ORDER
Chandrakantaraj URS, J.
1. This Appeal is directed against the order made by the learned Civil Judge at Sirsi, in Matrimonial Case No. 6 of 1980 on his file. The order is dated 18-12-1982.
2. The facts leading to this Appeal briefly stated, are as follows:
The Respondent-husband filed a petition under S. 13(l)(1-a) and (1-b) of the Hindu Marriage Act for dissolution of his marriage with the Appellant before us. In his petition, he, inter alia alleged that his marriage with the Appellant before us who was the Respondent in the Court below was solemnized on 25-11-1960 at Sagar. After marriage, they lived a happy married life and out of the wedlock, three sons and a daughter were born. Some four years prior to the presentation of the petition, the appellant-wife began to quarrel with his mother, brothers for no reason at all causing mental cruelty to him. He averred in the petition that his mother was an old woman who needed his care and protection. Rest of his family consisting of two elder brothers and an younger brother also needed him. Therefore, he was unable to arrange a separate residence for his family and in that circumstance, his wife-respondent deserted him and left Siddapur with children and went away to Sagar and on enquiry there, the petitioner came to know that the Respondent had left Sagar and had gone away to Bangalore with the children and was residing there with her relatives. Despite the attempts made by him, she refused to go back with him which caused a legal notice issued to her asking her to join his company and to live with his family. The appellant-respondent having failed to comply with the demand made in the legal notice, he presented the petition on 25-8-1990 inter alia seeking for a decree for dissolution of his marriage on the grounds contained under clauses (1-a) and (1-b) of sub-sec. (1) of S. 13 of the Hindu Marriage Act (hereinafter referred to as ‘the Act’). The respondent who is the appellant herein filed objections denying all the allegations made in the petition by her husband. The appellant-respondent further contended that it was her husband and his relatives who ill-treated her and treated her cruelly which forced her to leave the house and lake shelter with her relatives at Bangalore. She further prayed that the Court should dismiss the petition.
3. We find that some attempt was made by the Court to bring about a compromise at the initial stage but that was not pursued with any vigour. That led to trial. At the trial, the petitioner examined himself in support of the allegations in his petition, reiterating what he had staled in the petition. He was cross-examined by the counsel for the appellant, respondent-wife. Thereafter, no evidence was led for the petitioner or for the respondent. The Court proceeded to pass an order after hearing arguments and came to the conclusion that the mental cruelty had been proved as prayed for by the petitioner-husband, but it was not sufficient to gram it decree for divorce. Therefore, on the arguments advanced with the support of borne decided judicial authorities cited before him, he proceeded to grant the lesser relief of judicial reparation.
4. Aggrieved by that order, the appellant has presented this Appeal in this Court on 31-3-1983. However, it has been listed as an Appeal of the year 1984, probably, on account of the return of the memorandam on office objections etc. This Court admitted the Appeal on 25-6-1984 and called for the Records. When the Appeal came up for hearing on 4-12-1990, the Court directed notice as the learned counsel appearing for the Respondent had joined Judicial Service. The Court Notice was issued on 7-12-1990 and it was served and the respondent is represented by the brother of the previous counsel. But when this matter was heard by us, despite our attempts to locate the lawyer, none has appeared to represent the respondent. In that position, we were compelled to decide this Appeal Ex parte on account of long lapse of time since the presentation of the Appeal, having regard to the importance of the subject matter of the Appeal as well as the need for protecting the interests of the parties in matrimonial cases, which in their very nature, do not brook any delay.
5. The facts stated by us are not in dispute. The records of the lower Court bear them out. Section 13 of the Act provides for the dissolution of the marriage on the grounds enumerated under sub-sec. (1) of that Section which are available to either of the spouses. It reads :
“13(1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party has after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or
(ia) has, after the solemnization of the marriage, treated the petitioner with cruelty; or
(ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition;
(rest not necessary for purposes of this Appeal).
That after the conclusion of the trial, at the time of arguments, the learned counsel for the petitioner-Respondent herein did not press the second ground for the reason that, according to the averments in the petition, the appellant before us had deserted the company of the respondent-petitioner on 13-3-1979 and the petition for divorce was presented on 25-8-1980, i.e., before the lapse of two years. Therefore, on the date of the presentation of the petition, the ground under sub-cluse(l-b) of sub-sec. (1) of S. 13 was not available.
6. Before us what was contended by the learned counsel for the appellant was that, the Court had not made any attempt to bring about a compromise, We have stated earlier that the Court did make an attempt but did not pursue the same as the attempt did not result in any compromise and after filing objections by the appellant, it was not possible for the Court to pursue the efforts for compromise.
7. Nevertheless, we are inclined to allow the appeal for the reason that, on the uncorroborated self-serving testimony of the petitioner, mental cruelty is held to have been established by the learned Civil Judge. Marriage which is considered a sacrament under the customary Hindu Law and, therefore, is not amenable to dissolution easily. The Act has provided grounds to male spouse in Hindu Society and also to give relief to women who are considered to belong to the weaker section of the society. Notwithstanding the religious tenets, whatever may be the compelling reason, all that may be stated is that, so far as the Hindu Marriage and divorce is concerned, the law is yet developing, particularly, with reference to cruelty. The trend in India is, in the absence of definition of cruelty in the enactment to fall back upon the decisions rendered by the Courts of England in Matrimonial cases and adopt them to the facts on hand in a given case. To arrive at a conclusion, whether the facts do drive home the factum of cruelty, but what may be stated by us is that where physical cruelty is pleaded or mental cruelty is pleaded, in both of them, the element of threat to the person or life on whom the cruelty is practiced must be present. As noticed by the learned author in regard to substantial evidence and corroboration in matrimonial cases, the following may be noticed :
“Judicial opinion on the question of standard of proof in case of the matrimonial offence of cruelty cannot be said to have been quite uniform. It has at times been said that accusation of cruelty is a very grave and serious charge and therefore the Court should insist on proof with the same degree of strictness as in case of a criminal offence. On the other hand it has been said that the Court should not require proof with any more strictneis than is required in a Civil case. Section 23 ofthe Act lays down that the Court shall decree the relief if it is satisfied that the “other party has treated the petitioner with….. cruelty.” The evidence must preponderate in favour of the petitioner and must be clear and satisfactory. The offence charged must be established on a preponderance of probability. The Court would not be satisfied that it is established if it entertains any real doubt on the matter. What is required is that cruelly must be strictly proved. The word “strict” is sufficiently apt to describe the measure and standard of proof and it is unnecessary to introduce any question of a standard of proof required of a criminal charge.”
(see Muila’s Hindu Law — Fifteenth Edition — page 793)
The burden of proof must be discharged as such and discharge of burden must enable the Court to satisfy itself that mental cruelty was practiced deliberately by the spouse-accused, in the instant case, the appellant. We see from the evidence tendered by the respondent-petitioner that, there was constant quarrel between him and his wife, between his brothers and his wife on account of their joint living and on account of his refusing to set up a separate family for himself and his wife and their children which caused him terrible mental agony as he loved his mother and would not think of having a separate establishment, wherein, he could not personally take care of his mother. This is the problem of most of the Hindu Undivided Families. As we see from the evidence given by the petitioner, he never stated that he was not in sound financial position to set up another home for his wife and children and yet look after his mother as he did not have to live separately in a different town. His profession is that of tailoring. It is presumable that his brothers are also doing the same work and have been contributing to the welfare of their mother and it cannot be said that only the third son should pay and look after the mother and take care of her. In any event, neither of the brothers older than him or the younger brother have been examined to corroborate the version spoken to by him on oath in support of his allegations. We have noticed earlier that cruelty itself is a term which is incapable oi precise definition and one has to fall back on judicial decisions. In a case, in j which, a series of acts have been alleged to amount to cruelty, physical or mental, the cruelty so alleged must be such as to cause mental anguish that would affect the health of the person so alleging them and then alone would it constitute a threat 10 his person and life, so that, the Court could opine that cruelty indeed was practiced. In the absence of such a plea and evidence that the cruelty practiced by his wife was such as to cause him health problems endangering his life and person, the Court ought not to have concluded that mere series of incidences of quarrel between the husband and wife on account of the mother-in-law or mostly on account of the fact that he did not set up a separate establishment of his own, would amount to mental cruelty. Mere domestic quarrels on account of the presence of the mother-in-law in the family would not constitute mental cruelty. If so, then the Courts could hardly refuse dissolution of marriage to any husband who approaches with such a story and prays for dissolution of his marriage. We have already noticed that the version of the witness was not corroborated by any independent witness. In fact, the learned Judge did not pursue any line of reasoning as to what would constitute mental cruelty which had been pleaded. All that the learned Judge stated on this aspect of the matter is, in the following terms :
“The term ‘cruelty’ in its legal sense, in my opinion, includes the ill-treatment which amounts to cruelly and the effect of such cruelty that is the apprehension in mind.”
We do not think that is the judicial definition of cruelty or mental cruelty with which we are familiar. The preponderance of decisions support the view that cruelty, physical or mental, must constitute threat of danger to the person or life of the person on whom cruelty is practiced. If that element of threat to the life or person is absent, it cannot be the cruelty much less mental cruelty.
8. We, therefore, find that there is no proper application of judicial mind by the learned Civil Judge to come to the conclusion that the petitioner had made out a case of mental cruelty.
In order to avoid these mistakes being committed by subordinate Courts which exercise the jurisdiction in matrimonial cases, we arc constrained, despite long lapse of time, to set aside the decree of judicial separation granted by the learned Civil Judge to the Respondent almost without any evidence of the only ground available to the Respondent-husband, viz., the ground of cruelty.
We allow this appeal with costs, as the Respondent has shown no interest to defend this Appeal. Advocate’s fee is fixed at Rs.500/-.
9. Appeal allowed.