In a divorce proceeding based on cruelty and adultery, the burden of proof lies on the petitioner to establish the allegations with cogent evidence. Mere allegations, uncorroborated by independent witnesses or substantial proof, are insufficient to prove cruelty or adultery.

Rakesh Tiwari, J.

Heard learned counsel for the parties and perused the records.

This appeal is preferred under Section 19 of Family Courts Act, 1984. It arises out of judgement and decree dated 30th December, 2011 passed by the learned Principal Bench, Family Court at Calcutta in Matrimonial Suit No. 182 of 2005, (Sri Anindya Deb versus Smt. Debjani Deb) filed by the husband under Section 13 (1)(I) and (ia) of the Hindu Marriage Act.

The judgement impugned aforesaid is assailed on the ground that the trial court erred in law as well as on facts in dismissing the Matrimonial Suit No. 182 of 2005 as it failed to appreciate that appellant had made out a clear case of cruelty and adultery by his wife as such the suit ought to have been allowed in his favour.

Counsel for the appellant also assailed the judgement impugned on the grounds that not only the learned trial court failed to appreciate the evidence and materials on record i.e the contents of the diary maintained by the wife in her own hand writing, which according to the plaintiff/husband clearly established her illicit relationship with her alleged paramour Siraj Roy respondent no. 2, according to him, this conduct of the wife not only caused immense mental agony to the petitioner but also caused an irretrievable break down in the marriage between the petitioner and his wife. Therefore, the trial court erred in law as well as facts in holding that petitioner had failed to corroborate his case by totally overlooking the materials on record exhibited by him. That these were clinching evidence to prove that respondent no. 1 was involved in some kind of adulterous relationship. Hence, in the facts and circumstances of the case, a decree for divorce ought to have been drawn up by the trial court in favour of the husband upon the ground of adultery and cruelty by the wife.

The case set out by the appellant Anindya Deb (husband of the wife respondent no. 1) is that his wife had a little bit of problem in her mental condition; she was ill-tempered and greedy lady who used filthy language when angry, that she sometimes shouted at the top of her voice and created a scene by trying to destroy the house-hold articles in the house; that he had noticed that his wife used to talk with several unknown persons on the cell-phone, given to her by her parents and whenever he made any enquiries as to whom she was talking to, she got annoyed and avoided answering him by using filthy language. According to the husband this raised suspicion in his mind that he was also threatened by her to be put behind bars by filing false proceedings under Section 498 A of the I.P.C and that he in the month of January for the first time came to know the name of the person with whom his wife used to maintain illicit relation. It is alleged that his wife used to note the messages received by her on her cell-phone, in her diary. From this he gathered that she had illicit relation with respondent. Not only this, she on 13/04/2005 confessed her relation and wrongful activities promising that she would conduct herself properly at all times.

The appellant/husband in support of his case had relied upon an incident mentioned in plaint wherein he alleged that on 30/06/2005 when he came back from the “Shrad Ceremony” of his maternal uncle, he heard cries of his wife from in the house and reaching his bed room, found her in compromising mood with respondent no. 2 Siraj Roy whose clothes were in disorder. On seeing the petitioner, his wife and Siraj Roy jointly assaulted him with fists. It is claimed by the petitioner that in order to escape Siraj left rushed towards the roof and fled down with aid of rain water pipeline of the house.

The aforesaid incident of Siraj Roy was coming down from the second floor of the petitioner’s house with the help of drain pipe said to have been witnessed by the inmates and neighbours who had had lodged F.I.R of the incident which was recorded in G.D No. 2930 dated 30th June, 2005 and al