G. RADHAKRISHNA RAO, J.

( 1 ) MAINTENANCE petition was filed by the wife, appellant herein, along with her three children before the Magistrate under Section 125 CPC Maintenance was granted to the three minor daughters and was refused so far as the wife is concerned. The certified copy of the same has been marked as Ex. A-1 in the o. P. No. 514/89 filed by the husband for divorce on the ground of adultery. The ain allegation made in the Original Petition is that the wife was living in adultery. The husband was examined as P. W. I in the Original Petition. He stated that she was living with two named persons. But, those persons were never made parties in the Original Petition. When the husband came forward with a plea that the wife was living in adultery, the burden is on him to prove that she was living in adultery. He must also examine the persons who have knowledge of it. None of the persons were examined to prove that she was living with the named persons. The husband is an interested person. Mere allegation by the husband without examining other corroborative testimony is of no avail to accept the plea that she was living in adultery. On the other hand, the wife denied the same. The Lower Court took the view that as the plea is one of adultery the burden shifts on the wife to disprove the same. The burden never shifts on the wife unless and until the allegation is proved. So the finding of the lower Court that the burden shifts on the wife in the facts and circumstances of the case, is not correct. The evidence of P. W. I is not sufficient to prove the allegation of adultery. The Lower Court went wrong in appreciating the evidence.

( 2 ) SRI Mohd Moiunuddin, learned Counsel for the respondent-petitioner, strongly contended that if on the ground of adultery divorce cannot be granted in the present case, but on the ground of desertion it has to be granted. The learned Counsel contended that on the ground of irretrievable incompatibility the wife is guilty of desertion. Granting of decree for divorce on the ground of irretrievable incompatibility is not the law. But the ground of desertion is entirely different. In the case of adultery the person making the allegation must prove it and the Court must be in a position to accept it. Both the allegations of adultery and desertion cannot go together as both require different types of proof and the material.

( 3 ) THEREFORE, we feel that the order of the Lower Court is not correct and the same is set aside. It is left open to the parties to work out the remedies available to them. The C. M. A is allowed. No cocts.

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