Sunil Kumar Sinha, J.

1. What amounts to "cruelty" and "desertion" so as to dissolve the pious ties of marriage by a decree of divorce under Section 13(1)(ia)(ib) of the Hindu Marriage Act, 1955 are the questions to be considered in this appeal.

2. The brief facts are that the marriage between the parties was solemnized on 19-5-1991. The husband took the wife in usual manner to her matrimonial house. The allegations are that on the first day itself, the wife started abusing her husband, brothers-in-law (Jeth and Devar) and the father-in-law by showing her eyes saying that who are they and how they have come to her house With all this she was allowed to reside for 15 days in first round and thereafter, her father was called and she was sent to her parents place. The allegations are that the wife was not mentally fit. However, she was shown to the doctors and again was sent to her matrimonial house, from where, she was taken by the husband to his place of posting at Korba. The further allegations are that here also the wife used to abuse the husband and she had tried to burn herself by pouring kerosene oil on her. Looking to all this, she was again sent to her parents place. When the relations became strained a report under Section 498A was lodged by the wife and a proceeding under Section 125 of the Code of Criminal Procedure was also drawn at her instance. This criminal proceeding ended into a compromise and the wife was again taken by the husband on 2-8-1995. However, this time also, the wife started abnormal behaviour. Watching her such activities, the husband took her to a Psychiatrist where she started abusing him. She was admitted in his hospital for many days. The allegations are that thereafter also, there was no change in the conduct and behaviour of the wife and finally she was sent on the mercy of her parents on 30-8-1995. All these are the allegations regarding treating the appellant with cruelty by her. The appellant also took stand that after leaving the matrimonial house on 30-8-1995 the wife has not returned to his company till filing of the petition on 23-7-1996, therefore, along with the ground of cruelty, the ground of desertion was also available to him.

3. The above contentions of the appellant were denied by the respondent by filing a written statement. I have gone through the written statement which shows a categorical denial about the cruelty and desertion on her part. However, she admitted that in unavoidable circumstances, a report to the police was lodged and she had to file a petition under Section 125, Cr.P.C., which ended into a compromise on 2-8-1995. It was specifically pleaded by her that after few days of marriage, the husband raised a demand for giving him certain landed property and Rs. 50,000/-. When the same could not be fulfilled, the husband and other family members started treating the respondent with cruelty and ultimately she was thrown out from her matrimonial house by them.

4. The trial Court after recording evidence of the parties, dismissed the petition of the appellant holding that the appellant could not establish either desertion or cruelty. However, while dismissing the petition, it made a provision in the decree for payment of permanent alimony and maintenance to the wife by the husband to the tune of Rs. 1,000/- p.m. till the date of their reunion. It is this judgment and decree, passed by the First Addl. District Judge, Janjgir on 14-7-1997 in civil suit (matrimonial) No. 19-A/ 1996, has been called in question by the appellant in this appeal.

5. Learned Counsel for the appellant submitted that on the basis of material available on record, the ground of desertion was proved by the appellant. He also argued that the ground of cruelty was also established by evidence and it is writ large on record to show that the conduct of the respondent amounts to mental cruelty. He further argued that (he Court below erred in law in making a provision for permanent alimony in the decree, which cannot be made in a case where the petition for divorce was dismissed.

6. Per contra, learned Counsel for the respondent supported the judgment. Her submission was that neither desertion nor cruelty has been proved in this case and the decree about rejection of the petition is just and proper. She further argued that the provisions regarding permanent alimony are also in accordance with law.

7. I have heard learned Counsel for the parties at length and have also perused the records of the trial Court.

8. Firstly, I am taking the ground of desertion. The factum of simply leaving the house of the husband by the wife or her forceful departure from the matrimonial house of the husband for 2 years or more will not constitute a ground of desertion, which is the settled law of the land. The law in relation to desertion is that the departure from the matrimonial life must be with an animus to desert. That is to say that a departure must be animus deserandi and unless, a departure is coupled with an animus of desertion, such a leaving of the company will not amount to a ground of desertion entitling a party to claim a decree of divorce thereon. Needless to say that Section 13(l)(ib) of the Hindu Marriage Act provides that the other party has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition. That is to say that a period of 2 years must have elapsed after leaving the company in the manner indicated above, then only, this ground is available to a party.

In the present case, para 9 of the plaint would show that according to the appellant himself, the respondent had left her company on 30-8-1995 and thereafter, she did not return to his matrimonial life. Admittedly, this plaint was filed before the trial Court on 23-7-1996. Even if we leave to determine the factum of animus deserendi and take it as admitted (though it is not proved in this case), according to the averments of the plaint it was filed before completion of two years from the date so alleged by the plaintiff and the trial Court has rightly said that the aforesaid ground was not established by the plaintiff, so as to pass a decree for divorce on the same

9. Now the next point is about the cruelty. Learned Counsel for the appellant referred to the decision rendered in the matter of G.V.N. Kameswara Rao v. G. Jabilli . It has been held in this matter by the Apex Court that it is not necessary to prove that the nature of the cruelty is such as to cause reasonable apprehension in the mind of the petitioner that it would be harmful for the petitioner to live with the other party. The Apex Court said that the English Courts in some of the earlier decisions had attempted to define "cruelty" as an act which involves conduct of such a nature as to have caused damage to life, limb or health or to give rise to reasonable apprehension of such danger. But such a degree of cruelty is not required to be proved by the petitioner for obtaining a decree for divorce. Cruelty can be said to be an act committed, with the intention to cause suffering to the opposite party. Austerity of temper, rudeness of language, occasional outburst of anger, may not amount to cruelty, though it may amount to misconduct. The Apex Court cautioned that the Court has to come to a conclusion whether the acts committed by the counter-petitioner amount to cruelty, and it is to be assessed having regard to the status of the parties in social life, their customs, traditions and other similar circumstances. Having regard to the sanctity and importance of marriages in a community life, the Court should consider whether the conduct of the counter-petitioner is such that it has become intolerable for the petitioner to suffer any longer and to live together is impossible, and then only the Court can find that there is cruelty on the part of the counter-petitioner. It further cautioned that this is to be judged not from a solitary incident, but on an overall consideration of all relevant circumstances.

10. In , Praveen Mehta v. Inderjit Mehta, the Apex Court again said that the cruelty for the purpose of Setction 13(1)(ia) is to be taken as a 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 the other. Mental cruelty is a state of mind and feeling with one of the spouses due to the behavioral pattern by the other. Unkike the case of physical cruelty, the mental cruelty is difficult to establish by direct evidence. It is necessarily a matter of inference to be drawn from the. facts and circumstances of the case. A feeling of anguish, disappointment and frustration in one spouse caused by the conduct of the other can only be appreciated on assessing the attending facts and circumstances in which the two partners of matrimonial life have beer living. The inference has to be drawn from the attending facts and circumstances taken cumulatively, In case of mental cruelty, it will not be a correct approach to take an Instance of misbehaviour in isolation and then pose the question whether such behaviour is sufficient by itself to cause mental cruelty. The approach should be to take the cumulative effect of the fact and circumstances emerging 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. In the said facts and circumstances, the Apex Court said that abusing and misbehaving with husband and even with his friends and relation - leaving matrimonial house within few months of marriage and thus (depriving husband of normal cohabitation together with the false plea of conception and miscarriage also raised inference of mental cruelty which arises from attitude and conduct of wife.

11. Learned Counsel for the appellant also referred to another decision of the Apex Court reported in 2006 AIR SCW 1550 (Naveen Kohli v. Neelu Kohli) where the Apex Court laid down that 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 some thing more serious than "ordinary wear and tear of married life." The conduct, taking into consideration the circumstances and back-ground, 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, in the background of several factors such as social status of parties, their education, physical and mental conditions, customs and traditions. The Apex Court said that the conduct 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. The Apex Court again said in this judgment that the 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.

12. He further referred to the decision of the M.P. High Court reported in 2000 (1) MPWN Note No. 187. Pg. 296 (Koshalya Bal v. Dagdoolal Matre). In the said case, the M.P. High Court had confirmed the decree for divorce granted on the ground where the wife, suffering from chronic ailment of epilepsy, used to abuse, insult and misbehave with whole family and husband. The High Court held that on the facts and circumstances, a ground under Section 13(1)(1a) was made out in this case.

13. Lastly he referred to another decision of the Division Bench of M.P. High Court reported in 2006 (2) MPHT 515 (Smt. Kavita v. Harish Raisen) in which the High Court said that institution of a false criminal case under Sections 498A and 506 (part-ii) IPC against the husband and his family members leading to their arrest at the instance of the wife, amounts to "cruelty" as a ground of divorce. Under Section 13(1)(ia).

14. The evidence in case on hand would show that after the marriage, when the respondent went to the house of the appellant, on the very first day, she started abusing appellant and his family members. Firstly they presumed that this may be due to some personal reasons, but when this continued for about 15 days in the said spell, they could easily come to know that the respondent suffers from some ailment of mental disorder. The father of the respondent was called and when he did not attend the call, the respondent was left in her parents house at Bilaspur. It also comes in the evidence of the husband that when he made complaint regarding her mental disorder, the father said that she will be treated. Thereafter a village panchayat was conducted and the wife was again taken by the husband but this time to his place of service, where also, the respondent continued with her such abnormal behaviour and it was suggested that she should be shown to some Psychiatrist and then only she was taken to the Raipur hospital in the clinic of one Dr. Prakash Narayan Shukla. Dr. Shukla has been examined as A. W. 3 in this case. He has proved the two certificates marked as Exs. A-1 and A-2. in these certificates, he has mentioned about the disease of the respondent as "chronic Paranoid Schizophrenia". In his evidence he has stated that the respondent wan admitted in his hospital on 15th of August, 1995 and after the treatment, she was discharged on 30-8-1995. He has also proved the coy of the admission and discharge register by bringing original and has further proved the discharge slip as Exh./A-1. This discharge slip (Exh./A-1) contains the names of various medicines prescribed, tablets and capsules, and it has been advised that the patient should be brought after one month. The respondent No. 1, who has appeared as N.A.W. 1, has also admitted in her examination-in-chief that she was admitted in Raipur hospital, however, she denied that she was admitted on account of any psychological disease.

15. During the course of arguments, learned Counsel for the appellant vehemently submitted that on one hand, due to the above ailment, the respondent has continuously treated the appellant with cruelty and on the other hand, the disease referred to by the Doctor would show that the respondent was of unsound mind, therefore, in this case a ground Under Section 13(1)(iii) was also available to the appellant which the Court has ignored and has not passed a decree accordingly.

16. For testing this argument, we may profitably refer to the provisions of Section 13(l)(iii). This section provides that the respondent must be incurably of unsound mind, or has been suffering continuously or intermittently from "mental disorder" of such kind and to such an extent that the appellant/petitioner cannot reasonably be expected to live with the respondent. There are two explanations attached to the said clause. Explanation (a) defines "mental disorder" which means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia. Explanation (b) defines "psychopathic disorder" which means a persistent disorder or disability of mind (whether or not including sub-normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it requires or is susceptible to medical treatment. The words used in this section are of great importance and they are to be read in their natural meaning in true spirit. About the mental disorder, it is stated that though it will include psychopathic disorder and disability of mind and schizophrenia but the respondent must be suffering from this continuously or intermittently that is to say that if the suffering is not continuously or intermittently, this would not make out a ground for dissolving the marriage between the parties. A mishappening in the life is an instance by chance or bad phase in the life for certain period, and that cannot be utilized to break up the pious ties of the marriage. Therefore, the basic requirement for this clause would be that there must be a continuous suffering from the above disease so as to make it impossible for the other side to discharge the marital obligations. It is not expected of a spouse to claim divorce on such instance of temporary phase in spite of participating in treatment of the other side. If the evidence of the Doctor is seen in this regard, the Doctor has also stated that though he cannot say by authority that such disease can be fully cured, but he agrees that if the instructions are followed and medicines are taken then there are possibilities of the recovery from the disease. If we look into the evidence of the respondent (N.A.W. 1) it would appear that she has given quite moderate and supporting evidence. No observations of the Court have been recorded during the course of her examination-in-chief or cross-examination to show her mental disablement or inability to depose or any strange or abnormal action. Vide para 4 of her evidence, she has stated that she is not suffering from any psychological disease. She has substantiated the allegations of demand of dowry by the husband and she has also substantiated the allegations that on account of such a demand, she was being treated with cruelty by the husband and other family members and when the demand was not fulfilled she was forcibly turned out from the house of her husband. Another witness namely Jawhar Singh Bias has also been examined by the non-applicant as NAW-2 and he has also stressed that the main reason of evicting the wife from her matrimonial house is non-fulfilment of demands of appellant and his family members. The evidence would show that the wife is a Graduate and at no point of her evidence, it can be assessed that she must be suffering from a persistent mental disorder or any mental disease with the requirements as are referred to in this section. The arguments of learned Counsel for the appellant that this ground was also available to the appellant cannot be sustained.

17. Now about the cruelty, it must be said that in the evidence, except the incidence of the first day about scolding by the wife to the family members and the husband nothing has been substantiated in this case and as per the decision of the Apex Court in G.V.N. Kameswara Raos case AIR 2002 SC 576 (supra), this solitary incident of such treatment cannot be held to constitute a ground for divorce. An explanation In this regard has also been brought on record by the respondent who says that since she had to go on foot to the village when it was raining and she was beaten, therefore, she had become ill and ultimately she was admitted to the hospital. Except this solitary incident regarding cruelty, nothing has been proved. Can it be given such weightage which may break up the ties of marriage Certainly the answer would be in negative and it would not lead to a ground for filing a petition for divorce. About criminal case, though there is an admission that such a report was lodged, but it has not been brought on record as to whether the case is still pending or not and if the same has been decided what was the result that is to say that the ground raised on the basis of lodging a false report against the husband or the family members of the husband has not been substantiated on which treating the husband with cruelty may be judged. In the opinion of this Court, the appellant could not establish the ground of cruelty against him and his family members and the trial Court has rightly rejected this ground.

18. The last argument relates to grant of permanent alimony @ Rs. 1000/- p.m. Admittedly, the trial court has dismissed the suit of the plaintiff by which the appellant had claimed a decree for divorce and since there was no order of dissolution of marital status due to passing of a decree, in view of the settled position, the trial Court should not have ordered for payment of permanent alimony to the respondent. It has been held by the Apex Court in the matter of Chand Dhawan v. Jawaharlal Dhawan 1994 MPLJ 1 : 1993 AIR SCW 2548 that:

Under the Hindu Marriage Act, 1955 the claim of a Hindu wife to permanent alimony or maintenance is based on the supposition that either her marital status has been strained or affected by passing a decree for restitution of conjugal rights or judicial separation in favour or against her, or her marriage stands dissolved by a decree of nullity or divorce, with or without her consent. When her marital status is to be affected or disrupted, the Court does so by passing a decree for or against her. On or at the time of the happening of that event, the Court being in seisin of the matter, invokes its ancillary or Incidental power to grant permanent alimony. The Court also retains the jurisdiction at subsequent stages to fulfill this incidental or ancillary obligation when moved by an application on that behalf by a party entitled to relief. The Court further retains the power to change or alter the order in view of the changed circumstances the whole exercise is within the ambit of a diseased or a broken marriage. In order to avoid conflict of perceptions the Legislature while codifying the Hindu Marriage Act preserved the right of permanent maintenance in favour of the husband or wife, as the case may be, dependent on the Court passing a decree of the kind as envisaged under Sections 9 to 14 of the. Without the marital status being affected or disrupted by the matrimonial court under the Hindu Marriage Act, the claim of permanent alimony was not to be valid as ancillary or incidental to such affectation or disruption. The wifes claim to maintenance necessarily has then to be agitated under the Hindu Adoptions and Maintenance Act, 1956 which is a legislative measure later in point of time than the Hindu Marriage Act, 1955, though part of the name socio-legal scheme revolutionizing the law applicable to Hindus.

In the said situation, the order of grant of permanent alimony is bad in law.

19. In the facts and circumstances, the appeal filed by the appellant for passing decree of divorce is dismissed. The decree passed by the trial court regarding dismissal of the divorce petition is confirmed. However, the decree relating to grant of permanent alimony is set aside The appeal is al-lowed in part to the extent indicated above and the decree passed by the trial Court is modified accordingly. There shall be no order as to costs.