JUDGMENT : Anu Sivaraman, J. 1. This appeal is preferred against the judgment dated 25.10.2007 in O.P.No.557 of 2005 of the Family Court Kozhikode. The original petition was filed by the respondent herein seeking dissolution of marriage under Section 13(1)(1a) of the Hindu Marriage Act,, 1955. The parties were married on 16th Chingam, 1991. They lived at the house of the petitioner and two girl children were born in the wed-lock. The respondent and the children used to go to her own house frequently. One day, when the respondent returned, 17 sovereigns of gold ornaments belonging to her was found missing. She informed the petitioner that the ornaments were entrusted to her own brother and would be returned soon. Thereafter, 36 cents of property belonging to the respondent, her brother, sister and mother was sold without the consent or knowledge of the petitioner. It is stated that the petitioner advised the respondent to approach her family and get the share of gold ornaments and property sold by her brother, since they had two girl children. The respondent agreed and went home in 1997. But, she refused to come back even though the petitioner went and attempted to bring her back. It is stated that a lawyer's notice was issued demanding restitution of conjugal rights but no reply was received. While so, the respondent and children came with her relatives and started living in the petitioner's house. It is stated that on 22.11.2005, the respondent assaulted him with a coconut scraper. It is therefore stated that the petitioner husband was entitled to a decree of divorce on the ground of cruelty. 2. The respondent wife filed a counter statement admitting the marriage and paternity of the children. The allegation of entrustment of gold ornaments to the brother and sale of the property without consent and knowledge of the petitioner was emphatically denied. It was stated that the property was sold due to persistent demand of the petitioner and the sale consideration had been received by him on behalf the respondent wife and spent lavishly. The allegation that she went home with the children in 1997 and did not return were denied. Though the receipt of the lawyer notice was admitted, the contents thereof were denied. The allegation that she went home with the children in 1997 and did not return were denied. Though the receipt of the lawyer notice was admitted, the contents thereof were denied. It is contended that the wife had been subjected to matrimonial cruelty including demands for more dowry and ill treatment and that her gold ornaments had been appropriated and sold by the petitioner. It is stated that from 24.6.2005, the respondent and the children had been living in the house of the petitioner and that he had never maintained her and was sleeping in some other house. 3. PW1 was examined on behalf of the petitioner husband and Exhibits A1 and A2 were marked. The respondent wife was examined as RW1. After examining the pleadings and the evidence on record, the Family Court held that the parties had been staying separately since 1997. Exhibits A1 and A2 were relied upon to hold that the joint property of the respondent and her siblings was sold and another property was purchased in 1999. The said property was also sold in 1999. Considering the oral evidence, the court below held that the version of RW1 did not inspire confidence and that her behaviour and conduct amounts to cruelty. The case of PW1 was accepted as the more probable one and a decree of divorce was granted as prayed for. 4. Heard learned counsel for the appellant and the learned counsel appearing for the respondent. Though service is complete in the appeal, there was no appearance for the respondent. 5. The learned counsel appearing for the appellant contended that even if taken as uncontroverted, the case of the petitioner in the original petition did not disclose any cruelty on the part of the respondent, who is the appellant herein. It is stated that the sale of her own joint family property, which is the only fact that could be established by the petitioner husband, would not, by any stretch of imagination, constitute matrimonial cruelty as against him. The respondent had clearly stated in her oral evidence that her property had been sold at the instance of the petitioner husband and that the amounts had been appropriated by him. The respondent had also stated that she had 35 sovereigns of gold ornaments and that the said gold had been appropriated and sold by the husband. The respondent had clearly stated in her oral evidence that her property had been sold at the instance of the petitioner husband and that the amounts had been appropriated by him. The respondent had also stated that she had 35 sovereigns of gold ornaments and that the said gold had been appropriated and sold by the husband. The claim that the gold and landed property had been sold without informing the petitioner was denied by the respondent in her pleadings. She also stated that some proceeds of the sale of her property had been entrusted to her husband, who had spent the amounts. She states that she had been required to go home and bring more money as her parental share and this is the reason why she left the matrimonial home. She also denies any physical assault on her side. 6. On considering the evidence on record, the Family Court also concluded that no instance of physical cruelty by the respondent wife had been proved by the husband. Her contention that she was staying apart only because of the demand by the husband to bring more money as her patrimony was also taken note of by the Family Court. However, it appears that the Family Court proceeded on the basis that there was no matrimonial relationship between the parties since 1997 and therefore, the petitioner was entitled to a decree of dissolution of marriage. 7. We have considered the contentions advanced and have perused the pleadings and materials on record. The original petition was filed by the petitioner husband seeking dissolution of marriage on the ground of cruelty. The material averments in the original petition have been extracted earlier in this judgment. A proof affidavit has been filed by the petitioner in terms of his pleadings in the original petition. It is admitted by the petitioner in cross examination that the fact of the respondent wife having sold her share in the property was the reason which shocked him. He also admits that he required the wife to go home and bring the gold ornaments and money. He admits that he had not been maintaining the children or his wife when she stayed apart. He had also not required the wife to come and stay with him. He admitted that after the lawyer notice was issued, the wife had come and stayed in his house. He admits that he had not been maintaining the children or his wife when she stayed apart. He had also not required the wife to come and stay with him. He admitted that after the lawyer notice was issued, the wife had come and stayed in his house. He said that the wife and children were living in the house while he was staying in a room outside the house. He took food from outside and he did not eat the food prepared by the wife. He also stated that he was attacked by the wife. 8. The Family Court considered the evidence and came to the conclusion that there was no independent evidence adduced by the husband in support of the physical assault with a coconut scraper as alleged by him. No Police case or wound certificate has been produced. The respondent wife in her pleadings as well as the deposition specifically denies the said incident. In the absence of any evidence as to such a physical assault, we are of the opinion that the pleadings in the original petition even if accepted as uncontroverted, and the evidence adduced by the petitioner husband in support thereof would not have justified the grant of a decree of dissolution of marriage. The allegations of matrimonial cruelty have been denied by the wife. She has also set up a counter case as to the demand for money and appropriation of gold ornaments as against the respondent. In the above circumstances, the pleadings and evidence adduced in the instant case, according to us, was grossly inadequate for the grant of divorce. In the above circumstances, the appeal is allowed. The decree for grant of divorce granted by the Family Court is set aside and the original petition is dismissed. The parties shall bear their respective costs.