Kiran Anand Lall, J.
1. This F.A.O. is directed the judgment and decree dated 7.3.1996 passed by the District Judge, Karnal, dissolving marriage of parties under Section 13 of the Hindu Marriage Act, 1955 (for short 'the Act') on the ground of cruelty. About the pleaded second ground of divorce viz. desertion, the court held that as the petition was presented by the husband-respondent in March, 1992 i.e. barely six months after the wife-appellant left the marital home on 15.9.1991, this ground was not available to him.
2. The case of the respondent herein, as set up in the divorce petition, was that marriage between the parties was solemnised on 15.11.1984 at Rohtak according to Hindu rites and ceremonies. After marriage, the appellant joined the respondent at his matrimonial house, at Karnal. Three children, Sunny, Sapna, and Jimmy were born out of the wedlock. The behaviour and attitude of the appellant, from the very beginning, was harsh and cruel towards the respondent and his parents. She was disobedient to all of them and used to pick up quarrels with the respondent and his mother on trivial matters. She is a person of short temperament and used to create nuisance and loose her balance of mind on trivial matters. The respondent tired his best to persuade her to mend herself but to no effect, She could not adjust herself in the joint family and used to press the respondent to live separately from his parents. With a view to pressurise the respondent and cause mental tension to him, she went to her parents' place, at Rohtak, 6-7 times, without his permission and consent. Ultimately, he separated from the joint family in the year 1987, against his conscious, in the hope that it might satisfy her. But, inspite of that, no change occurred in her behavior and attitude. She, instead, became more cruel towards him and their children. Several times, she would go and stay at her parents house at Rohtak, leaving children behind. She also started pressurising the respondent to either shift to Delhi for doing business with her brother or to settle at Rohtak. As he refused to do so, she created a very unhealthy atmosphere in the family. He tried his level best to persuade her to live a happy live with him but to no use. Ultimately, on 17.8.1990, he filed a petition for judicial separation. She appeared in court and put for- ward demand of having separate living from his parents, in separate premises, lie bowed before her wish and agreed for a separate living from his parents, in separate premises for the sake of children and in order to lead a peaceful married life. He, then, with drew his petition for judicial separation on 1.12.1990 and took the appellant back to her matrimonial house at Karnal. After 10-12 days, he took a house on rent, in the area of Moti Nagar, Karnal. He and the appellant shifted to that house, with bag and baggage. Parties lived peacefully for a few days. But, thereafter, the appellant started doubting the character of the respondent. The latter, who deals in vegetables, had been visiting Delhi for purchase of vegetables at cheaper rates. Some times, due to train-timings, he would reach back late in the evening. Due to this, she started doubting his character. She would also restrain him from visiting or meeting his relatives at Delhi. For some days, he took the matter lightly but later on, felt that day by day, the situation was deteriorating. She even stopped providing food to him whenever he would come late. She stopped having sexual relations with him. She pressurised him to either shift to Rohtak or Delhi where he would remain under her constant check and also of her brother. She also started proclaiming that he had been taking liquor and gambling. She would abuse him and his family in filthy language, in the presence of his landlord and other neighbours. On many occasions even the landlord of the house had tried to dissuade her from doing so.
3. On 15.9.1991, as usual, the respondent was away to Delhi for purchase of vegetables. His landlord's son informed his elder brother, who happened to be at Karnal, about the arrival of appellant's brother at his (of respondent) house. The brother of the respondent, alongwith a close relation, Ved Parkash, went to his (of respondent) house and found that the appellant who had already packed up her luggage and the valuable articles, was in the process of leaving the house. Her brother told them that he was taking her along. When the brother of the respondent requested her to take the minor children with her, pleading that it would be very difficult for the respondent to look after them, she refused, She abused the family of the respondent and left the house. On the next day, the respondent went to Rohtak and persuaded her to return to her matrimonial house but she refused. He, therefore, returned, alone. In the month of January, 1992, Ved Parkash accompanied by one more person, went to Delhi and met appellant's elder brother, Ashok Kumar, in his factory. Ashok Kumar asked for one month time for reconciliation. On 1.2.1992, the respondent went to Rohtak, from Karnal, alongwith Radhey Sham and Narinder Kumar, but found that the behaviour and attitude of the appellant and her family was totally indifferent. The appellant told the respondent that she was ready to give divorce if she was paid a sum of Rs.l lac by him. Her mother said that in case of divorce, all the children would also remain with the respondent so that there was no hindrance in her second marriage, On 29.2.1992, another panchayat was convened at Rohtak. The appellant's family told the panchayat that respondent should not visit their house again and the matter would be decided in court. Thereafter, the respondent filed this divorce petition on 7.3.1992 on the grounds of desertion and cruelty.
4. The appellant (respondent before trial court) controverted all the allegations and pleaded that, in fact, the respondent wanted her to persuade her brothers to associate him in their factory at Delhi, and when she refused to talk to her brothers in this regard,he gave merciless beating to her. He also used to come home late in drunken condition and beat/maltreat her. He had been taunting her for having brought less dowry. He was a habitual drunkard and gambler and had even denied the basic necessities of life to her. When he beat her in September, 1991, she called her brother and left the matrimonial house, in his company.
5. Trial was held in respect of the following issues by the learned District Judge:-
1. Whether the wife respondent has been treating the husband petitioner with cruelty after the solemnisation of marriage as alleged? OPP.
2. Whether the wife respondent has deserted the husband petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition, as alleged? OPP
3. Relief.
6. On conclusion of trial, the learned District Judge dissolved the marriage of the parties on the ground of cruelty.
7. After having heard learned counsel for the parties and having gone through the evidence on record, I am of the considered opinion that conclusion of the trial Court about the appellant having been treating the respondent with cruelty is patently erroneous and based on no evidence. 'Cruelty', contemplated as a ground of divorce under Section 13(1) of the Act is conduct of such type that the petitioner cannot reasonably be expected to live with the respondent. In the case of Savitri Pandey v. Prem Chandra Pandey, 2002(2) S.C.C. 73, the apex court, construing the question of cruelty as a ground of divorce under Section 13(l)(ia) of the Act, made the following observations:-
'Treating the petitioner with cruelty is a ground for divorce under Section 13(l)(ia) of the Act. Cruelty has not been defined under the Act but in relation to matrimonial matters it is contemplated as a conduct of such type which endangers the living of the petitioner with the respondent. Cruelty consists of acts which are dangerous to life, limb or health. Cruelty for the purpose of the Act means where one spouse has so treated the other and manifested such feelings towards her or him as to have inflicted bodily injury or to have caused reasonable apprehension of bodily injury, suffering or fear to have injured health. Cruelty may be physical or mental. Mental cruelty is the conduct of other spouse which causes mental suffering or fear to the matrimonial life of the other. 'Cruelly11, 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.'
8. With this back ground, let us examine the facts of the present case.
9. The acts of cruelty pleaded in the petition against the appellant may be divided into two parts viz. (i) acts committed prior to 1.12.1990 and (ii) those committed after 1.12.1990. In so far as the acts falling in the first category are concerned, those have to be just ignored, because the same, even if assumed to be true, stood condoned after the parties had re-united on 3.12.1990 and started living together, on the basis of compromise between them, leading to withdrawal of petition for judicial separation under Section 10 of the Act. Regarding acts falling in the secondary category, it may be stated that after 1.12.1990, parties had lived together for a very short period viz. for about 8-9 months i.e. with effect from 1.12.1990 to 15.9.1991. During the first 10-12 days, they lived in this house of respondent's parents. Thereafter, the respondent took the house of PW3 Nanu Ram on rent and the parties, then, shifted to that house where they lived together right upto 15.9.1991 i.e. the day on which appellant left the house for the last time, in the company of her brother.
10. The acts of cruelty allegedly committed by the appellant during the period 1.12.1990 to 15.9.1991 find mention in para No. 7 of the divorce petition, and, for facility of reference, those are being detailed below:-
(i) levelled allegations of being drunkard and gamble;
(ii) used filthy language for him in the presence of landlord and neighbourers;
(iii) started doubting his character;
(iv) stopped having sexual relations with him.
11. In so far as the acts mentioned as (i) and (ii) are concerned, there is no reference to those, even in respondent's own statement as PWI. As such those have to be just brushed aside as being not true. Mad there been any truth in respect thereof, the respondent would not have omitted to mention those in his testimony. Out of the other two witnesses examined by the respondent viz. PW2 Ved Parkash and PW3 Nanu Ram son of Chander Bhan, the former (PW2) did state that the appellant had called the respondent a gambler and drunkard, in his presence. But, the big question is whether on the basis of this one stray sentence it would be safe to hold that the appellant had in fact, dubbed the respondent as gambler and drunkard, particularly when the latter himself had not said anything in this regard, in his testimony before the court. It is also to be borne in mind that PW2 is an interested witness and not an independent one. He, on his own showing, is brother of respondent's sister's husband. The testimony of the third witness, Nanu Ram (PW3), is of course material, as he is the landlord, in whose house the respondent had been living alongwith the appellant, as tenant, during the relevant period. He alongwith his wife and children also used to live in a part of the same house. It would be useful to reproduce below the relevant part of his statement, recorded as PW3:-
'.......I did not notice any quarrel between the parties during the period of one year when they lived in my house nor I ever seen Vijay Kumar giving beatings to Susheel Kumari in the condition of drunken. The brother of respondent had come to fetch Susheel Kumari. He told me that he wanted to take her back with him but I objected to it because Vijay Kumar was not present there.'
12. It is clear from his above reproduced testimony that he did not corroborate respondent's case regarding use of filthy language for him (respondent), by the appellant, in his (of PW3) presence, nor did he state that the appellant had been calling the respondent a drunkard or gambler. It is significant to note that inspite of his such type of testimony, the respondent did not disown him. If the respondent had felt that PW3 had not spoken truth, he could have easily treated him as hostile and put him to the test of crossexamination with the permission of court, in order to elicit truth from him. But, he did not do so. As such,there is no reason for which this witness, who did not support the case of the respondent should not be believed.
13. The allegations described as (i) and (ii) above had, thus, remained totally un-substantiated.
14. With regard to the allegation that the appellant had started doubting the character of respondent, it need only be said that the same, too, appears to be just a tissue of lies. According to PW2, the appellant had told the respondent, in his presence that he had kept another lady as a 'keep', whereas the respondent himself, while appearing as PW1, did not refer to any such fact. The latter simply made a vague statement to the effect that the appellant had started accusing him of bad character. PW2, as already stated above, is a close relation of the respondent and it would not, therefore, be safe to place reliance on his testimony particularly when the same docs not find corroboration from respondent's own deposition.
15. Regarding allegation No.(iv) viz. that the appellant had stopped having sexual relations with the respondent, reference to this finds mention, only in the statement of the respondent (as PW1). He had, earlier, never complained about any such conduct of the appellant to anybody, nor her alleged such unnatural conduct/attitude was put to her (in the form of suggestion) when she appeared as RW1. That being so, he cannot be permitted to contend that the allegation against the appellant's regarding her refusal to have sexual relations with him stood established.
16. Reference may also be made lo three judgments relied upon on behalf of the respondent and those are Dalbir Kaur v. Daljit Singh, 1997(2) R.C.R. (Civil) 284, Bohti Devi v. Karma, 1996(1) Recent Revenue Reports 539 and Balbir Kaur v. Daljit Singh, (1997-1)115 P.L.R. 448.
I have gone through these judgments and found that none of them is applicable to the facts of the present case. As stated in Dalbir Kaur's case, act of wife in asking the husband to live separately from father and unmarried sister who had none to look after them was held to constitute cruelty. But, in the case in hand, it was pursuant to & compromise arrived at between the parties that the parties had stated living separately from the parents of the respondent. So, whatever acts had been done or allegations levelled by the appellant prior to the compromise arrived at between them, those stood cordoned by the respondent (by virtue of compromise). Similarly, the facts of Bohti Devi's case also have no similarity with the facts of this case, as that was a case of young couple and there was no child. Besides, their marriage had broken irretrievably and the wife-petitioner had developed such psychological apprehension that she did not consider it safe and proper to come back to her matrimonial home. In so far as the present case is concerned, parties have three children. Besides there is nothing to indicate, either in the petition or in the statement of the respondent as PW1 that the marriage has irretrievably broken. Instead, a careful perusal of the examination-in-chief of the respondent (PW1) gives a contrary indication as his 'grudge' is that, '.... No person from the side of the respondent has even come to my house for some compromise.' That being so, it cannot be said that it is a case where marital knot of the parties should be severed on the ground that their marriage has broken irretrievably. In Balbir Kaur's case, the respondent in whose custody the wife had left her minor children, was driver by profession and he had to be out on duty during day time and at times, at night time also. The facts of the case in hand are not such. Here, profession of the respondent (husband) is not such that he has to be out on duty at night time.
17. In the light of what has been discussed above, it is held that the conclusion of the trial court that the appellant had been treating the respondent with cruelty is not borne out from the evidence on record. The appeal, therefore, merits acceptance. The same is accepted and the judgment and decree of the trial Court are set aside. Parties shall, however, bear their own costs.