Dinesh Kumar Singh, J.—Heard learned counsels for the appellant, respondent. 2. The present Miscellaneous Appeal is directed against the judgment and decree dated 16.3.2009 and 31.3.2009, respectively, passed by the learned Principal Judge, Family Court, Patna in Matrimonial Case No. 460 of 2007/59 of 2000, whereby the matrimonial suit filed by the appellant with a prayer for decree of divorce on dissolution of marriage between the appellant and the respondent on the ground of adultery and cruelty, has been dismissed with cost of Rs.5000/-. 3. It appears that the judgment and decree of the learned Principal Judge, Family Court was initially challenged in First Appeal No. 57 of 2009. The learned counsel for the appellant was permitted to convert the First Appeal into Miscellaneous Appeal vide order dated 1.7.2013 and consequently, it was numbered as Miscellaneous Appeal No. 525 of 2013. The Miscellaneous Appeal was dismissed by a bench of this Court vide order dated 13.5.2015 with a direction to make payment of 1/3rd pension of appellant husband to the respondent wife. 4. Subsequently, vide order dated 14.9.2015 passed in Civil Review No. 164 of 2015, the same bench recalled the judgment dated 13.5.2015 and restored the Miscellaneous Appeal. Relevant part of the order dated 14.9.2015 reads as follows:— “Having condoned the delay in filing review petition, we take up the review application for admission, having considered the grounds taken in support of the review application we recall our judgment dated 13.05.2015 passed in M.A. No. 525 of 2013, restore the said appeal for hearing before appropriate Bench, which should be considered in accordance with law without being prejudiced by our judgment dated 13.05.2015. Review Application is, accordingly, disposed of.” 5. The factual matrix of the case is that the appellant husband was married with the respondent wife on 10.5.1998 according to Hindu rites and rituals. The relationship was not very compatible and the appellant husband preferred Matrimonial Case No. 400 of 2007 for dissolution of marriage on the ground that on 30.5.1998 the respondent returned to her parents’ house along with her jewellery and other belongings. She had illicit relationship with her brother in law Ashok Kumar Singh, as the appellant had himself witnessed the respondent wife with said Ashok Kumar Sigh in compromising position. The respondent wife used to threaten the appellant. The respondent did not allow the appellant to cohabit. She had illicit relationship with her brother in law Ashok Kumar Singh, as the appellant had himself witnessed the respondent wife with said Ashok Kumar Sigh in compromising position. The respondent wife used to threaten the appellant. The respondent did not allow the appellant to cohabit. She also lodged false cases against the appellant. 6. The respondent wife entered appearance and filed her written statement denying the allegations levelled by the appellant husband. The case of the respondent wife is that the appellant is in relationship with one Sandhya Devi and on the instigation of said Sandhya Devi, the appellant used to make further dowry demands. The respondent wife filed several criminal cases against the appellant husband with allegation of torture being inflicted on her and in retaliation to the same, the matrimonial case was filed by the appellant just to harass the respondent wife. 7. In the matrimonial case, following issues were framed:— “(1) Is the suit as framed is maintainable? (2) Is the suit barred by law of limitation? (3) Has the respondent committed adultery with her brother-in-law after her marriage with the petitioner? (4) Has the respondent deserted the plaintiff? (5) Has the respondent treated the petitioner with cruelty? (6) Is the petitioner entitled for a decree of divorce? (7) To what other relief or reliefs, if any, the petitioner is entitled?” 8. The appellant only examined himself as P.W. 1 and produced certain documentary evidence including the criminal cases filed by the respondent wife. The respondent wife examined two witnesses – herself as D.W. 1 and Rajeshwar Singh as D.W. 2. She also exhibited certain documentary evidence including the certified copies of the FIR. Considering the materials on record, the learned Additional Principal Judge, Family Court, Patna came to a definite finding that the appellant failed to prove the main ground of adultery since the adulterer Ashok Singh was not made party, though he happens to be the brother-in-law of the respondent wife and in the midst of the trial, the appellant took another plea that the respondent also got married to one Shambhu Singh, whereas contrary to the same, cogent evidence has been brought on record to the effect that the appellant himself got married with the wife of Shambhu Singh, namely, Sandhya Devi. 9. 9. So far as the ground of cruelty is concerned, it arose out of the two factors – one, that the respondent - wife was in adulterous relationship and secondly that she lodged criminal cases but the ground of cruelty has not been proved by any cogent evidence, as a result, the matrimonial suit was dismissed on contest with a cost of Rs.5000/- and the same is under challenge under the present proceeding. 10. Learned counsel for the appellant submits that this is not in dispute that in the background of serious litigated relationship, both the appellant and the respondent are not residing together and at present the appellant is not ready for resumption of conjugal life. The appellant being an army personnel, in pursuance to the order dated 8.1.2013 passed by the learned Additional Principal Judge, Family Court, Patna in Maintenance Case No. 130M of 2010 is making payment of Rs.2500/- per month, as maintenance to the respondent wife and apart from that, the appellant has also paid the cost of Rs.5,000/- imposed by the impugned judgment and decree under appeal. It is further submitted that the learned Court below failed to appreciate the evidence on record, particularly, the fact that the respondent was leading adulterous life. 11. Learned counsel for the respondent wife submits that since the appellant has performed second marriage with said Sandhya Devi, wife of Shambhu Singh, hence, Shambhu Singh has also lodged a case against Sandhya Devi and the appellant, and communications and documents to that effect have been exhibited as, Ext. J series. The factum of marriage was not only inquired by the local police but the officers of the military also, which reflects that the appellant has performed second marriage even then the respondent is ready to resume the conjugal life. The charge of adultery has mechanically been levelled and the same has not been proved. 12. Having heard learned counsel for the parties, though the matrimonial suit was filed with a prayer for dissolution of marriage on the ground of adultery and cruelty but the basic ground is adultery. 13. This is not in dispute that the alleged adulterer Ashok Kumar Singh happens to be the brother-in-law of the respondent but he has not been made party. 13. This is not in dispute that the alleged adulterer Ashok Kumar Singh happens to be the brother-in-law of the respondent but he has not been made party. Rule 16 of the Patna High Court Hindu Marriage Rules stipulates that the adulterer is a necessary party when the dissolution of marriage or judicial separation is sought on the ground of adultery. However, on certain grounds the Court may allow the petitioner not to add an adulterer as party, if he/she is dead or if the name of adulterer could not be known despite of due diligence and also in case where the erring party is leading the life of a prostitute. Rule 16 of the Rules reads as follows:— “16. Co-respondent in husband’s petition.—In any petition presented by a husband for divorce on the ground that the wife is living in adultery or judicial separation on the ground that the wife has, since the solemnization of the marriage, been guilty of adultery, the petitioner shall make the alleged adulterer, if alive, a co respondent in the said petition, unless he is excused from so doing by an order of the Court which may be made on any or more of the following grounds which shall be supported by an affidavit in respect of the relevant facts.- (i) that the respondent is leading the life of a prostitute, and that the petitioner knows of no person with whom the adultery has been committed; (ii) that the name of the alleged adulterer is unknown to the petitioner, although he has made due efforts for its discovery; (iii) that the alleged adulterer is dead; (iv) for any other sufficient reason that the Court may deem fit to consider.” Similar provision has been made under Rule 214(16) of the Civil Court Rules, which reads as follows:— “16. Co-respondent in husband’s petition.—In any petition presented by a husband for divorce on the ground that the wife is living in adultery or judicial separation on the ground that the wife has, since the solemnization of the marriage, been guilty of adultery, the petitioner shall make the alleged adulterer, if alive, a co respondent in the said petition, unless he is excused from so doing by an order of the Court which may be made on any or more of the following grounds which shall be supported by an affidavit in respect of the relevant facts.- (i) that the respondent is leading the life of a prostitute, and that the petitioner knows of no person with whom the adultery has been committed; (ii) that the name of the alleged adulterer is unknown to the petitioner, although he has made due efforts for its discovery; (iii) that the alleged adulterer is dead; (iv) for any other sufficient reason that the Court may deem fit to consider.” 14. Hence, on this ground itself the case of the appellant on the ground of adultery cannot be considered. More over, no evidence has been brought on record to prove such ground. The inconsistency on behalf of the appellant is apparent that in the pleading he has pleaded that the respondent wife has illicit relationship with Ashok Kumar Singh whereas during trial he took another ground without any cogent evidence that the respondent - wife married with Shambhu Singh, with whose wife the appellant himself has married and there are evidence on record to that effect. 15. So far as cruelty is concerned, the word ‘cruelty’ is not defined under the Act. Cruelty can be of two kinds – physical cruelty and mental cruelty. Physical cruelty can be established by direct evidence but it is difficult to establish mental cruelty by direct evidence. Merely because allegations and counter allegations have been levelled, a decree of divorce cannot follow. The appellant has only examined himself and has not produced any other witness. He has taken a plea that the respondent wife has married with Shambhu Singh which was never pleaded. If there is no pleading, then no relief can be granted on that basis. The third ground cannot be taken by the party in the Court which has neither been pleaded nor proved. He has taken a plea that the respondent wife has married with Shambhu Singh which was never pleaded. If there is no pleading, then no relief can be granted on that basis. The third ground cannot be taken by the party in the Court which has neither been pleaded nor proved. It is well settled that the cause of action for a suit should be comprising of all facts which the plaintiff must aver and if traversed, prove to support his right to the judgment. 16. It is trite law that the Court cannot make out a third case contrary to the pleadings and evidence on record. The learned Court below has failed to understand that there is no pleading with regard to the irretrievable breakdown of marriage in the plaint. It is well settled law that in absence of pleading, evidence, if any, produced by the party cannot be considered as has been held in the case of Ram Sarup Gupta vs. Bishun Narain Inter College, reported in (1987) 2 SCC 555 . Paragraph 6 of the judgment reads as follows:— “6. … It is well settled that in the absence of pleading, evidence, if any, produced by the parties cannot be considered. It is also equally settled that no party should be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it. The object and purpose of pleading is to enable the adversary party to know the case it has to meet. In order to have a fair trial it is imperative that the party should settle the essential material facts so that other party may not be taken by surprise. The pleadings however should receive a liberal construction; no pedantic approach should be adopted to defeat justice on hair-splitting technicalities. Sometimes, pleadings are expressed in words which may not expressly make out a case in accordance with strict interpretation of law. In such a case it is the duty of the court to ascertain the substance of the pleadings to determine the question. It is not desirable to place undue emphasis on form, instead the substance of the pleadings should be considered. In such a case it is the duty of the court to ascertain the substance of the pleadings to determine the question. It is not desirable to place undue emphasis on form, instead the substance of the pleadings should be considered. Whenever the question about lack of pleading is raised the enquiry should not be so much about the form of the pleadings; instead the court must find out whether in substance the parties knew the case and the issues upon which they went to trial. Once it is found that in spite of deficiency in the pleadings parties knew the case and they proceeded to trial on those issues by producing evidence, in that event it would not be open to a party to raise the question of absence of pleadings in appeal.” 17. Moreover, if there is delay in disposal of the matrimonial suit or appeal, that cannot be a ground for dissolution of marriage. 18. Above all, it is the fundamental principle of civil law that relief to be granted can be only with reference to the prayer made in the pleadings, as has been held by the Hon’ble Supreme Court in the case of Bachhaj Nahar vs. Nilima Mandal and Anr., reported in (2008) 17 SCC 491 . Paragraph 23 of the judgment reads as follows:— “23. It is fundamental that in a civil suit, relief to be granted can be only with reference to the prayers made in the pleadings. That apart, in civil suits, grant of relief is circumscribed by various factors like court fee, limitation, parties to the suits, as also grounds barring relief, like res judicata, estoppel, acquiescence, non-joinder of causes of action or parties, etc., which require pleading and proof. Therefore, it would be hazardous to hold that in a civil suit whatever be the relief that is prayed, the court can on examination of facts grant any relief as it thinks fit. In a suit for recovery of rupees one lakh, the court cannot grant a decree for rupees ten lakhs. In a suit for recovery possession of property ‘A’, court cannot grant possession of property ‘B’. In a suit praying for permanent injunction, court cannot grant a relief of declaration or possession. The jurisdiction to grant relief in a civil suit necessarily depends on the pleadings, prayer, court fee paid, evidence let in, etc.” 19. In a suit for recovery possession of property ‘A’, court cannot grant possession of property ‘B’. In a suit praying for permanent injunction, court cannot grant a relief of declaration or possession. The jurisdiction to grant relief in a civil suit necessarily depends on the pleadings, prayer, court fee paid, evidence let in, etc.” 19. In the present case, in the plaint there was no pleading for the dissolution of marriage on the ground of irretrievable breakdown. Though such prayer cannot be made as there is no such ground incorporated under Section 13 of the Act for dissolution of marriage but the marriage has been dissolved not only contrary to the established law but contrary to the principles that without any pleading and relief prayed for for dissolution of marriage on the ground of irretrievable breakdown, the same has been granted in the present case. Hence, the impugned judgment is bad in law and facts as well. 20. In the present case, no specific instance of cruelty has been pleaded or the evidence has been led. It is well settled law, as has been laid down by Three Judge Bench of the Apex Court in the case of A. Jaichandra vs. Aneel Kaur, reported in (2005) 2 SCC 22 that to constitute cruelty, the conduct complained of should be grave and weighty which compels the petitioner not to live with the other spouse. Paragraph 12 of the judgment reads as follows:— “To constitute cruelty, the conduct complained of should be "grave and weighty" so as to come to the conclusion that the petitioner spouse cannot be reasonably expected to live with the other spouse. It must be something more serious than "ordinary wear and tear of married life". The conduct taking into consideration the circumstances and background has to be examined to reach the conclusion whether the conduct complained of amounts to cruelty in the matrimonial law. Conduct has to be considered, as noted above, in the background of several factors such as social status of parties, their education, physical and mental conditions, customs and traditions. It is difficult to lay down a precise definition or to give exhaustive description of the circumstances, which would constitute cruelty. Conduct has to be considered, as noted above, in the background of several factors such as social status of parties, their education, physical and mental conditions, customs and traditions. It is difficult to lay down a precise definition or to give exhaustive description of the circumstances, which would constitute cruelty. It must be of the type as to satisfy the conscience of the Court that the relationship between the parties had deteriorated to such extent due to the conduct of the other spouse that it would be impossible for them to live together without mental agony, torture or distress, to entitle the complaining spouse to secure divorce. Physical violence is not absolutely essential to constitute cruelty and a consistent course of conduct inflicting immeasurable mental agony and torture may well constitute cruelty within the meaning of Section 10 of the Act. Mental cruelty may consist of verbal abuses and insults by using filthy and abusive language leading to constant disturbance of mental peace of the other party.” 21. It is specifically pleaded in the plaint that the respondent stayed with the appellant only for a few days. The marriage between the parties was admittedly performed on 10.5.1998 when the matrimonial case was filed after nine years in 2007. 22. In the circumstances, and in view of the discussions made above, we do not find any infirmity in the judgment and decree impugned. 23. Accordingly, this Miscellaneous Appeal is dismissed.