1. The petitioner in O.P.No. 30 of 1983 on the file of the Court of Subordinate Judge, Kozhikode, whose application for dissolution of marriage under S.13(1) of the Hindu Marriage Act is dismissed, is the appellant in this Miscellaneous First Appeal.

2. The above petition was filed for a decree for dissolution of the marriage between the appellant and the respondent and for consequential reliefs. In the petition it was alleged that the appellant married the respondent on 30-8-1976, that they lived together for some time, that the respondent indulged in several acts of misbehaviour and had treated the appellant with cruelty and deserted him for a long time, and in the circumstances the appellant was entitled to a decree for dissolving the marriage. The respondent resisted the petition and contended that the allegations of cruelty, misbehaviour and desertion are untrue. She admitted that she was residing separately.

3. The learned Subordinate Judge, after considering the evidence came to the conclusion that the petitioner has not succeeded in establishing cruelty and misbehaviour entitling him to get a divorce.

4. In order to substantiate his contention the appellant examined P.Ws. 2 to 4 besides himself and also produced Exts. A1 to A5. On behalf of the respondent, the respondent, was examined as RW.1 and Ext.B1 was marked on her behalf.

5. It is the common case of both parties that the appellant married the respondent on 30-8-1976 at Athavanad in Malappuram District. In the petition the appellent averred that immediately after the marriage the appellant took the respondent to his place of work at Kodumba in Palghat District and both of them were residing as husband and wife According to the appellant soon after they started to live together at Kodumba she began to behave towards him in cruel manner. She also misbehaved towards the neighbours. In the circumstances the appellant was forced to apply for a transfer and accordingly he was transferred and posted at Pannikottur in 1977 and both of them started to reside at Pannikottur. According to the appellant the respondent continued her misbehaviour there also. She refused to cook food for him, to wash his clothes and also to talk with the appellant. She used to run out of the house and create scenes at night. She also used to threaten the appellant that she would commit suicide unless she was sent home. The appellant also alleged that on 13-8-1977 the respondent went away from his house and did not come back to resume cohabitation thereafter. On 24-9-1979 the respondent came to appellants dispensary at about 5 pm. along with her fathers brother, fathers brothers son Velayudhan and some others. She abused the appellant, broke her Thali-chain and threw the same at the appellant. She also lock away the utensils belonging to her as well as the wedding ring she bad put on the appellants finger. Thereafter the appellant tried for a settlement and customary divorce but the negotiations failed and the present application for divorce on the grounds of desertion and cruelty was filed.

6. In the written statement the respondent denied the allegations in the petition. According to her she had never behaved towards the appellant in a cruel manner. She bad also not given any occasion for ill-feeling between herself and the neighbours while residing at Kodumba in Palghat District. She also denied the allegation that she misbehaved towards the appellant while residing at Pannikottur. The allegations that she refused to cook food for him or to wash his clothes or to talk with the appellant for several days are all false. The further allegation that she went to the dispensary at Pannikottur and abused him and broke her thali and threw away the same is also untrue. According to her after the marriage she loved the appellant and acted always in accordance with his desire and dictates. She further averred that after the marriage the appellant began to compel and pressurise her to induce her father to part whit a good portion of his property and money for the benefit of the appellant, but she did not accede to his request and this incurred his displeasure. When his efforts to get more properties from her father failed, the appellant became on inimical terms with her father. When she became pregnant by five months the respondents brother Sreedharan came to invite the appellant and the respondent as be was going to Dubai. On 13-8-1977 the date on which Sreedharan was to leave for Dubai the appellant took the respondent to her parents house, left her there and returned immediately. Thereafter he did not enquire about the respondent at any time. Nor did he give any maintenance or meet any expenses in connection with her confinement and delivery. On the basis of these averments she pleaded that the appellant was not entitled to get a decree for divorce.

7. The question that falls for consideration in the appeal is that whether the appellant had succeeded in establishing cruelty and desertion on the part of the respondent as alleged by him entitling him to a decree for divorce.

8. The learned counsel for the appellant strenuously contended that the evidence of P.Ws.1 to 4 and the documentary evidence furnished by Exts. Al to A5 fully substantiate the cruelty and desertion alleged by the appellant. At the time of marriage the appellant was employed as an Ayurvedic Doctor at Kodumba and the respondent was taken to Kodumba. It has also come out in evidence that the respondent also has qualifications in Ayurvedic medicine. The appellant in his evidence as P. W.1, ventured to substantiate his contention of cruelty and desertion. He deposed that on 24-9-1979 the respondent came to the appellants dispensary along with her paternal uncle and her cousin Velayudhan and insulted him before the patients and people of the locality and insisted for dissolution of marriage. He also stated that the respondent removed forcibly the wedding ring, two glasses and two davaras and distressed by the conduct of the respondent, be left the scene. Thereafter be tried for a divorce but that also failed on account of the recalcitrant attitude of the respondent. During cross-examination he admitted that while they were living together she became pregnant and during pregnancy she was taken to her parents house and a son was born and that it was only on 24-9-1979 when the respondent came to the dispensary that he saw this child. He also admitted that the respondent was not mentally abnormal, and that to his information the respondent was behaving well towards her classmates while she was a student, and it was after making a full enquiry about her character and conduct that he married her.

9. The evidence of PWs 2 and 4 was also pressed into service to prove the incident alleged to have taken place on 24-9-1979 at the dispensary of the appellant at Pannikottur. PW-2 deposed that he was conducting a tea shop near the dispensary of the appellant and he used to take food to the appellant and the respondent. He further stated that he expressed difficulty to bring food to the dispensary but the appellant told him that his wife will not cook food and therefore he should continue to supply food He also stated thai be saw the respondent throwing her thali at the face of the appellant and also heard the respondent using abusive words against the appellant. PW-4 is a retired Headmaster of the Pannikottur L. P. School. He deposed that he saw the respondent breaking her thali and throwing it at the appellant. On going through the evidence of PW-1 we are not satisfied that the allegations of the appellant relating to the conduct of the respondent are true. Nor are we impressed by the evidence of PWs 2 and 4 that the respondent behaved in the manner deposed to by them.

10. Though, the appellant stated that throughout the respondent was behaving towards him with cruelty, the tenor of the letters sent by the respondent evidenced by Exts. A2 to A-4 dees not lead us to such a conclusion. A perusal of Exts. A2 to A-4 letters would indicate that the relationship of the appellant and the respondent became strained only after 30-8-1977 when the respondent took her residence with her parents. Ext. A2 reads as a letter sent by a very affectionate wife. She requests him to send letters to her every week. Her concern for his health is also visible therein. She prays for his health and expresses great desire to see him. Ultimately she enquires whether he does not have desire to meet her. She also finds fault with her father for having opened and read the letter sent by him to her. A letter on these terms cannot be expected from a wife who ill-treated her husband or wants to desert him.

11. It is also clear from the evidence of the appellant as PW-1 that he was not visiting her or their child. The allegation of the respondent that the appellant wanted her father to part with money and property for his benefit appears to be quite probable having regard to the conduct of the appellant in leaving the respondent at her parents house and refusing to send any money towards her maintenance or to meet the expenses relating to her confinement or delivery and failure to visit the child and maintain him. It is quite clear from her letter that all these expenses were met by her father and brother. In the circumstances, it was not surprising that she gradually developed some aversion towards the appellant after she started her residence with her parents.

12. The expression cruelty has not been defined in the Act. In Russel v. Russel (1897 A.C. 395) Lopes L.G. observed that to constitute cruelty "there must be danger to life, limb or health, bodily or mental or a reasonable apprehension of it" .

13. However in Dastane v. Dastane (A.I.R. 1975 S.C.1534) the Supreme Court after quoting the English decision on the question as to cruelty, made the following observation:

"An awareness of foreign decisions could be a useful asset in interpreting our own laws. But it has to be remembered that we have to interpret in this case a specific provision of a specific enactment, namely. S.10(1) (b) of the Act. What constitutes cruelty must depend upon the terms of this statute which provides:

"10(1) Either party to a marriage, whether solemnized before or after the commencement of Ibis Act, may present a petition to the district court praying for a decree for judicial separation on the ground that the other party -

(b) has treated the petitioner with such cruelty as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other party:".

The inquiry therefore has to be whether the conduct charged as cruelty is of such a character as to cause in the mind of the petitioner a reasonable apprehension that is will be harmful or injurious for him to live with the respondent. It is not necessary, as under the English law. that the cruelty must be of such a character as to cause "danger" to life, limb or as to give rise to a reasonable apprehension of such a danger. Clearly danger to life, limb or health or a reasonable apprehension of it is a higher requirement than a reasonable apprehension that it is harmful or Injurious for one spouse to live with the other.

The risk of relying on English decisions in this field may be shown by the learned judges reference to a passage from Tolstoy (P.63) in which the learned author, citing Horton v. Norton, 1940 P. 187 says:

"Spouses take each other for better or worse, and it is not enough to show that they find life together impossible, even if there results Injury to health."

If the danger to health arises merely from the fact that the spouses find it impossible to live together as where one of the parties shows an attitude of Indifference to the other, the charge of cruelty may perhaps fail. But under S.10(1)(b), barm or injury to health, reputation, the working-career or the like, would be an important consideration in determining whether the conduct of the respondent amounts to cruelty. Plainly, what we must determine is not whether the petitioner has proved the charge of cruelty having regard to the principles of English law, but whether the petitioner proves that the respondent has treated him with such cruelty as to cause a reasonable apprehension in his mind that it will be harmful or injurious for him to live with the respondent".

In Para.34 of the judgment their Lordships further observed:

"Numerous incidents have been cited by the appellant as constituting cruelty but the simple trivialities which can truly be described as the reasonable wear and tear of married life have to be ignored. It is in the context of such trivialities that one says that spouses take each other for better or worse. In many marriages each party can, if it so wills, discover many a cause for complaint but such grievances arise mostly from temperamental disharmony. Such disharmony or incompatibility is not cruelty and will not furnish a cause for the dissolution of marriage.

We will therefore have regard only to grave and weighty incidents and consider these to find what place they occupy on the marriage canvass."

This decision was rendered prior to the amendment of S.10(1) (b) of the Hindu Marriage Act by Marriage Lava (Amendment) Act, 1976.

14. After the judgment in Dastanes case was rendered S.10 (1) (b) was mended by the Marriage Laws (Amendment) Act (Act 68 of. 1976). Under the amended provision any person can present a petition praying for a decree for judicial separation on any grounds specified in sub-s. (1) of S.13 and in the case of wife on any way of grounds specified in sub-S. (2) thereof. After the amendment the ground of cruelty specified in S,10 (1) (b) as it stood prior to the amendment was incorporated in S.13(1) (1a) with an omission of expression as to cause a reasonable apprehension in the mind of the petitioner, that it will be harmful or injurious for the petitioner to live with the other party.

15. The learned counsel for the appellant cited a few rulings and contended that the law as to cruelty has undergone drastic change after the amendment and it is no longer a requirement of law that cruelty must be such as to cause reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other party.

16. The Delhi High Court in Smt. Kamini Gupta v. Mukesh Kumar Gupta (A.I.R. 1985 Delhi 221) said:

"Conduct which is intended to hurt strikes with a sharper edge than conduct which is the consequences of mere obtuseness or indifference. The wife as a reasonable person would know the impact that her accusation would have on the husband, whether thick skinned or sensitive. The conduct must be judged by a reference to the victims capacity for endurance. The test is: Have the matters come to such a pass and such a pitch of persistence and intensity that the maintenance of matrimonial relation is no longer possible Having regard to these individual spouses, it appears to

us that the husband cannot reasonably be expected to live with the wife, Cohabitation between them is virtually impossible. This Is the liberalised concept of cruelly adumbrated in the reformed law of divorce as amended in 1976. It is settled now that physical violence is not a necessary ingredient of cruelty. Unending accusations and imputations can cause more pain and misery than a physical beating. In Keshaorao v. Nisha (A.I.R. 1984 Bom. 413 (FB) we have a recent reformulation of the concept of cruelty. We respectfully agree with the restatement of the law there."

The learned counsel particularly drew our attention to Para.17 of the judgment where the court observed thus:

"The doctrine of danger of life and limb is no longer in the ascendant. Mental cruelty ii now well recognised as ground for divorce."

The counsel for the appellant also cited a ruling of a Full Bench of a Bombay High Court in Dr. Keshorao Krishnaji Londhi v. Mrs. Nisha Londhe (A.I.R. 1984 Bom. 413) [LQ/BomHC/1984/180] . id Para.15 of the judgment the Full Bench observed as follows: "To conclude, in our view. the cruelly contemplated under S.13 (1) (i-a) of (he Act neither attracts the old English doctrine of danger nor the statutory limits embodied in old S.10 (1) (b). The cruelty contemplated is a conduct of such type that the petitioner cannot reasonably be expected to live with the respondent, and, therefore, Mandanlals case (1980 Mah LJ 391) does not lay down the law on the point correctly."

17. A ruling of a single judge of Delhi High Court in M.N. Malhotra v. Smt. Kirti Malhotra (A.I.R. 1987 Delhi 226) is another decision cited by the learned counsel. In Para.11 of the judgment the court observed:

"The incidents and quarrels between the spouses must be weighed from the point of view of Impact of the personality and conduct of one spouse on the other. In all cases the totality of the evidence of the matrimonial history must be considered and the conclusion will depend on whether the cumulative conduct was sufficiently serious to say that from a reasonable persons point of view, after a consideration of any excuse or explanation which the respondent might have, that the conduct is such that the petitioner ought not to be called upon to endure it. Cruelty contemplates the conduct of such type that the petitioner cannot reasonably be expected to live with the respondent."

18. The decisions cited by the learned counsel take notice of the amendment and lock the view that the amendment has liberalised the law as to what constitutes cruelty. However, there are decisions which took a contrary view that after the amendment of 1976 the intention of the Legislature was to restore the law as to cruelty as interpreted by the English decisions and followed by the courts in India namely that the cruelty should be such as to cause danger to life or limb of the petitioner. This view was found favour in the ruling in Kamalesh v Paras Ram (A.I R.1985 Punj.199). In Kamalesh v. Paras Ram (A.I.R. 1985 Punjab & Haryana, 199) the court made the following observation:

"But elemental cruelty does not ipso facto meant that it would entitle the aggrieved spouse to a relief. And to be precise relief under S.13 (1) (a) of the Hindu Marriage Act. The ground of divorce now available to the petitioning spouse is that the ether party has after the solemnization of marriage treated the petitioner with cruelty. It does not ipso facto mean that the petitioner has only to allege and prove that the respondent has indulged in act or acts which amount to legal cruelty. But then be or she has further to prove that it was cruelly satisfying the tests of the Hindu Marriage Act. In that Act cruelty as a ground for divorce must mean cruelty of such a character as to cause danger to life, limb or health or to give rise to reasonable apprehension of such danger. After the 1976 amendment in the Hindu Marriage Act. cruelty as a ground for divorce has been brought at par with one existing in the Special Marriage Act. And under the Special Marriage Act the ground of cruelly has always been understood to mean cruelty as It is understood under the English Law. The effect of Dastane v. Dastane (A.I.R. 1975 S. C. 1534) was nullified by causing the 1976 amendment in the Hindu Marriage act. In Raj Kumar Manocha v. Smt. Anskuka Manocha 1983 Cur. LJ (Civ. & Cri) 134, S P. Goyal. J relying on Madan Lal Sharma v Smt. Santosh Sharma, 1980 Hindu L. R.441 (Bom) summed up the position of law on the point with erudite clarity with which I am in respectful agreement."

19. In the statement of objects and reasons of the Amending Act of 1976, the object was stated to be to liberalise the previsions relating to divorce (vide Gazette of India Extraordinary Part II Jan-April 1976 page 780), and therefore it is difficult to agree with the view that the amendment was intended to restore the law as to cruelty as interpreted by English Courts. Therefore the intention in bringing the amendment could not have been to re-introduce the concept of danger to life or limb. According to the amended prevision, the courts have to interpret and analyse and define what would constitute cruelty depending upon many factors such as social status of parties, their education, physical and mental conditions, customs, and traditions and come to its own conclusion that acts proved would amount to cruelty in a given case. It is difficult to lay down a precise definition or to give an exhaustive description of the circumstances which would constitute cruelty. The amendment was brought on the basis of the 59th report of the Lew Commission which was prior to Dastanes case to the effect that it is sufficient to prove cruelly at a ground for divorce and leave it to the court on the facts if each case to decide whether the conduct amounts to cruelty. In our view the cruelty should be of such a nature as to satisfy the conscience of the court that the relationship between the parties had deteriorated to such an extent and it would be impossible for them to live together without mental agony, torture or distress to entitle the party 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 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.

20. We have already referred to the evidence in the case. There is no acceptable evidence in the case to show that the respondent treated the appellant with cruelty. Nor is there any evidence to show that she deserted her. We are inclined to believe the evidence of respondent that at the time when the brother of the respondent was proceeding to Gulf, he took the respondent to her parents house and left her there. It is not a case where the respondent deserted him. She was pregnant by five months when she was taken to her parents house. Thereafter he did not maintain her or visit her or lee the child given birth by her. Ext. A2 clearly demonstrate that she had immense affection towards him and was very much concerned with his health and was eager to see him. In the circumstances, we are unable to spell out any cruelty on her part. If at all there was any cruelty it was only on the part of the appellant having regard to the circumstances indicated above. It is quite probable that he wanted mere property and money from bit father-in-law and having failed in making use of the respondent as an effective instrument in achieving this end, he began to develop cruelty and hatred towards her and wanted to put an end to marital relationship. We are not very much impressed with the evidence of the appellant, PWs. 2 and 4 regarding the occurence on 24-9-1979. Her alleged conduct on that day, even if it be true, has to be analysed, assessed and understood in the background of the consistent and persistent cruel conduct of the appellant. It has been held that a solitary instance of an emotional outburst or violent behaviour cannot be considered as constituting cruelty (see Pranab Biswas v. Mrinmayec (A.I.R. 1976 Cal. 156) [LQ/CalHC/1975/354] , and Ramamurthy v. Kamala (1980 H.L.R. 47) unless it is of such a grossly serious and grave nature.

The foregoing discussion would show that the appellant has not succeeded in establishing cruelty and desertion on the part of the respondent which he pleaded as grounds of divorce.

In the result, the appeal fails and it is dismissed with costs.