( 1. ) THIS appeal has been directed against the judgment dated the 6th May, 1987, passed by the Fourth Additional Judge to the Court of District Judge, Jabalpur in Civil Suit No. 82-A of 1984, granting a decree of divorce.

( 2. ) THE appellant was married to the respondent in the year 1969. A daughter Kumari Maya and a son were born to them during their wedlock. The son has died during the period the appellant (herein) was serving the jail sentence for causing the murder of her mother-in-law on 8-3-1980.

( 3. ) THE respondent had filed a petition under Section 13 of the Hindu Marriage Act (hereinafter referred to as the Act) on the ground of cruelty as well as desertion. The trial Court found the allegation of cruelty proved, while the ground of desertion was held not proved.

( 4. ) IT is well settled that the desertion must be with intention to leave the matrimonial home for good. In the present case, it is not so. The appellant has been made to remain away from her husband due to the offence she had committed, for which she is undergoing the sentence. Therefore, the lower Court was right in holding that the ground of desertion has not been made out.

( 5. ) THE second ground is that of cruelty. Section 13 (ia) of the Act requires "treated the petitioner with cruelty". To amount to cruelty there must be such treatment of the petitioner which causes suffering in body or mind whether in realization or apprehension in such a way as to render cohabitation harmful or injurious having regard to the circumstances of each case, keeping always in view the character and condition of the parties, their status environments and social values, as also the customs and traditions governing them.

( 6. ) THE legal conception of cruelty comprises two distinct elements--firstly, the ill-treatment complained of, and, secondly, the resultant danger or apprehension thereof. It would be inaccurate and liable be lead to confusion if the word cruelty is understood apart from its effect on the victim. The apprehension contemplated by the above legal conception is that further cohabitation will be harmful or injurious and not that the same or similar acts of cruelty will be repeated. Where the acts or conduct can be said to amount to cruelty it is immaterial that there is no danger of its repetition. The inquiry must be whether the cruel treatment established by evidence is of such a nature as to cause in the mind of the victim reasonable apprehension that it will be harmful or injurious to live with the other party. The more serious the original offence, the less grave need be the subsequent matters to constitute cruelty, for the subsequent acts must be looked at in the light of the earlier history from which they derive their significance.

( 7. ) WHAT is cruel treatment must to a large extent be a question of fact or a mixed question of law and fact to be determined within the ambit of the rule and the accepted criterion. No dogmatic answer can be expected to the variety of problems which must continue to arise before the Court in this sort of cases and the law has no footrule by which to measure the nature and degree of cruel treatment which may satisfy the test of apprehended harm or injury. The conduct alleged must be judged upto a point by reference to the victims capacity or incapacity for endurance in so far as that is ought to be known to the offending spouse.

( 8. ) THE language of the clause is comprehensive enough to include cases of physical as also mental cruelty and cases where both the elements are present. Where physical violence is proved the test laid down in the section cannot present any particular difficulty. Even a single act of violence may be of such a grievous and inexcusable nature as by itself to satisfy the test of cruelty. On the other hand isolated acts of assault committed on the spur of the moment and on some real or fancied provocation may not amount to cruel treatment. The assault or assaults must not be viewed as i