LOKESHWAR SINGH PANTA, J.

(1) This is wife's appeal against the decree of judicial separation under Section 13-A of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act) dated 3-7-1996 of Addl. District Judge (I), Kangra at Dharamshala passed in H.M.P. No. 35-D/94 in favour of Anil Kumar Sood and against Smt. Madhu Sood appellant Anil Sood has also assailed the decree by way of cross objections. We have taken and heard the appeal and cross-objections together as these arise out of common decree. For the sake of convenience, the parties will be referred to as husband and wife herein.

(2) Briefly the facts are that Anil Kumar Sood got married with Smt. Madhu Sood on 10-5-1990 according to Hindu rites at Hitwas, Tehsil and District Kangra. They lived together and cohabited at Dehra for a short duration. A female child was born to the parties in April, 1991 who is living under the care and custody of the wife. The husband filed petition under Section 13 of Hindu Marriage Act on 12-1-1994 against his wife for dissolution of marriage by a decree of divorce. It was averred in the petition that after the marriage wife stayed with the husband initially only for about 22 days. During this period despite all the love, care and affection, the wife did not take any interest in the household affairs. She kept herself aloof from the husband and other members of the family. She would leave the matrimonial home without permission of the husband and without any reasonable cause. She also started coaxing the husband to live separate from his parents who is the only male child of his parents. Ultimately, the husband set up independent business and home. The constant demand of the wife has been a cause of mental agony to the husband as she has been extending threats that she would commit suicide. The wife in the 2nd week of March, 1992 left the company of the husband without any sufficient and reasonable cause with the intention of not returning to the matrimonial home. The husband's attempts to bring his wife to the matrimonial home failed including convening of brotherhood Panchayat. Lastly, it was averred that the wife is living separately since 2nd week of March, 1992 and, thus, has failed to perform marital obligation towards the husband causing great mental anguish and cruelty to him. It was also averred that the wife was guilty of committing cruelty and the decree was sought on that ground.

(3) The wife controverted the allegations of the husband in her written statement. She alleged that she stayed with her husband for 7-8 months and a daughter was born to them from the said wedlock. She made specific allegations that she was mercilessly given beatings and was also tortured by the husband and his family members. She was not provided with food and clothes etc. etc. She also stated that she is still willing to live with her husband. She alleged that she had never compelled her husband to live separately or start separate business. She has further alleged that she was turned out many times by her husband from the matrimonial house and she had informed her parental family members about misbehaviour and bad treatment of her husband by writing letters to them. In the end, she stated that in fact it was the husband who had deserted her without any cause. In replication, husband re-asserted and re-affirmed the averments made in the petition and the allegations of the wife in her written statement were specifically denied.

(4) On the pleadings of the parties, the following issues were framed by the trial Court on 23-9-19961. Whether the respondent has, after solemnization of the marriage, treated the petitioner with cruelty?OPP2. Relief.

(5) After perusing the evidence and taking into consideration the circumstances of the case, the trial Court came to the conclusion that there is no sufficient evidence on the file to prove the cruelty or desertion of the husband by the wife and held that at the most it is a case of non-co-operation and misunderstanding between the parties, however, the decree for judicial separation under Section 13-A of the H.M. Act was granted.

(6) The wife has challenged the said findings in this appeal. The husband has assailed the decree by filing cross-objections.

(7) The learned counsel for the wife contended that on reading the evidence and taking the totality of circumstances into consideration, the only inference can be drawn is that there was no sufficient and reasonable excuse for wife to stay away from the husband and she had never committed cruelty on husband. The wife has been staying in the matrimonial home of the husband and there is no reason for her to bring an end to the married life permanently and she had offered to stay with the husband and is still willing to join his company in his matrimonial home. The learned counsel next contended that the grounds for judicial separation under Section 13-A of H.M. Act and, for divorce are almost the same and when the allegations of cruelty are not proved as held by the learned trial Judge in paragraphs 16 and 17 of the order, neither divorce nor judicial separation can be granted outside the scope of Section 10 of the H.M. Act and, therefore, the decree passed by the learned Court below deserves to be set aside. The learned counsel in support of this submission placed reliance in Anjana Alias Baby v. Ashok Kumar, 1982 1 DMC 357, Manthena Siromani v. M. Venkateswara Raju, 1988 (2) HLR 209, Vijay Lakshmi Balasubramanian v. R. Balasu-bramanian, 1998 (1) DMC 210.

(8) Mr. K. D. Sood, learned counsel for the husband controverted the said submissions of the learned counsel for the wife. He has contended that the marriage between the parties has been irretrievably broken inspite of the best efforts of the husband to set up the matrimonial home. He contended that the husband has proved on record by leading cogent and convincing evidence that the wife had been insisting that the husband should stay in the house of her parents or that she should have a separate mess or business from the parents of the husband and he had set up a separate business and house but the wife failed to live with him and that the evidence of the husband has not been properly appreciated by the trial Court for granting decree of divorce sought for by him. He next contended that the wife's willingness during the course of the proceedings to stay with the husband was not a ground to deny the relief to the husband particularly when it was established that the wife had threatened that she would take poison and put the husband and his parents in trouble and her allegation that the husband or his parents had made a demand of dowry from the wife has been found false. He has placed reliance in Smt. Inderpal Kaur v. Sh. Gurvel Singh, 1989 (1) HLR 258, Chanderkala Trivedi (Smt.) v. Dr. S. P. Trivedi, 1993 4 Supreme Court Cases 232 and Ramesh Chander v. Savitri (Smt.) 1995 2 Supreme Court Cases 7 : AIR 1995 SC 851.

(9) We have given thoughtful consideration to the rival contentions of the learned counsel for the parties and scrutinized the evidence on record.

(10) Before dealing with the evidence undisputedly the words cruelty has not been defined in the Act but it can be explained as wilful and unjustifiable conduct of such a nature as to cause danger to life, body or limb or the husband and also includes mental torture. In V. Bhagat v. D. Bhagat, AIR 1994 Supreme Court 710, it was held that mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. Further, it was observed that while arriving at such conclusion regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart or all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case and it is a matter to be determined in each case having regard to the facts and circumstances of the case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made. In the present case the husband appeared as PW-1 and examined Inder Mohan Walia (PW-2), Bal Krishan (PW-3) and his mother Smt. Soma Devi (PW-4). The husband deposed that the wife stayed at his house for 20-22 days after marriage and thereafter was started leaving his house without his permission or consent. She did not take any interest in his parents or in the household affairs. She insisted that he should live separate from his parents and set-up independent business. He is the only child of his parents and they need his constant care in their old age. He stated that the wife threatened that if her wishes were not accepted she would commit suicide. On 16th March, 1992 a brotherhood Panchayat was convened at Dehra which was attended by the wife and her father. The Panchayat members tried to persuade the wife to give up her rigid stand and join the company of the husband but she did not care to hold the proposal and failed to join his company. On the same day father of the wife took her away to his house and also carried necessary clothes and other articles and since then his wife is living in the house of her father at Hatwas. In his cross-examination he has admitted letters (Exts. R-2 to R-5) which were written by the wife to her father and other relations. He has further stated that now he is not ready and willing to take his wife with him. PW. Shri Inder Mohan Walia has only stated that in the 'Baradari' Panchayat, the wife refused to company the husband. PW. Shri Bal Krishan deposed that the father of the wife did not agree to send her to the matrimonial house. Smt. Soma Devi deposed that the wife used to leave the matrimonial home without their permission and she refused to join the society of her husband.

(11) Wife Smt. Madhu Sood appeared as RW-1 and admitted her marriage with Anil Sood. She stated that she stayed only for 7-8 months with her husband but he was not treating her properly and he made demand of dowry from her. She produced on record letters Exts. R-1 to R-4 having been written by her to her father. She further admitted that the husband came to see the female child at Palampur hospital but stayed there for a short time. Shri Kishori Lal (RW-2) is the father of Smt. Madhu Sood who has also proved the letters having been written to him by his daughter. He also stated that his daughter after marriage stayed in the matrimonial home for about 8 months and the behaviour of the husband was not good with her. He was not providing maintenance to the wife. He further stated that he is still willing to send his daughter to the matrimonial home. Shri Jatinder Singh (RW-3) also stated that the wife stayed at the house of the husband for about 7-8 months and thereafter he had seen her at her parents house. He deposed that the father of Smt. Madhu Sood made a complaint to him being a panch of Ratwas Panchayat that the husband maltreated his wife and he suggested him that he should go to Dehra and try to amicably settle the matter.

(12) From re-appraisal of the evidence discussed above, it is clear that the wife is prepared to join the society of the husband and her father is also ready to send her to the matrimonial home. The trial Court has also noticed in paragraph 16 of the order that several efforts to re-concile the matter were made but the conciliation always failed from the side of husband. This Court on 26-8-1998 made efforts to the parties to mutually settle their dispute but failed to re-concile the matter. After thoroughly examining the evidence of the husband, we are of the considered view that there is no cogent and convincing evidence on the file to prove that the wife has committed cruelty on the husband and the evidence would go to show that it is at the most the case of non-co-operation and misunderstanding between the parties. From the evidence it cannot be held that the marriage is dead both emotionally and practically. The husband has failed to prove the concept of cruelty both mental and physical which could entitle him claim of divorce under Section 13(1) (ie) of the H.M. Act. It is unequivocally established by the wife that she is ready and willing to join the company of the husband and start living with him. The learned trial Court has appreciated the evidence of the parties and recorded sound reasoning that there is no evidence on record to prove the ground of cruelty by the husband and, thus, no decree for divorce could be granted in his favour. The judgments cited and relied upon by Shri K.D. Sood have been rendered in the facts and circumstances of those cases. In those cases, the apex Court has held that from the facts and circumstances of the case marriage between the parties was dead and there was no chance of its being retrieved and it was better to bring it to an end. Continuance of marital alliance for name sake is prolonging the agony and affliction in the facts of those cases. Thus, those decisions are of no help to the husband in the facts and circumstances of the present case and, therefore, his contention that the decree of the trial Court deserves to be set aside is un-sustainable.

(13) Finally, we have to consider whether the trial Court is competent to grant relief of judicial separation under Section 13-A of the Act, when the husband had prayed for relief under Section 13(1) (i-a) of the Act.

(14) Section 13-A was introduced by the Marriage Amending Act, 1976 which reads as follows :

"Section 13-A. Alternative relief in divorce proceedings :- In any proceeding under this Act, on a petition for dissolution of marriage by a decree of divorce, except in so far as the petition is founded on the grounds mentioned in clauses (ii) and (vi) and (vii) of sub-section (1) of Section 13, the Court may if it considers it just so to do having regard to the circumstances of the case, pass instead a decree for judicial separation."

(15) It is plain from this section that an alternative relief can be given in a petition filed for divorce, if the Court thinks it just to do so, having regard to the circumstances of the case. But, t

his section is subject to Section 10 of the Act which enumerates the grounds on which judicial separation can be granted. In fact, after the amendment of the Hindu Marriage Act, 1976, the grounds for judicial separation and the grounds for divorce are almost the same. When the allegations of cruelty are not proved, neither divorce nor judicial separation can be granted. Section 13-A contemplates giving an alternative relief only when the grounds mentioned in Section 10 exist. But the relief of the judicial separation cannot be granted outside the scope of Section 10 of the Act. The Court itself can suo-motu grant an alternative relief if from the evidence on record it is proved that the wife is held guilty of any cruelty towards husband. (16) In the present case, the wife insisted upon staying with the husband and in the light or this categorical stand and statements of the parties, the wife cannot possibly be held guilty of any cruelty towards the husband and the husband has failed to establish that the wife has committed cruelty upon him. Hence, in our view, we do not find any justification for granting judicial separation under Section 13-A of the Act passed by the Court below. (17) No other point has been argued by the learned counsel for the parties. (18) In the result, for the reasons recorded above, this appeal succeeds and is allowed. While setting aside the decree granted by the lower Court, the petition under Section 13 of the Act is dismissed. As a necessary consequence of this the cross-objections too fail and are dismissed but with no order as to costs.Appeal allowed.