M. L. JJain, J.

(1) THE respondent Kishan Lal led a petition against his wife Pushpa Rani for

dissolution of their marriage under section 13 of the Hindu Marriage Act The

husband alleged that they were married on March 10, 1974 and were living in the

house of, and along with the family of, Hans Raj Juneja and his wife Bindra Devi

whom the husband treated as his parents. He further alleged that the wife used to

pick up quarrels with him and threatened to involve him in some criminal case. On

July 28, 1976 at about 10. 30 a. m. while he was in the bath room, she tried to

commit suicide by pouring kerosene oil on herself and setting herself to fire in the

kitchen. On hearing her shrisks, he rushed to her rescue. He and Smt. Bindra Devi

removed her to hospital, where she was looked after by Junejas. Moved by her

entreaties, he agreed not to report the true facts to the police, for the sake of

matrimonial happiness. But she resumed threatening him with dire consequences,

and declared that she would not live with him. He was. therefore, forced to leave

her at the house of her parents on September 4, 1976. Since then she did not return

to her matrimonial home.

(2) ON July 4. 1977 she filed an application under section 125, Criminal Procedure

Code. for maintenance alleging inter alia that the husband all the time danced

attendance en Bindra Devi and bought presents for her and carried her to places of

entertainment. In his reply of October 18, 1977 the husband charged that her

brother used to visit her secretly and used to be closed with her for long intervals

giving rise to the suspicion that she was having some extra-marital relations with

him.

(3) THE husband made the present petition on January 10, 1979 seeking divorce

on the ground both of cruelty and desertion.

(4) THE wife in her reply to the divorce petition, denied that she attempted suicide.

Rather, the fire was accidental. She admitted that she was taken into the hospital by

petitioner Krishan Lal. But she denied the claim of the husband that he was a sort of

a son to the Junejas or that he was adopted or educated in their house. As a matter

of fact, after the husbands father died. he left the family home and came to live

with the Junejas. She repeated the allegation that the husband all the time danced

attendance on Bindra Devi, brought clothes and presents for her and took her out to

cinema shows and various other places o entertainment. He not only ignored the

wife, but rather went out of way to insult, humiliate and even assault her on the

slightest pretext, specially on the ground that she did not bring any dowry. She

alleged that earlier also, once he left her at her parents house against her consent

and when she returned on August 14, 1975 he made a condition that her parents

will not visit her, and on July 27, 1976 when her mother happened to visit her, the

husband got annoyed and started abusing her in the presence of the mother and

beat her. She denied desertion and cruelty.

(5) THE learned trial Judge, after recording evidence gave no categorical (inding

whether any attempt at suicide was proved or not and whether the fire was

accidental. But he commented that the wife was ungrateful and denied the help

which the husband and junejas had extended to her at the lime of and after the

occurrence. Her denial was an act of cruelty. She even imputed that there was an

illicit relationship between him and Bindra Dev. She had only just hinted at it in her

written statement but when the husband appeared in the witness box and deposed

that he treated H. R. Juneja and Bindra Devi as his father and mother, the wife

directly put him a suggestion that there was an illicit relationship between Bindra

Devi and him. The husband denied it. Bindra Devi deposed that they were like

parents to him. She had brought up the husband as her son; she was 47 years of

age, her own eldest daughter was 29 years and her sons were aged 26 and 23 years

respectively. She was questioned whether she had any illicit relationship with

Krishan Lal. Bindra Devi folt hurt and took exception to this defamatory and

scandalous question. She. even. wept. When the wife appeared as a witness, she

improved her allegation and said that she herself had seen the husband closeted

with Bindra Devi and. sleeping with Bindra Devi in a compromising position. This

imputation was not a ground pleaded by the husband in the petition and it simply

could not be thought of at that time. The trial judge held that the allegations could

be taken note of even if not taken in the pleadings. He relied upon Parihar v.

Parihar, AIR 1978 Raj 140 [LQ/RajHC/1978/80] (1), (delivered by me ). The wife was not able to prove

that the husband had illicit relations with Bindra Devi and that this was a false

allegation made by her against his fidelity and against a person whom the husband

regards as his mother and who was about 20 years older. The learned Judge was of

the view that the facts elicited in cross-examination have to be taken into account in

granting the relief. It was contended before him that in see. 125, Criminal Procedure

Code. proceedings, it was the husband who had levelled a false charge of unchastity

and in cost against the wife that she was carrying on with her own brother and it

was by way of reaction that the wife exposed the husband. But the learned bedge

noticed that in his petition the husband did not talk of it and in his replication he

denied that he ever made any charge against the wife, and maintained that he had

no complaint as far as the character of the wife was concerned. In his examination in-

chief he did not repeat any such allegation and hi cross-examination when the

question was put to him in this regard, he explained that he had not made any

allegation of unchastity against the wife and by extra-marital relations what he

meant was that she was encouraged by her brother in her estrangement with the

husband. The learned trial Judge was, therefore, of the view that the allegation

having been withdrawn. it cannot be said that the husband had himself committed

any cruelty. Rather, the charge of cruelty is established against the wife.

(6) AS regards desertion, it was admitted that the wife was living away from the

husband For more than two years. The learned Judge held that she did so without

reasonable excuse and she was guilty of desertion as well.

(7) HE passed a decree of dissolution on May 24, 1980. Hence, this appeal.

(8) AS far as the allegation of attempted suicide and thereby intending to implicate

the husband in a criminal case is concern- ed, I find that the allegation is not well

founded. In the report that was made to the police of the occurrence, the wife had

stated that she was working in the kitchen, her shin. acordentally caught fire and

her husband ran to her rescue and extinguished. the fire. If it were a case of

attempted suicide, them certainly, the husband, in the background of the strained

relations between the two would have taken advantage of the occurrence but

instead he told the police that the fire was only accidental. Even otherwise, there is

no evidence to exclude the plea that it was in fact so. Respecting the second

ground of cruelty. there is no doubt that the wife his imputed illicit relationship

between. the husband and Bindra Dev. But it is contended that since this count of

cruelty was not.taken in the picadinas either initially or by way of amendment, it

cannot be taken into consideration. The learned counsel for the appellant cited

Mewa Singh v. Prem Kumar 1979 H. L. R. 565 (2 ). where the were had made a

false imputation of adultery in the petition in divorce, but it was held that it was

only a casual reference and. had. no relevance to the petition. The learned counsel

also distinguished Parihar v. Parihar (supra) by pointing cut that there was an

averment of subsequent cruelty in the subsequent pleadings. But the allegation in

the cross-examination cannot take the place of pleading. He relies upon Allam

Gangadhar Rao v. Gottapalli Gangarao, AIR 1968 A. P. 291 (3), according to which

no relief can be granted on facts and documents not disclosed in the plaint. One

cannot be allowed to succeed on the cause which he had failed to set up. In

Rameshwar and others v. Jot Ram and others, AIR 1976 S. C. 49, it was held that

rights of the party are determined by the facts as they exist in the date the action is

initiated. The impact of subsequent happenings is that the relief may be moulded,

varied or reshaped in the light of updated fact. but rights which have already vested

in a party cannot be nullified or negated by subsequent, events save when there is a

change in the law. When a cause, of action, is deficient but later events have made

up the deficiency, court may permit amendment to make up the deficiency.

(9) I have considered these cases but they only state the general rule while it is

equally well settled that there are exception to this rule and it is open to a court in

exceptional cases to take into consideration events which may have taken place

subsequent to the filing of the suit and grant relief on their basis where the relief as

claimed originally in the suit may have become inappropriate by reason of altered

circumstances and where this may appear to be necessary in order to shorten

unnecessary litigation or to subserve the substantial interest of justice : Ram Dayal

v. Maji Devdiji AIR 1936 Raj 12, which I followed in Parihar v. Parihar (supra ).

Exceptions must be applied in matrimonial cases in order to subserve the interest of

justice and not to compel the parties to begin another round of litigation on the

basis of subsequent events and allow the precious period of their life to go waste. It

must be so dene, depending, of course, on the nature of the case, because it is not

only the parties which are concerned in the case but the court has a certain amount

of duty and discretion to exercise. The relief entirely depends upon its satisfaction.

That is why in Chand Narain v. Smt. Saroj, 1975. H. L. R. 494 (Ra.) a fact elicited in

cross-examination though not pleaded, was considered as to constitute cruelty. In

Kundan Lal Verma v. Kanta Rani 1979 H. L. R. 352 (P. and h.) the husband in his suit

for nullity and desertion pleaded an unjustified impotence against the wife, the wife

in her written statement did not say that the false charge of impotence amounted to

cruelty and further did not plead that a report of theft was lodged against her in the

police but all this was proved on record. It was held that the wife was justified in her

withdrawal from the society of her husband. I am, therefore, of the view that the

learned trial Judge was justified in holding that he could take into consideration the

allegation of adultery made by the wife at the time of cross-examination and in her

deposition. It could not be in the knowledge of the petitioner at the time he filed his

petition. But the question still remains whether the allegation amounts to treating

with cruelty. Cruelty is welful and unjustified conduct of such a character as to cause

danger to lite, limb or health bodily or mental ,or as to give rise to reasonable

apprehension of such a danger. The question in all such cases is whether the acts or

conduct of the party charged, were cruel according to the ordinary sense of that

word. If has no esoteric or artificial meaning. Upon the story being fully told, if the

man of ordinary prudence would describe the conduct of the crring spouse as cruel,

that should be held as cruelty, vide Parihar v. Parihar (supra ). There is no proof of

the wifes allegation except that she had deposed. Her witness Prakash Walk, RW3,

did not support her. A false imputation of adultery is certainly a mode of treating

with cruelty. But in order to reach a positive finding, one must have regard to the

circumstances

(10) IN Smt. Gurcharan Kaur v. Sardar Swaran Singh, 1978 H. L. R. 175, a false

allegation of adultery and attempt at poisoning made by the wife was held not to

amount to cruelty so as to entitle the husband to divorce because she was provoked

lo hit back by the allegation in the plaint made by the husband that she had pre-

marital pregnancy. In. Jarnail Kaur v. Sarwaii Singh, 1979 H. L. R. 415, the wife in

her written statement alleged that the husband had illicit relationship with his

brothers were. Husband did not file a replication controvert allegation. In

examination-in-chief he uttered one sentence only that he had no illicit relations with

his brothers wife. He did not say that the allegation had shocked or against him

mentally. Divorce was refused. In Madanlal Sharma v. Smt. Santosh Sharma, 1980

H. L. R. 441 (Bom), the court pointed out that Parliament nullified the effect of the

decision of the Supreme Court in Dastane v. Dastane, AIR 1975 S. C. 1534. It must

now be held that the concept of cruelty under section 13 (1) of the Hindu Marriage

Act, 19ss must involve the same meaning as it is understood under the English Law.

It involves a requirement higher than reasonable apprehension mentioned in section

10 (l) (b) before its amendment. The wife in her written statement alleged adultery

with the maid servant and repeated it in her deposition but no evidence was led to

prove that it affected the health mental or physical of the appellant. Divorce was

refused.

(11) IN our case, when the direct allegation was made, the husband simply denied

it and did not react to say that it had caused him mental anguish. It will be noticed

that earlier the husband had. accused her of a worse type of adultery and if she

retaliated by an equally false charge, she should be excused because after all she is

a semi-literate girl of a poor man selling vegetables on the pavement. She is not

wanted in her parents house who are trying to persuade her to live in the

matrimonial home in spite of the harse attitude of the husband. Conditions in the parental house could be no better and she appeals, to be keen to make her home. She has no animus to desert her husband even though she was justified to do so when he charged her with incest and he himself left her at the door of her parents.

(12) THUS, neither desertion nor cruelty was established and the husband, was not

entitled to a decree of dissolution.

(13) I accept the appeal, quash the order under appeal and dismiss the husbands

petition. He shall apart from his, bear her costs throughout.