JUDGMENT Kuldip Chand Sood.—This first appeal arises out of the judgment of learned Additional District Judge, Kullu, dated 17th January, 1997. 2. Hemavati appellant, hereinafter referred to as "wife", was married to Puran Chand respondent, hereinafter referred to as "husband", in the year 1982 at Mandi according to Hindu rites. Two children were born out of the wed lock. 3. On October 11, 1995 wife filed a petition under Section 13 of the Hindu Marriage Act, 1956 ("the Act" for short), for a decree of divorce, on the ground of cruelty. 4. It was the case of the wife that her father died some where in the year 1989 leaving behind her and her mother. Father of the wife was running a shop at Manali. After the death of her father, there was none to look after the widowed mother and shop which was run by her father. Faced with the circumstances, the wife and husband shifted to the parental house of the wife and started living at that place. Wife started running her fathers business in the shop at Manali. The husband started transport business with the financial help of the wife and her mother. 5. The instances of cruelty, as disclosed in the petition are: (a) husband started pressurising the wife and her mother to transfer/ gift the property inherited by them to the husband. The wife and widowed mother refused to do so. For this reason the husband became indifferent and started maltreating the wife; (b) the husband demanded margin money from the wife and her mother for the purchase of two trucks. This money was arranged by the wife and her mother, as they feared that in case such finance was not arranged the husband would harass them; (c) the husband levelled false and defamatory allegations of unchastity and adultery against the wife. Husband made explicit allegation that the wife was having illicit relations with Khushal Chand, driver of the truck. This allegation was communicated by the husband to her wholesale dealers and others. 6. The husband resisted the petition, the allegations were controverted. The case of the husband was: He and his wife shifted to parental house of the wife during the life time of her father as the old couple was unable to maintain themselves and the business in the shop. 6. The husband resisted the petition, the allegations were controverted. The case of the husband was: He and his wife shifted to parental house of the wife during the life time of her father as the old couple was unable to maintain themselves and the business in the shop. Both husband and wife started running grocery shop of the father of the wife at Manali. Husband also invested his earnings in the shop and raised funds to promote the shop and his transport business. Husband denied the allegation that he ever asked wife or her mother to transfer their property in the name of husband. It was the case of the husband that he purchased two trucks from his own source and income from the grocery shop was always deposited in the banks in the name of the wife. The husband, however, repeated the allegation, in the written statement, that wife was living in adultery having illicit relations with Khushal Chand one of the drivers on the trucks of the husband. According to the husband, the wife used to elope with Khushal Chand for weeks together. The husband asked wife to stop illicit relations, as it adversely effected the reputation of the family, but without any response. It is the case of the husband that wife was so much obsessed with her illicit relations with Khushal Chand that she would openly claim that she could not live without Khushal Chand. The wife asked the husband to leave her society and demanded divorce. The husband refused to comply. It is for this reason, pleaded husband, that the petition for divorce was filed by the wife. 7. In the rejoinder, filed by the wife, the allegations made by the husband were controverted and the allegations made in the petition were reiterated. 8. On the pleadings of the parties, the following issues were settled by the learned trial court: 1. Whether the respondent has treated the petitioner with cruelty, as alleged? OPP 2. Whether the petitioner is entitled for the decree of divorce, as alleged? OPP 3. Relief. 9. The learned trial Judge, on appreciation of the evidence on record, held that the allegations made by the wife against the husband that he harassed the wife and her mother and wanted transfer of the property in his name was not substantiated. OPP 2. Whether the petitioner is entitled for the decree of divorce, as alleged? OPP 3. Relief. 9. The learned trial Judge, on appreciation of the evidence on record, held that the allegations made by the wife against the husband that he harassed the wife and her mother and wanted transfer of the property in his name was not substantiated. He also found that there was no sufficient evidence on record to prove any maltreatment or physical violence meted out to the wife by the husband. The learned trial Judge, however, held that the husband was successful in proving that the wife was living in adultery with Khushal Chand, and, therefore, was not entitled to divorce on any of the grounds. The learned trial Judge concluded: "It is apparent from the facts and circumstances as well as evidence on record that the petitioner has shunted out respondent from the matrimonial house after the filing of the present petition, as is also admitted by the petitioner. Various acts, commissions and omissions on the part of the petitioner have fully established on record and it is obviously for the reason that she has neglected the husband because of her living in adultery. The petitioner who has withdrawn from the society of the respondent due to her own misdeeds, therefore, she cannot be allowed to take benefit of her own misdoings." The learned trial Judge, also observed : "It is again well settled that if the charge of adultery is not established on record, the same amounts to cruelty towards the spouse against whom such allegations are made and entitles the spouse for the decree of divorce..............In the instant case since the respondent has been successfully levelled and proved the allegations of adultery against the petitioner, therefore, she is not entitled to any relief on this score also." 10. The petition resultantly was dismissed. 11. Dissatisfied the wife is in appeal. 12. We have heard Sh. Bhupender Gupta, learned Senior Advocate, instructed by S/Sh. Praneet Gupta and Ajeet Jaswal, learned counsel for the petitioner and Sh. C.B. Singh, learned counsel for the respondent. We have also been taken through the record and evidence on record at length by the learned counsel for the parties. 13. Dissatisfied the wife is in appeal. 12. We have heard Sh. Bhupender Gupta, learned Senior Advocate, instructed by S/Sh. Praneet Gupta and Ajeet Jaswal, learned counsel for the petitioner and Sh. C.B. Singh, learned counsel for the respondent. We have also been taken through the record and evidence on record at length by the learned counsel for the parties. 13. The only question which calls for an answer in this appeal, is whether an unsubstantiated allegation made by a spouse against the other spouse regarding adulterous behaviour or unchastity would constitute mental cruelty for the purpose of Section 13 (1)(ia) of the Act. Section 13(l)(ia) reads: "Divorce.—(1) Any marriage solemnised, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party— (i) has, after the solemnization of the marriage, had voluntary sexual inter-course with any person other than his or her spouse; or (i-a) has, after the solemnization of the marriage, treated the petitioner with cruelty; or (i-b).................." 14. It is pertinent to notice that cruelty was not a ground on which a decree for divorce could be granted under Section 13 of the Act prior to its amendment in 1976. The Hindu Marriage Act was amended by Act No. 68 of 1976 to include "cruelty" as ground under Section 13(1)(ia) of the Act for the grant of decree of divorce, "cruelty" has not been defined in the Hindu Marriage Act. Expression "cruelty" comprehends both physical and mental cruelty. In deciding whether the act, conduct or attitude of one of the spouses to the other amounts to cruelty, physical temperament, standard of living, social background of the spouses and other relevant circumstances have to be taken into consideration. Prior to its amendment in 1976 words "cruelty" in Section 10(l)(b) of the Act were qualified. The act, conduct or attitude was to be such as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious to live with the other party. These qualifying words were omitted by the amendment of Act in the year 1976. It was left to courts to interpret, analyse and define what would constitute cruelty in a given case depending upon several factors. These qualifying words were omitted by the amendment of Act in the year 1976. It was left to courts to interpret, analyse and define what would constitute cruelty in a given case depending upon several factors. The suggestions made in para 2.12 of the 590th report were turned down and the limited words namely, "such cruelty that the petitioner cannot reasonably be expected to live with the respondent" were not incorporated on the view that the court would even in the absence of such words broadly adopt the same approach. The broad test, therefore, in interpreting Section 13(1)(ia) will be whether the cruelty is of such type that the petitioner cannot reasonably be expected to live with the respondent or living together of the spouses had become incompatible. A Full Bench of the Bombay High Court in Dr. Keshaorao Krishnaji Londhe v. Nisha Londhe, AIR 1984 Bombay 413, observed: To conclude, in our view, the cruelty contemplated under Section 13(l)(ia) of the Act neither attracts the Old English. Doctrine of danger nor the statutory limits embodied in old Section 10(l)(b). The cruelty contemplated is a conduct of such type that the petitioner cannot reasonably be expected to live with the respondent." 15. The meaning of expression cruelty especially mental cruelty has now finally been settled by the Apex Court in V. Bhagat v. Mrs. D. Bhagat, AIR 1994 SC 710. Learned Judges observed: "In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. While arriving at such conclusion, regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the" parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively." 16. While arriving at such conclusion, regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the" parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively." 16. The circumstances in this case, as shall be presently discussed, are such that the parties cannot reasonably be expected to live together, more so when they are living separately for over eight years and there is no chance of any reconciliation due to suspicion of the husband that the wife was living in adultery. 17. We may now scrutinize the evidence to determine whether the allegations, made in the written statement, by the husband that the wife was living in adultery with Khushal Chand are made out and if not whether the parties can reasonably be expected to live together. 18. It is now well settled that the allegation made in the pleading about the adulterous behaviour of a spouse would constitute mental cruelty and a decree of divorce could be granted to the petitioner subject to limitation under Section 23(1)(a) of the Act, that is, the petitioner cannot be permitted to take advantage of his/her own wrong. Indeed, if the wife was factually living in adultery then she cannot be permitted to take advantage of the same and ask for divorce on that ground. 19. The Husband in para 6 of his written statement repeated the allegation of adultery on the part of the wife by stating : "the respondent very reluctantly submits that the petitioner developed illicit relations with one of the drivers of the truck of respondent namely Khushal Chand and used to elope with him. She was many times told by the respondent to stop such activities as it would reflect on the repute of family and future of children as well. But the petitioner was so much engrossed in the illicit relations that she would go to places out of Kullu with the truck drivers and would return after weeks together............ This illicit affair with the truck driver had made her so stubborn that she usedto claim that she cannot leave the drivers company and would do any thing for him." 20. This illicit affair with the truck driver had made her so stubborn that she usedto claim that she cannot leave the drivers company and would do any thing for him." 20. The allegation of adultery is repeated by the husband in his statement, while appearing as RW-1. He stated that he had purchased the truck on which he employed Khushal Chand. The wife started going in the truck with Khushal Chand. She had developed illicit relations with Khushal Chand. In his own words "I purchased one truck in which Khushal Chand was employed as driver. The petitioner started going to Delhi with Khushal Chand in the truck. She used to go on the pretext of buying goods and developed illicit relations with Khushal Chand." In the cross-examination, he admitted that Hima used to say that Khushal Chand was like brother to her. He also admitted that he had no personal knowledge about the illicit relations between the wife and Khushal Chand. According to the husband, the only reason for him to suspect illicit relations of the wife with Khushal Chand was that in his absence the wife used to go to Khushal Chand. He was informed about this by the wife of Khushal Chand. He was unable to say when on which month or year the wife of Khushal Chand informed him about the illicit relations of the wife with Khushal Chand. It is his evidence in the cross-examination that when he came to know about the illicit relations of the wife with Khushal Chand he dismissed Khushal Chand from the service. He denied the suggestion that he wrongly suspected his wife of illicit relations. It is his evidence that he had lodged a report about the adulterous behavior of the wife with the Police Station in the year 1996 after having caught wife and Khushal Chand at his residence and the wife had admitted about her illicit relations with Khushal Chand in the Police Station. The husband has not produced even the report which was allegedly lodged by him. He did not bother to examine the Station House Officer or competent officer before whom such admission was made by the wife. Legitimate presumption can be drawn under Section 114 of the Evidence Act, that if such officer from the Police Station was produced, he would not have supported the case of the husband. He did not bother to examine the Station House Officer or competent officer before whom such admission was made by the wife. Legitimate presumption can be drawn under Section 114 of the Evidence Act, that if such officer from the Police Station was produced, he would not have supported the case of the husband. The evidence of husband does not prove the, allegation of adultery made against the wife. At best his evidence reflects his suspicion though without any acceptable reason. 21. The other witness Sonam Norbu (RW-2) is uncle of the wife. It is his evidence that he came to know from the people and husband that she has turned out the husband from her house. He does not speak a word about the illicit relations between the wife and Khushal Chand. In the cross-examination, he did state that he had seen the wife coming out from the house of Khushal Chand. When further pressed he admitted that there are 8 to 10 houses between his house and that of Khushal Chand and that house of Khushal Chand cannot be seen from his house. In other words he candidly admitted that he could not have seen the wife coming out from the house of Khushal Chand. 22. Bishan Dass, (RW-3) is again uncle of the wife. It is his evidence that he heard that the wife had divorced the husband regarding which the litigation was pending. He also stated that he heard that the wife was marrying a driver which she had kept. The evidence of this witness is hearsay of the worst kind and cannot be relied upon to conclude that the wife had illicit relations with Khushal Chand. 23. Jyoti Parkash (RW-4) merely stated that Puran Chand informed him that his wife had illicit relations with a driver and that he had also heard from others too. In the cross-examination he admitted that his house is 4 kilometres away from Manali. The evidence of this witness too is of no assistance td the husband being hearsay. 24. It may also be noticed that the husband claimed to have informed the Presidents of Beopar Mandal and Mahila Mandal about the illicit relations of the wife with Khushal Chand but none of them was produced. 25. The evidence of this witness too is of no assistance td the husband being hearsay. 24. It may also be noticed that the husband claimed to have informed the Presidents of Beopar Mandal and Mahila Mandal about the illicit relations of the wife with Khushal Chand but none of them was produced. 25. On the other hand, the wife appearing as PW-1 denied that she had ever gone with Khushal Chand in his truck or she had any illicit relations with Khushal Chand. The entire case of the husband is based on rumors and imagination. 26. Learned Additional District Judge gravely erred in basing his finding about the illicit relations of the wife with Khushal Chand on hearsay evidence of the husband, Sonam Norbu (RW-2), Bishan Dass (RW-3) and Jyoti Parkash (RW-4), as discussed above. 27. It is true that there can be ordinarily no direct evidence of adultery. It is also very difficult to produce evidence of the party in actual compromising position. The finding of adultery must necessarily depend on circumstantial evidence. Even a circumstantial evidence pointing out the offending parties being found together in unusual circumstance in a secluded place for a long period would not itself prove adultery. In the present case, as noticed earlier, there is no evidence on record to show that the wife was found either in the house of Khushal Chand or Khushal Chand was found with the wife alone at unusual hours even at the residence of the wife. Thus, the husband failed to prove the illicit relations of wife with Khushal Chand even by circumstantial evidence. In the absence of any acceptable evidence on record it cannot be said that wife was having illicit relations with Khushal Chand or committed adultery. 28. It is well settled that false scandalous malicious and unproved allegations made by a spouse against the other in the written statement amount to cruelty for the purpose of Section 13(l)(ia) of the Act. Reference may be made to Shakuntala Kutnari v. Om Parkash, AIR 1981 Delhi 53; Lajwanti Chandhok v. O.N. Chandhok, AIR 1982 NOC 111; Kiran Kapur v. Surinder Kumar, 1982 RLR 36; Smt. Savitri Balchandani v. Mulchand Balchandani, AIR 1987 Delhi 52. In the present case, the allegation of adultery made by the husband in the written statement were repeated on oath by the husband. In the present case, the allegation of adultery made by the husband in the written statement were repeated on oath by the husband. In these circumstances unsubstantial allegation of adultery, in our view, would constitute cruelty for the purpose of Section 13(l)(ia) of the Act. A false allegation of adultery by a spouse made public and given publicity results in mental agony and loss of face in public which amounts to worst type of cruelty. In Jaishree Mohan Otavnekar v. Mohan Govind Otavnekar, AIR 1987 Bombay 220, there was unfounded allegation of adultery in the written statement by the husband against the wife. Such allegation itself was held to be cruelty which could form basis of decree of divorce. Their Lordships in that case observed that there can be no more insulting injury to the wife than her own husband doubting her chastity. It was observed that mental cruelty resulting from such insult is a matter of judicial inference which can form basis for decree of divorce. We are in agreement with this view. 29. In Smt. Santana Banerjee v. Sachindra Nath Banerjee, AIR 1990 Calcutta 367, a false allegation by the wife was made against the husband that he was having illicit relations with a office colleague, which was with the knowledge and consent of the husbands sister. Such allegation, ruled Division Bench of the Calcutta High Court, cannot but cause great mental pain, amounting to cruelty under the Act. 30. In Pushpa Datt Mishra v. Archana Mishra alias Premvati Choubey, AIR 1992 Madhya Pradesh 260, allegation of adultery against the husband was made by the wife which was repeated in the testimony before the court. The allegation was found to be reckless. In this context Dharmadhikari, J. as his Lordship then was, held: "the reckless allegation of the wife in her pleadings and in her testimony before the Court alleging adultery against the husband furnishes a ground to grant a decree of divorce in favour of the husband on the ground of cruelty." 31. In Smt Chanderkala Trivedi v. Dr. S.P. Trivedi, 1993 (3) Scale 541, the husband sued for divorce on the ground of cruelty by wife. The wife filed a written statement attributing adultery to the husband. In reply, husband made allegation against the wife that she was having undesirable association with young boys. Considering the mutual allegations. In Smt Chanderkala Trivedi v. Dr. S.P. Trivedi, 1993 (3) Scale 541, the husband sued for divorce on the ground of cruelty by wife. The wife filed a written statement attributing adultery to the husband. In reply, husband made allegation against the wife that she was having undesirable association with young boys. Considering the mutual allegations. The Apex Court observed: "Whether the allegation of the husband that she was in the habit of associating with young boys and the findings recorded by the three courts are correct or not but what is certain is that once such allegations are made by the husband and wife as have been made in this case then it is obvious that the marriage of the two cannot in any circumstance be continued any further. The marriage appears to be practically dead as from cruelty alleged by the husband it has turned out to be at least intimacy of the husband with a lady doctor and unbecoming conduct of a Hindu wife." (Emphasis supplied) 32. In that case it was urged on behalf of the husband that the wife has failed to establish the charge of adultery levelled against him and that the charge of adultery must be proved beyond reasonable doubt. Dealing with the argument, the learned Judge observed: "But we do not propose to examine it as we are satisfied that the marriage is dead and the findings of fact cannot be set aside by this Court except that the appeal can be sent back to Division Bench to decide it again." 33. This ratio was approved by the Apex Court in V. Bhagat v. D. Bhagat. 34. In our view, considering the allegations of unchastity and adultery made by the husband against the wife, the relationship between the parties has deteriorated to an extent that it is no longer possible for them to live together without mental agony. 35. In P.K.Vijayappan Nair v. J. Ammini Amma, AIR 1997 Kerala 170, it was observed: "After the Hindu Marriage (Amendment) Act, 1976 the petitioner need only establish that respondent had treated him with cruelty. He need not show that cruelty must be such as to cause reasonable apprehension that it would be harmful or injurious to the appellant. 35. In P.K.Vijayappan Nair v. J. Ammini Amma, AIR 1997 Kerala 170, it was observed: "After the Hindu Marriage (Amendment) Act, 1976 the petitioner need only establish that respondent had treated him with cruelty. He need not show that cruelty must be such as to cause reasonable apprehension that it would be harmful or injurious to the appellant. Cruelty should be of the type which will satisfy the conscience of the court that the relationship between the parties has deteriorated to such an extent that it has become impossible for them to live together without mental agony." 36. We also draw support from the following observations made in Roopa Reddy v. Prabhaker Reddy, AIR 1994 Kant 12: "Marriage is an union of 2 hearts. Success of married life depends on the edifice built with the mutual trust, understanding, love, affection, service and self sacrifice. Once this edifice is shaken, happy married life will be shattered into pieces. The result is one of misery and emotion. Whether one accepts it or not liberalization in the way of living of individuals and reformation in age old customs and due to modernization and understanding of individual rights and equal status irrespective of sex it is natural for either of the spouse to seek for dissolution. Where the marriage tie has been broken the Court has to look to the interest of the parties and the welfare of the children as paramount. When it is impossible to live like husband and wife, any cumpulsion to unite them will lead to social evils and disturbance of mental peace and disorder in the family life. However, rigid social fabric, it is not the social system but the personal safety of the parties to the wedlock shall prevail This should be the guiding principle in view of Section 13(B)(1) of the Act. There is complete destruction of the essence of marriage between parties and it has reached the stage of irretrievable breakdown."(Emphasis given) 37. In the present case, if the husband having made reckless and unsubstantiated allegation against wife, still wants to live with the wife then it cannot but be with the motive to make the life of the wife intolerable and full of mental suffering. It is apparent that the marriage between the parties has broken down irretrievably without any hope of they living together again. It is apparent that the marriage between the parties has broken down irretrievably without any hope of they living together again. Situation is such the wife cannot be asked to continue to live with the husband any more. 38. In V. Bhagat v. D. Bhagat, their Lordships observed: "It is her case that the petitioner is genetically insane. Despite all that, she says that she wants to live with the petitioner. The obvious conclusion is that she has resolved to live in agony only to make life a miserable hell for the petitioner as well. This type of callous attitude in the context of facts of this case, leaves no manner of doubt in our mind that the respondent is bent upon treating the petitioner with mental cruelty. It is abundantly clear that the marriage between the parties has broken down irretrievably and there is no chance of their coming together, or living together again." 39. To conclude, we are of the view that it is not possible for the parties to live together in harmony and peace. The marriage has reached the stage of irretrievable breakdown and the parties cannot be expected to live together. 40. In result we allow the appeal. The impugned judgment and decree of the learned Additional District Judge, Kullu dated January 7, 1997 is set aside. The petition of the wife is allowed. The marriage between the parties is hereby dissolved by a decree of divorce on the ground of cruelty. No order as to costs. Appeal allowed. -