant petitioner developed illicit relationship with another lady and started living with her. The PW also told the court that the petitioner husband used to torture his wife physically and mentally and all efforts of reconciliation failed.

In his cross examination he denied the suggestion of the appellant that the appellant did not develop any illicit relationship with any other woman.

[25] Sri Mukunda Kumar Jamatia [DW-3] also supported the case of the respondent wife and deposed that after marriage, her appellant husband tortured his respondent wife for dowry. He also told the court that the appellant husband of the respondent started maintaining extra marital relationship with another woman and due to his torture, his respondent wife and children left him.

In his cross examination he denied the suggestion of the appellant that he did not have any extra marital relationship with any other woman.

[26] As noted, the case put forward by the appellant is that his respondent wife was very abusive. She would even insult his mother. She would always threaten them to lodge complaint under section 498A, IPC and ultimately she implicated him and his mother in a false charge of section 498A, IPC. This apart, she also prosecuted him for bigamy under section 494, IPC labeling unfounded allegations against him. In consequence, he was arrested. Ultimately the charges against him were not proved in court and he was acquitted. As a result of his arrest and detention in the case, the appellant was suspended from his government job. He also suffered from unaccountable social stigma arising out of the dubious allegations brought against him by his wife. According to the appellant, such consistent conduct of his respondent wife installed a fear in his mind that living with her would be harmful for him. Further, his respondent wife left him in April, 2009 along with their elder son and they have been staying apart since then. Though, thereafter, the appellant and his relatives persuaded her to resume conjugal life, she had shown no interest to join her husband. As a result, the appellant wanted to sever the marital tie with her and approached the Family Court at Agartala seeking dissolution of their marriage which was rejected by the learned Family Court.

[27] Though, apparently the parties to the case were professing Christian religion and for the purpose of divorce they were governed by the Divorce Act, 1869 and the appellant petitioner also sought for divorce on the ground of cruelty under clause (X) of sub section (1) of section 10 of the Divorce Act, 1869, the learned trial court erringly considered the matter under the Hindu Marriage Act, 1955 and held that the appellant was not entitled to a decree of divorce under section 13(1)(i-a) of the Hindu Marriage Act, 1955.

[28] It emerges from the judgment of the learned trial court that the learned trial judge accepted respondent's allegation of extra marital relationship against her appellant husband as more reliable than the appellant's version about the cruelty of his wife and found that the appellant failed to make out a case of cruelty under section 13(1)(i-a) of the Hindu Marriage Act, 1955. The learned trial judge further found that since irretrievable break down of marriage was not provided as a ground of divorce under section 13 of the Hindu Marriage Act, 1955, the appellant was not entitled to avail this ground to break off his marital tie with the respondent by a decree of divorce and his petition was accordingly turned down. [29] We have examined the correctness of the judgment of the learned trial court in the backdrop of the pleadings of the parties, evidence on record and the submissions of the learned counsel for the parties.

[30] As discussed, since the parties are professing Christian religion they are governed under the Divorce Act, 1869 for the purpose of divorce. 'Cruelty' has been made one of the grounds of divorce under clause (X) of sub section (1) of section 10 of the Divorce Act, 1869 which provides as follows:

"10. Grounds of dissolution of marriage

(1) Any marriage solemnized, whether before or after the commencement of the Indian Divorce (Amendment) Act, 2001, may, on a petition presented to the District Court either by the husband or the wife, be dissolved on the ground that since the solemnization of the marriage, the respondent:-

..............................................................................

(x) has treated the petitioner with such cruelty as to cause a reasonable apprehension in the mind of the petitioner that it would be harmful or injurious for the petitioner to live with the respondent."

[31] With a view to examine the true nature and import of the concept of 'cruelty', it would be appropriate to compare the provisions with regard to 'cruelty' as a ground of divorce provided under the different Indian statutes governing divorce.

[32] Under the Hindu Marriage Act, 1955, section 13 provides the grounds of divorce. It enables either of the spouses to the marriage to seek a decree of divorce on any of the grounds specified under section 13 of the act. 'Cruelty' is one of these grounds which reads as under:

"13. Divorce-

(1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party-

..............................................................................

(ia) has, after the solemnization of the marriage, treated the petitioner with cruelty; or"

[33] The Special Marriage Act, 1954 under section 27 of the act provides 'cruelty' as one of the grounds of Divorce which is as under:

"27....... Divorce

(1) Subject to the provision of this act and to the rules made there under, a petition for divorce may be presented to the District Court either by the husband or the wife on the ground that the respondent-

..............................................................................

(d) has since the solemnization of the marriage treated the petitioner with cruelty; or"

[34] We may now have a look at the provisions of the Parsi Marriage and Divorce Act, 1936 which provides the grounds for divorce under section 32. Under this act also, 'cruelty' has been made one of the grounds of divorce which is provided under clause (dd) of section 32 as under:

"32. Grounds of Divorce.- Any married person may sue for divorce on any one or more of the following grounds, namely:-

..............................................................................

(dd). that the defendant has since the solemnization of the marriage treated the plaintiff with cruelty or has behaved in such a way as to render it in the judgment of the Court improper to compel the plaintiff to live with the defendant:

Provided that in every suit for divorce on this ground it shall be in the discretion of the Court whether it should grant a decree for divorce or for judicial separation only;"

[35] Under the dissolution of Muslim Marriages Act, 1939, a woman married under Muslim law is entitled to decree of divorce on several grounds provided under section 2 of the act and 'cruelty' is one of those grounds which is as under:

"2. Grounds for decree for dissolution of marriage.-A woman married under Muslim law shall be entitled to obtain a decree for the dissolution of her marriage on any one or more of the following grounds, namely:-

..............................................................................

(viii) that the husband treats her with cruelty, that is to say,-

(a) habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill-treatment, or

(b) associates with women of evil repute or leads an infamous life, or

(c) attempts to force her to lead an immoral life, or

(d) disposes of her property or prevents her exercising her legal rights over it, or

(e) obstructs her in the observance of her religious profession or practice, or

(f) if he has more wives than one, does not treat her equitably in accordance with the injunctions of the Quran;

[36] It would appear from above that 'cruelty' has not been defined in any of these statutes. Indeed it is not possible to define or categorize 'cruelty' as it relates to numerous human conduct or human behavior.

[37] In this regard, the Apex Court in Shobha Rani Vs. Madhukar Reddi reported in (1988) 1 SCC 105 observed as under:

"5 ..................... Among the human being there is no limit to the kind of conduct which may constitute cruelty. New type of cruelty may crop up in any case depending upon the human behavior, capacity or incapability to tolerate the conduct complained of. Such is the wonderful realm of cruelty."

[38] In the given case, the appellant has sought for divorce on the ground of mental cruelty. He has made no allegation of physical cruelty against his wife. In Shobha Rani (supra), the Apex Court observed that the court will have no problem to determine physical cruelty because it is question of fact and degree. But when it is mental, it creates difficulty. The Apex Court in the said judgment, made observations as to the line of enquiry which will be necessary for drawing the inference as to whether mental cruelty was meted out to the aggrieved spouse. The observation of the court is as under:

"4..................... Section 13(1)(i-a) uses the words "treated the petitioner with cruelty". The word "cruelty" has not been defined. Indeed it could not have been defined. It has been used in relation to human conduct or human behaviour. It is the conduct in relation to or in respect of matrimonial duties and obligations. It is a course of conduct of one which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. If it is physical the court will have no problem to determine it. It is a question of fact and degree. If it is mental the problem presents difficulty. First, the enquiry must begin as to the nature of the cruel treatment. Second, 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, it is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. There may, however, be cases where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or the injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted."

[39] In Parveen Mehta Vs. Inderjit Mehta reported in (2002) 5 SCC 706 which has been relied upon by learned counsel of the appellant, the Apex Court observed that as there cannot be any direct evidence of mental cruelty the court will have to draw inference from a careful examination of facts and the circumstances of the case. Observation of the Apex Court in this regard is as under:

"21.....................A feeling of anguish, disappointment and frustration in one spouse caused by the conduct of the other can only be appreciated on assessing the attending facts and circumstances in which the two partners of matrimonial life have been living."

[40] In A. Jayachandra Vs. Aneel Kaur reported in (2005) 2 SCC 22 it has been observed by the Apex Court that to ascertain whether cruelty was committed or not, the court should enquire into the nature of cruel treatment meted out to the complaining spouse by the other spouse and the impact of such treatment on the mind of the spouse and the court reiterated the principles laid down in Shobha Rani (supra) and held as under:

"11.....................Cruelty is a course or conduct of one, which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. If it is physical, the Court will have no problem in determining it. It is a question of fact and degree. If it is mental, the problem presents difficulties. First, the enquiry must begin as to the nature of cruel treatment, second the impact of such treatment in the mind of the spouse, whether it caused reasonable apprehension that it would be harmful or injurious to live with the other. Ultimately, it is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. However, there may be a case where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted."

[41] As regards cruelty, the Divorce Act, 1869 under clause (X) of sub section (1) of section 10 provides that either party to the marriage may present a petition for dissolution of marriage on the ground that since the solemnization of marriage, the respondent has treated the petitioner with such cruelty as to cause a reasonable apprehension in the mind of the petitioner that it would be harmful or injurious for the petitioner to live with the respondent.

Therefore, the test of cruelty must depend on the terms of the statute which has to be judged in the context of the case.

[42] With regard to the test of such cruelty, the Apex Court in Dr. N.G. Dastane Vs. Mrs. S. Dastane reported in (1975) 2 SCC 326 observed as follows:

"32.....................Spouses are undoubtedly supposed and expected to conduct their joint venture as best as they might but it is no function of a court inquiring into a charge of cruelty to philosophise on the modalities of married life. Someone may want to keep late hours to finish the day's work and someone may want to get up early for a morning round of golf. The court cannot apply to the habits or hobbies of these the test whether a reasonable man situated similarly will behave in a similar fashion.

The question whether the misconduct complained of constitutes cruelty and the like for divorce purposes is determined primarily by its effect upon the particular person complaining of the acts. The question is not whether the conduct would be cruel to a reasonable person or a person of average or normal sensibilities, but whether it would have that effect upon the aggrieved spouse. That which may be cruel to one person may be laughed off by another, and what may not be cruel to an individual under one set of circumstances may be extreme cruelty under another set of circumstances. American Jurisprudence, Second Ed., Vol. 24

The Court has to deal, not with an ideal husband and ideal wife (assuming any such exist) but with the particular man and woman before it. The ideal couple or a near ideal one will probably have no occasion to go to a matrimonial court for, even if they may not be able to drown their differences, their ideal attitudes may help them overlook or gloss over mutual faults and failures. As said by Lord Reid in his speech in Gollins v. Gollins, (1963) 2 All ER 966,970

In matrimonial cases we are not concerned with the reasonable man, as we are in cases of negligence. We are dealing with this man and this woman and the fewer a priori assumptions we make about them the better. In cruelty cases one can hardly ever even start with a presumption that the parties are reasonable people, because it is hard to imagine any cruelty case ever arising if both the spouses think and behave as reasonable people."

[43] In Samar Ghosh Vs. Jaya Ghosh reported in (2007) 4 SCC 511, the Apex Court after surveying the previous judgments on the issue viewed that no uniform standard or guidelines could be laid for the purpose of judging cruelty. But, the court enumerated some instances which may be relevant in dealing with the cases of mental cruelty and held that those instances indicated by the court were only illustrative and not exhaustive which are as under:

"101..............................................................................

(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 sterilization 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."

[44] Having taken into consideration the parameters laid down by the Apex Court in the context of the present case, we find that in the present case, the persistent abuses and insults hurled at the appellant and his mother by his respondent wife must have generated deep anguish and frustration in the mind of the appellant. The allegation of his wife that he maintained extra marital relationship was found baseless during the trial of the case. The respondent wife not only implicated the appellant under the charge of section 498A, IPC she also prosecuted her old and ailing mother under the said charge. In the investigation, police came across no evidence in support of the charge and she was not sent up for trial. The appellant was arrested and sent to prison where he was detained for more than 10 [ten] days resulting in his suspension from service. It is evident that even before his prosecution, his wife used to threaten him that she would lodge police complaint against her. This apart, the respondent wife of him also accused him of infidelity and complained that he contacted second marriage and started living with that woman which was also proved to be false in court. These circumstances indicate that the relationship between the couple deteriorated to such an extent that the respondent wife had no concern for his job, reputation and well being.

[45] In this regard, the Apex Court in Vishwanath Agrawal Vs. Sarla Vishwanath Agrawal reported in (2012) 7 SCC 288: AIR 2012 SC 2586 examined the impact of uncalled for allegations in the mind of the aggrieved spouse and viewed that it amounts to mental cruelty. The observations of the Apex Court were as follows:

"46..................... Thus, we have no scintilla of doubt that uncalled for allegations are bound to create mental agony and anguish in the mind of the husband."

[46] The Apex Court in the said judgment further held that incorrect and untruthful allegations in criminal proceedings creates mental trauma and held as follows:

"47..................... Another aspect needs to be taken note of. The respondent had made allegation about the demand of dowry. RCC No. 133 of 1995 was instituted under Section 498A of the Indian Penal Code against the husband, father-in-law and other relatives. They have been acquitted in that case. The said decision of acquittal has not been assailed before the higher forum. Hence, the allegation on this count was incorrect and untruthful and it can unhesitatingly be stated that such an act creates mental trauma in the mind of the husband as no one would like to face a criminal proceeding of this nature on baseless and untruthful allegations."

[47] This court in Jayanti Deb (Das) Vs. Manas Kumar Das reported in (2015) 1 TLR 433 which has been relied upon by learned counsel of the appellant has viewed that unfounded allegations of infidelity against the aggrieved spouse amounts to mental cruelty for the purpose of divorce [vide paragraph 24].

[48] Also in Abhash Paul Vs. Manidipa Paul reported in (2017) 1 TLR 608 this court granted divorce to the appellant husband on the ground that the wife was found to have made unfounded allegations against the husband under section 498A, IPC which could not be proved in trial and despite sincere efforts of the husband she was not willing to resume her conjugal life with him and from the whole circumstances it was found that the animus in the relationship had gone to such an extent that there was no chance of retrieval of the relationship.

[49] Apparently in this case, the cumulative conduct of the respondent during the whole married life including the prosecution of the husband and his mother on false charges and the consequence suffered by the appellant husband due to such prosecution undoubtedly caused grave mental cruelty to him which were enough to generate a feeling in him that it would be unsafe for him to live with the respondent in the marital tie.

[50] Apart from the mental cruelty proved against the respondent, it has also emerged from the record that the spouses are living apart from May, 2009 i.e. for more than a decade. During this period they never lived together. This long period of continuous separation without any response from either side suggests that there has been an irretrievable break down of their marriage.

[51] The consequence of long period of continuous separation on conjugal life and its remedy was examined by the Apex Court in Naveen Kohli Vs. Neelu Kohli reported in (2006) 4 SCC 558 and the court held as follows:

"74..................... We have been principally impressed by the consideration that once the marriage has broken down beyond repair, it would be unrealistic for the law not to take notice of that fact, and it would be harmful to society and injurious to the interests of the parties. Where there has been a long period of continuous separation, it may fairly be surmised 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."

[52] Similar observation was made by the Apex Court in a later decision in Samar Ghosh (supra).

[53] In Biswanath Baspar Vs. Jhumarani Ghosh (Baspar) reported in (2015) 1 TLR 649 this court had taken a view that if other grounds are made out or the grounds of cruelty or desertion is partly proved, then, if the marriage is dead, the court may take a view granting divorce.

[54] On the facts of this case, mental cruelty against the respondent has been proved. We are also of the considered view that the marriage between the couple has irretrievably broken down and there is no chance of their return to conjugal life. It is, therefore, necessary to dissolve their marriage by a decree of divorce.

[55] We have interacted with learned counsel of the parties for consideration of the matter with regard to maintenance allowance to be paid to the respondent wife. Admittedly, the wife does not have any income. The amount of maintenance which is being given to the respondent by his appellant husband is considered very meager and inadequate which needs to be raised. The Apex Court in Reynold Rajamani & Anr. Vs. Union of India & Anr. reported in (1982) 2 SCC 474 viewed that even if the wife is at fault, after divorce her interest should be protected to save her from destitution. In this regard the Apex Court made the following observation:

"14..................... Her chances of survival are diminished by the divorce. So, the law which grants the decree for divorce must secure for her some measure of economic independence. It should be so whatever be the ground for divorce, whether it is mutual consent, irretrievable break-down of the marriage, or even the fault of the woman herself. Every divorce solves a problem and creates another. Both problems need to be solved, no matter who is responsible for the breakdown of the marriage. If the divorce law is to be a real success, it should make provision for the economic independence of the female spouse. After all, Indian society today is so constituted that a Woman is generally helpless and her position become worse if she is divorced. It is necessary that the law should protect her interest.; even if she be an erring spouse, lest she become destitute and a dead loss to society."

[56] It emerges from the record that the appellant is a government servant in the Animal Resources Department who is earning a handsome salary. His mother is also a government pensioner and therefore the appellant has no dependency other than his wife and sons. Keeping in view the totality of the circumstances, the social strata from which the parties come, the financial ability of the husband, the needs of the respondent wife and her children and all other relevant facts and circumstances of the case, the appellant husband is directed as follows:

The appellant will pay monthly maintenance allowance of Rs.15,000/- (Rupees Fifteen Thousand only) to his respondent wife w.e.f. 01.09.2020 payable within the 7th day of each succeeding month. The appellant shall be depositing the money accordingly in the bank account of his respondent wife so that she can withdraw the money within the 7th day of the month. Therefore, any deduction from the salary of the appellant by his employer towards the payment of her maintenance allowance shall be discontinued.

[57] As a result of the aforesaid discussions, the judgment and decree of the learned trial court is set aside and a decree of divorce is granted in favor of the appellant. But, the decree of divorce, so granted by us, shall be treated as a decree nisi for a period of 06[six] months from today and it shall be automatically absolute on the expiry of the said period of 06[six] months unless otherwise directed by this court on the approach of the parties or either of them in terms of the law before expiry of 06[six] months from today. The parties be informed accordingly through their counsel by serving copy of the judgment to them. It is made clear that the direction with regard to payment of maintenance shall be carried out by the appellant w.e.f. the date mentioned in the preceding paragraph. The parties shall bear their respective costs.

The appeal is allowed accordingly.