P.O. and P.S. Birsanagar, Jamshedpur, District Singhbhum East v. Saranan Banerjee, son of Late Mahanand Banerjee, present and permanent resident
Case Details
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI F.A. No. 228 of 2018 Aparna Banerjee, aged about 49 years, wife of Saranan Banerjee, daughter of Late Ajit Kumar Chatterjee, present and permanent resident of Birsanagar, Zone No.-1, H.No. 175, P.O. and P.S. Birsanagar, Jamshedpur, District Singhbhum East. Versus Saranan Banerjee, son of Late Mahanand Banerjee, present and permanent resident of Flat No. T/1, Block B/1, Bimla Apartment, P.O. and P.S. … … Appellant/Respondent Sonari, Jamshedpur, District Singhbhum East. … … Respondent/Petitioner ------- CORAM: HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON’BLE MR. JUSTICE SUBHASH CHAND For the Appellant For the Respondent ------- : Mr. D. K. Karmakar, Advocate : Mr. Ajit Kumar, Advocate ---------------------------- ORAL JUDGMENT 14/Dated: 03rd February, 2023 Per Sujit Narayan Prasad, J. 1. The instant appeal under Section 19(1) of the Family Courts Act, 1984 is directed against the judgment dated 10.04.2018 passed in Original Suit No. 380 of 2014 by the learned Principal Judge, Family Court, Jamshedpur, whereby and whereunder, the suit for dissolution of marriage between the parties has been decreed, upon contest. 2. The brief facts of the case as per the pleading made by the petitioner in an application filed under Section 13(1)(ia), (ib) and (1A) of the Hindu Marriage Act, 1955 hereinafter referred to as the Act, 1955, reads as under: Respondent, the appellant herein, is the legally married wife of the petitioner, the respondent herein, and their marriage was solemnized on 15.04.1993, according to Hindu rites and customs, at Telco, Jamshedpur. After marriage, parties lived together as husband and wife, at Sonari, Jamshedpur and out of the said wedlock, one female child was 2 born on 29.12.1994. The petitioner was appointed in service in Telco Ltd., Jamshedpur, temporarily and during the aforesaid period, the father of the respondent used to snatch money from the petitioner, in various ways and in order to keep cordial relationship between the petitioner and the respondent and her family members, the petitioner used to pay money, regularly, as per his capacity and earning, to the father of the respondent, per month. As the petitioner was in temporary service, so termination was being made by the company from time to time and the petitioner was unable to pay money regularly to his father-in-law, due to his termination from service by his employer and so he stopped making any payment to his father-in-law, which became the cause of annoyance of the father of the respondent and his other family members. Due to non-payment of the amount by the petitioner to the father of the respondent, he started poisoning the mind of the respondent in various ways, as a result of which, the respondent started misbehaving with the petitioner and she used to torture the petitioner. The respondent used to put force upon the petitioner, to pay handsome amount to her father regularly, even after borrowing the same from others, but the petitioner was not in a position, to pay any amount to the father of the respondent, due to his termination from his service. The petitioner tried his best to maintain cordial relationship between him and the respondent, as well as, her the family members, but all went in vain. The respondent became very much annoyed with the petitioner, due to non-payment of the amount to the father of the respondent and the relationship between the respondent and the petitioner became very much strained due to this reason. All of a sudden, on 04.09.1998, the respondent, along with her minor daughter, left the house of the petitioner with all her belongings, at the instance of her father, as well as, her other family members, without informing the petitioner in this regard. Petitioner having come to know the aforesaid facts tried his best to bring back the respondent and his minor daughter, from her parents‟ house, and accordingly the petitioner, along with Ranjit Chakraborty (brother-in-law of the petitioner) went to the parents‟ house of the respondent, but she flatly refused to come back to the house of the petitioner along with her minor daughter. The petitioner and 3 Ranjit Kumar Chakraborty were manhandled by the family members of the respondent. Finding no other alternative, he filed Matrimonial Suit No. 112/1998, before the family court, against the respondent, for restitution of conjugal rights, under section 9 of the Act, 1955 and in spite of issuance of notices against the respondent, as well as, publication of the notice in the local newspaper, the respondent failed to appear in the aforesaid Matrimonial Suit No.112/98 and subsequently the case was fixed for ex-parte hearing against the respondent. The aforesaid matrimonial Suit No. 112/98 was allowed vide order dated 22.04.1999 and decree was signed on 06.05.1999 by the 3rd Additional Sessions Judge, at Jamshedpur. In spite of the knowledge of the aforesaid judgment and decree passed in Matrimonial Suit No.112/98, the respondent failed to restitute conjugal rights with the petitioner, for which the petitioner filed Execution Case No.01/99 against the respondent for executing the aforesaid order dated 22.04.1999 and decree dated 06.05.1999 and the Respondent filed Misc. Case No.03/99 for setting aside the ex-parte order dated 22.04.1999 and decree dated 06.05.99 and for restoration of the aforesaid Matrimonial Suit No.112/1998 to its original file. The aforesaid Misc. Case No.03/99 was dismissed vide order dated 14.02.2002. Subsequently, the petitioner filed a petition under order XXI Rule 32 CPC. before the family court to enforce the order dated 22.04.1999 and decree dated 06.05.99, by attachment of the properties mentioned in the schedule of the petition dated 04.03.03, but the family court did not pass any order against the respondent, for attachment of her personal property or for her detention in the civil prison as provided under order XXI Rule 32 C.P.C., as the learned court, did not think proper to attach the personal property of any woman and/or for her detention in the civil prison. It is the further case of the petitioner that, respondent filed Misc. Case No. 99/98 against the petitioner for grant of her maintenance allowance for herself and her minor daughter and subsequently the matter was compromised and both the petitioner and the respondent filed a compromise petition, jointly on 23.11.2009, with a prayer to drop the proceeding, on the ground that, the matter has been settled amicably 4 through the Mediation Centre, Jamshedpur and the petitioner and the respondent, were living together, as husband and wife, as all disputes among them was finally settled and the respondent was not willing to proceed further with the aforesaid Misc. Case No.99/98 and accordingly the same was dropped vide order dated 23.11.09. Moreover the respondent also filed C/1 Case No.653/98 on 23.03.98 against the petitioner and his family members under Sections 498A/406/506/323/109/34 of the IPC and also G.R. Case No. 2055/2000, on 14.12.2000, under sections 498A/323/427 of I.P.C. and 3/4 of D.P. Act and C/1 Case No.1058/2000-01 on 20.12.2000, under Sections 354/324/384/386/462 I.P.C. and C/1 Case No.1105/2000, on
Legal Reasoning
02.12.2000, under Section 506 of the IPC and Non-FIR. No.51/2000, under Section 107 of Cr.P.C. The petitioner also filed C/1 Case No.1062/2000, against the respondent and her family members, under Sections 323/379/506 of I.P.C. The father-in-law of the petitioner also filed Title Suit No.19/08, which was dismissed for default and the aforesaid cases were withdrawn/dismissed, at the instance of the order passed by the High Court of Jharkhand, at Ranchi and the petitioner and respondent started living together as husband and wife, but only for a few days. The respondent left the house of the petitioner, at her own accord, along with all her belongings and cash amount of Rs.3,000/-, without the knowledge and consent of the petitioner and the petitioner informed the matter in writing on 01.11.10 to the Superintendent of Police, Jamshedpur. He and the respondent, used to live together in the aforesaid Flat of the petitioner, situated at Sonari, Jamshedpur and the daughter of the petitioner and the respondent were not allowed to live with the petitioner, since the year 1998 and she is all along residing with the her family members. The respondent left the house of the petitioner at her own accord on 10.10.10 and since then, the respondent is living at her parent's house at Birsanagar, Jamshedpur and in spite of several efforts made by the petitioner, respondent refused to restitute the conjugal rights with the petitioner Thereafter, the respondent with a view to live separately from the petitioner, has filed Misc. Case No.55/13 against the petitioner. On the basis of above submission, the petitioner prayed to dissolve the marriage solemnized on 15.04.93. 5 3. The wife, respondent, had appeared and contested the case. 4. The learned Family Court has framed seven issues and after considering the testimony of three witnesses produced on behalf of the petitioner and after going through the documents produced on his behalf as also taking into consideration the testimony of one witness produced on behalf of the respondent has answered the issues by holding the petitioner entitled to a decree of divorce, but, he is not entitled to any other relief/reliefs, which is the subject matter of the instant appeal.
Legal Reasoning
5. Mr. Dilip Kumar Karmakar, learned counsel for the appellant has submitted that the impugned judgment suffers from material irregularity since the learned Family Court without considering the testimony of the witnesses in right perspective has passed the impugned judgment. The submission has been made that the learned family court has also not appreciated the fact in right perspective while deciding the issue of desertion since it has been considered the case of desertion to be proved on the ground of filing of several litigations by the parties on each other. Submission has been made that merely by filing the litigations on account of its pendency, if the wife is not living in her matrimonial home, the same cannot be considered to be a case of desertion. But, without appreciating the aforesaid aspect of the matter, the issue of desertion has been found to be substantiated which cannot be said to be justified. Further submission has been made that the learned family court while answering the issue of cruelty on the part of the wife upon the husband, the same has been found to substantiated merely on the ground of filing of cases in between the parties which according to the learned counsel, cannot be said to be sufficient ground to prove the ground of cruelty so as to make ground for divorce. The learned counsel for the appellant, in the aforesaid backdrop,
Decision
has submitted that the impugned judgment is not sustainable in the eyes of law, as such, the same is fit to be quashed and set aside. 6 6. Per contra, Mr. Ajit Kumar, learned counsel for the respondent/petitioner has submitted that there is no infirmity in the impugned judgment reason being that the ground which has been agitated so far as the ex-parte decree passed is concerned, the same cannot be a good ground to be agitated merely the decree was ex-parte since the appellant has not taken any legal recourse for redressal of the ex-parte decree, as such, once the same has been accepted, it cannot be open for the appellant to raise the said issue of consideration of decree passed under Section 9 of the Act, 1955. It has been submitted that so far as the ground agitated on the issue of desertion and cruelty is concerned, the learned family court, after taking into consideration the series of cases filed on behalf of the appellant, has come to conclusive finding that filing of cases by the appellant of living apart from her husband has been found to come under the fold of desertion and cruelty basis upon which the decree of divorce has been passed, as such, the same cannot be said to suffer from error. It has further been submitted that there is no infirmity in the impugned judgment of decree of divorce since the appellant herself has admitted in her cross-examination about the decree passed in Matrimonial Case No.99/98 basis upon which she went to her in-laws house along with the child and the aforesaid aspect of the matter has been admitted in her testimony at pargraph-9. However, she again left her matrimonial house since 2010, as such, it cannot be said to have a case of desertion and taking the same into consideration, the learned family court has passed the impugned judgment, as such, the same suffers from no error. Learned counsel on the aforesaid backdrop has submitted that the order passed by the learned family court requires no interference. 7. We have heard the learned counsel for the parties, perused the documents available on record and the finding recorded by the learned family court in the impugned judgment. 8. It is evident from the material available on record that an application under Section 13(1)(ia), (ib) and (1A) of the Act, 1955 had been filed on 7 the basis of the ground of desertion and cruelty. The learned family court has formulated the following seven issues: I. Is the suit, as framed, maintainable? II. Whether the applicant has valid cause of action? III. Whether the respondent has meted out cruelty on the applicant? IV. Whether the respondent has deserted the applicant? V. Whether there has been no restitution of conjugal rights in between the parties to the marriage, for a period of one year or upwards, after passing of a decree for restitution of conjugal rights? VI. Whether the applicant is entitled to a decree of divorce? VII. To what other relief or reliefs the applicant is entitled for? 9. It further appears that the petitioner has produced three witnesses on his behalf in order to substantiate the ground taken for decree of divorce and has relied upon several documents marked as exhibits, i.e., C.C. of Order dated 14.02.02 passed in Misc. Case No.03/99. Ext.1. C.C. of Order dated 12.02.14 passed in C/1 Case No.1062/2000. Ext.1/1. C.C. of Order dated 05.07.07 passed in Mat. Suit No.393/01. Ext.1/2. C.C. of Order dated 16.03.02 passed in Mat. Suit No.393/01. Ext.1/3. C.C. of Order dated 09.01.01 passed in B.P. No. 1274/2000. Ext.1/4. C.C. of judgment dated 09.02.2010 in C/1 case No.1058/2000. Ext.2. C.C. of Deposition of Aparna Banerjee in G.R. Case No. 2055 / 2000 Ext.3. C.C. of petition of C/1 Case No. 1062/2000. C.C. of plaint of Mat. Suit No. 393/01. C.C. of withdrawal petition dated 05.07.07 in Mat. Suit No.393/01. Ext.4. Ext.4/1. Ext.5. C.C. of Order dated 22.04.99 passed in Mat. Suit No.112/98. Ext.6. C.C. of decree dated 06.05.99 in Mat. Suit No.112/98. Signature of Aparna Banerjee in Xerox copy of affidavit dated 11.06.97 (upon admission) Signature of Aparna Banerjee in Xerox copy of information dated 25.06.97 to Sonari P.S. (upon admission) Ext.6/1. Ext.7. Ext.7/1. 8 Signature of Aparna Banerjee in Xerox copy of letter dated 21.03.2018 to S.P., Jamshedpur (upon admission) Signature of Aparna Banerjee in Xerox copy of letter dated 29.05.2017 to A.G.M., Telco, Jamshedpur (upon admission) Signature of Aparna Banerjee in Xerox copy of letter dated 11.06.97 to O/C Sonari P.S. (upon admission) Ext.7/2. Ext.7/3. Ext.7/4. 10. It further appears that the respondent has produced only one witness R.W.1, the appellant herself. Further, the issue no.5 which pertains to “Whether there has been no restitution of conjugal rights in between the parties to the marriage, for a period of one year or upwards, after passing of a decree for restitution of conjugal rights?”, has been discussed by the learned family court but that has been answered in favour of the respondent the legality and propriety of the said finding recorded by the learned family court is not in question, as such, the same is not being discussed herein. 11. The issue no.4, which pertains to the ground of desertion taken by the petitioner for grant of decree of divorce is concerned, the ground has been taken by the petitioner that his wife left the matrimonial home on 04.09.1998 and thereupon, the petitioner preferred Matrimonial Suit No.112/98 under Section 9 of the Act, 1955 for restitution of his conjugal rights which was decreed ex-parte in his favour by order dated 22.04.1999, decree signed on 06.05.1999. It further appears that the wife had also filed a case under Section 125 of Cr.P.C. vide Misc. Case No.99/98 for maintenance, in which the parties entered into a compromise on 23.11.2009 and the said case was accordingly disposed of and the parties started living together. It further appears that wife again left the matrimonial home on 10.10.2010 and since then, she has never returned to her matrimonial home. It has come in the testimony of R.W.1 that the appellant herein has admitted in her cross-examination that in the plaint of matrimonial suit No.393/01 (marked as Exht.4/1) she has stated at para-17 that her husband has left her since 03.09.1998. She has further admitted upon her cross-examination that it is true that since then she is residing in her matrimonial home. 9 The learned family court, on the basis of the aforesaid litigation, has come to conclusion that matrimonial suit no.393/01 was filed in the year 2001 and subsequently on the basis of the compromise dated 23.11.2009 in Misc. Case No.99/98 filed by the respondent, under Section 125 of Cr.P.C. she went to her matrimonial home and thereafter, since 10.10.2010 she is not residing with him without any cogent reason and on her own accord without knowledge and consent of the petitioner. The learned family court on the basis of the aforesaid pretext has found the ground of desertion established since several litigations took place between both the parties and they were not having good relationship which led the family court to come to the conclusion holding the filing of the litigations a sufficient reason not to reside with the petitioner. 12. This Court, before proceeding to examine the conclusion as has been arrived at by the learned family judge is just and proper or not, deems it fit and proper to refer the definition of desertion as defined under Section 2(b) which means, “desert means to desert without reasonable cause and without the consent of and against the will of the spouse. Rayden on Divorce which is a standard work on the subject at p. 128 (6th Edn.) has summarised the case-law on the subject in these terms: “Desertion is the separation of one spouse from the other, with an intention on the part of the deserting spouse of bringing cohabitation 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.” The legal position has been admirably summarised in paras-453 and 454 at pp. 241 to 243 of Halsbury's Laws of England (3rd Edn.), Vol. 12, in the following words: “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. In view of the large variety of circumstances and of modes of life involved, the Court has discouraged attempts at defining desertion, there being no general principle applicable to all cases. Desertion is not the withdrawal from a place but from a state of things, for what the law seeks to enforce is the recognition and discharge of the common obligations of the married state; the state of things may 10 usually be termed, for short, „the home‟. There can be desertion without previous cohabitation by the parties, or without the marriage having been consummated. The person who actually withdraws from cohabitation is not necessarily the deserting party. The fact that a husband makes an allowance to a wife whom he has abandoned is no answer to a charge of desertion. The offence of desertion is a course of conduct which exists independently of its duration, but as a ground for divorce it must exist for a period of at least three years immediately preceding the presentation of the petition or, where the offence appears as a cross- charge, of the answer. Desertion as a ground of divorce differs from the statutory grounds of adultery and cruelty in that the offence founding the cause of action of desertion is not complete, but is inchoate, until the suit is constituted. Desertion is a continuing offence. It is, thus, evident from the aforesaid reference of meaning of desertion that the quality of permanence is one of the essential elements which differentiates desertion from wilful separation. If a spouse abandons the other spouse in a state of temporary passion, for example, anger or disgust, without intending permanently to cease cohabitation, it will not amount to desertion. For the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there, namely, (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end. Similarly two elements are essential so far as the deserted spouse is concerned: (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. In such a situation, the party who is filing for divorce will have the burden of proving those elements. Recently also, the Hon'ble Apex Court in Debananda Tamuli vs. Kakumoni Kataky, (2022) 5 SCC 459 has considered the definition of „desertion‟ on the basis of the judgment rendered by the Hon'ble Apex Court in Lachman Utamchand Kirpalani [Lachman Utamchand Kirpalani v. Meena, AIR 1964 SC 40] which has been consistently 11 followed in several decisions of this Court. The law consistently laid down by this Court is that desertion means the intentional abandonment of one spouse by the other without the consent of the other and without a reasonable cause. The deserted spouse must prove that there is a factum of separation and there is an intention on the part of deserting spouse to bring the cohabitation to a permanent end. In other words, there should be animus deserendi on the part of the deserting spouse. There must be an absence of consent on the part of the deserted spouse and the conduct of the deserted spouse should not give a reasonable cause to the deserting spouse to leave the matrimonial home. The view taken by the Hon'ble Apex Court has been incorporated in the Explanation added to sub-section (1) of Section 13 by Act 68 of 1976. The said Explanation reads thus: “13. Divorce.—(1) … Explanation.—In this sub-section, the expression “desertion” means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.” The Hon'ble Apex Court while dealing with the facts of the case of Debananda Tamuli vs. Kakumoni Kataky (supra) has observed therein that the respondent's evidence does not disclose any effort made by her to resume the matrimonial relationship. She has not filed a petition for restitution of conjugal rights. It has further been observed from the evidence that the appellant is carrying on business at Tezpur. The respondent is working as a Lecturer in University Law College at Gauhati. There is no dispute that from 01.07.2009 till date, they are staying separately. 13. Here, in the given facts of the case also, several petitions made for resumption of the matrimonial relationship by the husband who has filed petition under Section 9 of the Act for restitution of his conjugal rights being Matrimonial Suit No. 112/1998 wherein ex-parte decree has been passed. Even the husband has filed for his execution, as such, it cannot be said that the husband has not taken any endeavour for resumption of the matrimonial relationship. But, herein, the facts demonstrate that it is 12 the wife, appellant, who is not willing to come to the matrimonial home and rather she has filed a misc. case for setting aside the ex-parte decree which also suggest that there is a factum of separation and there is intention on the part of the wife, appellant, to bring the cohabitation to a permanent end. 14. With the consideration of the aforesaid interpretation of desertion, we are now proceeding to examine the evidence laid down on behalf of the parties whether desertion has been proved in the case and if so whether there was a bona fide either by the wife to return to her matrimonial home with a view to discharge matrimonial obligations and if so, whether there was an unreasonable refusal on the part of the husband to take her back. 15. It appears from the material available on record that initially the appellant has left her matrimonial home on 04.09.1998. Thereupon, the husband, the petitioner had preferred matrimonial suit being Matrimonial Suit No.112/98 under Section 9 of the Act, 1955 for restitution of his conjugal rights which was decreed ex-parte in his favour by order dated 22.4.1999, decree was signed on 06.05.1999. The appellant had also filed a case under Section 125 of Cr.P.C. vide Misc. Case No. 99/98 for maintenance in which the parties entered into compromise on 23.11.2009 accordingly, the said case was disposed of and the parties started living together. Further case of the husband is that his wife again left her matrimonial house on 10.10.2010 and since then she never returned to her matrimonial house. It transpires from the testimony of R.W.1 wherein she has admitted in her cross-examination that in the plaint of matrimonial suit No.393/01 (marked as Exht.4/1) she has stated at para-17 that her husband has left her since 03.09.1998. She has further admitted upon her cross-examination that it is true that since then she is not residing in her matrimonial home. The aforesaid matrimonial suit being Matrimonial Suit No. 393/01 was filed in the year 2001 and subsequently on the basis of the compromise dated 23.11.2009 in Misc. Case No. 99/98 filed by the respondent under Section 125 of Cr.P.C. she went to her matrimonial home and since 10.10.2010 she is not residing with him. 13 It appears from the testimony of R.W.1, the appellant, that no reason has been explained that why she has left her matrimonial home on 10.10.2010 as also nothing has come on record that she was forcibly been asked to leave the house rather it is evident that she on her own accord without knowledge and consent of the husband has left the matrimonial house. 16. This Court, on the basis of the discussion made hereinabove regarding the definition of desertion, is not the withdrawal from a place but from a state of things, for what the law seeks to enforce is the recognition and discharge of the common obligations of the married state; the state of things may usually be termed, for short, „the home‟. There can be desertion without previous cohabitation by the parties, or without the marriage having been consummated. Here, in the given facts of the case, the ground of desertion for getting decree of divorce by the husband is that the appellant has left the matrimonial home on 04.09.1998 and even though the husband has filed matrimonial suit no.112/98 under Section 9 of the Act, 1955 for restitution of his conjugal rights, which has been decreed in favour of the husband vide judgment dated 22.04.1999, but, even thereafter, the appellant has not come to her matrimonial house. However, for a short duration she came to her matrimonial house but thereafter she lived apart from her husband since the year 2010, as such, applying the interpretation of the word “desertion”, as discussed above, this Court is of the view that the respondent/petitioner has been able to prove the ground of desertion and after taking into consideration the aforesaid ground, the learned family court has passed the order answering the issue of desertion in favour of the respondent/petitioner, which according to the considered view of this Court, cannot be said to suffer from error. 17. The issue as to whether the respondent has meted out cruelty, the same has been answered while answering issue no.3 in favour of the respondent by the learned family court on the basis of the fact of decree passed in Matrimonial Suit No.112/98 under Section 9 of the Act, 1955, wherein, ex-parte decree has been passed in favour of the husband. The ex-parte decree has been challenged by filing Misc. Case No.3/99 which 14 also suggests that the appellant was not willing to live with her husband otherwise, she would have come to live with her husband but when she came to know about the decree passed under Section 9 of the Act, 1955, she has challenged the ex-parte decree. Further the respondent/petitioner filed execution case being Execution Case No. 01/99 for executing the order and decree passed in matrimonial suit no.112/98. The appellant also filed C/1 Case No.653/98 on 23.03.1998 against the petitioner and his family members under Sections 498A/406/506/323/109/34 of the Indian Penal Code. A criminal case has also been instituted being G.R. Case No.2055/2000 on 14.12.2000 under Sections 498A/323/427 of the Indian Penal Code and 3/4 of the Dowry Prohibition Act being complaint case no.1058/2000-01 on 20.12.2000. A criminal case under Section 506 of Indian Penal Code and a proceeding has been initiated under Section 107 of Cr.P.C. being Non-FIR No.51/2000. Further, the father-in-law of the petitioner also filed a title suit being Title Suit No. 19/08, however, the same was dismissed for default. The petitioner has also filed complaint case No.1062 of 2000 against the respondent and her family members under Sections 323/379/506 of I.P.C. However, all the cases as per the pleading made at paragraph-9 of the plaint, were withdrawn/dismissed at the instance of the order passed by the High Court which fact has been admitted by the respondent/appellant in her written statement at para-9. The case under Section 498 is still pending as would appear from the statement made to that effect at para-13 of the testimony of the P.W.1. 18. The learned Judge after taking into consideration the multiplicity of case filed on behalf of both the parties, therefore, came to the finding by taking into consideration the definition of cruelty as has been held by the Hon'ble Apex Court in Dr. N.G. Dastane vs. Mrs. S. Dastana, (1975) 2 SCC 326 wherein it has been laid down that the Court has to enquire, as to whether, the conduct charge as cruelty, is of such a character, as to cause in the mind of the petitioner, a reasonable apprehension that, it will be harmful or injurious for him to live with the respondent. 19. This Court, in order to scrutinize the legality and propriety of the aforesaid finding, deems it fit and proper to take into consideration the 15 meaning of „cruelty‟ as has been held in 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. According to the Hon‟ble Apex Court, “cruelty” is the “conduct in relation to or in respect of matrimonial conduct in respect of matrimonial 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 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”. In 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 16 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 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. 20. It is, thus, evident that the Hon'ble Apex Court in the recent judgment passed in Joydeep Majumdar v. Bharti Jaiswal Majumdar (supra) has been pleased to lay down 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. Here, in the given facts of the case as per the reference of the cases made on behalf of the appellant and more particularly the decree passed in the application filed under Section 9 of the Act, 1955 in favour of the respondent but the appellant has filed case for setting aside the ex- parte decree. Further so many cases have been filed under the provision of I.P.C. and the reference of those cases have been made by the petitioner/respondent to bring the conduct of the appellant under the fold of cruelty, as such, it cannot be disputed that filing of the litigation has made the life of the spouse miserable as to make it unreasonable to make one live with the other. 17 21. This Court, therefore, is of the view on the basis of the discussion made hereinabove that the finding which has been arrived at by the learned family court pertaining to the issue of proving the ground of cruelty, according to the considered view of this Court, cannot be said to suffer from error. The issue no.3 and 4 which has been answered in favour of the petitioner and against the respondent, according to the considered view of this Court, also suffers from no error on the ground that the ground of desertion and cruelty has been found to be established as per the discussion made hereinabove. 22. This Court, after having discussed the factual aspect with the legal position, is required to refer herein that under which circumstances, the judgment can be interfered with. The position of law is well settled that the judgment can be interfered with if the judgment suffers from perversity and a perverse finding is one, if it is arrived at without any material or if it is arrived at or inference is made on material, which would not have been accepted or relied upon by a reasonable person convergent with the law. Reference in this regard be made to the judgment rendered by the Hon'ble Apex Court in Kuldeep Singh vs. Commissioner of Police and Ors., (1999) 2 SCC 10 wherein it has been held that “a broad distinction has, therefore, to be maintained between the decisions which are perverse and those which are not. If a decision is arrived at on no evidence or evidence which is thoroughly unreliable and no reasonable person would act upon, howsoever compendious it may be, the conclusions would not be treated as perverse.” 23. This Court, therefore, is of the view as per the discussion made hereinabove that no ground of perversity has been shown rather the learned family court after taking into consideration the testimony of the witnesses has passed the impugned judgment, as such, basing upon the reasoning hereinabove, the same requires no interference. 18 24. Accordingly, the instant appeal fails and is dismissed. (Sujit Narayan Prasad, J.) (Subhash Chand, J.) Saurabh/- A.F.R.