JUDGMENT R.L, Khurana, J.—The appellant husband having failed to obtain the dissolution of his marriage with the respondent by a decree of divorce, has approached this court by way of the present appeal against the judgment dated 14.8.1996 of the learned District Judge (Forests), Shimla, whereby his petition made under Section 13 of the Hindu Marriage Act, 1955 [for short: the Act] was dismissed. 2. The parties were married to each other according to Hindu rites on 10.2.1985 at village Thankari, P.O. Dughli, Tehsil and District Hamirpur. After the marriage, the parties lived together as husband and wife at Shimla Two children were born to them respectively on 2.12.1985 and 17.10.1987. 3. The appellant sought the dissolution of his marriage with the respondent under Section 13 of the Act on the grounds of cruelty, desertion and that the respondent was living in adultery. 4. As per the averments made in the petition about a month after the marriage the behaviour of the respondent became cruel towards him and she started picking up quarrels with him. She left her matrimonial home without his consent and cause on 14.4.1986 and refused to join his company inspite of efforts made by him to bring her back. She started making false, frivolous and scandalous complaints against him to the police. Some of these complaints were respectively made on 18.6.1986, 20.9.1986, 17/18.8.1986 and 11.1.1987. As a result of these complaints, he was questioned, harassed and humiliated by the police. As a result, he was compelled to complain to the Inspector General of Police against the harassment and humiliation being caused to him by the police on the basis of the false complaints made against him by the respondent. 5- On 16.1.1987, on the persuasion of some respectable persons and in order to save his marriage with the respondent, the appellant was able to settle all the disputes with the respondent and they started living together. They stayed and lived together for about two months. During this period of two months there was no change in the attitude of the respondent towards the appellant. She kept on creating troubles for him. She would maltreat and insult him. On 8.5.1987, the respondent pulled the appellant from his collar, tore his shirt and caused him bodily injuries. She again deserted him by leaving the matrimonial home. During this period of two months there was no change in the attitude of the respondent towards the appellant. She kept on creating troubles for him. She would maltreat and insult him. On 8.5.1987, the respondent pulled the appellant from his collar, tore his shirt and caused him bodily injuries. She again deserted him by leaving the matrimonial home. Due to continuous and repeated insult, humiliation and harassment at the hands of the respondent, the appellant offered grave mental torture. A petition for divorce was, therefore, filed by the appellant against the respondent on 16.5.1987 being H.M.A. Petition No. 13-S/3 of 1987/6-S/3 of 1988. However, since on the persuasion of certain friends and relatives, re-approachment was brought about between the parties, the said petition was dismissed as having been withdrawn on 13.1.1989. Even after s>ych re-approachment, there was no change in the attitude, conduct and behaviour of the respondent, and she continued treating the appellant with cruelty and causing humiliation and harassment to him. 6. Further case of the appellant is that respondent was living in adultery. After having deserted the appellant on 8.5.1987 she gave birth to a female child on 14.8.1989 as a result of such adulterous relations with certain persons who were living with her. At the time of conception of the child the appellant was posted at Kinnaur, while the respondent was living at Shimla, since she was employed in the office of Director of Industries. The appellant was having no access to her. 7. The respondent, while resisting the petition for divorce, admitted her marriage with the appellant. She averred that the parties lived together and cohabited as husband and wife till April 1989 inspite of all the differences and litigation. She further averred that three children including the female child born on 14/15.8.1989, were born to her from the loins of the appellant. While denying the acts of cruelty and harassment attributed to her, she averred that it was the appellant who was subjecting her to cruelty. She was being given beatings on account of her failure to fulfill the dowry demands of the appellant and his parents. Due to such beatings and maltreatment at the hands of the appellant, she was left with no alternative but to report the matter to the police. She was being given beatings on account of her failure to fulfill the dowry demands of the appellant and his parents. Due to such beatings and maltreatment at the hands of the appellant, she was left with no alternative but to report the matter to the police. The acts of adultery attributed to her were denied and it was pleaded that the entire story of her living in adultery and having illicit relations with a number of persons was concocted. She further levelled counter allegations that the appellant himself was in the habit of keeping illicit relations with a number of girls. It was also averred that the appellant during the subsistence of his marriage with the respondent, has performed a second marriage with one Ranjana Devi and as such was guilty of bigamy. Objections as to the petitioner being barred under the principles of res judicata and that the appellant was estopped from filing the petition were also raised. 8. On the pleadings of the parties, the following issues were framed by the learned trial court:— 1. Whether the respondent has treated the petitioner with cruelty as alleged? If so, its effect? OPP 1-A.Whether the respondent has deserted the petitioner for a period of over two years prior to the filing of the petition? OPP 2. Whether the petition is barred by principle of res judicata? OPR 3. Whether the petitioner is estopped by his act, conduct and deed from filing the present petition? OPR 4. Whether the petition is bad for want of particulars as alleged? If so, its effect? OPR 4-A. Whether the petitioner is entitled to the decree of divorce on the ground of adultery as alleged by him in his petition? OPP 5. Relief. 9. All the aforementioned issues were answered in the negative by the learned trial Court. Consequently, the petition preferred by the appellant under Section 13 of the Act seeking dissolution of his marriage with the respondent by a decree of divorce was dismissed vide the impugned judgment dated 14.8.1996. 10. As stated above, the appellant is seeking divorce on the three grounds, namely:— (a) Desertion; (b) Adultery; and (c) Cruelty. 11. Consequently, the petition preferred by the appellant under Section 13 of the Act seeking dissolution of his marriage with the respondent by a decree of divorce was dismissed vide the impugned judgment dated 14.8.1996. 10. As stated above, the appellant is seeking divorce on the three grounds, namely:— (a) Desertion; (b) Adultery; and (c) Cruelty. 11. Having heard the learned Counsel for the parties and having gone through the record of the case, we proceed to examine each of the three grounds in order to see whether the appellant is entitled to dissolution of his marriage with the respondent by a decree of divorce. (a) Desertion. 12. The appellant has averred in para 17 of his amended petition dated 29.5.1991 with regard to the ground of desertion in the following terms: "Further the factual position detailed in para supra clearly shows that the respondent has without cause deserted the petitioner for a continuous period of two years before the presentation of the divorce petition. It may also be added here that on 8.5.1987 after assaulting the petitioner, the respondent permanently left the company of the petitioner and since then the respondent has never joined the company of the petitioner as his wife and since 8.5.1987, she definitely deserted the petitioner without any reasonable cause and thus the petitioner is also legally entitled for a decree of divorce on this ground also." 13. Before a marriage can be dissolved by a decree of divorce on the petition presented either by the husband or the wife on the ground of desertion as contemplated by Section 13(l)(ib) of the Act, it has to be proved by the husband or wife petitioner that the other party has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition. 14. Admittedly, on a previous occasion, that is, on 16.5.1987, the appellant had filed a petition under Section 13 of the Act seeking dissolution of his marriage with the respondent by a decree of divorce. Ex. R. 8 is the copy of such petition. In this petition divorce was claimed simply on the ground of cruelty. As regards the incident of 8.5.1987, it was averred in para 15 of Ex. Ex. R. 8 is the copy of such petition. In this petition divorce was claimed simply on the ground of cruelty. As regards the incident of 8.5.1987, it was averred in para 15 of Ex. R. 8 as under: "Again on 8.5.1987 when the petitioner was at U.S. Club, the respondent picked up the petitioner from his collar, torn his shirt and sweater and gave a hard teeth bite on the petitioners forehead and hands as a result of which his clothes were blood stained. The sister of the respondent, who was also present there, also asked the respondent not to do so, but to no avail. She was also beaten by the respondent with her “Chappal”. 15. The pleadings contained in para 17 of the present petition and as contained in para 15 of the previous petition (Ex. R. 8) as to the incident of 8.5.1987 are self contradictory. There is no denying that the respondent was and is having her residential quarter in U.S. Club, which has been allotted to her as an employee of Director of Industries. If the appellant was living with the respondent in her residential quarter in May 1987, then the very story put forth by the appellant that the respondent deserted him on 8,5.1987 falls to the ground. There is nothing either in the pleading nor in evidence of the appellant as to where the parties were residing together as husband and wife at Shimla or elsewhere when the respondent is alleged to have deserted the appellant without a sufficient cause. 16. It is the admitted case of the parties that the earlier petition (Ex. R. 8) was dismissed as withdrawn vide order dated 13.1.1989, copy of which is Ex. R. 10, consequent upon a compromise between the parties. The appellant while appearing as PW 1 has stated in the following terms as regard the withdrawal of the earlier petition: "On 13.1.1989, the said petition was withdrawn by me on the assurance of the respondent that she would live with me peacefully if I withdrew the petition. However, subsequently, she filed another complaint against me in the Panchayat in my village alleging that I had not returned the dowry items and other articles." 17. During the course of cross-examination, the appellant has also admitted to the following facts: (i) Photograph Ex. However, subsequently, she filed another complaint against me in the Panchayat in my village alleging that I had not returned the dowry items and other articles." 17. During the course of cross-examination, the appellant has also admitted to the following facts: (i) Photograph Ex. R 1 in which the parties are shown together alongwith their two children. Appellant has admitted that this photograph was taken in October 1987 on the occasion of birth of their second child; (ii) In the month of October 1987, the appellant and respondent had gone to Baba Deoth Sidh together; (iii) The appellant was transferred to Shimla from Mashobra in August 1988 and was transferred again to Bhaba Nagar in November, 1988; (iv) Letters Ex. R. 5 dated 5.12.1988 and Ex. R. 6 dated 7.11.1988 were written by the appellant to the respondent from Baba Nagar, expressing all the love and affection for her; (v) During the pendency of the earlier divorce petition, the court on 7.7.1987 had directed the parties to live together till 24.7.1987. Though the appellant claims that in pursuance of the order dated 7.7.1987 when he had gone to the residential quarter of the respondent, she did not allow him to live with her. However, there is nothing on the record to show that the appellant ever brought to the notice of the court that he was not allowed by the respondent to live with her and as such the order dated 7.7.1987 could not be complied with. Instead, he chose to withdraw the petition on 13.1.1989. Admittedly, the respondent was not present in court on that date. A perusal of Ex; R. 10 copy of the order dated 13.1.1989 shows that the said petition was actually fixed for 11.4.1989. The appellant moved an application, Ex. R. 9, on 12.1.1989 for the preponment of the case so as to enable him to withdraw the same, since the parties had arrived at the terms of compromise and they had reconciled their dispute, and the petition was withdrawn on 13.1.1989. 18. The only inference which can be drawn under the circumstances is that the parties in pursuance of the order dated 7.7.1987 started living together and they were so living till 13.1.1989 when the earlier petition was withdrawn. This also explains the photograph Ex. R. 1 taken in October 1987 and the visit of the parties to Baba Deoth Sidh in October, 1987. This also explains the photograph Ex. R. 1 taken in October 1987 and the visit of the parties to Baba Deoth Sidh in October, 1987. The letters Ex. R 5 and R 6 belie the story of desertion put forth by the appellant. 19. On the basis of evidence coming on record, the learned trial Court has rightly held that the appellant has not been able to prove desertion on the part of the respondent for a continuous period of two years before the presentation of the present petition. The evidence rather goes to show that the parties were living together as husband and wife till immediately before the filing of the present petition. (b) Adultery 20. The appellant has averred in para 12 of his amended petition dated 29.5.1991 as under : "That some unwanted persons had been residing and living with the respondent during the period she remained separate from the petitioner, regarding which the petitioner had reported the matter to the police and after due enquiry the police directed these persons not to live there." 21. It has further been averred in para 17 of the amended petition as follows : "That further as has been detailed above after deserting the respondent some strangers had been living with her and the respondent also had voluntary sexual inter-course with such persons and due to her said illicit relations even a female child was born on 14/15.8.1989. It is pertinent to mention here that when the said legitimate (sic) child was conceived, the petitioner was permanently posted at Kinnaur whereas the respondent was living in U.S. Club while being employee in the office of the Director of Industries, Nigam Vihar, Shimla and the said fact clearly shows that the respondent had voluntary sexual inter-course with other persons than her husband and the petitioner is legally entitled for a decree of divorce on this ground as well. Further it may be added here that the said act of adultery committed by the respondent has again caused grave mental torture, harassment and humiliation to the petitioner and further he has suffered mental cruelty upto the extent that in no case he is in a position to live in the company of the respondent." 22. Admittedly, a female child was born to the respondent on 14/15.8.1989. Admittedly, a female child was born to the respondent on 14/15.8.1989. According to the respondent such female child was born to her from the loins of the appellant, who at the relevant time was being with her. 23. While discussing the ground of desertion above, we have come to the conclusion that the parties have been living together as husband and wife till about immediately before the filing of the present petition, which has been filed on 2.7.1990. The letter Ex. R6 dated 7.11.1988, which was written by the appellant to the respondent after joining at Bhaba Nagar also shows that parties were living together at Shimla till the transfer of the appellant from Shimla to Bhaba Nagar. 24. The onus to prove that the respondent after the solemnisation of her marriage with the appellant had voluntary sexual inter-course with a person other than the appellant and that as a result of such sexual inter-course she had delivered the alleged female child on 14/15.8.1989 was heavily on the appellant which onus he has misreably failed to discharge. Save and except his sole statement, no evidence has been led in this regard. The appellant has failed to prove his non-access to the respondent. Therefore, the learned trial Court has rightly held that this ground of adultery has not been proved and established by the appellant. (c) Cruelty. 25. The alleged acts of cruelty attributed to the respondent have been detailed by the appellant in paras 4 to 15 of his amended petition dated 29.5.1991. All such acts of cruelty complained of pertain to the period prior to 13.1.1989, that is, the date on which the earlier divorce petition was withdrawn by the petitioner. 26. Ex. R8 is the copy of the previous divorce petition which was withdrawn by the appellant on 13.1.1989. Vide this petition, divorce was sought by the appellant solely on the ground of cruelty. A perusal of paras 4 to 15 of the present petition shows that the acts of cruelty complained therein are the same which were earlier averred and detailed in paras 4 to 15 of Ex. R.8. In fact, save and except for some minor variations, paras 4 to 15 of the present petition have been copied and lifted from paras 4 to 15 of the previous petition Ex. R 8. 27. R.8. In fact, save and except for some minor variations, paras 4 to 15 of the present petition have been copied and lifted from paras 4 to 15 of the previous petition Ex. R 8. 27. It was contended on behalf of the respondent that the withdrawal of earlier petition Ex. R8 by the appellant, without any reservation, amounted to condonation of the alleged acts of cruelty and in view of the provisions contained in Section 23(l)(b) of the Act, the appellant is not entitled to a decree of divorce on the ground of alleged acts of cruelty. 28. The Supreme Court in Dr. N.G. Dastane v. Mrs. S. Dastane, AIR 1975 SC 1534, has held that even if condonation is not pleaded as defence by the respondent, it is courts duty, in view of the provisions of Section 23(l)(b) of the Act to find out whether the cruelty was condoned by the appellant. The section casts a duty and obligation on the court to consider the question of condonation, an obligation which has to be discharged even in undefended cases. The relief prayed for can be granted only if the court is satisfied "but not otherwise" that the petitioner has not in any manner condoned the cruelty. It is necessary that there should be evidence on the record of the case to show that the appellant/petitioner had condoned the cruelty. 29. Dealing with the meaning of the word "condonation", the Supreme Court in the above referred to case held that condonation means forgiveness of the matrimonial offence and the restoration of the offending spouse to the same position as he/she occupied before the offence so committed. To constitute condonation, there must be therefore, two things, namely, forgiveness and restoration. 30. It has been held in Smt Akash Sharma v. Rarnesh Kumar Sharrna, (1991) Sim. L.C. 198, by this court that withdrawal of the previous petition subsequent to the compromise between the parties constitute condonation and in the absence of fresh allegations of really serious nature, the plea of divorce cannot be allowed. 31. In the present case as well the previous petition Ex. R8 seeking divorce on the ground of cruelty was withdrawn by the appellant. The acts of cruelty complained of in the previous "petition, being the same as are complained of in the present case, would be deemed to have been condoned by the appellant. 31. In the present case as well the previous petition Ex. R8 seeking divorce on the ground of cruelty was withdrawn by the appellant. The acts of cruelty complained of in the previous "petition, being the same as are complained of in the present case, would be deemed to have been condoned by the appellant. Therefore, the appellant is not entitled to a decree for divorce on such condoned acts of cruelty. 32. Not only that the previous petition was withdrawn, the parties, as observed by us while discussing the grounds of desertion and adultery, lived and cohabited together as husband and wife till immediately before the presentation of the present petition. The act of the appellant in living and cohabiting with the respondent even after the commission of the alleged acts of cruelty also amounts to condonation of cruelty on the part of the appellant. 33. The appellant in his petition has not attributed any act of cruelty to the respondent pertaining to the period after 13.1.1989 when the earlier petition Ex. R8 was withdrawn. It was contended on behalf of the appellant that even if the acts of cruelty complained of in the petition are taken to have been condoned, the act of respondent in making and levelling false, frivolous, baseless and scandalous allegations against the appellant in her written statement would amount to mental cruelty to the appellant and he is entitled to a decree for divorce on the ground of such cruelty. 34. The following allegations have been made by the respondent against the appellant in her written statement: (i) that the appellant has contracted a second marriage with one Ranjana Devi daughter of Lajpat Rai resident of Old Virkhana, Shimla [para 1 of the written statement]; (ii) that the appellant is a greedy type of person and has been subjecting the respondent with illegal demands of dowry [para 4 of the written statement]; (iii) that the appellant is in the habit of consuming liquor and subjecting the respondent to beatings while under the influence of liquor [para 6 of the written statement]; and (iv) that the appellant is a man of bad character and having illicit relations with various girls [para 11 of the written statement]. 35. Insofar as the allegations made by the respondents her written statement as at (ii) and (iii) above, are concerned, no evidence at all is forthcoming. 35. Insofar as the allegations made by the respondents her written statement as at (ii) and (iii) above, are concerned, no evidence at all is forthcoming. So much so that the respondent herself while appearing as her own witness as RW 1 has not stated even a single word on this aspect. Both these allegations, thus, have remained unsubstantiated by the respondent. 36. As RW 1 the respondent has reiterated on oath that the appellant has contracted a second marriage and that he is having illicit relations with a number of girls. 37. The learned trial Court while holding that the allegations made by the respondent against the appellant in her written statement do not amount to cruelty, has observed in para 41 as under: "Though the respondent has not been able to conclusively establish that Prem Chand had any illicit relations wjth Ranjana or had solemnised any marriage with her and also there is not conclusive proof that thereafter Prem Chand got married with Namrita and has got a child from her but the fact remains that the complaints of Sudershana cannot be termed to be false or baseless. It can be construed from these complaints and also some of the letters which have been opined to be in the handwriting of Prem Chand by the Questioned Documents Examiner that this allegation of Sudershana that Prem Chand was having illicit relations with other girls cannot be totally brushed aside though Sudershana has not been able to prove these allegations conclusively. The onus of this issue was on the petitioner to have proved that the allegations made by her were totally baseless and false and this onus is not discharged by him." 38. We cannot agree to the above observations of the learned trial Court. Once the learned trial court had come to the conclusion that the allegations of the respondent as to second marriage by the appellant and that he was having illicit relations with a number of girls, had not been conclusively proved by the respondent, it ought to have held the same to be false and baseless. The learned trial Court also erred in holding that the onus was on the appellant to prove that the allegations made against him by the respondent were totally false and baseless. The onus was heavily on the respondent to prove the allegations made by her. 39. The learned trial Court also erred in holding that the onus was on the appellant to prove that the allegations made against him by the respondent were totally false and baseless. The onus was heavily on the respondent to prove the allegations made by her. 39. No evidence has come on the record to show that the appellant has contracted second marriage with Ranjana Devi. The respondent as RW 1 has stated that the appellant had contracted.such second marriage on 1.4.1990 and that on enquiries she came to know that such second marriage of the appellant with Ranjana Devi was performed by one Pandit Mahesha Nand of Vihar near Khalini, Shimla. She has further stated that the said Mahesha Nand had sworn an affidavit Ex. R 23 and handed over the same to her. 40. Much reliance has been placed on affidavit Ex. R 23 on behalf of the respondent, The affidavit Ex. R23 cannot be read in evidence in the present case for the reasons hereinafter recorded. 41. Order 19, Rule 1, Code of Civil Procedure, provides:— "Power to order any point to be proved by affidavit—Any Court may at any time for sufficient reason order that any particular fact or facts may be proved by affidavit; or that affidavit of any witness may be read at the hearing, on such conditions as the Court thinks reasonable: Provided that where it appears to the Court that either party bona fide desires the production of a witness for cross-examination, and that such witness can be produced, an order shall not be made authorizing the evidence of such witness to be given by affidavit." 42. The ordinary rule is that a decision on facts must be decided on evidence recorded viva voce in court as provided under Order 18 Rule 4, Code of Civil Procedure, This procedure may be dispensed with where either party agrees to a decision on affidavits or in the absence of such agreement, the court makes an order under Order 19 Rule 1, Code of Civil Procedure that any particular fact or facts may be proved by affidavit, unless and until the court orders any particular fact to be proved by an affidavit, a fact cannot be proved by filing an affidavit, because an affidavit is not per se evidence, [See : Gajjan Singh v. Ram Lok, AIR 1978 Punjab and Haryana 307]. 43. 43. In P. Nirmala v. R. Anthony Raj, AIR 1985 Karnataka 47, it has been held that serious charges of cruelty, sodomy and the like cannot be allowed to be proved by mere affidavits. 44. In the present case, admittedly, there is no order of the court under Order 19 Rule 1, Code of Civil Procedure, permitting the proof of second marriage of the appellant by affidavits. Therefore, in the absence of order of the court affidavit Ex. R. 23 cannot be treated as evidence. Besides, allegations as to second marriage are of a grievous nature which may entail even criminal consequences. Such a grave charge, under the law, cannot be permitted to be proved on mere affidavits. 45. Secondly, the affidavit Ex. R. 23 has not been sworn for the purpose of the present case. A perusal of the same shows that the same was meant to be filed in the court of Judicial Magistrate 1st Class (1), Shimla in the case Smt Priya Sharma v. Prem Chand, the proceedings under Section 125, Code of Criminal Procedure. 46. Thirdly, the affidavit Ex. R. 23 is no affidavit in the eyes of law. The same is shown to have been sworn by the deponent Mahesha Nand before an Executive Magistrate and it bears the endorsement only as "Attested" under the signatures and seal of the Magistrate. Such an affidavit has been held to be not a proper and valid affidavit in Chuni Lai and another v. State ofHimachal Pradesh, 1996 Cri. L.J. 3864. 47. No attempt has been made by the respondent to examine the said Pandit Mahesha Nand to prove the alleged second marriage of the appellant, though he was very much available. Failure on the part of the respondent to examine such witness would lead to an adverse inference against the respondent. 48. It is in evidence and also admitted by the respondent as RW 1 that the appellant was prosecuted on her complaint under Section 494, Indian Penal Code, for bigamy, Ex. AW 2/B is the copy of complaint dated 7.11.1989 made by the respondent to the Superintendent of Police (CID), Shimla, alleging therein that the appellant a few days ago had contracted a second marriage. In Ex. AW 2/B is the copy of complaint dated 7.11.1989 made by the respondent to the Superintendent of Police (CID), Shimla, alleging therein that the appellant a few days ago had contracted a second marriage. In Ex. AW 2/A, the complaint dated 24.11.1989, sent in continuation of the earlier complaint, the respondent has given the name of the girl with whom the appellant is alleged to have contracted a second marriage as Ranjana Devi daughter of Smt. Laxmi Devi. 49. Ex. R. 24 is the FIR registered on the basis of the complaint of the respondent for the offence of bigamy. The appellant and one Smt. Laxmi Devi were tried for the offence under Section 494, Indian Penal Code. The Chief Judicial Magistrate vide his judgment dated 20.10.1993 (Ex. AX) acquitted the appellant and his co-accused of such offence by holding that the prosecution had failed to prove the second marriage. 50. After the acquittal of the respondent vide judgment Ex. AX, the respondent preferred a complaint in the Court of the Chief Judicial Magistrate, Shimla on 1.4.1994 against the appellant and four others for their prosecution for the offences under Sections 494/495, Indian Penal Code, on the allegations that the appellant had contracted a third marriage with one Smt. Manu Sharma and that a female child was born to the appellant and Smt. Manu Sharma in September/October, 1993. Ex. AW 3/A is the copy of such complaint. Such complaint was got dismissed in default by the respondent on 23.3.1995 vide order, copy of which is Ex. AW 3/B. 51. In addition to the above, the respondent has been repeatedly making complaints to various quarters against the appellant repeating bigamy on his part. Exs. AW 2/E, AW 2/C, AW 2/D, AW I/A, AW 1/C, AW/ID and AW 1/E are the copies of such complaints. 52. Insofar as the allegation made by the respondent that the appellant is a man of bad character having illicit relations with a number of girls, is concerned, such allegations also have remained unsubstantiated. Reliance was sought to be placed on the letters Exs. R 7 and R 22 which are alleged to have been written to Ms. Kant a Kan war and Ms. Prem Lata. 53. No reliance can be placed on these letters. These have been not produced and proved in evidence in accordance with law. Reliance was sought to be placed on the letters Exs. R 7 and R 22 which are alleged to have been written to Ms. Kant a Kan war and Ms. Prem Lata. 53. No reliance can be placed on these letters. These have been not produced and proved in evidence in accordance with law. The appellant has denied having written these letters, which were tendered into evidence without formal proof by the respondent while appearing as RW 1. Though letters Exs. R 7 and R 22 were sent to handwriting expert for comparison with the admitted handwriting of the respondent, neither the handwriting expert has been examined nor his report has been proved on the record in accordance with law. It is well settled that the report of a handwriting expert is not admissible per se. The learned trial Court has, therefore, wrongly placed reliance on the letters Exs. R 7 and R 22, If these letters are ignored, there is no evidence to show that the appellant is having relations with other girls. 54. During the pendency of the present appeal both the parties have approached this Court for permission under Order 41 Rule 27, Code of Civil Procedure to lead additional evidence. 55. Vide application, CMP No. 226 of 1998, the appellant is seeking to produce the following document as additional evidence: (a) Copy of judgment dated 12.9.1996 of the Sub Divisional Judicial Magistrate, Rajgarh, whereby the appellant was discharged of the offence under Sections 498-A and 506, Indian Penal Code, on the ground that the court had no territorial jurisdiction in the matter; (b) Copy of FIR pertaining to the above noted case; (c) Copy of the complaint dated 16.8.1993 made by the respondent to S.H.O. Rajgarh against the appellant; and (d) Copy of the order dated 5.7.1996 passed by the Sub Divisional Magistrate, Shimla, in the proceedings under Section 107/150, Code of Criminal Procedure. 56. The documents detailed as at (b) to (d) above were available to the appellant during the pendency of the proceedings before the learned trial Court. Nothing has been shown as to why they could not be produced earlier. Insofar as judgment mentioned at (a) above is concerned, the same is not relevant for the purpose of the present case since the same is only on the point of want of territorial jurisdiction. Nothing has been said on merits of the case. Nothing has been shown as to why they could not be produced earlier. Insofar as judgment mentioned at (a) above is concerned, the same is not relevant for the purpose of the present case since the same is only on the point of want of territorial jurisdiction. Nothing has been said on merits of the case. We, therefore, see no ground to grant the same, which is accordingly dismissed. 57. CM.P. No. 801 of 2000 has been made by respondent whereby she wants to produce an affidavit of one Smt. Laxmi Devi pertaining to the second marriage of the appellant and two pronotes alleged to have been executed by the appellant in favour of the said Smt. Laxmi Devi. 58. The pronotes, even if it be assumed that the same were executed by the appellant in favour of the said Smt, Laxmi Devi, are not material and relevant for determination of the real controversy between the parties. 59. The case set up by the respondent as to the performance of second marriage by the appellant with1 Ranjana Devi daughter of Laxmi Devi is self contradictory. While as RW 1, the respondent has stated that the marriage between the appellant and Ranjana was performed on 1.4.1990 in the complaint Ex. AW 2/B made by her to the Superintendent of Police on 7.11.1989, she has alleged that the marriage of appellant with Ranjana Devi had taken place few days before the making of the complaint. In view of such contradictory evidence, neither the purported affidavit of Laxmi Devi nor the statement of the said Smt. Laxmi Devi would be material for the just determination of the case. The application, CMP No. 801 of 2000 made by the respondent also deserves dismissal, which we hereby dismiss. 60. It has been held by this Court in Kamaljit Bhullar v. Nimrat Preet Singh Bhullar, 1991 (1) Sim.L.C. 156, and in Meenakshi Mehta v. Major AM Mehta, 2000 (1) Shim. L.C. 54, that the allegations levelled by one spouse against the other, if not proved to be correct, would constitute legal cruelty. 61. 60. It has been held by this Court in Kamaljit Bhullar v. Nimrat Preet Singh Bhullar, 1991 (1) Sim.L.C. 156, and in Meenakshi Mehta v. Major AM Mehta, 2000 (1) Shim. L.C. 54, that the allegations levelled by one spouse against the other, if not proved to be correct, would constitute legal cruelty. 61. Since, in the present case, the respondent has not been able to prove and substantiate the allegations made by her against the appellant in her written statement as well as in the complaints made to various authorities, referred to above, such allegations would be deemed to be false amounting to legal cruelty to the appellant who was even prosecuted on the basis of such wrong allegations. The cruelty to which the appellant has been subjected to has led the parties to a situation, that it has become impossible for them to live together as husband and wife without agony and distress. There is also nothing on record that the appellant is in any way taking advantage of his own wrongs. The appellant is, therefore, held entitled to a decree of divorce. 62. Resultantly, the present appeal is allowed. The impugned order dated 14.8.1996 of the learned District Judge is set aside and the marriage between the parties is dissolved by a decree of divorce as prayed for by the appellant. No orders as to costs. Appeal allowed. C.K. Thakker, C.J.—I have had the benefit of going through a draft judgment of my esteemed brother Honble Mr. Justice R.L. Khurana. I regret my inability to agree with the final conclusion reached by my learned brother. I , therefore, consider it proper to record reasons in support of the view which I propose to take, 64. The present appeal is filed by the appellant-husband against an order dated August 14, 1996, in HMA Petition No. 5-S/3 of 1990, by the learned District Judge (Forests), Shimla. The said petition was filed by the appellant-husband against the respondent-wife for dissolution of marriage under Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act). 65. The case of the petitioner was that he married with the respondent on February 10, 1985, at Village Thankari, Post Office Dughli, Tehsil and District Hamirpur, H.P. according to Hindu rites. The parties lived as husband and wife at Shimla. 65. The case of the petitioner was that he married with the respondent on February 10, 1985, at Village Thankari, Post Office Dughli, Tehsil and District Hamirpur, H.P. according to Hindu rites. The parties lived as husband and wife at Shimla. Two children were born from the said wedlock on December 2, 1985 (Priya, daughter) and on October 17, 1987 (Master Gaurav, son), respectively. It was alleged by the petitioner that after about a month of the marriage the behaviour of the respondent became cruel towards him and she started picking up quarrels without any cause or reason. She left matrimonial home on April 14, 1986 and despite his best efforts she did not join the society of the petitioner and deserted him. She also made false, frivolous and baseless allegations against him as well as his parents, which caused mental disturbance and distress to the petitioner. She falsely alleged that the petitioner demanded dowry and ill-treated her. She also filed false complaints before police authorities with a view to humiliate the petitioner. Some of such complaints were made on June 18, 1986, August 17/18, 1986, September 20, 1986 and January 1, 1987. The petitioner was compelled to report the matter to the Inspector General of Police against the police harassment. An allegation was also made by the petitioner that the brother of the respondent threatened him for which he had to report to the Commanding Officer. 66. According to the petitioner, on January 16, 1987, at the persuasion of some respectable persons and with a view to save matrimonial relations, a settlement was arrived at between the parties. Pursuant to the said settlement, the parties lived together for about two months but even during the said period, the petitioner kept creating troubles for him. On May 8, 1987, she insulted and ill-treated the petitioner and pulled him from his collar, tore his shirt and caused bodily injuries. Because of such humiliation, insult and harassment, the petitioner suffered great mental shock, torture and he was constrained to file a divorce petition. Once again, he was persuaded by his friends and relatives and he withdrew the said petition. But as the ill-treatment by the wife was continued, he was constrained to file the present petition. 67. Because of such humiliation, insult and harassment, the petitioner suffered great mental shock, torture and he was constrained to file a divorce petition. Once again, he was persuaded by his friends and relatives and he withdrew the said petition. But as the ill-treatment by the wife was continued, he was constrained to file the present petition. 67. In the petition, it was alleged that after the desertion by the respondent, some strangers used to live with her and she was having sexual intimacy with them. As a result of such relations, she had given birth to a female child on August 14, 1989. It was the allegation of the husband that when that female child was conceived, the petitioner was permanently posted at Kinnaur, whereas the respondent was staying at Shimla being in the employment of Director of Industries, Nigam Vihar, Shimla, and he had no access to her. The petitioner thus sought divorce on the ground of adultery as well. 68. A reply was filed by the respondent-wife taking objections preliminary as well as on merits. It was contended that the petition was barred by res judicata inasmuch as a similar petition earlier filed by the petitioner was withdrawn without seeking leave of the Court to file a fresh petition. He was also estopped from filing the present petition due to his own acts, deeds and conduct. It was further contended that the petition was not maintainable as the allegations were vague and ambiguous. It was also her case that the petition was filed with mala fide intention to get rid of the respondent as the petitioner has already solemnised second marriage with one Smt. Ranjana Devi and he intends to take undue advantage of his own wrong. 69. On merits, it was averred that marriage between the parties, was solemnised at Hamirpur and after the marriage, the parties stayed with each other as husband and wife till April, 1989. According to her, despite litigations and differences, they continued to cohabit and consummate till April, 1989 and three children were born from the said wedlock, namely, Priya-daughter, Gaurav-son and Kanika daughter. Kanika was born on August 14/15, 1989 and she was conceived through the petitioner. It was her case that the petitioner was beating her and demanding dowry of Rs. 30,000 in cash. As she failed to fulfill the demand, she was ill-treated by the petitioner and his parents. Kanika was born on August 14/15, 1989 and she was conceived through the petitioner. It was her case that the petitioner was beating her and demanding dowry of Rs. 30,000 in cash. As she failed to fulfill the demand, she was ill-treated by the petitioner and his parents. She specifically denied that she had deserted the petitioner. According to her, as she had been allotted a quarter at U.S. Club, Shimla, as an employee of Government of Himachal Pradesh, she was staying there as it was thought proper by both of them that the respondent should occupy the quarter. The petitioner was visiting off and on the said quarter. When the petitioner was at Mashobra, it was easy for him to visit Shimla and to look after the children. The respondent denied the allegation that unwanted persons and strangers used to visit her house and she was having illicit relations with them. According to her, the entire story has been concocted by the petitioner. It was the husband, who was in the habit of keeping illicit relations with various girls and she was in possession of certain letters written by the petitioner as well as by those girls. It was, therefore, prayed that the petition was liable to be dismissed. 70. On the basis of the pleadings of the parties, the following issues were raised by the trial Court; 1. Whether the respondent has treated the petitioner with cruelty as alleged? If so, its effect? OPP 1-A. Whether the respondent has deserted the petitioner for a period of over two years prior to the filing of the petition? OPP 2. Whether the petition is barred by principles of res judicata? OPR 3. Whether the petitioner is estopped by his act, conduct and deed from filing the present petition? OPR 4. Whether the petition is bad for want of particulars as alleged? If so, its effect? OPR 4-A. Whether the petitioner is entitled to the decree of divorce on the ground of adultery as alleged by him in his petition? OPP 5. Relief. 71. After appreciating the evidence on record, oral as well as documentary, the learned District Judge (Forests), Shimla, held all the issues in the negative and dismissed the petition for divorce with costs. He observed that none of the grounds put forward by the petitioner-husband of cruelty, desertion and adultery, was. OPP 5. Relief. 71. After appreciating the evidence on record, oral as well as documentary, the learned District Judge (Forests), Shimla, held all the issues in the negative and dismissed the petition for divorce with costs. He observed that none of the grounds put forward by the petitioner-husband of cruelty, desertion and adultery, was. established and the petitioner was not entitled to get dissolution of marriage. It is against the said decree, that the present appeal is filed by the husband. 72. We have heard Mr. G.D. Verma, learned Senior Advocate, instructed by Mr. Romesh Verma, Advocate, and Mr. A.K. Sood, Advocate, instructed by Ms. Ritu Sharma, Advocate. 73. The arguments were over and the judgment was reserved. My learned brother (Honble Mr. Justice Khurana), sent a draft judgment on November 21, 2000, allowing the appeal, setting aside the order dated August 14, 1996 passed by the trial Court and dissolving the marriage by passing a decree of divorce as prayed by the appellant. As observed by my learned brother, the appellant had sought divorce on three grounds : (i) Desertion; (ii) Adultery; and (iii) Cruelty. 74. In the opinion of my learned brother, the petitioner husband was neither entitled to get dissolution of marriage on the ground of desertion nor on the ground of adultery. Since I am in agreement with my learned brother on both the points for the reasons in the judgment, it is not necessary for me to discuss in detail the reasons recorded by the trial Court or by my learned brother. For self-same reasons, in my opinion also, the petitioner was unable to make out a case for divorce and he was not entitled to the relief on those grounds. 75. Regarding cruelty, however, I am unable to agree with my learned brother that the petitioner was entitled to a decree for divorce. In paragraphs 4 to 15 of the amended petition, acts of cruelty by the respondent-wife were highlighted by the petitioner-husband. It is also clear that almost all acts of cruelty were of remote past which had been made subject matter of earlier petition, (HMA No. 8-S/3 of 1998), which was withdrawn by the petitioner on January 13, 1989. Ex. R8, is the copy of the said petition and Ex. RIO is the order passed by the learned Additional District Judge (I), Shimla. Ex. R8, is the copy of the said petition and Ex. RIO is the order passed by the learned Additional District Judge (I), Shimla. The said order reads as under : "13.1.1989, Present : Shri Prem Chand Sharma, Petitioner with counsel. An application on 12.1.1989 was made by the present petitioner to take up the petition under Section 13 of the Hindu Marriage Act immediately as the same had been fixed for 11.4.1989. On the application, the original file was requisitioned for today. The petitioner has made a statement on oath that his petition may be dismissed as withdrawn as certain persons are trying to bring reconciliation between the parties to the petition. As per the statement of the petitioner, the petition is dismissed as withdrawn. Be consigned to the record room." 76. It may be stated at this stage that the said petition was kept for hearing on April 11, 1989. An application was, however, submitted on behalf of the petitioner on January 12, 1989 (Ex. R9), inter alia, stating therein that though the petition was to come up for hearing on April 11, 1989, the parties had arrived at compromise and they had reconciled the dispute. The petitioner, therefore, wanted lo withdraw the petition and did not want to pursue the same any further. A prayer was, therefore, made to take up the matter on January 13, 1989 for disposal and recording of the statements of the parties. It is not in dispute that on the next day, the petition was ordered to be disposed of in presence of the petitioner-husband and his counsel, but in the absence of the other side, i.e. respondent-wife. 77. In the light of the above facts and circumstances and disposal of the petition, wherein allegations of cruelty have been made by the petitioner against the respondent, it was contended on behalf of the respondent-wife that when the earlier petition was withdrawn without any reservation or seeking permission of the Court to file fresh petition, the alleged acts of cruelty would be deemed to have been condoned by the petitioner-husband and in view of the provisions of clause (b) of sub-section (1) of Section 23 of the Act, the petitioner was not entitled to a decree of divorce on the ground of cruelty. 78. 78. It was, however, contended on behalf of the petitioner-husband that even if the acts of cruelty complained of by the petitioner could be taken to have condoned by him, the acts of respondent-wife in levelling false, frivolous, baseless and concocted allegations against the petitioner-husband in her written statement would tantamount to mental cruelty and the petitioner-husband is entitled to divorce on the ground of such cruelty. Now in the reply to the amended petition, the respondent-wife has made certain allegations against the petitioner. She inter alia alleged that (i) the petitioner had contracted second marriage with one Ranjana Devi, daughter of Lajpat Rai, and by filing the petition for divorce, he wanted to take undue advantage of his own wrong; (ii) the petitioner was greedy type of person and wanted to grab huge dowry from the parents of the respondent. After marriage, the petitioner started harassing the respondent and her parents with his illegal demands and when the parents of the respondent showed their inability to comply with such illegal demands, the petitioner started beating the respondent and finding faults with her; (iii) the petitioner often used to beat the respondent mercilessly which compelled her to approach police authorities. She had to take shelter in the house of Up-Pradhan Prem Chand and Pardhan Dev Raj; (iv) the petitioner was in the habit of consuming liquor and torturing the respondent and was causing physical harm to her; and (v) the petitioner-husband was a man of bad character and was keeping illicit relations with various girls from time to time. The wife had also produced certain letters said to have been written by those girls as also letters written by the petitioner to other women. 79. The trial Court held that the petitioner was not entitled to divorce on the ground of cruelty. It observed that though it was not proved by the respondent-wife that the petitioner had contracted second marriage with Smt. Ranjana Devi or that he was having illicit relations with several women, in the facts and circumstances of the case, it could not be said that the allegations levelled by the respondent-wife against the petitioner-husband were totally false, frivolous or concocted so as to hold the respondent-wife guilty of cruelty towards the petitioner-husband. It also noted that there was some material in the form of letters, which were proved and on the basis of evidence of Hari Chand and report Ex. RW6/A, it could be said that the averments made and allegations levelled by the respondent-wife against the petitioner-husband were not misconceived, totally ill-founded or baseless. 80. In my opinion, the finding recorded by the trial Court on the basis of material on record cannot be said to be contrary to law or against the evidence. Hari Chand, Incharge, CID, Solan, stated in his deposition that pursuant to an application made by the respondent-wife, enquiry/investigation was ordered by Additional D.G., C.I.D; Shimla, to inquire into the allegation that the petitioner had kept a lady, named, Namrata. The witness stated that he had gone to Chandigarh at the address given by the complainant to /See Rakesh Kumar, brother of Namrata Devi, but they were not available at the given address. Hari Chand came to know that they were residing in Kothi No. 3, Swasthik Vihar, Mani Majra. When the witness went there, he could meet Rakesh Kumar, who revealed that Namrata was earlier married at Jagadhari to one Rajinder Kumar, but was divorced before 2 to 3 years. She did not have a child at the time of divorce. However, at the time of enquiry, she was having a female child of one and a half year. The witness had also stated that he came to know from Rakesh Kumar that Namrata was having relation with Prem Chand (Petitioner). The witness, no doubt, admitted that he could not get any written proof of marriage or child being of Prem Chand and he came to know about the relationship between Namrata and Prem Chand only from Rakesh Kumar. 81. From the above evidence, it is clear that though it was not proved that the petitioner-husband had contracted second marriage with Namrata or a female child of Namrata was through the petitioner, but one thing is clear from the evidence of Hari Chand that according to Rakesh Kumar, brother of Namrata that Namrata was divorced by her husband before two to three years and thereafter she had not married and yet she was having a child of about one and a half year. The witness also stated that he had submitted a report to that effect, Ex. The witness also stated that he had submitted a report to that effect, Ex. RW6/A. In my opinion, in these circumstances, it may not be a case of cruelty by the petitioner-husband towards the respondent-wife, but it is equally a case which would not entitle the husband to a decree of divorce on the ground of cruelty by a wife. 82. There is still one more circumstance. It was alleged by-the respondent-wife that the petitioner-husband contracted marriage with Ranjana Devi, daughter of Lajpat Rai. It is also not in dispute that proceedings were initiated by the respondent against the petitioner. A criminal case No. 30/2 of 1994 was filed against the petitioner in the Court of Sub Divisional Judicial Magistrate, Rajgarh, for an offence punishable under Section 498-A read with Section 506 of the Indian Penal Code. The said case, however, was dismissed on September 12, 1996, by the learned Magistrate on the ground that the Court had no territorial jurisdiction in the matter. 83. It may be stated that even before the above case, a Criminal Case No. 61/2 of 1990 was filed against the petitioner as well as one Laxmi Devi for an offence under Section 494 of the Indian Penal Code, in the Court of Chief Judicial Magistrate, Shimla, on July 9, 1990. In the said complaint, it was alleged by the complainant (present respondent) that accused No. 1 (Petitioner-husband) had contracted second marriage with Ranjana Devi, daughter of accused No. 2 Laxmi Devi on April 1, 1990. The case of the present respondent was that she had married to the accused on February 10, 1985, according to Hindu rites and customs and was having three children. The marriage was still subsisting and yet accused No. 1 had contracted second marriage and thereby he had committed an offence punishable under Section 494 of the Indian Penal Code. Since accused No. 2 had abetted in commission of the crime, she was also liable to be punished. The learned Magistrate, after considering the evidence on record held that it was not proved "beyond all reasonable doubts", that accused No. 1 had contracted second marriage with Ranjana Devi, daughter of accused No. 2 Laxmi Devi, and hence none of the accused could be convicted. Accordingly an order of acquittal was passed by the learned Magistrate on October 20, 1993. 84. Accordingly an order of acquittal was passed by the learned Magistrate on October 20, 1993. 84. There is still something more on the basis of which, in my considered opinion, it could not be said that by levelling allegations by the respondent-wife against the petitioner-husband, cruelty can be said to have been committed by her. It was the allegation of the wife that the petitioner was having illicit relations with several girls. In this connection, reliance was placed on certain letters, which are part of the record being Ex. R5, Ex. R6, Ex. R7, Ex. R 11 and Ex. R22. Some of the letters are written by the petitioner-husband whereas others were written by some ladies to the petitioner. It is observed in the judgment of the trial Court that the letters said to have been written by the petitioner were sent to Handwriting Expert with a view to ascertain the handwriting of the petitioner and a report had been submitted confirming his handwriting on the letters said to have been written by him. It is, no doubt, true that neither the handwriting expert nor any other person from the office of the Handwriting Expert had been examined at the trial. The question, however, is not whether the allegations levelled by the wife had been conclusively established or proved. But in the facts and circumstances of the case, in my view, an opinion formed by the wife that her husband had relations with other women cannot be said to be uncalled for or would amount to committing cruelty on the husband. 85. The trial court in para 25 of the judgment stated as under: "Regarding the letters, the petitioner had categorically denied having written letters Exts. R-5, R-6, R-ll, R-22 and R-7 initially. Then an application was made by Sudershana for getting these letters compared by the Hand Writing Expert with admitted writings of the petitioner. That application was allowed and the letters were sent for comparison. The opinion of the Handwriting Expert has been received. The petitioner also made a statement in between that he admits having written the letters Exts. R-5 and R-6, but that he is not certain about the letters Exts. R-ll, R-12 and R-7. Report of the questioned documents expert reveals that except portion Q-A/l, all the writings appear to be in the same hand. The petitioner also made a statement in between that he admits having written the letters Exts. R-5 and R-6, but that he is not certain about the letters Exts. R-ll, R-12 and R-7. Report of the questioned documents expert reveals that except portion Q-A/l, all the writings appear to be in the same hand. The conduct of the petitioner in denying the letters initially and subsequently admitting few of the letters and making a guarded statement regarding other letters speaks volume about his veracity and truthfulness." 86. Similarly, in paragraphs 40 and 41, the trial court stated: "As regards the complaint that Prem Chand is having illicit relations with Namrita, there is some evidence that the matter was inquired into by the police. Petitioner examined Head Constable Brij Bala as AW-5. She has stated that on their investigation they did not find any record or proof of the second marriage with Namrita. Further that she had gone to Chandigarh and Jakhu (Shimla) in this connection but did not submit any report in writing. She also did not record statement of anybody in Chandigarh and clarified that when she visited Jakhu on the address given by Smt. Sudershana, the place was found locked. She further says that thereafter the statement was recorded by Hari Singh. Hari Singh/Hari Chand has been examined by the respondent as RW-4. He says that he went to Chandigarh on the address given by the complainant but did not find Namrita on that address. However, he found that she was living at Manimajra and when he visited that place, he met Rakesh Kumar brother of Namrita who told him that Namrita was earlier married at Jagadhri to one Rajinder but was divorced for the past 2-3 years and at that time she did not have any child. However, at the time of inquiry by Hari Chand Inspector she was found having a female child of 1-1/2 years and that he came to know from the talks of Rakesh Kumar that Namrita is having relations with Prem Chand. He however states that he did not get any written proof regarding the marriage of Prem Chand with Namrita or that of child being conceived through Prem Chand. He had given a written report which has been exhibited as RW-6/A. He was put certain questions about the earlier inquiry regarding which he denied knowledge. He however states that he did not get any written proof regarding the marriage of Prem Chand with Namrita or that of child being conceived through Prem Chand. He had given a written report which has been exhibited as RW-6/A. He was put certain questions about the earlier inquiry regarding which he denied knowledge. He has also stated that he only came to know about the relationship between Namrita and Prem Chand from Rakesh (the brother of Namrita). Though the respondent has not been able to conclusively establish that Prem Chand had any illicit relations with Ranjana or had solemnised any marriage with her and also there is not conclusive proof that thereafter Prem Chand got married with Namrita and has got a child from her but the fact remains that the complaints of Sudershana cannot be termed to be false or baseless. It can be construed from these complaints and also some of the letters which have been opined to be in the handwriting of Prem Chand by the Questioned Documents Examiner that this allegation of Sudershana that Prem Chand was having illicit relations with other girls cannot be totally brushed aside though Sudershana has not been able to prove those allegations conclusively. The onus of this issue was on the petitioner to have proved that the allegations made by her were totally baseless and false and this onus is not discharged by him." 87. In my view, the question is not whether the letters can be said to have been proved in accordance with the provisions of the Code of Civil Procedure or Evidence Act, but whether in the light of the facts and surrounding circumstances, the allegations levelled by the respondent-wife against the petitioner-husband can be termed as false, frivolous or baseless so as to entitle him to get a decree of divorce. In my considered opinion, even if it can be said that the respondent-wife was not in a position to establish to the satisfaction of the court about the correctness of the allegations levelled by her against her husband, it equally cannot be said that the allegations were without any foundation whatsoever and the petitioner was entitled to put forward a ground of cruelty by the wife enabling him to get the marriage dissolved on the basis of those averments and allegations. 88. 88. In this connection, it is also necessary to refer to an affidavit Ex. R-23, by Pandit Mahesha Nand, who had performed the marriage between the petitioner and Ranjana Devi on April 1, 1990. Even if it be conceded that the said affidavit is not an evidence in the eye of law, while considering the prayer of the petitioner-husband for dissolution of marriage on the ground of cruelty by wife, the said affidavit cannot be ignored altogether and keeping in mind that affidavit and other circumstances, it cannot be held that the respondent-wife had levelled false or baseless allegations against the petitioner-husband. 89. Even regarding to demand of dowry, the allegations levelled by the respondent-wife cannot be termed as wholly ill-founded. Apart from what has been asserted by the respondent in her substantive evidence, Prem Chand himself, in his deposition admitted that pursuant to a complaint made by the respondent-wife, the police asked him to return the articles received from the wife. He further stated that the respondent had lodged a complaint with Gram Panchayat also to give back the articles and the Panchayat asked him to return those articles within one month, but the respondent did not turn up. He, however, denied that he had at any time demanded an amount of Rs. 30,000 from the parents of the respondent. 90. Initially, the petitioner stated in his evidence that the parties lived together as husband and wife till April, 1986 and after April, 1986, he met respondent only in her office during day time and nowhere else. According to him, it was incorrect to suggest that he had stayed with the respondent at Shimla on night of November 14/15, 1988 nor on November 16, 1988, he had gone to Hamirpur with the respondent to the house of his brother-in-law. He also denied that during that period, they lived together as husband and wife and cohabited. He also denied that in February, 1989, he had taken the respondent with him at his village and resided there for about a month. He refuted the suggestion that during that period he and respondent had gone to the marriage of his nephew. He, however, admitted that there was a compromise between him and the respondent as a result of which they lived together during the period from January 16, 1987 to May 8, 1987. He refuted the suggestion that during that period he and respondent had gone to the marriage of his nephew. He, however, admitted that there was a compromise between him and the respondent as a result of which they lived together during the period from January 16, 1987 to May 8, 1987. He also admitted that after the first divorce petition was filed by him in July, 1987, during the pendency of that divorce petition, the Court directed the parties on July 7, 1987 to stay together till July 24, 1987. According to him he had gone to U.S. Club, but the respondent-wife did not allow him in the house and picked up quarrels and hence, they could not live together during that period. He further admitted that though there was no reconciliation, yet he withdrew the petition on January 13, 1989. He also stated that the respondent-wife had illicit relations with several persons and Fateh Singh and Rajinder Singh were among them. Initially, he stated that he did not know Fateh Singh and had no connection whatsoever but then he had to admit that Ex. R4 was his photograph with Fateh Singh. 91. The trial Court also relied upon the evidence of other witnesses, including the evidence of Hem Raj, Up-Pradhan, who stated that on February 19, 1989, there was a compromise between the parties and Rajinama (Ex. R12) was prepared; evidence of Daulat Ram, who was none else but the cousin of the petitioner himself, who stated that he saw the petitioner and respondent together in the marriage of his son Roshan Lal in February, 1989 and of Narain Singh, residing in U.S. Club in the neighbourhood of the respondent, who claimed to have seen the petitioner visiting the respondent till the beginning of 1990. The Court, on the basis of the said evidence, held that though the relations between the parties were strained, the petitioner and respondent used to meet each other. 92. Finally, the trial Court had an opportunity to see the demeanour of witnesses. It is settled law that on the basis of such demeanour, a competent Court forms opinion as to whether they were reliable. I may hasten to add that it is always open to an appellate Court to reappreciate the evidence on record and come to its own conclusion. It is settled law that on the basis of such demeanour, a competent Court forms opinion as to whether they were reliable. I may hasten to add that it is always open to an appellate Court to reappreciate the evidence on record and come to its own conclusion. At the same time, however, reliance placed by the trial Court on the basis of such demeanour cannot be totally overlooked or ignored and unless the conclusion arrived at by the trial Court is unsupported by evidence or is otherwise uncalled for, normally, an appellate Court will not interfere with findings recorded by the trial Court. 93. In this connection, it may be profitable to refer to the law laid down by the Supreme Court in several cases. The Apex Court has observed that an appeal is a continuation of suit and rehearing of the matter, and it is open to the appellate Court to reappreciate the entire evidence oral as well as documentary and to come to its own conclusion. But the appellate Court will bear in mind findings recorded by the trial Court. It should not forget that the trial Court had an additional advantage and opportunity of watching the demeanour of witnesses and its conclusion will normally not be disturbed. 94. In Sarju Pershad v. Jwaleshwari, AIR 1951 SC 120, the Supreme Court stated : “The question for our consideration is undoubtedly one of fact, the decision of which depends upon the appreciation of the oral evidence adduced in the case. In such cases, the appellate court has got to bear in mind that it has not the advantage which the trial Judge had in having the witnesses before him and of observing the manner in which they deposed in court. This certainly does not mean that when an appeal lies on facts, the appellate court is not competent to reverse a finding of fact arrived at by the trial Judge. This certainly does not mean that when an appeal lies on facts, the appellate court is not competent to reverse a finding of fact arrived at by the trial Judge. The rule is and it is nothing more than a rule of practice-that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of the witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judges notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lies, the appellate Court should not interfere with the finding of the trial Judge on a question of fact. The duty of the appellate Court in such cases is to see whether the evidence taken as a whole can reasonably justify the conclusion which the trial Court arrived at or whether there is an element of improbability arising from proved circumstances, which in the opinion of the court, outweighs such finding." (Emphasis supplied) 95. Similarly in Madhusudan Das v. Narayanibai, AIR 1983 SC 114, the Supreme Court observed: "At this stage, it would be right to refer to the general principle that, in an appeal against a trial court decree, when the appellate Court considers an issue turning on oral evidence it must bear in mind that it does not enjoy the advantage which the trial court had in having the witnesses before it and of observing the manner in which they gave their testimony. When there is a conflict of oral evidence on any matter in issue and its resolution turns upon the credibility of the witnesses, the general rule is that the appellate court should permit the findings of fact rendered by the trial Court to prevail unless it clearly appears that some special feature about the evidence of a particular witness has escaped the notice of the trial court or there is a sufficient balance of improbability to displace its opinion as to where the credibility lies. The principle is one of practice and governs the weight to be given to a finding of fact by the trial court. The principle is one of practice and governs the weight to be given to a finding of fact by the trial court. There is, of course, no doubt that as a matter of law if the appraisal of the evidence by the trial court suffers from a material irregularity or is based on inadmissible evidence or on a misreading of the evidence or on conjectures and surmises, the appellate Court is entitled to interfere with the finding of fact." 96. In my considered opinion, when on the basis of the entire evidence on record coupled with the fact that the petitioner-husband had made several exaggerations and had to admit many things in his cross-examination, which were initially denied by him in his examination-in-chief, the trial Court has not considered safe to rely on his evidence and refused to grant the relief of dissolution of marriage, it cannot be said that by doing so, it has committed an error of fact, and/or of law, and/or of jurisdiction. In my view, it also cannot be said that by levelling certain allegations against the petitioner, which the respondent wife could not prove them to the hilt, she could be said to have effected cruelty on the husband so as to entitle him to get divorce on that ground. Though the allegations could not be established, they could not described as false, baseless or concocted and the petitioner could not make them as a ground to get dissolution of marriage. 97. In view of my findings above, I do not wish to enter into larger question as to whether the allegations by a respondent in a written statement/reply can be made a ground by the petitioner to get a decree of divorce on the ground of cruelty. But in my judgment, when the petitioner had made serious allegations against the respondent, which were not established, the petitioner cannot be permitted to take undue advantage of a situation created by him if allegations, and that too, not totally false or ill-founded have been levelled by the respondent against him and the petitioner cannot get a decree of divorce on that count. 98. For the foregoing reasons, in my opinion, the appeal deserves to be dismissed and is accordingly dismissed. 99. 98. For the foregoing reasons, in my opinion, the appeal deserves to be dismissed and is accordingly dismissed. 99. I am in agreement with the order passed by my learned brother on both the applications being CMPs No. 226 of 1998 and 801 of 2000. CMP No. 982 of 2000 100. In view of the dismissal of the appeal, the present application is also dismissed. Appeal dismissed.