1. This appeal has been preferred under section 19 of the Family Courts Act, 1984 calling in question the judgment and decree dated 5.11.2003 passed in Civil Suit No. 34-A/2002 passing decree of divorce on the ground of cruelty.

2. It is not in dispute that the marriage of Arjundas with Madhuri was performed sometime in the year 1994. Husband filed an application under section 13 of the Hindu Marriage Act seeking divorce on the ground that Madhuri was mentally retarded, still her marriage was performed. She was treated by Doctor Pradeep Kumar, but, her condition ultimately did not improve. She used to go back to her house without permission and brother-in-law Nanakram used to visit her and Madhuri used to stay with him without informing the husband for several days, her search had to be made number of times. On one of the occasions Nanakram was found with Madhuri in objectionable condition. It was objected to by the husband, at that time he was humiliated. Thus, Madhuri was living an adulterous life, when husband objected, false report was lodged against husband and family members about MARPEET etc., whereas his brothers were residing separately for the last six years, false' complaints were lodged. Considering the strained relationship, Panchayat of Sindhi Samaj was convened. Wife obtained a sum of Rs. 1 lakh and a compromise (P/6) was entered into for obtaining divorce by mutual consent, that was filed in the Court. Sum of Rs. 1 lakh was received by the wife. She started demanding further amount which was not paid. Thereafter she lodged a false report under section 498-A of the Indian Penal Code. Thus, her conduct was that of cruelty. She levelled other false allegations as against family and husband. It was also an act of cruelty. It was not, any more possible to live with the wife. Hence, application seeking divorce was presented.

3. In the written statement it was contended by the wife that she was in a fit mental state, no cruel treatment was imparted. She was not having illicit relation with Nanakram his brother-in-law. It was a false allegation levelled as she was harassed, she had lodged a police report. She was not having any source of livelihood. She was spending amount out of Rs. 1 lakh received by her in the Panchayat. She has never treated her husband with cruelty. On the other hand she was harassed. There was no reason to obtain the divorce. She wanted to live with her husband. Husband was also not able to properly look after the daughter. As such it was prayed for that the application seeking divorce be dismissed.

4. The Court below has found that there was strained relationship between the parties. They have mutually agreed for divorce. In the Panchayat convened by Sindhi Samaj an agreement (Ex. P-6) was executed. A sum of Rs. 1 lakh was received by the wife towards the permanent alimony for obtaining the divorce with mutual consent. There were criminal cases between the parties, false allegations were levelled by wife as to illicit relationship of Arjundas with her sister-in-law namely; Reshma. Decree for divorce has been granted. Subsequently wife has come up in this appeal.

5. Shri Atul Choudhary, learned counsel appearing on behalf of the appellant has submitted that the decree for divorce could not have been granted by the Court-below as it was not pleaded that Madhuri had levelled an allegation as to illicit relationship of Arjundas with Reshma; his brother's wife. Thus, the main ground employed by the trial Court for passing the judgment and decree could not have been employed to dissolve the marriage. Thus, the judgment and decree be set aside. There is daughter living with the husband and the wife wants to live with the husband. She was treated with cruelty, as such decree passed be set aside.

6. Shri Satish Chaturvedi, learned counsel appearing on behalf of the respondent-husband has submitted that the parties are residing separately for the last more than six years. False criminal case under section