JUDGMENT : A.M. SHAFFIQUE, J. 1. These two appeals have been filed by the common appellant challenging common judgment dated 17.3.2009 in OP (HMA) No. 360/2005 and OP (OS) No. 933/2005 of the Family Court, Alappuzha. 2. MA No. 700/2009 is filed against OP (HMA) No. 360/2005 which was filed by the appellant himself seeking for a divorce on the ground of cruelty. The Family Court dismissed the said petition. 3. MA No. 908/2009 is filed against OP (OS) No. 933/2005 which was filed by the respondent herein seeking for a declaration in regard to the amounts kept in two deposit receipts and for further directions to permit her to realise the amount and restraining the appellant from receiving the said amount. The said petition was allowed by the Family Court. 4. The short facts involved in OP (HMA) No. 360/2005 would show that the appellant married the respondent on 28.6.1973 as per Hindu religious rites and ceremonies. They have a male child who was 22 years at the time of filing the petition. 5. Appellant retired from military service and it is alleged that after his retirement, the respondent was treating him with cruelty. After military service, he worked in the Revenue Department for about 7 years and on account of the cruelty inflicted on him by the respondent, appellant was unable to live a peaceful life. The allegation is that respondent used to abuse and threaten the appellant in the presence of his friends and relatives. She was greedy towards money and unless the amount is not paid, she will start ill-treating the appellant. She does not serve the food as and when demanded by the appellant. Since 1.6.2001, she avoided to have conversation with the appellant. Further, she had filed complaint against the appellant before the Kerala Vanitha Commission making false allegations. Hence, the appellant sought for dissolution of marriage on the ground of cruelty under Section 13(1)(ia) of the Hindu Marriage Act. 6. Objection has been filed by the respondent denying the allegations. According to the respondent, the respondent was employed as a Confidential Assistant in the District Collectorate, Alappuzha and retired on 30.9.2000. She denies the allegation of cruelty and the allegation that she has caused mental pain or suffering. It is further stated that the appellant was not in the habit of looking after the respondent and their son. According to the respondent, the respondent was employed as a Confidential Assistant in the District Collectorate, Alappuzha and retired on 30.9.2000. She denies the allegation of cruelty and the allegation that she has caused mental pain or suffering. It is further stated that the appellant was not in the habit of looking after the respondent and their son. The respondent is suffering from rheumatic arthritis and is undergoing treatment. However, the appellant is in the habit of frequently picking up quarrels with the respondent and their son and the appellant never provided any financial assistance as well. She is living with the meagre amount of pension and with great difficulty she is maintaining herself and educating their son. Since the appellant had taken the money belonging to the appellant and deposited in his name in the Sub Treasury, Cherthala, Post Office, she filed OP (OS) No. 933/2005 before this Court for declaring that she is the absolute owner of the said amounts. Altogether an amount of Rs. 8,56,635/- belonging to her had been deposited in the name of the appellant. Hence, she sought for dismissal of the Original Petition. The above case was tried along with three other cases. The appellant was examined as PW-1 and a witness was examined as PW-2. The respondent was also examined as RW1. Exts.A1 to A4 and Ext.B1 were marked. Evidence was taken in connected cases as well. The Family Court, after an elaborate consideration of the factual and legal issues involved in the matter dismissed the claim for divorce. 7. The Family Court found that the allegation of cruelty has not been proved and therefore, the appellant is not entitled for a divorce as claimed. 8. Learned counsel for the appellant however submitted that the findings of the Family Court in regard to the cruelty is erroneous. The Family Court had not considered the pleadings and evidence in the proper perspective. Sufficient evidence was available to prove the cruelty meted out against the appellant which is ignored by the Family Court and therefore a re-appreciation of the evidence is required for understanding the allegations of cruelty that have been proved. 9. It is submitted that the appellant had raised two specific contentions. The appellant had made specific contentions against the long and continued ill treatment by the respondent. 9. It is submitted that the appellant had raised two specific contentions. The appellant had made specific contentions against the long and continued ill treatment by the respondent. According to him, though during the earlier years of marriage they were living happily, from 7 years prior to the date of filing the Original Petition, she was not behaving properly to the appellant and she was showing cruelty to him and that she was not performing her duties as a wife. Further, she has virtually deserted him since 1.6.2001, thereby, there is no cohabitation between them and the appellant is residing in the building totally separated from the respondent and the respondent is residing in the house totally separated from the appellant. It is contended that on account of her bad behaviour, none of his friends used to come to their house. In para 7 of the petition, petitioner alleged that on one occasion, when a friend of his had come to their house, in 2001, May, the respondent had abused the appellant and had thrown a chappal against him. This has caused severe mental agony and loss of reputation among the society. She is in the habit of throwing whatever she gets against the appellant. Even the son was asked not to have any interaction with the appellant. He also alleges that the respondent has a greed for money and he is even threatened that he will be done away with and therefore he is unable to reside in the house. It is pointed out that the aforesaid allegations clearly prove the fact that the respondent was behaving cruelly against the appellant. Further, there is evidence to show that she had filed frivolous complaints against the appellant which would also show that she was behaving in a cruel manner against the appellant. The averments in those complaints were absolutely baseless and was intended to malign the reputation of the appellant. 10. Learned counsel argued that PW1, the appellant, had deposed the aforesaid facts and the Family Court did not take into consideration such evidence for a proper adjudication of the case. Learned counsel also places reliance upon a judgment of this Court in Mohandas Panicker vs. Dakshayani, 2014 (1) KLT 397 wherein it is held by this Court that in matrimonial matters, the Court can act upon preponderance of probabilities. Learned counsel also places reliance upon a judgment of this Court in Mohandas Panicker vs. Dakshayani, 2014 (1) KLT 397 wherein it is held by this Court that in matrimonial matters, the Court can act upon preponderance of probabilities. Yet another judgment relied upon is that of the Apex Court in Malathi Ravi vs. Ravi, 2014 (4) KLT S.N. 18 (Case No. 25) SC, wherein the Apex Court held that for the offence of desertion, two essential conditions have to be established, one is factum of separation and secondly the intention to bring cohabitation permanently to an end (animus deserendi). It is argued that all the ingredients had been established in the case as well. 11. On the other hand, learned counsel appearing for the respondent submits that appellant had only made vague allegations in regard to the allegation of cruelty. The parties are residing in the same building at two different portions. Both are retired and are in the fag end of their life. The allegation of cruelty is absolutely baseless whereas it is the appellant who had completely kept away from the respondent and their son. It is submitted that only two specific instances are pointed out. One is that the respondent had thrown a chappal in the presence of the appellant's friend and secondly, that she had filed a complaint before the Women's Commission. It is argued that the allegation itself is totally wrong and even assuming that the said incident was correct, it was only a solitary incident by which an allegation of cruelty cannot be made out. Filing of a complaint before the Women's Commission was on specific grounds which were later withdrawn by the respondent. It is therefore contended that none of the allegations raised in the petition warrants grant of divorce and the respondent supported the stand taken by the Family Court. 12. In the affidavit filed in lieu of chief examination, the appellant had narrated the averments made in the original petition. In the cross examination, he submitted that there were several instances where the respondent had thrown articles against the appellant. However, he had not given any complaint regarding the same to any person. The respondent virtually has denied the allegations raised by the appellant. It is apparent that there is no independent evidence regarding the allegations raised by the appellant other than his own statement. However, he had not given any complaint regarding the same to any person. The respondent virtually has denied the allegations raised by the appellant. It is apparent that there is no independent evidence regarding the allegations raised by the appellant other than his own statement. As far as the appellant is concerned, the specific instance is regarding throwing of the chappal against him in the presence of his friend. During evidence, he said that his friend who saw the incident was Sri. Balakrishna Shenoy, but he was not examined in the case. Another person one Sri. Shaji @ Shibu was examined as PW-2. He supported the version of the appellant. The court below did not believe the version of PW-2. In chief examination, PW-2 has stated that during 2001, on a particular day, he had gone to the appellant's house. The appellant was sitting in the sit out and the respondent was standing in the courtyard. Respondent was abusing the appellant in a loud voice. Thereafter she took a chappal and threw it against the appellant. The chappal hit the appellant's face, his glass broke off and the appellant suffered severe mental agony on account of the said incident. In cross examination, he says that he is residing 1½ kms away from the residence of the appellant and respondent. He is a coolie worker. He had gone to their house on one or two occasions in connection with measurement of property. He has not asked the appellant to measure their property. He does not have property of his own. He has family property and it is to measure the same the appellant was called. Property is in the name of his father. He had gone to their house in June, 2001 on which date, the incident happened. According to him, when the spectacles fell down, he had taken it and given it to the appellant. Thereafter, he had left the place. At that time, there was another person as well. He remembers it since it was a cruel incident and it was after 10 to 12 days after reopening of the school. 13. In fact, in the pleading, the appellant does not have a case that the chappal was thrown in the presence of the aforesaid Shaji. The allegation is that in the month of May 2001, respondent had thrown a chappal in the presence of the appellant's friend. 13. In fact, in the pleading, the appellant does not have a case that the chappal was thrown in the presence of the aforesaid Shaji. The allegation is that in the month of May 2001, respondent had thrown a chappal in the presence of the appellant's friend. PW-2 does not have a case that he is a friend of appellant. He only knows the appellant because the appellant was a Village Officer and evidence is also to that extent. He had gone only to invite him to measure his family property. But he says that another person was present there. Appellant of course has only mentioned about the presence of a friend in his pleading. However, in evidence, he says that it is Sri. Balakrishna Shenoy. There is apparent contradiction in regard to the aforesaid incident as narrated by the appellant and by the witness. It is therefore clear that PW-2 is a cooked up witness. His embellishment in the evidence that the spectacle had broken and he had taken and given it to the appellant is not a case pleaded by the appellant. In the said circumstances, we do not think that the Family Court has committed any error in not believing the version of PW-2 to prove the said incident. Ultimately, the evidence is the interested version of the appellant alone. The fact that he had brought in a person PW-2 as a witness by itself indicates that an attempt is being made to create evidence. PW-2 is an absolute stranger who only knew these persons and had nothing to do with their family and was totally unaware of the family relationships. Hence, we do not think that there is any perversity in the appreciation of evidence by the Family Court warranting interference in the appeal. Of course, there are allegations made about abuse and cruelty. But no specific incident is stated nor proved. As rightly observed by the Family Court, cruelty is a fact which has to be pleaded and proved. The pleading itself is rather vague. In other words, no specific incident had been stated other than the incident relating to throwing of a chappal on a particular day. Even assuming that the said incident had happened, one stray incident cannot give rise to a situation where one can infer cruelty by the spouse. The pleading itself is rather vague. In other words, no specific incident had been stated other than the incident relating to throwing of a chappal on a particular day. Even assuming that the said incident had happened, one stray incident cannot give rise to a situation where one can infer cruelty by the spouse. It should be a series of acts and it should be supported by witnesses who had acquaintance with the family members and specific instances ought to be pleaded and proved. 14. Learned counsel for the appellant further submitted that the respondent was in the habit of giving frivolous complaints against the appellant which itself amounts to cruelty. He places reliance upon judgment of the Apex Court in Srinivas Rao vs. Deepa, 2013 (1) KLT S.N. 119 (Case No. 104) (SC) wherein the Apex Court held that sending vulgar and defamatory letters or notices or filing complaints containing indecent allegations or by initiating number of judicial proceedings amounts to mental cruelty. 15. In the pleading, the appellant refers to a complaint filed by the respondent before the Women's Commission which also according to the learned counsel amounts to cruelty. The learned counsel submits that the complaint has since been withdrawn. Ext.A4 is the said complaint. The complaint is dated 15.9.2004. In the complaint it is stated that after starting a business near the residential building, the appellant started behaving cruelly to the respondent and their son. She alleged that since she had called for details regarding the deposits, she was man handled and she was asked to go away from the house. Virtually she was ventilating her grievance with reference to the attitude of the appellant. Apparently, this complaint had been withdrawn. There is no finality to the same. Here is an instance where appellant alleges cruelty by the respondent and the respondent has alleged cruelty by the appellant. When the parties virtually are on loggerheads and is making allegations against each other, it cannot be taken as a reason to infer cruelty on either side. If the respondent had approached a legal forum for ventilating her grievances and for interference by the Women's Commission, unless it is prosecuted and found by the Women's Commission that the complaint was frivolous, it may not be possible for this Court to arrive at a conclusion that the complaint was frivolous in nature. If the respondent had approached a legal forum for ventilating her grievances and for interference by the Women's Commission, unless it is prosecuted and found by the Women's Commission that the complaint was frivolous, it may not be possible for this Court to arrive at a conclusion that the complaint was frivolous in nature. There has to be a finding either by the Women's Commission or by the Family Court. Other than producing copy of the complaint, no evidence was let in to contend that the allegations raised therein were totally frivolous. Under such circumstances, we do not think that the Family Court had committed any error in arriving at the above findings. 16. In regard to OP (OS) No. 933/2005, the following is the decretal portion:- "OP (OS) No. 933/2005 is allowed. It is declared that the petitioner is the absolute owner of the amounts covered by Exts.A1 and A2 Fixed Deposit receipts of the Sub Treasury, Kuthiathode and Sub Treasury, Cherthala standing in the name of the respondent. She is allowed to realise the amounts covered by those deposits with interest. The respondent is permanently restrained from receiving the amounts covered by those Fixed Deposit Receipts. The parties are directed to suffer their respective costs." 17. Perusal of the judgment would show that the suit had been decreed on valid and sufficient reasons. In the original petition, respondent claimed that out of the gratuity amount of Rs. 1,37,322/- received by her from Sub Treasury, Kuthiyathodu, on 28.3.2001, Rs. 50,000/- was deposited in the very same Sub Treasury in the name of the appellant for one year which was renewed for another three years on 30.3.2002. Further, an amount of Rs. 80,000/- was deposited in the Sub Treasury, Cherthala on 29.3.2001 in the name of the appellant as Fixed Deposit which was also extended for a further period of 3 years, which attained maturity on 30.3.2005. She only claimed the said amount. It is in evidence that the said amounts actually belonged to the respondent. There is no contra evidence. The Family Court had relied upon the documents relating to the aforesaid deposits and found that there is evidence to show that the money belonged to the respondent. Therefore, there is justification to have decreed the suit in favour of the respondent. 18. We do not find any error in the judgment warranting interference. There is no contra evidence. The Family Court had relied upon the documents relating to the aforesaid deposits and found that there is evidence to show that the money belonged to the respondent. Therefore, there is justification to have decreed the suit in favour of the respondent. 18. We do not find any error in the judgment warranting interference. In the result, these appeals are dismissed.