A.K. Gohil, J.
1. Appellant/wife has preferred this appeal under Section 28 of the Hindu Marriage Act, 1955 challenging the part of the judgment and decree dated 16-10-1999 rendered by IXth Additional District Judge, Indore, in Hindu Marriage Case No. 62 of 1998, whereby she was granted a decree of judicial separation instead of a decree for divorce.
2. Brief facts of the case, as per the appellant/petitioner-wife, are that she was married with the respondent/husband on 17-7-1994 at Indore. Thereafter, they lived together upto 1-1-1997 in pieces but they are not having any relation w.e.f. 1-1-1997. On 15-11-1996 and 2-1-1997 she served notices and then filed a petition for divorce on 16-12-1997, on the ground of cruelty. The petitioner submitted in the petition that she was having old widow mother and one unmarried elder brother in the family. The respondent/husband was making accusation against the appellant/wife that she is having illicit relations with her own elder brother and the respondent is having illicit relations with other woman. The respondent also demanding dowry and was also threatening to brake the relation from her mother and elder brother. On 1-1-1997 respondent got her Mangalsutra removed from her neck and ended the relations for ever. She further pleaded in the petition that in reply dated 13-1-1997 of notice the respondent made allegations that no legal marriage was performed on 17-7-1994 and they were not having relations like husband and wife and the appellant/wife lived only for a day with the respondent/husband and on the first night she did not allow the respondent to cohabit and consume the marriage and also made serious allegations against the doubtful character of the appellant/wife and also made allegations of cruelty against the appellant. Before the Trial Court appellant Sunita examined herself as P.W. 1 and also examined one Tulsiram, who is her neighbour as P.W. 2 and respondent Priya Kumar only examined himself as D.W. 1. Reply of the notice dated 13-1-1997 has been produced as Ex. D-1. After appreciating the evidence of the parties, the Trial Court has recorded a positive finding on Issue No. 1 in favour of the appellant/wife that the respondent/husband was responsible for practising cruelty, but refused to grant a decree for divorce and instead granted a decree for judicial separation, against which the appellant/wife has preferred this appeal.
3. I have heard Shri B.A. Nigam, learned Counsel for appellant; Shri R.K. Bhadang, learned Counsel for respondent; and perused the pleadings and evidence on record.
4. Sunita (P.W. 1) has stated in her examination-in-chief that after marriage they resided together up to 1-1-1997 and during this period the respondent/husband was making very serious allegations against her character and suspecting her illicit relation with her own elder brother, who is like her father and is respected to her. She also stated various other incidents about the cruelty practised by the respondent/husband. It is not in dispute that during the pendency of the proceedings, mother of the appellant has expired and she is residing with her own elder brother who is unmarried. Though the petitioner has also stated about the illicit relation of the respondent with various other women. In this regard she has also examined Tulsiram (P.W. 2) who has stated in his examination-in-chief that on one day he saw that the respondent/husband was sleeping with one woman and no other evidence have been produced.
5. Priya Kumar (D.W. 1) has stated in his examination-in-chief that the appellant/wife lived only one day with him and on first night there was no cohabitation because the wife did not allow on one or the other pretext to cohabit his marriage and thereafter he stated that next day she left the house of the respondent and thereafter they are not having any relations as husband and wife. D.W. 1 has admitted in Para No. 17 that he was having suspicion against the wife that she is having illicit relations with her own elder brother Suresh and both are cohabiting and the appellant/wife is not a lady of good character.
6. On the basis of the aforesaid clear cut evidence on record, the Trial Court has recorded a positive finding in favour of the appellant/wife and against the respondent/husband for practising cruelty but recorded findings on Issue Nos. 2 and 3 against the appellant/wife. The Trial Court has found that there is no evidence on record to prove that the respondent/husband is having illicit relation with many other ladies and the Trial Court has also found that the character of the appellant is not doubtful. After appreciating the aforesaid evidence on record, I am of the view that this was a fit case for grant of decree for divorce in favour of the appellant/wife on the ground of cruelty. If the husband makes an allegation against the wife that she is having illicit relations with her own elder brother, it is a serious kind of allegation and can be a ground causing mental cruelty to the appellant/wife and a decree for divorce can be granted on this basis. D.W. 1 has clearly admitted in his evidence that he is having suspicion about illicit relations with her own brother. On the contrary Sunita (P.W. 1) has denied this allegation and has stated that her elder brother is like her father and is respected in the family though he is not married but because he is not married, this cannot be concluded that he is having illicit relation with her own younger sister. Though the elder brother Suresh has not been examined in this case but certainly this allegation could have been alone a ground for grant of a decree for divorce. It is also true that the Trial Court has recorded a positive finding in favour of the appellant/wife about practising cruelty by the husband but simply has granted a decree for judicial separation.
7. It is true that if such allegation is made, it is a very serious kind of allegation and on the very face of it, it constitutes cruelty. The word 'cruelty' has not been defined and could not have been defined. That can only be inferred from a human conduct and behaviour. If the husband is having a serious suspicion about the character of the wife and her illicit relation with her own elder brother, it is a very serious kind of allegation and in both the ways it would cause mental harm and cruelty to both, whether it is true or not. Cruelty is a course of conduct of one which adversely affects the other. The cruelty may be mental or physical, intentional or unintentional. This may have injurious effect on the spouse. If such kind of allegation or accusation is made and if it is also admitted by the husband in the evidence that he is having a serious doubt on the character of the wife then in the opinion of this Court it constitutes serious act of cruelty and this itself is a sufficient ground to break down the marriage between the parties by a decree of divorce under Section 13(1)(i-a) of the Hindu Marriage Act.
8. The Apex Court in the case of Shobha Rani (AIR 1988 SC 121); V. Bhagat [(1994) 1 SCC 337]; and also in the case of Dr. N.G. Dastane (AIR 1975 SC 1534) has elaborately defined 'cruelty' which is not only physical but may be mental and also may cause harm or injury to health, reputation, the working career of the spouse.
9. In the instant case, from the evidence of P.W. 1 and also from the evidence of D.W. 1, it is clear that the husband has made serious kind of allegation against the appellant/wife and the learned Judge has not considered the seriousness of the allegations. In this case an attempt was made to reconcile the dispute between the husband and wife but the reconciliation failed. Both are living separately from 1-1-1997. When the husband is having serious suspicion and doubt on the character of the wife and making heinous allegations against her, then why he is objecting divorce and why he is not coming forward for divorce is itself creating doubt. But it is certain that in such circumstances there is no chance or possibility of any conjugal harmony between them. Taking a totality of the view of the evidence on record and the incompatibility of temperament of the two spouses it is difficult to conclude that they can live together. Under the facts and circumstances of the case their living together is impossible. According to this Court for all practical purposes the marriage has broken down irretrievably and, therefore, deserves to be dissolved.
10. Consequently, this appeal is partly allowed and marriage between the parties is dissolved by a decree of divorce under Section 13(1)(i-a) of the Hindu Marriage Act, 1955 on the ground of cruelty practised by the respondent/husband. No order as to costs. A decree be drawn up accordingly.