JUDGMENT Bhaskar Bhattacharya, J.:- This first appeal is at the instance of a husband in a suit for divorce filed on the grounds of desertion and cruelty and is directed against the judgment and decree dated March 31, 2004 passed by the Additional District Judge, Fast Track Court No. 1, Barasat, Dist- North 24-Parganas, in Matrimonial Suit No.37 of 2003 thereby dismissing the said suit with the finding that the husband failed to prove the grounds taken in such proceeding. 2. The appellant before us filed a suit being Matrimonial Suit No. 37 of 2003 in the Court of learned District Judge at Barasat which was subsequently transferred to the aforesaid Fast Track Court and the case made out by the appellant may be summarised thus: a) The parties were married according to Hindu rites and customs on March 5, 1998 and in the said wedlock, a female baby was born on January 9, 1999. b) The marriage was a negotiated one and the parties used to reside in the same locality within Post Office Madhyamgram, P.S. Barasat. c) After marriage the husband noticed that the wife used to behave in unnatural way. She used to sleep till late hours of the day and go out of the matrimonial home frequently without giving any information and without taking any permission from the husband or any member of his family. Sometimes, she used to prepare food for herself and took the same without keeping any food for the husband or other members of the family. The husband tried his best to rectify the wife but in spite of such efforts, he could not mend the behaviour of the wife and the wife created pressure upon the husband for living with her at her father’s house as a domesticated son-in-law. When the husband expressed his inability to comply with such demand, the wife became violent and used filthy languages towards the husband and other members of his family. d) The wife refused to cook food and serve meals to the husband and any member of his family and without taking permission used to move out of home at the odd hours of the day and night. Whenever the husband asked about such movement, she became angry and used to assault the husband by throwing household articles. d) The wife refused to cook food and serve meals to the husband and any member of his family and without taking permission used to move out of home at the odd hours of the day and night. Whenever the husband asked about such movement, she became angry and used to assault the husband by throwing household articles. The wife refused to share bed with the husband and told him that she did not like the company of her husband as a result, the husband felt insulted. e) Subsequently, the husband conveyed those facts to the guardian of the respondent but the family members of the respondent, instead of settling the matter amicably, gave indulgence to her to use filthy and abusive languages towards the husband and the member of his family. f) On May 10, 1999 the wife left the matrimonial home and since then had been living separately at her father’s house with the minor child of her own will. The husband tried his best to bring her back from her father’s house by going personally and by sending his guardian and friends, but on all occasions the respondent refused to come back to her matrimonial home. The husband also had written several letters to the respondent/wife requesting her to come back and also sent legal notice through the learned Advocate but the respondent refused those letters. Hence the suit. 3. The suit was contested by the wife by filing written statement thereby denying the material allegations made in the plaint and the defence of the wife may be summed up thus: a) Due to inhuman torture of the husband and other inmates of the matrimonial home, the wife was compelled to leave the matrimonial home. After a short period after the marriage, the husband and other members of his family demanded Rs. 50,000/- as dowry but as it was not possible for her to pay the said amount, she was subjected to torture both physically and mentally by the husband and his members of the family. After a short period after the marriage, the husband and other members of his family demanded Rs. 50,000/- as dowry but as it was not possible for her to pay the said amount, she was subjected to torture both physically and mentally by the husband and his members of the family. b) During her stay in the matrimonial home, the respondent tried her level best to lead a happy conjugal life and also to perform her duties as a wife towards the appellant but the husband did not discharge his duties as a husband towards the wife and had not given food and clothing to the respondent on different occasions as required in the daily life. c) It was the husband who refused to share the bed with the wife and in view of such illegal act, when the wife requested the husband not to behave in such fashion, he became furious and started inhuman torture and ultimately, the respondent was threatened with dire consequences by the husband and other inmates of the matrimonial home. Consequently, the wife was compelled to leave the matrimonial home along with her minor child keeping all her articles in the house of the husband. d) The wife tried to her best to solve the matter amicably with the help of some elite persons of the locality as well as relatives on different occasions but due to arrogant attitude of the husband, the matter could not be amicably settled. The suit was thus liable to be dismissed. 4. At the time of hearing of the suit the husband alone gave evidence while the wife was also the sole witness in opposing the matrimonial proceeding. 5. As indicated earlier, the learned Trial Judge by the judgment and decree impugned herein has dismissed the suit with the finding that the plaintiff had failed to prove the case made out in the application for divorce. 6. Being dissatisfied, the husband has come up with the present appeal. 7. So far the ground of desertion is concerned, the learned Trial Judge pointed out that although the parties are residing separately since May 10, 1999 and the suit was filed on May 30, 2002, it appeared that the wife filed a case for getting back her ‘Stridhan’ properties. Being dissatisfied, the husband has come up with the present appeal. 7. So far the ground of desertion is concerned, the learned Trial Judge pointed out that although the parties are residing separately since May 10, 1999 and the suit was filed on May 30, 2002, it appeared that the wife filed a case for getting back her ‘Stridhan’ properties. The learned Trial Judge further found that in cross-examination, the wife said that she was still willing to reside with the husband but the husband had stated in his cross-examination that he was not willing to take back the respondent and that he was willing to have a decree for divorce. According to the learned Trial Judge, the aforesaid statements go to indicate that the wife was compelled to live separately due to unwillingness on the part of the husband to reside with the wife. The learned Trial Judge further held that the husband could not produce document showing that he had been paying maintenance to the respondent and her minor child since the date of her departure. The learned Trial Judge thus concluded that the evidence of the respondent indicated that she had no intention to bring the cohabitation with the appellant permanently to an end. 8. After hearing the learned counsel for the parties and after going through the materials on record we are unable to approve the aforesaid finding of the learned Trial Judge. The suit having been filed more than 2 years after the departure of the wife, simply because, the husband stated in his evidence at the time of trial that he was not willing to take her back, such fact could not justify the finding that there was no desertion for 2 years before the filing of the suit. It appears from the evidence on record that it is the specific defence of the wife that as the husband demanded Rs.50,000/- as dowry and she was not in a position to comply with such demand, she was driven away from the matrimonial home. She further stated that she stated such fact to her mother and brother and also to the elite persons of the locality. Curiously enough, the wife did not examine her mother or brother to prove such fact that she ever complained to them regarding the demand of dowry. She further stated that she stated such fact to her mother and brother and also to the elite persons of the locality. Curiously enough, the wife did not examine her mother or brother to prove such fact that she ever complained to them regarding the demand of dowry. The wife was compelled to admit in cross-examination that at the time of marriage no dowry was taken by the husband. If it appears from the admission of the wife that even at the time of marriage no dowry was demanded, in order to prove subsequent demand of dowry, it was necessary to produce some corroborative evidence in support of such claim. The husband specifically denied that he ever demanded any dowry. Since negative fact cannot be proved by giving positive evidence, after the denial of such allegation, it was the duty of the wife to give some corroborative evidence showing demand of dowry. Therefore, we do not find any substance in the contention of the learned advocate for the wife that she was subject to torture for not making payment of dowry. Although in cross-examination of the husband, suggestion was given to him that the wife lodged information before the police complaining assault to the wife and that she wanted to live peacefully with the assistance of the local people, the husband denied such suggestion and thereafter, the wife did not adduce any evidence showing lodging of any such information nor did she even name the local persons whose assistance she sought for living in the matrimonial house. She has admitted in her evidence that she did not lodge any complain against the husband before any authority regarding any demand of dowry. The fact that she applied for getting back her personal articles from the husband itself indicated that she had no intention of coming back to her husband’s place. It further appears that during her stay in her father’s house for 3 years prior to the date of presentation of the application she had never written any letter to her husband for taking her back nor was any complaint even lodged in writing either at the instance of the wife or other members of the family to the husband or any member of his family alleging such demand of dowry or physical assault. 9. 9. Once we find that there was physical separation for more than 2 years prior to the initiation of the suit and at the same time, the basic defence of the wife that she was tortured for non-payment of Rs.50,000/- has been found to be not tenable, it is apparent that she had no just cause for not staying in the house of the husband and that her intention to put an end of the conjugal life had been established from the fact that she initiated legal proceedings for getting back her articles lying in the matrimonial house. It appears that the husband had written at least 5 registered letters asking the wife to come but all those letters had come back with the postal endorsement “refused”. The learned Trial Judge has not given any importance to Exhts.-1 to 14 for the simple reason assigned by him that it was the duty of the husband to examine the postal peon in support of the endorsement of refusal. 10. In our opinion, in this type of a postal endorsement “refused” it is not absolute necessity of law to always examine the postal peon as pointed out by the Supreme Court in the case of Puwada Venkateswara Rao vs. Chidamana Venkata Ramana reported in AIR 1976 SC 869 in the following words: “8. A question raised before us by learned Counsel for the respondent is whether the notice sent by the respondent-landlord could be held not to have been served at all simply because the Postman, who had made the endorsement of refusal, had not been produced. The Andhra Pradesh Court had relied upon Meghji Kanji Patel v. Kundanmal Chamanlal, AIR 1968 Bom 387 to hold that the notice was not served. There, a writ of summons, sought to be served by registered post, had been returned with the endorsement "refused". The Bombay High Court held that the presumption of service had been repelled by the defendant's statement on oath that he had not refused it as it was never brought to him. In this state of evidence, it was held that, unless the postman was produced, the statement of the defendant on oath must prevail. An ex parte decree, passed on the basis of such an alleged service was, therefore, set aside. On facts found, the view expressed could not be held to be incorrect. 9. In this state of evidence, it was held that, unless the postman was produced, the statement of the defendant on oath must prevail. An ex parte decree, passed on the basis of such an alleged service was, therefore, set aside. On facts found, the view expressed could not be held to be incorrect. 9. In Nirmalabala Debi v. Provat Kumar Basu, (1948) 52 Cal WN 659 it was held, by the Calcutta High Court, that a letter sent by registered post, with the endorsement "refused" on the cover, could be presumed to have been duly served upon the addressee without examining the postman who had tried to effect service. What was held there was that the mere fact that the letter had come back with the endorsement "refused" could not raise a presumption of failure to serve. On the other hand, the presumption under Section 114 of the Evidence Act would be that, in the ordinary course of business, it was received by the addressee and actually refused by him. This is also a correct statement of the law. 10. The two decisions are reconcilable. The Calcutta High Court applied a rebuttable presumption which had not been repelled by any evidence. In the Bombay case, the presumption had been held to have been rebutted by the evidence of the defendant on oath so that it meant that the plaintiff could not succeed without further evidence. The Andhra Pradesh High Court had applied the ratio decidendi of the Bombay case because the defendant-appellant before us had deposed that he had not received the notice. It may be that, on a closer examination of evidence on record, the Court could have reached the conclusion that the defendant had full knowledge of the notice and had actually refused it knowingly. It is not always necessary, in such cases to produce the postman who tried to effect service. The denial of service by a party may be found to be incorrect from its own admissions or conduct. We do not think it necessary to go into this question any further as we agree with the High Court on the first point argued before us.” (Emphasis supplied by us). 11. The denial of service by a party may be found to be incorrect from its own admissions or conduct. We do not think it necessary to go into this question any further as we agree with the High Court on the first point argued before us.” (Emphasis supplied by us). 11. In the subsequent decision of the Supreme Court in the case of Gujarat Electricity Board and another vs. Atmaram Sungomal Poshani reported in AIR 1989 SC 1433 , the Apex Court dealt with the aforesaid situation in the following way: “There is presumption of service of a letter sent under registered cover, if the same is returned back with a postal endorsement that the addressee refused to accept the same. No doubt the presumption is rebuttable and it is open to the party concerned to place evidence before the Court to rebut the presumption by showing that the address mentioned on the cover was incorrect or that the postal authorities never tendered the registered letter to him or that there was no occasion for him to refuse the same. The burden to rebut the presumption lies on the Party, challenging the factum of service. In the instant case the respondent failed to discharge this burden as he failed to place material before the Court to show that the endorsement made by the postal authorities was wrong and incorrect. Mere denial made by the respondent in the circumstances of the case was not sufficient to rebut the presumption relating to service of the registered cover. We are, therefore, of the opinion that the letter dated 24-4-1974 was served on the respondent and he refused to accept the same. Consequently, the service was complete and the view taken by the High Court is incorrect.” 12. We, therefore, propose to apply the aforesaid principles to the facts of the present case and to ascertain whether the wife has rebutted the presumption of correctness of the postal endorsement. 13. In paragraph 12 of the application for divorce, the husband made specific allegations that he sent several letters to the wife requesting her to come back and even sent letter through lawyer but the wife refused all those letters. In paragraph 12 of the written statement, she dealt with such statements in the following way: “That the averment made in paragraph 12 and the reason best known (sic) to the petitioner”. 14. In paragraph 12 of the written statement, she dealt with such statements in the following way: “That the averment made in paragraph 12 and the reason best known (sic) to the petitioner”. 14. Therefore, there was no specific denial of the statement made in paragraph 12 of the petition of divorce regarding refusal of the letters. The husband in his evidence produced all those letters, postal receipts and the envelopes with A/D cards which were marked Exhts.-1 to 14. In cross-examination of the husband, a suggestion was given to him that he manufactured Exhts.-1 to 14 in collusion with the postal peon for creating evidence in the case and such suggestion was denied by the husband. We have already pointed out that in written statement no such defence was taken by the wife regarding collusion with the postal peon. It is now a settled law that mere suggestion in cross-examination, if not admitted by the witness, cannot take the place of substantive piece of evidence. Curiously enough, in spite of such denial by the husband, the wife, in her affidavit-in-chief, did not utter a single sentence alleging collusion of the husband with the postal peon and simply stated that the statement in paragraph 12 of the petition of divorce was “a question of record”. The husband gave suggestion to her in cross-examination that those letters were refused by her and in answer to such suggestion she denied such suggestion and admitted that she received a letter from the Advocate of her husband. It appears that the said statement is a deliberate false statement because the letter written by the lawyer of the husband came back with the postal endorsement “refused” (Exhts.-9 to 12) and the wife also did not produce any such letter written by any lawyer on behalf of the husband. The wife has also not alleged that she ever answered the letter written by the lawyer. From the aforesaid evidence on record, we are convinced that the presumption of correctness of postal endorsement could not be rebutted by the wife by giving any cogent piece of evidence and that her statement made in this behalf is not even tenable in the absence of any specific denial in the pleadings. The learned Trial Judge, therefore, illegally ignored Exhts.-1 to 14 on the only ground that the postal peon was not examined. 15. The learned Trial Judge, therefore, illegally ignored Exhts.-1 to 14 on the only ground that the postal peon was not examined. 15. From the aforesaid materials, we find that the learned Trial Judge totally mis-appreciated the evidence on record in arriving at the conclusion that desertion for two years prior to the presentation of the suit was not established. 16. As regards the other ground, i.e. cruelty, we are of the view that sufficient materials have not been produced by the husband to conclude that the allegation of cruelty made out in the application for divorce have been adequately substantiated and we find no reason to disturb the finding of the learned Trial Judge on the issue of cruelty alleged against the wife while she was in the matrimonial house. It was the duty of the husband to produce some corroborative evidence of the inmates of his house to prove those allegations of cruel acts of the wife. 17. We, therefore, propose to set aside the judgment and decree passed by the learned Trial Judge and pass a decree for divorce only on the ground of desertion for a continuous period of 3 years prior to the presentation of the petition for divorce. 18. The appeal is, thus, allowed. The judgment and decree passed by the learned Trial Judge are set aside. The suit is decreed on the ground of desertion. In the facts and circumstances, there will be, however, no order as to costs. T. K. Dutt, J.: I agree. Appeal allowed.