JUDGMENT : A.M. Babu, J. 1. The Family Court, Kottayam allowed three original petitions by a common judgment. Those petitions were (i) O.P 290/2008 for divorce, (ii) O.P 291/2008 for return of dowry and (iii) O.P 1254/2008 for permanent alimony. Mat.Appeal Nos.910, 911 and 912 of 2009 are preferred against the decrees in O.P Nos.290, 1254 and 291 of 2008 respectively. 2. Petitioner is one and the same person in all the three petitions. She at the time of filing of the petitions was the wife of the first respondent in O.P.290/2008. He is the first respondent in O.P 291/2008 and the sole respondent in O.P 1254/2008. His father and mother are respectively respondents 2 and 3 in O.P 291/2008. The second respondent in O.P 290/2008 is alleged to be the paramour of the first respondent therein. 3. The contentions of the petitioner relevant for deciding her three petitions may be summarized as follows : Her husband has illicit relationship with his paramour. He mentally and physically tortured the petitioner. She was completely deserted and neglected by him. She is therefore entitled to a decree of divorce. Her Rs.50,000/- and 120 grams of gold ornaments were appropriated by him and his parents. She is entitled to get back her money, ornaments and other household articles such as steel almirah, mixer et cetera. She is poor. He is rich. She is entitled to five lakhs rupees as permanent alimony. 4. The contentions of the husband and his parents go as under : He never had any illicit relationship with the second respondent in O.P 290/2008. The former did not desert or neglect his wife. Nor did he treat her with physical or mental cruelty. Before his marriage with her, she had an illicit relationship with one Soloman. Rs.50,000/- was received by him and his parents from her side. But the money was spent to buy 'tali', other ornaments, wedding dress et cetera. The petitioner had only 13½ sovereigns of gold ornaments. She had taken those ornaments, except a neklace and two bangles, with her when she left for her house. 5. The sole respondent (husband) in O.P 1254/2008 did not file any objection in that case. 6. The second respondent in O.P 290/2008 denied her to have any illicit relationship with the first respondent. 7. Evidence was recorded in O.P 290/2009. PW1 and RW1 were examined. 5. The sole respondent (husband) in O.P 1254/2008 did not file any objection in that case. 6. The second respondent in O.P 290/2008 denied her to have any illicit relationship with the first respondent. 7. Evidence was recorded in O.P 290/2009. PW1 and RW1 were examined. Exts A1 to A9 and B1 were marked. 8. The learned Judge of the Family Court allowed all the original petitions with a costs of Rs.3,000/-. The relief of divorce was decreed on the grounds of cruelty and illicit relationship. One lakh rupees was decreed as permanent alimony. The amount shall carry interest at the rate of 9% per annum from the date of decree. The petitioner was granted a decree for Rs.50,000/- with 9% interest from the date of suit. The respondents in O.P 291/2008 were directed to return 15 sovereigns of gold ornaments or pay Rs.1,50,000/- as the value thereof with interest thereon at the rate of 9% from the date of decree. They were also directed to return the household articles or pay Rs.5,000/- as the value of those articles. 9. Heard. 10. We shall first consider O.P 290/2008. The marriage between the petitioner and the first respondent was solemnized on 15.1.2007. They are Hindus. Desertion is a ground for divorce under Sec.13(1)(ib) of the Hindu Marriage Act. The length of desertion shall be a continuous minimum period of two years immediately preceding the presentation of the petition. Two years' period is not satisfied even counted from the date of the marriage. Therefore the petitioner was not entitled to a decree of divorce on the ground of desertion. The Family Court did not grant divorce under Sec.13(1)(ib). 11. The petitioner contends that the second respondent is the paramour of the first respondent. The Family Court accepted the said contention. We are afraid, evidence is quite insufficient to accept the contention of the petitioner. What the petitioner should prove is not just a love affair of her husband. The Family Court did not appreciate the evidence properly. The court below considered the evidence of PW1 and RW1 touching the grounds of divorce, the claim for permanent alimony and the claim for money and other articles together and said that the petitioner proved the illicit relationship. The learned Judge did not state the precise reason why he considered the allegation proved. 12. The relevant provision is Sec.13(1)(i) of the Hindu Marriage Act. The learned Judge did not state the precise reason why he considered the allegation proved. 12. The relevant provision is Sec.13(1)(i) of the Hindu Marriage Act. Thereunder, a party to a marriage is entitled to get the marriage dissolved by a decree of divorce if the other party has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse. The petitioner should prove that the first respondent had voluntary sexual intercourse with the second respondent at least once. The standard of proof is only preponderance of probability. 13. PW1 is the petitioner. RW1 is the first respondent. Both of them filed affidavits in lieu of their examination-in-chief. The documents produced by the petitioner to prove the sexual relationship between the respondents are Exts A6 to A8. We shall discuss the evidence. 14. PW1 asserted and RW1 denied the illicit relationship. PW1 in her affidavit refers to two telephone calls allegedly made by the second respondent. The first call was stated to be ten weeks after the marriage. It is not clear from the affidavit as to who did attend the call. The petitioner was certainly not the person who attended it. The dialog of the caller, as stated in PW1's affidavit, was that the former wanted her husband who was the son-in-law of the person who attended the call. The said statement in the affidavit suggests that the person attended the call could be one of the parents of the petitioner. None of them was examined to prove that such a call really came and attended. The recipient of the second telephone call was the petitioner herself going by her affidavit. PW1 swore that she was not only abused by the second respondent, but also stated that the latter was the wife of the first respondent. The first telephone call referred to in the affidavit of the petitioner does not take her anywhere. The second call by itself is not sufficient to prove a sexual intercourse between the respondents. However, it can be considered if there is any other evidence on the side of the petitioner to prove the disputed fact. 15. It is clear from a reading of the affidavit of the petitioner that she has no direct knowledge in the matter. She did not examine any person who could have direct knowledge. However, it can be considered if there is any other evidence on the side of the petitioner to prove the disputed fact. 15. It is clear from a reading of the affidavit of the petitioner that she has no direct knowledge in the matter. She did not examine any person who could have direct knowledge. The petitioner states in her affidavit that on enquiry by herself and her family members she understood that the first respondent was going out during nights not for night duty at his office, but to visit the second respondent. PW1's such evidence is also not direct evidence capable of proving any sexual intercourse involving the respondents. The first respondent in his affidavit asserts that he had to go for night duty and was going out during nights only for night duty. We do not have anything on record to disbelieve the denial of RW1. According to PW1, the second respondent went to the parental house of the former and claimed that she was the wife of the first respondent. PW1 did not state that she was present in her house at that time or that she heard the second respondent stating so. 16. PW1 states in her affidavit that the respondents stayed in one room in a hotel by name Revathy hotel at Kumali. The said evidence of PW1 is also not direct. She stated in cross-examination that she was told about the stay of the respondents in one room in a hotel by a colleague of the first respondent. The said colleague is not examined to prove the allegation. Even his name is not disclosed by PW1. 17. Ext A6 bill is produced to prove that the respondents stayed together in Revathy hotel at Kumali. Ext A6 is stated to have been collected from that hotel by the father and brother of the petitioner. There is no acceptable evidence to find that the person shown as 'Jayapal A.K' in Ext A6 is the first respondent by name 'Jayapalan'. RW1 denied himself to be the person shown in Ext A6. Two persons are shown in Ext A6 to have occupied a room in the hotel from 5.00 pm on 4.11.2007 to 11.15 am on 5.11.2007. Who is the other person ? It is not possible to guess that the other person was the second respondent. Ext A6 proves nothing for the petitioner. 18. Two persons are shown in Ext A6 to have occupied a room in the hotel from 5.00 pm on 4.11.2007 to 11.15 am on 5.11.2007. Who is the other person ? It is not possible to guess that the other person was the second respondent. Ext A6 proves nothing for the petitioner. 18. Exts A7 and A7(a) are only copies of the complaints of the petitioner. Ext A8 is a copy of the complaint submitted by her father. Those complaints are also not evidence to prove the illicit relationship alleged against the respondents. 19. The finding of the Family Court that the first respondent has illicit relationship with the second respondent is not supportable. A decree of divorce was granted under Sec.13(1)(i) of the Hindu Marriage Act without acceptable evidence. A finding that the first respondent has extra marital relationship with the second respondent should not have been made without evidence as such a finding would affect her family life. The finding of the court below is liable to be vacated. 20. The petitioner is entitled to a decree of divorce under Sec.13(1)(ia) of the Hindu Marriage Act if she was treated with cruelty by the first respondent. PW1 has stated in her affidavit as follows : Only for two or three months after the marriage the first respondent had sexual intercourse with the petitioner. He purposefully avoided her whenever she made advances for a sexual intercourse. Himself and his parents mentally and physically harassed her alleging that the dowry she brought was insufficient. He even tried to smother her with a pillow. 21. The evidence of PW1 stated above is only to be accepted. For, there has been no cross-examination challenging her evidence noted above. No single question, not even a suggestion, was put to PW1 in cross-examination to challenge her such evidence. RW1 in his affidavit did not deny any of the allegations of PW1 mentioned above. An attempt to smother should be taken serious note of. Denying the spouse a sexual relationship amounts to mental cruelty. Her unchallenged and unrebutted evidence on the point suggests that he avoided her and purposefully evaded her even when she showed interest to have a sexual intercourse. This attitude of a husband does amount to mental cruelty to his wife. There was physical cruelty too as he attempted to smother her with a pillow. 22. Her unchallenged and unrebutted evidence on the point suggests that he avoided her and purposefully evaded her even when she showed interest to have a sexual intercourse. This attitude of a husband does amount to mental cruelty to his wife. There was physical cruelty too as he attempted to smother her with a pillow. 22. The first respondent failed to prove his allegation that the petitioner had an illicit relationship with one Soloman before the marriage. The said unproved allegation also would amount to cruelty. We find sufficient evidence to grant divorce on the ground of cruelty. We therefore confirm the decree of divorce granted by the Family Court under Sec.13(1)(ia) of the Hindu Marriage Act. Mat. Appeal 910/2009 is only to be dismissed. 23. We shall move on to O.P 1254/2008. The petitioner claims permanent alimony from the respondent contending her to be penniless and him to be well off. The claim is under Sec.25 of the Hindu Marriage Act. The claim is five lakhs rupees. The court below decreed one lakh rupees with interest. Even the respondent has no case that the petitioner has any income. The child of the couple is with the petitioner. The respondent was admittedly employed. He deposed that he lost the job because of the cases filed by the petitioner. Pendency of civil cases is not a ground for dismissal from service. The respondent did not produce any document to prove his removal from service. It is not possible to accept his evidence that he lost his employment because of the original petitions filed by the petitioner. The petitioner alleged in the petition that the respondent was getting a salary of more than Rs.7000/- per month. It is also alleged that the respondent owns family properties. The contentions in the petition on the means of the respondent are only to be accepted. For, he did not even file any objection to deny the contentions of the petitioner. We are in agreement with the court below that the petitioner is entitled to permanent alimony. The amount awarded is not exorbitant. One lakh rupees is reasonable. The respondent can afford to pay it. We see no merit in the challenge against the grant of permanent alimony of Rs.1,00,000/- with interest. Mat.Appeal 911/2009 is therefore liable to be dismissed. 24. And last, O.P 291/2008. The amount awarded is not exorbitant. One lakh rupees is reasonable. The respondent can afford to pay it. We see no merit in the challenge against the grant of permanent alimony of Rs.1,00,000/- with interest. Mat.Appeal 911/2009 is therefore liable to be dismissed. 24. And last, O.P 291/2008. The petitioner claims return of money, gold ornaments and household articles from the respondents. The money claimed back is Rs.50,000/- The petitioner contends that the amount was given at the time of her marriage as her share. The respondents admit that they received Rs.50,000/- from the side of the bride. According to the respondents, they spent Rs.30,000/- to buy gold ornaments including 'tali', Rs.10,000/- to purchase wedding dress and Rs.10,000/- towards other expenses. They were not entitled to spend the amount of Rs.50,000/- for any purpose. That amount amounts to dowry within the meaning of Sec.2 of the Dowry Prohibition Act, 1961. The dowry taken from the woman or her relatives shall be transferred to the woman as insisted on by Sec.6 of the said Act. It shall be transferred within the time specified in Sec.6. The respondents did not yet return the amount of Rs.50,000/- to the petitioner. She is therefore entitled to a decree for Rs.50,000/- with interest. 25. Admittedly the petitioner came to her matrimonial home wearing gold ornaments. The dispute is only regarding the total weight of the ornaments she wore. She pleaded that she had 120 sovereigns of gold ornaments. The respondents contended that the petitioner did not have 15 sovereigns (120 grams) of gold ornaments, but only 13½ sovereigns. The petitioner should prove that she had 120 grams of gold ornaments and that her ornaments were taken by the respondents. 26. Ext A2 is one of the two documents produced by the petitioner to prove her claim. But Ext A2 is not a bill evidencing purchase of gold ornaments. It is only an invoice. The invoice is not even signed. Anybody can get any number of such invoices from any jewelery. Ext A2 cannot be accepted as evidence proving the purchase of ornaments. 27. Ext A1 is the copy of the relevant page of the marriage register kept by the SNDP Sakha Yogam, Puliyannur. Ext A1 pertains to the marriage of the petitioner with the 1st respondent. Anybody can get any number of such invoices from any jewelery. Ext A2 cannot be accepted as evidence proving the purchase of ornaments. 27. Ext A1 is the copy of the relevant page of the marriage register kept by the SNDP Sakha Yogam, Puliyannur. Ext A1 pertains to the marriage of the petitioner with the 1st respondent. It is entered in Ext A1 that the bride at the time of the marriage wore gold ornaments weighing approximately 180 grams (22½ sovereigns). The petitioner pleaded that 180 grams, instead of 120 grams, is shown in Ext A1 taking into account the amount of Rs.50,000/- given. PW1 has given evidence to that effect. RW1 admitted it in cross-examination. He deposed that taking into account the amount of Rs.50,000/-, his wife had 180 grams of gold ornaments. That means she wore gold ornaments weighing 120 grams and Rs.50,000/- was paid in cash. The petitioner proved that she brought 120 grams of gold ornaments to her matrimonial home. 28. PW1 stated that all her ornaments, except two rings weighing 2½ grams, were taken from her by the respondents. According to PW1, a bracelet weighing 10 grams was given to the first respondent by the brother of the petitioner at the time of solemnization of the marriage. PW1 deposed in cross-examination that the third respondent was keeping the gold ornaments. The former spoke that she was given some of the ornaments for wearing occasionally by the latter. PW1 denied that she wore her ornaments when she left for her house. The evidence of PW1 is believable. Her evidence that the first respondent was given a bracelet was not challenged in cross-examination. That gift is also dowry within the meaning of Sec.2 of the Dowry Prohibition Act. It shall be returned to her as insisted on by Sec.6. 29. The respondent contended that the petitioner had only 13½ sovereigns of gold ornaments. But RW1 had to admit in cross-examination that the petitioner had 15 sovereigns of ornaments. The respondents admitted the receipt of Rs.50,000/-, but they were reluctant to return it. That was why they contended that they spent the money in connection with the marriage. RW1 admits in his affidavit that he is in possession of the petitioner's necklace weighing 1½ sovereigns and her two bangles together weighing 1½ sovereigns. RW1 is reluctant to return those ornaments. That was why they contended that they spent the money in connection with the marriage. RW1 admits in his affidavit that he is in possession of the petitioner's necklace weighing 1½ sovereigns and her two bangles together weighing 1½ sovereigns. RW1 is reluctant to return those ornaments. That is why he states that those ornaments were given to him by the petitioner of her own free will. The respondents have a tendency to retain the money and ornaments of the petitioner. Therefore her contention and evidence shall be preferred to the contention and evidence of the respondents. We accept the evidence of PW1 and confirm the finding of the court below. 30. Exts A3 to A5 are produced to prove the purchase of household articles. PW1 has stated that she brought such articles to her matrimonial home. RW1 has admitted that those household articles are still in his house. The respondents shall return those articles to the petitioner or pay the depreciated value of Rs.5,000/- fixed by the court below. Mat.Appeal 912/2009 too deserves only a dismissal. 31. We conclude. We vacate the finding of the court below that the first respondent in O.P 290/2008 has illicit relationship with the second respondent therein. But the decree of divorce granted by the Family Court in O.P 290/2008 is confirmed as cruelty is proved. The decrees in O.P 291/2008 and O.P 1254/2008 are also confirmed. All the appeals are dismissed. The parties are left to bear their respective costs in the appeals.