SMT. SARITA MISHRA Vs. SHASHI DHAR MISHRA

JUDGEMENT

(1.) This appeal has been filed by the appellant against the judgment and decree dated 20/12/2007, passed by the Principal Judge, Family Court, Allahabad by which the petition filed by the Husband under Section 13 (1) (ia) of the Hindu Marriage Act for divorce has been allowed and the petition filed by the wife under Section 9 of the Hindu Marriage Act for restitution of conjugal right has been dismissed. Wife aggrieved by the said judgment and decree has come up in the appeal. The brief facts of the case as emerge from the pleadings of the parties are: The husband (hereinafter referred to as the "plaintiff" and the wife as "defendant"). The plaintiff and defendant were married by Hindu Rites on 28/5/2004 at Gogour, Baghrai, Pratapgarh the village home of the wife. After three days of marriage "Gauna" ceremony was performed on 30/5/2004, and the wife was taken to the residence of the husband at Champara Ka Pura District Allahabad, where both of them cohabited as husband and wife. Thereafter the wife on 21/6/2004, along with her brother went to her parents house. The Husband was working at Mumbai and went back to Mumbai in July, 2004. The wife returned to her husband's house on 20/5/2005 and remained there till 28/4/2006. The husband filed a petition under Section 13 of the Hindu Marriage Act on 25/3/2006. The Family Court, passed an order dated 25/3/2006 and 29/4/2006 prohibiting the wife to live in her husband's house. The said order was challenged by the wife in this court by filing a Writ Petition No.35210/2006, which was allowed by this Court on 03/8/2006. It is relevant to note that the wife on 29/4/2006 appeared before the Family Court and made a statement that she wants to live in her "Sasural". Subsequent to the order of this Court the Marriage Petition No.200/2006 and Case No.769/2006 were consolidated. The plaintiff examined himself in support of his claim as P.W.1. and the wife examined herself as D.W.1 along with D.W.2, Bindeswari Prasad Tiwari. The parties filed certain documentary evidence including the order passed under Section 125 Cr.P.C. on 14/9/2006. The Family Court vide order dated 20/12/2007, has allowed the divorce petition and dismissed the petition filed by the wife under Section 9 of the Hindu Marriage Act. The allegations made by the plaintiff in the petition filed under Section 13(1) was that her wife on 07/6/2004 revealed about her illicit affair with another person namely:Vinod of her village prior to her marriage. The plaintiff further alleged that the wife informed the husband that she is not satisfied with their sexual relationship. It was further stated by the husband that whenever he approached her wife for physical relationship, she always tried to avoid him. It was further stated that the wife used to quarrel with the family members of the husband and she used to wake up at 8.00 A.M. and used to wear chappals in the Pooja Room and in the Kitchen. It was further alleged that on 18/6/2005, wife called the husband and told that she is pregnant. Allegations have been made that the wife's father Shri Gaya Prasad Tiwari came at the husband's house and abused the plaintiff. On 06/7/2005, the wife was taken for medical checkup where the pregnancy report was found negative. It has been further stated that when the Husband told the wife on 08/7/2005 that he is going to Mumbai, she expressed her desire to go to Mumbai, but the husband told her not to accompany her since his job was temporary in nature. It is alleged that the wife threatened to commit suicide by entering her finger in the electric switch board. The entire neighbourhood gathered at the door of the plaintiff and the plaintiff was extremely disturbed. Plaintiff claimed to have sent a letter to the Senior Superintendent of Police on 11/7/2005. It is alleged that on 14/7/2005, the wife tried to commit suicide again by drinking a liquid of sindoor powder. On the same date the wife's father went to the Senior Superintendent of Police and made a written complaint under Section 498A I.P.C.. It is further stated that against this report no F.I.R. was registered against the husband and his family members and the complaint was found to be false. Allegation has been made by the husband that he and his family members have suffered mentally and physically. The wife tortured the husband both mentally and physically. On the aforesaid ground, the husband claimed decree of divorce. Wife filed a written statement in the Marriage Petition No.200/2006 filed under Section 13 (1) (ia) denying all the allegations. It was stated that after the marriage both the husband and wife were living happily and were performing their matrimonial obligations and there was no complaint and the story set up in the plaint is all imaginary. It was stated by the wife that the real person on whose instance the defendant is being targeted is the sister's husband. It was stated that the sister's husband of the plaintiff was living in the "sasural" and he had attempted to molest the wife which was complained to the plaintiff's mother. It was stated by the wife that she is willing to live with the husband and carry on her matrimonial obligation. The allegation that the wife was pregnant was incorrect. Medical examination was made when the pregnancy was found negative. Wife claimed to be continuously living in her in -laws house from 20/5/2005 to 28/4/2006. The allegation that she informed her husband that she had a pre marriage relationship was denied. It was further stated that the husband lives in Mumbai and by living in Mumbai his mental frame has become as such that female at village also have boyfriends, which is imaginary mental state of the husband. It is true that the wife's father has submitted a complaint to the Senior Superintendent of Police in which an inquiry was made. It was further stated in the statement that the wife made a statement before the police that no demand of dowry has been made by her husband or by the in - laws. It was stated by the wife that she was not properly treated in her in -laws house. She stated that she had been living in her in -laws house and discharging her matrimonial duties. The wife filed Petition No.769/2006 on 16/10/2006 under Section 9 of the Hindu Marriage Act praying for restitution of conjugal rights. Wife stated in the petition that the husband is working as videographer in Mumbai and at the instigation of his sister's husband he is keeping distance with the wife. The wife stated that she treated the plaintiff as her husband and she has not done anything against his wishes and she has decided to live in the in -laws house till her death. The wife pleaded that she will live in her "sasural" till her death and she will not leave her husband at any cost. She stated that it will be her dead body which shall go from her "sasural". The wife/defendant prayed that the husband be directed to keep her in his house even though husband keeps on living in Mumbai. Both the petitions i.e. Marriage Petition No. 200/2006 filed under Section 13 (1) (ia) of the Hindu Marriage Act and Case No. 769/2006 filed by the wife under Section 9 of the Hindu Marriage Act were consolidated and heard together. In Suit No. 2006/2006, only two issues were framed namely: (1) Whether the plaintiff is entitled for decree of divorce under Section 13 (1) (ia) of the Hindu Marriage Act on the ground of cruelty as stated in the plaint and, (2) Whether the plaintiff is entitled for any relief, if yes, then to what relief? The Principal Judge, Family Court has decreed the suit of plaintiff for divorce on the ground of cruelty. The Principal Judge, Family Court came to the conclusion that the defendant has treated the plaintiff with mental and physical cruelty, hence the issue is to be decided in favour of the plaintiff. It is relevant to note that neither there was any case pleaded for physical cruelty in the plaint nor there was any evidence of any physical cruelty committed by the defendant. The Principal Judge, Family Court without considering the pleadings or evidence and without any basis has found the physical cruelty also proved which clearly shows the non -application of mind of the Principal Judge, Family Court and the cursory manner in which the judgment has been delivered. The Principal Judge, Family Court while holding the mental cruelty proved by the defendant has relied on the following circumstances: (a) On the basis of evidence available on record, it is proved that the defendant had illicit relation with any boy of her village which was told by the defendant herself to her husband after the marriage. Having illicit relation prior to marriage and telling it to the husband after marriage is mental cruelty. (b) The defendant had made allegation against the sister's husband of plaintiff that he tried to commit immoral act on the defendant for which no F.I.R. was lodged by the defendant. (c ) The defendant had made allegations for demand of dowry of Rs. 50,000/ - on the plaintiff, but with regard to demand of dowry on different stages different facts have been mentioned. The allegation of demand of dowry on the plaintiff is an instance of mental cruelty . Above are the basis and the findings recorded by the Principal Judge, Family Court, Allahabad for proving the mental cruelty. For examining the correctness of the findings recorded by the Principal Judge, Family Court, Allahabad, it is necessary to have a look on the pleadings and the evidence on record. First we proceed to examine the allegations made by the plaintiff against her husband about she having illicit relation with a boy from her village. In the Marriage Petition No.200/2006, the pleadings to the said effect has been made by the plaintiff in paragraph 5. It was pleaded in paragraph 5 that the wife revealed to the husband on 07/6/2004 about her illicit affair with another person namely:Vinod prior to her marriage. The plaintiff appeared in the witness box to support his case. In his statement recorded on 14/9/2006, he stated in his cross examination that after the marriage when the defendant came to his house she told that she loves another person and she has been forced to marry the plaintiff. Plaintiff further stated in his examination -in -chief that he asked his wife to forget all events prior to marriage and she should lead a new life with him. In the cross examination, the plaintiff again stated that he asked his wife to forget the things of past and lead a new life with the plaintiff. On a question being put to the plaintiff in the cross examination, he stated that he does not know whether his wife had relation with any one or not. He further stated that he never sent anyone in the village of the wife or nearby places to find out the truth. He stated that he is stating the above fact on being told by the wife herself. He again stated that the wife told him that she cannot live with the plaintiff since she loves Vinod. Plaintiff stated that this fact was told by the wife on 07/6/2004. The wife filed a written statement in Petition No. 200/2006 and has categorically denied the allegations. It was stated that the story cooked up in the plaint is defamatory and imaginary. In the petition filed under Section 9 of the Hindu Marriages Act, the defendant has pleaded that when the wife went to her "Sasural" the husband inquired from the defendant about the two words which were tattooed in both the hands of the defendant "B" and "S". The defendant explained that before marriage her mother got the alphabet "B" tattooed in her hand which was on account of her rashiname "Babli" and after engagement with the plaintiff she got the name of her husband Shashidhar i.e. "S" tattooed in one hand. Wife further stated that her husband told her that "B" means "Vinod" and "S" means "Sarita" . In her examination -in -chief she made allegations against the plaintiff's sister's husband that he tried to do immoral act with the defendant in August, 2005 which was complained by the defendant to her mother -in -law. She further stated that when her husband came, allegation was made against the defendant by other family members including the sister's husband of the plaintiff that defendant is pregnant with some other person. It was stated by the defendant in her statement that she was taken by the family members for medical examination where the pregnancy report was negative. It is relevant to note that in her statement as well as in her examination - in -chief she never made any allegations against her husband, rather she stated that her husband is a "Gentlemen" and he has never levelled any wrong allegations on her. She stated that it was on account of the plaintiff's sister's husbands instigation, allegations have been levelled against the defendant. In her cross -examination, she clearly stated that it is wrong to say that she loves a boy namely:Vinod with whom she had illicit relations. She further stated that in her village no boy lives with the name of Vinod. An application was filed by the defendant on 05/2/2007, praying for summoning of fabricated Letter/Diary dated 07/7/2005, from the plaintiff which was submitted by the plaintiff in Writ Petition No.35201/2006, for obtaining a favourable order in his favour. The defendant prayed that the original documents be summoned from the plaintiff and they be got examined by the Hand Writing Expert. On the said application objection was invited on 07/3/2007, by the Court but subsequently no order was passed for examination by the Hand Writing Expert.The defendant in her statement categorically denied that she wrote the diary or letter. It was stated that neither she wrote any letter to her father nor she writes any Diary. In the cross - examination the defendant was confronted by the letter/diary dated 07/7/2005, which she denied. The allegations made by the plaintiff against the defendant that she had revealed to the plaintiff on 07/6/2004 that she loves a boy namely:Vinod of her Village has not been proved by any cogent evidence. There is only a mere statement by the plaintiff in his petition as well in his oral statement. In the oral statement of the plaintiff also it was stated that the defendant informed the plaintiff that she loves one person named Vinod of her Village. When the plaintiff was asked as to whether the plaintiff knows that the defendant had relation with a person namely:Vinod, he categorically stated in his cross -examination that he does not know as to whether his wife had relation with any Vinod or not. He further stated in his cross examination that he never made any inquiry in the defendant's Village or nearby places about Vinod. The Indian Evidence Act, 1872 gives protection from disclosing any communication between the husband and wife. There is a restraint on other spouse to disclose any such communication unless the person who made it, consents but that privilege is with an exception in a suit between husband and wife or when one married person is prosecuted by other and in such circumstances, such communication has to be proved by placing cogent evidence. More so, when the wife categorically denied such allegations, the statement of the husband made in the plaint as well as in his oral statement that the defendant revealed him about her affair with one Vinod of her village is more or less a hearsay evidence. The Principal Judge, Family Court, Allahabad in his judgment has neither discussed nor referred to any other material on which the finding was recorded that the wife had relation with one Vinod prior to her marriage. Thus, there being no evidence to prove such allegations, we are of the view that the Principal Judge, Family Court, Allahabad committed error in coming to the conclusion that the allegation was proved that wife had relation with one Vinod prior to her marriage. Consequently, the conclusion drawn by the Principal Judge, Family Court, Allahabad that wife having relation with one Vinod prior to her marriage, mental cruelty is proved also falls on the ground. There is one more aspect which needs to be noted. It is relevant to note that although in paragraph 5 of the plaint the plaintiff has stated that the wife revealed about her illicit affair prior to her marriage, but in her written statement this pleading was denied by the wife. In his oral statement the plaintiff had stated that his wife told her that she loves one Vinod of her village. The plaintiff categorically stated in his statement that he told his wife that you forget the past and lead a new life with him. In the oral statement he does not support the allegation of illicit relation with one Vinod prior to her marriage, rather he only stated that his wife stated that she loves Vinod. As noted above, in the cross -examination the plaintiff stated that he does not know whether his wife had any relation with Vinod or not. The statement of the husband that he told her wife to forget the past and lead a new life also indicates the case of the plaintiff. Even on the said allegation he was ready to live with the wife and asked her to lead a new life forgetting the past thus clearly disproves the allegation of mental cruelty of the wife on husband. The second reason give by the Principal Judge, Family Court, Allahabad was that the allegation has been made by the defendant against the plaintiff's sister's husband. The defendant has made categorical allegation against the plaintiff's sister's husband who lives as "Ghar Jamai". In the written statement, the defendant had clearly stated that the plaintiff's sister's husband tried to outrage the modesty of the defendant which was complained by the defendant to her mother -in -law as well as to the plaintiff. In the oral statement also the defendant supported these allegations and in fact she stated that it is the plaintiff's sister's husband who is instigating the plaintiff against the defendant. The Principal Judge, Family Court, Allahabad has stated that no F.I.R. was lodged by the defendant. We are of the view that looking to the relations between the parties, non -lodging of an F.I.R. cannot be read as a circumstance against the defendant, whereas she categorically stated that she complained to her mother -in -law. We fail to see that the above allegations against the plaintiff's sister's husband how can be said to be an act of cruelty on the husband, whereas the defendant submits that she told the husband about the incident, who ignored the same. The third circumstance relied on by the Principal Judge, Family Court, Allahabad upholding the charge of cruelty is that the defendant made allegations against the plaintiff of demanding dowry of Rs. 50,000/ -. In the plaint filed by the plaintiff, there was no allegation made against the defendant that she made any allegation for demand of dowry of Rs.50,000/ -. The plaintiff regarding the demand of dowry of Rs. 50,000/ - in the plaint, has made allegation against the father of the defendant that he lodged false complaint under Section 498 -A I.P.C. on 14/7/2005 with the Senior Superintendent of Police, Allahabad. It was stated in paragraph 18 that the police inquired and found the complaint false. In the oral statement of the plaintiff there is no allegation against the defendant that she made any demand of dowry against the plaintiff. In the oral statement also, allegations were made against the father of the defendant who threatened the plaintiff that he will get the entire family members of the plaintiff sent to jail on the allegations of dowry. It is relevant to note that on a complaint filed by the father of the defendant no criminal case was ever registered against the plaintiff or his family members, rather in the inquiry the defendant herself has appeared before the Circle Officer, Soraon, Allahabad and stated that no demands have been made of dowry from the family members of the husband of the defendant. The report of the Circle Officer, Soraon, Allahabad is filed as Paper 35 Kha/5 dated 10/8/2005, where the statement of defendant has been noted. The defendant having stated before the police that no demands have been made by the plaintiff or his family members for dowry clearly proves that the defendant never made any allegations against the plaintiff for demand of dowry. In the oral statement also she made a statement before the police. She further stated that she made such such statement before the police against her own father so that her in - laws may treat the defendant well. Before the police, the plaintiff also made a statement that there was some tension between the husband and wife which has now been settled and now there is no difference between the husband and wife and the wife is living happily with the husband. There is one more fact which has to be specifically noted. The wife after her marriage on 28/5/2004, went to the husband's house on 30/5/2004. After "Gauna" ceremony both of them lived till 21/6/2004 happily and carried their matrimonial obligations. There is no material on the record to take any other view. Wife went to her parents house and thereafter both again met at Allahabad, Sangam on 05/1/2005 in connection of a ceremony. Wife went back to her parents house and came to her husband's residence on 25/5/2005, and thereafter lived at the husband's house till 28/4/2006, when she was removed from her husband's house in pursuance of the interim order passed by the Judge, Family Court on an application filed by the plaintiff that the wife should be prohibited to live in the husband's house. The interim order passed by the Judge, Family Court prohibiting the wife to live in the husband's house was challenged by the wife in the High Court by filing Writ Petition No.35201/2006, and this Court vide order dated 03/8/2006 set -aside the order of the Judge, Family Court and subsequent to setting -aside of the said order, wife against started living at the husband's village home at Allahabad. Learned counsel for the parties have stated before the Court that the wife is still living in the village house of the plaintiff, although it has been stated by the learned counsel for the defendant/appellant that the husband is living at Mumbai and husband's parents are also not living with the wife and she has been left alone to live in the village house. As noted above, the wife in her petition filed under Section 9 of the Hindu Marriages Act, has categorically stated that she will continue to life at the husband's house till her death and actually she is living at her husband's village house till date. From the aforesaid discussions, it is clear that there was no evidence on the record to prove any charge of cruelty against the wife. None of the allegations of cruelty made against the wife as found by the Principal Judge, Family Court, Allahabad have been proved. The Principal Judge, Family Court, Allahabad committed error in decreeing the suit for divorce in favour of the plaintiff. At this juncture, it is relevant to refer to certain judgments of the Apex Court on mental cruelty which has come up for consideration. The Apex Court had occasion to consider the mental cruelty in context of Hindu Marriages Act in Samar Ghosh Vs. Jaya Ghosh (2007) 4 SCC 511. The Apex Court had taken into consideration all the earlier judgments of the Apex Court and other courts and elaborately discussed the concept of mental cruelty. It is relevant to note the paragraph nos.39,40,44,46,47,48,49,50 and 101 of the judgment which throws considerable light on the controversy which has arisen in the present case. "39.Shorter Oxford Dictionary defines 'cruelty' as 'the quality of being cruel; disposition of inflicting suffering; delight in or indifference to another's pain; mercilessness; hard -heartedness'. 40. The term "mental cruelty" has been defined in the Black's Law Dictionary [8th Edition, 2004] as under: "Mental Cruelty - As a ground for divorce, one spouse's course of conduct (not involving actual violence) that creates such anguish that it endangers the life, physical health, or mental health of the other spouse." 44.This Court has had an occasion to examine in detail the position of mental cruelty in N.G. Dastane v. S. Dastane reported in (1975) 2 SCC 326 at page 337, para 30 observed as under : - "The enquiry therefore has to be whether the conduct charges 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." 46.In the case of Shobha Rani v. Madhukar Reddi reported in (1988) 1 SCC 105, this Court had an occasion to examine the concept of cruelty. The word 'cruelty' has not been defined in the Hindu Marriage Act. It has been used in Section 13(1)(i)(a) of the Act in the context of human conduct or behaviour in relation to or in respect of matrimonial duties or 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, it is a question of fact and degree. If it is mental, the enquiry must begin as to the nature of the cruel treatment and then as to 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, 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. The absence of intention should not make any difference in the case, if by ordinary sense in human affairs, the act complained of could otherwise be regarded as cruelty. Intention is not a necessary element in cruelty. The relief to the party cannot be denied on the ground that there has been no deliberate or wilful ill -treatment. 47. In Rajani v. Subramonian AIR 1990 Ker. 1 the Court aptly observed that the concept of cruelty depends upon the type of life the parties are accustomed to or their economic and social conditions, their culture and human values to which they attach importance, judged by standard of modern civilization in the background of the cultural heritage and traditions of our society. 48.Again, this Court had an occasion to examine in great detail the concept of mental cruelty. In the case of V. Bhagat v. D. Bhagat (Mrs.) reported in (1994) 1 SCC 337, the Court observed, in para 16 at page 347, as under: "16. Mental cruelty in Section 13(1)(i -a) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. While arriving at such conclusion, regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made." 49. This Court aptly observed in Chetan Dass v. Kamla Devi reported in (2001) 4 SCC 250, para 14 at pp.258 -259, as under: "14.Matrimonial matters are matters of delicate human and emotional relationship. It demands mutual trust, regard, respect, love and affection with sufficient play for reasonable adjustments with the spouse. The relationship has to conform to the social norms as well. The matrimonial conduct has now come to be governed by statute framed, keeping in view such norms and changed social order. It is sought to be controlled in the interest of the individuals as well as in broader perspective, for regulating matrimonial norms for making of a well -knit, healthy and not a disturbed and porous society. The institution of marriage occupies an important place and role to play in the society, in general. Therefore, it would not be appropriate to apply any submission of "irretrievably broken marriage" as a straitjacket formula for grant of relief of divorce. This aspect has to be considered in the background of the other facts and circumstances of the case." 50.In Savitri Pandey v. Prem Chandra Pandey reported in (2002) 2 SCC 73, the Court stated as under: "Mental cruelty is the conduct of other spouse which causes mental suffering or fear to the matrimonial life of the other. "Cruelty", therefore, postulates a treatment of the petitioner with such cruelty as to cause a reasonable apprehension in his or her mind that it would be harmful or injurious for the petitioner to live with the other party. Cruelty, however, has to be distinguished from the ordinary wear and tear of family life. It cannot be decided on the basis of the sensitivity of the petitioner and has to be adjudged on the basis of the course of conduct which would, in general, be dangerous for a spouse to live with the other." 101.No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of 'mental cruelty'. The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive. (i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty. (ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party. (iii) Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable. (iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty. (v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse. (vi) Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty. (vii) Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty. (viii) The conduct must be much more than jealousy, selfishness, possessiveness, which causes unhappiness and dissatisfaction and emotional upset may not be a ground for grant of divorce on the ground of mental cruelty. (ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day to day life would not be adequate for grant of divorce on the ground of mental cruelty. (x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill -conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty. (xi) If a husband submits himself for an operation of 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." Learned counsel for the respondent relying on a judgment of the Apex Court in Satish Sitole Vs. Ganga (SMT), (2008) 7 SCC 734, submitted that the husband and wife not being living together and attempt for reconciliation having been failed, it would be in the interest of the parties to severe the matrimonial ties. Reliance has been placed on paragraph 9, 12 and 13. It is useful to note certain facts in the case of Satish Sitole (supra). Parties were married on 22/5/1992. Wife lodged a complaint against the husband and his family members under Section 498 -A of the Penal Code,1860 alleging demand of dowry. The case went for trial and on 02/2/2003 finally, the accused were acquitted. The husband filed a matrimonial case for divorce. The Court found the charge of cruelty and desertion proved, but did not grant a decree for divorce, but passed a decree of judicial separation. Cross appeal was filed by the appellant and the High Court reversed the judgment. The High Court held that it was not satisfied that the appellant had been treated with cruelty. An appeal was filed by the husband in the Apex Court. In the above case, the Apex Court made observations, as noticed above. The parties lived separately in the above case for 14 years. In the above background, the Court directed the matrimonial ties be broken. The said case is clearly distinguishable from the facts of the present case. In the present case, the wife is living in the village home of the husband and has not left her husband. It is the husband who is working at Mumbai who has not taken the wife to Mumbai which fact has come on the record. The husband in his statement has stated that the wife asked him to take her to Mumbai, but it was the husband who told her that his job is temporary in nature and at present it is not possible to take the wife to Mumbai. When no allegations of cruelty has been found proved against the wife, we are of the view that merely because the husband does not wish to live with the wife is not a good ground to grant divorce. Granting divorce in such cases will be nothing but putting premium to such conduct of the husband under which he is not fulfilling his matrimonial obligations. Marriage is not only a social relation, but it is an institution which is to be respected by both the spouse and conduct of the spouse has to be towards nurturing and saving the institution. The wife's stand that she treats the plaintiff as her husband and she will live in the plaintiff's house till her death has to be given respect and sanctity. Wife in her written statement and oral statement has not made any allegation against the husband, rather she stated that her husband is a "Gentlemen" and it is at the instance of the plaintiff's sister's husband that he had distanced himself from his wife. The Principal, Judge, Family Court has not adverted to the evidence nor has properly marshalled the evidence and has delivered a cryptic judgment granting decree and refusing the restitution of conjugal rights. We are of the view that the wife has made out a case for restitution of conjugal rights and the petition filed by the wife being Petition No.769/2006 under Section 9 of the Hindu Marriage Act for restitution of conjugal rights deserves to be allowed and is hereby allowed. No case has been made out to grant divorce to the husband. In the result the appeal is allowed. The judgment and decree dated 20/12/2007, passed by the Principal Judge, Family Court, Allahabad is hereby set -aside. The Petition No.200/2006, filed by the plaintiff for divorce is dismissed. The petition No.769 of 2006 filed by wife for restitution of conjugal rights is decreed. Parties shall bear their own costs. Order Date : -24.5.2013