S. MURALIDHAR, J.

( 1 ) THIS appeal is directed against the judgment dated 16. 11. 2004 passed by the learned Additional District Judge (ADJ) Delhi in HMA No. 58 of 583 of 2003. By the impugned judgment the learned ADJ dismissed the appellant"s petition for divorce filed against the respondent on the grounds of adultery, cruelty and desertion. The ground for dismissal was that the appellant had not been able to produce before the Trial Court proof of her earlier marriage with one Shri kailash Jain having been dissolved by a decree of divorce by mutual consent.

( 2 ) IT is the appellant's case that she and Respondent No. 1 herein were married on 24. 1. 1985 at Delh. A male child Ravi Gupta was born on 4. 1. 1986. The appellant does admit that she was earlier married to one Shri Kailash Jain and had a daughter Sonia and a son Ashish from the said marriage. Subsequently, according to the petitioner, she and Shri Kailash Jain were divorced.

( 3 ) THE appellant"s petition for divorce was based on three grounds. First was that Respondent No. 1, the husband, was having an adulterous relationship with respondent No. 2, in whose house he was employed as a driver. The second was that respondent No. 1 had treated her with cruelty and the third that without any reasonable cause the Respondent No. 1 had deserted her and the family.

( 4 ) BEFORE the Trial Court Respondent No. 1 was served but chose to remain absent. Accordingly on 17. 12. 2002 the Trial Court found that he had refused service. It therefore ordered service by publication in the newspaper. That was also done. Finally on 20. 2. 2003 Respondent No. 1 was set ex parte by the Trial court. Respondent No. 2 was also set ex parte at the hearing on 4. 6. 2003.

( 5 ) THE appellant then led exhaustive evidence, including evidence by way of a CD, the affidavits of evidence of the husband of Respondent No. 2, and certain others who had observed both Respondents 1 and 2 to support her plea that respondents 1 and 2 led an adulterous life. In support of her plea that she and Respondent No. 1 had been married, the appellant produced photographs showing them living together, the birth certificate of their child Ravi Gupta which showed parentage as that of the Respondent No. 1 and certain other documents.

( 6 ) THE Trial Court first examined the aspect whether the earlier marriage of the appellant with Shri Kailash Jain stood dissolved. The conclusion reached by the Trial Court was as follows:

"the petitioner has alleged that she was earlier married to Sh. Kailash Jain. That respondent No. 1 was friend of Sh. Kailash Jain and would visit them frequently. Subsequently, petitioner and Sh. Kailash Jain were divorced. Respondent No. 1 then proposed the petitioner and petitioner and respondent No. 1 got married in a simple ceremony. The petitioner vide her subsequent affidavit has further submitted that she had obtained divorce from Shri Kailash Jain, her earlier husband, sometimes in the year 1984, by mutual consent. That she does not remember the date of divorce or name of the court except that it was in Tis Hazar. That decree of divorce was given by her to respondent no. 1, who never returned the same to her. Shri kailash Jain had agreed to give her divorce by mutual consent at the instance of respondent no. 1. An advocate was also engaged by respondent no. 1 for the purposes of representing her and Shri Kailash Jain. That she does not even know the present whereabouts of Shri Kailash Jain. Admittedly, the petitioner was earlier married with one Shri Kailash Jain. She has alleged that she had obtained divorce from her earlier husband by way of mutual consent. Petitioner has however failed to place on record any evidence, documentary or otherwise in support of her contention that marriage between her and her earlier husband has been dissolved as per law. Petitioner has, therefore, failed to prove that her earlier marriage with Shri kailash Jain been legally dissolved. 19. In view of the abo