False allegation of adultery with bhabhi is cruelty: Tripura High Court 2015


MAT Appeal 02 of 2012
Smt. Jayanti Deb (Das)
W/O Sri Manas Kumar Das
D/O Sri Durgakumar Deb
Resident of Arundhutinagar
Road No. 1, P.O. A.D. Nagar,
P.S. West Agartala, District-Tripura West
……… Wife-Respondent-Appellant
Sri Manas Kumar Das
S/O Lt. Abanibhushan Das
Resident of Village Sekerkote,
P.S. Amtali, P.O. Sekerkote,
District-Tripura West.
At present:
C/O Office of the CDPO,
ICDS, Bishalgarh Block,
PO & PS Bishalgarh
District-Tripura West
PIN- 799 102
… Husband-Petitioner-Respondent

For the appellant : Mr. DR Choudhury, Advocate
Mr. D Deb, Advocate
For the respondent : Mr. D Chakraborty, Sr. Advocate
Mr. H Laskar, Advocate
Date of hearing : 05.02.2015.
Date of delivery of
judgment & Order : 19.02.2015
Whether fit for reporting : Yes.
( Saha J )
This appeal is directed against the judgment dated 27.01.2012
passed by the learned Judge, Family Court, Agartala, West Tripura in
TS(Div)191/2008 whereby and whereunder the learned Family Judge
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allowed the suit granting decree of divorce on the ground of cruelty
between the parties.
2. The appellant and the respondent are wife and husband,
respectively. The respondent filed a petition under Section 13(1)(ia) of
the Hindu Marriage Act, 1955 for divorce. The learned Family court after
comprehensively dealing with the matter ordered dissolution of the
marriage between the parties under Section 13 of the Hindu Marriage
Act. The marriage was solemnized on 10th May, 2005 according to vedic
rites and customs in the house of the father of the appellant at
Arundhutinagar, Road No. 1, Agartala, West Tripura. The appellant,
aggrieved by the aforesaid judgment of the Family Court preferred the
instant appeal on the ground that the wife-appellant has sufficiently
proved the mental and physical torture caused upon her by the
respondent-husband due to her unwillingness to stay in the house of the
elder brother of the husband-respondent. The appellant has also stated
that the learned Family Court wrongly concluded about her cruelty upon
her husband though, there is no evidence adduced by the husbandrespondent
on that ground.
3. Brief facts which are necessary to dispose of this appeal are as
The respondent-husband Sri Manas Kumar Das in his petition
under Section 13(1)(ia) of the Hindu Marriage Act stated, inter alia, that
in the year 2004 when both the respondent-husband, petitioner in the
suit and the appellant-wife, respondent in the suit, used to visit a
coaching class for appearing TCS examination, they used to meet each
other in the coaching class and were introduced and in course of time
MAT Appeal 02/2012 Page 3 of 16
their acquaintance developed to love affairs and ultimately in spite of
advice and caution given by his well-wishers not to be associated with
the appellant, he decided to marry the appellant and ultimately their
marriage was solemnized on 10.05.2005 according to the Hindu rites and
customs, as stated supra. At the time of marriage, the respondent was
residing in the house of his elder brother namely, Sri Ratan Das at
Joynagar Road No. 1, Agartala. Just after completion of marriage both
the appellant and the respondent shifted to the house of said Sri Ratan
Das. But immediately after moving in the house of the elder brother of
the respondent, the appellant clearly told that she would not live in the
house of his elder brother and on the same night the appellant proposed
the respondent to shift to the house of her father since there was
sufficient place in her father’s house. As the respondent disagreed to the
proposal given by the appellant, the appellant started non-cooperation
with him as well as other family members and also started abusing the
respondent in filthy language. In such a situation, the respondent had to
shift along with the appellant to a rented house owned by Shri Debasish
Datta at Jaynagar, Agartala and from 23.06.2005 to the middle of April,
2007 both the respondent and the appellant resided in the said rented
house but during that period also the appellant did not live for more
than 10 days on average in a month and for the remaining 20 days of
the month she used to reside in the house of her father.
4. It is also alleged that during that period, the appellant’s
unmarried sister, namely, Smt. Jayasree Deb used to visit the rented
house on regular basis, at least twice in a day and at the same time the
appellant also used to leave the rented house every now and then with
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her elder sister without any notice to the respondent and in the event of
protest made by the respondent, both the appellant and her sister used
to rebuke the respondent in filthy language. One day when the
respondent returned to his rented house from office at 6 p.m. he found
that the appellant was not available in the house. Meanwhile at 8 p.m.
the appellant returned along with her elder sister and when the
respondent asked her as to where she had been during the period,
instantly both the appellant and her sister started rebuking the
respondent with filthy language and at about 12 a.m. (mid night) the
father of the appellant also came to the rented house and they started
rebuking the respondent. Not only that, the respondent was arrested by
the police at the instance of the appellant though subsequently he was
released and as a result the respondent was totally upset and mentally
5. It is the further case of the respondent that during this period
the appellant with the help of her sister used to move here and there
giving no respect to the respondent and she used to use the mobile
phone registered in the name of her elder sister and through such mobile
phone, the appellant used to talk to someone and on many occasions
when the mobile phone used to ring up, the respondent used to attempt
to receive the call, but he did not get any reply from the other end and
under such a mental helpless position he left Agartala in October 2006
and started residing at Teliamura in his place of work to save himself from
the tyranny of the appellant, her sister and her father.
6. Ultimately, at the instance of the appellant, the respondent
returned to his rented house at Agartala but in the middle part of April,
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2007 the appellant left the rented house and started residing in the
house of her father permanently. In the meantime, they were blessed
with a female child on 30.07.2007. The respondent also stated in his
petition that one day when he went to his father’s house at Sekerkote
under Amtali PS and on the way back to the rented house he visited the
father’s house of the appellant but on seeing him the father and elder
sister of the appellant attacked him with filthy language which cannot
be uttered by any reputable person and ultimately, the respondent
seeing no other alternative fled away from that house to save his
7. It is further stated that he was under constant threat by the
appellant to use the law of Section 498A IPC for sending him to jail, since
she is an advocate and as such she has cordial relationship with the
police officers and she also told him that one single call would be
enough to put him behind the bars. In such constant mental torture, the
respondent came to the conclusion that it would not be possible on his
part to live with the appellant as husband and wife and under such a
situation he filed the petitioner for getting a decree of divorce on the
ground of cruelty.
8. The appellant-wife in her first statement denied all the
allegations leveled against her but it is alleged in her written statement
that after the marriage she was subjected to physical and mental torture
and because of severe torture she lost her senses and admitted herself in
the IGM hospital as an outdoor patient for her treatment. It also alleged
that the wife of the elder brother of the respondent-husband is a pivot
and she was continuously controlling the affairs of the matrimonial home
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resulting in violence created by the respondent upon her. Not only that,
the respondent-husband had special relationship with the wife of his
elder brother and in spite of that also she tried to adjust with her
husband. It is further alleged that during the advanced stage of her
pregnancy and also at the time of delivery of their child the respondent
did not visit to see her even for a single day and when she visited her
matrimonial home after the maternity period she was humiliated and
was not allowed to stay in her matrimonial home and as a result, she had
to stay in the house of her parents for her survival. In spite of being an
advocate by profession she could not earn anything as she kept herself
busy with her newly born child. The respondent-husband being the
Supervisor of ICDS was drawing a salary of Rs. 18,000/- per month and did
not provide any maintenance either to her or to her minor daughter.
9. The learned Family Court considering the contentions made in
the petition as well as in the written statement framed three issues which
are as follows:
(I) Whether the petition is maintainable in its present form and
(II) Whether after the marriage, the petitioner was tortured
mentally in many ways and abused in filthiest language by the
respondent, her sister and father for which he was compelled
to live at his place of posting at Teliamura for some days to
save himself from the tyranny of the respondent and whether
thereafter, the respondent deserted her matrimonial home, i.e.
the rented house without any reasonable cause in the month of
April, 2007 permanently or whether after marriage, the
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respondent was tortured by the husband both mentally and
physically being influenced by the wife of the elder brother of
the petitioner, compelling her to take shelter in the house of her
parents in the middle part of April, 2007?
(III) Whether the petitioner is entitled to get a decree of divorce as
prayed for?
10. For proving the case, respondent-husband has examined
himself as PW 1 and one Sri Malay Chakraborty as PW 2. On the other
hand, the appellant-wife has examined seven witnesses including herself.
Learned Family court decided the issue No. (ii), after discussing the
evidence, in favour of the respondent-husband and ultimately decreed
the suit. Hence, the appeal.
11. Issue nos. (ii) and (iii) relate to cruelty and the false allegation
leveled by the appellant against the respondent. The petition for divorce
was filed primarily on the ground of mental cruelty. Evidence was led by
the parties, the respondent husband as PW 1 stated in his evidence that
he was ill-behaved by the appellant and also since she did not like to live
in the house of the elder brother of the respondent and when he could
not accept such a proposal, she started non-cooperation in all affairs for
which he was ultimately compelled to shift to a rented house and even
in the rented house she did not stay more than 10 days in a month. He
denied the allegations made by the appellant-wife regarding torture
upon her as well as allegation regarding maintaining a special
relationship with the wife of his elder brother (Boudi /Bhabhi) whom he
considers like his own mother. He also stated that the allegation of not
allowing the appellant to enter into the rented house after delivery of
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their daughter is totally false and in fact she herself did not come back to
the said rented house and is now leading her own life as per her own
whims. He also stated that due to constant mental torture he prayed for
a decree of divorce on the ground of cruelty.
12. PW 2, Sri Malay Chakraborty, stated in his evidence that the
elder brother of the respondent Sri Ratan Das is well known to him and his
house is located at a short distance from his house. This witness further
stated that in the month of September, 2006 he was informed by one Sri
Chandan Majumdar that the respondent was arrested by the police at
the instance of the appellant and accordingly he along with Chandan
Majumdar went to the West Agartala PS where he found that the
respondent was sitting in the police station and the appellant, her elder
sister and her father with some unknown persons were rebuking the
respondent in filthy language in chorus and all of them tried to put him in
lock up but the Officer-in-Charge of the PS tried to pacify the appellant
and her group. This witness also stated that on their request the
respondent was ultimately released from the PS at about 2.30
13. The appellant, being DW 1, in her evidence though denied the
allegation of the respondent but stated regarding the illicit relationship of
the respondent with the wife of his elder brother for which they could not
lead a peaceful conjugal life. She further stated that in spite of the
extreme torture made upon her by the respondent-husband, she
wanted to live together with her husband.
14. DW 2, Sri Durga Kumar Deb, father of the appellant, though in
his evidence stated regarding the habit of the respondent of leading
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special life with his sister in law, during cross-examination, he specifically
stated that he did not see the respondent-petitioner maintaining any
kind of relationship with the wife of his elder brother but he was told so by
his daughter.
15. DW 4, Smt. Manju Chakraborty, DW 5, Smt. Namita Acharji, DW
6, Smt. Mani Bala Das stated that as told by the appellant, they knew
that the appellant was tortured by the husband-respondent.
16. DW 7, Smt. Hemanta Bala Biswas, who was working in the
house of the father of the appellant as maid servant, in her affidavit in
chief stated that one day when she went to the rented house of the
respondent at Jaynagar with a Tiffin box she found the respondentpetitioner
and a lady in the same bed and during her cross-examination,
she specifically stated she cannot say what she has written in that
affidavit in chief. Not only that, it appears from the record that this
witness is an illiterate one and she put her thumb impression in the
affidavit which is written in English and there is also no such statement
that the contents of the affidavit were read over or explained to her. In
such a situation, it is very difficult to rely upon the evidence of this witness
so far the allegation of adultery is concerned.
17. Mr. Choudhury, learned counsel for the appellant while urging
for setting aside the decree of divorce would contend that the owner of
the rented house Sri Debasish Datta was not brought as witness and not
only that, the allegation made by the respondent regarding cruelty is
also not proved. He further submits that the allegation of the respondent
that he was pressurized by the appellant to shift in rented house cannot
be considered as cruelty and in support of his aforesaid contention he
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has placed reliance on a decision of the Delhi High Court in Harish
Chander Drall v Suresh Wati, AIR 2007 (NOC) 2272 (Delhi) wherein it is
stated that the allegation by the husband that the respondent wife had
pressurized him to set up a separate residence and had behaved badly
in presence of the neighbours and also filing of a criminal case by the
wife against the husband would not constitute cruelty. He further submits
that mere allegation of cruelty itself would not be a ground for granting
divorce unless the same is proved. In the instant case, the respondent
husband though in his petition has made some allegation regarding
cruelty but he failed to prove those allegations and for proving cruelty
under Section 10(i)(b) it has to be proved by the person who alleges
cruelty that harm or injury to his health, reputation, working career is
affected by the appellant wife but the same is also absent. In support of
his aforesaid contention he has placed reliance on Dr. NG Dastane V.
Mrs. S Dastane, AIR 1975 SC 1534, particularly para 30 & 31 which are as
“30. An awareness of foreign decisions could be a useful asset
in interpreting our own laws. But it has to be remembered that
we have to interpret in this case a specific provision of a specific
enactment, namely, section 10(1) (b) of the Act. What constitutes
cruelty must depend upon the terms of this statute which
provides :
“10(1) Either party to a marriage, whether solemnized before
or after the commencement of this Act, may present a petition
to the district court praying for a decree for judicial
separation on the ground that the other party-
(b) has treated the petitioner with such cruelty as to cause a
reasonable apprehension in the mind of the petitioner that it
will be harmful or injurious for the petitioner to live with the
other party;”
The inquiry therefore has to be whether the conduct charged a,.-
cruelty is of such a character as to cause in the mind of the
petitioner a reasonable apprehension that it will be harmful or
injurious for him to live with the respondent. It is not necessary,
as under the English law, that the cruelty must be of such a
character as to cause “danger” to life, limb or health or as to
give rise to a reasonable apprehension of such a danger.
MAT Appeal 02/2012 Page 11 of 16
Clearly, danger to life, limb or health or a reasonable
apprehension of it is a higher requirement than a reasonable
apprehension that it is harmful or injurious for one spouse to
live with the other.
31. The risk of relying on English decisions in this field may be
shown by the learned Judge’s reference to a passage from
Tolstoy (p. 63) in which the learned author, citing Horton v.
Horton 1940 P. 187, says : “Spouses take each other for better or
worse, and it is not enough to show that they find life together
impossible, even if there results injury to health.”
If the danger to health arises merely from the fact that the
spouses find it impossible to live together as where one of the
parties shows an attitude of indifference to the other, the charge
of cruelty may perhaps fail. But under section 10(1) (b), harm or
injury to health, reputation, the working-career or the like, would
be an important consideration in determining whether the
conduct of the respondent amounts to cruelty. Plainly, what we
must determine is not whether the petitioner has proved the
charge of cruelty having regard to the principles of English law,
but whether the petitioner proves that the respondent has
treated him with such cruelty as to cause a reasonable
apprehension in his mind that it will be harmful or injurious for
him to live with the respondent.”
18. Mr. Chakraborty, learned senior counsel for the respondenthusband
while supporting the decree of divorce passed by the learned
Family Court would contend that if for argument sake it is admitted that
the respondent failed to prove his allegation then also the allegation of
the appellant-wife to the effect that the respondent was maintaining
adulterous life with the wife of his elder brother itself is a cruelty and a
ground for divorce. He further submits that the learned trial court taking
note of the decision of the Apex Court in V Bhagat vs. D Bhagat (1994) 1
SCC 337 held that “because of series of mental torture made upon the
petitioner, he is entitled to seek a decree of divorce on the ground of mental cruelty
shown to him, particularly when the respondent though raised allegation of having
illicit relationship of the petitioner with the wife of his elder brother could not
convincingly prove before this court and hence, issue No. (II) is decided in favour
of the petitioner but against the respondent.”
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19. Before we examine the submission of the learned counsel for
the parties, it would be proper on our part to consider the word “cruelty”.
“Cruelty” is not defined in the Hindu Marriage Act. Thus, it would be
proper to consider the dictionary meaning of cruelty. Shorter Oxford
Dictionary defines “cruelty” as “the quality of being cruel; disposition of
inflicting suffering; delight in or indifference to another’s pain;
mercilessness; hard-heartedness”.
20. The term “cruelty” has been defined in Black’s Law Dictionary
(8th Edn., 2004)as under:
“Mental Cruelty.- As a ground for divorce, one spouse’s
course of conduct (not involving actual violence) that
creates such anguish that it endangers the life, physical
health, or mental health of the other spouse.”
21. As the learned trial court considered V Bhagat (supra) it would
be proper on our part to reproduce para 16 and 20 of the said report.
“16. Mental cruelty in Section 13(1)(i-a) can broadly be defined as
that conduct which inflicts upon the other party such mental
pain and suffering as would make it not possible for that party to
live with the other. In other words, 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. 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 and 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. It is a
matter to be determined in each case having regard to the facts
and circumstances of that case. If it is a case of accusations and
allegations, regard must also be had to the context in which they
were made.”
20. In the light of the principles enunciated hereinabove, we may
now examine whether the allegations made by the wife in her
written statement and the questions put by her counsel to the
petitioner in cross-examination amount to mental cruelty within
the meaning of the said sub-clause? The relevant portions of the
written statement have already been set out by us hereinbefore.
We have also set out in the said paragraph the explanatory
statement made by the respondent’s counsel in court in
Justification of the questions put by him to the petitioner in his
cross- examination. It is true that the said averments must be
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read in the context in which they were made. At the same time, it
must be remembered that the wife was merely defending herself
against what are, according to her, totally unfounded allegations
and aspersions on her character. It was not necessary for her to
go beyond that and allege that the petitioner is a mental patient,
that he is not a normal person, that he requires psychological
treatment to restore his mental health, that he is suffering from
paranoid disorder and mental hallucinations-and to crown it all,
to allege that he and all the members of his family are a bunch of
lunatics. It is not as if these words were uttered in a fit of anger
or under an emotional stress. They were made in a formal
pleading filed in the Court and the questions to that effect were
put by her counsel, at her instructions, in the cross-examination.
Even in her additional written statement she has asserted her
right “to make correct statement of facts to defend herself
against the wanton, imaginary and irresponsible allegations”.
These are not the mere protestations of an injured wife; they are
positive assertions of mental imbalance and streak of insanity in
the mental build-up of the husband. The husband is an Advocate
practicing in this Court as well as in Delhi High Court. The
divorce petition is being tried in the Delhi High Court itself.
Making such allegations in the pleadings and putting such
questions to the husband while he is in the witness-box, is
bound to cause him intense mental pain and anguish besides
affecting his career and professional prospects. It is not as if the
respondent is seeking any relief on the basis of these
assertions. The allegations against her may not be true; it may
also be true that the petitioner is a highly suspicious character
and that he assumes things against his wife which are not well
founded. But on that ground, to say that the petitioner has lost
his normal mental health, that he is a mental patient requiring
expert psychological treatment and above all to brand him and
all the members of his family including his grandfather as
lunatics, is going far beyond the reasonable limits of her
defence. It is relevant to notice that the allegations of the wife in
her written statement amount in effect to “psychopathic disorder
or any other disorder” within the meaning of the Explanation to
clause (iii) of sub-section (1) of Section 13, though, she has not
chosen to say that on that account she cannot reasonably be
expected to live with the petitioner-husband nor has she chosen
to claim any relief on that ground. Even so, allegations of
‘paranoid disorder’, mental patient’, ‘needs psychological
treatment to make him act a normal person’ etc. are there
coupled with the statement that the petitioner and all the
members of his family are lunatics and that a streak of insanity
runs through his entire family. These assertions cannot but
constitute mental cruelty of such a nature that the petitioner,
situated as he is and in the context of the several relevant
circumstances, cannot reasonably be asked to live with the
respondent thereafter. The husband in the position of the
petitioner herein would be justified in saying that it is not
possible for him to live with the wife in view of the said
allegations. Even otherwise the peculiar facts of this case show
that the respondent is deliberately feigning a posture which is
wholly unnatural and beyond the comprehension of a
reasonable person. She has been dubbed as an incorrigible
adulteress. She is fully aware that the marriage is long dead and
over. It is her case that the petitioner is genetically insane.
Despite all that, she says that she wants to live with the
petitioner. The obvious conclusion is that she has resolved to
live in agony only to make life a miserable hell for the petitioner
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as well. This type of callous attitude in the context of the facts of
this case, leaves no manner of doubt in our mind that the
respondent is bent upon treating the petitioner with mental
cruelty. It is abundantly clear that the marriage between the
parties has broken down irretrievably and there is no chance of
their coming together, or living together again. Having regard to
the peculiar features of this case, we are of the opinion that the
marriage between the parties should be dissolved under Section
13(1)(i-a) of Hindu Marriage Act and we do so accordingly.
Having regard to the peculiar facts and circumstances of this
case and its progress over the last eight years-detailed
hereinbefore-we are of the opinion that it is a fit case for cutting
across the procedural objections to give a quietus to the
22. In Savitri Pandey v. Prem Chandra Pandey, (2002) 2 SCC 73, the
Apex Court considered what should be mental cruelty and noted as
“Mental cruelty is the conduct of other spouse which causes
mental suffering or fear to the matrimonial life of the other.
“Cruelty”, therefore, postulates a treatment of the petitioner with
such cruelty as to cause a reasonable apprehension in his or her
mind that it would be harmful or injurious for the petitioner to
live with the other party. Cruelty, however, has to be
distinguished from the ordinary wear and tear of family life. It
cannot be decided on the basis of the sensitivity of the petitioner
and has to be adjudged on the basis of the course of conduct
which would, in general, be dangerous for a spouse to live with
the other.”

23. In Parveen Mehta V. Inderjit Mehta, (2002) 5 SCC 706, the Apex
Court again examined mental cruelty, particularly in paragraph 21 which
is as follows:
“21. Cruelty for the purpose of Section 13(1)(i-a) is to be taken as
a behaviour by one spouse towards the other, which causes
reasonable apprehension in the mind of the latter that it is not
safe for him or her to continue the matrimonial relationship with
the other. Mental cruelty is a state of mind and feeling with one
of the spouses due to the behaviour or behavioural pattern by
the other. Unlike the case of physical cruelty, mental cruelty is
difficult to establish by direct evidence. It is necessarily a matter
of inference to be drawn from the facts and circumstances of the
case. A feeling of anguish, disappointment and frustration in one
spouse caused by the conduct of the other can only be
appreciated on assessing the attending facts and circumstances
in which the two partners of matrimonial life have been living.
The inference has to be drawn from the attending facts and
circumstances taken cumulatively. In case of mental cruelty it
will not be a correct approach to take an instance of
misbehaviour in isolation and then pose the question whether
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such behaviour is sufficient by itself to cause mental cruelty.
The approach should be to take the cumulative effect of the facts
and circumstances emerging from the evidence on record and
then draw a fair inference whether the petitioner in the divorce
petition has been subjected to mental cruelty due to conduct of
the other.”
24. In view of the above decisions of the Apex Court, it can be
said that cruel treatment by one of the spouse to the other not
amounting to physical cruelty is actually mental cruelty. There is no
doubt that asking for shifting to a rented house for any reason cannot be
considered to be mental cruelty. In the instant case, admittedly the
appellant-wife in her written statement made allegation regarding the
extra marital relationship of the respondent with the wife of his elder
brother but could not prove the same. Such an allegation is serious in
nature particularly, when in our society wife of elder brother is called as
Boudi/Bhabhi and treated like mother. The allegation of adultery made
by the wife appellant and not proved is nothing but mental cruelty. It is
very easy to make a wild allegation of adultery but is difficult to prove.
25. In view of the above, we are of the opinion that the learned
Family Court did not commit any wrong granting the decree of divorce
on the ground of mental cruelty as such mental cruelty has been
established. It also appears from the judgment of the learned Family
Court that while granting the decree of divorce, he also directed the
respondent husband to give maintenance allowance of Rs. 4,000/- per
month to the daughter of the respondent w.e.f. 01.02.2012 and this
maintenance allowance of Rs. 4,000/- per month is to be sent to the
appellant through her savings bank account within the first 10 days of
every English calendar month. Therefore, it cannot be said that the
learned Family Court did not consider regarding the maintenance of
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their minor daughter. The respondent-husband shall comply with the
order of maintenance passed by the learned Family Judge in letter and
spirit and the same is maintained by us. Thus, it is not necessary on our
part to interfere with the order of the learned Family Judge.
26. In the result, the appeal is dismissed. No order as to costs. Send
down the LCR.