JUDGMENT
B.A. Khan, J.
1. This appeal is directed against judgment dated 10.5.1995 passed in F.A. No. 141/95. Respondent was put on notice vide Court order dated 12.3.1998 and thereafter both parties were summoned in person for exploring the possibility of settlement. However, all the efforts in this direction came cropper and that is how this appeal after its admission for hearing is being disposed of at this stage.
2. Appellant married respondent on 17.12.1988. They, however, allegedly separated some time in January, 1991. Appellant filed petition for a decree of divorce on twin grounds of desertion and cruelty alleging that respondent had continuously deserted her for more than two years and was not interested in returning to his society and that she had treated him with cruelty by going away with one Bhagwan Narain Baba. Appellant examined some witnesses and so did the respondent in support of their respective claims. The appellant’s case found favour with Trial Court resulting in passing the decree of divorce against respondent.
3. Respondent took appeal (F.A. No. 141/95) against the decree and the first Appellate Court on reappraisal and appreciation of evidence on record reversed the Trial Court’s findings on the two issues of desertion and cruelty and upset the decree of dissolution of marriage passed by the Trial Court. On the question of desertion it found from evidence on record that a notice was sent, by respondent Santoshibai to appellant on 18.4.1991 requiring him to take her to his house for cohabitation. But appellant did not do anything in the matter. It also held that when appellant was ‘inactive’ for restitution of conjugal right, he cannot be permitted to utilise the separation for purpose of getting a decree for divorce. The desertion should be coupled with animus deserendi which was missing in the present case. It was accordingly held against appellant on the issue of desertion.
4. Regarding cruelty, first Appellate Court found that appellant’s allegation that respondent Santoshibai was living with Baba, Aged 75 and was going with him was rebutted by the respondent who had examined the Baba also and even this Baba had categorically stated in his evidence that he was having old connections with the family of Santoshibai as his land was being cultivated by them. Upon this, Court concluded that it was not uncommon in India to repose faith in Gurus and that family members could treat a person as Guru and take his advice on member of occasions. In any case Baba’ s association with respondent Santoshibai could not amount to any cruelty because appellant had not adduced any evidence to show that it had made impossible for him to live and cohabit with respondent Santoshibai or that it had caused any such intolerable situation for him resulting in agony or any harm to him.
5. Appellant has filed this appeal assailing the findings of the first Appellate Court on the ground that these were not based on any evidence but on surmises. In this regard it is pointed out that there was no such notice dated 18.4.1991 on record and first Appellate Court could not have made it a basis for disproving the plea of desertion raised by appellant. It is also submitted that age of Baba was not material for determination of the allegation of cruelty levelled by the appellant because it was not his case that respondent Santoshibai was living in adultery with him or had any illicit relations with him. Similarly some contradictions were pointed out in the testimony of Santoshibai to show that her version was not reliable and that her testimony did not deserve any credence. On the legal side it was argued by appellant’s Counsel Ku. Yeotikar that even though ‘cruelty’ was not defined but it was to be assessed in a situation relatively and its extent could differ from person to person.
6. On the other side it was contended by respondent’s Counsel Mr. Joshi that there was no evidence on record to show that respondent Santoshibai was going away with 75-year-old Baba who had suffered paralysis, continuously or that she was in any such situation with him which caused any mental agony or cruelty or suffering to the appellant making it impossible for him to live or cohabit with respondent. Nor was it a case that she was living in adultery with Baba or had any illicit relationship with him. Therefore, merely on a solitary instance of respondent having allegedly gone away with Baba would not constitute cruelty. He also argued that respondent had not only put appellant on notice requesting him to take her back but she had continuously made her bona fides clear by expressing her willingness to return to his society before the Courts and even before this Court.
7. Heard learned Counsels and examined the evidence on record. It is true that notice dated 18.4.1991 was not brought on record by respondent but it certainly is borne by the record of the case. It was also admitted to have been received by appellant’s Counsel Ku. Yeotikar and on her own showing it was annexed by appellant to one of the pleadings before the Trial Court. That apart respondent had been repeatedly expressing her desire and willingness to return to the society of appellant before the Courts and before this Court also, and that by itself shows that she has no animus deserendi to desert appellant for good and to end her relationship with him. In any case there was no evidence on record to show that she had willingly neglected to discharge her marital obligation towards appellant and, therefore, first Appellate Court had rightly held that issue of desertion not proved.
8. The same holds true about the second issue of cruelty. After all, every act or conduct of either spouse does not tantamount to cruelty merely because it causes some tension in the process. For seeking a decree of dissolution on the ground of cruelty it becomes necessary to show that the continuous conduct of the party concerned affected the health or was likely to affect the health of the other party who was allegedly being treated with cruelty. Such cruelty indeed requires to be proved on the preponderance of probability and not beyond the reasonable doubt. But ordinary wear and tear of married life, as observed by the first Appellate Court, does not amount to such cruelty and would not surely constitute a basis for dissolution of marriage.
9. Therefore, given regard to all this, we find ourselves in total agreement with the findings returned by first Appellate Court and affirm its judgment to set at naught the decree of divorce passed by the Trial Court. Appeal is accordingly dismissed.