JUDGMENT - S.M. HAJARNAVIS, J.:---This is original petitioners appeal against a judgment and decree passed by the Judge of the City Civil Court, Bombay, dismissing his petition claiming judicial separation under section 10(1)(b) and a decree of nullity of the marriage under section 12(1)(c) of the Hindu Marriage Act, 1955. The parties to the petition knew each other from 1968 as they had occasion to travel together from Chembur to Flora Fountain where their respective offices were situate. It is the case of the petitioner-appellant that the respondent used to tell him that she was unhappy with her parents and brothers and she suggested to him that he should marry her. The petitioner initially told her that he was no inclined to marry her. He told her, after repeated requests by her, that he would like to marry a girl who was, at least, 4 to 5 years younger to him. The respondent assured the petitioner that she was younger to him by 4 to 5 years. It is the case of the petitioner that relying on this assurance, he agreed to marry her. The marriage was performed on 14th May, 1972 according to Hindu Vedic Rites and ceremonies. Four or five days after the marriage, the petitioner came across a certificate issued to her by the Secondary School Certificate Examination Board of Poona in which her date of birth was shown to be 15th December, 1935. With that date of birth, the respondent was definitely 4 to 5 years older to the petitioner who was born on 15th June, 1940. The petitioner confronted the respondent with the certificate of the Secondary School Certificate Examination. She told him that the date of birth recorded in the certificate was wrong and her father had already sworn an affidavit before a Magistrate stating that she was born on 15th December, 1941. It is the case of the petitioner that after persistent questioning by the petitioner, the respondent ultimately confessed that she was born on the date mentioned in the certificate. The petitioner was disturbed and got a shock. In fact, he actually cried and lost his mental peace. From that day, he ceased to have any marital relations with the respondent. He stated that he, however, went to Poona on 23rd May, 1972 as planned by them earlier for the purpose of honey-moon. The petitioner was disturbed and got a shock. In fact, he actually cried and lost his mental peace. From that day, he ceased to have any marital relations with the respondent. He stated that he, however, went to Poona on 23rd May, 1972 as planned by them earlier for the purpose of honey-moon. Originally, he had proposed to stay at Poona for honey-moon for 7 days, but because of the shock he returned earlier. Even at Poona, he did not have any marital relations with the respondent. It is the case of the petitioner that he would not have agreed to marry the respondent if she had told him her correct age. The petitioner, therefore, claimed that his marriage with the respondent should be annulled by a decree of nullity, on the ground that the consent of the petitioner was obtained by fraud, in as much as, the respondent had told the petitioner that she was younger to him by, at least, 4 to 5 years. The petitioner also claimed a decree for judicial separation under section 10(1)(b) on the ground that the respondent had treated the petitioner with such cruelty as to cause a reasonable apprehension in the mind of the petitioner that it would be harmful or injurious for the petitioner to live with the respondent. Some of the instances of cruelty cited by the petitioner are : (i) That the respondent did not hand over the entire salary which she was drawing to his elder brother towards the household expenses. She had handed over to him in the month of June 1972, Rs. 75/- and in the month of July 1972 Rs. 50/- only. She told him that he would have to accept what she was giving to him, and he had no business to ask an explanation from her. (ii) That the petitioners office hours were upto 5.30 p.m. and the respondents office hours were upto 5.00 p.m. but she used to return home at about 8 or 8.30 p.m. When the petitioner questioned her about it, she did not give any straight reply and continued to come late. (iii) The respondent was always defiant and arrogant towards him and with the members of his family. (iv) That she did not attend to any domestic work and was always finding fault with the members of the family. (iii) The respondent was always defiant and arrogant towards him and with the members of his family. (iv) That she did not attend to any domestic work and was always finding fault with the members of the family. (v) In December 1972, she went to the office of the petitioner and created a scene in as much as she shouted at the petitioner that she was driven out of the house by the petitioner while she was pregnant and this she did in the presence of the officers and the colleagues of the petitioner. It is the case of the petitioner that all these acts of the respondent amounted to cruelty which entitle him for a decree for judicial separation under section 10(1)(b). The petitioner, thereafter, gave a notice to the respondent and filed a suit claiming above-mentioned reliefs. The suit was resisted by the respondent. She denied to have told the petitioner that the real date of birth was one mentioned in the certificate of the Board of the Secondary School Certificate Examination. She stated that her real date of birth was one mentioned in the affidavit sworn by her father. She denied that she had told the petitioner that she was miserable at her house with her parents. It is the petitioner himself who had told her that he was not treated well by his brothers and that he was not getting good food and that he wanted an independent residence and wanted to marry her. As they came to know each other well, they agreed to marry and that is how the marriage was celebrated. So far as the cruelty part is concerned, she denied to have acted in the manner alleged by the petitioner. She stated that it was the petitioner who was making demands from her for money even prior to the marriage and she had, in fact, advanced him money before the marriage. A few days after the marriage, the petitioner suggested to her to transfer the flat owned by her in his name or in the name of any member of his family. The respondent refused to do so and that is why there were frictions between the petitioner and the respondent. The petitioner, therefore, drove away the respondent from his house on 16th April, 1972. She denied to have gone to the office of the petitioner in December 1972. The respondent refused to do so and that is why there were frictions between the petitioner and the respondent. The petitioner, therefore, drove away the respondent from his house on 16th April, 1972. She denied to have gone to the office of the petitioner in December 1972. She stated that the members of the petitioners family also did not treat her well. On these averments, the learned Judge framed necessary issues and the parties led evidence in support of their claim. The petitioner examined himself, his brother Sundardas and one Raghuvirsingh Arora, a co-employee in his office. The respondent also examined herself, her brother-in-law and Kisanchand Vaswani in support of her case. At the trial, the petitioner did not press his claim for a decree of nullity. Monday the 25th April, 1977 The learned Judge held that the petitioner did not prove that the respondent treated him with such cruelty as to cause a reasonable apprehension in his mind that it would be injurious or harmful for the petitioner to continue to reside with the respondent. He held that the petitioner has not established that (i) the respondent used to come late home from the office, and (ii) her alleged small contribution every month towards family expenses and her reply for not contributing more did not amount to an act of cruelty. He held that the petitioner has not proved that the respondent was not doing the household duties. He disbelieved the petitioners story that the respondent had gone to the office of the petitioner in the month of December 1972 and had shouted at him and had created a sense in the office. He also held that the petitioner has not proved that the respondent was disrespectful to the members of the petitioners family. Consistent with these findings, he dismissed the petition with costs. It is against this judgment and decree that the present appeal has been filed. Mr. T.C. Chhaproo, the learned Counsel for the appellant, took me through the petition, the evidence and the judgment of the trial Court. Consistent with these findings, he dismissed the petition with costs. It is against this judgment and decree that the present appeal has been filed. Mr. T.C. Chhaproo, the learned Counsel for the appellant, took me through the petition, the evidence and the judgment of the trial Court. He urged that the appellant was entitled to urge his claim for a decree for nullity on the ground of fraud because section 12(1)(c) has been amended and the scope for claiming the decree of nullity has been enlarged, and, therefore, the petitioner can claim a decree for nullity not only on the ground of fraud as to the nature of ceremony but also as to any material facts or circumstances concerning the respondent. He submitted that his Counsel at the trial Court had conceded that he did not want to claim a decree for nullity because under the unamended Act, the fraud was confined only to the nature of the ceremonies that were undergone but now he can claim the decree for nullity on the ground of fraud in respect of any material facts and circumstances concerning the respondent. There is substance in this argument but, unfortunately, there is no reliable evidence in respect of the fraud which is alleged to have been committed by the respondent on the petitioner. It was pleaded by the petitioner that before he agreed to marry the respondent he had made it clear to her that he wanted to marry a girl who was, at least, 4 to 5 years younger to him and she had assured him that she was, in fact, 4 to 5 years younger to him. He has pleaded that he came to know from her Certificate of Secondary School Certificate Examination that she was, in fact, older to him. There is no other evidence except his statement about the conversation that took place between the petitioner and the respondent. No certified copy of the birth certificate has been produced in this particular case as it appears that the respondent was born in Sindh before the partition in 1947-48. It was not, therefore, possible to obtain a certified copy of the birth certificate. No certified copy of the birth certificate has been produced in this particular case as it appears that the respondent was born in Sindh before the partition in 1947-48. It was not, therefore, possible to obtain a certified copy of the birth certificate. The respondent has stated that the date given in the certificate was not correct and her father had sworn an affidavit stating her date of birth and from that affidavit, it could be seen that she was younger to the petitioner and that the date given in the certificate was wrong. She stated on oath that, in fact, she was younger to the petitioner. This is a case of oath against oath but there are circumstances which clearly show that the petitioner and the respondent were intimate with each other, at least, for 5 years before their marriage. There is also evidence to show that the petitioner had dealings with the respondent and that he also used to visit her mother and brother prior to the marriage. Under these circumstances, it is not possible to accept the petitioners statement that he relied only on the respondents version regarding her age and that any fraud was committed in respect of the age of the respondent. The petitioner was very intimate with the respondent and they used to go together from Chembur to Fountain, at least, a few years before their marriage. It is also an admitted position that the petitioners sisters had gone to the house of the respondent for negotiations regarding the marriage. Under this circumstances, it cannot be said that any fraud was committed by the respondent. So far as the cruelty is concerned, the incidents which are stated by the petitioner do not amount to cruelty at all. The trial Judge was also right in holding that none of these incidents have been established. The petitioner has stated that the respondent used to come late home from the office. He stated that her office hours were from 10.00 a.m. to 5.00 p.m. and she used to return home at 8.00 or 8.30 p.m. and when an explanation was asked by him and his elder brother, she gave rude replies. The respondent has stated that after the marriage her husband used to come to her office and they used to go home together. She stated that the petitioners office and her office are at Flora Fountain. The respondent has stated that after the marriage her husband used to come to her office and they used to go home together. She stated that the petitioners office and her office are at Flora Fountain. His office hours were from 10.30 a.m. to 5.30 p.m. and after the office hours, he used to go to her office and then they used to go for a walk. Then they used to get a bus and then went to Chembur. She has also stated that sometimes they use to get bus early and sometimes they used to wait for the bus for an hour or so. She stated that the bus takes about one hour to go to Chembur. If that be so, even if she could get a bus immediately after her office hours, she could not reach Chembur before 7 Oclock. Both the petitioner and his brother Sundardas had admitted that it took about one hour to go to Chembur. They have also admitted that some times one had to wait, at least, an hour for a bus. That being the position, it cannot be said that the petitioner used to reach late home after the office hours. The learned Judge was also right in holding that soon after the marriage, the petitioner normally would have gone to the respondents office and then the petitioner and the respondent would have returned home together. The learned Judge has not accepted the evidence of the petitioner and his brother that the respondent gave rude replies when explanations were asked. This allegation regarding the reaching home late and rude replies were rightly rejected by the trial Court. Regarding the payment that she paid out of her salary towards the household expenses, the petitioner has stated that it was he who had asked her why she had contributed less amount towards the household expenses. While Sundardas, the elder brother of the petitioner, has stated that it was he who had asked her why she had contributed less amount and then she gave rude replies. In view of these two different versions, it is not possible to accept the allegations made by the petitioner. Then again, if she had to pay towards the household expenses, normally the newly wedded girl would hand over the salary to the husband and not to his brother even for the household expenses. In view of these two different versions, it is not possible to accept the allegations made by the petitioner. Then again, if she had to pay towards the household expenses, normally the newly wedded girl would hand over the salary to the husband and not to his brother even for the household expenses. That being so, the learned Judge was right in discarding the evidence of the petitioner on this point also. So far as her refusal to do household work is concerned, the respondent brought out in the cross-examination of the petitioners witnesses that the wife of the elder brother of the petitioner used to leave house at 6 Oclock in the morning as she was engaged as a teacher in some school and the respondent used to leave the house at about 9 Oclock. It is the case of the respondent that it was, therefore, she who had to cook in the morning and not the wife of the brother of the petitioner. She submitted that she never refused to do household work. There is no reason why her statement should not have been accepted by the trial Judge. Another incident which the petitioner alleged was that the respondent had gone to his office some time in December 1972 and shouted at him and created a scene in front of his colleagues and officers. He examined one Mr. Arora, his co-employee, in support of his case. It is an admitted position that the respondent left the house of the petitioner at the dictation of the petitioner on 16th July, 1972 and from that time she had never visited either the petitioners house or his office. The learned Judge has not accepted the evidence of the petitioner and his co-employee Mr. Arora. Nothing has been brought out why months after she had left the house of the petitioner that she should to the petitioners office and shout at him. If she had to take revenge against him, she would have done it in the month of July or August 1972. The fact that she did not do so for months shows that this story is an after-thought and the learned Judge was, therefore, right in rejecting that story. I have already stated that the allegations regarding her rude behaviour cannot be accepted. The fact that she did not do so for months shows that this story is an after-thought and the learned Judge was, therefore, right in rejecting that story. I have already stated that the allegations regarding her rude behaviour cannot be accepted. Nothing has been shown why she could be rude immediately after the marriage towards her husband and his elder brother when the petitioner and the respondent carried on their courting years before the marriage. None of these allegations have been established. The learned Judge has found that none of these allegations have been established and they do not establish any cruelty on the part of the respondent. The learned Judge was, therefore, right in rejecting the petition on the ground that the petitioner has not established cruelty on the part of the respondent. The appeal is without any substance and deserves to be dismissed. In the result, the appeal is dismissed with costs. -----