JUDGMENT - N.J. PANDYA, J.:---Respondent of the Marriage Petition No. A-212 of 1995 of the Family Court No. 1 at Pune has filed the present appeal as the trial Court by its judgment dated 31st May, 1997 has granted the decree of divorce on the ground of cruelty and desertion under section 13(1), 1-A and 1-B of the Hindu Marriage Act, 1955.

2. Facts of the case are hardly in dispute so far as various events are concerned. The marriage has taken place on 28th April, 1965 and at that time they were residing at Mahim within the city of Mumbai. Thereafter on 28th June, 1965 a flat being Flat No. 9-B, Rose Blossom was purchased. Fourteen years thereafter a shop being Shop No. 10 was also purchased. In the year 1983 the appellant has filed a complaint with the police as per Exh. 95.

3. According to the respondent husband, in that very year on filing of the complaint he left the matrimonial home and has been residing separately since then. So far as the residence is concerned, he has claimed that he is staying in the said shop which was purchased in year 1979.

4. The petition being Petition No. 212 of 1995 is filed in the year 1995. As rightly pointed out by the other side, in their written statement, the respondent wife has reiterated her allegations of petitioner having relation with another woman in para 6 page 67 of the paper book. In the appeal memo also this ground is reiterated in the year 1997.

5. However, so far as the point of delay is concerned, as urged on behalf of the appellant wife, it is to be seen on the basis of petition as filed.

6. The ground of cruelty as raised in the petition rests on the instance of 1983.

7. Some how or the other, the learned trial Judge is too much impressed by this event of complaint and has passed the order though it was his legal duty as cast on the trial Court under section 23(1)(b)(b) of the Hindu Marriage Act, 1955 that before passing decree, he has to keep the legal embargo in the form of delay etc., as set out in the aforesaid provisions in mind, and if, the requirements are attracted no decree can be passed even though ground may have been made out.

8. For the time being, we keep aside the aspect because, as rightly submitted on behalf of the other side, this question would arise provided that cruelty is established. On this point, according to the appellant wife, the petitioner husband before the trial Court has miserably failed. Even though he had failed, the trial Court, unfortunately did not take into consideration the relevant material like passage of 12 years, receipt of magazines and correspondence etc. in the name of the husband at the place where the wife resides and other factors emanating from that and particularly deposition of the Chairman of the Society Raghuvir Narayan Aras at page 83. This witness is examined by the husband. In the cross examination, para 4 at page 85, the witness says that the petitioner husband is not residing in the Shop No. 10 and he further asserts that the society will never allow its members to reside in a business premises, as per the rules of the society.

9. This will knock down the case of the petitioner husband that being account of cruel behaviour of the wife had stopped residing with her since 1983 and had started living in the said Shop No. 10.

10. It has come on record that three days in a week he used to go to Pune, where he was running another dispensary and an eye clinic. During the four day's period that he would be in Mumbai, he had to stay somewhere and he was not staying in Shop No. 10, as categorically stated by the said Chairman of the society, obviously the statement of the wife has to be accepted on preponderance of probability. Facile explanation given by the husband that because of the complaint he was not staying in the flat and was peppering over the entire period of 12 years without giving any details whatsoever, in our opinion, cannot be accepted.

11. Assuming for the time being that what he says is correct, if critically examined

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