1. The present First Appeal, filed under Section 19 of the Family Courts Act, 1984, seeks to set aside the judgment and order dated 02.08.2022, as well as the judgment and decree dated 16.08.2022, passed by the Family Court, Almora in Divorce Petition No. 118 of 2018, Anand Singh vs. Champa Devi. By the judgment and decree dated 16.08.2022, the Family Court has rejected the divorce petition instituted by the appellant/husband under Section 13(1)(i) of the Hindu Marriage Act, 1955.

2. Brief facts of the case, as per record, are that the marriage between the appellant and the respondent was solemnized on 09.05.1997 according to Hindu rites and customs. Out of the said wedlock, the parties were blessed with two children i.e. one son and one daughter. Due to matrimonial discord, the appellant earlier filed Divorce Petition No. 149 of 2017, in which both parties arrived at a compromise through mediation. Thereafter, the appellant instituted Divorce Petition No. 118 of 2018 on the ground of cruelty, contending inter alia that pursuant to the compromise dated 10.11.2017, the appellant had been depositing ₹1500/- per month in the respondent's account; that, a separate room, kitchen, toilet, bathroom etc. were constructed and handed over to the respondent in the appellant's ancestral house at Village Matena, in compliance with the terms of compromise. However, soon after the compromise, the respondent allegedly began to abuse and harass the appellant and the minor children day and night, locked the entire house, and even assaulted the appellant's aged mother. In January-February 2018, due to the respondent's conduct, the situation became unbearable, forcing the appellant, his mother, and the minor children to shift temporarily to the restaurant of the appellant's brother at Kasardevi. The respondent frequently visited the said restaurant and allegedly created scenes by using abusive and derogatory language in front of customers.

3. The respondent filed her written statement in the divorce suit denying the allegations, stating that soon after their marriage after Diwali, the appellant left for Pune for employment, leaving the respondent at his village home, and returned only after three years; that, the appellant, his mother, and his brother allegedly treated her with cruelty and neglected their matrimonial obligations; that, after returning from Pune, the appellant and his younger brother jointly started a restaurant in Kasardevi, where the appellant now resides; that, as per the compromise dated 10.11.2017, the appellant agreed to provide her one room in the Matena house and pay ₹1500/- per month, which he did only partially; that, the appellant shifted his mother and children to the Kasardevi restaurant, keeping all other rooms in the Matena house locked, leaving only a small room for the respondent; that, the appellant continued to neglect his duties and obligations towards her; hence, he is not entitled to any relief.

4. On the basis of pleadings, the learned Family Court framed the following issues:

          (i) Whether the respondent has treated the appellant with cruelty? If so, its effect.

          (ii) Whether the appellant is entitled to the relief sought? If so, its effect.

          (iii) Whether the suit is barred by the principle of res judicata?

5. The appellant examined himself as PW1. In cross- examination, he admitted that the parties lived together in the village continuously from 1997 to 2017. PW2, Kundan Singh, stated that the appellant shifted with his minor children and mother to his brother's restaurant due to the respondent's conduct. According to PW2, the respondent used to beat the children and abuse the appellant's mother, and locked all rooms of the house. He further stated that the respondent visited the restaurant and insulted the appellant in front of customers using filthy language. PW3, Bhupal Singh Mehta, a taxi driver who regularly visited the restaurant, corroborated PW2's version. He stated that the respondent did not permit the appellant or the children to enter the ancestral house and frequently abused them. He further stated that the respondent used highly derogatory language in the presence of customers. The respondent examined herself as DW1 and reiterated the facts stated in her written statement. In cross- examination, she admitted the compromise dated 10.11.2017 and acknowledged receipt of ₹1500/- per month up to May 2020. She also admitted lodging complaints before authorities on 12.07.2017, where counselling took place. She stated that she has been living separately since 29.09.2017, and denied allegations of quarrelling, fighting, or misbehaviour. The learned Family Court held that though Matrimonial Suit No. 149 of 2017 had earlier been filed and compromised, the principle of res judicata does not apply to matrimonial proceedings. The trial court further held that the burden to prove cruelty lay on the appellant, which he failed to discharge and dismissed the divorce petition filed by the appellant.

6. Learned counsel for the appellant would submit that the Family Court failed to consider the material evidence, including the appellant's prior complaints dated 12.07.2017 to the District Magistrate, Mahila Police Station, Almora, and the S.D.M., wherein counselling was conducted; that the respondent left the matrimonial home with all her belongings on 29.09.2017; that pursuant to the compromise dated 10.11.2017, the appellant complied with all conditions depositing maintenance and constructing a separate living space for the respondent, which she herself admitted. Learned counsel would further submit that due to lack of space in the restaurant, the appellant and his minor children are compelled to study and sleep within the premises of the running restaurant, causing severe hardship. The appellant supports both children alone and continues to pay ₹1500/- monthly to the respondent. It is argued that after the compromise, the respondent's behaviour did not improve. Her continued abusive conduct forced the appellant to shift his family, given his poor financial condition. The respondent violated the compromise by repeatedly visiting the restaurant and using indecent language in front of customers.

7. It is contended that the parties have lived separately since 2017 with no cohabitation, and the Family Court wrongly concluded that cruelty was not proved. The respondent allegedly made contradictory statements regarding the appellant's employment at Kasardevi. PW2 and PW3, being independent witnesses, supported the appellant's case, yet their testimony was not duly appreciated.

8. It is further argued that the compromise dated 10.11.2017 had twofold implications: (i) any prior cruelty stood condoned; yet (ii) the respondent's insistence on separate residence and maintenance amounted to refusal of cohabitation, thereby causing mental cruelty. Reliance is placed on the judgment of the Hon'ble Supreme Court in Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511, which outlines parameters of mental cruelty and recognises irretrievable breakdown of marriage as relevant. Accordingly, it is prayed that the impugned judgment dated 02.08.2022 and decree dated 16.08.2022 of the Family Court, Almora be set aside and the divorce petition be allowed.

9. Per contra, learned counsel for the respondent supports the impugned judgment. It is submitted that the respondent lived in the matrimonial home while the appellant frequently left for Pune for employment. The respondent bore and raised the children largely in his absence. After returning from Pune, the appellant allegedly mistreated her and neglected his duties. He would further submit that the appellant is attempting to take advantage of his own wrong and is not entitled to any relief under Section 23 of the Hindu Marriage Act. It is asserted that the appellant failed to comply with the compromise conditions by disconnecting water and electricity at Matena, where the respondent lived alone. Counsel submits that the appellant never visited the respondent after the compromise and that the allegation of abuse at the restaurant is false. No material witness, including the appellant's mother or children, was produced to prove cruelty. Since both parties have been living separately after the compromise, there was no occasion for cruelty thereafter. Hence, the appeal lacks merit and deserves dismissal.

10. This Court has thoroughly examined the pleadings, the evidence on record, and the findings of the Family Court. After considering the material as a whole, it is clear that the relationship between the parties has broken down completely. They have been living separately since September 2017, and for more than seven years there has been no attempt or possibility of resuming cohabitation. Such a long and continuous separation, along with repeated allegations from both sides, shows that the marriage has become emotionally dead and practically unworkable. Under Section 13(1)(ia) of the Hindu Marriage Act, cruelty includes any physical or mental conduct that causes such pain, distress, or suffering that living together becomes impossible. The Supreme Court in Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511, laid down broad guidelines for determining mental cruelty, including continuous abusive or humiliating behaviour, refusal to discharge matrimonial obligations, long separation making the marriage beyond repair, and conduct that causes deep mental stress or insecurity.

11. Applying these principles to the present case, the testimonies of PW2 and PW3--who are independent witnesses and not related to the appellant--clearly show that after the compromise dated 10.11.2017, the respondent repeatedly went to the appellant's workplace, used abusive and insulting language in front of customers, and created disturbances. Her actions became so serious that the appellant had to shift his elderly mother and minor children to a small space inside a running restaurant for their safety and peace. The respondent has not been able to challenge or weaken this evidence during cross-examination.

12. Further, the appellant built a separate room and fulfilled the terms of the compromise--including paying ₹1500 per month--the respondent's behaviour did not improve. These repeated acts of verbal aggression, public insults, and disruption of peaceful family life even after compromise dated 10.11.2017 clearly amount to mental cruelty. The respondent's claim that the appellant neglected her while he was working in Pune cannot justify her later conduct. Once the parties reached a compromise in November 2017 and resumed living together on agreed terms, all earlier allegations are treated as condoned. However, any cruelty committed after the compromise becomes relevant and revives the appellant's earlier grounds for divorce. As held by the Supreme Court in Gurbux Singh v. Harminder Kaur, (2010) 14 SCC 301, cruelty after condonation revives the previous allegations and entitles the aggrieved spouse

13. The parties have been living separately for more than seven years. In Naveen Kohli v. Neelu Kohli, (2006) 4 SCC 558, the Supreme Court held that long and continuous separation, along with the absence of cohabitation, creates a presumption that the marriage has broken down beyond repair and causes mental cruelty to both spouses. Similarly, in R. Srinivas Kumar v. R. Shametha, (2019) 9 SCC 409, the Supreme Court observed that when parties have been living apart for many years with no possibility of reconciliation, forcing them to continue the marriage itself amounts to cruelty.

14. In the present case, the parties have been living separately since 29.09.2017. Serious allegations have been exchanged, litigation has continued for several years, and even mediation has failed. These circumstances clearly show that the marriage has irretrievably broken down. Although irretrievable breakdown is not an independent ground for divorce under the Act, the Supreme Court in Samar Ghosh, Naveen Kohli, and other decisions has held that such circumstances are relevant in deciding the issue of cruelty under Section 13(1)(ia) of the Hindu Marriage Act. The respondent has also made vague allegations that the appellant has an illicit relationship, but no evidence--oral or documentary--has been produced to support this serious allegation. As held in Vijaykumar Ramchandra Bhate v. Neela Vijaykumar Bhate, (2003) 6 SCC 334, reckless and unproven allegations of infidelity themselves amount to mental cruelty. The Family Court failed to appreciate that such baseless accusations seriously damage the appellant's reputation.

15. The Family Court further erred in rejecting the testimonies of independent witnesses PW2 and PW3 without giving proper reasons. Their statements were consistent, credible, and remained intact during cross-examination. The Court also overlooked the settled principle that cruelty is to be proved on the standard of preponderance of probabilities, not beyond reasonable doubt. The long and undisputed separation, the conduct of the respondent after the compromise, and the admitted fact that the parties have not cohabited since 2017 were all important circumstances that the Family Court failed to consider.

16. The Family Court also ignored the principle laid down in Bipinchandra Jaisinghbhai Shah v. Prabhavati, (1956) 2 SCC 382, which has been repeatedly reaffirmed by later judgments, that continuous refusal to cohabit and hostile conduct amount to desertion under Section 13(1)(ib) of the Hindu Marriage Act. In the present case, the essential ingredients of desertion--namely, the fact of separation and intention to desert (animus deserendi)--stand clearly proved from the admitted facts.

17. For all these reasons, this Court is of the view that the conduct of the respondent amounts to mental cruelty under Section 13(1)(ia) of the Hindu Marriage Act and that the long, continuous, and voluntary separation since 2017 satisfies the requirements of desertion under Section 13(1)(ib) of the Hindu Marriage Act.

18. Accordingly, the judgment and order dated 02.08.2022 and the judgment and decree dated 16.08.2022 passed by the Family Court, Almora in Divorce Petition No. 118 of 2018 Anand Singh v. Champa Devi are set aside. The appeal is allowed. A decree of divorce is hereby granted in favour of the appellant-husband under Sections 13(1)(ia) and 13(1)(ib) of the Hindu Marriage Act, 1955. The marriage solemnized on 09.05.1997 between the parties stands dissolved.

19. There shall be no order as to costs.