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7. There is no doubt whatsoever that false, scandalous, malicious and baseless charges leveled by one party against other party do amount to 'cruelty'. The decisions relied upon by Sri Veeraabhadraiah, the learned Counsel for the petitioner/appellant, also make the proposition very clear. As far as this Court is concerned, it has to be held as the settled legal position that the allegations made for the first time in the Counter/written statement, by the respondent can be foundation for granting a decree of divorce in favour of the petitioner. If those all allegation are found to be false and baseless. This is irrespective of the fact that the petitioner has failed to establish any of the charges made by him on ground of 'cruelty' against the respondent. To that extent the law as far as this Court is concerned, is settled. Though all the High Courts are not of the same view we are bound by the proposition enunciated in the aforesaid two decisions namely K. Lalitha Kumari's case (supra) and jayakrishna Panigrahi's case (supra).

" It is manifest that in order to succeed on this ground, the petitioner must establish the falsity of such an allegation."

At another place the Court said:

"Unless the truth or falsity of such allegation made in the written statement is put to trial in the manner aforesaid and it is established one way or the other no legal consequences can flow therefrom for the purpose of Section 13(1)(ia) of the Act."

14. It will thus be seen that it is not sufficient to contend that charges made in the written statement are unproved, and therefore, amount to 'cruelty'. What is further necessary for the petitioner to prove is that the said charges are false. The burden is on the petitioner to show that the charges are false. The burden cannot be thrown on the respondent because respondent has not come to the Court for seeking any relief. It is settled law that in all matrimonial causes burden of proof is on the petitioner. Particularly in cases of 'cruelty' it is for the petitioner to prove the element of 'legal cruelty'. If in the facts and circumstances of the case from evidence led on both sides, the Court comes to the conclusion that irrespective of the burden of the proof there is sufficient material from either side to prove that a particular allegation is not only not proved but is false, it will be open for the petitioner to take advantage of such finding. However, it is sine-qita-non that the petitioner must show that respondent's allegations are false and therefore, they amount to 'mental cruelty' towards him. It was contended that such a negative burden cannot be placed on the petitioner. This is not wholly correct. The general rule of evidence is that if in order to seek a relief the petitioner has to prove certain ingredients though negative, then it is for the petitioner to prove the same. We may give an example of a suit for malicious prosecution. The burden though in negative in nature, is on the plaintiff to prove that a false charge was brought against him, of which he was acquitted. The burden is light no doubt but the burden is certainly on the petitioner. Petitioner cannot escape from the duty of proving negative.

As pointer out earlier it was argued that the respondent made false allegation that when she conceived, the petitioner and members of her family were not happy and wanted to carry out her abortion. The learned Counsel says that there is no proof of such allegation and this amounts of 'cruelty'. Reading of the evidence shows that the petitioner throughout his evidence has nowhere stated that the allegation made by the respondent was false.

His examination-in-chief is totally silent about each and every allegation made by the respondent in her written statement. In the cross-examination when the respondent suggested that attempt to carry out abortion of respondent was made, he simply said that it was not true. On the other hand, the respondent has stated about it positively. Her evidence has remained unscathed in her cross-examination. Sri Veerabhadraih, however argues that the respondent has referred in her evidence about a visit to Dr. Neena Desai for purposes of terminating the pregnancy. It is argued by the appellant that she should have examined Dr. Neena Desai for purposes of proving attempt of terminating the pregnancy. Her failure to bring Dr. Neena Desai makes her allegation false. We are not inclined to accept such far-fetched argument. As pointed out by us it was for the petitioner to prove that the allegation was false. If really the petitioner wanted to show that the allegation is false, he could have examined Dr. Neena Desai to prove the falsity. This is in addition to what we have said earlier that petitioner in his evidence has nowhere said that the allegation of respondent about abortion was false. The same is case with all other allegations. The petitioner nowhere stated even once in his examination-in-chief that the particulars of 'cruelty' alleged in the written statement are false. We are in fact inclined to think that when the evidence consisted of only oath against oath and when the petitioner failed to say on oath that respondent's evidence was false, the evidence of respondent need not be thrown out. Assuming for the sake of argument that it is not sufficient for proving the charges, it cannot be said that the charges are 'disproved' or 'false'. They only remain unproved and nothing further. Similarly is the case regarding the charge of demand of dowry. It is true that if a demand of dowry is proved that amounts to 'cruelty' against the victim of such demand i.e. other spouse. Similarly if a false allegation is made about demand of dowry, such allegation will also constitute 'cruelty' towards the person who is alleged to have made demand, But the falsity of such charge has to be proved. It is argued in the instant case that respondent has initiated a proceeding under Section 498-A of IPC and has also filed other proceedings and that instituting such proceeding amounts to 'cruelty'. We, cannot accept such a wide proposition. The said proceedings are still pending. It is only after decision in those proceedings that petitioner can say as to whether false charges were made or not. At this juncture it is not possible to say mat mere initiation of proceedings amounts to 'cruelty'.

21A. In fact in the present case it appears to us that no attempt was made to raise the point in the Trial Court that allegations made by the respondent in the counter amounted to making of false charges and thus constituted 'cruelty' towards the petitioner. Apart from the fact that even after the filing of the counter, mere was no amendment to the petition for making the charges in the counter as the basis for alleging 'cruelty', the judgment given by the Trial Court shows mat even at the time of argument such plea was not advanced. At the stage of arguments before us Sri Veerabhadraiah produced a copy of written note of argument alleged to have been given to the Trial Court. The record of the Trial Court does not show any such written argument having been submitted. The so-called written argument bears date 15-4-1997. The record shows that the case was never posted on 15-4-1997 by the Trial Judge. In the circumstances though it may be that some note was kept on record subsequent to the oral arguments, it cannot be said such a point was urged before the Court. In any event the memo of appeal does not raise a ground anywhere that though such point was urged before the trial Court, the Court failed to decide it. Further the judgment of the learned Trial Judge does not show that he was called upon to decide this point. Whether a particular action or conduct of the other side amount to 'cruelty' or not is essentially a question of fact. We do not think that it would be proper at the appellate stage to permit the parties to raise such question of fact for the first time. We had therefore, even enquired from the learned advocates on both sides as to whether a remand of the case could be a solution. However, Sri Veerabhadraiah, the learned Counsel for me appellant specifically contended that he stands by his argument that such point can be raised even for the first time in the appeal and that mere non-proof of allegations in the written statement furnishes a good ground for claiming a decree in a case of present type. He therefore, requested the Court to decide the appeal on merits as the evidence stands. In the circumstances, we were left with no option but to decide the appeal on its merits.