B.P. Katakey, J.
1. This appeal under Section 19 of the Family Courts Act, 1984 (in short, the 1984 Act) by the appellant husband is directed against the judgment dated 12-10-2004 passed by the learned Family Court, Agartala, in TS (Divorce) No. 27 of 2000 dismissing the suit filed by the appellant husband praying for dissolution of marriage between him and the respondent wife on the ground of cruelty and desertion.
2. A petition under Section 13(1)(i-a)(i-b) of the Hindu Marriage Act, 1955 (in short, the 1955 Act) was filed by the appellant before the Family Court at Agartala, which was registered and numbered as TS (Divorce) No. 27 of 2000, seeking a decree for dissolution of marriage between him and the respondent, on the ground of cruelty and desertion stating inter alia that from the day of performing the ceremony, of 'Boubhat' (the day when bride and bride and bride groom start living together after solemnization of their marriage) the respondent started ill-treating him, his parents and other relatives and on the following morning she left the matrimonial home without intimating anybody in the house. On extensive search being carried out by appellant husband accompanied by his elder sister Smt. Mukti Roy and one Sri Sudarshan Majumder, respondent was found in her father's home and on being requested to return to her matrimonial home, she refused to accede to their request and rather requested the elder sister of the appellant to arrange to get their marriage dissolved. Subsequently, though the mother and brothers of respondent wife took her back to the matrimonial home and then they started living together, the respondent-wife refused to sleep and cohabit with the appellant husband and on 5-11-1998, when appellant tried to force the respondent wife to cohabit with him, she gave a note in writing by stating that she was not willing to sleep with him as she considers him as a mad man. It had further been pleaded that in spite of all this, there were accidental cohabitations on 3 or 4 occasions resulting in respondent-wife's pregnancy. After 3 months of pregnancy, her mother took her to their home and after about 15 days when she came back to the matrimonial home, it was noticed that she terminated her pregnancy without the consent of appellant-husband. The further contention of the appellant in the said petition was that the respondent wife used to misbehave with her in-laws and other relatives, return home very late at every night on the pretext of attending to her, political activities, refuse to perform her day-to-day household activities and even had assaulted her mother-in-law physically. It was the further contention of the appellant that at one night she left her matrimonial home with an unknown person and did not return on that night and eventually on 25-12-1998, she finally deserted the matrimonial home by taking all the belongings with her by giving a writing in presence of witnesses that she would live separately in future and since then, she has been living separately. A further allegation had also been made that on 8th April, 2000, the respondent assaulted the appellant's elder sister Smt. Chitra Roy and snatched away her gold chain and Rs. 2500/-, for which the latter filed a complaint case being CR No. 1239/2000 in the Court of the learned Chief Judicial Magistrate, West Tripura at Agartala.
3. The said proceeding was contested by the respondent by filing her written statement denying all the allegations made by the appellant and making counter allegations by contending that with the hope of having a happy and peaceful conjugal life though she married the appellant, but soon after their marriage her dream and aspiration suffered a rude shock when the appellant was found to be addicted to liquor and drugs. The appellant used to torture her, both mentally and physically and the intensity of torture increased with every passing day. According to the respondent, the appellant used to return home in late hours at every night in intoxicated state and thereafter, tortured her both physically and mentally and was not interested in maintaining a normal conjugal relationship with her due to the illicit relationship with his brother's wife. It has further been pleaded that the appellant was not interested to cohabit with the respondent and there being no cohabitation, there was no question of pregnancy and termination of such pregnancy. According to respondent, on 14-12-1998, she was mercilessly beaten and dragged out of the house by the appellant compelling her to stay outside on that night and despite her repeated requests, she was not allowed to enter into the house. According to the respondent, she was eventually driven out of the matrimonial house by the appellant.
4. On the basis of the pleadings, the learned Family Court framed the following issues for consideration and decision:
(A) Whether the respondent continuously deserted the petitioner from 25-12-1998?
(B) Whether the respondent treated the petitioner with cruelty?
(C) Whether the respondent refused to cohabit with the petitioner and terminated her, pregnancy without, the consent of the petitioner? )
(D) Whether the petitioner is entitled to get a decree of divorce as prayed for?
(E) Any other reliefs the parties are entitled to get?
5. To substantiate their respective pleas, the appellant had examined 4 witnesses including himself as PW1, while respondent had examined 3 witnesses including herself as DW1. Three documents though filed by the appellant, however, had not been exhibited. The learned Family Court, upon appreciation of the evidences adduced by the parties, dismissed the petition by holding that the appellant could not prove the allegation of cruelty entitling him to get a decree for dissolution of marriage and also by negating the plea of desertion. Hence, the present appeal.
6. We have heard Mr. P. Chakraborty, learned Counsel for appellant, as well as Mr. P. Roy Barman, learned Counsel for respondent.
7. Referring to the averments made in the petition seeking the decree of divorce, as well as the deposition of the witnesses examined in support thereof, it has been submitted by the learned Counsel for the appellant that from the day of performance of Boubhat ceremony, the respondent started ill-treating the appellant, his parents and other relatives and even refused to cohabit with him and though the respondent became pregnant subsequently due to accidental cohabitations for 3 or 4 times, she terminated her pregnancy without the consent of the appellant, which constituted cruelty within the meaning of Section 13(1)(i-a)of the 1955 Act and hence, the learned Family Court ought not to have refused to dissolve the marriage, as the respondent had created such a situation and behaved in such a manner that it is not possible on the part of the appellant to stay together with her, who eventually on 25-12-1998 left her matrimonial home of her own and thereafter did not return. It has further been submitted that there is evidence on record that the respondent even assaulted the sister of the appellant and snatched away her gold chain and Rs. 2500/- from her possession. The cumulative effect of all those facts amounts to cruelty arid as such, the marriage between the parties are required to be dissolved by passing a decree of divorce, submits the learned counsel. Referring to the examination-in-chief of the P.W. 1 as well as the ground No. H in the memo of appeal, learned Counsel has submitted that though the appellant filed 3 documents in the learned family Court, the same were not exhibited and thus were also not taken into consideration while deciding the proceedings, though under the provisions of 1984 Act the family Courts are empowered to receive any documents which assist it to deal with any dispute, even if such documents are otherwise irrelevant or inadmissible under the Indian Evidence Act, 1872. Learned Counsel submits that had those documents been taken into consideration, the learned family Court would not have dismissed the petition seeking divorce and hence, this Court may remit the proceedings to the learned family Court for giving a fresh decision, after considering all those documents. It has further been submitted that admittedly both the parties are living separately since 25-12-1998 i.e. more than 11 years from now and there being no chance of re-union, the marriage between the parties stood irretrievably broken down and as such, it is required to be dissolved by passing a decree of divorce, for which the appellant is ready to pay permanent alimony to the respondent. In support of his contention, learned Counsel has placed reliance on the decisions of the Apex Court in Naveen Kohli v. Neelu Kohli : AIR 2006 SC 1675 and in Smt. Mayadevi v. Jagdish Prasad : AIR 2007 SC 1426.
8. Mr. Roy Barman, learned Counsel for the respondent, per contra/supporting the judgment and decree passed by the learned family Court, has submitted that though the appellant in his petition seeking a decree of divorce has made certain allegations against the respondent, he could not substantiate the same by adducing any cogent evidence and in fact the appellant's own witnesses, namely P.W. 2, P.W. 3 and P.W. 4 did not support him relating to his allegation that the respondent started troubling and quarrelling with him as well as with his relatives and parents/ from the date of the Boubhat ceremony and. left the matrimonial house on the next day, as P.W. 2 during, his cross-examination has stated that the dispute between the parties arose only after 2-3 months of their marriage; P.W. 3 during her cross-examination has stated that the dispute between the parties started one month after their marriage and before that there was no dispute between them and P.W. 4 during her cross-examination has stated that she noticed the appellant and the respondent living happily for nearly 5/6 months after their marriage and during this periods she did not notice any untoward happenings between them. It has also been submitted by the learned Counsel that it was the appellant who from the very beginning started torturing the respondent by consuming liquor and taking drugs and eventually, drove her out of the matrimonial home. According to the learned counsel, the deposition of D.W 1 (respondent) in this regard, has not been challenged by the appellant during cross-examination. Relating to non-consideration of the documents filed by the appellant, learned Counsel has submitted that even if the same are taken into consideration by this Court, it would not amount to cruelty, so as to dissolve the marriage between the parties by a decree of divorce, since normal wear and tear of marriage life does not amount to cruelty within the meaning of Section 13(1)(i-a) of the 1955 Act and the conduct complained of must be grave and weighty, for which the appellant cannot be reasonably expected to live with the respondent. According to learned counsel, since in the instant case the appellant has failed to prove the allegations levelled against the respondent by adducing any cogent and reliable evidence, the learned family Court has rightly rejected the petition filed by the appellant. Learned Counsel further submits that the allegation of desertion made by the appellant is not tenable as it is the appellant who had deserted the respondent and as such, the appellant is not entitled to a decree of divorce under Section 13(1)(i-b) of the 1955 Act, more so when he filed the petition seeking dissolution of their marriage on the ground before completion of 2 years. It has also been submitted that since Under Section, 13 of the 1955 Act the marriage between the parties cannot be dissolved on the ground of irretrievable break down, no decree dissolving the marriage can be passed solely on the ground that they are living separately for more than 11 years and as such the marriage has irretrievably broken down, more so when the respondent had to stay away from the appellant because of his wrong. The appellant, therefore, cannot be allowed to take advantage of his own fault and hence, he is not entitled to a decree of divorce in view of Section 23(1)(a) of the 1955 Act, submits the learned counsel. In support of his contentions, learned Counsel has placed reliance on the decision of the Apex Court in Smt. Maya Devi (supra), on which the learned Counsel for the appellant has also placed reliance.
9. We have considered the submissions of the learned Counsel for the parties and also perused the evidences available on record including the documents filed by the appellant as well as the judgment passed by the learned family Court.
10. The marriage between the parties was solemnized on 18-5-1998. The petition seeking divorce on the ground of cruelty and desertion was filed by the appellant before the learned family Court on 22-4-2000, with the allegation, amongst other, that the respondent finally left the matrimonial house on 25-12-1998 and since then they are living separately. Section 13(1) of the 1955 Act provides that marriage solemnized between the parties, whether before or after the enactment of the 1955 Act, can be dissolved under Section 13 oh a petition presented either by the husband or by the wife, on fulfilment of either of the conditions stipulated in Clauses (i) to (viii) of Sub-section (1) of Section 13. Clause (ib) of Sub-section (1) of Section 13 provides that such a marriage can be dissolved on a petition presented either by the husband or by the wife, if the other party has deserted the petitioner for a continuous period of not less than 2 years immediately preceding the presentation of the petition. In the instant case, according to the appellant, the respondent deserted him on 25-12-1998. The petition seeking divorce on the ground of desertion was filed on 22-4-2000 i.e. before completion of 2 years. The petition for dissolution of marriage on the ground of desertion therefore, cannot be entertained, on that count alone. That apart, the appellant is also not entitled to a decree on the ground of desertion, for the reasons recorded hereinafter in this judgment.
11. The other ground on which the decree for dissolution of marriage was sought for by the appellant is cruelty. Section 13(1)(ia) of the 1955 Act provides for dissolution of marriage by a decree of divorce, on the basis of a petition presented either by the husband or the wife if the other party has, after the solemnization of the marriage, treated the petitioner with cruelty. The expression 'cruelty' has not been defined in the 1955 Act. It has been used in relation to human conduct or human behavior. Cruelty may be the mental cruelty or physical cruelty. So as to constitute a cruelty within the meaning of 1955 Act, the conduct of the party has to be wilful and unjustifiable of such character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such a danger. The question of mental cruelty is to be considered in the light of the norms of marital or the particular society to which the parties belong, their social values, status, environment in which they live. If from the conduct of the spouse, cruelty is established and/or inference can be legitimately drawn that the treatment of the spouse is such that it causes apprehension in the mind of the other spouse about his or her mental welfare, then his conduct amounts to cruelty. The concept of proof beyond the shadow of doubt is not applicable in a matrimonial proceeding, where it is to be seen what are the probabilities. The legal cruelty has to be found out not merely as a matter of fact but as the effect on the mind of the complainant spouse because of the acts or omissions of the other. The Courts are required to probe into the mental process and mental effect of instances that are brought out in evidence (Smt. Maya Devi (supra)).
12. The Apex Court in Smt. Maya Devi (supra), while dealing with the expression 'cruelty' in paragraph 11, has further opined as follows:
11. To constitute cruelty the conduct complained of should be 'grave and weighty' so as to come to the conclusion that the petitioner spouse cannot be reasonably expected to live with the other spouse. It must be something more serious than 'ordinary wear and tear of married life'. The conduct, taking into consideration the circumstances and background has to be examined to reach the conclusion whether the conduct complained of amounts to cruelty in the matrimonial law. Conduct has to be considered, as noticed above, in the background of several factors such as social status of parties, their education, physical and mental conditions, customs and traditions. It is difficult to lay down a precise definition or to give exhaustive description of the circumstances, which would constitute cruelty. It must be of the type as to satisfy the conscience of the Court that the relationship between the parties had deteriorated to such an extent due to the conduct of the other spouse that it would be impossible for them to live together without mental agony, torture or distress, to entitle the complaining spouse to secure divorce. Physical violence is not absolutely essential to constitute cruelty and a consistent course of conduct inflicting immeasurable mental agony and torture may well constitute cruelty within the meaning of Section 10 of the Act. Mental cruelty may consist of verbal abuses and insults by using filthy and abusive language leading to constant disturbance of mental peace of the other party.
13. In the backdrop of the above, we shall now discuss the evidence on record as adduced by the parties and whether the appellant could prove the ground of cruelty as taken in the petition seeking a decree for dissolution of marriage with the respondent.
14. The case of the appellant in the petition filed under Section 13(1)(ia) & (ib) of the 1955 Act, as noticed above, is that since the day of performing the ceremony of 'Boubhat', the respondent started misbehaving with the appellant, his parents and other relatives and on the next day she left the matrimonial home and though subsequently came back, she started physical and mental torture. It is also the allegation that the respondent even assaulted his parents and never wanted to lead a conjugal life and refused to cohabit with the appellant. At the same time, the appellant has also pleaded that there was accidental cohabitation and as a result of which the respondent though became pregnant, she terminated her pregnancy without the consent of the appellant and ultimately on 25-12-1998, she left the matrimonial home forever with all her belongings and even thereafter, assaulted the appellant's elder sister and snatched away the gold chain and an amount of Rs. 2500/- from her possession. If those allegations are proved, naturally, the appellant may be entitled to a decree for dissolution of marriage. Those allegation, however, are denied by the respondent in the written statement filed. The respondents, as discussed above, in her written statement made counter allegations that it was the appellant who after taking liquor and drugs used to torture her, both mentally and physically and did not want to lead a happy conjugal life and even sometimes kept her out of the house for which she had to spent nights outside the house. It has further been pleaded in the written statement that there was no cohabitation between them as the appellant did not want the same and as such, there was no question of her becoming pregnant and consequently termination of pregnancy. The allegation of having illicit relationship of the appellant with his brother's wife and driving her out of the matrimonial house have also been made.
15. The appellant having filed the petition for dissolution of marriage on the ground of cruelty by making certain allegations against the respondent, the burden, naturally, is on the appellant to prove the existence or happening of incidents alleged. It is no doubt true that the appellants is not required to prove the allegation against the respondent beyond all reasonable doubt, but at the same time he has to prove the conduct alleged against the respondent, so as to enable the Court to record findings based on preponderance of probabilities and to satisfy itself whether the conduct proved are such that it is not possible on the part of the appellant to stay with the respondent and such conduct cause danger to life, limb or health, bodily or mentally, or gives rise to reasonable apprehension of such danger.
16. The appellant (P.W. 1) in his examination-in-chief filed by way of affidavit has supported the allegations made against the respondent in the petition filed. The appellant, however, during cross-examination has stated that the respondent left the house on the following day of 'Boubhat' ceremony with all her belongings and also after stealing the gifts from the house of the appellant. P.W. 3 Smt Chitra Roy (Das), who is the elder sister of the appellant and who according to the appellant was present during 'Boubhat' ceremony and whom the respondent on 8th April, 2000 allegedly assaulted and snatched away gold chain as well as an amount of Rs. 2500/-, however, did not support the appellant in regard to the alleged incident, on the 'Boubhat' ceremony as well as leaving of the matrimonial home by the respondent on the following day of 'Boubhat' ceremony and also the allegation of torture, both mental and physical of the appellant, his relatives and parents on that day. During cross-examination she has categorically stated that the dispute arose between them after one month of their marriage and prior to that, she did not notice any dispute between them. The P.W. 4, the sister-in-law of the appellant and his next door neighbour also did not support the appellant, as during her cross-examination she has categorically stated that both the appellant and the respondents were very happy and led a happy conjugal life for nearly 5-6 months after the marriage. P.W. 2 during his cross-examination has stated that the dispute between the parties arose after 2-3 months of their marriage and he came to know from the appellant only that the respondent had terminated her pregnancy without his consent. As against the evidences adduced by the appellant, the respondent has also examined 3 witnesses namely the respondent herself as D.W. 1, her mother as D.W. 2 and one Sri Parimal Acharjee, as D.W. 3. The respondent (D.W. 1) in her examination-in-chief has supported her pleas taken in the written statement about the torture, both mentally and physically by the appellant and his addiction to drugs and liquor as well as his unwillingness to have a conjugal life and also having no pregnancy at all. The appellant, however, did not cross-examine D.W. 1 at all on those statements. There is only two-lines cross-examination, the 1st line is a suggestion to the effect that the appellant did not have any illicit relationship with her sister-in-law, which has been denied by the said witness and the 2nd line was also denial to the suggestion that she deposed falsely. The mother of the respondent, who has been examined as D.W. 2, has also supported the respondent's version against the appellant, who has also not been cross-examined on those statements. The statements on oath of D.W. 1 and 2 remain un-rebutted. Moreover, from the pleadings of the appellant in the petition as well as the evidence adduced by him to the effect that the respondent was not willing to co-habit with the appellant, the claim of the appellant that there were occasional co-habitation and consequential pregnancy, is not believable, more so when the appellant did not challenge the positive evidence of the respondent that there was no co-habitation at all because of reluctance of the appellant in that regard. It appears the allegation of termination of pregnancy has been levelled against the respondent only with a view to make out a ground of cruelty.
17. From the narration of the evidences as adduced by the appellant it is evident that though the appellant in the petition seeking divorce made certain serious allegations, those could not be proved by him by adducing any evidence. In fact the appellant's own witness did not support his case. On the other hand, the positive evidences of the respondent about the torture by the appellant, both physically and mentally and his refusal to co-habit with her, go un-rebutted.
18. It is the contention of the appellant that though he filed 3 (three) documents and mentioned about the same in his examination-in-chief, those were not taken into consideration by the learned Court below while passing the impugned judgment and had those been taken into consideration, the learned Court below would not have dismissed the petition.
19. One of the objects and reasons for enacting the 1984 Act was to adopt an approach radically different from that adopted in an ordinary civil proceeding and to simplify the rules of evidence and procedure so as to enable the family Court established under the Act to deal effectively with a matrimonial dispute. Section 14 of the 1984 Act stipulates that a family Court may receive as evidence any report, statement, documents, information or matter that may, in its opinion, assist it to deal effectually with a dispute, whether or not the same would be otherwise relevant or admissible under the Indian Evidence Act, 1972. The rigor of the Indian Evidence Act, therefore, is not to be applied in a proceeding before the family Court constituted under the 1984 Act. Moreover, Section 13 of the said Act provides that no party to a suit or proceeding before a family Court shall be entitled as of right to be represented by a legal practitioner. The family Court, however, if it considers necessary, in the interest of justice, may seek the assistance of a legal expert as amicus curiae. In family Courts, the assistance of a person trained in law is generally not available to the parties to the proceeding. The presiding Judge, therefore, is required to be more careful in dealing with the proceeding before him under the provisions of the 1984 Act, more so when almost all the parties to such proceedings are not legally trained.
20. In the instant case, the appellant had filed 3 (three) documents about which he had stated in his examination-in-chief also. The learned presiding Judge, therefore, ought to have marked those documents as exhibit and consider the same along with other evidences on record while deciding the petition filed by the appellant for dissolution of marriage. Having held so, the normal course would have been to remit the matter. However, since we are hearing a first appeal and those documents are on record, we have decided to scrutinize the same to find out whether the contents of those documents, if read along with other oral evidences adduced, constitute the cruelty on the part of the respondent.
21. The appellant in his examination-in- chief has referred to 3 documents, namely (i) the writing by the respondent dated 5-11-98; (ii) the declaration made by the respondent allegedly in presence of the witness on 25-12-1998; and (iii) the communication dated 17-3-1998 issued by the Panchayat Secretary, under whom the respondent was working, addressed to the B.D.O. about the conduct of the respondent.
22. The communication dated 17-3-1998 was issued by the Panchayat Secretary of the Gaon Panchayat to the B.D.O. about the official conduct of the respondent, which has nothing to do with the allegation of cruelty on the part of the respondent towards the appellant. By the alleged writing dated 5-11-1998 the respondent allegedly declared that she will not stay with the appellant and does not want to have a conjugal life, as the appellant is not mentally sound. The other document is the declaration allegedly made by the respondent on 25-12-1998 in presence of certain witnesses that she left the matrimonial home on her own and with all her belongings. The contents of the said document is not believable, in view of the claim of P.W. 1, the appellant, during his cross-examination that the respondent left the matrimonial home with all her belongings and even stealing other goods of the appellant on the day following the Boubhat ceremony. The appellant also did not examine any witness to the said document, execution of which has been denied by the respondent.
23. The other document which has an allegation of the appellant being of unsound mind is the alleged writing of the respondent dated 5-11-1998 wherein according to the appellant, the respondent had declared in writing on 5-11-1998 that she is not willing to continue her marital life and does not want to co-habit with the appellant as he is not of sound mind.
For better appreciation, the English version of the said document dated 5-11-1998 is given below:
I asked my husband Narayan not to sleep with me as he being a person of unsound mind, it is not certain what he may do to me at any time. Hence, I asked him to sleep separately: I do not have any desire to sleep with him, I shall treat him as my husband from that day when he willingly comes to me.
Sd/- Jamuna Roy
5-11-1998-99
24. The contents of the said document has to be read along with the evidences on record. As noticed above, the respondent in her written statement as well as in her evidence has stated that the appellant is addicted to liquor and drugs and used to torture her, both mentally and physically. Such positive statement of the respondent has not been challenged by the appellant during the cross-examination. The allegation of the appellant of unsound mind in the said document dated 5-11-1998, in the backdrop of such positive evidence on record, cannot be treated as the conduct of the respondent which renders it impossible on the part of the appellant to live together. From the contents of the said document, as reproduced above, it is also evident that the respondent had agreed to accept the appellant as husband if he willingly comes to her. The contents of the said document, even if taken as proved, do not constitute cruelty on the part of the respondent against the appellant so as to dissolve the marriage between them by a decree of divorce.
25. Since those documents, even if read into evidence and taken into consideration along with other oral evidences on record, do not constitute cruelty within the meaning of Section 13(1)(ia)of the 1955 Act, we have decided not to remand the proceedings to the learned family Court for fresh disposal.
26. The next contention of the appellant is that since the marriage between the parties has irretrievably broken down as they are living for almost 11 years separately and there being no chance of reconciliation between them, the marriage should be dissolved by passing a decree of dissolution of marriage.
27. Section 23(1)(a) of the 1955 Act provides that in any proceeding under the Act, whether defended or not, if the Court is satisfied that any of the grounds for granting relief exists and the petitioner, except in cases where the relief is sought by him on the grounds stated in Sub-Clauses (a)(b)(c) of Clause (ii) of Section 5 of the 1955 Act, is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief, the Court shall decree such relief accordingly.
28. In the instant case, it is evident from the evidences adduced by the parties, more particularly the evidences adduced by the respondent, as discussed above, that it was because of the appellant, the respondent had to stay away from the matrimonial home. The appellant being the author of such a situation, cannot be allowed to take advantage of his wrong and pray for dissolution of the marriage on the ground that the marriage stood irretrievably broken down. In the backdrop of the clear evidence of D.W. 1, the respondent, about the circumstances under which she was compelled to come out of the matrimonial home, the ground of desertion, for dissolving the marriage, is also not available to the appellant, as to get a decree on that ground it must be proved that the respondent left the matrimonial house of her own and living separately for not less then 2 (two) years immediately preceding the presentation of the petition, which the appellant has failed to do. On the other hand, the respondent could prove that because of the matrimonial wrong committed by the appellant, they are living separately. Moreover, Section 13 of the 1955 Act does not provide for dissolution of marriage on the ground that it broke down irretrievably.
29. The decision of the Apex Court in Naveen Kohli (supra), on which the learned Counsel for the appellant has placed reliance in support of his contention that as both the parties are living separately for more than 11 years the decree may be passed, is based on the fact that large number of cases, both civil and criminal were instituted by both the parties and they were living separately for a long time and as such, the matrimonial bond between the parties was found to be beyond repair. The Apex Court, therefore, granted the decree of divorce. But in the case in hand, as discussed above, the respondent had been subjected to torture, both mentally and physically, by the appellant and it was because of his matrimonial wrongs the respondent is compelled to live separately. The appellant, therefore, cannot be allowed to take advantage of his own matrimonial wrongs.
30. In view of the aforesaid discussions, we do not find any merit in the appeal and hence, the same is dismissed. However, keeping in view the entire facts and circumstances of the case, the parties are directed to bear their own costs.