ORDER SHIVA KIRTI SINGH, J Heard the parties. 2. This appeal is directed against the judgment and decree dated 15.12.2001 passed by the Principal Judge, Family Court at Patna in Matrimonial Case No. 16 of 1996 whereby the learned Court below has allowed matrimonial suit filed by respondent, who is husband of the appellant and has passed a decree for dissolution of marriage. 3. The materials available on record including facts mentioned in the order under appeal show that efforts for reconciliation failed and the appellant stuck to her stand that she will not live with the husband unless her safety is ensured. Hence the first prayer in the suit for restitution of conjugal rights was not deemed proper and feasible by the learned Court below. 4. In the light of various issues framed by the Court below and indicated in paragraph 7 of the judgment, only issue no. 3 & 4 have been discussed in detail and ultimately a finding has been recorded at the end of paragraph 21 in the following terms:- “The allegations levelled against the petitioner respondent herein are not proved. Leveling of such allegations will amount to cruelty by wife.” 5. The instances of cruelty alleged by the husband have been noted by the Court below in paragraph 2 of the judgment. The substance of the allegation is that after marriage on 15.6.1981 according to Hindu rites, the wife and her family wanted the husband to become a “Gharjamai” and when the husband refused, this caused annoyance to the wife and her father. The husband has alleged that the wife wanted to go to her father’s house on the false pretext that her father was ill and she succeeded in going to her father’s house with her brother on 5.01.1995 and when the husband sent his younger brother Sanjay to bring her back, she did not come with him. On 17.2.1995 the husband with his cousin Raj Dev Sah went to fetch his wife but he was abused, threatened and the wife threw “chappal” on her husband. 6. The matrimonial case was filed in 1996. At that time the couple had two daughters one aged 12 years and the other aged 9 years. A maintenance case has also been filed by the wife in 1995 bearing Case No. 6 (M)/1995. 6. The matrimonial case was filed in 1996. At that time the couple had two daughters one aged 12 years and the other aged 9 years. A maintenance case has also been filed by the wife in 1995 bearing Case No. 6 (M)/1995. A criminal case under Section 498-A was also filed by the wife bearing 99 (C) of 1999. The defence of the wife is that she was assaulted, tortured and driven out because she objected to the habits of her husband to wine, women and gambling. According to her, he had married another lady, daughter of Mangal Pd. Gupta, who has been examined as P.W.3 only to deny the allegation of marriage. Besides P.W.-3 the husband has examined himself as P.W.-1 and his brother Ranjeet Kumar as p.w.-2. 7. After discussing the evidence laid on behalf of husband on the point of cruelty and desertion, the learned Court below has been unable to record a finding that the allegations made by the husband amounted to cruelty which could entitle him to a decree of divorce. No finding has been recorded that the wife deserted the husband voluntarily and hence decree of divorce is not based upon desertion also. 8. It is not in dispute that the complaint case filed by the wife is still pending and it is not possible to give a finding at this stage that she has leveled wild allegations which are false or are of such horrendous nature so as to entitle the husband to a decree of divorce on the ground that the allegations themselves amount to cruelty. 9. It is well settled in law that the plaintiff or the petitioner must prove his/her case by cogent evidence. Failure of the wife to lead sufficient evidence to support her allegations or assault and torture cannot be sufficient to pass a decree of divorce unless it is found that the case of the petitioner/ plaintiff can stand on its own legs on account of nature of evidence produced by him to support his allegations. 10. In the present case merely because the wife is afraid to live with the husband till there is a guarantee of her security or till the other woman living with her husband is ousted, it cannot be made a basis for allowing divorce at the instance of the husband. 11. 10. In the present case merely because the wife is afraid to live with the husband till there is a guarantee of her security or till the other woman living with her husband is ousted, it cannot be made a basis for allowing divorce at the instance of the husband. 11. The Court below ought to have given positive findings whether the evidence in support of the case of the petitioner husband warrants a finding in his favour or not on the issue of cruelty or desertion. Additionally something very offensive but false in the defence of the wife could have been treated as an additional material but the suit has been decreed only on a finding that the allegations levelled against the husband are not proved. Such approach as adopted by the Court below is contrary to law and hence the judgment and decree cannot be sustained. 12. In the result the appeal is allowed. The judgment and decree under appeal is set aside and the case is remitted back to the lower Court for hearing the parties afresh and pass fresh judgment on the basis of evidence available on record. 13. The appeal is allowed to the aforesaid extent. 14. If either of the parties wants to bring on record subsequent developments which have taken place after hearing of the matter by the Court below leading to the judgment under appeal then their prayer may be considered in accordance with law. It is further made clear that the wife will be entitled to file a petition for enhancement of maintenance amount which should also be considered in accordance with law. In the facts of the case there shall be no order as to costs.