Judgment (1.) THIS first appeal is at the instance of a wife in a suit for divorce and is directed against the judgment and decree dated 29th march, 2001 passed by the learned additional District Judge, 6th Court, alipore in Matrimonial Suit No. 72 of 1997 thereby passing a decree for divorce. (2.) BEING dissatisfied, the wife-respondent has come up with the present first appeal. (3.) THE husband-respondent filed a suit for divorce being Matrimonial Suit no. 72 of 1997 and the case made out by the respondent may be precised thus:- (a) The parties were Hindus and were married according to Hindu rites and custom on 5th July, 1987 and 1/7, New Tollygunge, P. S. Regent Park, Calcutta-700 042. (b) After the marriage, the relationship between the parties was not good and the behaviour of the appellant towards the respondent was very rude and rough. The appellant appeared to be very greedy and dominating in nature and she had no independent thinking about leading a family life and making the married life a fruitful one. Her wishes were always controlled by her family members and they acted in a purposive way. They indulged the appellant to treat the husband in an inhuman manner and the wife ultimately became very selfish and unscrupulous. (c) Within 15 to 20 days of the marriage, the appellant began to show her restlessness, ill behaviour and unwillingness to stay with the husband. The husband lived in a joint family with his parents and the appellant pressurised the husband to live separately from his parents and to stay along with the parents of the wife as domesticated son-in-law. The husband did not agree to such proposal and consequently, the wife became furious, treated the husband with cruelty by breaking household articles, denying cooking of food, abusing the husband with filthy languages, and even went to the length of beating the husband with fist and blows. (d) In the wedlock of the parties, a girl child was born on 9th december, 1988 and the wife in her fit of anger used to beat the child mercilessly. She had no motherly feeling for the child. (d) In the wedlock of the parties, a girl child was born on 9th december, 1988 and the wife in her fit of anger used to beat the child mercilessly. She had no motherly feeling for the child. (e) To avoid all such cruelties and mis-behaviour and motivated acts and deeds, the husband agreed to remain separate from his family in a police quarter at 47, S. P. Mukherjee road, Calcutta-700 026 since august 8,1987, the husband being a police staff under the Government of West Bengal. (f) The conduct of the wife was not good. She was a woman of bad taste and used to mix up with undesirable people and for the above reason, the husband filed a matrimonial Suit No. 955 of 1990 in the Court of the learned District Judge at alipore for divorce. However, the said suit was settled amicably on 31st August, 1994. (g) After the settlement of the said suit, the husband brought back the wife at 47, S. P. Mukherjee Road and wanted to start a new life forgetting the past but to the utter misfortune of the husband, just after few days, she began her ill-treatment and misbehaviour towards her husband. (h) The wife started quarrelling with the husband without any rhyme or reason and even stopping cooking of food and without doing household duties and started using disrespectful and filthy language towards the husband. Her attitude towards the child was also cruel. (i) The wife regularly started visiting the office of the husbandand often threatened that she would commit suicide for harassing the family members of the husband, although, she was staying alone in the police quarter. (j) In view of inhuman cruel treatment, and having failed to cope with the situation, the husband left the quarter, and started staying in the houses of his friends and relatives from 9th January, 1997. (k) The wife lodged false complaint in the office of the husband making baseless allegation, demanding the maintenance though the husband was paying maintenance to the wife regularly. In view of false complaint lodged by the wife, the husband was transferred to murshidabad. Some police officers, taking advantage of the plight of the husband, coerced him to deposit rs. 1,200/- a month in the Bhowanipore police Station. In view of false complaint lodged by the wife, the husband was transferred to murshidabad. Some police officers, taking advantage of the plight of the husband, coerced him to deposit rs. 1,200/- a month in the Bhowanipore police Station. The wife, thus, treated the respondent with such cruelty that it was harmful and injurious for the husband to live with the appellant. The wife was also guilty of constructive desertion. Hence the suit. (4.) THE suit was contested by the appellant by filing written statement and the defence taken by the appellant may be summed up thus:-(i) There was no cause of action for filing the suit, which was a misconceived and harassing one, and containing false, fabricated, frivolous and manufactured story purposely designed with ulterior motive. (ii) It was the husband who arranged a police quarter at 47, S. P. Mukherjee Road where they were living as husband and wife and in the wedlock a daughter was born and thereafter, the husband and his family members used to misbehave with the wife and also used to hackle, humiliate and hate the wife and her and relations without any just cause and reasons. (iii) The husband is a man of bad temperament and the conduct of the husband was not good and gentle. He was a man of bad taste and culture and is a drunker and everyday he used to come back in the midnight and thereafter used to start shouting without any just cause and used to defame the wife openly saying that she was a woman of bad taste and used to mix up with undesirable people. (iv) In the year 1990, the husband intentionally and purposely initiated a matrimonial proceeding being matrimonial Suit No. 77 of 1991 in the Court of the Additional district Judge, 8th Court at Alipore on the ground of cruelty and made false and fabricated allegations therein. However, the said suit was dismissed for non-prosecution on 1 st September, 1994 and from that day, both the parties started jointly living in the police quarter at 47, S. P. Mukherjee Road. After a few months, the husband again started torture both mentally and physically and as a matter of fact, the husband used to meet with her friend namely, one S and enjoy with her sometime in her house or elsewhere and the husband used to come back at his home at midnight. After a few months, the husband again started torture both mentally and physically and as a matter of fact, the husband used to meet with her friend namely, one S and enjoy with her sometime in her house or elsewhere and the husband used to come back at his home at midnight. The wife craved leave to refer to the hand written letters written by S to the husband at the time of hearing of the suit. (v) Without giving any information to the wife and without paying maintenance to her and her child, the husband shifted to Murshidabad and after that, he entirely stopped the maintenance, as a result, the wife was compelled to approach the superior officer of the husband at calcutta for meeting the requirement of food, medicines, etc. for herself and her child. The wife never used any filthy language to the husband nor did she misbehave with the husband; on the contrary, the husband always created scene and insulted the wife before the other residents, office staff and neighbours around the said quarter. (5.) AT the time of hearing of the suit the husband himself, his brother-in-law and one of the employees of the West Bengal Police gave evidence in support of the plaint case while the wife alone deposed in opposing the prayer for divorce. The husband exhibited the joint petition of withdrawal of the earlier matrimonial proceedings as well as the order passed thereon and the written complaint filed by the wife before the office of the husband. The wife, on the other hand, produced the application filed by the husband to the superior authority praying for allotment of the official quarter on the ground that due to misbehaviour of the landlord of the then tenanted accommodation, he was not in a position to stay in the said rented accommodation. (6.) ALTHOUGH, the wife filed two original letters alleged to have been written by S to the husband, these two letters were not exhibited as the plaintiff refused to examine the writer of the said letter, namely,S. (7.) THE learned Trial Judge on consideration of the materials-on-record came to the conclusion that it would appear from the order passed in the earlier matrimonial proceedings that the wife expressed her regret for all the misunderstanding and requested the husband to take her to the matrimonial home and consequently, the suit was dismissed for non-prosecution. According to the learned Trial Judge, the aforesaid order-sheet of the earlier suit indicated that in her written statement, the wife made false statement that the suit was dismissed for non-prosecution and she really suppressed the truth before the court that on expressing regret for her behaviour, the husband took her back. The learned Trial Judge further came to the conclusion that Exhibit-3 had pointed out that a complaint was lodged before the Additional Director General of Police by the respondent and it also appeared that the wife alleged that the husband had illicit connection with one s, but she did not examine the said S nor could she prove above those letters. The learned Trial Judge, thus, concluded that the aforesaid acts on the part of the wife of making false allegations against the husband amounted to cruelty. The learned Trial Judge further opined that the marriage between the parties had broken-down irretrievably and thus, it was a fit case for granting a decree for divorce. (8.) BEING dissatisfied, the wife has come up with the present appeal. (9.) MR. Ghosh, the learned Advocate appearing on behalf of the appellant attacked the judgment and decree passed by the learned Trial Judge on the ground that the husband could not prove the allegations made in the petition for divorce and as such, the learned trial Judge erred in law in passing a decree for divorce only on the ground that the marriage had broken-down irretrievably. Mr. Ghosh further contends that it would appear from the Exhibit-B, the letter written by the husband to his superior officer for allotment of the official quarter that the allegation that the wife compelled him to come out of his family by severing relationship with his parents was a false statement because it appeared from the said letter that it was the maltreatment of the landlord of the tenanted premises held by the family of the husband that compelled the husband to vacate the said tenanted house and to come to the police quarter. (10.) IT is further contended that the allegation that the husband had illicit affairs with one S cannot be said to be unfounded and baseless, and merely because the appellant could not prove such fact by production of sufficient evidence, no decree for divorce could be passed although the husband had failed to prove his case of cruelty in the petition for divorce. It is pointed out that the husband did not dispute the other allegation that S was the wife of a co-employee and that she was one of his colleagues. (11.) MR. Ganguly, the learned Advocate appearing on behalf of the respondent-husband, however, has opposed the aforesaid submissions advanced by the learned Advocate for the appellant and has contended that in the case before us, the behaviour of the wife itself showed that those amounted to cruelty. Mr. Ganguly submits that even in the letter written to the Additional Director General of Police, the wife threatened to commit suicide and such letter proved the allegation of the husband that she used to give threat of committing suicide. Mr. Ganguly further submits that in this case, the wife having failed to prove the alleged handwriting of S, the learned trial Judge rightly disbelieved such case and on that ground of unfounded allegation of the wife regarding the moral character of the husband, the learned trial Judge rightly passed a decree for divorce. (12.) IN support of his contentions Mr. Ganguly places before us the following decisions:- (1) Praveen Mehta v. Inderjit Mehta, reported in 2002 (5) SCC 706 ; (2) C.V.N. Kameswara Rao v. G. Jabilli, reported in 2002 SCC 296 ; (3) V. Bhagatv. Mrs. D. Bhagat, reported in AIR 1994 SC 710 ; (4) Naveen Kohli v. Neelu Kohli, reported in 2006 (4) SCC 558 ; (5) Kakali Das v. Asish Kumar Das, reported in 2004 (3) CHN 516 ; (6) Smt. Nivedita Banerjee v. Sanat Kumar Banerjee, reported in 1999 (II) CHN 625 ; (7) Sukhomoy Bag v. Mrs. Jaya Bag, reported in 1996 (1) GHN 210; (8) Smt. Nirmala Manohar Jagesha v. Manohar Shivram Jagesha, reported in AIR 1991 Bombay 259; (9) Mrs. Manisha Sandeep Gade v. Sandeep Vinayak Gade, reported in AIR 2005 Bombay 180; (10) Smt. Kamini Gupta v. Mukesh Kumar Gupts, reported in air 1985 Delhi 221; (11) Dr. Autar Singh Paintal v. Mrs. Jaya Bag, reported in 1996 (1) GHN 210; (8) Smt. Nirmala Manohar Jagesha v. Manohar Shivram Jagesha, reported in AIR 1991 Bombay 259; (9) Mrs. Manisha Sandeep Gade v. Sandeep Vinayak Gade, reported in AIR 2005 Bombay 180; (10) Smt. Kamini Gupta v. Mukesh Kumar Gupts, reported in air 1985 Delhi 221; (11) Dr. Autar Singh Paintal v. Mrs. Iris Paintal, reported in AIR 1986 Delhi 60; (12) Smt. Kalpana Srivastava v, Surendra Nath Srivastava, reported in AIR 1985 Allahabad 253. (13.) THEREFORE, the first question that arises for determination in this appeal is whether the husband has been able to prove the allegations of cruelty as pleaded in the application for divorce. (14.) IN the petition for divorce, the first allegation is that the wife was guided by the members of her fathers family who instigated the wife to bring the husband in their family as a domesticated son-in-law and for that reason, she started cruel behaviour against the husband, as he did not agree to such proposal. Secondly, the wife used to break household articles, refused to cook for the husband, and even went to the extent of beating the husband wife fists and blows. Thirdly, the wife used to beat the daughter of the parties mercilessly and had no motherly feeling for the child. Fourthly, the conduct of the wife was not good, she was a woman of bad taste and used to mix with undesirable people. Lastly, she made false allegation against the husband in his office of nonpayment of maintenance, and for that reason, the husband was transferred. (15.) IN evidence, the wife specifically asserted that due to bad behaviour of the landlord of the premises at Kundghat where the joint family of the husband use to reside, the husband applied for police quarter and such fact has been corroborated by the letter of the husband to the superior officer of the husband. It further appears that all the members of the husband family, including the mother, the brother and the brothers wife took shelter in the office quarter of the husband in the year 1987 and from the year 1990, the mother and the brothers family shifted to the own house at Bansdroni. No suggestion to the contrary was given to the wife in her cross-examination alleging that those statements are false. No suggestion to the contrary was given to the wife in her cross-examination alleging that those statements are false. Even the mother or brother or any members of the brothers family has not been examined to deny the allegation that all of them resided in the police quarter for three years before they shifted to their own house at bansdroni. Regarding the breaking of household articles or misbehaviour of the wife, the mother and the members of the brothers family who lived jointly with her were the best witnesses; but for the reason best known to the husband, he did not examine those persons. However, the sisters husband of the respondent has deposed stating that on seven or eight occasions, he went to their quarter and on one of such occasions, the wife refused to prepare tea for him in spite of request of the husband. Such fact was denied and the said witness even could not disclose the date of such visit. It was suggested to him that he never visited the quarter. (16.) FROM the aforesaid materials, it is well established that the husband has made deliberate false statements against the wife that she wanted to live separately from the husbands family; on the other hand, it is proved beyond doubt that the ill-treatment of the landlord of the tenanted premises compelled them to come to the police quarter and in that quarter all the members of the joint family of the husband resided for the next three years till they shifted to their own house in bansdroni in the year 1990. We also find that allegation of not cooking food has not been established by the evidence of the other members of the joint family. (17.) SIMILARLY, the beating of the daughter has not been proved by any cogent evidence and no independent witness has come forward to prove such facts. In evidence, the husband alleged that the wife started beating the daughter when she was barely seven months old. We are unable to accept such statement in the absence of any corroborative evidence. The facts remains that the daughter is all along staying with the mother without any complain. (18.) NO evidence has been adduced by the husband as regards the allegation that the wife used to mix with undesirable people and thus, such allegation had no basis at all. The facts remains that the daughter is all along staying with the mother without any complain. (18.) NO evidence has been adduced by the husband as regards the allegation that the wife used to mix with undesirable people and thus, such allegation had no basis at all. As regards the last allegation, that the wife made false complaint against the husband of non-payment of maintenance is equally devoid of any substance. The husband could easily prove by production of money order coupon that the maintenance was paid regularly. However, no evidence is forthcoming to show that he used to pay maintenance. If the husband leaves the wife and the school-going child in the police quarter and does not pay any maintenance, the wife did not commit any wrong by writing letter to the employer and praying for deduction of maintenance from his salary. The higher authority of the employer being satisfied with the allegations of the wife made direction for deduction of Rs. ,200/-a month from his salary. It appears that the husband did not challenge such decision before any forum and accepted such arrangement. We are unable to accept the submission of Mr. Ganguly that writing of letter complaining non-payment of maintenance amounts to cruelty even if such allegations are found to be correct. If we accept the contention of mr. Ganguly that such act amounts to cruelty, then even if the wife on a just cause goes to Court alleging nonpayment of maintenance and gets an order of attachment of salary directing the employer to pay money direct to the wife or successfully approaches a criminal Court under Section 125 of the Code of Criminal Procedure and lawfully obtains an order directing payment of maintenance to the husband on the teeth of punishment, such fact should also be described as an act of cruelty. We are also not impressed by the submission of Mr. Ganguly that the wife used to utter threats to commit suicide and such fact would appear from the letter of the wife written to the employer of the husband. In the said letter, the wife merely stated that if no maintenance were received from her husband, she along with her child would be left with no other alternative but to commit suicide. In the said letter, the wife merely stated that if no maintenance were received from her husband, she along with her child would be left with no other alternative but to commit suicide. We have already pointed out that the fact of non-payment of maintenance has been established in this case and thus, the statement made in the said letter was the reflection of despair due to unlawful and inhuman conduct of the husband and cannot be termed as "a threat to commit suicide without just reason". We, therefore, find that the husband has failed to prove any of the allegations of cruelty pleaded in the petition for divorce and on the other hand, even did not dare to state anything in evidence on oath as regard his allegation in the pleading that the wife used to mix with undesirable people and such fact indicates that there was no basis of such untrue allegation against his wife about her moral character. (19.) THE next question is whether the husband is entitled to get a decree for divorce simply because the wife could not prove the alleged illicit relation of the husband with S, which she pleaded in the written statement notwithstanding the fact that the husband failed to prove the allegations made in the plaint. (20.) IN the written statement, the wife has made the following allegations against-her husband involving S: "as a matter of fact, the petitioner used to meet his female friends namely S (we have not quoted the full name) and enjoy with her some time in her house or elsewhere and the petitioner used to come back at his home at every mid night as a drunker. The respondent craves leave to refer the hand written letter which was written by the said S at the time of hearing of the instant suit". (21.) THE wife, in fact, filed two such letters alleged to have been written by S to the husband. The respondent craves leave to refer the hand written letter which was written by the said S at the time of hearing of the instant suit". (21.) THE wife, in fact, filed two such letters alleged to have been written by S to the husband. Again, at Paragraph-9 the following allegations are made:- "on the contrary the petitioner used to live with one lady namely s some time at her house and some time the other place and enjoy with her as a husband and wife and the petitioner regularly used to come back at home i. e. the police quarter in mid night as drunken and after that the respondent and her minor daughter have been tortured in every night at the hands of the petitioner. " (22.) WHEN such allegations have been made in the written statement, it is the duty of the husband to deny in the Examination-in-Chief either that there is no S, known to her or that although he knows S, there is no illicit connection with her or that the wife in collusion with S had procured those letters to defame him. (23.) THE husband in his Examination-in-chief made the following statements as regards the allegations involving S: "it is false to say that I am in illicit relation with one S (we have avoided quoting the full name). Not a fact I used to pass nights outside with other female friends. " (24.) THE wife in her Examination-in-chief did not utter a single word about S but in cross-examination in answer to the question put to her by the learned Counsel for the husband made the following statements:-"i know Sm. S (full name now given by us). She resides in tollygunge Police Quarter. Her husband died and in place of her husband she serves at present. I have two letters to show that my husband meets his female friend, viz. S and enjoys with her sometimes in her house or elsewhere Resides those two letters I have no other proof in this regard. I am not willing to examine her as my witness in this case. Not a fact that my allegation against my husband concerning S is false and got up. S and enjoys with her sometimes in her house or elsewhere Resides those two letters I have no other proof in this regard. I am not willing to examine her as my witness in this case. Not a fact that my allegation against my husband concerning S is false and got up. " (25.) IT is now settled law that in order to get a decree for divorce on the ground of making baseless allegation made in the written statement of a party, it must be clearly established that such allegation was really a baseless one. Mere fact that the party filing written statement could not prove such fact will not be a ground for divorce; on the other hand, if it is established from the evidence that such allegation was evidently false, a court can pass a decree because of such false allegations in the written statements. It is preposterous to suggest that although the inability of a party to prove the cruelty alleged in the plaint will result in mere dismissal of the claim of divorce, the failure of a defendant to prove the counter-allegation in the written statement for want of sufficient evidence will automatically confer right upon the applicant to get a decree for divorce notwithstanding the fact that such plaintiff failed to prove the case made out in the plaint. The law is that the allegation concerning moral character of a party made in the written statement must be baseless. It is for the person claiming divorce to prove that the allegations so made in the written statement are baseless. Therefore, if the spouse making such allegation in the written statements fails to prove such fact by giving evidence, according to law, such fact is "not proved". However, if a particular fact is not proved, the same does not become baseless unless the same is found to be false and it is for the spouse claiming divorce to lead at the least convincing evidence to "disprove" such allegation to evince to the Court that those allegations were false and baseless. In this connection, we may refer to the following observations of the Supreme Court in the case of A. Abdul Rashid Khan v. P. A. K. A. Shahul Hamid, reported in 2000 (10) SCC page 636 at Paragraph-11 thereof:-"there is difference between "not proved" and "false". In this connection, we may refer to the following observations of the Supreme Court in the case of A. Abdul Rashid Khan v. P. A. K. A. Shahul Hamid, reported in 2000 (10) SCC page 636 at Paragraph-11 thereof:-"there is difference between "not proved" and "false". Merely not able to prove cannot be in all cases categorised as false. Thus, we find that even this submission for the appellants has no merits. " (26.) IN this case, the wife produced two letters allegedly written by S to the husband for showing illicit relation between them. She could not prove the handwriting of S and consequently, those letters were not marked exhibits. We can, therefore, safely hold that those letters could not be proved by the wife in accordance with the Evidence Act. If the husband wants to get a decree on the ground that the allegations were baseless, he is required to prove that those are manufactured letters produced by the wife and not really written by S. In this case, the very existence of S has not been denied by the husband. The wife in cross-examination stated that the husband of S was an employee of the police and after his death, she has been given employment and that she was staying in the police quarter at Tollygunge. No suggestion was given to the wife in cross-examination that no such person named S was staying in the police quarter or that her husband was not a coemployee of the husband. It was not even asserted by the husband that the wife in collusion with S had procured those letters in order to defame him. All that was stated in his evidence was that he had no illicit relation with S. We are quite conscious that a negative fact cannot be proved by giving positive evidence. But in a situation like the present onewhere the wife has produced two letters allegedly written by S to the husband for showing illicit relation with her husband, the husband could easily summon the said S to the witness box to deny the writing of those letters or for appointment of a handwriting expert for examination of the handwriting appearing in those letters with the admitted handwriting of S. The admitted handwriting of S could be easily available even from the official records of the police department she being an employee thereof. If such course was adopted by the husband and it was proved that those letters were manufactured ones, the Court, without any hesitation, could declare such allegation as baseless one and pass a decree of divorce in favour of the husband. In this case, the learned Trial Judge blamed the wife for not examining S and in doing so she totally overlooked the well-settled law that a party cannot be compelled to examine his opponent or the person sailing in the same boat with the opponent as his own witness knowing fully well that such person will speak against him. In view of the allegations levelled and in the absence of any counter case made by the husband of collusion between the S and the wife, S is supposed to support the husband for showing her innocence. We, therefore, find that although the wife could not prove her allegations as regards involvement of the husband with s, having regard to the nature of evidence adduced in this case and in view of filing of the two letters by the wife and the reluctance on the part of the husband to take step for falsifying the genuineness of those letters, we are unable to conclude that the husband has been able to prove such allegation as baseless so as to pass a decree in his favour. (27.) WE now propose to deal with the decisions cited by Mr. Ganguly. (28.) IN the case of Praveen Mehta v. Inderjeet Mehta (supra), right from the day one after marriage the wife was not prepared to co-operate with her husband in having sexual intercourse. When the husband offered to have the wife treated medically, she refused. As the condition of her health deteriorated, she became irritating and unreasonable in her behaviour towards the husband. She misbehaved with his friends and relations. She even abused him, scolded him and caught hold of his shirt collar in the presence of the elderly persons. All attempts made by husband to persuade his wife and her parents to agree to go for proper medical treatment to improve her health so that the parties might lead a normal sexual life proved futile. Within few months of the marriage, the wife started to stay away from the matrimonial home and the husband was deprived of her company. All attempts made by husband to persuade his wife and her parents to agree to go for proper medical treatment to improve her health so that the parties might lead a normal sexual life proved futile. Within few months of the marriage, the wife started to stay away from the matrimonial home and the husband was deprived of her company. In such circumstances, the husband who was enjoying normal health was likely to feel a sense of anguish and frustration in being deprived of normal cohabitation that every married person expects to enjoy and for the social embarrassment caused due to the behaviour of the wife. Further, the conduct of the wife in approaching the police complaining against her husband and his parents and in not accepting the advice of the superior judicial officer and taking a false plea in the case that she had conceived but unfortunately there was mis-carriage were bound to cause a sense of mental depression in the husband. The cumulative effect of all these on the mind of the husband, according to the Apex Court, amounted to mental cruelty caused due to the stubborn attitude and inexplicably unreasonable conduct of the wife. In the case before us, the husband failed to prove the specific allegations of cruelty pleaded in the plaint and also could not disprove the allegations made in the written statement as regards his moral character. Therefore, the said decision has no application to the facts of the present case. (29.) IN the case of C. V. N. Kameswara Rao v. G. Jabilli (supra), it was held that false police complaint and consequent loss of reputation and standing in the society at the instance of the spouse amounted to cruelty. In the case before us, no such incident had occurred. We have already pointed out that just complaint before the employer alleging non-payment of maintenance and prayer for deduction of the maintenance from the salary of husband did not amount to cruelty. The said decision, thus, does not help the husband in anyway in this case. (30.) BY relying upon the decision of the Supreme Court in the case of v. Bhagat v. Mrs. D. Bhagat (supra), mr. Ganguly tried to convince us that this Court should not interfere with the decree for divorce granted by the trial court simply on the ground that the marriage between the parties has brokendown irretrievably. (30.) BY relying upon the decision of the Supreme Court in the case of v. Bhagat v. Mrs. D. Bhagat (supra), mr. Ganguly tried to convince us that this Court should not interfere with the decree for divorce granted by the trial court simply on the ground that the marriage between the parties has brokendown irretrievably. The following observations made in Paragraphs-23 and 24 of the judgment would show that the Supreme Court granted decree in exercise of power conferred under article 142 of the Constitution of India and thus, the said decision cannot be cited as precedent:-"before parting with this case, we think it necessary to append a clarification. Merely, because there are allegations and counter allegations, a decree of divorce cannot follow. Nor is mere delay in disposal of the divorce proceedings by itself a ground. There must be really some extraordinary features to warrant grant of divorce on the basis of pleadings (and other admitted material) without a full trial. Irretrievable break-down of the marriage is not a ground by itself. But while scrutinising the evidence on record to determine whether the ground (s) alleged is made out and in determining the relief to be granted, the said circumstance can certainly be borne in mind. The unusual step as the one taken by us herein can be resorted to only to clear up an insoluble mess, when the Court finds it in the interest of both the parties. 24. The petition for divorce h. M. Case No. 1 of 1986 pending in the Delhi High Court is withdrawn to the file of this Court and is allowed. The marriage between the parties is dissolved. In the circumstances, the allegations levelled by the petitioner against the wife are held not proved. The honour and character of the respondent-wife stands vindicated. " (Emphasis Supplied by us) (31.) IN the case of Naveen Kohli v. Neelu Kohli (supra), the Supreme court after setting aside the judgment and decree passed by the High Court granted the decree for divorce with the following observations:-"the High Court ought to have considered the repercussions, consequences, impact and ramifications of all the criminal and other proceedings initiated by the parties against each other in proper perspective. For illustration, the High Court has mentioned that so far as the publication of the news item is concerned, the status of husband in a registered company was only that of an employee and if any news item is published, in such a situation, it could not, by any stretch of imagination be taken to have lowered the prestige of the husband. In the next para 69 of the judgment that in one of the news item what has been indicated was that in the company, Nikhil Rubber (P) Ltd. , the appellant was only a Director along with mrs. Neelu Kohli whom held 94. 5% share of Rs. 100/-each in the company. The news item further indicated that Naveen Kohli was acting against the spirit of the article of the Association of Nikhil Rubber (P) Ltd. , had caused immense loss of business and goodwill. He has stealthily removed produce of the company, besides diverted orders of foreign buyers to his proprietorship firm M/s. Navneet Elastomers. He had opened bank account with forged signatures of Mrs. Neelu Kohli and fabricated resolution of the Board of Directors of the company. Statutory authority companies Act had refused to register documents filed by Mr. Naveen kohli and had issued show-cause notice. All business associates were cautioned to avoid dealing with him alone. Neither the company nor mrs. Neelu Kohli shall be liable for the acts of mr. Naveen Kohli. Despite the aforementioned finding that the news item was intended to caution business associates to avoid dealing with the appellant then to come to this finding in the next para that it will by no stretch of imagination result in mental cruelty is wholly untenable 85. The findings of the High Court that the respondent wifes cautioning the entire world not to deal with the appellant (her husband)would not lead to mental cruelty is also wholly unsustainable. 86. The High Court ought to have examined the facts of the case and its impact. In the instant case, the following cases were filed by the respondent against the appellant- (1) The respondent filed FIR no. 100/96 at Police Station, Kohna under Sections 379/323,i. P. C. (2) The respondent got a case registered under Sections 323/ 324 registered in the Police Station Panki, Kanpur City. (3) At the behest of the respondent fir No. 156 of 1996 was also filed in the Police Station, Panki. 100/96 at Police Station, Kohna under Sections 379/323,i. P. C. (2) The respondent got a case registered under Sections 323/ 324 registered in the Police Station Panki, Kanpur City. (3) At the behest of the respondent fir No. 156 of 1996 was also filed in the Police Station, Panki. (4) The respondent filed FIR under sections 420/468, I. P. C. at the Police Station, Kotwali. (5) The respondent got a case registered under Sections 420/ 467/468 and 471,I. P. C. (6) The respondent filed a complaint against the appellant under sections 498a/323/504/506,I. P. C. at police Station, Kohna. (7) The respondent had even gone to the extent of opposing the bail application of the appellant in criminal case filed at the Police station, Kotwati. (8) When police filed final report in two criminal cases at Police station, Kotwali and Police Station, kohna, the respondent filed protest petition in these cases. (9) The respondent filed complaint no. 125 of 1998 in the Women cell, Delhi in September 1997 against the appellants lawyer and friend alleging criminal intimidation. (10) The respondent filed a complaint under Sections 397/398 before the Company Law Board, New Delhi. (11) The respondent filed a complaint in Case No. 1365 of 1988 against the appellant. (12) Again on 8. 7. 1999, the respondent filed a complaint in the parliament Street Police Station, new Delhi and made all efforts to get the appellant arrested. (13) On 31. 3. 1999, the respondent have sent a notice for breaking the Nucleus of the HUF. (14) The respondent filed a complaint against the appellant under section 24 of the Hindu Marriage Act. (15) The respondent had withdrawn rs. 9,50,000/-from the bank account of the appellant in a clandestine manner. (16) On 22. 1. 01 the respondent gave affidavit before the High court and got non-bailable warrants issued against the appellant. (17) The respondent got an advertisement issued in a national newspaper that the appellant was only her employee. She got another news item issued cautioning the business associates to avoid dealing with the appellant. (87) The findings of the High Court that these proceedings could not be taken to be such which may warrant annulment of marriage is wholly unsustainable. " (32.) EVEN thereafter, the Apex Court explicitly recommended that the irretrievable breakdown of marriage should be a ground of divorce. (87) The findings of the High Court that these proceedings could not be taken to be such which may warrant annulment of marriage is wholly unsustainable. " (32.) EVEN thereafter, the Apex Court explicitly recommended that the irretrievable breakdown of marriage should be a ground of divorce. Such recommendation itself suggests that a Court should not grant a decree for divorce merely on the ground of irretrievable breakdown of a marriage so long that ground has not been incorporated as a ground of divorce. The said decision, therefore, does not help the respondent in anyway. (33.) IN the case of Kakali das v. Asis Kumar Das (supra), a Division bench of this Court repeated the well-settled proposition of law that a baseless allegation of adultery of the other spouse taken in the written statement amounted to cruelty. The question whether a particular allegation is baseless or not is a question of fact and varies from case to case. Merely, because the party making some allegation in the written statement could not prove such fact ipso facto does not become baseless unless such allegations are found to have been made without any just basis. In the fact of the said case, the Division Bench found those allegations to be baseless and passed a decree. The said decision cannot be taken as precedent for the proposition of law that merely because the party taking a plea in the written statement could not prove such fact, the allegation should be taken to be baseless (See: A. Abdul Rashid Khan (supra) referred to earlier). In order to brand an allegation as a baseless one, such allegation must be disproved within the meaning of the Evidence Act and such onus is upon the party praying for divorce on the ground of baseless allegation in the written statement. (34.) IN the case of Nivedita Banerjee v. Sanat Kumar Banerjee (supra), the wife made allegations punishable under section 498a of the Indian Penal code against the husband and his family members. The accused were acquitted at the trial. The wife thereafter preferred appeal against the order of acquittal but failed. In such a circumstance, a Division Bench of this Court held that by the act of the wife the husband suffered a lot and such conduct of the wife amounted to mental cruelty. The accused were acquitted at the trial. The wife thereafter preferred appeal against the order of acquittal but failed. In such a circumstance, a Division Bench of this Court held that by the act of the wife the husband suffered a lot and such conduct of the wife amounted to mental cruelty. It was further held that from the conduct of the wife, it was apparent that she had no intention to continue the relationship because she was all out to send her husband to jail knowing fully well that the husband would lose his job if convicted. The said decision, in our opinion, cannot have any application to the facts of the present case. (35.) IN the case of Sukhomoy Bag v. Joya Bag (supra), a Division Bench of this Court held that even if the allegation and the counter-allegations of the parties are not proved, a Court can grant a decree of divorce if the marriage is found to have been irretrievably broken-down and there is no chance of reconciliation. With great respect to the learned Judges, we are unable to accept such view, which is on the face of it, contrary to law. Even in one of its decisions, namely, savitri Pandey v. Prem Chandra Pandey, reported in 2002 (2) Supreme Court Cases page 73, the Supreme Court in Paragraph-17 thereof itself pronounced that the fact that the marriage had irretrievably broken-down by itself could not be a ground for divorce. The said decision cannot therefore be treated as a valid precedent. (36.) IN the case of Nirmala v. Manohar (supra), it was held by a learned judge of the Bombay High Court that baseless allegation of impotency against the husband amounted to cruelty. We do not for a moment dispute that proposition. However, what is required is that such allegation must be proved to be "baseless", i. e. such allegation must be disproved and found to have been made without just reason. In this case, although the wife could not prove such allegation, yet, having regard to the materials-on-record we are unable to call it baseless. (37.) IN the case of Manisha v. Sandeep (supra), a Division Bench of the bombay High Court was considering a case where a wife made allegation in her affidavit quoting the husband of one Leena that Leena had illicit relation with the husband. (37.) IN the case of Manisha v. Sandeep (supra), a Division Bench of the bombay High Court was considering a case where a wife made allegation in her affidavit quoting the husband of one Leena that Leena had illicit relation with the husband. Such fact was denied by the husband and the wife failed to prove such fact. In such circumstances, the Division Bench at Paragraph-31 made the following observations:-In any case, in the facts of the present case, as we have noted, the parties have led their evidence on the allegations made by the appellant wife although no amendment was carried out to the petition subsequent to the allegations made in the written statement. The respondent and his mother have both stated that the allegations are false and have caused mental agony to them. There is no effective cross-examination of either of them. The case made out by the appellant was not put to them. When it came to her evidence, the appellant was however specifically cross-examined on the allegations made by her. It was specifically put to her that the respondent, his mother and the appellant went to the residence of Leena to ascertain as to what were the facts. That was accepted by the respondent. It was also put to her that the relatives at the residence of Leena became furious on knowing the allegations and even they assaulted the appellant. The appellant has of course denied what is put to her. However, nothing prevented her from examining Vivek, husband of leena, whom she has quoted in her affidavit as having become angry on learning about the alleged relationship between the respondent and leena and that he wanted to thrash the respondent. If he was such a bold person, the respondent ought to have brought him into the witness box. It is, therefore, clear that she has failed to establish her allegations. Can it then be said that she has only failed to establish her allegations, but it is not proved by the respondent husband that her allegations were false and baseless? in a matrimonial matter, one cannot apply the standard of stricter evidence. Nothing prevented her from establishing her allegations. The respondent could not have established the negative by leading any further evidence that the allegations made by the wife were false. The appellant had made the allegations. The burden was on her. in a matrimonial matter, one cannot apply the standard of stricter evidence. Nothing prevented her from establishing her allegations. The respondent could not have established the negative by leading any further evidence that the allegations made by the wife were false. The appellant had made the allegations. The burden was on her. She had failed to prove those allegations. Once she fails to prove those allegations and if those allegations are not in consonance with matrimonial relationship, and the husband complains that they have caused him agony, the inference that they constitute cruelty has to follow. " (38.) WITH great respect to the learned Judges of the said High Court, we are unable to subscribe to the view that mere inability to prove a fact amounts to falsity of the case. Such view is clearly in conflict with the view adopted by the Supreme Court in the case of A. Abdul Rashid Khan (supra), quoted earlier. (39.) IN the case before us, the husband did not deny the existence of S or that S was a co-employee of the husband in the police force nor was it his case that the wife in collusion with S has obtained those letters in order to malign him. The wife produced the two letters written by S to the husband. The trial Court did not look into those letters because S was not examined. S, the alleged girlfriend of the husband, is not expected to support the wife and thus, it was not possible for the wife to call S as her witness to prove those letters. But the husband could easily summon S to disprove the alleged letters and if S really appeared and by submitting to the scrutiny of handwriting expert proved that those letters were not written by her, we could unhesitantly conclude that the allegation of the wife was not only baseless but false. The said decision, thus, does not help the husband in anyway. (40.) IN the case of Kamini v. Mukesh (supra), the Division Bench of delhi High Court was considering a case where in a petition for divorce, the husband alleged that at a meeting held in the presence of the parties relations when negotiations for the resettlement of the parties were afoot, the wife lost temper and started abusing him and called him a womaniser and a drunkard. She also complained that the husband was bringing girls in the matrimonial home. In her written statement, the wife stated that she never falsely accused the character of her husband suggesting thereby that the charges levelled against him were true. During the trial, the wife in her evidence repeated these charges times without number. In her statement, she named three girls with whom her husband had extra-marital relations and according to her, they were just few examples of conjugal infidelities of her husband. The wife wanted to examine the father of one of the three girls who according to her was prepared to give evidence to prove her husbands lecherous character; but although opportunity to produce him was given, he was never produced in the case. The trial Judge disbelieved the evidence of the wife and found her a woman of aggressive nature. According to the learned Trial Judge, the stories about the three girls were invented by the wife in order to slander her husband. He came to the conclusion that the accusation of the wife that the husband was a womaniser would necessarily cause mental injury to the husband and it was difficult for any reasonable person to live with a spouse who repeatedly kept taunting the other spouse and levelled such unfounded allegations. Such unfounded allegations amounted to cruelty. On the facts of the case, it was found that there was sufficient proof of the intention of the wife to disrupt the home and the maintenance of matrimonial relations was no longer possible. In our opinion, the fact of the said case is different from the one involved herein to this extent that in this case, the wife had produced two letters allegedly written by s to the husband but such letters could not be proved by the wife because she did not examine S; however, the existence of S has not been disputed by the husband but in spite of that he did not take the risk of producing S as his witness lest the allegation of the wife is found to be true. In such a situation, although the allegation of the wife has not been proved, we are unable to conclude that the allegation is totally baseless. We have already pointed but that the onus is upon the husband to prove that the allegation of the wife was baseless. In such a situation, although the allegation of the wife has not been proved, we are unable to conclude that the allegation is totally baseless. We have already pointed but that the onus is upon the husband to prove that the allegation of the wife was baseless. The husband in this case could easily prove those allegations as baseless by either showing that there is no S or that those letters were not genuine. The husband having not adopted either of the aforesaid two courses and at the same time, not having alleged collusion between the wife and S, we are at least unable to brand those allegations as baseless. (41.) IN the case of Autar Singh v. Iris Paintal (supra), the wife had written defamatory letters to the employer and colleagues of the husband and such facts were proved. The Court was of the view that the acts of the wife amounted to cruelty. In this case, on the allegations contained in the letter written by the wife, the employer found substance and directed deduction of maintenance from the salary of the husband. Therefore, the decision has no application to the facts of this case where the allegation of the wife of non-payment of maintenance has been proved. (42.) IN the case of Kalpana v. Surendra (supra), it was held by a learned single Judge of the Allahabad High Court that where the wife refused to prepare tea for the friends of the husband and lodged false reports of non-bailable offences against the husband and his relations causing the husband and relations to rush to the Court to obtain bail in order to avoid arrest and at the same time, the wife got rid of the pregnancy without the consent of the husband, she was guilty of cruelty. The said case is not one involving only the refusal on the part of the wife to prepare tea for his friends. Moreover, in this case, we have already disbelieved the evidence of the brother-in-law of the husband that the wife refused to prepare tea for him. In our view, mere refusal on the part of the wife to prepare tea for the brother-in-law of the husband for a solitary occasion cannot amount to cruelty of that degree that a Court should break the relationship forever. (43.) WE, therefore, find that the decisions cited by Mr. In our view, mere refusal on the part of the wife to prepare tea for the brother-in-law of the husband for a solitary occasion cannot amount to cruelty of that degree that a Court should break the relationship forever. (43.) WE, therefore, find that the decisions cited by Mr. Ganguly are of no assistance to his client. (44.) IN view of our earlier discussions, we hold that the learned Trial judge in the facts of the present case erred in law in concluding that the husband was entitled to get a decree for divorce on the ground of making baseless allegations against her husband in the written statement. We further hold that the cruelty alleged in the plaint had not been proved and at the same time, mere irretrievable breakdown of marriage cannot be ground for divorce when the grounds taken in the petition for divorce are not proved. There was no valid ground for deserting the wife in the facts of the present case and by taking the plea of irretrievable breakdown of marriage, the husband is taking advantage of his own wrong. (45.) WE, therefore, set aside the judgment and decree passed by the learned Trial Judge. However, since the learned Trial Judge proceeded as if a fact not proved amounts to falsity of the fact and the burden of proving that the allegations made in the written statement was baseless was wrongly placed upon the wife, we remand the matter back to the learned Trial Judge for giving an opportunity to the husband to prove that the letters produced by the wife were not written by S and were manufactured one in the light of our observations made in this order. The husband is free to lead further evidence to falsify the genuineness of those letters. If any such evidence is given, the wife would be at liberty to give evidence in rebuttal. If the husband decides not to lead any further evidence on that point, the learned Trial Judge will dismiss the suit. We make it clear that the remand ordered by us will be limited only to the question whether the allegations made by the wife in the written statement as regards the involvement of S with the husband was baseless or not. If that issue is found in favour of the husband, the Court will pass a decree for divorce on that ground alone. If that issue is found in favour of the husband, the Court will pass a decree for divorce on that ground alone. In case of finding on such issue against the husband, the suit would be dismissed. We make it clear that we have found that the husband has failed to prove the allegations of cruelty pleaded in the application for divorce and those would not be reopened. In the facts and circumstances, there will be, however, no order as to costs.