JUDGMENT Bhawani Singh, J.
1. This appeal arises out of the judgment of Additional District Judge (I), Kangra in H.M. Petition No. 45/87, decided on 30.5.1988, moved by the respondent under Sections 13 of Hindu Marriage Act for dissolution of marriage by a decree of divorce.
2. Briefly, the facts are that the parties were married on 1.3.1979 according to Hindu rites at Pathankot. They lived peacefully till February, 1982 and out of this wedlock, a male child Rohit, was born on 27.3,1982. Soon thereafter, the relations decayed between the parties and the grievance of the husband is that right form the beginning of the marriage, the parents of the appellant had been interfering in the married life of the parties and the appellant was in the habit of leaving the matrimonial house without the consent of the respondent and other members of the family. Further, case of the respondent is that the appellant had been insisting for separate living, since she was not adjusting in the culture of a remote village of the State. She belongs to Amritsar and was interested in living in the city away from the village. The appellant was taken to the place of his service, however, there also she used to leave the place without his consent and even leaving no information behind about her whereabouts. All this had lowered the reputation and status of the respondent in the eyes of the public and his fellow employees. It is also the case of the respondent that the appellant wanted him to cut off his relations with other members of his family. Despite all efforts to settle her, the appellant did not improve, although, she had not only realized her in temperate behaviour towards the respondent, but also felt sorry for the same and wanted to be excused. Two petitions were also filed against the respondent, which ended in compromise, still the parties are living apart. It is also the case of the respondent that the appellant had withdrawn and taken away the child from the school without his knowledge and consent. Because of the behaviour of the appellant, the respondent has not only hurt, but has caused humiliation to him in the public. His health has weakened due to this humiliation and mental torture on behalf of the appellant.
3. The appellant has contested the petition. The allegations have been refuted. Her case is that after about one and a half year of marriage, the respondent developed illicit relations with his sister-in-law, namely, Smt. Shushma and when she noticed this kind of relationship and asked the respondent about it, she was beaten quite frequently thereafter. She was turned out of the house and refused maintenance. As a result of this, she had to go to her parents' house, but her parents used to send her back to the house of the respondent hoping that good sense would prevail upon the respondent, but despite all these efforts, the respondent did not improve and instead he threatened to kill her, in case she was keen to stay with him. She also denied that the respondent ever came to call her back from the house of her parents.
4. On the pleadings of the parties, the following Issues were framed:
"(I) Whether the respondent treated the petitioner with cruelty, if so, its effect ? OPP.
5. After hearing the parties, issue No. 1 was decided in favour of the respondent and the marriage between the parties was dissolved by the impugned order. This is how, the matter has been brought to this Court by the appellant.
6. Shri Kuldip Singh, Id. counsel for the appellant, assailed the impugned judgment and it was contended that the judgment is liable to be set-aside, since the respondent has not been able to establish the allegation of cruelty in this case and the assessment of the trial Court is absolutely against the evidence on record and the legal principles which are to be applied while deciding such kind of cases. I order to support these contentions, the Id. counsel submitted that the facts disclose quite clearly that the respondent is trying to take benefit of his own wrongs. It was he who was responsible for the initiation of the present petition, otherwise, there was no justification to move the present petition on facts which are completely non-existent. Cruelty has not been proved, therefore, the petition for dissolution should not have been allowed.
7. On the other hand, Shri Rakeshwar Lal, Id. counsel for the respondent, supported the impugned judgment and assailed the submissions of the appellant's counsel. Reliance was placed on certain decisions to support the plea that the allegation of cruelty stands proved in the facts and circumstances of this case. It was also contended with some vehemence that the false allegation of adultery levelled by the appellant against the respondent is enough to allow the petition on the basis of cruelty.
8. In 1980 H.L.R. 546 (Smt. Nirmal v. Brij Mohan) the allegation of molestation was set up in the written statement and then repeated during the course when she appeared as a witness. Apart from this, no evidence was led in support of the allegation and the same remained unsubstantiated. The learned Judge observed that this kind of conduct was sufficient to establish cruelty on her part, since 'cruelty' as understood under law does not necessarily mean acts of physical torture. Any conduct on the part of the spouse which causes mental torture to the other party, can also be considered as evidence of cruelty. This case does not help the respondent in this case for the reason that the appellant has not only taken these allegations in her written statement, but also led evidence in support of the same in the Court, not only in her own statement, but through other witnesses also. The respondent has not alleged in the petition through the respondent was aware of this fact as is clear from para 3 of notice dated 22.8.1986 (mark-C) issued by him to the appellant. Still the petition has not been founded on this allegation. More over, when this allegation was made in the written statement, he should have either applied for the amendment of the petition and included this fact therein or filed replication to the petition disputing this assertion of the appellant. The only conclusion which can reasonably be drawn, in these circumstances, is that it did not cause any kind of mental torture that could amount to cruelty within the meaning of Section 10 of Hindu Marriage Act, 1955 (hereafter 'the Act'). (See: 1979 H.L.R. 415 (Smt. Jarnail Kaur v. Sarwan Singh) and AIR 1982 Delhi 107=II (1981) DMC 92 Delhi (Smt. pushpa Rani v. Krishan Lal).
9. In AIR 1979 Jammu & Kashmir 4 (Smt. Kamla Devi v. Balbir Singh), the Court pointed out that cruelty need not be physical and in case from the conduct of a spouse it is established or an inference can legitimately and reasonably be drawn that the treatment by the spouse is such that it causes ah apprehension in the mind of the other spouse about his mental welfare, then that conduct amounts to cruelty within the meaning of Section 10. In coming to this conclusion, the Court placed reliance on the decision of Supreme Court in AIR 1975 Supreme Court 1534 (Dr. N.G. Dastane v. Mrs. S. Dastane), There is no dispute about the principle enunciated in this judgment, but the facts as noticed by the Court were that the wife had been using foul and abusive language to the husband and to his parents and she often picked up quarrels and disturbed his mental peace, therefore, on facts/this case is not applicable to the present case. Similar is the position in 1985(2) H L.R. 346=11 (1985) DMC 151 (All.) (Kalpana Srivastava v. Surendra Nath Srivastava), 1986(1) H.L.R. 634 M.P. (Harbhajan Singh Monga v. Amarjeet Kaur) and 1987(2) H.L.R. (Smt. Savita Chadha v. Ravinder Singh Chadha). The facts in all these cases were quite serious and it was in those circumstances that the Courts came to the conclusion that the conduct of erring spouse amounted to cruelty towards the other spouse.
10. Expression 'cruelty' has not been defined in the Act nor can it be put in strait-jacket of Judicial Definition, since it is neither desirable nor possible to make any attempt to do so, for the same may prove abortive, since cases coming before the Courts have their peculiar individual facet calling for individualistic approach to tackle them. It is principly and essentially question of fact to be decided on the basis of the pleadings and the evidence brought on the record by the respective parties and then the Court has to asses whether the behaviour of the spouse is of such a degree and can no longer be considered to be the routine wear and tear of married life. This is not so in the present case. The so called allegation of adultery cannot be taken into consideration seriously in this case, since the respondent has just adopted a cool posture towards it. He has not felt upset on this account, since he has not even tried to repudiate it in his pleadings and the evidence.
11. Ld. counsel for the appellant also contends that even if it be taken that there was some fault of the appellant in the past as reflacted in Ext. PL, Ext. P-3 and Ext. P-4, the same stands condoned by the respective statements of the parties in two petitions, namely, HMA No. 75/85 (Smt. Akash Sharma v. Ramesh Kumar) and HMA. No. 35/86 (Smt. Akash Sharma v. Ramesh Kumar), available on the record of this case. There is force in these submissions. Condonation means forgiveness of the matrimonial offence and the restoration of the offending spouse to the same position as he or she occupied before the offence so committed. To constitute condonation, there must be, therefore, two things, namely, forgiveness and restoration. (See. Dr. N.G. Dastane's case (supra). In order to plead cruelty, the husband has to make out a case of higher degree to assert and prove that the matrimonial offence was not condoned. (See : 1980 H L.R. 205 (Ramesh Chandra Ray v. Smt. Nandita Ray), AIR 1981 H.L.R. 636 (Chitra Kala Bewa alias Semal alias Del v. Jambubati Bewa and others) and AIR 1988 Supreme Court 407=1 (1988) DMC 381 (J.L. Nanda v. Smt. Veena Nanda). Therefore, it can very well be said that withdrawal of the previous petitions subsequent to the compromise between the parties, constitute condonation and in the absence of fresh allegations of really serious nature, the plea of the respondent for a degree of divorce under Section 13(1)(i-a) of the Hindu Marriage Act, 1955 cannot be allowed. As already observed, instances given in this case are not of serious nature and do not amount to 'cruelty'.
12. The result of the aforesaid examination is, the respondent has not been able to establish the charge of cruelty against the appellant and the appeal is accordingly allowed, leaving the parties to bear their own costs.