ORDER
M.S.A. Siddiqui, J.
1. This appeal under Clauses 10 of the Letters Patent is directed against the judgment dated 21st March 1986 of a Single Judge of this Court in FAO No. 118/1982 whereby allowing the appeal of the respondent-husband, the judgment and decree of the Additional District Judge, Delhi, dated 23rd January, 1982 dismissing the respondent-husband’s suit for divorce under Section 13(1)(i-a) of the Hindu Marriage Act, 1955 (hereinafter called ‘the Act’) was set aside and the respondent-husband was granted a decree for divorce.
2. The appellant and the respondent were married in 1977 according to Hindu Law. Soon after the marriage, their relations became bitter and ultimately the respondent filed HMA No. 470/79 under Section 13(1)(i-a) of the Act charging his wife with cruelty. The petition was dismissed by the trial court vide judgment dated 23rd January, 1982. He thereafter filed second petition (HMA No. 129/82) for the same relief on the ground that imputations made by the appellant-wife against him in para 4(b) of the written statement filed by her in HMA No. 470/1979 were themselves acts of cruelty entitling him to claim dissolution of marriage. Along with the said petition, the respondent also challenged validity of the judgment of the trial court in HMA No. 470/1979 by filing an appeal (FAQ No. 118/1982). The suit bearing No. HMA 129/82 was also dismissed by the trial court vide order dated 20th February, 1985. Although, the respondent-husband had catalogued in his petition several instances of the appellant’s alleged cruel conduct, but the learned Single Judge, on appreciation of evidence on record took up two issues, viz. (i) that the appellant had pulled the male organs of her husband and (ii) that the appellant had made false and scandalous averments in para 4(b) of her written statement to the effect that the respondent had coerced her to drink and give company to his drunkard friends. It was on these two issues, the learned Single Judge proceeded to hold that pulling of the male organs of the respondent by the appellant must have caused an injury to him amounting to cruelty and the aforesaid false and scandalous accusations made by the appellant against the respondent also constituted mental cruelty entitling him to claim divorce under Section 13(1)(i-a) of the Act. He, therefore, allowed the appeal and granted decree of divorce in favor of the respondent. Hence this appeal.
3. The crucial issue arises in this case is: whether the respondent-husband has successfully laid premises for dissolution of marriage on the ground of cruelty. Assailing validity of the impugned judgment, learned counsel for the appellant contended that it was not even pleaded by the respondent-husband that the appellant had pulled his male organs causing any pain or injury to him or the imputations made by her against him amounted to mental cruelty, but the learned Single Judge on his own made out a case for granting divorce in favor of the respondent-husband.
4. In her petition, the respondent-husband catalogued number of instances of the appellant’s misbehavior which could be termed as cruelty but the learned trial Judge rejected them for want of sufficient evidence. At the outset, we must make it clear that in Swarajya Lakshmi v. Dr. G.G. Padma Rao, AIR 1965 SC 165, it was observed that “divorce is not generally favored or encouraged by courts and is permitted only in serious and grave cases.” In Kusum Lata v. Kanta Prasad, it was observed that “courts trying matrimonial cases must maintain an attitude of sympathetic understanding for both sides if they are to successfully judge psychological situations and subjective factors which they are necessarily called upon to do so in such cases.” We are in respectful agreement with the aforesaid observations.
5. As regards the first instance of cruelty find out by the learned Single Judge, it is significant to mention that if it was not even pleaded in the petition filed under Section 13(1)(i-a) of the Act that the appellant had ever pulled the respondent’s male organs causing any pain or injury to him. Surprisingly, learned Single Judge has set up a new case for grant of divorce which had not been pleaded by the respondent. It is the burden of the party to specifically plead his/her case. It is equally well settled that whatever has not been pleaded cannot be permitted to be proved and the Court cannot set up a new case which had not been pleaded by a party. Consequently, the aforesaid instance of the appellant’s alleged cruel conduct cannot be looked into for non-pleading and the learned Single Judge has committed a patent illegality in granting the decree of divorce on the said ground.
6. As regards the second instance of cruelty, the learned Single Judge has held that following averments made by the appellant in her written statement constituted legal cruelty within the meaning of Section 13(1)(i-a) of the Act:-
“4-(b) Para 4(b) of the application is wrong and emphatically denied. It is submitted that the petitioner has been having society of drunkards who used to come to his residence and the petitioner along with his parents wanted that the respondent should join them and enjoy with them in this way the respondent was being tortured by the petitioner and his mother because the respondent did not obey them for the above said wrong doings.”
7. The learned Single Judge has held that the said imputations against the husband were themselves acts of cruelty entitling him to claim dissolution of marriage. It is pertinent to mention to mention to mention that after dismissal of the present petition, the respondent-husband had filed another petition under Section 13(1)i-a) of the Act (HMA No. 129/82) against the appellant for the same relief on the ground that the imputations made by the appellant against him in para 4(b) of the written statement filed by her in HMA No. 470/79 amounted to cruelty entitling him to claim divorce. That petition was dismissed by the trial Judge vide order dated 20th February, 1985. The respondent has not filed any appeal against the said decision,which is now binding on the parties. Since the judgment rendered by the trial Judge in HMA No. 129/1982 has attained finality and in view of the finding recorded by the trial court in that suit that the averments made in para No. 4(b) of the written statement filed by the appellant do not constitute cruelty, the same plea is barred by operation of principles of res judicata. The learned Single Judge has lost sight of the said aspect of the matter, and has committed a patent illegality in granting a decree of divorce in favor of the respondent on the plea, which had already been rejected by the trial court in another suit bearing No. HMA No. 129/1982 between the same parties. Consequently, the impugned judgment cannot be sustained in law.
8. In the result, the appeal is allowed. The impugned judgment dated 21.3.1986 is set aside and the judgment of the learned trial Judge dismissing the respondent-husband’s suit under Section 13(1)(i-a) of the Act is restored. No order as to costs.