P.C. Agarwal, J.
1. This is husband's appeal against dismissal of his petition for divorce under Section 13 of the Hindu Marriage Act (Act for short). Ground taken had been that of cruelty under Section 13(1)(B) of the Act which the Trial Court did not find proved.
2. Parties were married on 13.12.1984. Appellant-husband is employed in the Bank of India. Respondent-wife is employed in the Punjab National Bank. They have a male issue named Ankit born on 10.6.1988. He has been living with the respondent throughout.
3. To prove that living together has become impossible for the appellant has alleged following specific instances:
(a) Since after 3 or 4 months of the marriage respondent started misbehaving with the parents and brothers of the appellant She used to threaten to commit suicide. She used to insist that the appellant should live in a rented house near the house of her parents whereupon the appellant was compelled to take a house in Bhagwan Colony in June, 1989 situated near the house of parents of the respondent.
(b) In the second week of November, 1989 respondent started alleging that the appellant is a 'Badchalan and Awara' person and that he had illicit relations with other women and does not give money for household expenses and does not cooperate in household work which caused mental agony to the appellant. S.P. Azad and Audit Officer mediated between the parties.
(c) In first week of August, 1990 respondent again quarrelled with the appellant and alleged unchastity and vagrancy. Both the brothers and parents of respondent approached the parents of appellant who mediated and pacified the respondent.
(d) Respondent refused to cohabit and have sexual intercourse with her since August, 1990 and started sleeping in the separate room. On insistence she would threaten to commit suicide.
(e) Respondent purchased house No. BH 255 in Deen Dayal Nagar from Housing Board for Rs. 2.55 lakhs for which she extracted Rs. 40,000/-from the appellant. Appellant took a loan of Rs. 20,000/- from his father and arranged for Rs. 20,000/- from his savings. This house was let out by the respondent without the consent of the appellant.
(f) In July, 1994 the respondent insisted for purchase of a car. Appellant had to raise loan from the Bank. Monthly instalment was Rs. 4,000/-. His salary was Rs. 5,000/-. Respondent had promised that she would also bear the household expenses, but she did not fulfil such promise. Appellant used to borrow money from his father and bear the household expenses out of the salary received by him after deduction of instalment of the motor car. The respondent publicised amongst the relatives and family members that the appellant was neglecting his family.
(g) On 27.4.1995 respondent applied for tape recording the telephone calls doubting the character of the appellant which caused great mental agony to him.
(h) On 3.6.1995 relatives of respondent i.e., her sister, daughter of sister assaulted the appellant causing hurt to him whereby he was compelled to leave the house on his scooter in the clothes worn by him to the house of his brother. In the same night at about 10.30 p.m. respondent and her brother reached there and threatened the appellant. All valuables and cash Rs. 5,000/- have been kept by the respondent. Her ornaments are not returned despite demand by the appellant. The appellant had tried to take away his son also but he was not allowed to do so by the respondent and others present there.
(i) On 12.4.1996 the father of respondent died at the house where respondent was residing. At that time appellant was posted at Jagdalpur. He came to Gwalior and visited the house of respondent to condole but the respondent did not speak to him and on his attempt to speak to her she used disgraceful language.
4. The respondent has denied that she ever disgraced either the parents or the brothers of the appellant. She never threatened to commit suicide. Instead the appellant used to threaten that the respondent should take divorce otherwise he would commit suicide. Both the parties were Bank employees. Parents of appellant were unable to look after the infant son of the couple. Hence she was compelled to leave the infant son at the house of her parents daily before going to her office and had to travel about 50 kms. every day. Hence the house nearer to the house of her parents was taken on rent with the consent of the appellant. The respondent never alleged that the appellant is either unchaste or vagrant although he used to receive telephones of some girls. Oft time he was seen roaming with some girls by Anil Prakash (A.W. 2), the brother of the appellant who had warned the respondent to take care of him. Any mediation by S.P. Azad between the spouses has been denied. The appellant used to give money for household expenses by way of cheques which was embarrassing to the respondent. The respondent never deprived the appellant of her company. She had to abort twice on 23.9.1990 and 29.10.1994 with the consent of the appellant. Respondent had taken a loan of Rs. 1.50 lakhs from the Bank. Appellant had only taken Rs. 20,000/- from his mother out of which Rs. 10,000/- were returned back by the respondent by cheque No. 272901 dated 8.1.1993. This house was let out by the appellant himself to Mr. Varshney who was known to him. Motor car was purchased by the appellant of his own choice in his own name. The same was used by appellant and is still standing at the house of brother of the appellant. The allegation that the respondent had applied for taping the telephone as she suspected the character of the appellant has been denied. On 3.6.1995 the appellant had misbehaved and assaulted the respondent and on mediation of sister and brother of the respondent he became furious and left the house with his clothes, goods and V.C.P. The respondent or her brother had not threatened the appellant. On 14.4.1996 appellant had come with his brother Anil Prakash (A.W. 2) to condole and had taken tea and sat for only 30 minutes and did not share the grief of his wife. No disgraceful language was uttered by the respondent.
5. The learned Trial Court after record of the evidence of both the parties and hearing their Advocates found the allegations of the appellant not proved.
6. The concept of cruelty as a ground of divorce has not been defined in the Act. Before amendment of 1976 cruelty could not be a ground for divorce. Though decree for judicial separation could be obtained on this ground. The old concept of cruelty i.e., danger doctrine propounded in Russet v. Russel, 1897 AC 395, does not hold good in modern times when meaning of marriage institution has been changing. Now to prove danger to life, limb or health or any reasonable apprehension of such a danger is not necessary. It is sufficient now to prove that there existed a reasonable apprehension in the mind that it would be harmful or injurious to live together keeping into consideration the resultant possibilities of harm or injury to health, reputation, a working carrier or life. Dr. N.G. Dastane v. Mrs. S. Dastane, I (1981) DMC 293 (SC)=AIR 1975 SC 1534. Proof of 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 and the parties cannot reasonably also be expected to live together or that party cannot reasonably be asked to put up with such conduct and continue to live with other party. V. Bhagat v. D. Bhagat, II (2003) DMC 568=(1994) 1 SCC 337, would be enough. A reasonable apprehension in the mind of other party that it would be harmful or injurious to live with the other should (sic). It has to be distinquished from the ordinary wear and tear of the family life. It cannot be decided on the basis of sensitivity of petitioner and has to be adjudged on the basis of course of conduct. Savitri Pandey v. Prem Chandra Pandey, I (2002) DMC 177 (SC)=I (2002) SLT 103=AIR 2002 SC 591. The Court should consider whether the conduct of the respondent is such that it has become intolerable for the petitioner to suffer any further or to live together is impossible. G.V.N. Kameswra Rao v. G. Jabilli (supra). It should cause a reasonable apprehension in the mind of the petitioner that it is not safe for him or her to continue the matrimonial relationship with the other. Praveen Mehta v. Indrajeet Mehta, II (2002) DMC 205=2002 MPLT SC 143. Institution of a false case under Sections 498 and 406 of Indian Penal Code against the husband and his parents may amount to cruelty, the approach should be to take the cumulative effect of the facts and circumstances of the case from the evidence on record and then draw a fair inference whether the petitioner in the divorce petition has been subjected to mental cruelty due to conduct of the other. Demand of dowry by the husband or his parents may also amount to cruelty. Shobha Rani v. Madhukar Reddy, I (1988) DMC 12=AIR 1988 SC 121. However, removal of Mangalsutra in itself would not constitute cruelty. S. Hanumant Rao v. S. Ramani, I (1999) DMC 628 (SC)=III (1999) SLT 319=1999 (3) SCC 620.
7. False complaints to police, High Court or other persons, authorities like superior officers of the petitioner may amount to cruelty. D. Manga @ Mangamma v. D. Venkata Ramana, I (2002) DMC 663=2000 MLR 274; M.K. Malhotra v. Smt. Kirti Malhotra, 1987 MLR 268 (in this case false complaints were to Prime Minister and his office. Reminders were also sent. On inquiry allegations were found baseless). Ashok Kumar v. Smt. Vijay Laxmi, AIR 1992 Delhi 182 (in this case false allegation was that the husband attempted to set the wife ablaze by pouring kerosene on her).
8. False allegations in written statement in Court proceedings or even during cross-examination when appeared as a witness may amount to cruelty and provide a ground for divorce. Swarna Kakkar v. Gulshan Kakkar, I (1988) DMC 8=1988 MLR 63. Herein husband, the police constable, was alleged to be a drunkard, gambler, womanizer and corrupt officer. Shyamabai v. Sona Singh Lodhi, (1999) 1 MPWN 113, where false charges of adultry or unchastity levelled in cross-examination of wife was made. The Court had relied upon Umri Bai v. Chetan, AIR 1956 MP 205, and Mahendra Kaur v. Bhagram, AIR 1979 P&H; 71, to draw inference of cruelty. Pramila Bhatia v. Vijay Kumar Bhatia, (2000) 1 MLR 57. Rajan Vasant Ravankar v. Shobha Rajan Ravankar, I (1995) DMC 532=1995 MLR 342. However, it is to be noted that the respondent has a right to rebut the allegations of the petitioner both in the written statement by cross-examining the witnesses of the petitioner and leading his or her evidence in rebuttal of the case of the petitioner and in such rebuttal or defence the respondent cannot be so bound as to paralyse his or her defence. Certainly, the respondent is entitled to tell the Court the real reason of the tension between the parties and to explain her own behaviour. Certainly, action leads to a reaction and reaction causes further action and petitioner cannot be permitted to take the benefit of his own wrong or to abuse the respondent and then divorce her if the respondent counters the attack. The Court has to be alive of the injunction that the petitioner should not be allowed to take advantage of his own wrong under Section 23(1)(a) of the Act.
9. The petitioner had alleged physical violence by Smt. Dr. Asha Kamal, (R.W. 3) and her daughter. Ku. Sujata which according to him was actively encouraged by the respondent also compelling him to leave the marital home in clothes he was wearing on his scooter and taking asylum in the house of his brother Anil Prakash (A.W. 2). Sunil Sehgal (A.W. 1) and his elder brother Anil Prakash (A.W. 2) have supported such a story. Man Mohan (A.W. 3), a building contractor who was working in the house of Anil Prakash (A.W. 2) has supported him. He has submitted copies of report to S.P. (Ex. P/5) and to S.O. (Ex. P/6) which according to him were sent by ordinary post. He has further claimed that he had reported the matter to police station on 3.6.1995 also. However, neither any copy of such report dated 3.6.1995 is there on record nor any police officer has been examined to prove lodging of such report. No clear evidence that Ex. P/5 to Ex. P/6 were posted and were received in P.S. has been there. Certainly, Sunil Sehgal (A.W. 1) was not medically examined. No cognizance of offence was taken by the police. No criminal complaint was filed in Court. Certainly, Chhaya Sehgal (R.W. 1) has explained that she and Sunil Sehgal, the petitioner were working in the kitchen. She told the petitioner to be slightly away from her to keep decorum. This enraged Sunil Sehgal who threatened to slap her. On intervention of her elder sister Smt. Asha Kamal (R.W. 3) he abused her in presence of all the guests and left the house in anger. Smt. Dr. Asha Kamal (R.W. 3) has supported this story. Vijay Kumar Sood (R.W. 7), the elder brother of respondent has also supported such a story. It is noteworthy that in the same evening when Sunil Sehgal (A.W. 1) did not return to his house Vijay Kumar Sood (R.W. 7) had gone to the house of Anil Prakash (A.W. 2) and tried to mediate but Sunil Sehgal (A.W. 1) did not agree to return. On such evidence Trial Court has not held that the respondent had used violence to the petitioner. I also do not find that the Trial Court had erred in recording such a finding.
10. Evidence of appellant about mental cruelty has been shaky and infirm and has been disbelieved by the Trial Court below. Appellant has claimed that he had no physical contact with the respondent since August, 1990 though he lived with the respondent till 3.6.1995. However, respondent claims that she had carried and aborted twice. Once in August, 1990 and then in October, 1994. She had submitted hospital record Ex. D/18 dated 22.8.1990 and Ex. D/17dated 29.10.1994 in support and has examined Dr. Pratibha Sharma (R.W. 5) in support of such claim. There has been no allegation that the respondent had carried in the year 1994 due to some extra marital alliance. Thus, this claim of the appellant has been false. S.P. Azad, Audit Officer has not been examined to prove the mediation of November, 1989. Parents of appellant have not been examined to prove that the respondent misbehaved with them. Certainly the house was purchased from the Housing Board for Rs. 2.55 lakhs by the respondent. For that a loan of Rs. 1.5 lakhs was raised. Contribution of the appellant of Rs. 40,000/- as per appellant himself had been meagre in comparison to the amount invested by the respondent. Certainly, the allegation that the house was rented out without the consent of the appellant has clearly been false as Sunil Shegal (A.W. 1) himself has admitted in Para 31 that the tenant Shri Varshney was known to him and had approached him whereupon he had referred Shri Varshney to the respondent. Shri Varshney, the tenant has not been examined to prove that the respondent had rented the house to him or he paid the rent to respondent alone. Certainly, the act of purchase of car immediately after purchase of house could not be said to be financially prudent. The claim of the appellant that he had purchased the car due to insistence of the respondent has been unconvincing. Certainly, loan was raised by the appellant. The car was purchased and registered in the name of the appellant, It was driven and used by the appellant. Respondent does not know driving, Car is lying at present at the house of Anil Prakash (A.W. 2), the brother of the appellant. Simply because respondent also used to sit as the wife in the car the blame of purchase of car cannot be on her, As per appellant himself he used to draw a salary of Rs. 5,000/- per month. He had to pay an instalment of Rs. 4,000/- per month for car loan. He used to give the remaining amount for household expenses. It is self-evident that share of appellant in household expenses was not substantial because some expenditure on petrol and maintenance of car was also expected. Certainly, the respondent was not responsible for financial difficulties.
11. Much capital is sought to be made out of Ex. P/4a application for keeping the telephone for observation by the respondent on the ground that malleous calls were being received. Ex. P/4 is record of callers. Appellant claimed that this act of the respondent had caused serious mental agony to him as his wife suspected his character. However, telephone has been under observation between 1.5.1995 and 7.5.1995 for a week. Call time of recorded calls had ranged between 12 and 20 minutes which means that the person called had talked to his heart's content. Malleus callers are generally blank callers who would not chat for such long time. The respondent has claimed that some Jaju used to telephone the appellant. However, this Jaju is not examined. According to her the appellant would not allow her to receive his telephone. On the whole this in itself is not a ground for divorce.
12. Appellant has further claimed that he had come from Jagdalpur after death of father of respondent on 12.6.1996. According to him, the respondent did not talk to him and on his attempt to talk she used rude language. It is noteworthy that the appellant had left the house in clothes worn by him on scooter on 3.6.1995 and had returned to home after about a year he had visited his house with his brother and had stayed only for half an hour to condole the death of father of respondent. It is noteworthy that father of respondent had died at the house of respondent herself. Such short visit does not go to the credit of the appellant. No capital can be made out even if the respondent maintained silence or gave any rude reply in such circumstances.
13. To prove that the respondent misbehaved with the parents or brothers of the appellant or threatened to commit suicide, the appellant has examined himself and his two brothers. All three have been disbelieved by the Court below. Parents of appellant have not been examined. Certainly, the respondent lived in the nuptial home for about 4-5 years. Both the appellant and respondent were in Bank services. They had an infant son. According to respondent that son had to be left at the house of her parents before going to the office. Such house was at a great distance. Hence she had advised to rent a house near the house of her parents. The appellant had agreed to it. To hold that respondent had undue preference for her parents is not proved. Certainly, the couple was residing in the house of Anil Prakash (A.W. 2), the brother of the appellant on 3.6.1995. Theory that the respondent used to threaten to commit suicide is also not established. Different versions are given by the appellant Sunil Sehgal (A.W. 1), his brother Anil Prakash (A.W. 2) and Indra Prakash Sehgal (A.W. 4), The last had ventured to say that respondent was suffering with inferiority complex About her looks, health and physique. May bi there used to bi quarrels between the parties but such quarrels in my opinion were not more than ordinary wear and tear of the married life. On the other hand the appellant had clearly threatened to commit suicide. A letter (Ex. D/1) is a passionate letter to the wife threatening to commit suicide in case she does not sign the application for divorce by mutual consent annexed to the letter. It is suprising that on back of the letter a loving letter has been written to the son also. Certainly, the appellant has taken care that the son would also read the letter addressed to the mother and thus the appellant had tried to prejudice the mind of the son also seriously against the mother certainly, the Court below has not erred in holding it not proved that the respondent was guilty of causing mental cruelty to the appellant to make the cohabitation impossible or injuries to the appellant.
14. The learned Advocate for the appellant has over-emphasized on he language of the reply notice (Ex. P/11) purported to have been given by Shri Mukesh Gupta, Advocate. Shri Mukesh Gupta, Advocate has not been examined to prove on whose instructions he had sent such a reply. The respondent has claimed that he had told her brother to get prepared a reply of the notice received by her. She admits that some of the allegations in Ex. P/11 have not been correct and are exaggerated. Portions A to N-N of written statement have also been put to the respondent in her cross-examination. She admits that some of such allegations have been exaggerated. Sum and substance of such allegations has been that the respondent suspected that the appellant had contacts with some girls whose telephones used to come to him. Respondent has claimed that Anil Prakash (A.W. 2) the brother of the appellant had informed her that the appellant used to wander with some girls and she should take care of the appellant. However, Anil Prakash (A.W. 2) has denied that he had ever told respondent about anything on the subject. Even if it is taken to be proved that the respondent used to suspect or taunt regarding contacts of appellant with some girls, the same is not sufficient to cause mental agony to the extent to amount to cruelty. Afterall, the respondent was cohabiting with the appellant. She was cooking his food, rearing his child and even ride the car with him.
15. There has been no evidence on record that the respondent ever complained against the appellant either to his superior officers or police or any other person or authority who was in a position to harm the appellant. There has been no evidence that the respondent ever alleged openly that the appellant had contacts with the girls and used to receive telephone calls from them. Even if it is assumed that parents of appellant or even S.P. Azad mediated between the young couple on their mutual quarrels in the beginning of marital life, it does not go to prove that the respondent is guilty of mental cruelty particularly in view of the fact that children were born to respondent during the period and abortions had to be resorted to in August, 1990 and October, 1994.
16. The Advocate for the appellant has claimed that the marriage has irretrievably broken. According to him this is a case of dead marriage. The marriage bond has been broken since 1990. Thirteen years have elapsed. There is no possibility of reconciliation between them. Attempts of the Court for reconciliation have failed. On 31.3.2000 the appellant has shown his disinclination for reconciliation. On 23.1.2003 he undertook to keep the child with him to educate him and give all love and affection of father and economic provisions if the son is given to him. Certainly, he was not ready to live with the respondent. He was told to give the same in writing. However, no undertaking was given in writing. Appellant has been insisting on divorce while respondent had been ready for conciliation. The Advocate for the appellant has relied upon Romesh Chandar v. Smt. Savitri, I (1995) DMC 231=(1995) 1 MPWN 140, which was a case of second round of litigation. First round was fought on ground of desertion. Second round of litigation was fought on the ground of cruelty. Both parties had allegations and counter allegations against one another. Facts are certainly widely different. V. Bhagat v. D. Bhagat (supra), Chandrakala Trivedi v. Dr. S.P. Trivedi, II (1993) DMC 271=1993(4) SCC 232; Mr. Jorden Diengdeh v. S.S. Chopra, AIR 1985 SC 935 and several other cases have also been relied upon. Certainly, facts of all these cases had been widely different from the present one.
17. However, it is noteworthy that irretrievable breakdown of marriage is not a ground by itself for divorce. V. Bhagat v. D. Bhagat, (supra). Savitri Pandey v. Ramchandra Pandey (supra). Mr. Jorden Diengdh v. S.S. Chopra, (supra). Certainly, it is not a magic formula to be adopted in every case where the petitioner fails to prove a ground for divorce. In the present case the couple lived together till 3.6.1995. The respondent had been pregnant and had got aborted in October, 1994. Appellant was posted at Jagdalpur while the respondent was posted and stationed at Gwalior. Living separate had been due to exigency of service and does not amount to desertion. Petition for divorce was filed on 20.11.1996. The same was dismissed on 16.11.1998. This appeal was filed on 17.2.1999 and is being decided today. Thus, most of the time during which they lived separate the divorce petition had been pending. Certainly, there has been evidence of some tension or quarrels between the parties but allegations and counter allegations have not been of such a magnitude to hold that the marriage had irretrievably broken down. Certainly, the appellant cannot be allowed to take benefit of his own wrong. Certainly, he had been short tempered and irresponsible. Grant of decree of divorce in these facts would not be justified.
18. Hence in my considered opinion there is no ground in itself for disagreeing with the Court below. The judgment and decree of the Court below is affirmed as it is. Appeal is dismissed with costs.