1. In this appeal, the challenge is levied to the judgment and decree dated 7-10-2016 of the Additional Judge to the Court of Additional District Judge, Mungeli, Chhattisgarh in Civil Suit No. 23-A/2015 whereby and where under he dismissed the divorce petition filed by the appellant-husband under Section 13 of the Hindu Marriage Act, 1955 (in brevity 'Act of 1955') against respondent-wife.

2. In brief, appellant's case is that his marriage was solemnized with the respondent 15-16 years prior to the date of petition i.e. 20-7-2015. In the wedlock one daughter Ku. Roshni alias Babli was born, now she is 11 years old. After the marriage she used to go frequently in her maternal house. She was harassing him and his family members making false allegations. She often used to say that she does not like him. She used to threat saying that she will die by burning herself and falsely implicate him and his entire family. She had left his house in year 2012 after making quarrel. He had filed an application under Section 9 of the Act of 1955 on 3-1-2013 which was dismissed on account of not pressing the same because a compromise was taken place between them out of the Court. She herself filed an application under Section 9 of the Act of 1955 in the Family Court, Raipur which was also dismissed because she did not press the same. She is living separately from him for the last 3 years before filing the divorce petition.

3. The respondent was ex-parte in trial Court and she had not filed the written statement.

4. After conclusion of the trial, the trial Court passed the aforesaid judgment and decree. Being aggrieved, the appellant preferred this appeal.

5. Shri P.P. Sahu, Counsel for the appellant vehemently argued that the trial Court did not consider that respondent herself left the company of the appellant. She had also withdrawn her application filed under Section 9 of the Act of 1955. The trial Court did not appreciate the evidence in proper perspective. Thus, the impugned judgment and decree may be set aside and divorce may be granted to the appellant.

6. No one appears for the respondent at the time of hearing though served.

7. Points for determination : -

There are following points for determination in this Case -

(1) Whether after solemnization of the marriage, the respondent had treated the appellant with cruelty ?

(2) Whether respondent has deserted appellant for a continuous period of not less than two years immediately preceding the presentation of the petition without reasonable cause and without the consent or against the wish of him ?

(3) Whether appellant is entitled to get the decree of divorce on the ground of cruelty and desertion ?

(4) Relief and costs.

Point for determination No. 1 : Finding with reasons :-

8. In G.V.N. Kameswara Rao vs. G. Jabilli; M.L.J. 2002 (1) 317, the Hon'ble Supreme Court has held as under :

“Cruelty can be said to be an act committed with an intention to cause sufferings to the opposite party and it has become intolerable for other to suffer any longer and to live together is impossible. This is to be judged not from a solitary incident, but on an overall consideration of all relevant circumstances. Austerity of temper, rudeness of language, occasional outbrust of anger may not amount to cruelty, though it may amount to misconduct.”

9. In Prabhash Saxena v Smt. Ranjana Saxena {Mrr.L.J. 2002 (1) 502} Hon'ble Delhi High Court has laid down the following judicial precedent:

“A consistent course of conduct inflicting immeasurable mental agony and torture may well constitute cruelty within the meaning of Section 13(1)(ia) 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 other party.”

10. AW 1 Kunjbihari Soni does not say clearly and strongly as per his own case that, she was allegedly harassing him and his family members making false allegations. She used to say that she does not like him. She allegedly