The burden of proof in adultery cases lies with the party alleging adultery, and the ground of irretrievable breakdown of marriage is not available under the Hindu Marriage Act, 1955.

JUDGMENT/ORDER

C.Saravanan, J. - The appellant is aggrieved by the fair and decretal order dated 31.12.2008 passed by the learned Additional District and Sessions Judge in H.M.O.P.No.196 of 2003.

2. By the impugned order, the learned Additional District and Sessions Judge has allowed the petition filed by the respondent under Section 13(1)(a) of the Hindu Marriage Act, 1955.

3. The appellant got married to the respondent on 23.05.1983. The respondent filed H.M.O.P.No.196 of 2003 to dissolve the marriage between the appellant and the respondent. It was the case of the respondent in the said proceedings that the appellant had deserted the respondent and had over a period of time developed physical intimacy with one Ranganathan and that the entire village came to know about the same. He alleged that the said Ranganathan was a bus conductor employed with MTC who used to frequent to their shop to buy cigarettes etc. looked after by the appellant. The respondent further alleged that the appellant used to frequent several places like cinema theatre, beach with the said Ranganathan. It was further alleged that in the pretext of visiting their daughter who was at that time studying in Madras, the appellant used accompany by the said Ranganathan. According to the respondent, though he had advised the appellant to mend her ways and to not to lead adulterous life, the appellant however continued to meet the said Ranganathan and lead an immoral life.

4. The respondent further submitted that on 12.07.2001, the appellant informed respondent that she was visiting Elankali Amman Temple, Thiruvalluvur with some of the tenants and left the matrimonial home. Two hours later while the tenants returned back, the appellant failed to come back home and was informed that the appellant left them in a white Ambassador Car bearing registration No. 3080 parked front of the temple.

5. On coming to know that the appellant had left in the aforesaid car and had not returned to the matrimonial home, the respondent informed the appellant's parents and started to search for the appellant, but she could not be found and that on 13.07.2001, after a police complaint was lodged with Vellavedu Police Station by the appellant's own brother he came to know about the Appellant. It is stated that the appellant had developed intimacy with the said Ranganathan.

6. According to the respondent, the appellant returned to her parents house after a week's time. Since no steps were taken to reunite the appellant with the respondent, the respondent was constrained to initiate the proceedings to dissolve the marriage solemnised between them on 23.05.1983 and prayed for dissolution of marriage.

7. The respondent denied the allegations. On the other hand, she stated that the respondent was abusive and used to frequently drink. The Appellant submitted that even after their daughter was born, the respondent used to come drunk consuming arrack. Over a period of time, her in-laws expressed their desire to have a grandson and force the appellant to abort pregnancy as soon as they realized the foetus was that of a female and started abusing her resulting in mental cruelty.

8. The respondent had met with an accident and fractured his right hand and therefore be the appellant and the respondent were asked to set up a new matrimonial home and a new business. The business however suffered loss as the respondent was alcoholic and therefore the appellant was forced to come back to his parents home with the child. Since the respondent was asked to help out in the textile business of his parents, the appellant was asked to take care of the petty shop by the respondent. In a counter, the appellant denied having any relationship with the said Ranganathan.

9. She submitted that Ranganathan used to visit the petty shop for purchasing cigarettes and nuts. She further submitted that Ranganathan's wife Revathi had approached the appellant for financial help and had borrowed some of her pieces of jewellery for pl