JUDGMENT Hon’ble Sudhir Agarwal, J.—This is a defendant’s appeal filed under Section 19 of Family Courts Act, 1984 (hereinafter referred to as the “Act, 1984”) arisen from judgment and order dated 3.2.2010 passed by Sri S.D. Paliwal, Principal Judge, Family Court, Jhansi in Original Suit No. 274 of 2006. 2. Plaintiff-respondent filed Matrimonial Suit No. 274 of 2006 under Section 13 of Hindu Marriage Act, 1955 (hereinafter referred to as the “Act, 1955”) stating that marriage was solemnized between parties on 21.6.1999 according to Hindu rituals at Jhansi. Two daughters were born out of wedlock. One, Km. Ayushi on 10.5.2000 and another Km. Aditi on 10.5.2002. Husband is working in Bharat Heavy Electrical Ltd., Jhansi (hereinafter referred to as the “BHEL”) since 1997. Character of defendant-appellant even before marriage was not chaste and no change came after marriage also. On 20.5.2003 when plaintiff-husband had gone to attend his duties, he came back for some essential work to his house from factory and found that a motorcycle No. UP 93 F 8815 was standing in front of his house. When plaintiff entered the house, found a person in objectionable/compromising position with defendant-appellant. Said person immediately attempted to ran away but plaintiff shouted and neighbors also collected, as a result whereof he was caught. On inquiry he told his name as Vishal Srivastava son of Sri Jagdish Prasad Srivastava. He said that he has relations with defendant-appellant since before marriage and even thereafter and has high political resources. In the meantime somebody informed Police who came and took away Vishal Srivastava to police station. When plaintiff went to Police Chowki, BHEL, his report was not lodged. He also found that Vishal Srivastava was already allowed to go. 3. Thereafter an application was submitted by plaintiff on 23.5.2003 before Deputy Inspector General of Police but even then report was not lodged. Then a complaint case under Section 497, 506 IPC and 3(1)10 S.C. and S.T. Act was filed in the Court of Additional Civil Judge (Junior Division) against Vishal Srivastava. After filing of aforesaid complaint defendant-appellant and his family members threatened plaintiff to withdraw complaint else they will implicate him in false cases of dowry etc. Plaintiff did not surrender to their threats. After filing of aforesaid complaint defendant-appellant and his family members threatened plaintiff to withdraw complaint else they will implicate him in false cases of dowry etc. Plaintiff did not surrender to their threats. Subsequently, defendant-appellant lodged a report under Section 498-A, 323, 506 IPC and 3/4 Dowry Prohibition Act on 20.4.2004 at Woman Police Station, Jhansi and also filed a maintenance application under Section 125 Cr.P.C. in the Court of Family Judge, Jhansi on 15.6.2004. Plaintiff sought to persuade defendant-appellant stating that she had two daughters, therefore, should improve upon herself but she did not understand the things and said that she has relations with Vishal Srivastava and would continue to maintain same. She also asked plaintiff-appellant to accept the situation as it is, else, he will be implicated in serious criminal cases of dowry etc. It is in these circumstances, plaintiff, having no option, since it is almost impossible to live with defendant-appellant as husband and wife, hence filed the suit for divorce. 4. When aforesaid suit was pending defendant-appellant filed an application under Section 24 of Act, 1955 claiming maintenance of Rs. 12,000/- per month for herself and two minor daughters. 5. It was contested by plaintiff-respondent stating that defendant-appellant is running a private computer coaching at her residence and earning about Rs. 10,000/- per month. Besides, she is also getting maintenance of Rs. 2200/- per month pursuant to order passed under Section 125 Cr.P.C., which plaintiff-respondent is regularly paying. On the contrary plaintiff-respondent has to maintain himself and his old mother, therefore, there is no justification to allow any further maintenance to defendant-appellant. 6. Defendant-appellant also contested divorce suit by denying, in general, all allegations contained in plaint except the factum of marriage. Allegations of adultery were seriously denied. It is said that due to non-fulfillment of dowry demand of plaintiff-respondent and his family, she was treated cruely and for that reason she filed a criminal case under Section 498-A, 323, 506 IPC and 3/4 Dowry Prohibition Act, which is pending in Civil Judge (Junior Division), Court No. 11, Jhansi. She is having two minor daughters and looking after their maintenance and studies. She is a harassed lady in the hands of plaintiff-respondent. 7. Her statement was recorded by Court below on 20.1.2010 as DW-1 wherein she denied plaint allegations as also the allegations of illicit relations with Vishal Srivastava and alleged incident on 22.5.2003. She is having two minor daughters and looking after their maintenance and studies. She is a harassed lady in the hands of plaintiff-respondent. 7. Her statement was recorded by Court below on 20.1.2010 as DW-1 wherein she denied plaint allegations as also the allegations of illicit relations with Vishal Srivastava and alleged incident on 22.5.2003. In support of suit plaintiff-respondent deposed as PW-1. 8. Trial Court has decreed suit vide order dated 3.2.2010 recording a finding that defendant-appellant was indulged in illicit relations with Vishal Srivastava and has caused mental cruelty, therefore, decree of divorce is justified. 9. Learned counsel for appellant argued that finding of Trial Court with regard to illicit relations is based on no evidence whatsoever and perverse, hence impugned decree of divorce is liable to be set aside. 10. Learned counsel appearing for respondent, on the contrary, sought to support decree for the reasons stated therein and argued that findings of fact are recorded on the basis of evidence hence there is no justification for any judgment of reversal by this Court. 11. Points for determination in this appeal which have arisen are: (I) Whether finding of Trial Court with regard to character and conduct of defendant-appellant is based on no evidence. (II) Whether plaintiff-respondent has proved a case of cruelty so as to justify decree of divorce by adducing credible evidence. (III) Whether judgment and decree passed by Trial Court is based on evidence and justified in law. 12. Before considering aforesaid questions on merits, we may also notice some other events in the meantime. 13. Admitted fact is that marriage was solemnized on 21.6.1999 and thereafter two daughters were borne on 10.5.2000 and 10.5.2002. A police report was lodged against Vishal Srivastava on 22.5.2003 being Case Crime No. 331 of 2003 under Section 294 IPC at Police Station Babina wherein charge-sheet No. 66 dated 9.6.2003 was filed and he ultimately was fined for Rs. 250/-. The charge against him was that he abused with indecent words, the defendant-appellant i.e. wife of plaintiff-respondent, on 12.30 pm. Thereafter an application was filed under Section 13B of Act, 1955 on 7.10.2003 purporting to be a joint application for divorce with consent which was registered as Petition No. 323 of 2006. 250/-. The charge against him was that he abused with indecent words, the defendant-appellant i.e. wife of plaintiff-respondent, on 12.30 pm. Thereafter an application was filed under Section 13B of Act, 1955 on 7.10.2003 purporting to be a joint application for divorce with consent which was registered as Petition No. 323 of 2006. Appellant’s father lodged a report dated 20.4.2004 at Woman Police Station, Jhansi stating that the said application has been filed illegally by obtaining signatures of his daughter under coercion and force and when he attempted to meet her, he was not allowed. His daughter has been confined forciably at the residence of plaintiff-respondent. Said application was rejected on 8.4.2004 when none of the parties appeared. A recall application dated 9.4.2004 was filed supported by a joint affidavit. Thereafter aforesaid suit was filed. 14. In that statement of PW-1, i.e., Paper No. 27A, recorded in Case No. 182 of 2004 under Section 125 Cr.P.C., plaintiff-respondent has admitted that he was working as Artisan in BHEL, Jhansi and own a big house having 7-8 rooms. His father died in October, 2002. With regard to alleged incident of 22.5.2003 he stated that Vishal Srivastava was caught in presence of his neighbors, Sri Ram Dayal son of Gopal, Kishori Lal son of Late Sri Bhagirath Ahirwar, Nawal Kumar son of Pooran Lal Kishoria and others. However, none of them have been produced in evidence to support plaint case. 15. Trial Court has drawn assumption from the fact that Vishal Srivastava was prosecuted under Section 294 IPC for misbehaving with defendant-appellant. It only shows that an incident took place on 22.5.2003. This is absolutely a conjecture and surmises and based on no evidence whatsoever. Plaintiff-respondent’s case is sought to be supported by his own statement only and the factum that Vishal Srivastava, a classmate in B.Sc. with defendant-appellant but beyond that no further evidence has come on record to justify such a serious inference against conduct and character of defendant-appellant to be drawn. Besides, in such matters requirement of law is that adulterator must be impleaded, which has not been done. 16. Lodging of report by appellant by itself cannot be said to be an act of “cruelty” since it cannot be said that report lodged by defendant-appellant is false or frivolous. Police after investigation has submitted charge-sheet and trial is pending. Besides, in such matters requirement of law is that adulterator must be impleaded, which has not been done. 16. Lodging of report by appellant by itself cannot be said to be an act of “cruelty” since it cannot be said that report lodged by defendant-appellant is false or frivolous. Police after investigation has submitted charge-sheet and trial is pending. A divorce on the ground of “cruelty” cannot be granted for the weakness of evidence in defence but plaintiff can succeed only when he is able to prove his case of “cruelty” by adducing evidence in support of claim. The finding recorded by Trial Court to grant divorce decree on the ground that plaintiff-appellant has illicit relations with Vishal Srivastava, which amounts to mental cruelty, is based on no evidence at all and we have no hesitation in answering all the aforesaid points for determination in favour of defendant-appellant and against plaintiff-respondent. 17. In the result, appeal succeeds and is allowed. Impugned judgment dated 3.2.2010 is hereby set aside and Matrimonial Suit No. 274 of 2006 filed by plaintiff-respondent seeking divorce, is hereby dismissed. 18. Appellant is entitled to costs throughout.