The making of false and disparaging allegations against a spouse in a complaint under Section 498A IPC amounts to cruelty and can be a ground for divorce.

( 1 ) THE appellant has filed this application for review of the judgment and decree dated 25th of April, 2003 in FA No. 12 of 2001. Mr. Dasgupta in support of the review application had contended that the Court had overlooked the materials apparent on the face of the record to the extent that the wife had made false and wild disparaging allegations against the spouse, which amounts to cruelty. In support, he relied on Vijaykumar Ramchandra Bhate vs. Neela vijaykumar Bhate, 2003 (6) SCC 334. He then points out that the learned Court in the judgment had disbelieved the evidence of the appellant/ husband and believed that of the wife on the ground that there was no cross-examination on certain points. Mr. Dasgupta contended that absence of cross-examination does not mean that the evidence was unchallenged. To support this contention, he relied on the decisions in Juwarsingh s/o Bheraji and Ors. vs. State of Madhya pradesh, 1980 (Supp) SCC 417 and P. Ram Reddy and Ors. vs. Land Acquisition officer, Hyderabad Urban Development Authority, Hyderabad and Ors. , 1995 (2)SCC 305. Thus the finding arrived at suffers from errors apparent on the face of the record. He next contended with regard to the question of cohabitation, particularly, at page 7 of the judgment under review and drew our attention that the evidence itself was unreliable and as such the absence of cross-examination would not matter. Inasmuch as Mr. Dasgupta pointed out that the wife admitted of not living in the same room and cohabitation was alleged four months after the filing of the suit. It is the probability of the evidence and the credibility of the witness, which are to be considered not the absence of cross-examination. Even in the absence of cross-examination, the evidence is to be weighed with its value without attaching much importance on the absence of cross-examination. On the question of review, Mr. Dasgupta relied on the decisions in Green View Tea and Industries vs. Collector, Golaghat, Assam and anr. , 2004 (4) SCC 112 (para-14); Srinivasiah vs. Balaji Krishna Hardware stores, AIR 1999 SC 462 (paras-8, 9); Moran Mar Basselios Catholicos and Anr. vs. Most Rev. Mar Poulose Athanasius and Ors. , AIR 1954 SC 526 and Benoy krishna Rohatgi and Ors. vs. Surajbali Misra and Anr. , AIR 1963 Cal 100 (paras-3 to 13), in order to support his contention that this is a case fit for review. Mr. Dasgupta drew our attention to the various materials on record to substantiate his contention. Virtually he had reargued the whole appeal.

( 2 ) MR. Haradhan Banerjee, learned Counsel for the respondent/opposite party, on the other hand, took a preliminary objection that the review does not lie if the decision is erroneous. According to him, when two views are possible, acceptance of one view cannot be a ground for review. The judgment proceeds on the basis of the question of belief and disbelief, which can never form the subject-matter of review. On the question of cohabitation, he drew our attention to pages 8 to 10 of the judgment under review. Mr. Banerjee then contends that the filing of the case under section 498a of the Indian Penal Code (IPO would not amount to cruelty since the cruelty stands condoned unless the allegations are renewed or repeated. Mr. Banerjee, however, distinguishes the decision in moran Mar Basselios Catholicos (supra) on the ground that in the said decision, the question was not attended; whereas in the present case the question was adverted to. He drew our attention to page 17 of the said judgment. He further points out that the cohabitation had revived the matrimonial relation and amounts to condonation. He relied on Krishna Sarbadhikary vs. Alok Ranjan sarbadhikary, AIR 1985 Cal 431 at page 440, to enunciate the ground when the matrimonial offence can be revived. Relying on this decision, he contended that in this case there was no material to show that the matrimonial offence was revived to attract the princ