JUDGMENT : Pradeep Kumar Srivastava, J. 1. The present first appeal has been preferred against the judgment and decree dated 19.12.2015 passed by the Principal Judge, Family Court, Hamirpur in Divorce Petition No. 03 of 2012, Sri Pradeep Kumar Jha Vs. Smt. Pratibha Jha, by which the divorce petition filed by the appellant has been dismissed. 2. The brief facts giving rise to the present appeal are that the appellant filed a divorce petition before the Principal Judge, Family Court, Hamirpur under section 13 of Hindu Marriage Act, 1955. The petitioner has stated that both the petitioner and respondent are Hindu. Their marriage was solemnized according to Hindu rites and rituals on 27.11.2009. In the marriage, the respondent was given gold and sliver jewellery and costly dresses worth Rs. 5 lacs which the respondent is still keeping with her. At the time of marriage, the petitioner was B-Tech Degree holder and working in Ahmadabad in ECN India Private Ltd Where he continued till 2009 and thereafter he shifted in IBB Soft India ltd. where he continued till April, 2010. The respondent is an MCA (Master Computer Application) and at the time of marriage she used to live in Gurgaon, Haryana with her brother-in-law Neeraj. After marriage, she lived with the petitioner in Ahmadabad for about 4-5 months. The respondent was very arrogant and aggressive by nature and was totally irresponsible towards her matrimonial obligations. The petitioner any how accommodated, but her approach remained indifferent. Despite prevented by him, she used to visit to her brother-in-law. In May, 2010, the petitioner was transferred to Pune in Assenture Company. His brother-in-law Neeraj also got himself transferred to Pune and started working in a company. Since then, the respondent became more arrogant and disobedient. She used to deprive him from co-habitation for many days causing him mental and physical harassment. She used to humiliate him before his friends and relatives by using abusive language and doing marpeet. Her parents ignored his complaints about her nature and behaviour. She and her brother-in-law Neeraj called him impotent and asked him to give divorce. The situation became such that the respondent might get him killed. She has no interest in him nor she is interested in discharging matrimonial obligation. Therefore, there is no option with the petitioner except to seek divorce. 3. She and her brother-in-law Neeraj called him impotent and asked him to give divorce. The situation became such that the respondent might get him killed. She has no interest in him nor she is interested in discharging matrimonial obligation. Therefore, there is no option with the petitioner except to seek divorce. 3. The respondent filed a written statement admitting the marriage but denying all allegations made in the petition against her nature and character. She has stated that the petition has been filed on imaginary grounds. She is MCA degree holder and the petitioner is B.Tech degree holder. Both husband and wife are doing job in private company and living together in a flat in Pune. She was discharging matrimonial responsibility. Denying any jewellery given to her by in laws except given her own family members, She has stated that sufficient dowry was given in her marriage, but the petitioner and his family members were never satisfied and were regularly demanding from her father Rs.5 lacs. The father and elder brother of the petitioner have full influence over the petitioner and under their control he is levelling false and imaginary allegation of adultery. His family members are inclined to re-marry him after divorce. The respondent is wiling to live with petitioner and perform conjugal obligations. Her brother-in-law and sister are enough educated and they have good job in a private company, she also works in a private company and after nine hours of duty, there remains no spare time with her to go somewhere. She is matured woman and understands what is good or bad for her. The allegation of adulterous life with her brother-in-law Neeraj has been pleaded by the petitioner just to give a colour. On the contrary, the petitioner does not perform his matrimonial obligation in terms of protection, security and financial assistance. She and her brother-in-law have never called him to be impotent. On 31.1.2012, the petitioner changed the lock of the flat and asked her to give 5 lacs rupees, otherwise, he will continue humiliating and doing Marpeet with her. On 1.1.2012 she lodged a police report about it and on the interference of the local police, the lock of the flat was opened. Her behaviour has never been harsh and in order to give her mental tension and pain, the petitioner has made allegation on her character. On 1.1.2012 she lodged a police report about it and on the interference of the local police, the lock of the flat was opened. Her behaviour has never been harsh and in order to give her mental tension and pain, the petitioner has made allegation on her character. She has no affairs or relation with her brother-in-law Neeraj. She is still ready to live and perform her conjugal obligations. 4. In his replication, the petitioner has stated that the respondent soon after the marriage kept him deprived from co-habitation and remained always quarrelsome using humiliating and abusive language. It is wrong to say that he is still living with her in a flat. The respondent used to live with her brother-in-law her college days and she has special affection and relation with him, and despite being prevented she continued meeting him. Her brother-in-law got himself transferred to Pune to continue this relationship. She intentionally insults him and feels pleasure living with her brother-in-law and others and, therefore, he had filed this divorce petition. The FIR lodged by her was false and she did so because she got notice of divorce from the Court. After getting the notice she straight way went to her brother-in-law from her office and both conspired to lodge that false report in the police station. He has also stated that after marriage on the first day of honeymoon she pushed him down from the bed and threatened him not to come closure. She did so because of her relationship with her brother-in-law. 5. The learned Principal Judge, Family Court, Hamirpur made all efforts for the reconciliation between both the parties, but failed as the petitioner was not ready for conciliation. 6. The court proceeded and framed following issues: (i) Whether the petitioner is entitled to get a decree of divorce against the respondent on the basis of pleadings in the petition. (ii) Whether the petitioner is entitled for any other relief. 7. Learned Principal Judge, Family Court considered the documentary and oral evidence of the parties and dismissed the divorce petition. 8. Aggrieved by the judgment of the learned Principal Judge, this appeal has been filed, challenging the impugned judgment and decree on the ground that the same is absolutely bad, illegal and is liable to be set aside. 7. Learned Principal Judge, Family Court considered the documentary and oral evidence of the parties and dismissed the divorce petition. 8. Aggrieved by the judgment of the learned Principal Judge, this appeal has been filed, challenging the impugned judgment and decree on the ground that the same is absolutely bad, illegal and is liable to be set aside. The evidence was not properly appreciated and the learned trial court misconstrued the meaning and import of cruelty while deciding the petition. The bitterness between the parties had increased to such an extent that if they are asked to live together, there might be threat to each others life. At least from the last 6 years, there is no co-habitation between the parties. This also comes within the definition of cruelty. She is leading adulterous life. She has also levelled criminal charges against him and family members and it shows that restoration of matrimonial relation is not possible between the two. Hence, the impugned judgment is liable to be set aside and divorce may be granted. 9. Heard Sri K.S. Tiwari, Sri Rahul Dwivedi, learned counsel for the appellant and Sri Ram Janam Singh, learned counsel for the respondent and perused the record. 10. The petition for divorce was filed mainly on the grounds of cruelty and adultery and it is pertinent to mention that both these grounds were taken half heartedly without any specific instance and facts. Briefly speaking, the allegations are that the behaviour of the respondent was very harsh and humiliating. She used to deprive her from cohabitation and had relations with her brother in law. She pushed her away on the very first day of honeymoon. She and Neeraj called him impotent. Her behaviour towards family members was very bad. Despite being prevented, she used to visit to her brother-in-law. 11. Section 13, Hindu Marriage Act permits divorce only on fault ground as incorporated in the section. The appellant has for the first time submitted in the memo of appeal that where the marriage is dead emotionally and practically, and there is no chance of its being retrieved, further continuance of such relation would be cruelty. Since long, they are living separately and the matrimonial bond is damaged to the extent that it is beyond repair. The appellant has for the first time submitted in the memo of appeal that where the marriage is dead emotionally and practically, and there is no chance of its being retrieved, further continuance of such relation would be cruelty. Since long, they are living separately and the matrimonial bond is damaged to the extent that it is beyond repair. Needless to mention that irretrievable break down of marriage is not recognised under statute and therefore, we are of the view that irretrievable break down of marriage may have academic relevance, it cannot become a ground for seeking divorce in a petition before court. It has been laid down in Vishnu Dutt Sharma vs Manju Sharma, ( AIR 2009 SC 2254 ) it has been laid down that there is no ground of irretrievable break down of marriage for divorce under section 13, Hindu Marriage Act and therefore, granting divorce on the ground of irretrievable break down of marriage would amount to enacting or amending law which can be done only by Legislature and divorce granted by Court on that ground cannot be treated to be precedent. Moreover, this is an appeal against the judgment of trial court and the appellant has to restrict himself to the pleadings and evidence given before the trial court. Therefore, it has to be seen whether the plea of cruelty and adultery has been proved or not. 12. So far as adultery is concerned, it was alleged that the respondent used to visit to her brother-in-law which he did not like and many times prevented her. In his affidavit, the appellant has stated that the respondent left him finally in October, 2011 and shifted to her brother-in-law. But in cross-examination, he has clearly stated that he and his wife lived together in Pune till January, 2012 and thereafter, he shifted to his friend. He has further stated in his affidavit that his wife Pratibha used to visit her brother-in-law at least 8 times in 4-5 months. Admittedly, her sister and her brother-in-law lived in Pune and both doing job in private company. So, her visit to her sister is very natural being so close relative and when living in Pune away from their native place Kanpur, UP. Admittedly, her sister and her brother-in-law lived in Pune and both doing job in private company. So, her visit to her sister is very natural being so close relative and when living in Pune away from their native place Kanpur, UP. Moreover, the frequency of visit is also not much to create any suspicion in his mind particularly when he has stated that he also used to go with her to her brother-in-law. In such circumstances, the appellant appears to be oversuspicious husband and his plea of adultery is not established. 13. It is strange that the brother in law of respondent has not been made party with whom the petitioner has alleged her to have committed adultery. Neeraj should have been made party in the petition, as a finding recorded on adultery certainly had adverse impact on his reputation and he had to be given opportunity of hearing. Rule 6 of Allahabad High Court Hindu Marriage and Divorce Rules, 1956 reads as follows: “Rule-6 (a) In every petition for divorce or judicial separation on the ground that the respondent is living in adultery or has committed adultery with any person, the petitioner shall make the alleged adulterer or adulteress a co-respondent to the petition.........” 14. The Rule further provides that the court can grant exemption if such person is unknown, dead, the respondent is prostitute or for any other reason the court considers sufficient. But, Neeraj has not been added him as a party in the petition, nor any exemption has been taken, and on this account also, his plea of adultery is bound to fail. 15. The second ground for divorce which was pleaded by the appellant-petitioner has been of cruelty. It is pertinent to mention that the aspect of adultery which has been considered above has also been alleged to be cruelty by the appellant-petitioner. The facts which have been mentioned by the petitioner is that the respondent wife has not been obedient to him and quite quarrelsome. She also keep him deprived from cohabitation for a long time. Moreover, she lodged FIR against him and his family members. It has also been submitted that the respondent wife used insulting and abusive language against him before her friends and family members. She also keep him deprived from cohabitation for a long time. Moreover, she lodged FIR against him and his family members. It has also been submitted that the respondent wife used insulting and abusive language against him before her friends and family members. Needless to mention that no specific incident of cruelty has been alleged by the appellant nor he has examined any witness who can support the allegations of cruelty. Needless to mention that ordinary wear and tear of life cannot be said to be cruelty unless it is of such nature which could cause reasonable apprehension in the mind of the appellant that it is harmful or injurious for him to live with respondent wife. 16. It is also pertinent to mention that the respondent wife was living with him in the same house with the appellant even after the petition for divorce was filed. Here the conduct of the appellant appears to be mischievous as he filed the divorce petition in District-Hamirpur, UP on 18.01.2012 in the Court of Civil Judge, Hamirpur. In his statement given before the Court, he has stated that he lived with respondent wife till January, 2012. In petition for divorce shows that he has given the address of Plot No.-46, Phase-1, Rajeev Gandhi Infotech Park M.I.D.C, Hinjewadi, Pune, where both were living. But very cleverly he has mentioned his address of Hamirpur and has filed this petition in District-Hamirpur. It is not normal that a husband who has decided to divorce his wife will continue living in the same house and if it was so he should have filed this petition in Pune instead of Hamirpur, where he was residing. This shows that the attempt was to conceal the filing of petition and probably to get the divorce decree behind the back of respondent wife. 17. There appears to be no allegation of physical cruelty as it has been no where alleged or proved by the appellant-petitioner that the respondent wife committed marpeet with him. On the contrary the respondent wife has stated on oath that the appellant petitioner was himself very quarrelsome and he changed the lock of the Flat and went else where and she was forced to go to her brother-in-law's house. In respect of this incident she also lodged a FIR in police station. On the contrary the respondent wife has stated on oath that the appellant petitioner was himself very quarrelsome and he changed the lock of the Flat and went else where and she was forced to go to her brother-in-law's house. In respect of this incident she also lodged a FIR in police station. A copy of the FIR has been filed in evidence from the side of the respondent. She has stated that, on 31.01.2012, when she came to their Flat, the appellant did marpeet with her and used abusive language. She has stated that she wants to save her marriage. 18. The appellant has also submitted that his wife and her brother-in-law called him impotent. This has been very strongly denied by the respondent and she has stated that in order to give colour to the case this fact has been alleged. No witness has been examined from the side of the appellant who might tell before the Court that the behaviour of the respondent wife was cruel and she ever called him impotent. On the contrary the appellant has clearly stated on oath that his wife Pratibha still wants to live with him but he is not inclined to keep her. He has also stated that the brother-in-law of his wife and her sister Abha Sharma live together and they use to come to his place and he and his wife use to visit their place. Therefore, the learned court below has concluded that the evidence shows that the petitioner is more stubborn and he wants to keep his wife on his condition. His wife is not a house wife, she is enough educated and earning. The approach of husband is patriarchal and that is the main reason for quarrel. The learned court below has also concluded that the evidence shows that, on occasions, the appellant has committed cruelty with the wife and it is why he has stated that he does not want to live with her, whereas the wife wants to live with him. 19. From the discussions made above, it is clear that the fact of cruelty has not been proved by any reliable evidence nor any specific incident of cruelty has been established. The meaning of cruelty is to be distinguished from the ordinary wear and tear of life and it cannot be decided on the basis of over sensitivity of appellant petitioner. From the discussions made above, it is clear that the fact of cruelty has not been proved by any reliable evidence nor any specific incident of cruelty has been established. The meaning of cruelty is to be distinguished from the ordinary wear and tear of life and it cannot be decided on the basis of over sensitivity of appellant petitioner. The human mind is extremely complex and human behaviour is equally complicated. Similarly, human ingenuity has no bound, therefore, to assimilate the entire human behaviour in one definition is almost impossible. What is cruelty in one case may not amount to cruelty in another case. The concept of cruelty differs from person to person depending upon his upbringing, level of sensitivity, educational, family and cultural background, financial position, social status, customs, traditions, religious beliefs, human values and the value system. The concept of cruelty cannot be defined on the basis of over suspicious and sensitive temperament of an individual If the appellant husband is over suspicious, it is his problem. He needs to learn to carry on matrimonial life with an enough educated modern day wife in a fast changing society. We expect that good sense will prevail and parties will develop accommodation and understanding so as to restore matrimonial relationship. 20. In view of discussions made above, we do not find any illegality or perversity in the judgment of the learned court below and the appeal is liable to be dismissed. 21. Accordingly, the appeal is dismissed.