JUDGMENT : This appeal is by the appellant -husband being aggrieved by the judgment and decree dated 04.09.2018 dismissing the petition filed him under Section 13(1)(ia)(ib) of the Hindu Marriage Act, 1955 (for short 'the Act') on the file of the Senior Civil Judge Court, Shorapur in MC No.35/2018. 2. The case of the appellant is that his marriage with the respondent was solemnized on 25.05.2014 and that three days after the marriage, the respondent came to his house and on the very same night, the respondent refused to share the bed with the appellant and told him that she would not live with him. That the respondent stayed in the house of the appellant for a short period and did not show any interest. That, the respondent stayed at her parental house for a period of six months and thereafter appellant took her to Bangalore where he was doing coolie work and stayed in Bangalore for just about 5-6 days and even during the said period she completely neglected the appellant and did not discharge any marital obligation and at the instigation of her elder sister deserted the appellant. Thereafter, the appellant requested and advised the respondent to mend her behavior and discharge the conjugal duties, but the respondent had insisted the appellant not to join with her for cohabitation. The appellant caused his relatives and elders to advise the respondent to co-operate with the appellant which the respondent flatly refused. On the other hand, she had warned them of a serious consequence if they forced her to cohabite with the appellant. That on learning about this, the parents of the respondent had come to Devapur village and took the respondent along with them promising to send back her after two days advising her. After a month, the appellant and his relatives and well wishers visited the respondent in her parental house and requested her to join him. But the respondent refused and her parents and brother abused the appellant in a filthy language and tried to assault him. That the respondent had falsely instituted the Crl.Misc.No.84/2017 under the Protection of Women from Domestic Violence Act, 2005 (for short, 'PWDV Act') against the appellant and one Renukamma, who is the wife of the younger brother of the appellant and that the said matter was pending on the file of Court of JMFC at Muddebihal in Crl.Misc.No.84/2017. That the respondent had falsely instituted the Crl.Misc.No.84/2017 under the Protection of Women from Domestic Violence Act, 2005 (for short, 'PWDV Act') against the appellant and one Renukamma, who is the wife of the younger brother of the appellant and that the said matter was pending on the file of Court of JMFC at Muddebihal in Crl.Misc.No.84/2017. The appellant even thereafter approached the respondent on 10.05.2018 along with elders and had requested the respondent to join the company of the appellant and to discharge the conjugal obligation which was refused by the respondent. That the appellant was aged about 40 years and was a need of company to lead a dignified life in the society and since from inception of the marriage, the respondent had refused to cohabitate with him and deserted him and have been staying separately for more than three-and-half years thereby depriving the appellant of all the pleasures of the married life which amounted the mental cruelty to the appellant. That the appellant on 21.05.2018 had issued a legal notice to the respondent calling upon her to join him, failing which he would compel to initiate the proceedings for divorce. Instead of joining the company of the appellant, the respondent had issued untenable reply to the said legal notice. Thus, according to the appellant, the marriage had broken irretrievably and that there was no possibility of reconciliation or reunion. Hence, sought for granting decree of divorce. 3. Upon service of notice, respondent failed to appear and was placed ex parte. Based on the pleading of the appellant, the Family Court framed the following points for consideration: (1) Whether the petitioner has made out the grounds for dissolution of his marriage dated 25.05.2014 with the respondent? (2) What order? 4. The appellant himself examined as P.W.1 and got exhibited documents at Exs.P.1 to 4(a) and closed his side. There was no rebuttal evidence led by the respondent to counter the petition. 5. The Family Court answering the point No.1 in the Negative, dismissed the petition with costs. Being aggrieved by the aforesaid dismissal of the petition, the appellant is before this court. 6. Heard the learned counsel for the appellant. perused the record. Respondent despite of service of notice, remained absent. 5. The Family Court answering the point No.1 in the Negative, dismissed the petition with costs. Being aggrieved by the aforesaid dismissal of the petition, the appellant is before this court. 6. Heard the learned counsel for the appellant. perused the record. Respondent despite of service of notice, remained absent. Learned counsel for the appellant apart from reiterating the grounds of appeal insisted that the impugned judgment of the Family Court is unsustainable particularly in view of the fact that the respondent -wife has not contested the matter and the grounds urged by the appellant before the Family Court have remained unchallenged. As such, sought for allowing of the appeal. 7. The Family Court referring to the reply dated 28.05.2018 -Ex.P.4 issued by the respondent to the notice dated 21.05.2018 -Ex.P.1 has noticed that the respondent had filed Crl.Misc.No.84/2017 against the appellant under the PWDV Act about one-and-half year prior to the filing of the petition for divorce. Though the respondent has not disputed or challenged the petition averments, the Family Court on perusal of Ex.P.4, the reply notice has concluded that the petitioner appellant himself has tortured the respondent which had resulted in respondent filing the aforesaid Crl.Misc.No.84/2017 before the JMFC Court at Muddebihal. Under circumstances of the case, the Family Court has come to the conclusion that the filing of the present petition under Section 13(1)(ia)(ib) of the Act by the appellant after one-and-half years of the filing of the petition in Crl.Misc.No.84/2017 is only to wriggle out of the consequence thereof. 8. The Family Court has further found that the appellant has not led any independent evidence substantiating the allegation of cruelty. Excepting him, he has not examined any supportive witness in the matter. Merely issuing a notice would not substitute the requirement of proof of cruelty and desertion. Under the aforesaid circumstances, the Family Court has dismissed the petition. We do not find any illegality or irregularity in the conclusion arrived at by the Family Court. 9. Cruelty has not been defined under the Act. It is therefore essential that a person who claims relief on the ground of cruelty has to prove conduct or behavior of the other person which would result infliction of cruelty to the extent impossible to live with him. There cannot be assumption in the matter of proof of allegation with regard to cruelty. It is therefore essential that a person who claims relief on the ground of cruelty has to prove conduct or behavior of the other person which would result infliction of cruelty to the extent impossible to live with him. There cannot be assumption in the matter of proof of allegation with regard to cruelty. In the instant case, from the material available on record it is seen that the notice dated 21.05.2018 issued by the appellant through his counsel to the respondent is repetition of the averments made in the petition for divorce. The said notice has been received by the respondent. The respondent -wife has issued the reply dated 28.05.2018 in which it is stated that it was the appellant who had subjected her to mental and physical cruelty and had driven her out of the house threatening her with dire consequence and that she was ready and willing to live with him. It is further stated that on several occasion requests were made by her and the appellant had declined. It is further stated that the appellant had also threatened the respondent that he would finish her by making her to run around to the Court of Shorapur and that the said notice had been issued in pursuance of such threat. 10. Considering the aforesaid material and also failure on the part of the appellant to lead cogent evidence substantiating the allegation of cruelty and desertion, we are of the considered view that the Family Court was justified in dismissing the petition. Therefore, the following: ORDER The appeal filed by the appellant -husband is dismissed.