The burden of proof lies on the spouse alleging non-consummation or cruelty, requiring clear and convincing evidence to support such claims for divorce.

JUDGMENT

M.B.Snehalatha.J In this appeal filed by the husband, he challenges the judgment and decree of Family Court, Mavelikkara in O.P.No.873/2015, declining the relief of divorce sought by him under Section 10 (1)(vii) and (x) of the Divorce Act, 1869 . Though originally, he sought divorce under (1)(iii), (iv), (v), (vii) and (x) of the Divorce Act, subsequently the Original Petition was amended and the grounds under (1)

(iii), (iv) and (v) were deleted.

2. The appellant/husband filed the original petition seeking divorce, stating that his marriage with the respondent was solemnized on 11.9.2014 in accordance with the Christian religious rites and customs; that from the very first day of the marital life, respondent behaved in a strange manner; that she seemed to be nervous, frightened and tensed. She was in the habit of spending more time in the bathroom and was always gloomy and inactive. She used to pick up quarrels with the appellant unnecessarily and she disliked the parents of the appellant. Respondent feared night and darkness. Due to the non- cooperation of the respondent, there was no sexual intercourse between them and she wilfully refused to consummate the marriage.

3. She made it clear to the appellant that she was not interested in married life and she wanted a free life without any bondage; that the marriage was held only to satisfy the pressure of her mother. After marriage, she wanted to do Ph.D by staying in a hostel for five years and made a threat that unless she is sent for Ph.D, she will commit suicide. On 22.12.2014, when the respondent was treated at Pushpagiri Medical College Hospital, it was revealed that she has serious skin and infectious diseases. On enquiry, her mother told the appellant that the respondent is suffering from said disease from the age of 12 years and it is incurable. Due to the cruel acts of the respondent, the appellant cannot reasonably be expected to live with the respondent. Hence, he sought divorce under Section 10 (1)(vii)and 10(1)(x) of the Divorce Act.

4. Respondent filed counter admitting the marriage but she denied the allegation that marriage was not consummated. She also denied the allegation of cruelty. The allegation that the respondent is suffering from skin disease is also denied. When the respondent decided to pursue Ph.D, appellant made baseless allegations against her. The respondent never misbehaved with the parents of the petitioner, as alleged. The appellant filed this Original Petition as a counterblast to O.P. No.510/2015 filed by the respondent. The dispute arose as a result of the petitioner's desire to pursue Ph.D till then their relation was very cordial.

She sought for dismissal of O.P.

5. By the impugned judgment and decree, the Family Court declined the relief of divorce sought by the husband.

6. Heard both sides.

7. The learned counsel for the appellant would contend that the Family Court failed to appreciate the evidence in its correct perspective; that the Family Court ought to have found that the marriage was not consummated due to the non co-operation and due to the mental disorder of the respondent; that the Family Court failed to take note of the fact that the respondent is suffering from skin diseases and infectious diseases from the age of 12.

8. The point for consideration is whether the impugned judgment and decree of the Family Court needs any interference by this Court.

9. This original Petition was tried by the Family Court along with another O.P.No.510/2015, between the parties, which was filed by the wife for return of her gold ornaments, patrimony and maintenance and the evidence was recorded in common.

10. Appellant got himself examined as RW1. On his sid