J. K. Maheshwari, J. :-

This appeal has been filed under section 19 of the Family Courts Act, 1984 assailing the judgment and decree dated 5-8-2005 passed by the Family Court, Indore in HMA Case No. 419/93, by which the application filed by the respondent under section 13(1)(ia)(ib) of the Hindu Marriage Act has been allowed.

2. It is not in dispute that the appellant and respondent were married on 21-11-1986 at Indore as per Hindu Rites and after marriage one daughter Kumari Vandana was born from their wedlock, at present she is residing along with appellant. It is also not in dispute that on 31-7-2000 appellant had submitted a criminal complaint against the respondent and his mother and father in Mahila Police Station, Indore under sections 498-A and 406 of Indian Penal Code. In that case the respondent was taken into custody and the father and mother were released on anticipatory bail. On filing challan in the Court of Judicial Magistrate, First Class Indore, they were convicted vide judgment dated 18-2-2003 and directed to undergo three years rigorous imprisonment with fine of Rs. 500/- each. Against the said judgment a criminal appeal was preferred bearing No. 103/2003, which was allowed by the Vlth Additional Sessions Judge, Indore on 7-11-2003 and the judgment passed by the Judicial Magistrate First Class, Indore was set-aside.

3. Thereafter the respondent filed a petition under section 13(1)(ia)(ib) of the Hindu Marriage Act, seeking decree of divorce, wherein it was stated that behaviour of the appellant was not cordial with him as well as his family members. The appellant was coerced to leave the house of respondent for residing in the house of her father and mother. It is also said that the appellant was ready and willing to come to the respondent, on being requested by him to return back to their home. In the third week of June, 2000 the appellant insisted upon respondent to reside separately from his parent. On this issue there were some quarrel between them and appellant left the house and proceeded to her parent house. On 25-7-2000 the respondent and his mother went to call back the appellant at their home, while her uncle, misbehaved and uttered that appellant will not go with him, it is further said that he was threatened with dire consequences in future. In sequence thereto, she had made the complaint on 31-7-2000 alleging demand of dowry and with various other allegations, wherein the respondent was taken into custody for more than 24 hours and he was released after returning all the goods i.e. Bed, T. V., Dressing Table, tea Table, Table Fan, Bed, Cloths, Ornaments, Cash etc. On filing challan they were tried in Case No. 772/2001 in the Court of Judicial Magistrate First Class, Indore and convicted for a term of three years rigorous imprisonment and with fine of Rs. 500/- each under section 498-A, vide judgment dated 10-2-2003. The said judgment was assailed before Vlth Additional Sessions Judge, Indore, wherein the respondent and his parents were acquitted by giving the benefit of doubt vide judgment dated 7-11-2003. After acquittal, a petition seeking divorce on the ground of cruelty and desertion was filed by him under section 13(1)(ia)(ib) of the Hindu Marriage Act, 1955.

4. In reply to divorce petition, the appellant denied all the averments of cruelty and desertion as alleged in the petition except the date of marriage, birth of daughter and filing of criminal proceedings under section 498-A. It was also denied that the appellant had insisted upon respondent to reside separately from his family members. In counter, the appellant has made the allegation of cruelty and desertion committed by the respondent. It is said that the appellant is residing with her daughter to whom Rs. 900/- has been awarded as maintenance, which is not yet paid by the respondent. It is also said that on 15-6-2000 respondent and his mother had assaulted her and thereafter repeated the same on 30-6-2000 and as about 11 P.M. in the night, she was pushed out from their house. However, prayer is made to dismiss the divorce petition.

5. Learned trial Court framed as many as three issues, wherein Issue No. 1 related to the cruelty as alleged by the respondent against appellant. Learned trial Court has recorded the finding that filing of criminal complaint under section 498-A of Indian Penal Code, against the respondent wherein initially they were convicted, but later on acquitted by the Sessions Court, amounted to mental cruelty. In the facts and circumstances of the case and on the basis of evidence adduced by the parties, it is held that respondent is entitled to get the decree of divorce on the ground of cruelty.

6. Learned Counsel appearing for appellant Shri L. N. Soni has strenuously urged that merely filing a complaint under section 498-A of Indian Penal Code against the respondent, and on account of acquittal therein by giving the benefit of doubt, cannot be a ground for decree of divorce. Therefore, the learned trial Court committed error in decreeing the suit of the respondent. In support of his contention reliance has been placed on the Division Bench judgment of Andhra Pradesh High Court in the case of Chiranjeevi vs. Lavanya, AIR 2006 A. P. 269 and in view of the observations made in para 22, it is urged that acquittal of respondent by giving the benefit of doubt, cannot be a ground for a decree of divorce, and the judgment and decree passed by the trial Court is liable to be set-aside.

7. On the other hand, Shri J. B. Mehta, learned Counsel appearing for the respondent submits that learned trial Court has rightly passed the judgment and decree on the basis of material available on record. Learned Counsel has placed reliance on the judgment in the case of Pranab Kumar Chakraborty vs. Smt. Kumkum Chakraborty, AIR 2005 Calcutta (534) and another judgment of Naveen Kohli vs. Neelu Kohli, 2006(3) MPLJ (SC) I = (2006) 4 SCC 558. Reliance has also been placed on the judgment of various High Courts i.e. Narendra Kumar Gupta vs. Indu, reported in AIR 2002 Rajasthan 169, and Gajjala Shankar vs. Anuradha, AIR 2006 A. P. 65. On the basis of the aforesaid judgments, it is urged that finding recorded by the trial Court is in conformity with the principles of law laid down by the Hon'ble Apex Court as well as various High Courts and the judgment and decree passed by the trial Court does not call for any interference.

8. We have heard learned Counsel for the parties and perused the record.

9. A perusal of the record indicates that the dispute arose on account of refusal of appellant to come back from the house of her parent when the respondent went to call her back. After one month of the refusal by the appellant, a complaint under section 498-A as well as section 406 of Indian Penal Code was lodged in Mahila Police Station, Indore and on the basis of said complaint, respondent and his family members were tried in the Court of Judicial Magistrate, First Class, Indore and convicted and sentenced to three years rigorous imprisonment to each along with a fine of Rs. 500/-, the said judgment was set-aside on 7-11-2003 by the Vlth Additional Sessions Judge, Indore, wherein respondent and his family member were acquitted by giving the benefit of doubt. Thereafter respondent filed a petition under sections 13(1)(ia)(ib) of the Hindu Marriage Act, 1955 seeking decree of divorce on the ground of cruelty, which was decreed by the trial Court. However, in the facts of the present case and in view of the judgments relied upon by the learned Counsel appearing for the parties, it is to be seen that whether on account of prosecuting the husband and his family members in the criminal case under section 498-A of Indian Penal Code trial Court has rightly granted the decree the decree of divorce or not?

10. In view of the aforesaid facts and submissions made by the learned Counsel appearing for the parties, we think it proper to analyse the law propounded in the aforementioned judgments. The Apex Court in the case of A Jayachandra vs. Anil Kaur, reported in AIR 2005 SC 534 has observed as under:-

"The cruelty may be mental or physical, intentional or unintentional. Mental cruelty may consist of verbal abuses and insults by using filthy and abusive language leading to constant disturbance of mental peace of the other party. If the cruelty is physical, the Court will have no problem in determining it. It is a question of fact and degree. In physical cruelty, there can be tangible and direct evidence, but in case of mental cruelty there may not at the same time be direct evidence. In cases where there is no direct evidence. Courts are required to probe into the mental process and mental effect of incidents that are brought out in evidence. The concept, proof beyond the shadow of doubt, is to be applied to criminal trials and not to civil matters and certainly not to matters of such delicate personal relationship as those of husband and wife. First, the enquiry must begin as to the nature of cruel treatment, second the impact of such treatment in the mind of the spouse, whether it caused reasonable apprehension that it would be harmful or injurious to live with the other. Ultimately, it is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. However, there may be a case where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or injurious effect on the other spouse need not be enquired into or considered. In such cases the cruelty will be established if the conduct itself is proved or admitted."

11. In the case of Naveen Kohli (supra) the Hon'ble Supreme Court has held that cruelty whether physical or mental, depends on various determining factors. If a criminal complaint against the appellant's husband was filed and effort was made to harass and torture him and even to put him in Jail by making various scandalous act to lower down his prestige, in such a case decree of divorce may be granted.

12. In the case of Gajjala Shankar (supra), the Andhra Pradesh High Court has considered the identical issue involved in the present case relying on the same judgments of Hon'ble Supreme Court and the decree of divorce has been granted on acquittal in the criminal complaint filed under section 498-A. In the case of Pranab Kumar Chakraborty (supra), Calcutta High Court has granted the decree of divorce on the ground of cruelty merely on account of filing of criminal complaint under section 498-A, which was not withdrawn despite assurance. The Rajasthan High Court in the case of Narendra Kumar Gupta (supra) has also taken the same view and the decree of divorce was granted merely on account of lodging F.I.R. under section 498-A.

13. The judgment relied upon by the learned Counsel for the appellant in the case of Chiranjeevi (supra) is not applicable in the facts of the present case, because in that case the appellant husband had raised various grounds, adultery by his wife and doubtful paternity of child, but the husband had failed to prove the same during trial. On the other hand, wife had filed a complaint under section 498-A, which resulted in acquittal by giving the benefit of doubt. However, the Andhra Pradesh High Court has observed that conduct of the husband in disputing the paternity of child itself amounts to cruelty on his part and there is a reasonable ground available to the respondent's wife to refuse conjugal rights with the respondent.

14. After going through the facts of the present case and the principles of law as discussed therein above, it is apparent that in the present case, the appellant wife who is not residing with respondent continuously and with the short intervals she was going to the house of her parent. Ultimately on 25-6-2000, she refused to come back and her uncle threatened for dire consequences to the family of respondent. An FIR under section 498-A of Indian Penal Code was also lodged against respondent and his family members, who were sent to Jail and the father and mother were required to suffer incarceration for more than two years, and ultimately convicted, which was set-aside by the Sessions Court by giving the benefit of doubt. After the said episode and the circumstances wherein the mother, father and husband had subjected to Jail sentence, the conjugal relation with appellant were not possible. In the divorce petition. It was proved that the appellant was residing with her parents and also insisted respondent to reside separately and on refusal the respondent and his family members were threatened with dire consequences and thereafter an FIR under section 498-A was filed against them. On conclusion of criminal case, a suit seeking decree of divorce was filed. The events indicate that the action on the part of appellant has led to cruel treatment to respondent, which is having reasonable apprehension in his mind, that living together of the spouses was not possible. On going through the facts available on record, it does not reveal that conduct of respondent was cruel or unlawful. In such circumstances, it is fully established by respondent that the spouses cannot live together on account of subjecting him and his family members in a criminal prosecution. In view of the above discussion, it is fully established on record that the ground of mental cruelty has been made out for seeking decree of divorce against the appellant. The learned trial Court has rightly recorded the findings by passing the judgment and decree in favour of respondent.

15. Considering overall facts and material available on record, we are of the considered view that trial Court has rightly allowed the application filed by the respondent under section 13(1) (ia) of Hindu Marriage Act and the judgment and decree of divorce in favour of respondents has rightly been passed on the ground of cruelty. Finding recorded by the trial Court does not call for any interference.

16. In view of the discussion as made hereinabove, accordingly, this appeal is dismissed. In the facts and circumstances of the case, parties are directed to bear their own costs.

Appeal dismissed.