JUDGMENT - N.J. PANDYA, J.:---Respondent of the Marriage Petition No. A-212 of 1995 of the Family Court No. 1 at Pune has filed the present appeal as the trial Court by its judgment dated 31st May, 1997 has granted the decree of divorce on the ground of cruelty and desertion under section 13(1), 1-A and 1-B of the Hindu Marriage Act, 1955. 2. Facts of the case are hardly in dispute so far as various events are concerned. The marriage has taken place on 28th April, 1965 and at that time they were residing at Mahim within the city of Mumbai. Thereafter on 28th June, 1965 a flat being Flat No. 9-B, Rose Blossom was purchased. Fourteen years thereafter a shop being Shop No. 10 was also purchased. In the year 1983 the appellant has filed a complaint with the police as per Exh. 95. 3. According to the respondent husband, in that very year on filing of the complaint he left the matrimonial home and has been residing separately since then. So far as the residence is concerned, he has claimed that he is staying in the said shop which was purchased in year 1979. 4. The petition being Petition No. 212 of 1995 is filed in the year 1995. As rightly pointed out by the other side, in their written statement, the respondent wife has reiterated her allegations of petitioner having relation with another woman in para 6 page 67 of the paper book. In the appeal memo also this ground is reiterated in the year 1997. 5. However, so far as the point of delay is concerned, as urged on behalf of the appellant wife, it is to be seen on the basis of petition as filed. 6. The ground of cruelty as raised in the petition rests on the instance of 1983. 7. Some how or the other, the learned trial Judge is too much impressed by this event of complaint and has passed the order though it was his legal duty as cast on the trial Court under section 23(1)(b)(b) of the Hindu Marriage Act, 1955 that before passing decree, he has to keep the legal embargo in the form of delay etc., as set out in the aforesaid provisions in mind, and if, the requirements are attracted no decree can be passed even though ground may have been made out. 8. 8. For the time being, we keep aside the aspect because, as rightly submitted on behalf of the other side, this question would arise provided that cruelty is established. On this point, according to the appellant wife, the petitioner husband before the trial Court has miserably failed. Even though he had failed, the trial Court, unfortunately did not take into consideration the relevant material like passage of 12 years, receipt of magazines and correspondence etc. in the name of the husband at the place where the wife resides and other factors emanating from that and particularly deposition of the Chairman of the Society Raghuvir Narayan Aras at page 83. This witness is examined by the husband. In the cross examination, para 4 at page 85, the witness says that the petitioner husband is not residing in the Shop No. 10 and he further asserts that the society will never allow its members to reside in a business premises, as per the rules of the society. 9. This will knock down the case of the petitioner husband that being account of cruel behaviour of the wife had stopped residing with her since 1983 and had started living in the said Shop No. 10. 10. It has come on record that three days in a week he used to go to Pune, where he was running another dispensary and an eye clinic. During the four day's period that he would be in Mumbai, he had to stay somewhere and he was not staying in Shop No. 10, as categorically stated by the said Chairman of the society, obviously the statement of the wife has to be accepted on preponderance of probability. Facile explanation given by the husband that because of the complaint he was not staying in the flat and was peppering over the entire period of 12 years without giving any details whatsoever, in our opinion, cannot be accepted. 11. Assuming for the time being that what he says is correct, if critically examined, it would clearly indicate that it was not the wife who had withdrawn herself from the society of the husband, but taking umbrage by the said complaint, it was the husband who had started sulking away and therefore, had withdrawn himself into the shop. This would amount to taking advantage of his own action. This would amount to taking advantage of his own action. Apart from that this would clearly mean that it was not the wife who had withdrawn from the society of the husband but it was other way round. 12. When examined in this manner, on the contrary it would appear that it was his cruel behaviour which had left the wife to her fate for the entire period of 12 years. 13. Curiously enough, the petition was filed, admittedly when the wife had threatened to change the nomination in respect of the flat in the society. The flat stands in the name of the wife. Husband claims that the flat is of his ownership. We are not entering into that dispute as that is not the subject matter of this litigation and a suit between the parties is pending. 14. However, not only, she had threatened to change the nomination, but she did change the nomination that had prompted the husband to file the petition. This would clearly indicate that he was not bothered about the health of the marriage, its continuation or otherwise, but he was only worried about the property in the form of the flat and when he lost nomination, he filed petition based on the ground which had taken place almost 12 years back. If it is not delay, in our opinion, there will hardly be a case of delay. 15. Coming back to those allegations, so far as the wife is concerned, she did have some basis to go by, as about the time of the complaint, the husband was engaging himself in film production activity. In fact a film having named "Yeh Pyar Nahin" was advertised as being screened in the cinema houses of the city in Nav Bharat Times on 7th October 1984 or thereabout. As a producer of that film name of one Rajani Anand Naik was shown along with that of the petitioner husband Dr. Loveleenkumar Merck. 16. According to wife, she had filed a complaint which was registered as non cognisable and at the instance of the Police Officer, the matter was patched up and she had apologised. It is her further allegation in the appeal memo that after the judgment also the husband is staying with that woman in another flat and that they have a son also. 17. It is her further allegation in the appeal memo that after the judgment also the husband is staying with that woman in another flat and that they have a son also. 17. Clutching on to this an argument is advanced before us that this can also be or may be used as a ground of cruelty. In our opinion for obvious reason this could not be so done. There are judgments, we are aware of, where on the basis of pleadings in a fit case, without waiting for evidence, decree can be passed. However, when a ground is contemplated under section 13 of the Marriage Act, it has to be set out in the petition and on being contested has to be established by leading evidence like any other disputed fact. Merely because there is a allegation as stated above, without affording any opportunity to either side, to establish its correctness or otherwise, in the case like the one before us, decree straight away cannot be passed. 18. Coming back to the question that was before the trial Court, viz. that of cruelty, obviously on the basis of the material discussed so far, cruelty is not made out. One witness remains to be considered and that is one Mr. Gupta, said to be a friend of the husband, who had to suffer an embarrassing position when he found husband being humiliated by the wife. He is husband's witness No. 2. Exh. 70 page 81. However, it transpires that prior to 1982, on account of shop No. 10, he had occasion to visit the husband. Neither he is husband's patient nor his friend. Apparently, he had visited once only when the wife refused to prepare a cup of tea for him. This has happened between 1979 to 1982. Even if he had visited 4 to 5 times as claimed by him, he does not say that every time this situation was prevailing. 19. If there is some tiff between the husband and wife at the time of the said incident, it cannot be exaggerated to mean that the petitioner husband was being treated in this manner for all time to come. 20. No doubt, the said Chairman of the society has stated that he was hearing quarrels between the husband and wife. This happens in practically every household of the society, therefore, no importance can be attached to this. 20. No doubt, the said Chairman of the society has stated that he was hearing quarrels between the husband and wife. This happens in practically every household of the society, therefore, no importance can be attached to this. It would also mean that the couple was staying together, else how could there be quarrel between the two. 21. Two decisions are cited on behalf of the husband by the learned Advocate Mr. Warunjikar, First is in the case of (Smt. Leela v. Dr. Rao Anand Singh and another)1, reported in A.I.R. 1963 Rajasthan 178, where section 23(i)(d) and 13(2)(i) have been considered. In our opinion, the judgment need not be discussed further, because section 13(2)(i) relates to a peculiar situation that arose at the time of introduction of 1955 Act, prior to that Act Hindu man was allowed to have as many wives as he could afford under the law. Monogamy has been introduced for the first time. Option was given to the wives, may be the first or the last to opt for divorce. Obviously in that connection section 23 will have a totally different meaning and import. 22. The second judgment cited is in the well known case of (V. Bhagat v. D. Bhagat (Mrs.))2, reported in 1994(1) S.C.C. 337 with regard to mental cruelty. However, that matter was such as would give rise to pity in mind of any one. In spite of several attempts made by the Hon'ble Supreme Court as well as Hon'ble Chief Justice of Delhi High Court, matter which was specially assigned to Delhi High Court, could not be concluded and trial continued almost indefinitely. One witness was examined for almost one full year. In this background, the matter was called over by the Hon'ble Supreme Court from Delhi High Court to self and observing in most crafty language the plight of the husband, in para 21 page 351 has recorded a last line as, "The unusual steps as the one taken by us herein can be resorted to only to clear up an insoluble mess, when the Court finds it in the interest of both the parties." 23. When we are sitting in appeal, what we have to consider is the correctness or otherwise of the judgment of the trial Court. The powers of the Appellate Court are well known. When we are sitting in appeal, what we have to consider is the correctness or otherwise of the judgment of the trial Court. The powers of the Appellate Court are well known. If it is finds, on appreciation, to the extent permissible in the law of evidence, that the conclusion drawn by the trial Court is either unwarranted or not supported by evidence or the trial Court has committed some legal error, the Appellate Court is bound to step in and set right the matter. Obviously, therefore, the aforesaid Supreme Court judgment in Bhagat v. Bhagat will not help the husband in the present case. 24. Net result, therefore is, that after going through the evidence, cruelty has not been established and even if it were established, we hold that the aspect of delay which was not being considered by the trial Court at all, if considered, has to be decided against the husband. In either event, therefore, the appeal would succeed. 25. The appeal is accepted. The order of the trial Court is set aside. Petition filed before the trial Court is rejected. The husband to bear the cost through out. Appeal allowed. -----