Mr. Arun Pal, son of Late Maheshwar Pal, aged about 41 years, resident of v. 1
Case Details
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI First Appeal No. 49 of 2018 ------ Mr. Arun Pal, son of Late Maheshwar Pal, aged about 41 years, resident of At Amrapara Bazar, P.O-Amrapara, P.S-Amrapara, District-Pakur. ....... Appellant Versus 1.Mrs. Sumitra Devi, W/o Arun Pal, Daughter of Jagannath Pal, Present Address-C/o Sri Jagannath Pal, village-Shikaripara, P.O & P.S- Shikaripara, District-Dumka. ....... Respondent/Respondent Ist Party 2.Keshav Mandal, Son of Tarun Mandal, resident of Village, P.O. and P.S- Shikaripara, District-Dumka. ....... Respondent/Respondent IInd Party ---- CORAM: HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON’BLE MR. JUSTICE SUBHASH CHAND For the Appellant For Respondents : Mr. Durga Charan Mishra, Advocate : Ms. Khushboo Kumari, Advocate ----- Order No. 26: Dated 27th January, 2023: Per: Sujit Narayan Prasad, J. ------- The instant appeal has been filed under Section 19(1) of the Family Court‟s Act, 1984 wherein the Judgment dated 20.12.2017 passed by learned Principal Judge, Family Court, Dumka in Original Suit No.33 of 2014 has been assailed by which the petition filed by the appellant/petitioner under Section 13 (i) (i-a) (i-b) of the Hindu Marriage Act has been dismissed on contest. 2. The brief facts of the case as narrated in the petition of divorce, reads hereunder as: It transpires from the plaint as has been appended to the paper book that the petitioner and the respondent no.1 are the legally married husband and wife and their marriage was solemnized on 13.05.2007 at Kathikund temple according to Hindu rities, rituals and custom. After 2 marriage both the petitioner and the respondent no.1 had been living together as husband and wife at Amrapara Bazar and started leading conjugal life. But she remained only three days in her in law‟s house and went to her father‟s house and remained there three months. After marriage the respondent no.1 mostly used to reside at Shikaripara as she used to go to her parent‟s house off and on for which the appellant/petitioner requested her to lead conjugal life with him at Amrapara but the respondent no.1 and her parents did not agree for the same. It is the case of the petitioner that whenever he became ill, the respondent no.1 did not look after him and even at the time of hospitalization at Mohulpahari hospital, the respondent no.1 did not attend the appellant/petitioner. It is stated that due to rude behaviour and clandestine attitude of the respondent no.1, the appellant/petitioner started suffering from great mental agony and depression. It is stated that when the respondent no.1 was not coming to her in-law‟s house till January, 2008, the appellant/petitioner several times went to his in-law‟s house along with his relatives but the respondent no.1 and her parents became annoyed and the brother of the respondent no.1 assaulted and abused the petitioner with the help of Keshav Mandal of one Shikaripara and drove the petitioner and his relatives by using force and filthy language. It is the case that the petitioner came to know from the inhabitants of Shikaripara locality that the respondent no.1 has been entangled with said Keshav Mandal and she has started leading adulterous life with the said Keshav Mandal. It has been submitted that in the month of November, 2010 when the petitioner and his relatives 3 came to know that the respondent no.1 has given birth a male child and from this fact, the petitioner went in great mental anxiety and trepidation as there was no conjugal relation with the respondent no.1 from December, 2008 and despite this, the respondent no.1gave birth of illegitimate child in the year 2010 and the factum of giving birth by the respondent no.1 to a male child was never intimated or apprised to the petitioner or his relatives and this fact established enough that the respondent no.1 has been leading adulterous life since December 2008. The appellant/petitioner, in the backdrop of the aforesaid acts and behaviour of the respondent no.1 since has caused great mental pain and agony which amounts to cruelty and as the respondent no.1 has willfully withdrawn herself from the society of the petitioner without any reasonable excuse and she is living in her parent‟s house and leading to an adulterous life, filed matrimonial suit being Matrimonial Suit No.13 of 2011 before the Court of the Principal Judge, Family Court, Pakur for restitution of conjugal rights under Section 9 of the Hindu Marriage Act, which was decided in favour of the respondent no.1 ex parte vide order dated 18.12.2012 wherein the conjugal rights had been directed to be restituted but the respondent no.1 has no care of the order of the court and disobeyed the order passed under Section 9 of the Hindu Marriage Act by not coming back to the petitioner. It has further been stated that petition is not presented in collusion with the respondent and there is no unnecessary and improper delay in institution of the proceeding, since, the cause of action arose on 13.05.2007 when the marriage of the petitioner with the respondent no.1 4 was performed. Therefore, the petition has been filed praying therein to pass a decree of divorce by dissolving the marriage on the ground of cruelty, desertion and adultery under Section 13 (i) (i-a) (i-b) of the Hindu Marriage Act. 3. Learned Family Court after calling upon the respondent and after considering the written statement has formulated altogether seven issues: (i) Whether the present suit, maintainable, in its present form? (ii) Whether the petitioner has got any valid cause of action for the suit? (iii) Whether the respondent herself withdrawn from the society of the petitioner and the respondent refused to live with the petitioner for leading adulterous life with the respondent no.2? (iv) Whether the respondent neglected the petitioner and failed to perform her marital obligation? (v) Whether the act of the respondent against the petitioner comes within the purview of the definition of cruelty? (vi) Whether the marriage is required to dissolve by a decree of divorce? (vii) To what other relief or reliefs, the petitioner is entitled to? 4. Learned Family Court has answered all the issues and has dismissed the suit on contest, which is the subject matter of the instant appeal. 5.
Legal Reasoning
Mr. Durga Charan Mishra, learned counsel appearing for the appellant has assailed the judgment impugned on the ground that the learned court has failed to consider the testimony of the witnesses 5 produced on behalf of the appellant while passing the judgment impugned, since, according to him, there is ample evidence to prove the ground of divorce available on record i.e., the ground of cruelty, desertion and adultery but without taking into consideration the same the suit has been dismissed, therefore, the impugned judgment is not sustainable and as such fit to be set aside. He has submitted that even the charge of cruelty has also conclusively been proved and without dealing with the evidence with respect to the cruelty the learned Family Court has answered the issue pertaining to the cruelty against the petitioner by taking into consideration the discussion as has been made with respect to the Issue nos.III and IV, i.e., the issue pertaining to adultery and the respondent has failed to perform the marital obligation and hence the impugned judgment on this account also is not sustainable in the eye of law. 6. Per contra, Ms. Khushboo Kumari, learned counsel appearing for the respondent has defended the order by making submission that there is no error in the impugned judgment, since, the issue pertaining to adultery has well been discussed and by taking into consideration the testimony of the witnesses, i.e., P.W-1 wherein he has not supported the case of having illicit relationship of the respondent with one Keshav Mandal. It has further been submitted that the ground of adultery is itself being falsified due to the conduct of the appellant who has filed a petition under Section 9 of the Hindu Marriage Act for restitution of his conjugal rights and as such the learned Family Court after taking into consideration the aforesaid conduct of filing the suit for restitution of 6 conjugal rights has come to conclusion that if the allegation of adultery was there then what was the occasion of the appellant to file a petition under Section 9 of the Hindu Marriage Act for restitution of his conjugal rights, therefore, the ground of adultery has correctly been found to be falsified. It has been argued that the finding pertaining to Issue No.IV which pertains to whether the respondent neglected the petitioner and failed to perform her marital obligation the learned Family Court has considered the rival submission as also the document filed on behalf of the parties and after taking into consideration the Exhibit-A filed on behalf of the respondent no.1which is a judgment passed in Original Maintenance Case no.14 of 2014, disposed of in favour of respondent no.1 and the aforesaid judgment has not been challenged by the petitioner wherein it has been held that the wife of the petitioner was neglected by the petitioner and bound to live in her parental house in a miserable condition while she is ready to go to her matrimonial home. The learned Family Court after taking into consideration the judgment passed in the Original Maintenance Case no.14 of 2014 has come to conclusive finding by holding therein that the respondent has not neglected the petitioner and not failed to perform her marital obligation. It has further been contended that the learned trial court has considered the act of the respondent no.1 against the petitioner that whether it comes within the purview of the definition of cruelty and after taking into consideration the Issue Nos.III and IV having been answered against the petitioner and as such the conclusion as has been arrived at 7 by the learned Family Court, in view thereof, it cannot be said to be proved that the respondent no.1 is living adulterous life with the respondent no.2 and as such there is no reason to accept the ground of cruelty against the petitioner committed by respondent no.1. Further submission has been made that the learned trial court after taking into consideration the issue of adultery, desertion and cruelty as has been answered is correct in answering the Issue Nos.I, II, VI and VII. Learned counsel in the backdrop of the aforesaid ground has submitted that the judgment impugned requires no interference and as such the instant appeal is fit to be dismissed. 7. We have heard learned counsel for the parties, perused the document available on record as also the testimony of the witnesses which is available in the lower court record having been called by this Court vide order dated 27.11.2019. 8. Admittedly the petitioner/appellant, namely, Arun Pal has filed an application for dissolution of marriage on the ground adultery, desertion and cruelty under Section 13 (i) (i-a) (i-b) of the Hindu Marriage Act. The learned Family Court has formulated seven issues as quoted hereinabove. 9. This Court is now proceeding to deal with the ground of filing the suit for dissolution of marriage i.e. the ground of adultery, desertion and cruelty. 10. This Court in order to appreciate the argument, deem it fit and proper to refer the definition of adultery as defined under Section 13 (1) 8 of the Hindu Marriage Act, 1955. According to it, adultery is an act of voluntarily indulging into sexual intercourse out of marriage, i.e. any person who is not the spouse of the respondent. The essential ingredients in an offence of adultery are that; (i) there should be an act of sexual intercourse outside the marriage, and (ii) that such intercourse should be voluntary. Adultery since is a ground for divorce has been defined under Section 13(1) of the Hindu Marriage Act, 1955, as the act of having voluntary sexual intercourse with a person who is not the spouse of the respondent. Hence, it becomes essential for the petitioner to prove she/he was indeed married to the said respondent and that the respondent had voluntary sexual intercourse with a person other than him/her. The spouse who wants to file a divorce petition has to substantiate the statements with proper evidence. 11. This Court on the basis of the aforesaid aspect has scrutinized the issue framed by the learned Family Judge with respect to the allegation of adultery as per the issue framed as Issue No.III. It transpires from the impugned judgment as under paragraph 7 thereof that the appellant in order to substantiate the aforesaid ground had been examined as P.W-1 and has deposed in paragraph 10 that in the absence of petitioner/appellant in December, 2008 respondent no.1 while indulged in illegal relation with respondent no.2, she was caught red handed at that time had been seen by the local people and thereafter he was informed about the same. The petitioner/appellant was examined and had deposed that he had not seen the illegal relationship of his wife with respondent no.2 with his own eyes but heard about the same from 9 Subhash Mandal, Ashok Mandal, Subol Pal and Nitai Pal. Subol Pal has only been examined as P.W-3 and has stated in his chief at paragraph 2 that a boy namely Keshav Mandal was indulged in illegal relation with petitioner‟s wife but never caught them. He, in cross-examination has admitted that no any case was instituted only panchayati was held regarding illegal relationship. He has stated at paragraph 8 of his cross- examination that he was not identified Keshav Mandal. He has further stated that he was not known Keshav Mandal who fled from the place of occurrence. Prahlad Pal has been examined as P.W-2 and has deposed at paragraph 15 that he has never seen respondent no.1 and 2 in a room. The testimony of P.W-1, P.W-2 and P.W-3 if read together there is no hesitation for us to come to the conclusion that the witnesses which has been produced by the appellant have failed to substantiate the allegation of adultery. Further it is the admitted case that the appellant/petitioner has filed a petition under Section 9 of the Hindu Marriage Act for restitution of conjugal rights being Matrimonial Suit No.13 of 2011 (Exhibit-X/1) wherein ex-parte decree has been passed against respondent no.1. 12. The question arises that when the appellant/petitioner is levelling an allegation of adulterous life against his wife (respondent no.1) why the petition under Section 9 of the Hindu Marriage Act was filed and why not during the relevant time instead of filing petition under Section 9 of the Hindu Marriage Act, the suit for divorce was filed. The 10 aforesaid conduct of the appellant falsifies the allegation of adulterous life of the respondent no.1 otherwise he could not have filed a petition for restitution of conjugal rights wherein ex-parte decree has also been passed restituting the conjugal life. 13. This Court after having discussed the aforesaid factual aspect has considered the finding recorded in this regard by the learned Family Court and found therefrom that the learned trial court has considered the testimony of P.W-1, P.W-2 and P.W-3 wherein the charge of the adulterous life of the respondent no.1 could not have been substantiated. The aforesaid fact coupled with the conduct of the appellant of filing of a petition under Section 9 of the Hindu Marriage Act falsifies the allegation of adulterous life of respondent no.1 and by taking together the learned Family Judge has come to conclusion that the allegation of adultery as levelled against the respondent no.1 has not been proved, which on the basis of the discussion made hereinabove, cannot be said to suffer from an error. 14. The learned Family Judge thereafter has considered the Issue No.IV which pertains to the allegation against the respondent no.1 of neglecting the petitioner and failing to perform her marital obligation, i.e., the desertion. 15. This Court is now proceeding to examine the allegation of desertion as per the quoted definition: The meaning of the word desertion as given in the Rayden on Divorce and Halsbury‟s Laws of England reads “desertion is the separation of one spouse from the other, with an intention on the part of 11 the deserting spouse of bringing co-habitation permanently to an end without reasonable cause and without the consent of the other spouse; but the physical act of departure by one spouse does not necessarily make that spouse the deserting party.” Rayden on Divorce 6th edition page 128 “in its essence desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that other‟s consent and without reasonable cause. It is a total repudiation of the obligations of marriage.” 16. The allegation has been levelled by the appellant/petitioner that he fell ill in the year 2010 and filed Exhibit-1, 1/1 the medical certificate and medical prescription. Exhibit-2 is the Criminal Case No.14 of 2014, the statement of witnesses. On behalf of the respondent no.1 a judgment of Original Maintenance Case no.14 of 2014 has been filed and has been marked as Exhibit-A wherein the judgment was passed in favour of the respondent no.1 holding therein that the respondent no.1was being neglected by the petitioner and bound to live in her parental house in miserable condition while she was ready to go to her matrimonial home. The issue of neglecting the petitioner has been discarded by the learned Family Judge mainly on the basis of the judgment passed in Original Maintenance Case no.14 of 2014 decided on 31.08.2017 which was filed under Section 125 of the Code of Criminal Procedure wherein the concerned court has directed to pay Rs.4,000/- for petitioner no.1, namely, Sumitra Devi and Rs.1,000/- for the minor son of the parties, namely, Vikash Pal regularly as monthly maintenance allowance from 12 the date of institution of the case. Such direction was passed by the concerned court on the basis of the consideration of the factual fact and considering the testimony of the witnesses wherein the issue of adultery i.e., having illicit relationship with Keshav Mandal and giving birth of a male child in the year 2010 due to the aforesaid illicit relationship was also an issue having been raised on behalf of the appellant but the same has been found to be falsified even by the court while passing the order of maintenance under Section 125 of the Code of Criminal Procedure, as would appear from paragraph-16 of the aforesaid judgment which for ready reference, is being referred herein: “16. O.P. has been matrimonial suit at Pakur District, in Family Court bearing no.13/2011 U/S 9 of Hindu Marriage Act, 1956 for restitution of conjugal rights. On the other hand O.P. has been contended in his show cause that due to illicit relationship of petitioner with Keshav Mandal, petitioner has given birth a male child in the year 2010 and due to that he became shocked but this allegation has not been established by O.P. during course of trial. Ext. „X‟ photo copy of order of T. (Mat) Case no.13/2011 is fully falsified the allegation of O.P. against the petitioner regarding illegitimate child who was born in the year 2010. This Matrimonial case has been fully supported the case of the petitioner. This O.P before filing this case raised allegation against the petitioner of adulterous and this suit not illegitimate child but supported the allegation of O.P against the petitioner. It is important to say that this O.P has not been made allegation in matrimonial suit against the petitioner regarding adultery.” 17. The concerned court, in the backdrop of the aforesaid fact and after taking into consideration the conduct of the appellant of filing petition under Section 9 of the Hindu Marriage Act, 1956 has passed an order for maintenance which has never been questioned by the appellant 13 and therefore, the learned trial court has come to conclusion that the allegation so levelled against the respondent no.1 of desertion has not been found to be proved. 18. This Court on the basis of the discussion as made hereinabove and considering the reason assigned by the learned Family Court and after taking into consideration the definition of desertion as per the Rayden on Divorce and Halsbury‟s Laws of England, is of the view that the judgment/order has been passed under Section 125 of the Code of Criminal Procedure which having not been questioned which contains the finding regarding the issue of adultery and the decree passed under Section 9 of the Hindu Marriage Act and if in such circumstance conclusion about no substance of the allegation of desertion has been found to be proved, which according to our considered view cannot be said to suffer from an error. 19. The issue of cruelty has been answered by answering the Issue No.V. 20. This Court before proceeding to examine the finding recorded by the learned Principal Judge with respect to the cruelty, deem it fit and proper to refer about the definition of cruelty with the judicial pronouncements. The legally defined meaning of “cruelty” as has been discussed by Hon‟ble Apex Court in the case of Shobha Rani v. Madhukar Reddi (1988)1 SCC 105 wherein the wife alleged that the husband and his parents demanded dowry. The Hon‟ble Apex Court emphasized that “cruelty” can have no fixed definition. 14 According to the Hon‟ble Apex Court, “cruelty” is the “conduct or behaviour in relation to or in respect of matrimonial duties or obligations”. It is the conduct which adversely affects the spouse. Such cruelty can be either „mental‟ or „physical‟, intentional or unintentional. For example, unintentionally waking your spouse up in the middle of the night may be mental cruelty; intention is not an essential element of cruelty but it may be present. Physical cruelty is less ambiguous and more “a question of fact and degree.” The Hon‟ble Apex Court has further observed therein that while dealing with such complaints of cruelty it is important for the court to not search for a standard in life, since cruelty in one case may not be cruelty in another case. What must be considered include the kind of life the parties are used to, “their economic and social conditions”, and the “culture and human values to which they attach importance.” The nature of allegations need not only be illegal conduct such as asking for dowry. Making allegations against the spouse in the written statement filed before the court in judicial proceedings may also be held to constitute cruelty. In the case of V. Bhagat vs. D. Bhagat (Mrs.) (1994)1 SCC 337, the wife alleged in her written statement that her husband was suffering from “mental problems and paranoid disorder”. The wife‟s lawyer also levelled allegations of “lunacy” and “insanity” against the husband and his family while he was conducting a cross-examination. The Hon‟ble Apex Court held these allegations against the husband to constitute “cruelty”. 15 In the case of Vijaykumar Ramchandra Bhate v. Neela Vijay Kumar Bhate (2003)6 SCC 334 the Hon‟ble Apex Court has observed by taking into consideration the allegations levelled by the husband in his written statement that his wife was „unchaste‟ and had indecent familiarity with a person outside wedlock and that his wife was having an extramarital affair. These allegations, given the context of an educated Indian woman, were held to constitute “cruelty” itself. The Hon‟ble Apex Court in the case of Joydeep Majumdar v. Bharti Jaiswal Majumdar (2021)3 SCC 742, has been pleased to observe that while judging whether the conduct is cruel or not, what has to be seen is whether that conduct, which is sustained over a period of time, renders the life of the spouse so miserable as to make it unreasonable to make one live with the other. The conduct may take the form of abusive or humiliating treatment, causing mental pain and anguish, torturing the spouse, etc. The conduct complained of must be “grave” and “weighty” and trivial irritations and normal wear and tear of marriage would not constitute mental cruelty as a ground for divorce. 21. The Hon‟ble Apex Court in the case of Samar Ghosh vs. Jaya Ghosh reported in (2007) 4 SCC 511 wherein at paragraph 101 the cruelty has been defined not in exclusive term but some parameter has been fixed as to what to be treated as cruelty and if that parameter will be considered from the facts of the given case, it would be evident that the allegation of cruelty which has been found not to be proved by the trial court will be said to be suffer from infirmity. The reference of paragraph 101 of the aforesaid judgment has been made wherein it has 16 been held by Hon‟ble Apex Court that by narrating the instances indicated therein however are only illustrative and not exhaustive to be treated under the fold of cruelty, for ready reference, paragraph 101 of the said judgment is being referred herein: “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 17 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 18 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.” It is, thus, evident from the instances as narrated and quoted hereinabove that the first one is that 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. The second instance is that 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. The third instance is that 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. The fourth instance is that 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. The fifth instance is that a sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse. The sixth instance is that sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. The treatment 19 complained of and the resultant danger or apprehension must be very grave, substantial and weighty. The seventh instance is that 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. The eighth instance is that 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. The nineth instance is that 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. The tenth instance is that 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. The eleventh instance is that 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. The twelfth instance is that unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or 20 valid reason may amount to mental cruelty. The thirteenth instance is that unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty. The fourteenth instance is that 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. 22. This Court is now proceeding to examine the legality and propriety of the issue as has been decided by the learned Family Judge with respect to the act of the respondent no.1 against the appellant/petitioner, whether it comes within the purview of definition of cruelty. 23. It is evident from the factual aspect of the given case that the ground of cruelty has been taken mainly on the ground of the respondent no.1 has been found to be indulged in adulterous life and the respondent no.1 has deserted the appellant but once the issue of adultery has been answered against the appellant so as also the issue of desertion against him then where is the question to accept the ground of cruelty. Further on consideration of the fact of the given case, it is also not falling under the definition of cruelty. 24. The learned Family Judge on the basis of the finding so recorded regarding the adultery and desertion has found the ground of cruelty of 21 having no substance and as such, the same according to our considered view, cannot be said to suffer from an error by taking into consideration the definition of cruelty as has been defined and referred hereinabove. 25. The learned Family Judge after having answered the Issue No.III, IV and V has considered the Issue No.I, II, VI and VII and has found no reason to grant relief by giving a decree of divorce. 26. This Court after having discussed the fact in entirety as above, is of the view that the judgment impugned requires no interference. 27. Accordingly, the instant appeal fails and is dismissed. (Sujit Narayan Prasad, J.) (Subhash Chand, J.) Saket/ - A.F.R.