IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA FAO No.187 of 2007. Date of decision: 05.08.2008. Neeraj Maheshwari …Appellant Versus Smt.Anita …Respondent Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 For the Appellant: Mr.V.D. Khidtta, Advocate. For the Respondents: Ms.Ruma Kaushik, Advocate. Dev Darshan Sud,J. This appeal has been preferred by the husband against the judgment and decree of the learned District Judge dismissing his petition under Section 13(1)(a) of the Hindu Marriage Act, 1955, (hereinafter referred to as the `Act’) praying for a decree of dissolution of marriage on the grounds of cruelty and desertion. On the pleadings of the parties, the learned Court settled five issues. The foundation for the divorce was, as to whether the wife had been treating the husband with cruelty as alleged, entitling him to claim dissolution of marriage, (2) 1 Whether the reporters of Local Papers may be allowed to see the judgement? 2 whether the respondent-wife had deserted the petitioner without reasonable cause. Issues No.1, 3 and 4(A) were clubbed and decided by the learned District Judge, namely; cruelty, petition being defective because the affidavit was not properly drafted and the factum of desertion. The learned Court held against the appellant. The evidence consisted of Ex.PW-1/A, affidavit of the petitioner, the affidavit filed by the mother of the appellant herein Smt.Meena Maheshwari Devi, Ex.PW-2/A and the affidavit of Shri Ravi Sahota Ex.PW-4/A. Affidavit of one Shri Sanjay Kumar Gupta Ex.PW-3/A was tendered in evidence but he was not produced for cross-examination and therefore his evidence was not considered. The mother of the appellant PW-2 Smt.Meena Maheshwari had corroborated the contents of the petition. An allegation was made that the respondent-wife was suffering from Tuberculosis and that she was treated in Vikas Nagar in Uttaranchal. It was stated that since the respondent was asked to stay away from the other members of the family including children so that they do not get infected with Tuberculosis, she started misbehaving with the entire family. The learned District Judge rightly rejected her testimony as no proof of treatment or evidence of any doctor or prescription of medicine was produced. Her general and sweeping allegation 3 was that the respondent was maltreating the petitioner but she could not remember about the instances or the persons in front of whom such treatment was meted out. The other mainstay of arguments by the learned counsel appearing for the appellant is that a false case under Section 498-A of the Indian penal Code was registered at the instance of the respondent and vide judgment Ex.PW-1/B the petitioner, his mother and other persons were acquitted of the offences. The case set up was that the family members had been dragged into a false case. The learned trial Court, on consideration of the judgment, holds that the Court has not pronounced upon the fact as to whether the complaint was totally false. The accused therein have been acquitted on the ground that the offence has not been proved beyond reasonable doubt. The Court also observes that there must have been some quarrels or bickering within the family members and as such it would not constitute an offence. The appeal against acquittal is pending in this Court. It also needs to be emphasized that the standard of proof required in criminal case would be different from that which is required in civil proceedings. Mere pendency of the appeal in this Court will not make any difference in so far as this case is concerned. 4 The learned District Judge considered the evidence of the respondent i.e. the wife as RW-1 and her affidavit Ex.RW-1/A, Raghubir Singh(RW-2), Bhura Ram (RW-3) and Brijesh Kumar (RW-4) with their affidavits RW-2/A, RW-3/A, RW-4/A. These witnesses were unanimous in their evidence that the petitioner never suffered from Tuberculosis and that she was harassed for heavy amount for dowry. The learned Court on going through the version of these witnesses found ample corroboration of these facts. I cannot persuade myself to hold that the learned Court below has erred in taking a perverse view of the matter. On the question of desertion, the learned Court found as a fact that the respondent was not at fault. It is also undisputed before me that the children are staying with the respondent and that during the course of these proceedings, respondent- wife had expressed her heartfelt wish and desire to reside with the husband but he has declined to accept her company. Learned counsel appearing for the appellant has drawn my attention to a number of judgments to contend on the aspect as to what constitutes cruelty. These need not be considered as in Samar Ghosh vs. Jaya Ghosh (2007)4 SCC 511, the Supreme Court has considered the matter exhaustively and laid down the factors to be considered when a marriage 5 becomes irretrievably broken down. This judgment has been followed by this Court in Shri Chand Prakash Sharma vs. Smt.Kaushlya Devi, 2008(1) Shim.L.C. 198 and Ramesh Kumar Sharma vs. Smt.Akash Sharma, FAO No.147 of 2004, decided on 5.12.2007. I cannot persuade myself to hold that the case of the petitioner herein is covered by any of the factors or acts complained of are within the parameters as laid down by the Supreme Court in the judgments noticed above. Mere wish or temperamental differences which are natural cannot be used to annul marriage(s) nor can it be said that the marriage has broken down irretrievably. This appeal is accordingly dismissed. There shall be no order as to costs. August 5, 2008. (Dev Darshan Sud) (aks) Judge.