JUDGMENT : 1. Heard learned counsel for the appellant. Respondent did not appear despite service of notice pre-admission and post-admission. 2. Appellant is the husband aggrieved by the dismissal of Matrimonial Suit No. 86 of 2010 by judgment dated 25.08.2015, rendered by the learned Principal Judge, Family Court, Sahibganj, whereunder, the suit for dissolution of marriage with the respondent on grounds of adultery and cruelty in terms of Section 13(1) (i) (i-a) has been dismissed. 3. As per the case of the petitioner-husband, the spouses led their conjugal life peacefully for about 2 months after their marriage on 26.02.2009 at Sahibganj solemnized as per Hindu rites and customs. When he went to Delhi to earn livelihood, she started treating his parents with cruelty. He is the only son but the respondent wanted to live with her only. She was unwilling to adjust in the family though he had no independent income. This led to ugly scenes by her. Her brother was requested to take her back which he reluctantly did. In a panchayati held on 18.05.2010, she and her family members accepted their fault. Thereafter, she came to her matrimonial home on 02.07.2010 when she stayed there for 25 days. Petitioner’s mother suspected pregnancy and took her for medical examination. Her urine test revealed 2 months pregnancy. She used medicine for abortion but when her condition deteriorated she implicated her mother-in-law. Petitioner believed that her pregnancy was not out of the wedlock with him. She had assaulted the petitioner and his parents several times earlier regarding which injury report dated 15.09.2010 has been attached. He refers to an incidence of 14.11.2010 when the petitioner tried to switch off the television set as it was causing inconvenience due to loud voice. She got annoyed and physically assaulted him and thereafter went to her paternal house with ornaments and valuables. On 14.11.2010, his conjugal life came to an end. There is no possibility of restitution. Her brother and the respondent were adamant to ruin his family, therefore, he sought a decree of divorce. 4. Respondent appeared and contested the case by filing written statement. She denied the allegations made as false and fabricated. She admitted that she spent 2 months of conjugal life peacefully after her marriage. She denied having treated the parents of the petitioner with cruelty and also that the petitioner had no individual income. 4. Respondent appeared and contested the case by filing written statement. She denied the allegations made as false and fabricated. She admitted that she spent 2 months of conjugal life peacefully after her marriage. She denied having treated the parents of the petitioner with cruelty and also that the petitioner had no individual income. He himself stated in the plaint that he had gone to Delhi for earning livelihood. After two months of the marriage demand of Rs. 1,00,000/- as dowry was made. On non-fulfilment thereof she was subjected to cruelty. Several panchayati were held. On 13.11.2010 she was confined in a room and brutally assaulted by him and his parents and dragged out from the matrimonial life. She informed Jirwabari police station but no action was taken. Four musclemen were sent to the house of her mother who threatened her with dire consequences and directed her to pay Rs. 1,00,000/- otherwise she would not be taken back to her in-laws house. She had got her injuries examined at Sadar Hospital, Sahibganj, after the brutal assault and her mother had also filed a petition at Jirwabari police station stating entire facts. She filed a complaint with the Superintendent of Police, Sahibganj and only thereafter criminal case was registered for the offences under the Indian Penal Code and Dowry Probation Act. Petitioner was arrested in connection thereof and remained behind bar as well. She denied that any panchayati was held or any paper was prepared. Rather to respect the sentiment of the petitioner something was written on a piece of paper but there was no truth in it. She had conceived during her 2 months stay at her in-laws house but her mother-in-law administered medicine forcibly for getting the foetus aborted. He and his parents snatched away all ornaments due to non-fulfilment of dowry demand and threw her out of the matrimonial house. They also did not give her any maintenance. His mother is the root-cause of the dispute. She therefore prayed for dismissal of the suit. 5. Learned family court framed the following issues for adjudication on the basis of the rival pleadings of the parties: “(i) Is the petition maintainable? (ii) Is the respondent wife dealt with the petitioner husband with cruelty? (iii) Is the respondent wife became pregnant from any person other than the petitioner husband or she was pregnant at the time of her marriage? (ii) Is the respondent wife dealt with the petitioner husband with cruelty? (iii) Is the respondent wife became pregnant from any person other than the petitioner husband or she was pregnant at the time of her marriage? (iv) Is the petitioner entitled for a decree for divorce as claimed for in the petition?” 6. The Following seven witnesses were examined on behalf of the petitioner:- PW-1 Keshav Prasad Das PW-2 Zamil Ahmad PW-3 Rajendra Prasad Das PW-4 Bishundeo Das PW-5 Sanjay Das @ Sanjay Verma PW-6 Ganesh Das PW-7 Maya Devi 7. Respondent examined four witnesses in support of her case:- DW-1 Geeta Devi @ Sangita Devi DW-2 Santosh Kumar Das DW-3 Badri Prasad Das DW-4 Ram Swaroop Das 8. Several documents were adduced by the petitioner during arguments such as prescription of treatment of his mother, medical prescription regarding treatment of respondent, urine examination report of respondent and Xerox copy of the certified copy of the judgment passed by the learned SDJM, Sahibganj in G.R. Case No. 449 of 2010. Since these documents were filed at the fag end of the trial during arguments stage they were not marked as Exhibits. Moreover, they were not proved by the petitioner. One certified copy of sulahanama/panchayatnama was filed which was marked as ‘X’ for identification. 9. Respondent exhibited the following documents during trial: “(i) Certified copy of F.I.R. of Borio (J) Police Station Case No. 202/10-Ext.A. (ii) Certified copy of depositions of Sanjay Kumar Verma in Maintenance Case No. 125/12-Ext.-B. (iii) Certified copy of medical report of Smt. Sangeet Devi-Ext.C (iv) Certified copy of charge frame in G.R. Case No. 449/10 Ext.D (v) Certified copy of statements u/s 313 of Cr.P.C. of Maya Devi, Ganesh Prasad Das and Sanjay Kumar Verma-Ext. E to E/2. (vi) Certified copy of F.I.R. of Sahibganj (T) Police Station Case No. 148/15 Ext-F.” 10. Learned family court considered the material evidence on record adduced by the parties in the light of their rival pleadings and took up issue No. iii first for adjudication. Learned family court observed that the respondent came to her in-laws house after panchayati and stayed there for 20-25 days during which period her pregnancy was detected by her mother-in-law and the medical examination had confirmed it as per the case of the petitioner. Apart from that there was no allegation against the respondent regarding adultery. Learned family court observed that the respondent came to her in-laws house after panchayati and stayed there for 20-25 days during which period her pregnancy was detected by her mother-in-law and the medical examination had confirmed it as per the case of the petitioner. Apart from that there was no allegation against the respondent regarding adultery. However, the medical report and evidence of PW-7, Maya Devi, mother-in-law, in chief on 02.07.2010 when analyzed revealed that she did not know whether blood test of the respondent was done or not after she was taken for examination by Dr. M.N. Sinha. PW-6 in para-16 of his cross-examination had clearly stated that blood test of the petitioner or the respondent was not done. No witness had stated before the Court that blood or urine examination of the respondent was done. Despite that her urine examination report was filed by the petitioner at the time of the argument which showed existence of pregnancy as the report was positive. Dr. M.N. Sinha had opined in his prescription regarding the pregnancy of the respondent. This prescription bore two dates. Above the seal of the Doctor there was full signature of the Doctor but behind it the date was mentioned as 25.07.2015. Another signature appeared to be of 27.07.2010. Both these documents i.e. prescription and pathological report did not appear to be genuine rather manufactured paper. They did not appear to be fresh paper and from no angle appeared to be executed in the year 2010. Moreover, the pregnancy of the respondent had occurred during subsistence of the marriage. As such, in terms of Section 112 of the Evidence Act, burden of proof lied upon the petitioner to establish that she became pregnant with some other person. Petitioner had failed to establish the same. As such this issue was decided against the petitioner and in favour of the respondent. 11. Learned family court then proceeded to decide the issue No. 2 relating to cruelty. It discussed the evidence on record, judgments on the point rendered by the Hon’ble Apex Court in the case of N.G. Dastane Vs. S. Dastane, (1975) 2 SCC 326 and in the case of Gurbux Singh Vs. Harminder Kaur, 2011 (1) JLJR (SC) 75 and judgment passed by this Court in the case of Revindra Kumar Vs. It discussed the evidence on record, judgments on the point rendered by the Hon’ble Apex Court in the case of N.G. Dastane Vs. S. Dastane, (1975) 2 SCC 326 and in the case of Gurbux Singh Vs. Harminder Kaur, 2011 (1) JLJR (SC) 75 and judgment passed by this Court in the case of Revindra Kumar Vs. Usha Devi, 2014 (2) JLJR 137 and came to a finding that the petitioner had failed to make out any case of cruelty against her. Unspecified and general allegations without any details could not lead to the establishment of cruelty in marriage. Cruelty should be of such a character as to cause an apprehension in the mind of the aggrieved spouse that it would be harmful or injurious for him to live with the respondent. 12. Learned family court found that small quarrels or skirmishes alleged by the petitioner did not amount to cruelty. Moreover, PW-4, uncle of the petitioner, at para 20 of his cross-examination, had admitted that after panchayati respondent was tortured by the petitioner and his parents and then she filed criminal case against them. It showed the cruel act of the petitioner and his parents towards her. 13. Learned family court also disbelieved the prescription adduced by the petitioner during the course of argument relating to the treatment of his mother on the alleged assault by the respondent and found it to be a manufactured paper. This prescription did not show as to which primary health centre she was medically examined and what was her registration number and what was the registration number of the Doctor. This prescription appeared to be fresh and from no corner appeared to have been issued in the year 2010. It also observed that the respondent had instituted a criminal case for demand of dowry and cruelty in marriage pursuant to the torture inflicted upon her by the petitioner and his parents. Even perusal of the sulahanama, which the petitioner relied to show acceptance of guilt by the respondent revealed that it was the brother of the respondent who thought it proper to admit guilt so that the matter between his sister and brother-in-law could be resolved and she could lead a happy conjugal life. There was no reason to treat it as an admission of guilt on behalf of the respondent. There was no reason to treat it as an admission of guilt on behalf of the respondent. It further looked improbable that she could singlehandedly assault three persons in her matrimonial home, who did not react to it. 14. The learned family court also did not find merit in the contention of the petitioner that the marriage had irretrievably broken down as the parties have been living separately for the last 5 years and so many cases were fought between them. 15. Petitioner had on the other hand brought it to the notice of the family court that he along with his parents had been acquitted by the learned SDJM, Sahibganj in G.R. Case No. 449 of 2010 instituted by the respondent on allegations of cruelty and demand of dowry for the offences under Sections 498 A, 323 of the Indian Penal Code and Sections 3/4 of the Dowry Prohibition Act. However, learned family court observed that their acquittal was not clean and the learned Court had neither given them the benefit of doubt. Moreover, the judgment of acquittal was under challenge in appeal. This, therefore, did not make out any ground for mental torture. Issue Nos. (i) and (iv) were also decided against the petitioner in the light of the findings recorded in respect of the other two issues. 16. Learned counsel for the petitioner has laboured to question the findings of the learned family court on both counts. He submits that the conduct of the respondent has been evidenced through the statement of the plaintiff witnesses i.e. PW-1 his maternal uncle, PW-2 an independent witness, PW-3 his maternal uncle (Mousa), PW-4 also his uncle and PW-5 the petitioner himself. PW-6 and PW-7, his father and mother, have also supported his case. Learned family court had failed to appreciate the evidence i.e. panchayatnama which showed the acceptance of guilt by the respondent. This panchayat was held on 18.05.2010 at Gayatri Mandir and is an admitted document by both the parties. The matrimonial issues were resolved in the panchayati and thereafter the respondent returned to her matrimonial home. However, her behaviour remain unchanged and she was also found carrying pregnancy, which was suspicious in nature. The medical prescriptions and urine examination report have also been unnecessarily doubted by the learned family court though the opinion of the Doctor showed that she was having two months pregnancy. However, her behaviour remain unchanged and she was also found carrying pregnancy, which was suspicious in nature. The medical prescriptions and urine examination report have also been unnecessarily doubted by the learned family court though the opinion of the Doctor showed that she was having two months pregnancy. The findings of the learned family court are therefore vulnerable to challenge. The appeal should be allowed after setting aside the impugned judgment. Marriage between the parties should be dissolved as they have been living separately for 8 years by now. The marriage has therefore irretrievably broken down. There are no children born out of the wedlock. As such, there is no unifying factor between the spouses to keep the emotional bonds alive. 17. We have considered the submissions of learned counsel for the appellant and gone through the relevant material evidence on record as also discussed by the learned family court. The narrative above need no repetition so far as the pleading and material evidence on record is concerned. However, on consideration of the material evidence adduced during trial we are in conformity with the opinion of the learned family court so far as issue no. 2 relating to adultery is concerned. The pregnancy of respondent was during the subsistence of the marriage. As per Section 112 of the Evidence Act, 1872, birth during marriage is conclusive proof of legitimacy. The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within 280 days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten. The appellant had miserably failed to show that spouses had no access to each other during the period when the child was conceived. Moreover, the documents i.e. prescription of the Dr. M.N. Sinha and the urine examination report both were fresh papers and did not appear to have been executed in the year 2010. PW-6 the father in his cross-examination had clearly stated that the blood test of the petitioner and the respondent was not done. No witness had stated before the court that blood or urine examination of the respondent was done. PW-6 the father in his cross-examination had clearly stated that the blood test of the petitioner and the respondent was not done. No witness had stated before the court that blood or urine examination of the respondent was done. Such a document therefore could not be treated to be credible evidence to question the fidelity of the respondent wife. As such, we do not find any error in the findings of the learned family court so far as the issue no. (iii) is concerned. 18. However, so far as the charge of cruelty is concerned, both petitioner and the respondent had hurled allegations of cruelty against each other. Minor wear and tear of daily married life would definitely not constitute cruelty. Allegations of assault by the respondent upon the petitioner and his parents also looked improbable as rightly held by the learned family court. 19. We find from lower court record that the matrimonial suit was instituted on 18.11.2010 seeking dissolution of marriage. Notices were issued upon the respondent thereafter. Order dated 22.12.2010 records that notice was received by the respondent. The case was put up for 5.1.2011 for appearance of the respondent. The criminal case alleging demand of dowry and cruelty in marriage was instituted by the respondent on 25th December, 2010 i.e. Borio Jirwabari P.S. case no. 202 of 2010 u/s 498 A, 323 of the IPC r/w 3/4 of the D.P. Act. The judgment dated 25.2.2014 of the learned S.D.J.M. Sahibganj in G.R. Case no. 449 of 2010, T.R. No. 24 of 2010 arising out of Borio Jirwabari P.S. case no. 202 of 2010 dated 25.2.2014 acquitting the petitioner and his parents were brought on record before the Family Court. Perusal thereof shows that the learned trial court found that the prosecution had failed to establish the charges of cruelty in marriage and demand of dowry against the petitioner and his father and mother. The informant/ wife had alleged that she was brutally assaulted on 13.11.2010 by petitioner and his parents and she was examined by the medical officer thereafter. However, the report of the medical officer did not reveal any external injury on any part of her body. This report was dated 14.11.2010. The defence on its part had alleged about her aggressive behaviour and incidences of abuses and assault upon the husband and his parents. However, the report of the medical officer did not reveal any external injury on any part of her body. This report was dated 14.11.2010. The defence on its part had alleged about her aggressive behaviour and incidences of abuses and assault upon the husband and his parents. The accused petitioner and his parents were accordingly acquitted of the charges. The respondent has reportedly preferred an appeal against the judgment of acquittal, the fate of which is not known. However, the manner in which the criminal case was lodged immediately after receipt of the notice of the matrimonial suit and the fact that the petitioner and his parents have been acquitted of a serious charge of cruelty on non-fulfilment of demand or dowry during seven years of the marriage, shows the falsity of the accusation. Reliance may be placed in the judgment of the Hon’ble Apex Court in the case of K. Srinivas Rao Vs. D.A. Deepa, (2013) 5 SCC 226 and in the case of K. Srinivas Vs. K. Sunita, (2014)16 SCC 34 . The Hon’ble Supreme Court had held that conduct of the wife in making unfounded indecent defamatory allegations against the family members and all her attempts to ensure that other spouse be put in jail and the husband be removed from his job, certainly constituted cruelty. In the light of the observations of the Apex court in the facts of the present case we are of the view that making of false accusation, for which the petitioner and his family members have suffered, for a period of about five years, itself would amount to mental cruelty. Such an action on the part of the respondent may have inflicted prolonged sense of persecution and entailed sufficient mental cruelty upon the appellant and his family members. The appellant also had to suffer incarceration during trial on such false accusations which may have left a sense of ignominy and slur on his reputation. Respondent failed to substantiate such accusations during trial which continued for almost 5 years. In the case of K. Srinivas (Supra), the Apex Court observed that respondent/wife had filed a criminal contempt and even one such complaint was sufficient to constitute the mental cruelty. Respondent failed to substantiate such accusations during trial which continued for almost 5 years. In the case of K. Srinivas (Supra), the Apex Court observed that respondent/wife had filed a criminal contempt and even one such complaint was sufficient to constitute the mental cruelty. Based on the proposition, laid down in the aforesaid two judgments of the Hon’ble Apex Court, we are of the opinion that the learned family court had erred in holding that the petitioner could not establish the ground of cruelty against the respondent. The findings in relation to issue no. (ii) therefore suffer from errors of law and on facts as well. 20. It further appears from the conduct of the respondent that she is not even interested in contesting this appeal, despite service of notice on more than one occasion pre-admission and post-admission. She had chosen not to appear and contest the case. As such, this court could not make any endeavours to bring reconciliation between the parties in the light of the provision of Section 23 of the Hindu Marriage Act, 1955 and the Family Courts Act. If the respondent was responsible for making false accusation and thereby causing mental cruelty upon the petitioner, petitioner/appellant herein cannot be denied relief. It cannot be said that he had tried to take advantage of his own wrong. As such, we are of the considered opinion that the instant appeal deserves to be allowed. Marriage between the parties is dissolved on the ground of cruelty. Impugned Judgment is accordingly set aside. 21. Appeal is allowed. Decree accordingly. Appeal allowed.