A mere allegation of adultery in a written statement does not amount to cruelty. A false allegation of adultery is cruelty, but the burden of proof is on the petitioner to establish the falsity of the allegation.

S.S.SANDHAWALIA, J.

1. Would a mere allegation of adultery by a spouse against the other made in defence in a written statement, by itself amount to cruelty, within the meaning of Sec.13(1)(ia) of the Hindu Marriage Act is the core question which has necessitated this reference.

2. Because of reasons which appear hereinafter necessitating a remand to the trial court, it suffices to advert briefly to the facts relevant to the issue aforesaid only. The appellant-husband had preferred the petition for the dissolution of marriage against his wife u/s. 13 of the H.M. Act inter alia on the ground of cruelty and desertion. The respondent-wife filed a written statement and subsequently an amendment thereof. Therein whilst denying the factual averments made by the appellant-husband she herself alleged that he had illicit relations with some women in the village and wanted her to leave him forever so that he may either carry on such a liason with them or marry afresh. Equally scurrilous allegation made was that the wife of Sardar Singh, the elder brother of the appellant-husband having died he himself as also his relations wished her to cohabit with Sardar Singh or get Sardar Singh married by exercising the influence of her father. On the aforesaid pleadings the omnibus issue framed by the trial Court was in the following terms :-

1. Whether the petitioner is entitled for dissolution of marriage by divorce on the grounds stated in Para No.4 of the petition?

2, Relief.

The trial Court found the material issue No.1 against the appellant-husband on a firm finding that neither the ground of desertion nor that of cruelty as alleged in the petition stood proved. It was, however, urged before it that the respondent-wife had made a wild allegation of adultery in her written statement which would per se amount to legal cruelty and, therefore, the appellant-husband was entitled to succeed on that score alone. This stand was rejected on the ground that it was not proved that these wild allegations against the appellant had been made prior to the filing of the petition and having been made merely by way of defence in the written statement, these cannot amount to cruelty. As a necessary consequence the petition was dismissed.

3 On appeal when the matter came up before my learned brother S.P. Goyal, J., the aforesaid contention that the mere allegation of adultery made in the written statement would amount to mental or legal cruelty was strenuously pressed primarily on the basis of Smt. Jiwan Lata V/s. Krishan Kumar, 1919 Cur LJ (Civ) 509. Finding that the observations in Jiwan Lata s case did tend to support the appellant s claim and expressing a doubt about the correctness of its ratio, the matter was referred to a larger Bench.

4. As before the learned Single Judge so before us, the learned counsel for the appellant did not challenge the findings of the trial Court on the facts constituting the pleas of cruelty and desertion already taken in the petition which are accordingly affirmed. For the contention that the scurrilous allegation of adultery levelled by the respondent-wife in her statement would, without more amount to legal cruelty and the appellant was, therefore, entitled to succeed on this ground alone irrespective of his failure to establish the case set up by him, the ratio of Smt. Jiwan Lata s case has inevitably been commended for acceptance on behalf of the appellant.

5. Before adverting to the judgement on which basic reliance is sought to be placed the aforesaid argument deserves some consideration on principle as well. To my mind the inherent fallacy which seems to have crept in here stems from the settled legal position that a false allegation of adultery against a spouse amounts to cruelty in the eye of law. However, it would be a far cry to infer therefrom that an allegation of adultery, whether proved or not, would by itself be the mathematical equivalent of legal cruelty. It is not and in my view cannot possibly be th