M. H. S. ANSARI, J.

( 1 ) INSTANT appeal is field by defendant-wife aggrieved by the judgment and decree dated September 21, 2000 passed by the learned Additional District Judge, Howrah in Matrimonial Suit No. 37 of 1994. Thereby the suit for divorce filed on the ground of cruelty by the husband was decreed.

( 2 ) A perusal of the judgment under appeal would show that the petition under section 13 was filed by the husband praying for a decree of divorce under section 13 on the ground of cruelty and desertion. Learned trial Court found that the ground of desertion is not established and with regard to the ground of cruelty it was noticed that the same was founded on the ground that the wife left the matrimonial home at regular intervals and used to come back after 15/20 days and that she refused cohabitation with the husband and that finally on November 13, 1993 she left the matrimonial home with bag and baggage without the consent and knowledge of the petitioner and against the will of the husband's mother. Learned trial Court found that the factum of cruelty pleaded has not been established but was of the view that the marital tie has deteriorated to such an extent that the parties cannot live together as husband and wife and, therefore, granted a decree of dissolution of marriage. In coming to the aforesaid conclusion learned trial Court found that the wife admittedly left the matrimonial home along with her father on January 23, 1994 and on that very date lodged a complaint under section 498a Indian Penal Code against her husband. Whereupon the husband was arrested by police and had to remain in jail custody for 14 days. She also lodged another complaint under section 406 Indian Penal Code against her husband and after trial the accused were acquitted. Judgment in that case has been marked as Ext. 2. The judgment in GR 197/1994 being the case under section 498a Indian Penal Code was pronounced on April 6, 2004 i. e. after the date of decree under appeal and for that purpose an application being CAN 5626 of 2004 has been field for receiving the said judgment as additional evidence in this appeal. We shall consider this application a little later. Suffice it to state that appellant has not filed any affidavit-in-opposition but his learned counsel made oral submission.

( 3 ) IT is the correctness of the conclusions arrived at by the learned trial Court and based whereon the decree of divorce was granted that is the subject matter of the instant appeal.

( 4 ) IT is the contention of Mr. Tapan Mukherjee, learned counsel for the appellant-wife that the husband having failed to establish the acts of cruelty pleaded ought not to have been granted the decree of divorce merely because complaints under sections 406 and 498a Indian Penal Code had been filed by the wife. It was further contended that it is the appellant-wife that was the victim of immense torture. That the wife had to go with her father for medical treatment and when she returned to her matrimonial home on January 22, 1994 along with her father to live in the matrimonial home the husband and his family members did not allow her to live at the house and thereafter when the father returned on January 23, 1994 he came to know that the wife was assaulted by the husband and his family members whereupon a complaint was filed by the father of the wife under section 498a and another complaint filed by the wife under section 406 Indian Penal Code with respect to the wedding gifts and ornaments. It was contended that pursuing a legal remedy for the protection of life limb and property cannot constitute cruelty. Reliance was placed upon the judgment in Smt. Bina Rani Banik v. Pradip Kr. Banik, AIR 1999 Gauhati 139. It was further contended that it is the acts of the husband that led the wife to take such action and, therefore, the husband cannot take advantage of his own wrong. Reliance was placed upon the judgments in Savitri Pandey v. Prem Chandra Pandey, (2002)2 SCC 73, and

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