The judgment underscores the burden of proof on the petitioner in divorce cases, affirming that evidence of mental cruelty and desertion can substantiate a claim when unopposed.

JUDGMENT

A.M.Shaffique, J.

1.This appeal has been filed challenging the judgment dated

10.02.2015 in O.P. No.149 of 2014 by which the petition filed by the appellant for divorce has been rejected by the Family Court. Parties are referred as described in the Original Petition.

2.The short facts of the case would disclose that the petitioner married the 1st respondent on 6.11.2002 as per the Christian rites and ceremonies . They lived together as husband and wife for quite sometime. In the year 2009, he went abroad for a job. In their wedlock two children were born. When he returned home on 31.1.2011, it was found that the house was locked from outside. On enquiry, he came to know that the 1st respondent had shifted her residence and taken all house hold articles in a lorry on 25.1.2011. He filed a complaint before the police, as there was no information about the 1st respondent and his children. The 1st respondent appeared in person before the Magistrate's Court and informed that she does not want to live with the petitioner. On further enquiry, he got the information that the 1st respondent is residing with the 2nd respondent who was a friend of the petitioner earlier. It is in the said circumstances that alleging adultery, mental cruelty and desertion, the original petition has been filed. The respondents remained ex parte. Petitioner had filed affidavit on the basis of the averment made in the complaint. Exts.A1 to A4 were marked. The Family Court, after perusing evidence and documents, dismissed the petition on the finding that no ground of adultery, cruelty or desertion had been proved. Though notice has been served, there is no appearance for the respondents.

3.Heard the learned counsel for the appellant. It is argued that material documents produced itself proved all the allegations raised. This is a case where a married person had gone abroad and when he came back he found that his wife had eloped with another person. This situation amounts to mental cruelty and that apart she is presently living with the 2nd respondent, which is clear indication of adultery. After leaving the matrimonial home on 25.01.2011, she had expressed her unwillingness to live with her husband. This attitude of the 1st respondent itself amounts to desertion and the original petition is filed after two years from 25.01.2011.

4.In a case where divorce is sought for on the ground of adultery, the person who makes the claim is liable to prove it. But in this case, the petitioner/appellant has a specific contention that the 1st respondent is living with the 2nd respondent and the respondents remained ex parte which means that they have nothing to say in the matter and the pleadings of the petitioner are admitted. Further, the petitioner has a case that the 1st respondent is now living with the 2nd respondent, which would indicate that during the marital relationship with the petitioner, the 1st respondent is living with the 2nd respondent and when they are living together without any other valid explanation it would amount to adultery. Otherwise there is no reason for the 1st respondent to live with the 2nd respondent.

5.The very fact of knowledge that the wife is having extra marital relationship with another person itself amounts to mental cruelty, as far as the husband is concerned. Hence, there is justification on the part of the petitioner to contend that he suffered mental cruelty. That apart, when she was produced before the Judicial First Class Magistrate Court she had clearly indicated that she does not want to live with the petitioner. This also is a fact which can be relied upon to arrive at a conclusion that he suffered mental cruelty. Even otherwise, the facts in the case discloses the ground of desertion. According to the petitioner, after 25.01.2011, she had not come back to the matrimonial home and when produced before the learned Magistrate she had clearly indicated that she does not want to go with the petitioner. The original petition