Sangeet Lodha, J.

1. These two appeals under Section 19 of the Family Courts Act, 1984 are directed against judgment and decree dated 5-3-10 of-:Family Court, Jodhpur, whereby the petition preferred by the respondent-wife for diss61ution of marriage under the provisions of Section 2(viii) of the Dissolution of Muslim Marriage Act, 1939 (for short the Act of 1939) has been allowed and the petition preferred by the appellant-husband for restitution of conjugal rights (darkhawast dakhal-i-zoziat) stands dismissed. Accordingly, the marriage between the parties stands dissolved by a decree of divorce.

2. The cross-objections have been filed by the cross-objector-wife in Appeal No. 386/10 aggrieved by the findings recorded by the Family Court on issue No. 1 as also against the denial of decree for Mahr agreed to be paid to her at the time of her marriage.

3. The appellant and respondent entered into marriage on 26-12-1997, at Jodhpur by performing rites and ceremony in accordance with the custom prevalent in the Muslim community. At the time of marriage, the appellant agreed to pay Mahr to the respondent a sum of Rs. 21,000/- in cash and 21 gold asharfees, by way of Nikahnama reduced in writing. Out of the wedlock, a son was born on 15-5-1999.

4. The respondent preferred an application for dissolution of marriage under Section 2(viii) of the Act of 1939 stating that after the marriage, she came to know that her husband, the appellant herein, is a man of bad character. He was found keeping illicit relations with other girls. That apart, he attempted to force the respondent to lead an immoral life. It was alleged that the appellant demanded a sum of Rs. 10 lacs as dowry from the respondents father and on protest being raised, she was beaten up. It was further alleged that the parents of the appellant threatened that if an amount of Rs. 10 lacs is not paid, they will solemnize second marriage of their son, the appellant herein. A few specific incidents of cruelty were set out in the petition which may be summarised thus:

In the month of August, 1998 under a well planned conspiracy, the respondent was taken to a hotel in Delhi saying that the appellant intends to start a new business and therefore, the party entering into joint venture is to be consulted and the business project to be prepared. The respondent was informed that the person with whom the new business is to be started is coming accompanied by his wife. The said person accompanied by his wife joined the appellant and the respondent in the evening and stayed in the same hotel. Under a planned conspiracy, the respondent was made to consume some thing mixed in the cold drink, as a result thereof, she became unconscious. When she woke up in the morning, she came to know that her husband and the said companion of her husband had sexual intercourse with her in the night. On the complaint being made, no heed was paid by the husband rather, he said that the wife of his companion had made sexual intercourse with him consciously and therefore, if his companion has made sexual intercourse with the respondent then there is nothing objectionable in it and that exchange of the wives is a progressive trend. The respondent was informed that a video film of the incident has also been prepared and if the respondent makes disclosure of the incident occurred, the said video film prepared shall be made public. It was further alleged that when the incident was narrated by the respondent to her mother-in-law, she supporting the appellant, said that if for welfare of the husband, the wife enters into sexual intercourse with somebody else then there is nothing wrong in it.

The appellant and the respondent shifted from Ajmer to Jaipur and thereafter, there was no check on appellant of the parents and consequently, he openly indulged in bad habits which includes taking liquor, entering into homo sexual relations and sexual intercourse with other girls. The appellant also created an email ID namely, Vishal69@hotmail.com with an intention to indulge in nefarious activities. The respondent was compelled to talk on telephone and chat on internet with unknown persons. The appellant also compelled the respondent to earn the money by prostitution and on refusal, she was beaten up.

The appellant accompanied by a girl N came to the house in the night and stated that she will be preparing the project on computer. On the next day morning, the respondent saw the appellant and the said girl sleeping together in the naked position. The said girl apprised the respondent that she had illicit relations with the appellant who is in possession of her photographs in compromising position and therefore, on the threat, he calls her as and when he desires and compels her to enter into sexual intercourse.

Looking at the nefarious activities in which the appellant was involved, the respondent insisted that either the appellant should shift to Ajmer else she will leave his company and go to Jodhpur along with the child. However, annoyed by the insistence of the respondent, the appellant snatched the child from the respondent and confined him in a room and threatened the respondent that if she goes to Jodhpur, he will kill the child and commit suicide.

On 20-10-2002, at about 2 a.m. in the night, the appellant insisted the respondent to talk with an unknown person and to tell him that she is ready to spend a night with him. On refusal of the respondent, she was beaten up. Hearing the cries, child woke up, who was also given beating. The respondent telephonically informed her parents and requested them to come to Jaipur so that she may go to Jodhpur, however, when this fact came to the knowledge of the appellant, he started quarrelling with the respondent and again threatened that if she calls her parents, he will kill the child and commit suicide. The respondent informed her father on telephone not to come to Jaipur and accordingly, the respondents father got his railway reservation cancelled but sent the respondents brother to Jaipur. Seeing the respondents brother, the appellant got angry, started abusing, attempted to beat the respondent and thrown her belongings out of the house. He took away the child in a room, bolted the door from inside and threatened to kill him and commit suicide.

Two three days after the said incident, the appellant and respondent accompanied by their son came to Ajmer. On 26-10-2002, at about 6.30 p.m. the appellant came with a foreigner and said that he has brought a client with whom she is required to spend a night. Having come to know about the bad intention of the appellant, the respondent along with the child went to her room and closed the door from inside. When the appellant was attempting to break open the door, the respondent informed her father telephonically regarding the immoral act of the appellant. While she was still talking with her father on mobile phone, the appellant broke open the door, entered the room and started beating the respondent. Hearing the cries, the neighbours came to their house, in the meanwhile, the foreigner friend of the appellant fled away. The incident was reported by the respondents father from Jodhpur to the Police Control Room and thus, the police personnel from the concerned Police Station, Ajmer reached at the site. The neighbours took the responsibility to protect the respondent till her parents reach Ajmer to take away her to Jodhpur. The respondents parents reached Ajmer at about 10.30 p.m. The respondent left the company of the appellant and came to Jodhpur accompanied by her son on 26-10-2002 itself and since then, she is residing with her parents at Jodhpur.

5. Thus, on the basis of the allegations levelled as aforesaid, constituting cruelty, the respondent sought decree of divorce in terms of provisions of Section 2(viii) of the Act of 1939. The respondent also prayed for a decree for Mahr agreed to be paid at the time of marriage.

6. The petition was contested by the appellant by filing a reply thereto. The factum of marriage and Mahr agreed to be paid was not disputed. However, the allegations levelled by the respondent in the petition regarding cruel treatment meted out to her were specifically denied. It was averred that the appellant never compelled the respondent to lead an immoral life. It was further averred that the respondent has withdrawn from the company of the appellant without there being any reasonable cause.

7. On the basis of the pleadings of the parties, the trial Court framed the issues as follows:

1. Whether the non-applicant compelled the applicant to lead an immoral life as detailed in the application

2. Whether the non-applicant is having illicit and immoral relations with other girls

3. Whether the non-applicant treated the applicant with cruelty as detailed in the application

4. Relief

8. The appellant also filed a petition for restitution of conjugal right (darkhwast dakhal-i-zoziat). Both the petitions were consolidated and tried together.

9. The respondent-wife examined herself as P.W.1 and her father as witness P.W.2. The appellant-husband examined himself as NAW-1, his father, NAW-2, and two more witnesses as NAW-3 and NAW-4. The documents produced were marked as Exhibit-1 to Exhibit-4 and Exhibit P-1 and P-2.

10. After due consideration of the rival submissions and the evidence on record, the Family Court decided the issue Nos.2 and 3 in favour of the respondent and against the appellant, however, issue No.1 has been decided against the respondent and in favour of the appellant. On the basis of the allegations proved, the Family Court found that the appellant had treated the respondent with cruelty and therefore, the respondent is entitled for decree of dissolution of marriage in terms of provisions of Section 2(viii) of the Act of 1939. Consequently, the marriage between the parties has been dissolved by a decree of divorce and the petition preferred by the appellant for restitution of conjugal rights stands dismissed. Regarding the claim of the respondent for Mahr agreed to be paid at the time of marriage, the Family Court observed that the respondent may approach the Court of competent jurisdiction for the said relief separately. Hence, these appeals and cross-objections.

11. Learned counsel for the appellant contended that the Family Court has miserably failed to appreciate the evidence on record in correct perspective. Learned counsel submitted that the respondent has failed to prove the allegations levelled, by producing any evidence, so as to make out a case of cruel treatment being meted out by the appellant to her. Learned counsel submitted that while deciding issue No.2 which relates to the appellant keeping illicit relations with other girls, the Family Court has erred in accepting the deposition of the respondent (P.W.1), as gospel truth. Learned counsel submitted that the allegation with regard to the appellant kissing a boy in Puskar has also been erroneously held to be proved without there being any cogent evidence on record. Learned counsel submitted that the Family Court has also erred in relying upon photograph (Ex.2) wherein the appellant is shown to have taking liquor. Learned counsel urged that the observations made by the Family Court regarding the appellants family atmosphere and the psychotropic disorder of the appellants mother are also not supported by any evidence on record.

12. Learned counsel submitted that the Family Court has seriously erred in deciding issue No.3 in favour of the respondent and against the appellant. Learned counsel submitted that the Family Court has erred in placing reliance on FIR (Ex.P/1) registered against the appellant for offence u/Ss. 498A and 406, IPC, as also the newspaper cutting (Ex.P/2) and the Roznamchana report. Learned counsel submitted that no prosecution has been initiated against the appellant on the basis of Ex.P/3. Learned counsel submitted that the Family Court has erred in drawing adverse inference for not producing the appellants mother and neighbour, as witnesses, despite their affidavits being produced. Learned counsel submitted that as a matter of fact, the appellant had produced his mother before the Court for recording her evidence on 7-11-2009. Learned counsel submitted that the burden to prove the allegations levelled was heavily on the respondent, which she has failed to discharge. It is submitted that without there being any reliable evidence on record, findings arrived at by the Family Court on issue No.3 is ex facie erroneous and perverse. Learned counsel submitted that the allegations levelled having not been proved, the respondent was not entitled for decree of divorce in terms of provisions of Section 2(viii) of the Act of 1939 and therefore, the decree for dissolution of marriage passed by the Family Court deserves to be set aside. It is submitted that the appellant was always ready and willing to live with the respondent but the respondent had withdrawn from is company without any reasonable cause and therefore, the appellant was entitled for decree for restitution of conjugal rights.

13. On the other hand, learned counsel appearing for the respondent submitted that the findings arrived at by the Family Court on issue Nos.2 and 3, which relate to the illicit relations of the appellant with other girls and the cruel treatment being meted out by the appellant to the respondent, after appreciation of the evidence on record cannot be said to be capricious or perverse so as to warrant interference by this Court in exercise of its appellate jurisdiction. Learned counsel submitted that the Family Court has seriously erred in considering the testimony of the respondent in respect of the issue No.1 as not reliable solely for the reason that she remained silent and did not disclose the incident occurred to anybody else. Learned counsel submitted that the Family Court has erred in ignoring the deposition of the respondent regarding the incident occurred in hotel at Delhi on the ground that the bills of stay at the hotel etc., were not produced. Learned counsel submitted that the Family Court has seriously erred in observing that the facts regarding the video film being shown to her by husband is not pleaded in the application and therefore, the evidence led in this regard cannot be looked into. Learned counsel submitted that an Indian lady not disclosing such an incident to anybody else is not unnatural. Learned counsel submitted that it is not in dispute that just after the incident the respondent had become pregnant and therefore, if under mental depression, she refrained from disclosing the incident to her parents, it in no manner suggest that the incident narrated is false. Learned counsel urged that it is not the requirement of the law to set out the details of the evidence to be produced to prove the allegation in the pleadings and therefore, non-mentioning of the factum of the husband of the appellant showing the video film cannot be made basis for drawing an adverse inference. Accordingly, it is submitted by the learned counsel that on the basis of evidence on record, issue No.1 also stands duly proved and therefore, the findings of the Family Court on the said issue deserves to be reversed.

14. Learned counsel submitted that the Family Court has seriously erred in denying the decree for Mahr agreed to be paid between the parties at the time of marriage. Learned counsel submitted that the facts pleaded by the respondent regarding the Mahr agreed to be paid are not in dispute and therefore, the decree of divorce having been passed by the Family Court in favour of the respondent, she was entitled for a decree for an amount equal to the sum of Mahr agreed to be paid to her at the time of her marriage by virtue of provision of Section 3(1)(c) of Muslim Women (Protection of Rights on Divorce) Act, 1986. Accordingly, it is submitted by the learned counsel that the family court has seriously erred in relegating the respondent to avail the appropriate remedy before the competent court in respect of the amount of Mahr.

15. Replying the arguments of the learned counsel appearing for the respondent, learned counsel for the appellant submitted that the allegations levelled regarding the appellants compelling the respondent to lead an immoral life have rightly been held not proved by the Family Court. Learned counsel urged that regarding the alleged incident in hotel at Delhi, no independent and reliable evidence was produced by the respondent. Drawing the attention of this Court to the deposition of the respondent before the Family Court, learned counsel submitted that in the cross-examination, she has specifically stated that the appellants alleged friend and her wife had already left the hotel before she regained consciousness and therefore, the allegations levelled regarding the appellants alleged friend indulging in sexual intercourse with the respondent are ex facie false. Learned counsel submitted that in the examination in chief, the respondent has now her stated that the fact regarding the sexual intercourse by the appellants alleged friend was disclosed to her by the appellant on her attaining the consciousness. Learned counsel submitted that had the video film being available with the appellant, he could have always used the same for pressurizing the respondent to lead the immoral life subsequent to the incident occurred as aforesaid and therefore, the testimony of the respondent in this regard has rightly been found untrustworthy by the Family Court. Learned counsel submitted that to prove the allegations, the respondent could have produced the documentary evidence regarding the stay in the hotel during the relevant period. Learned counsel submitted that the incident alleged to have occurred at Ajmer, also has not been proved by producing any evidence on record, to the contrary, the neighbours, independent witnesses, produced on behalf of the appellant before the Family Court falsify the allegations levelled against the appellant as aforesaid.

16. Learned counsel submitted that in the petition filed, the respondent nowhere disclosed that under which provision of law, she is claiming decree of Mahr. It is further submitted that no issue was framed by the Family Court in respect of claim of Mahr and no evidence was led by the parties in this regard, and therefore, the Court below has committed no error in denying the relief and relegating he respondent to avail the appropriate remedy if she is entitled for the amount of Mahr agreed to be paid at the time of marriage.

17. We have considered the rival submissions and perused the record.

18. The Act of 1939 was enacted by the Legislature enabling a married Muslim woman in obtaining decree from the Court dissolving her marriage. The grounds for decree of dissolution of marriage have been enlisted under Section 2 of the Act of 1939. Sub-section (viii) of said Section promulgates cruelty as a ground for obtaining decree of divorce which reads as under:

2. Grounds for decree for dissolution of marriageA woman married under Muslim law shall be entitled to obtain a decree for the dissolution of her marriage on any one or more of the following grounds namely:

Xxxxxxxxxx

(viii) that the husband treats her with cruelty that is to say:

(a) habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill-treatment, or

(b) associates with women of evil repute or leads an infamous life, or

(c) attempts to force her to lead an immoral life, or

(d) disposes of her property or prevents her exercising her legal rights over it, or

(e) obstructs her in the observance of her religious profession or practice, or

(f) if he has more wives than one, does not treat her equitably in accordance with the injunctions of the Quran;

19. A perusal of the Section 2(viii) reveals that clause (a) thereof makes a general provision which encompasses in itself all form of physical and mental cruelty whereas, clauses (b) to (f) specify certain acts and conduct on the part of the husband to come within the ambit of cruelty. The cruelty which is a matrimonial offence has long been recognized as a ground for granting decree of divorce. The Courts while interpreting similar provisions in different legislations have emphasized the need of a liberal construction to be placed on the same.

20. It is settled law that the cruelty is to be taken as behaviour by one spouse towards the other, which causes reasonable apprehension in the mind of the latter that it is not safe for him or her to continue the matrimonial relationship with each other. Mental cruelty is state of mind and feeling, which is necessarily a matter of inference to be drawn from the facts and circumstances of each case. The inference has to be drawn from attending facts and circumstances taken cumulatively. In case o mental cruelty, an individual instance of misbehaviour cannot be taken in isolation so as to determine as to whether such behaviour by itself is sufficient to cause mental cruelty.

21. In the matter of Jaichandra v. Aneel Kaur, 2005 (2) SCC 22 [LQ/SC/2004/1367] : (AIR 2005 SC 534 [LQ/SC/2004/1367] ) the Honble Apex Court observed:

10. The expression cruelty has not been defined in the Act. Cruelty can be physical or mental. Cruelty which is a ground for dissolution of marriage may be defined as willful and unjustifiable conduct 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 has to be considered in the light of the norms of marital ties of the particular society to which the parties belong, their social values, status, environment in which they live. Cruelty, as noted above, includes mental cruelty, which falls within the purview of a matrimonial wrong. Cruelty need not be physical. If from the conduct of his spouse same is established and/or an inference can be legitimately drawn that the treatment of the spouse is such that it causes an apprehension in the mind of the other spouse, about his or her mental welfare then this conduct amounts to cruelty. In a delicate human relationship like matrimony, one has to see the probabilities of the case. The concept, a proof beyond the shadow of doubt, is to be applied to criminal trials and not to civil matters and certainly not to matters of such delicate personal relationship as those of husband and wife. Therefore, one has to see what are the probabilities in a case and 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. Cruelty may be physical or corporeal or may be mental. In physical cruelty, there can be tangible and direct evidence, but in the case of cases where there is no direct evidence, Courts are required to probe into the mental process and mental effect of incidents that are brought out in evidence. It is in this view that one has to consider the evidence in matrimonial disputes. (Emphasis added)

22. In Navin Kohli v. Neelu Kohli, AIR 2006 SC 1675 [LQ/SC/2006/237 ;] the Honble Supreme Court considering the question of matrimonial cruelty observed:

66. 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 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.

67. The Court dealing with the petition for divorce on the ground of cruelty has to bear in mind that the problems before it are those of human beings and the psychological changes in a spouses conduct have to be borne in mind before disposing of the petition for divorce. However insignificant or trifling, such conduct may cause pain in the mind of another. It has to be seen whether the conduct was such that no reasonable person should tolerate it. It has to be considered whether the complainant should be called upon to endure as a part of normal human life. Every matrimonial conduct, which may cause annoyance to the other, may not amount to cruelty. Mere trivial irritations, quarrels between spouses, which happen in day-to-day married life, may also not amount to cruelty. Cruelty in matrimonial life may be of unfounded variety, which can be subtle or brutal. It may be words, gestures or by mere silence, violent or non-violent.

68. The foundation of a sound marriage is tolerance, adjustment and respecting one another. Tolerance to each others fault to a certain bearable extent has to be inherent in every marriage. Petty quibbles, trifling differences should not be exaggerated and magnified to destroy what is said to have been made in heaven. All quarrels must be weighed from that point of view in determining what constitutes cruelty in each particular case and as noted above, always keeping in view the physical and mental conditions of the parties, their character and social status. A too technical and hypersensitive approach would be counter productive to the institution of marriage. The Courts do not have to deal with ideal husbands and ideal wives. It has to deal with particular man and woman before it. The ideal couple or a mere ideal one will probably have no occasion to go to Matrimonial Court.

23. In the backdrop of the settled position of law noticed above, we proceed to examine the correctness of the findings recorded by the Family Court on various issues.

24. Indisputably, the allegations levelled by the respondent alleging cruel treatment being meted out by the appellant to her fall within the purview of Section 2(viii)(a)(b) & (c) ibid. Needless to say that so as to arrive at a conclusion whether the respondent has been treated by the appellant with cruelty, the cumulative effect of the allegations levelled, found proved, has to be taken into consideration and not an individual instance of cruel treatment in isolation.

25. From bare perusal of the impugned judgment, it is manifest that the Family Court while deciding issue No.1 has examined the individual instances of ill treatment in compelling the respondent to lead immoral life with an yardstick of strict proof. That apart, the cumulative effect of various aspects emerging from the evidence on record has not been taken into consideration, which has resulted in erroneous findings being arrived at. On careful scrutiny of the pleadings of the parties and the evidence adduced makes it abundantly clear that the appellant exerted pressure on respondent to have sexual intercourse with other persons and to lead an immoral life.

26. The respondent (P.W.1) in her deposition before the Family Court has deposed in unequivocal terms that in the month of August, 1998, the appellant had taken her to hotel at Delhi, saying that he intends to start a new business and, therefore, the party entering into joint venture is to be consulted, who is coming to Delhi accompanied by his wife. She was made to consume something mixed in the cold drink as a result thereof she lost her consciousness. She deposed that when she regained the consciousness on the next day, she came to know that she has been subjected to sexual intercourse by the appellant and his companions. She stated that the appellant made sexual intercourse with the lady accompanying the invitee as well. She further stated that on her complaining about the act, the appellant said that the lady accompanying the invitee entered into sexual intercourse with him on her own volition and, therefore, she should also have agreed for the intercourse happily. She deposed that the appellant said that exchange of wives is common nowadays. She was told that when the invitee made sexual intercourse with her is the night, the same has been videographed and, therefore, if any attempt is made to disclose the incident to anybody else, then, she will be defamed.

27. It is true that in cross-examination she deposed that it is not known to her as to when the invitee and his wife left the hotel inasmuch she was unconscious. But then, it is nowhere deposed by her in examination-in-chief that when she woke up in the morning, the said couple was still there in the room of the hotel occupied by them. She stated that after the incident as aforesaid, she became pregnant and having suffered the incident, was under shock. She deposed that she continued to reside with her husband even after the said incident on account of threatening being given by him.

28. Regarding the incident occurred at Jaipur on 21-10-2002, she deposed that she was compelled to talk with an unknown person and to express her willingness to enter into sexual intercourse with him and on refusal she was beaten up. Similarly, regarding incident occurred at Ajmer on 26-10-2012, she deposed that at about 6.30 p.m. the appellant came with a foreigner and said that he has brought a client with whom she should spend a night, however, she along with the child went to her room and bolted the door from inside and tried to contact her parents on mobile phone. She further deposed that while she was still talking with her father on mobile phone, the appellant broke open the door, entered the room and started beating her. She stated that the mobile phone was on and, therefore, her father heard the conversation and informed the concerned Police Station at Ajmer to take necessary action. The police had reached the place of incident, is a matter of record. In the cross-examination, nothing of substance could be divulged, which could impeach the credit-worthiness of the respondents deposition in the examination-in-chief.

29. A perusal of the findings recorded by the Family Court further reveals that the testimony of the respondent has been discarded in respect of the allegations levelled as aforesaid observing that the conduct of the respondent, an educated lady, in suffering and tolerating such incident cannot be said to be natural. In our considered opinion, on the facts and in the circumstances of the case, when the respondent had already conceived and was being continuously threatened by the husband, non-disclosure of the incident immediately to the parents or anybody else cannot be considered to be improbable. There is no reason why the evidence of the respondent without any noticeable discrepancy should not be believed inasmuch as corroboration in such cases would be impossible. Moreover, it should not be lost sight of that despite changing times, even today, a woman in Indian society would be extremely reluctant in leveling such allegations as those in present case, for the fear of adverse social perception about her morality, dignity and character. We find that the deposition of the respondent (PW 1) regarding the incidents referred supra, is consistent and in absence of any material contradictions, the family Court has erred in discarding her testimony in respect of the allegation levelled as aforesaid. It may be true that the respondent could have produced more evidence including the evidence with regard to stay in the hotel at Delhi but then, on that account, her oral testimony cannot be brushed aside. For the aforementioned reasons, we are of the considered opinion that the findings recorded by the Family Court on issue No.1 are not sustainable in the eye of law and the said issue deserves to be decided in favour of the respondent and against the appellant.

30. Coming to issue No.2, it is to be noticed that the Family Court after considering the evidence on record in its entirety has arrived at a categorical finding that allegations levelled regarding the appellant being a person of easy virtues stands proved on the basis of the evidence on record. Besides, the incident in the hotel at Delhi, which is found to be proved by this Court, it is pertinent to note that the Family Court has also found the allegations with regard to appellant indulging in illicit relations with other girls, duly proved. The Court found that the incident of appellant being found sleeping with a lady N I naked position as narrated by the respondent cannot be disbelieved. The evidence on record has been examined by the Family Court in its entirety and objectivity and the findings arrived at on issue No.2 cannot be said to be capricious or perverse so as to warrant interference by this Court in exercise of its appellate jurisdiction.

31. Coming to the issue No.3, it is to be noticed that apart from the incidents found to be proved as discussed above, the evidence has come on record that the appellant indulged in beating up the respondent and the child. Regarding the incident occurred at Ajmer on 26-10-02, the matter was reported to the police, which is a matter of record. The acts of the appellant in abusing the respondent giving threatening to kill the child, to commit suicide in case the respondent withdraws from his company, the appellant compelling to the respondent to indulge in prostitution are indicative of the fact that the respondent was subjected to great mental cruelty by the appellant. It is pertinent to note that the appellant in his deposit in while denying all the allegations levelled even refused to accept that the photograph (Ex.2), wherein he is shown to have taking liquor, is his own photograph regarding which the Family Court has specifically observed that he has indulged in falsehood.

32. It is settled law that the standard of proof in matrimonial disputes, alleging cruelty as a ground for seeking grant of decree of divorce is that the Court must be satisfied on a preponderance of probability that the ground set out is proved. The corroboration of the evidence of a spouse is also not a matter of law but a rule of prudence adopted by the Courts to satisfy that the allegations made are well founded. There is nothing however, to prevent the Court from passing a decree on uncorroborated testimony of the spouse seeking the decree of divorce. As a matter of fact, the law regarding reliance being placed on uncorroborated testimony of witness being sufficient is well settled so much so that a conviction in a criminal case where the standard of proof is stricter can be maintained on uncorroborated evidence of a victim. Thus, taking into account the cumulative effect of the allegations proved on the basis of the evidence on record, the background of the case and surrounding circumstances, in our considered opinion, the findings arrived at by the Family Court on issue No.3 cannot be faulted with.

33. There is yet another aspect of the matter which required to be noticed that in the recent judgments in the matter of Navin Kohlis case (AIR 2006 SC 1675 [LQ/SC/2006/237 ;] ) (supra) and in the case of Samar Ghose v. Jaya Ghose, 2007 (4) SCC 511 , [LQ/SC/2007/412] the Honble Apex Court has propounded broken house theory rather than fault theory for dissolution of marriage and has laid down the manner in which the problem of broken marriage where there is no hope of retrieval is to be dealt with.

34. Having considered a large number of decisions of the Apex Court and other Courts including that of Australian, American and English Courts, the Honble Supreme Court summarized the position in Samar Ghoses case as under:

95. Once the parties have separated and the separation has continued for a sufficient length of time and one of them has presented a petition for divorce, it can well be presumed that the marriage has broken down. The court, no doubt, should seriously make an endeavour to reconcile the parties; yet, if it is found that the breakdown is irreparable, then divorce should not be withheld. The consequences of preservation in law of the unworkable marriage which has long ceased to be effective are bound to be a source of greater misery for the parties.

96. Law of divorce based mainly on fault is inadequate to deal with a broken marriage. Under the fault theory, guilt has to be proved; divorce courts are presented concrete instances of human behaviour as bring the institution of marriage into disrepute.

98. On proper analysis and scrutiny of the judgments of this Court and other Courts, we have come to the definite conclusion that there cannot be any comprehensive definition of the concept of mental cruelty within which all kinds of cases of mental cruelty can be covered. No court in our considered view should even attempt to give a comprehensive definition of mental cruelty.

99. Human mind is extremely complex and human behaviour is equally complicated. Similarly human ingenuity has no bound, therefore, to assimilate the entire human behaviour in one definition is almost impossible. What is cruelty in one case may not amount to cruelty in other case. The concept of cruelty differs from person to person depending upon his upbringing, level of sensitivity, educational, family and cultural background, financial position, social status, customs, traditions, religious beliefs, human values and their value system.

100. Apart from this, the concept of mental cruelty cannot remain static; it is bound to change with the passage of time, impact of modern culture through print and electronic media and value system etc. etc. What may be mental cruelty now may not remain a mental cruelty after a passage of time or vice versa. There can never be any strait-jacket formula or fixed parameters for determining mental cruelty in matrimonial matters. The prudent and appropriate way to adjudicate the case would be to evaluate it on its peculiar facts and circumstances while taking aforementioned factors in consideration.

101. No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of mental cruelty. The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive.

(i) xxx

(xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty.

(Emphasis added)

35. While keeping in mind the aforesaid principles/the instances o human behaviour laid down by the Honble Supreme Court for guidance, in totality of the circumstances and material on record, it is apparent that the matrimonial bond between the parties stands irretrievably broken on account of physical and mental cruelty inflicted to the respondent by the appellant. The various instances of mental cruelty found to be proved are illustrative of the fact that the parties have no emotions, sentiments, feelings or love for each other. The parties are living separately for last about ten years. The efforts were made by this Court for reconciliation between the parties but, failed. We are of the opinion that the relationship between the parties having been deteriorated to such an extent that compelling them to live together will amount to inflicting more mental cruelties on them. Suffice it to say that it is in interest of society and the parties that such relationship is not continued any further.

36. In view of the discussion above, the decree of dissolution of marriage passed by the Family Court in favour of the respondent deserves to be upheld and consequently the dismissal of the petition seeking decree for restitution of conjugal rights preferred by the appellant also deserves to be maintained.

37. Lastly, coming to the cross-objection filed on behalf of the respondent questioning the decision of Family Court in refusing to pass decree for amount of Mahr agreed to be paid at the time of marriage, it is to be noticed that the facts regarding the appellant agreeing to pay Mahr to the respondent a sum of Rs.21,000 in cash and 21 gold Ashrafees is not in dispute. All that is contended on behalf of the appellant in this regard is that it is not pleaded in the petition filed as to under which provision, the decree for Mahr is sought and further that no issue was framed in this regard by the Family Court and, therefore, no evidence was led by the parties. It is settled law that the facts admitted are not required to be proved and, therefore, the factum of Mahr agreed to be paid at the time of marriage as alleged in the petition, having not been disputed by the appellant, the question of Family Court framing the issue in this regard does not arise. It is not in dispute that a specific prayer was incorporated by the respondent regarding the decree for Mahr payable in terms of the Nikahanama and, therefore, while deciding the issue No.4 which relates to the relief claimed, the Family Court was under an obligation to pass an appropriate order regarding the respondents entitlement for Mahr as agreed upon between the parties. Nothing turns on the question that the respondent did not specify the provisions of relevant statute, whereunder the decree for amount of Mahr was sought for. It is settled law that the provisions of law are not required to be referred in the pleadings. Moreover, if the power to grant the relief is traceable then merely because the specific provision under which the relief is claimed is not set out in the pleadings, the relief cannot be denied. It is not in dispute that as per the provisions of Section 3(c) of Muslim Women (Protection of Rights on Divorce) Act, 1986, notwithstanding anything contained in any other law for time being in force, a divorced woman is entitled to an amount equal to sum of Mahr or dower agreed to be paid to her at the time of her marriage or at any time thereafter according to Muslim law. The divorced woman has been defined under Section 2(a) to mean a Muslim woman who was married according to Muslim law, and has been divorced by or has obtained divorce from her husband in accordance with Muslim law. It is not in dispute that the parties entered into marriage by performing rites and ceremonies in accordance with the Muslim law and the marriage between the parties stands dissolved by a decree of divorce passed by the Court o competent jurisdiction and, therefore, the refusal of the decree for amount of Mahr agreed to be paid to the respondent at the time of marriage, as prayed for, cannot be countenanced by this Court. In this view of the matter, the judgment and decree passed by the family Court refusing to grant the decree for amount of Mahr deserves to be set aside and the respondent is held to be entitled for the decree in respect of Mahr amount, as prayed for.

38. In the result, the appeal Nos.386/10 and 385/10 preferred by the appellant-husband fail and the same are hereby dismissed. The cross-objections filed on behalf of the respondent-wife are allowed. The respondent shall be entitled for amount of Mahr as agreed upon at the time of marriage between the parties i.e. Rs.21,000 in cash and 21 gold asharfees. The decree passed by the Family Court shall stand modified accordingly. No order as to costs.

Order accordingly.