JUDGMENT
K.L. Manjunath, J.
1. This appeal is by the wife who has suffered a decree of divorce on the ground of cruelty. Parties herein married at Bagalkot on 21-6-1986. After the marriage, parties started residing at Bagalkote. According to the petitioner-husband, since the beginning marriage was not a successful marriage and that the husband was not happy with the conduct of the wife due to her erratic and inconsistent behaviour. Therefore, he filed the petition seeking divorce on two grounds.
2. According to him, wife was leading an adulterous life with one Narayan who is an employee of her father. Therefore, he sought a decree of divorce on the ground of adultery. He also urged the ground of cruelty on the ground that on 10-6-1988 wife picked up quarrel, started abusing him. According to him, at the heat of moment, wife removed her Mangalasutra from her neck and threw the same on the roadside gutter and the said incident has caused mental agony and therefore he sought a decree of divorce.
3. Petition was resisted by the wife. According to her, the allegation of adultery is false and the same has been done only to harass her. She further contends that on 10-6-1988 she never removed her Mangalasutra and that such an incident had not taken place. According to her, she was never in Bagalkote at that point of time and she requested the Court to dismiss the petition.
4. Based on the above pleadings, following points were raised for consideration by the Trial Court:
1. Whether the petitioner is entitled for divorce on the ground that the respondent had voluntary sexual intercourse with others than him?
2. Whether the petitioner is entitled for divorce on the ground that the respondent treated him with cruelty?
5. Petitioner examined in all 3 witnesses. Petitioner was examined as P.W. 1, his aunt was examined as P.W. 2, a neighbour has been examined as P.W. 3. Respondent-wife has examined herself as D.W. 1.
6. After appreciating the evidence adduced by the parties, Trial Court has held that petitioner-husband has failed to prove the allegation of adultery. Therefore, ground of adultery was rejected. However, a decree of divorce has been granted by the Trial Court on the ground that the wife treated the husband with utmost cruelty. Being aggrieved by the said judgment and decree, present appeal is filed by the wife.
7. We have heard the learned Counsel for the appellant. Though the respondent is served, he is unrepresented.
8. Learned Counsel for the appellant contends that the Trial Court has committed an error in granting a decree of divorce by accepting the allegations made in the petition. According to the petitioner-husband, on 10-6-1988 wife removed the Mangalasutra and threw the same on the roadside gutter. According to the Trial Court, removal of Mangalasutra which is a sacred tie and throwing the same on the road amounts to mental torture and cruelty. Therefore, decree of divorce has been granted. Learned Counsel for appellant further contends that such an incident had not taken place and the Trial Court without looking into the evidence and pleadings has granted the decree only by looking into the examination-in-chief of the husband and without considering the cross-examination portion. He further contends that even if the Mangalasutra was removed and thrown on the street in an angry mood cannot construe as cruelty.
9. After hearing the learned Counsel for the appellant, what is to be considered by this Court in this appeal is:
Whether the appellant-wife has treated her husband with utmost cruelty which will be harmful or injurious for the husband to live with the wife? Or
Whether the solitary act of removal of Mangalasutra and throwing the same on the road would constitute an act of cruelty?
10. In paras 4 and 5 of the petition, husband has stated that on 10-6-1988 at about 9 p.m. respondent picked up quarrel with him and abused him with foul language, thereafter in the presence of other members of the family and neighbours removed her Mangalasutra and threw the same on the roadside gutter. Petitioner in order to maintain family respect he took his wife inside the house and a new Mangalasutra was given to her. According to him, family of the petitioner is a goldsmith’s family and therefore a new Mangalasutra was given to her. In para 5 of the petition he states that in the afternoon of 11-6-1988 again wife started abusing her husband and in the heat of moment she ran away from the house. These are the two incidents narrated in the petition in order to prove the ground of cruelty. In his examination-in-chief he has repeated the said version. But in his cross-examination he has admitted as hereunder:
“There was no quarrel between me and the respondent on 10th and 11th of June, 1988 at Bagalkot, as the respondent was at Belgaum. I have not informed my Advocate of Bagalkot regarding filing of petition as per paras 4 and 5 of the present petition”.
From this piece of evidence, it is clear that on 10/11-6-1988 wife was not at all residing with the husband and that she was residing at Belgaum. As alleged in paras 4 and 5 of the petition, there cannot be quarrel between the husband and wife and that the wife could not have removed her Mangalasutra from her neck and threw the same to a roadside gutter. Therefore, it is clear that the allegation of cruelty as pleaded by the husband was not at his instance; as he has not instructed his Advocate to plead as per paras 4 and 5 of the petition. When P.W. 1 has admitted that such an incident had not taken place, Trial Court has committed an error in granting a decree of divorce without considering the admission of P.W. 1 in his cross-examination. Therefore, the decree of divorce granted in favour of the husband on the ground of cruelty has to be set aside since the same is passed without considering the admission. The next question that arises for our consideration is whether a solitary act of removal of Mangalasutra and throwing the same on the roadside gutter in a heat of moment would constitute an amount of mental cruelty. Considering the fact that we have already set aside the decree of divorce granted in favour of the husband while answering point No. 1, it may not be necessary for us to answer the second point as it will be only an academic interest. However, we would like to deal with the said aspect considering the fact that the Trial Court had granted the decree of divorce on the ground that the removal of Mangalasutra and throwing the same on a roadside gutter amounts to mental cruelty. The word ‘cruelty1 has not been defined under the Hindu Marriage Act and it will be difficult for a spouse to define the word ‘cruelty’ while filing the petition for divorce. However, the word ‘cruelty’ can be explained and proved by the parties by adducing evidence. It will be easy for a person to prove physical cruelty, but it will be difficult for a party to prove the mental cruelty or mental torture. Whether a particular spouse has treated the other spouse with mental torture or cruelty, it all depends upon the temperament, standard of living and culture of the spouses and the interaction between them in their daily life. The conduct must be adjudged up to a point of reference to the victim’s capacity or incapacity for endurance insofar as that or ought to be known to the offending spouse. It is also necessary to weigh all the incidents and quarrels between the parties keeping in view the impact of the personality and conduct of one spouse upon the mind of the other. An isolated act of assault committed on the spouse in a moment and on some fancy provocation may not amount to cruel treatment. In the instant case, wife is an illiterate lady. Husband is working in K.E.B. The standard of living of the parties is also not disclosed in their evidence. Even the educational qualification of the husband is not disclosed at the time of hearing or in his evidence. Except saying that he is working in K.E.B. at Bagalkot, designation of the husband is not disclosed. So, it is difficult for a Court to judge the standard of living of the parties or their cultural background of the parties. As referred to by us earlier, petition for divorce on the ground of cruelty is alleged in paras 4 and 5 of the petition. Except saying that the wife used to pick up quarrel with the husband, no witnesses have been examined to prove the said allegations. Husband has admitted that the incident dated 10-6-1988 and 11-6-1988 did not take place due to the fact that as the wife was residing at Belgaum and not at Bagalkot. So, in the circumstances, even if the wife had removed her Mangalasutra and threw the same on the roadside gutter in a spur of moment, the Court cannot grant a decree of divorce on the said ground alone; as the wife is an illiterate lady and in the backdrop of culture and the background of the parties even if such incident had taken place, the Court should not have granted a decree of divorce, considering the solitary instance of removal of Mangalasutra. The Trial Court while granting a decree of divorce, should be more scrupulous and scrutinise the pleadings and evidence as the ground of mental cruelty alleged either by the husband or by the wife has to be adjudged by the Court considering their personality, culture, educational background etc. Each case has to be considered purely on the facts and circumstances of such cases. In the instant case, considering the background of the parties, we are of the opinion that even if such an incident had taken place on 10-6-1988, said incident will not constitute a good ground to grant decree of divorce.
11. Accordingly, this appeal is allowed. Judgment and decree dated 18-10-1993 in M.C. No. 32 of 1988 on the file of the Principal Civil Judge, Bagalkot is hereby set aside. Parties to bear their own costs.