JUDGMENT Arun D. Upadhye, J. - Being aggrieved by the Judgment and Decree dated 23/04/2010 passed by the Family Court No.4, Nagpur in Petition No.A625/2005, the appellant-wife has filed the present appeal. The respondent-husband has preferred cross-objection and prayed to modify the Judgment and Decree so far as it relates to granting of decree and judicial separation and grant a decree of divorce in favour of the respondent. The brief facts of the case are as under : 2. The respondent-husband has filed petition under Section 13(1)(ia) of the Hindu Marriage Act for grant of decree of dissolving the marriage between the parties. The respondent has contended that the appellant is his wife and their marriage was solemnized on 07/06/1997 according to the tradition and rites of their community. They have two daughters and one son and they are living in Laxmi Apartment, Jaripatka, Nagpur. 3. The respondent further contended that the appellant is a hot tempered person and of suspicious nature. She used to ask the relatives and friends to intervene in the matter. According to him, appellant deliberately doing the same. According to him, she used to leave house early in the morning and avoid household work. She also neglects to take care of the children who totally dependent upon her. 4. It is further contended that she does not accommodate him to marital sex. Since last two years, they have not been any sexual relationship between the parties. The respondent is deprived of very common pleasure available to the person. Her attitude is not good and she is of quarrelsome nature. According to him, he is L.I.C. Agent and he used to get late in discharge of his routine business and appellant-wife does not use to open the entrance door of the flat. 5. The respondent has contended that he has purchased Alto Car and the said Car is in his possession. The appellant was well aware of the same. However, filed false report to the Police Station, Jaripatka about the theft and also news was published in daily newspaper. According to him, she herself has sold the Car to another person who has filed civil suit against him and appellant. It is submitted that in view of the order passed by the Civil Court, the Car was handed over to the said person. According to him, she herself has sold the Car to another person who has filed civil suit against him and appellant. It is submitted that in view of the order passed by the Civil Court, the Car was handed over to the said person. According to him, due to the said police complaint, he was humiliated in the police station. 6. The respondent further contended that since 2006, he is residing out of house. The appellant does not enquire as to how he is managing his food. The appellant also does not allow the respondent to contact the children. The respondent, therefore, issued notice to the appellant and called upon her by filing petition for dissolution of marriage by mutual consent. The notice dated 31/08/2005 was served by Regd. Post A.D. However, she has not replied the said notice. The respondent thus, has no alternative except to file the petition for dissolution of marriage. 7. The appellant appeared in the proceeding and resisted the claim of the respondent by filing written statement at Exh.48. She denied all adverse allegations made in the petition. She denied that she is a hot tempered and quarrelsome lady as contended by the respondent. According to her, married life was going smoothly till March, 2004 with petty household quarrels. According to her, she is well-educated lady and aware about the requirements of the profession of the petitioner. According to her, after March, 2004, the behaviour of the respondent towards her and family, suddenly changed. The respondent used to say her for obtaining divorce by mutual consent. However, she was not ready for the same. 8. The appellant further contended that the respondent has also filed criminal cases against the respondent''s family members to harass them. According to her, she never avoided her household obligations. She joined Satsang finishing her household work. She never neglected her duty towards her husband and children. According to her, she never used any abusive language to the respondent. According to her, she still wants to continue married life with her husband and children. 9. It appears that after amendment of the written statement, Para 4A was added in which she has submitted that in the year, 2004, the respondent has developed extramarital relations with Dr. Lata Kamal Kukreja. The petitioner was avoiding her as well as children. According to her, she still wants to continue married life with her husband and children. 9. It appears that after amendment of the written statement, Para 4A was added in which she has submitted that in the year, 2004, the respondent has developed extramarital relations with Dr. Lata Kamal Kukreja. The petitioner was avoiding her as well as children. She also stated that she has noticed Two-Wheeler of the respondent in front of the Clinic of Dr. Kukreja at K.K. Clinic, Bhim Chouk, Ring Road, Nagpur. She also found the petitioner sitting there with Dr. Kukreja and tried to convince Dr. Kukreja not to disturb her married life. 10. Lastly, it is submitted that all the allegations made in the petition are false and frivolous. The respondent has filed the petition on false ground and the same is deserved to be dismissed with costs. 11. After recording the evidence in the matter and on hearing both the sides, the learned Family Court No.4, Nagpur has refused to grant Decree of Divorce. However, instead of that, a decree of judicial separation under Section 10 r/w section 13A of the Hindu Marriage Act, 1955 is granted. 12. Feeling aggrieved by the said decree, the appellant has preferred this appeal as well as the respondent has filed cross-objection. 13. From the aforesaid facts and circumstances of the case, the following points arise for our consideration. We record the finding thereon with reasons as under : Issues Findings 1. Whether the respondent proves that the appellant treated him with cruelty as contended ? No 2. Whether the impugned Judgment and Decree requires interference of this Court ? No 3. What order ? As per final order. Reasons 14. As to Point Nos.1 to 3 :During the course of hearing of the appeal, a proposal was submitted by the learned counsel for the appellant-wife for mutual divorce. However, the learned counsel for the respondent has submitted that the respondent is not ready. Therefore, the matter is heard on merits. Dr. Sirpurkar, learned counsel for the appellant-wife has submitted that the petition for divorce on the ground of cruelty is filed by the respondent-husband and therefore, burden lies upon him to prove the allegations made against wife. She further submitted that except the evidence of respondent, no other evidence is adduced by him to prove the allegations made against the appellant in the petition. She further submitted that except the evidence of respondent, no other evidence is adduced by him to prove the allegations made against the appellant in the petition. The learned Family Court has quoted as many as 9 instances of cruelty in the Judgment and out of that, Point Nos.1 and 3 to 8 are not proved by the respondent-husband. The Family Court, however held that the Point No.2 in respect of wife is of very suspicious nature and Point No.9 in respect of allegations made in Para 4A of written statement are not substantiated by the wife and amounts to cruelty and granted decree of judicial separation. The finding recorded by the learned Family Court on these instances, is not sustainable in law. The burden lies upon the respondent to prove his case. The appellant-wife has only replied the contention made in the plaint and therefore, she is not required to prove any issue. The Family Court thus, erred while granting decree of judicial separation and therefore, the appeal filed by the wife is deserved to be allowed and the petition filed by the respondent for divorce is liable to be dismissed in toto. The appeal, therefore, be allowed. 15. Shri Khapre, learned counsel for the respondent-husband has submitted that the husband has also filed cross-objection and challenged the finding of the Family Court. He submitted that the learned Family Court has committed error while granting decree of judicial separation instead of granting Decree of Divorce. He further submitted that the appellant-wife has failed to adduce evidence and substantiated allegations made against the husband and therefore, the respondent-husband is entitled for grant of Decree of Divorce on the ground of cruelty. The appeal filed by the appellant-wife be dismissed and cross-objection filed by the respondent - husband be allowed. 16. Considering the submissions of respective sides, we have perused the material placed on record. It is not disputed that the marriage of the appellant with the respondent was solemnized on 07/06/1997 as per Hindu Rites and they resided together. They have also blessed with three children from the wedlock and children are residing with appellant-wife. The petition for divorce is filed by the respondent-husband on 19/11/2005 on the ground of cruelty on the part of wife. The respondent himself has examined at Exh.55 and reiterated the contents of the petition. They have also blessed with three children from the wedlock and children are residing with appellant-wife. The petition for divorce is filed by the respondent-husband on 19/11/2005 on the ground of cruelty on the part of wife. The respondent himself has examined at Exh.55 and reiterated the contents of the petition. The appellant-wife also examined herself at Exh.84 and her brother Mr. Vivek Shamdasani at Exh.93. The learned Family Court has given 9 instances of the cruelty in the Judgment so far as instances at Sr.No.1 and 3 to 8 are concerned, he recorded finding that the husband has failed to prove the said allegations. It appears that the allegations are made that, she is a hot tempered and spreading rumors about his conduct, and saying that her husband used to beat her in drunken condition. She also used to go for Satsang and neglect him and avoid household work, not allowing sex with her and not allowing to talk with children and filed false report of Car theft. The learned Family Court has given reasons that the husband is not able to prove the said instances. 17. Except the bare word of respondent-husband that there is no evidence on record to show that the wife has ill treated him, as alleged. The evidence of the wife is also on record showing that she has not neglected him, as alleged. There is oath against oath and therefore, the learned Family Court has disbelieved the version of the husband as not probable one. The finding recorded to that effect, therefore, does not require any interference. The submission put forth on behalf the respondent that the learned Family Court has committed error while recording the finding on instance No.1 and 3 to 8, therefore, cannot be accepted. 18. As regards the instance Nos.2 and 9 are concerned, the allegations are made that she is of suspicious nature and making allegation in written statement in Para 4A about the illicit relationship of husband with Dr. Lata Kukreja being false and baseless and amounts to cruelty. The learned Family Court recorded the finding that the allegations made by the wife as to the illicit relationship/intimacy against the husband in her pleading at Exh.48 being unsubstantiated, amounts to cruelty and answered Point No.1 in affirmative. The learned Family Court however, committed error while recording the said finding. Lata Kukreja being false and baseless and amounts to cruelty. The learned Family Court recorded the finding that the allegations made by the wife as to the illicit relationship/intimacy against the husband in her pleading at Exh.48 being unsubstantiated, amounts to cruelty and answered Point No.1 in affirmative. The learned Family Court however, committed error while recording the said finding. The burden lies upon the respondent-husband to prove his case. As per the provisions of section 102 of Indian Evidence Act, the burden of proof in a suit or proceeding lies on that person who would fail, if no evidence at all were given on either side. Therefore, the burden is on the respondent to prove his case as he seeks Decree of Divorce and if fail to prove to adduce evidence, he will fail in the proceeding. 19. Para 4A of written statement at Exh.48 is added after closing the evidence of the respondent. The respondent has filed Writ Petition No.3411/2009 challenging the said amendment before the Bombay High Court Bench at Nagpur. It appears that in the said writ petition, the learned counsel appearing for the wife made a statement that the wife is not leading any additional evidence after the amendment is allowed and therefore, the said writ petition was withdrawn by the respondent-husband. It further appears that in that context, no evidence was adduced by the wife though attempt was made by filing application to lead evidence, but the same was refused. Nevertheless, the husband cannot take benefit of the same and said that the wife has failed to substantiate her allegation made in the written statement and therefore, it amounts to cruelty. It is to be noted that the pleading without evidence, cannot be considered. Therefore, the respondent cannot take benefit of amended portion of 4A of written statement that the wife failed to substantiate the same. The grounds mentioned in the petition for Decree of Divorce, are not proved and therefore, he is not entitled for Decree of Divorce. The learned Family Court has wrongly granted decree of judicial separation and the same is liable to be quashed and set aside. There is no merit in the cross-objection filed by the respondent and the same is also liable to be dismissed. 20. The learned Family Court has wrongly granted decree of judicial separation and the same is liable to be quashed and set aside. There is no merit in the cross-objection filed by the respondent and the same is also liable to be dismissed. 20. The learned counsel for the respondent-husband relied upon the Judgment in the case of Wife vs. Husband, reported in AIR 2017 Bombay 186 . In the above cited case, the Bombay High Court has held that the wife making unsubstantiated allegations of extramarital affair and having child from that relationship against husband. Thus, allegations of very serious nature affecting character and reputation of husband. Thus, causing mental agony and cruelty to husband. Husband entitled to divorce on ground of cruelty. On the facts and circumstances of the case, above ruling is not made applicable to this case. In the case at hand, the allegation by her to the reply of the pleading which relates to the suspicious nature of the wife in the pleading. The husband has alleged that it was unable to discover any illicit relations on his part and he never involved in any illicit relationship, but she started spreading lies and rumours about his conduct. The appellant-wife by filing reply to the pleading, had made allegations and therefore, it was for the husband to establish that the false allegations are made against him. The above ruling, thus is not helpful to the respondent-husband. 21. The learned counsel for the respondent has also relied upon the ruling in the case of Mrs. Manisha Sandeep Gade vs. Sandeep Vinayak Gade, reported in AIR 2005 Bombay 180 and in the case of Anita Krishnakumar Kachba vs. Krishnakumar Ramchandra Kachba, reported in AIR 2003 Bombay 273 . On the facts and circumstances of the case. Both the rulings are not made applicable in the present case. 22. After considering the submissions of both the sides and after appreciating the evidence on record, we are of the considered view that the present appeal filed by the appellant-wife is deserved to be allowed and the cross-objection filed by the respondent-husband is liable to be dismissed. We answer Point Nos.1 to 3 in the negative and proceed to pass following order. (i) The Family Court Appeal No. 148/2014 is allowed. We answer Point Nos.1 to 3 in the negative and proceed to pass following order. (i) The Family Court Appeal No. 148/2014 is allowed. (ii) The impugned Judgment and Decree dated 23/04/2010 passed by the Family Court No.4, Nagpur is quashed and set aside and consequently, the Petition No.A625/2005 filed by the respondent-husband stands dismissed. (iii) The proceeding of Cross-Objection No.93/2017 filed by the respondent-husband stands dismissed. (iv) No order as to costs.