JUDGMENT By the Court.—Heard Sri K.D. Tiwari, learned counsel for appellant, and Sri Raj Kumar Khanna, learned counsel for respondent. 2. This is defendant’s appeal under Section 19 of Family Court Act, 1984 (hereinafter referred to as ‘Act 1984’) arising from judgment and decree dated 17.7.2002 passed by Sri Aditya Kumar, Judge, Family Court, Moradabad in Matrimonial Petition No. 149 of 2001, filed by respondent-husband, Tejindar Mohan Singh, under Section 13 of Hindu Marriage Act, 1995 (hereinafter referred to as ‘Act 1995’), whereby Court below has decreed suit for divorce. 3. The plaint case set up by plaintiff-respondent is that marriage was solemnized on 19.11.1955, following Hindu (Sikh) rituals, and without any dowry. Defendant-appellant came to stay alongwith husband at 209-A, Railway Harthala Colony, Moradabad, and both lived as husband and wife. After about four or five days only, wife suffered mental disorder showing a behaviour of non-recognition of family members, becoming furious at times, and used to run away frequently, day and night, stating that she want to go to a friend of her maternal uncle. Plaintiff-husband took his wife for psychological/mental treatment at Railway Hospital where she was administered treatment and showed some improvement. After about 20 days she went to her parents’ place. After about a month, when plaintiff went to bring his wife from in-laws place at Haldua, her parents told that she used to suffer such attacks from childhood. Her parents also told that presently she is undergoing treatment, hence plaintiff may come again after one month to take her. Plaintiff went again after a month when parents of wife said that she still suffers mental problem and is undergoing treatment. Plaintiff assured them that he, having married defendant-appellant, would abide by marital obligations and take good care of her, whereupon she came alongwith plaintiff to his place. 4. Plaintiff and his family members used to take good care of defendant always. However, defendant-appellant continued to suffer epileptic attacks, showing also a conduct of insanity. On 6.12.1996, defendant-appellant gave birth to a female child at Moradabad Railway Hospital. When again she became pregnant, her parents and brother came and said that she is not being looked after properly and therefore, they are taking her alongwith them and will make all arrangement for delivery in a Nursing Home, whenever required. On 6.12.1996, defendant-appellant gave birth to a female child at Moradabad Railway Hospital. When again she became pregnant, her parents and brother came and said that she is not being looked after properly and therefore, they are taking her alongwith them and will make all arrangement for delivery in a Nursing Home, whenever required. Plaintiff assured them that he would also take proper care of her wife, but parents of defendant did not agree and took her alongwith them. On 2.10.1998 she gave birth to a son at Om Maternity Home, Nainital Road, near Aahuja Dharmshala, Rudrapur. On getting information, plaintiff and his family members went to meet defendant-appellant at Rudrapur and also paid all hospital expenses, but after discharge, defendant expressed her wish to stay with her parents, hence plaintiff left her. Plaintiff then went to take defendant-appellant after about three months from her parents place, but her parents demanded money, to which plaintiff expressed inability. In the evening defendant’s maternal uncle Gurjit Singh and her elder brother, who is a driver in Military, came drunk and misbehaved with plaintiff’s father, maternal uncle and brother. Thereafter, there was a local Panchayat and on their intervention defendant was allowed to accompany plaintiff. 5. With the passage of time, defendant’s behaviour became rude and cruel to plaintiff and his family members. She also used to ill treat children. She frequently suffered epileptic attacks. On 9.2.2001 defendant’s relatives came to plaintiff’s residence, abused him and his family members and created a bad scene in public. Defendant’s brother made false complaints in Police Station, pursuant whereto Police from Mahila Thana, Moradabad caught plaintiff and his family members on 10.2.2001 and brought them to Police Station. Subsequently, complaints made against plaintiff and his parents were found false whereafter plaintiff and his family members were released by Police. On 10.2.2001 defendant placed a condition at Police Station itself that she would go to plaintiff’s residence and on 13.2.2001 she would go back to her parent’s residence alongwith her clothings, jewelleries etc. Ultimately, on 13.2.2001 she left plaintiff’s residence so as to stay with her parents. Despite repeated persuasion she did not come back and on 11.3.2001 she also misbehaved with plaintiff when she met at Imperial Tiraha, Moradabad and plaintiff requested her to come back. Ultimately, on 13.2.2001 she left plaintiff’s residence so as to stay with her parents. Despite repeated persuasion she did not come back and on 11.3.2001 she also misbehaved with plaintiff when she met at Imperial Tiraha, Moradabad and plaintiff requested her to come back. Defendant had deserted plaintiff for more than two years and had caused continuous cruelty with plaintiff for more than two years. 6. Defendant contested the matter by filing a written statement. She admitted marriage but stated that at the instance of plaintiff’s parents, marriage was solemnized at an expensive hotel at Moradabad and cash, scooter and other items were given by her parents. She never suffered any epileptic attack. She used to be tortured by plaintiff’s parents alleging that she had not brought adequate dowry. They used to take work from defendant like a servant. She was not administered any treatment. She was never mentally ill. She is qualified upto Intermediate and has also got training at Aganbari Training Centre. She had worked at Bal Vikas Pariyojana Kendra, Sitarganj upto 17.6.1994. She resigned therefrom at the insistence of plaintiff. Plaintiff and his parents used to treat defendant cruelly and never allowed her to meet her parents. Before 15 days of second delivery, plaintiff called defendant’s parents at Moradabad and asked them to take her since he cannot look after her. Thereupon, defendant’s parents brought her and got admitted at Maternity Home and incurred all expenses. When plaintiff was informed, he did not come and never made any payment at Maternity Home, as alleged. All other allegations are also denied. She, however, admitted to have lodged cases against plaintiff, i.e. Case Nos. 332 of 2001 and 333 of 2001. 7. Trial Court attempted for reconciliation between the parties, but failed. It then proceeded to adjudicate the matter and formulated following six issues : “(i) D;k ;kph ;kfpdk esa n'kkZ;s x;s vk/kkj ij fookg foPNsn dh fMxzh ikus dk vf/kdkjh gSa\ Whether the petitioner, on the grounds shown in the petition, is entitled to get a decree for dissolution of marriage? (ii) D;k ;kph }kjk ngst dh ekWax dh x;h\ Whether dowry has been demanded by the petitioner? (iii) D;k ;kph }kjk izfrokfnuh ds lkFk dzwjrkiw.kZ O;ogkj fd;k x;k \ Whether the lady defendant was subjected to cruelty by the petitioner? (ii) D;k ;kph }kjk ngst dh ekWax dh x;h\ Whether dowry has been demanded by the petitioner? (iii) D;k ;kph }kjk izfrokfnuh ds lkFk dzwjrkiw.kZ O;ogkj fd;k x;k \ Whether the lady defendant was subjected to cruelty by the petitioner? (iv) D;k ;kph us izfrokfnuh ds f[kykQ izfrokfnuh dks uktk;t :i ls ijs'kku djus ds fy;s eqdnek nk;j fd;k gS \ Whether the petitioner has instituted the case against the lady defendant just to harass her? (v) D;k izfrokfnuh dk O;ogkj ;kph ds fo:) dwzjrkiw.kZ jgk \ Whether the behaviour of the lady defendant towards the petitioner has been cruel? (vi) D;k ;kph fdlh vuqrks”k dks ikus dk vf/kdkjh gS \ Whether the petitioner is entitled to get any relief?” (English Translation by Court) 8. Issue 1 has been answered in affirmance holding that plaintiff is entitled for decree of divorce and consequently issue 6 has also been answered in favour of plaintiff holding that suit is liable to be decreed. Defendant has already taken away jewellery, clothings etc., hence is not entitled for return of those items or cost thereof. She is educated and has vocational training, therefore, can maintain herself, but even otherwise she would be free to move application for claiming maintenance. Issue 2 was answered by holding that defendant-appellant failed to prove alleged demand of dowry and harassment for that purpose. It was answered in negative and against defendant-appellant. Issues 3 and 5 were taken together and answered in favour of plaintiff holding that defendant has behaved with cruelty with the plaintiff and even otherwise grievance raised by defendant was not proved. Issue 4 was answered in negative and against defendant. Suit consequently has been decreed vide judgment dated 17.7.2002. 9. Learned counsel for appellant contended that allegation of illicit relation of appellant with her maternal uncle Gurjit Singh was levelled by plaintiff in para 6 of replication and no evidence was adduced in this regard, still Trial Court has held allegations proved in order to answer issues 3 and 5 against defendant-appellant. Neither there is any evidence nor pleading in plaint. He submitted that Court below has thus erred in law in passing the impugned judgement and decree on facts stated in replication. The findings recorded by Court below are not based on any evidence. 10. Neither there is any evidence nor pleading in plaint. He submitted that Court below has thus erred in law in passing the impugned judgement and decree on facts stated in replication. The findings recorded by Court below are not based on any evidence. 10. We find that Court below has answered issues 3 and 5 relying on allegation that defendant-appellant suffers mental ailment and has illicit relations with her maternal uncle besides other. The findings recorded by Court below are not based on any evidence. 10. We find that Court below has answered issues 3 and 5 relying on allegation that defendant-appellant suffers mental ailment and has illicit relations with her maternal uncle besides other. Findings recorded by Court below to answer issues 3 and 5, is reproduced as under : ^^bl izdkj Li"V gksrk gS fd izfrokfnuh }kjk vius ifr ds fo:) vlR; dFku fd;s x;s vkSj vius ifr ij >wBs vkjksi yxk;s x;sA izfrokfnuh ds HkkbZ o ekek us ;kph ds fo:) xyr izkFkZuk i= fn;k rFkk og iqfyl dh enn ls izfrokfnuh dks fyokus mldh llqjky igqWaps A izfrokfnuh dks vius ekek ds lkFk ;kph }kjk vkifRrtud fLFkfr esa ns[kk x;kA bu ifjfLFkfr;ksa esa izfrokfnuh dk ek;ds tkus dh ftn djuk rFkk ek;ds esa jguk bl ckr dh iqf"V djrk gS fd izfrokfnuh vius ifr o llqjky okyks ds izfr oQknkj ugh jgh og muds fo:) xyr vkjksi yxkrh jgh gSaA Ikzfrokfnuh us ngst dh ekWx ds lEcU/k esa viuh llqjky okyks ij >wBk vkjksi yxk;s og viuk tsoj+] diMk vkfn lc ysdj ek;ds vk;hA mldk HkkbZ o ekek us Lo;a bl lEcU/k esa Fkkus ij rgjhj fy[kdj nhA ysfdu mlus vius c;kuks es tsoj+] diMk ys tkus dh ckr vLohdj dhA izfrokfnuh us vius cPpks dh dksbZ lq/k ugh yhA og vius ukckfyx vcks/k yM+dh o yM+ds dks llqjky esa NksMdj vk;h rFkk mlus vius ifr ds ikl vkus ls bUdkj dj fn;kA bruk gh ugh izfrokfnuh us ;g ckr vLohdkj dh gS mlds ifr }kjk mldk bykTk ugh djk;k x;kA ;kph dh rjQ ls nkf[ky fpfdRlk lEcU/kh ijps rFkk tkWp fjiksVZ n'kkZrh gS fd izfrokfnuh dk 1996 ls bykt djk;k tkrk jgkA izfrokfnuh }kjk dsoy bruk Lohdkj fd;k gS fd mldk bykt mldh ekWa }kjk iSlk fn;s tkus dk èkuoarh thou js[kk esa gqvk FkkA bl xokg }kjk ;g ekuk gS fd mldk vYVz~klkmUM gqvk FkkA vYVz~klkmaM fdl lEcU/k esa gqvk Fkk o mldh ekW us fdl lEcU/k esa bykt djk;k bldk dksbZ fooj.k izfrokfnuh }kjk ugh fn;k x;kA i=koyh ij ;g fd fookg ds i'pkr~ yxHkx pkj&ikWap fnu ckn gh foi{kh dks fnekxh nkSjk iMk] nkSjk iMus ds i'pkr~ ikxyiu dk O;ogkj iSfV'kuj o iSfV'kuj ds ifjokj okyks ls djus yxh vksSj iSfV'kuj o iSfV'kuj ds ifjokj okyks dks igpkuus ls bUdkj djus yxh vkSj mB&mB dj fnu&jkr fdlh Hkh le; ?kj ls Hkkxus yxh vkSj Hkkxrs gq, dgus yxh fd esjs ekek xqjthr dk nksLr lruke flag Nhuk cnek'k gS] eq>s mlds ikl tkuk gSA miyC/k ;kph }kjk izLrqr dkxtkr n'kkZrs gS fd izfrokfnuh dk ekufld chekjh ds lEcU/k es bykt gqvk vkSj ;kph }kjk Hkh mldk bykt djk;k x;kA^^ “In this way, it is clear that false statements have been made by the lady defendant against her husband and false allegations have been levelled against him by her. The lady defendant’s brother and Mama had filed a false complaint against the petitioner and reached her in-laws’ house to bring her back from there with the help of police. The lady plaintiff was spotted in compromising position with her Mama by the petitioner. Under these circumstances, the insistence of the lady defendant for going to her parents’ place and her residing therein confirm that she has not been faithful to her husband and in-laws and that she has been levelling false allegations against them. In connection with the dowry demand, the lady plaintiff has levelled false allegations against her in-laws. She came to her parents’ place taking along the jewellery, clothes etc. - all things. In this connection, her brother and Mama have themselves submitted a written report with the police station but she has in her statements denied to have taken with her the jewellery and clothes. The lady plaintiff did not show any concern for her children. She came leaving her minor innocent son and daughter at her in-laws’ place and she refused to return to her husband. Not only this, the lady defendant has denied to have not been provided medical treatment by her husband. The treatment related papers and test reports filed on behalf of the petitioner show that the lady defendant continued to be provided the treatment since 1996. The lady defendant has just claimed that she was treated at Dhanvati Jeevan Rekha with monetary help being extended by her mother. It has been admitted by this witness that an ultrasound was performed on her. No particulars have been given by the lady defendant showing the purpose for which an ultrasound was performed on her and the disease for which she was got treated by her mother. It has been admitted by this witness that an ultrasound was performed on her. No particulars have been given by the lady defendant showing the purpose for which an ultrasound was performed on her and the disease for which she was got treated by her mother. It is reported on the file that only 4-5 days after the marriage, the opposite party had a mental stroke and after this stroke she started insane behaviour towards the petitioner and his family members, refusing to identify the petitioner and his family members and rising to flee from the house at any time of the day and night while saying, “My Mama Gurjeet’s friend Satnaam Singh Chheena is a miscreant, I am to go to him.” The papers made available by the petitioner show that that the lady defendant was treated for a mental illness and that she was got treated by the petitioner as well.” (English Translation by Court) 11. Counsel for appellant assailing the impugned judgment and decree contended that Trial Court has relied on the documents filed by plaintiff which were neither proved nor admissible in evidence. It has even otherwise completely misread evidence and committed a manifest error in recording finding of guilt on the part of defendant against plaintiff and said that suit has been decreed illegally. He points out that there was no pleading in plaint that defendant-appellant has illicit relations with her maternal uncle or that plaintiff has seen defendant in a compromising position with her maternal uncle. The finding in this regard is patently perverse and a sheer misreading of record. With regard to epileptic attacks/mental ailment of defendant-appellant, again findings recorded by Court below are perverse, based on no evidence. Further finding that defendant-appellant has taken away her clothings, jewelleries etc. from the husband’s house is also based on no evidence. 12. On the contrary, learned counsel appearing for plaintiff-respondent supported judgment for reasons stated therein and said that appeal is liable to be dismissed. 13. The point for determination, in our view, is “whether Family Court was justified in recording finding against defendant-appellant that she has behaved with cruelty with plaintiff and his family members so as to justify a decree of divorce in favour of plaintiff-respondent.” 14. Plaint filed by plaintiff-respondent broadly pleaded following facts for claiming decree of divorce. 13. The point for determination, in our view, is “whether Family Court was justified in recording finding against defendant-appellant that she has behaved with cruelty with plaintiff and his family members so as to justify a decree of divorce in favour of plaintiff-respondent.” 14. Plaint filed by plaintiff-respondent broadly pleaded following facts for claiming decree of divorce. (a) After about 4-5 days of marriage defendant suffered fits and epileptic attacks by not recognising plaintiff and his family members, started running from the house stating that she want to go to her maternal uncle’s friend Satnam Singh Cheema. (b) Para 4 of plaint states as under: ^^;g fd fookg ds i'pkr~ yxHkx pkj&ikWap fnu ckn gh foi{kh dks fnekxh nkSjk iMk] nkSjk iMus ds i'pkr~ ikxyiu dk O;ogkj iSfV'kuj o iSfV'kuj ds ifjokj okyks ls djus yxh vksSj iSfV'kuj o iSfV'kuj ds ifjokj okyks dks igpkuus ls bUdkj djus yxh vkSj mB&mB dj fnu&jkr fdlh Hkh le; ?kj ls Hkkxus yxh vkSj Hkkxrs gq, dgus yxh fd esjs ekek xqjthr dk nksLr lruke flag Nhuk cnek'k gS] eq>s mlds ikl tkuk gSA^^ “That the opposite party had her fits only 4 to 5 days after the marriage. After the fit, she started behaving insanely with the petitioner and his family members. She would get up and try to flee the house at any time, whether it is day or night, saying that she would go to her mama Gurjeet Singh’s friend Satnam Singh Chheena, who is a scoundrel.” (English Translation by Court) (c) The plaintiff took defendant for mental treatment at Railway Hospital and factum of fits and epileptic attacks to defendant was also admitted by her parents. Paras 5 and 6 of plaint read as under : Þ5- ;g fd iSfV'kuj us foi{kh dks jsyos fpfdRlky; esa ekufld fpfdRld dks fn[kkdj nokbZ fnykbZ rks foi{kh dqN lkekU; lh gks x;h vkSj yxHkx 20 fnu iSfV'kuj ds lkFk jgus ds ckn vius ek;ds pyh x;hA 5. That the petitioner took the opposite party to a psychiatrist of the Railway Hospital and helped her have medicines. Then the opposite party became a little bit normal and went to her parental house after living 20 days with the petitioner. That the petitioner took the opposite party to a psychiatrist of the Railway Hospital and helped her have medicines. Then the opposite party became a little bit normal and went to her parental house after living 20 days with the petitioner. 6- ;g fd ,d ekg ckn iSfV'kuj foi{kh dks cqykus mlds ek;ds gynqvk x;k] rc foi{kh ds ekrk&firk us crk;k fd foi{kh dks cpiu ls gh fnekxh nkSjs iMrs gS blds ek;ds vkus ckn esa 2] 3 nkSjs iM pqds gSA vHkh ge bldk bykt djk jgs gS ,d ekg ckn vki cqykdj ys tkuk] iSfV'kuj okfil pyk vk;kAÞ 6. That after one month the petitioner went to Haldua to take the opposite party with her; then the parents of the opposite party told that the opposite party has fits from her childhood. She had fits 2-3 times after coming to her parental house. We are getting her treated; hence you should come after one month to take her with you. The petitioner returned.” (English Translation by Court) (d) Defendant’s suffered fits and epileptic attacks frequently and behaved very abnormally from time to time, despite treatment. Para 9 of plaint reads as under : ^^9- ;g fd iSfV'kuj foi{kh dk yxkrkj bykt djkrs jgs vkSj gj rjg foi{kh dks [kq'k j[kus dk iz;Ru djrs jgs] tcfd foi{kh dks vk;s fnu fnekxh nkSjs iMrs vkSj foi{kh vk;s fnu ikxyks okyh gjdrs djrh jgh o fdlh Hkh le; ?kj dk njoktk [kksydj lMd ij ?kweus yxh Fkh o lkekftd inkZ ngst dk Hkh /;ku ugh j[krh vkSj gj ckr ij cstk ftn djrh jgrh] ijUrq iSfV'kuj fQj Hkh foi{kh dks gj lwjr esa vius lkFk j[krk jgkA blh chp foi{kh vius ek;ds vkrh tkrh jgh o foi{kh ds ek;ds okys ,oe mlds fj'rsnkj Hkh iSfV'kuj ds ?kj foi{kh ls feyus vkrs jgsAÞ “9. That the petitioner continued to get the opposite party treated and tried to keep her happy by all means. On the other hand, the opposite party had fits every now and then and she would behave like an insane person and roam about on the road at any time after opening the door of the house, not observing social etiquettes such as wearing a veil etc. and showing obstinacies for no rhyme or reason over each and every thing. Despite all this, the petitioner kept the opposite party with him being regardless of the circumstances. and showing obstinacies for no rhyme or reason over each and every thing. Despite all this, the petitioner kept the opposite party with him being regardless of the circumstances. Meanwhile, the opposite party kept visiting her parents’ house and the family members of her parental house and her relatives continued to come to the house of the petitioner to meet the opposite party.” (English Translation by Court) (e) Defendant’s parents blamed plaintiff and his family members that they are not taking care of defendant, she was taken before delivery by her parents to their place and after birth of male child entire treatment expenses were paid by plaintiff-respondent. Still she was not sent with plaintiff and instead her parents demanded money. (f) Defendant’s father, maternal uncle Gurjit Singh and elder brother, who is a driver in Military, misbehaved with plaintiff and defendant took side of her parents. Defendant continued to misbehaved with plaintiff and his family members and also ill treated children. Para 20 of plaint in this regard states as under : ^^20- ;g fd iSfV'kuj o iSfV'kuj ds firk foi{kh dks iapk;r djds yk;s FksA blfy, foi{kh cgqr eu c< gks x;h vkSj iSfV'kuj o iSfV'kuj ds ifjokj tu ,oea iSfV'kuj ds cPpk ds lkFk vHknz o v'kksHkuh; O;ogkj djus yxh vkSj ckr&ckr ij iSfV'kuj o iSfV'kuj ds ifjokj tu ,oe cPpks dks xUnh&xUnh xkfy;kW nsus yxh vkSj vkeknk ekjihV gksus yxhA^^ “20. That the petitioner and petitioner’s father had brought the opposite party after the panchayat. For this reason, the opposite party became quite impudent, showing uncivil and unsavoury behaviour with the petitioner, his family members and children, using filthy language for them and getting hell-bent on picking fights over each and everything.” (English Translation by Court) (g) Defendant used to go to her parents’ residence frequently without permission and used to call her maternal uncle and other family members to dishonour plaintiff and his family members. She also used to beat children frequently without any reason. On 9.2.2001 defendant’s uncle and 3-4 other bad elements came to plaintiff’s house in drunken condition and abused him and his family members and created a scene in public. On 13.2.2001 defendant left children with plaintiff and went to her parent’s house alongwith clothings, jewelleries etc. Plaintiff’s father went to leave defendant at her brother and maternal uncle. 15. On 9.2.2001 defendant’s uncle and 3-4 other bad elements came to plaintiff’s house in drunken condition and abused him and his family members and created a scene in public. On 13.2.2001 defendant left children with plaintiff and went to her parent’s house alongwith clothings, jewelleries etc. Plaintiff’s father went to leave defendant at her brother and maternal uncle. 15. Thus, the basic pleadings to support the case of cruelty constitute alleged fits and epileptic attacks suffered by defendant, misbehaviour by herself, her parents and other family members, ill treatment of children and demand of money from plaintiff and his family members. 16. There is not even a whisper in entire plaint dated 29.3.2001 that defendant has objectionable relations with her maternal uncle or that plaintiff has seen them in a compromising or objectionable position. 17. In the written statement, allegations have been denied. Defendant has also said that her maternal uncle is a simple farmer and she does not know any person named Satnam Singh Cheema. She also denied allegations of mental disorder or sufferance with fits etc. and said that there was no alleged treatment of mental illness in the Railway Hospital or elsewhere. 18. Further allegations that expenses of Nursing Home, after second delivery, were borne by plaintiff and that money was demanded by her parents or that she took away all her stridhan from plaintiff’s house are also denied. 19. There is a replication dated 26.4.2002 filed by plaintiff, that is after more than a year when plaint was filed in Court below wherein for the first time plaintiff stated that he had seen defendant and her maternal uncle Gurjit Singh on several occasions in objectionable position and when he checked her movement to meet maternal uncle, behaviour of defendant became increasingly angry and cruel. 20. Additional written statement was also filed by defendant to reply allegations made in replication and averments made in para 6 were denied by stating as under: ^^3- ;g fd oknh us vius jsfIyds'ku ds iSjk ua0 6 ls xyr izdkj ls ij n'kkZ;k gS fd fookg ds rqjUr ckn ls gh oknh us izfrokfnuh dks mlds ekek xqjthr flag ds lkFk vusdksa ckj vkifRrtud fLFkfr esa ik;k] oknh us bl lEcUèk esa izfroknuh rFkk mlds ekek Jh xqjthr flag ds fo:) tks vkjksi yxk;s gS og iw.kZ :is.k feF;k o fujk/kkj gSA 3. That the plaintiff has wrongly shown at para 6 to his replication that immediately after the marriage the plaintiff spotted the lady defendant in compromising position with her mama many times. The allegations levelled against the lady defendant and his mama in this respect, are entirely false and baseless. 4- ;g fd izfroknuh ds vius ekek ls fdlh Hkh izdkj ds dksbZ voS/k lEcU/k dHkh Hkh LFkkfir ugh gq, vkSj u gh bl izdkj ds lEcUèkksa ds LFkkfir gksus dk iz'u mRiUu gksrk gSA 4. That no illicit relations were ever developed between the defendant and his mama; nor is there any question of such relationship being established. 5- ;g fd izfrokfnuh ds lEca/kksa esa oknh ds izfr dHkh Hkh dksbZ dzqjrk] tSlk fd jsfIyds'ku ds iSjk ua0 6 esa n'kkZ;k x;k gS ugh vkbZA 5. That the lady defendant, in her relations, never showed any sort of cruelty towards the plaintiff as averred in para 6 of the replication.” (English Translation by Court) 21. The evidence adduced by parties include deposition of plaintiff Tejindar Mohan as PW-1 and defendant-appellant Daljeet Kaur as DW-1. 22. Plaintiff in his statement dated 24.5.2002, has said in examination-in-chief that defendant used to say that whatever her maternal uncle will say she will do and he saw defendant and his maternal uncle in objectionable position. The statement reads as under : ÞtSlk ekek dgsxs oSlk d:WxhA eSus izfrokfnuh dks vius ekek ds lkFk vkifRrtud fLFkfr esa ns[kkA bUgs le>k;k ;s ugh ekuhA ;g nksuks bl fLFkfr esa gksrs Fks fd dksbZ ifr cnkZ'r ugh dj ldrkA xqjthr flag jktiqjk iatkc esa jgrs gSA esjh llqjky flrkjxat esa gSa xqjthr flag bUgs iatkc Hkh ys tkrs FksA dHkh os flrkjxat vk Tkkrs Fks rFkk ogkW ls b/kj m/kj ?kqekus ys tkrs FksAÞ “I will do as mama dictates. I saw the lady defendant in compromising position with her mama. I tried to make her understand the things but she was not ready to pay any heed. Both of them used to be in such a position that no husband will ever tolerate. Gurjeet Singh lives at Rajpura in Punjab. My in-laws’ place is at Sitarganj. Gurjeet Singh would also take her to Punjab. Sometimes, he would come to Sitarganj and take her around for excursion.” (English Translation by Court) 23. Both of them used to be in such a position that no husband will ever tolerate. Gurjeet Singh lives at Rajpura in Punjab. My in-laws’ place is at Sitarganj. Gurjeet Singh would also take her to Punjab. Sometimes, he would come to Sitarganj and take her around for excursion.” (English Translation by Court) 23. The plaintiff has further said that maternal uncle of defendant used to come to plaintiff’s place for taking her, in a drunken condition, used to create scene and extend threat to plaintiff that Satnam Singh Cheema is a terrorist and he would got killed plaintiff by him. Relevant extract of statement of plaintiff is reproduced hereinunder : Þesjs iRuh dks cqykus vkrs Fks rks esjs ?kj ij vkdj 'kjkc ihdj iwjs eksgYys esa gYyk djrs FksA eq>ls dgrs Fks fd rq>s lruke flag Nhuk vkradoknh ls ejok nwWxkA He would come to call my wife and after consuming liquor, he would create disturbance in the neighbourhood. He would say to me that he would get me killed by Satnam Singh Chheena, a terrorist.” (English Translation by Court) 24. The defendant-appellant in her deposition dated 24.5.2002 stated that allegations made against her by plaintiff are false and she also denied visit of her maternal uncle Gurjit Singh to her in-laws place or that he used to take her outside Satarganj or at the place of her maternal uncle. She also denied that plaintiff saw her with her maternal uncle in objectionable position. Relevant part of her statement reads as under : Þesjs ekek xqjthr flag esjs llqjky esa ugh vkrs FksA ;g ckr xyr gS fd esjs ekek xqjthr flag flrkjxat ls ckgj ?kqekus ds fy;s tkrs gks xqjthr flag jktiqjk iatkc esa jgrs gS] eS dHkh Hkh jktiqjk vius ekek ds ikl tkrh gwaW A ;g ckr xyr gS fd esjs ifr us eq>s o esjs ekek dks vkifRrtud fLFkfr esa ns[kk gksA esjs ekek 'kjkc ugh ihrs gS og lruke Nhuk dks ugh tkurh esjs ifr tkurs gksxsaA My mama Gurjeet Singh did not come to my in-laws’ place. It is wrong that my mama Gurjeet Singh takes me out of Sitarganj for an excursion and that Gurjeet Singh resides at Rajpura, Punjab and that I go to my mama at Rajpura at any time. It is wrong that my husband has spotted me and my mama in compromising position. It is wrong that my mama Gurjeet Singh takes me out of Sitarganj for an excursion and that Gurjeet Singh resides at Rajpura, Punjab and that I go to my mama at Rajpura at any time. It is wrong that my husband has spotted me and my mama in compromising position. My mama does not take liquor. She does not know Satnam Chheena. My husband may be knowing him." (English Translation by the Court) 25. Thus there are allegations and denial. There is no other evidence on record to prove aforesaid allegations alleged by plaintiff. It cannot be doubted, had the allegations made by plaintiff, if correct and proved by adducing any evidence or credible evidence, it would have been a serious thing and could have justified a decree of divorce. However, mere allegation without evidence and that too such a serious allegation, cannot be taken lightly. Court below has observed that in cross-examination DW1-defendant admitted that she used to go to her maternal uncle at Rajpura, Punjab sometimes and she is doing pairvi of case residing at Rajpura, the place of her maternal uncle, and there is no reason that plaintiff shall make a false allegation against his wife. We find these observations contrary to record and based on assumption. Defendant has categorically denied that plaintiff has seen her in an objectionable position with her maternal uncle and her deposition in cross-examination reads as under : Þ;g ckr xyr gS fd esjs ifr us eq>s o esjs ekek dks vkifRrtud fLFkfr esa ns[kk gksA esjs ekek 'kjkc ugh ihrs gS og lruke Nhuk dks ugh tkurs] esjs ifr tkurs gksxsA It is wrong that my husband has spotted me and my mama in compromising position. My mama does not take liquor. She does not know Satnam Chheena. My husband may be knowing him." (English Translation by Court) 26. She has specifically denied that she wants to live with her maternal uncle, though she has said that she is coming for pairvi from Punjab. My mama does not take liquor. She does not know Satnam Chheena. My husband may be knowing him." (English Translation by Court) 26. She has specifically denied that she wants to live with her maternal uncle, though she has said that she is coming for pairvi from Punjab. Þ;g ckr xyr gS fd eS vius ekek ds lkFk jguk pkgrh gWwa A bl le; eS eqdnes dh iSjoh ds fy;s iatkc ls vkrh gWwA x x x ;g ckr xyr gS fd esjs uktk;t lEcU/k vius ekek ljnkj xqjthr dkSj ls gS vkSj bl dkj.k eS vius ifr ds lkFk ugh jguk pkgrhAÞ “It is wrong to say that I wish to live with my mama. I come to pursue this case from Punjab. x x x x It is wrong to say that I have illicit relations with my mama Sardar Gurjeet Kaur and for this reason, I do not want to live with my husband.” (English Translation by Court) 27. Trial Court has believed allegations made by plaintiff against character and conduct of defendant-wife only by observing that a husband is not expected or may not tell a lie against her wife, without appreciating that no such plea was taken in plaint and it was stated for the first time in replication, and that too after more than one year from the date of filing of divorce suit. Even statements in this regard are extremely vague. It does not mention any date, time or place where he had seen his wife in such a position. Even in deposition, plaintiff has made a vague allegation that he had seen defendant with her maternal uncle in objectionable position, but no date, time or place etc. was mentioned. We are really surprised to see that such a vague plea, that too which was not a part of plaint, has been believed by Trial Court only by observing that a husband may not tell a lie against his wife, for which we do not find any foundation from which it could draw such an inference. 28. In matrimonial disputes, wild and untrue allegations are levelled on both sides frequently and that is a common experience of Courts dealing with such matters. Still Court below, in present case, without appreciating the fact that such plea for the first time was taken by way of replication, has believed and that too without any evidence. 28. In matrimonial disputes, wild and untrue allegations are levelled on both sides frequently and that is a common experience of Courts dealing with such matters. Still Court below, in present case, without appreciating the fact that such plea for the first time was taken by way of replication, has believed and that too without any evidence. This finding of Court below is patently perverse and illegal. 29. We also do not find any evidence to show that defendant has gone with her maternal uncle and is staying with him. The mere fact that she is coming for pairvi from Punjab does not mean that she is staying with her maternal uncle. We do not find even a whisper of evidence in this regard, available on record, and despite repeated query, learned counsel for plaintiff-respondent could not place any evidence to show that finding recorded by Trial Court is based on evidence. 30. Now with regard to alleged mental illness of defendant-appellant, certain medical prescriptions and vouchers, alleged to have been brought before Court below, are referred. 31. We may notice at this stage that no Doctor has been examined by plaintiff-respondent to support his allegations levelled against defendant-appellant with regard to her alleged mental ailment. It is said that one Dr. Tarun Agarwal administered treatment to defendant-appellant and vouchers of some Hospitals and Testing Centres have been filed. We have perused original record and do not find that aforesaid documents were proved and exhibited. In fact only photocopies are available on record which do not show that there was any exercise of admission/denial of these documents and they were proved so as to become exhibit. Unless a document is admitted and exhibited or is proved by the party relying the same and exhibited, it is not an evidence in the eyes of law. The documents available on record of Court below are only photostat copies. These are inadmissible in evidence. Even these photocopies do not show that same are proved either by admitting by defendant or proved by plaintiff in accordance with procedure prescribed in Evidence Act. These documents, therefore, were not admissible in evidence at all. Excluding these documents, we do not find any evidence whatsoever to support contention of plaintiff-respondent made in plaint about mental ailment of defendant appellant. 32. With regard to allegation that she had taken away her clothings and jewelleries etc. These documents, therefore, were not admissible in evidence at all. Excluding these documents, we do not find any evidence whatsoever to support contention of plaintiff-respondent made in plaint about mental ailment of defendant appellant. 32. With regard to allegation that she had taken away her clothings and jewelleries etc. from the house of plaintiff, again we find that she had not admitted such allegation. Her statement reads as under : Þefgyk Fkkus ij rgjhj fy[kh x;h FkhA mlds ckn eq>s esjs ifr us fu;r frfFk ij ek;ds igWqpk fn;kA rc ls eS ek;ds esa jg jgh gwWaA ;g ckr xyr gS fd eS vius ifr ds lkFk cqykus ij u vk;h gwWaAÞ “The report was written at Mahila Police Station. Thereafter, my husband dropped me at my parental house on the fixed date. I have been living at my parental house since then. It is wrong to say that I have not come back with my husband whenever he came to fetch me.” (English Translation by Court) We find no evidence to support even this finding recorded by Court below. 33. Cruelty is a ground, prima facie, under law to justify decree of divorce, but mere allegation without evidence cannot justify decree of divorce. In the present case, plaintiff-respondent though has made allegations against her wife regarding her mental ailment and misbehaviour, but failed to prove the same by adducing credible evidence whatsoever. Court below has relied upon certain documents which were never proved and exhibited hence are inadmissible in evidence. Thus, finding recorded by Court below holding that there was cruelty on the part of wife towards her husband so as to justify decree of divorce is perverse, based on no evidence, and cannot be sustained. 34. The question formulated above is answered in favour of defendant-appellant and against plaintiff-respondent. 35. In the result, appeal is allowed. Impugned judgment and decree dated 17.7.2002, passed by Sri Aditya Kumar Judge, Family Court, Moradabad, is set aside. Suit filed by plaintiff-respondent is hereby dismissed with cost throughout. ———————