R. K. MAHAJAN, J. ( 1 ) THIS common judgment disposes of these appeals. ( 2 ) IN First Appeal No. 358 of 1996 the husband has questioned the validity of the order dated 8-7-1996 passed by Sri Surendra Pratap Mishra, Family Judge, Allahabad in Matrimonial Petition No. 361 of 1991 allowing the petition of the wife filed under Section 13 of the Hindu Marriage Act (hereinafter referred to as the Act) on the ground of desertion by the husband and granting a decree of Rs. 12,000. 00 towards price of the scooter and Rs. 500. 00 as alimony per month. The wife, being not satisfied with that part of the order refusing to grant a decree in her favour in respect of other properties claimed by her, has filed First Appeal No. 337 of 1996 for setting aside the order to that extent. ( 3 ) MATRIMONIAL petition No. 6 of 1991 was filed by the wife under Section 13 of the Act alleging, inter alia, that her marriage was settled by negotiations of the parents of both sides during which served demand of dowry were made by her husband and his other family members; that as her parents wanted to discharge their liabilities of her marriage at the earliest, they any how agreed to fulfil the demands made and spent more than Rs. 80,000. 00 in the marriage and also gave several articles, ornaments and valuables (cash and kind) and her marriage was solemnized according to Hindu Vedic rites on 6-5-1987 at Allahabad; that Vidai took place on 7-5-1987 and she went to reside at the residence of her husband where she lived upto 21-6-1987; that she found her husband and his other family members greedy who made a further demand of colour T. V. Refrigerator and some other ornaments besides a cash of Rupees 10,000/-; that her father any how managed and gave Rs. 10,000. 10,000. 00 in the first week of June, 1987 but could not fulfil other demands; when her parents could not fulfil the said further demand her husband and his other family members started torturing her of the pretext or the other, treated her with physical and mental cruelty including mercilessly beating; that her husband and his other family members did not agree for her Vidai from their residence but on the repeated requests of her father they anyhow agreed and on 21-6-1987 she returned to her Maika along with her father only with a suitcase containing few clothes of daily use; that her husband has kept all the articles, ornaments and valuables (cash and kind described in Schedule A, B. and C) which were given at or about the time of marriage as its consideration; that repeated attempts for her Vidai from Maika were made by her parents but her husband and his other members of the family did not agree to keep her as Bahu of their family until and unless further demands are fulfilled; that she later gathered that her husband has got illicit relations with a lady residing in the District Gaya of the State of Bihar and that he had married her only for satisfaction of the members of his family and to extract heavy amount and other valuables from her parents; that despite repeated requests her husband did not agree for her maintenance although he is working as a clerk in Civil Court, Allahabad; that the treatment of the husband has caused a reasonable apprehension in her mind that it will be not fit and proper for her to live with her husband, who has also deserted her for a continuous period of more than two years; thus she is entitled to get her marriage dissolved by a decree of divorce on the grounds of cruelty and desertion and a decree for the return of the articles described in schedules A, B and C. ( 4 ) THE defence of the husband in his written statement was to this effect :- The marriage was fixed by her father and his elder brother who was friend of her father and at that time he was doing advocacy but now P. C. S. (J) Munsif-Magistrate without any dowry; that there was no exchange of any kind nor had her father had given any article or rupee to him or the members of his family either before the marriage, during marriage or thereafter or at the time of her Vidai; that it is wrong to state that any asset was given by her father in the first week of June, 1987 either to him or the members of his family; that all the members of his family were (sic) giving her all respect and love like daughter of their own house; that he also respected her and gave love but because of her obstinate nature she behaved with him and the members of his family in an uncivilised, cruel and hard way and tortured them mentally; that she has been pressurising him to live along with her parents after leaving his family which he never accepted; that similar pressure was also put on him regularly by her parents; that after her Vidai from her Maika since 7-5-1987 no one came for taking her rather she alone taking all the articles, jewelleries, rupees, clothes worth in all Rs. 64,000. 00 left for the house of her parents alone at 10. 00 a. m. of 21-6-87 stating that she will never return back and that she later declared that she had performed another marriage and has become of someone else; that as described in schedules A to C no article or rupee was ever given to any member of his family by her parents; that at no point of time he has any relationship with any other woman and the statements to the contrary the imagination of her brain; that she never wanted to live along with him and that she being B. A. , B. Ed has got a great proud on her ability and the properties of her parents worth about more than Rs. 12 lacs which she and her three sisters, in the absence of any brother, will be entitled to inherit; that she started giving threats to him and the members of his family telling that she is a woman and she will implicate all of them in false cases and ruin the life of whole family as a result of which his entire family members became apprehensive and worried; that in the petition filed under Section 125 of the Code of Criminal Procedure, which is pending in this very Court, on 11-1-1990 she stated that she desires divorce; that he is entitled to the articles or other valuables described in paragraph 36 from her. ( 5 ) TO support her cause the wife examined herself as P. W. 1 and her father Ram Murti Shukla as P. W. 2 The husband also examined himself as D. W. 1. The wife also filed certain receipts, copy of the scooter registration Transport Office Allahabad including an application and marriage invitation card. ( 6 ) THAT learned Family Judge formulated the following four issues :- (i) Whether the defendant has treated the petitioner with cruelty ? If so, its effect ? (ii) Whether the petitioner is entitled to the relief under Section 27 of the Hindu Marriage Act ? If so, its effect ? (iii) Whether the defendant is entitled to any relief ? If so, its effect ? (iv) To what relief, parties are entitled ?he also made endeavours for a compromise. If so, its effect ? (ii) Whether the petitioner is entitled to the relief under Section 27 of the Hindu Marriage Act ? If so, its effect ? (iii) Whether the defendant is entitled to any relief ? If so, its effect ? (iv) To what relief, parties are entitled ?he also made endeavours for a compromise. But the judgment impugned he recorded following findings while holding the wife entitled to the grant of decree for divorce and a further decreein regard to Priya scooter or its value to the tune of Rs. 12,000/- besides alimony of Rs. 500. 00 per month from the date of his judgment till her re-marriage :- (i) The husband though in his application dated 11-1-1990 (12/ga) filed in section 125 Cr. P. C. proceedings has stated while relying upon the statements made by the wife (12/g/5 to 12 G/8) that he has got no objection to the severance of marital relationship. (ii) Here this fact will be important that the husband has also filed a petition for divorce bearing No. 428 of 1991, which he withdrew. (iii) The wife has not stated about the cruel behaviour of the husband in regard to giving of T. V. Fridge, Jewellery and cash in dowry. (iv) From the evidence of both sides it is proved that since 21-6-1987 the husband has deserted the wife. (v) The wife has stated of no physical relationship by the husband but such a statement has not been made in the petition and thus shall not be received in evidence in regard to the cruelty, yet the desertion by the husband of the wife is fully established and accordingly she is entitled for the grant of divorce. (vi) It is established that Priya Scooter (1987 model) No. U. N. P. 185 which was earlier in the name of Sri Desai was registered in the name of the wife on 16-6-87 and on 21-8-1987 registered in the name of husband. The wife was the prior owner of the said scooter. (vii) Though the wife has filed three receipts in relation to jewelleries (two rings, a pair of ear-rings a pair of Payal) but they have not been proved hence cannot be accepted in evidence. As P. W. 1 she has not stated to have received any jewellery from her father-in-law side. (vii) Though the wife has filed three receipts in relation to jewelleries (two rings, a pair of ear-rings a pair of Payal) but they have not been proved hence cannot be accepted in evidence. As P. W. 1 she has not stated to have received any jewellery from her father-in-law side. (viii) Though the husband as D. W. 1 has stated that her mother had given jewelleries to his wife but he has not given any description. (ix) The wife as P. W. 1 has not stated that she has left her entire jewelleries at Maika. Accordingly only the giving of Priya scooter alone from the wifes side stands proved whose value has been mentioned in Schedule A as Rs. 12000. 00 which she is entitled to get back. (x) Though the husband has claimed that his mother had given jewelleries and clothes worth Rs. 64000. 00 to the wife but no description of such articles has been mentioned either by him examined as D. W. 1 or D. W. 2 nor has he stated about the value in rupee of the jewelleries. He has also not paid Court fee. Accordingly he is not entitled to receive back any articles from the wife. (xi) The wife has no independent income whereas on the contrary the husband is a clerk in the Civil Court, Allahabad. ( 7 ) SRI. R. K. Pandey, learned counsel appearing on behalf of the husband, contended as follows :- (i) The wife had failed to make out any ground for divorce as contemplated under Section 13 of the Act. Even the Family Court Judge has recorded a categorical finding that the wife has failed to prove the cruelty. Neither P. W. 1 nor has her father stated anything about cruelty. According to section 13 (1) (vii) Explanation desertion means desertion of the applicant by other party without reasonable cause and without the consent or against the wish of such party and includes wilful negligence of the applicant. The wife has been living separately of her own without reasonable cause and without his consent. The husband was and is still ready to keep her with due honour and respect. Accordingly the findings without any valid pleading in regard to desertion is vitiated. The Court cannot grant divorce merely on the ground of irretrievable break down of the marriage without anything more. The husband was and is still ready to keep her with due honour and respect. Accordingly the findings without any valid pleading in regard to desertion is vitiated. The Court cannot grant divorce merely on the ground of irretrievable break down of the marriage without anything more. In this context reliance was placed on Smt. Saroj Rani v. Sudarshan Kumar Chandra, AIR 1984 SC 1562 and V. Bhagat v. Mrs. D. Bhagat, AIR 1994 SC 710 (ii) Even though the wife in her petition has not claimed maintenance, the Court below proceeded to award maintenance. No issue was framed in this regard nor was any evidence led. Accordingly, the decree in regard to the maintenance, which is thus illegal, is liable to be set aside. The basic salary of the husband is only Rs. 1150/- who was directed to pay a sum of Rs. 3000. 00 per month towards maintenance of his wife in proceedings under Section 125 of the Code of Criminal Procedure. Thus, maintenance of highly excessive amount was illegal and arbitrarily granted. It is a settled law that no relief can be granted which is neither pleaded nor proved vide Sita Ram v. B. Jado Rai, AIR 1932 Allahabad 353, M/s. Trojan and Co. v. R. N. N. Nagappa Chettiar, AIR 1953 SC 235 and Appa Trimback Deshpandey v. Waman Govind Deshpandey, AIR 1941 PC 85 (iii) Nothing was mentioned by the wife regarding the alleged scooter. (iv) The counter claim of the husband has been wrongly rejected on the ground that court fee has not been paid though it was paid on 19-2-94/4-4-94 which is paper No. 19/ga. The wife in paragraph 8 of her application and the affidavit under Section 27 of the Act has admittedthat articles mentioned, in scheduled D worth Rs. 64,000. 00 were received by her. In this view of the matter the counter claim of the husband was wrongly disallowed. (v) The three schedules were incorporated after amendment, the application through which it was made was not verified and was liable to be rejected. (vi) The allegation of illicit relationship of the husband with an imaginary girl was not proved by the wife which as per the Division Bench decision of Calcutta High Court in Tapan Kumar Chakrabarty v. Smt. Jyotsna Chakrabarty, AIR 1997 Cal 134 was a cruelty on the part of the wife herself. (vi) The allegation of illicit relationship of the husband with an imaginary girl was not proved by the wife which as per the Division Bench decision of Calcutta High Court in Tapan Kumar Chakrabarty v. Smt. Jyotsna Chakrabarty, AIR 1997 Cal 134 was a cruelty on the part of the wife herself. (vii) A forged and manipulated document not admissible in evidence was relied upon in regard to the scooter. Accordingly his appeal No. 358 of 1996 is fit to be allowed and that of the wife bearing No. 337 of 1997 is fit to be dismissed. ( 8 ) LEARNED counsel appearing on behalf of the wife contended as follows :- (i) From the material on the record it is clear that both sides wanted divorce from the very beginning though for separate grounds. No effort was made by the husband to take her back with honour. There is no such pleading either to this effect. (ii) An advertisement was also published during this period in regard to marriage of the husband. (iii) The Family Court Judge without considering the receipts has rejected her claim for return of her stridhan properties detailed in the schedules. His findings that those receipts are not admissible are erroneous inasmuch as in the proceedings before Family Court such technicalities and/or hyper technicalities do not apply. She as well as her father had proved in their evidence that they had given articles and ornaments as per the list which was withheld by the husband. For the reasons aforementioned her appeal be allowed and that of her husband be dismissed. ( 9 ) BEFORE we proceed to consider rival arguments, we put on record that we made endeavours for an amicable settlement between the parties by asking them to be present before us and making deliberations but we failed. Thereafter we have heard the learned counsel for respective parties and gone through the broader submissions made by them and we are of the considered view that the learned Family Court has erred on facts as well as law in passing a decree of divorce, on the following reasonings :from the statements of wife/petitioner and the husband/respondent in original petition for divorce filed by the wife, the following broader facts are proved after taking into consideration the preponderance of prohabilities in the case. The reference would be first made to the statement of the wife. The reference would be first made to the statement of the wife. She has stated that she stayed at the house of her in laws for 11/2 months but further she makes a very funny statement rather verges on the unbelievable facts when she states that she did not have any physical contact with her husband. In other words she says that her marriage was not consummated. On the other hand the husband who appeared as a witness has stated that he has been cohabiting with his wife the petitioner during her stay at his house. He has made further statement that she used to go to her parents house off and on and used to stay there up to 10 to 11 p. m. at nights. It may be pointed out that the distance is not far of between the parents house and in laws house as admitted by both of them during the course of our negotiation meetings. It was also unreasonable conduct on the part of the wife to stay unreasonably in her parents house when she was married. ( 10 ) THERE is also one more disturbing factor rather imputation and that is that when she stated on oath in the Court as well as in the petition that her husband has married a lady in Gaya and there are children from her. Even she admitted this factor during our negotiation meetings. But since she has failed to give name of any such wife/lady with whom adultery is alleged and it is also alleged that even children are there which factor was not impleaded in the case, the same cannot be taken into account for want of evidence. ( 11 ) NOW coming to the new fact, in this case it is in the evidence of the respondent that there is step mother of the husband but he has taken separate house for which there is no controverted version, the wife could have reasonably lived in that house. It appears that some litigation took place under Section 125 Cr. P. C. , which fact has not been denied during negotiation proceedings and otherwise also it is on the record. The husband made an offer that he is ready to keep her provided she withdraws all the proceedings. It appears that some litigation took place under Section 125 Cr. P. C. , which fact has not been denied during negotiation proceedings and otherwise also it is on the record. The husband made an offer that he is ready to keep her provided she withdraws all the proceedings. This was stated by Sri Prem Chandra Pandey in his statement and an application making this offer is also on the record. It appears from the record that the wife opposed it on the ground that she has already fileda petition for divorce. ( 12 ) THE another new factor worth mentioning is that the wife appears to be highly qualified having post graduation degree whereas the husband is simply a graduate. She is also in the employment. In our view there appears to be some difference of intellectual adjustment but to keep the married life happy, this adjustment has to be made by the husband and wife both as the case may be, as it is not possible to have all things in this word. The principle of give and take has to be followed. ( 13 ) IT has been argued by the learned counsel for the respondents that an advertisement was issued for second marriage which has been placed on the record. The husband father has denied the same half heartedly when he appeared as witness in the Court. The advertisement is dated 2-7-1992, after the wife left the in laws house on 21-6-87 Even if this letter was admitted to be true for the sake of arguments, this has no bearing as the second marriage has not been proved. The advertisement must have been issued on account of desperate frustration and helplessness of the parents. ( 14 ) THERE is one more interesting factor regarding the stoppage of operation of the Bank Account in the State Bank of India as is apparent on the record. From the evidence on record it appears that a joint F. D. R. was being operated but after she left the husband he has issued instructions to stop it. It is not an unnatural conduct. In, our considered view when the wife has levelled wild allegations against the husband that he has illicit relations with some lady at Gaya, it amounts to cruelty under Section 13 (i) (a) of Hindu Marriage Act. It is not an unnatural conduct. In, our considered view when the wife has levelled wild allegations against the husband that he has illicit relations with some lady at Gaya, it amounts to cruelty under Section 13 (i) (a) of Hindu Marriage Act. We are also of the considered view that the marriage can be dissolved on the grounds mentioned in Section 5 read with Sections 12 and 13 of Hindu Marriage Act. There is no pleading in respect of non-consummation of marriage and it cannot be looked into under Order VI Rule 2 of C. P. C. as it would amount to variance of pleadings and proof. The learned Judge has harboured on the theory of non consummation of marriage which is not warranted under law nor is it the case of the petitioner. The father of the wife has also stated that there was no talk between him and the daughter about non-consummation of the marriage. The wife has been falsified on this ground also. We also do not find any evidence that the wife has been treated with cruelty by the husband. We are also of the view that there is no evidence that the petitioner is deserted. The husband has made a reasonable offer during the proceedings under Section 125 Cr. P. C. to patch up the matter but the wife was adament not to do so. The husband who also had filed a petition for divorce and has withdrawn the same. The husband is a Government Servant and he cannot be supposed to have behaved in such a manner which is unbecoming on the part of a Government Servant towards his family. To us the wifes conduct seems to be unreasonable. We thus, find no force in the reasonings of the learned Family Judge and his findings regarding grant of divorce are based on no evidence as well as wrong approach in law and are not warranted under Section 23 of the Act provides that divorce cannot be granted unless the ground for the same exist and further that the Court has to see that the defaulting party is not taking undue advantage of it. In the instant case we are of the view that the wife is defaulting party and there is no ground for divorce. Therefore, in our considered opinion husbands appeal is liable to be allowed. In the instant case we are of the view that the wife is defaulting party and there is no ground for divorce. Therefore, in our considered opinion husbands appeal is liable to be allowed. ( 15 ) NOW coming to the appeal No. 337 of 1996 filed by the wife setting aside the order impugned to the extent it has refused to grant a decree in her favour in respect of other properties claimed by her, it may be mentioned that the wife appears to have sought the return of articles and ornaments alleged to have been given to her at the time of marriage described in Schedule A, B and C and has assailed the impugned order on the ground that the learned Judge Family Court has not recorded finding in respect of ownership of these properties and has erred not returning the same to her. She has also challenged that the amount of Rs. 500/- as alimony per month is a very meagre amount and quite insufficient. 15a The husbands grievance in this regard is that his counter claim be allowed to the extent of Rs. 64,000. 00 as the articles and ornaments etc. belonging to him were taken away by the wife. The husband has also assailed the findings of learned Judge Family Court regarding the maintenance. His submission in this regard is that there was no prayer for the grant of maintenance and his basic pay is Rs. 1150. 00 and as such he is a very low paid employee and thus after making payment of Rs. 500. 00 as maintenance under the Hindu Marriage Act and Rs. 300. 00 u/s. 125 Cr. P. C. month,it will not be possible for him to maintain himself. ( 16 ) WE have perused the statements of wife, husband, brother of the husband and father of the wife. From the evidence it appears that no ornament was given at the time of marriage but later on when she returned to inlaws house an ornament of gold was given being 8. 1 Tolas. The husband asserts in his statement that she has taken belongings worth Rs. 64,000. 00 to her parents house and the Scooter also belongs to him. The Family Court as referred above has given only decree of Rs. 10,000. 00 towards the price of Scooter. 1 Tolas. The husband asserts in his statement that she has taken belongings worth Rs. 64,000. 00 to her parents house and the Scooter also belongs to him. The Family Court as referred above has given only decree of Rs. 10,000. 00 towards the price of Scooter. Without entering into the legal aspect of the matter as to what order should be passed when decree of divorce has not been granted we would like to refer to the provisions of Section 27 of the Hindu Marriage Act. Section 27 lays down as under :"27 Disposal of property :- In any proceeding under this Act, the Court may make such provisions in the decree as it deems just and proper with respect to any property presented, at or about the time of marriage, which may belong jointly to both the husband and the wife. "there is no bar in order to cut short the litigation and also to give true and meaningful interpretation to this Section to file an application by the wife for return of Stridhan property. It is not intention of the Legislature to drag her into civil Court. The parties may make claim and counter claim regarding property which may belong jointly to the husband and the wife and the application can be disposed of under Section 27 Since we are not passing the decree of divorce and we want to preserve the marriage as such it will be an exercise in futility and rather it would create more disharmony than peace if a finding is given on the return of the property. We would also not like to give any finding regarding ownership of the Scooter. We set aside the finding of the family Court regarding return of the price of the Scooter in view of the above discussions and non-passing of any decree of divorce. ( 17 ) WE are also of the view that wife is getting Rs. 2100. 00 per month salary as is evident from the record and once in such a situation income of the husband after deductions is not more than Rs. 1150. 00 it will be injustice to the husband when wife is earning and she is at default to grant her alimony of Rs. 500. 00 specially when the husband is prepared to keep her with him. 1150. 00 it will be injustice to the husband when wife is earning and she is at default to grant her alimony of Rs. 500. 00 specially when the husband is prepared to keep her with him. ( 18 ) IN the result we hereby allow the First Appeal No. 358 of 1996 filed by the husband and set aside the impugned order dated 8-7-1996 We dismiss the First Appeal No. 337 of 1996 filed by the wife. There shall be no order as to costs. ( 19 ) BINOD KUMAR ROY, J : -. I wholly agree. Order accordingly. .