Mere allegations of cruelty and desertion, without reliable evidence, are not sufficient to grant a divorce. Claims of impotency and illegitimacy of a child must be proven by reliable evidence.

D.M. Dharmadhikari, J.

1. The petition for divorce filed by the husband on the ground of cruelty and desertion by the wife having been dismissed by the Matrimonial Court below, the present appeal has been preferred under Section 28 of the Hindu Marriage Act.

2. The parties were married on 20.2.1988. The wife delivered a male child on 24.2.1997 in Medical College Hospital, Rewa.

3. In the petition for divorce, the husband alleged that on 7th August, 1993, the wife quarrelled with the husband and his family members and left the matrimonial home with her brother Sunil Gupta. On the date of petition she was living with her parents at Jaitwara. According to the husband, despite efforts, she refused to return to the husband's house which constitutes an act of desertion.

4. The allegations of cruelty made against the wife are as follows:

She always quarrelled with the husband and accused him of having developed illicit relations with several girls. She used to hurl filthy abuses towards him and his family members in the presence of neighbours and his friends. She used to call him 'impotent' and on 5.1.1993 when he tried to perform sexual intercourse, she kicked him on his private parts which caused him serious injuries and he had to take medical treatment for the same for a considerable period.

5. The other allegations are that in the month of June, 1991, the wife lodged a false report in the Rewa Police Station specially set up for ladies alleging that the husband has been ill-treating her. That false report brought him down in the estimation of the members of the community in general.

6. The divorce petition was filed on 29.8.1995. On 22.4.1997 the divorce petition was amended to allege an additional ground for seeking divorce that on 27.2.1997 the wife delivered a male child and in the hospital records got the name of the father of the child mentioned as Ramakant Gupta of Dhobia Tanki, Rewa. It has been alleged by the husband that the child born to the wife was illegitimate as he had no opportunity of sexual intercourse with her from the date she left the house of the husband. It has also been stated that he got his semen tested from a pathological laboratory which shows the existence of sperm as nil proving that he was incapable of producing a child.

7. The wife resisted the proceedings denying the allegations against her. It is stated that the husband and his family members used to treat the wife verycruelly. On one occasion they locked her in a room and on demands of dowry she was beaten. When she got released she came out of the house and shouted for help. It is because of continuous cruel treatment to her that she was compelled by circumstances to make a report to the Mahila Police Station. It is also submitted in reply by the wife that the husband doubted the paternity of the child. According to her at the time when she was pregnant and delivered the child she was living with the husband. She was got admitted in the hospital by the brother of the husband and the brother's wife. It is they who got the name of Ramkant Gupta inserted in the birth certificate as the father of the child delivered by her. The wife expressed desire to live with the husband provided the cruel treatment meted out to her in the past is not continued.

8. The learned Judge of the Matrimonial Court below dismissed the petition for divorce filed by the husband holding that the evidence produced by him is false and fabricated.

9. Mr. S.P. Singh, learned Counsel appearing for the husband in this appeal, took me through the relevant parts of the evidence of the husband and wife and argued that the trial Judge was wrong in disbelieving the version of the husband. It is submitted that the acts such as abusing and calling the husband 'impotent', hitting him on the private parts and lodging a criminal report against him in the police station are grave acts of cruelty which should have been held as justifiable ground for a decree of divorce.

10. Mr. K.K. Pandey, lea