In divorce proceedings, the burden of proof lies on the petitioner to establish claims of cruelty and desertion, which must be substantiated by adequate evidence.

J U D G M E N T

Shaffique, J

This appeal is filed by the petitioner in O.P.No.210/2003 of the Family Court, Ernakulam. He challenges judgment dated 15/07/2005 by which the petition for dissolution of marriage and divorce under the Hindu 13(1)(ia) and (ib) of the Hindu Marriage Act was dismissed. Parties are referred as shown in the original petition.

2. The short facts involved in the appeal would show that the petitioner married the respondent on 24/06/1972. They had two female children, who were also given away in marriage. It is alleged that immediately after marriage, life of the petitioner with the respondent became intolerable. It is alleged that she executed a release deed in respect of her properties in favour of her brother. Though he was in financial difficulties, the respondent and her family members did not care to take care of him and ultimately he was compelled to leave Trivandrum to his native place at Mulamthuruthi. It is alleged that the respondent was always careless in the family life and was not discharging her marital obligations. Respondent had even accompanied her elder daughter and started residing at her house from the year 1999 onwards. It is contended that in the year 1999, the respondent had deserted the house leaving him alone. It is also contended that since 1980 they did not have any sexual relationship and she was always behaving in a cruel manner. In so far as the marriage is irrevocably broken, this original petition is filed on the ground of cruelty and desertion.

3. Respondent filed objection denying the aforesaid allegations. According to the respondent, the petitioner was not prepared to work under anybody. His intention was to start a dairy farm with the help of respondent's father. He was never a lovable husband and he squandered her gold ornaments for his won purpose. She further contends that though he obtained some property from his mother, he misused the property. When he started harassing his mother, she left and started residing with another son. She also alleges that in order to start a furniture work shop, he appointed a lady as typist with an intention to have immoral relationship with her. He did not have any hesitation to bring the lady to the respondent's house. When they opposed the petitioner, she was physically tortured and harassed. It is on his false prestige that he left Trivandrum. According to her, she did not abstain from marital obligations. The petitioner was acting in a cruel manner. When it was found that the respondent was mercilessly beaten up, the elder son-in-law had taken her to his house. Hence she sought for dismissal of the appeal.

4. Before the Family Court, petitioner was examined as PW1 and the respondent and another witness were examined as RW1 and RW2. Petitioner has marked Exts.A1 and A2 series. On an appreciation of the evidence, the Family Court came to the conclusion that evidence is lacking in the case to prove desertion. But sufficient evidence was available to prove the fact that the petitioner was behaving in a cruel manner against the respondent and therefore the original petition was dismissed.

5. Learned counsel for the appellant submits that sufficient evidence was available to prove cruelty. According to him, making a false allegation of adultery against him itself amounts to mental cruelty and therefore the petitioner is entitled for a divorce on that ground. Further, the respondent was kept away from the company of the petitioner since 1999 with an intention to desert him, which itself is a ground for divorce.

6. There is no dispute about the fact that in a case where there is an allegation of cruelty and desertion, it is for the person pleading to prove the same. The only evidence adduced by the petitioner is the oral testimony of PW1. In his evidence, he has not clearly indicated the nature of cruelty, whereas certain allegations are raised against her inter alia contending that she was not interested in discharging marital obligations. H