The burden to prove adultery is on the party seeking dissolution of marriage, and cogent and convincing evidence is required to establish allegations of adultery and cruelty.

JUDGMENT

(Prayer: CMA filed under Section 55 of Indian Divorce Act, praying to set aside the decree dated 13.06.2011 in O.P.No.16 of 2009 on the file of learned District Court, Nilgiris.)

1. This appeal is filed against the order passed in O.P.No.16 of 2009 whereby, the District Judge, by order dated 13.06.2011, dismissed the OP filed by the husband seeking divorce.

2. The brief facts of the case is that:

(i) Appellant is the husband. 1st respondent is the wife. Appellant herein filed O.P.No.16 of 2009 seeking a decree dissolving the marriage between the appellant/petitioner and the first respondent held on 07.04.1989.

(ii) In the petition filed under Section 10(1)(I) and 10(1)(x) of Divorce Act, it is averred by the petitioner/husband that he married the first respondent on 07.04.1989, two girls were born to them, elder daughter was born on 27.03.1991 and younger daughter was born on 30.05.1992. Till the end of 2005, they lived happily. In 2006, the first respondent developed illicit relationship with the 2nd respondent and inspite of the petitioner persuading her to discontinue her relationship, she refused to heed to his advise. First respondent preferred false complaints against him before Police Officials. The petitioner was dragged to Police station for enquiry on the false complaints. According to the petitioner, the first respondent was violent and her unruly behaviour is on the increase and unable to bear the torture by the first respondent, the petitioner filed the OP seeking divorce.

(iii) (a) In the counter filed by the wife/first respondent, it is stated that petitioner is a person who always suspects the fidelity of the first respondent ever since the marriage and he used to harass the first respondent both mentally and physically by suspecting her fidelity. On the other hand, at no point of time, the first respondent/wife ill treated the petitioner.

(b) The petitioner was not taking care of the day to day needs of the first respondent and her daughters and as such they had taken up the matter before Pastor Joshua Deva Sagayanm God’s Church, Coonoor and the matter was compromised. The allegations in the petition are false.

(c) The petitioner assaulted the first respondent, ill treated, so complaint was given by the first respondent to All Women’s Police Station, Coonoor. The petitioner has not heeded to several request of the first respondent or the daughters for re union and without being maintained by the petitioner, the first respondent has no source of income to lead the day to day living of the first respondent and her daughters.

(iv) Second respondent also filed counter stating that the allegation that the first respondent developed illicit relationship with the second respondent is false and baseless. The second respondent is not aware of other allegations made in the petition. The petitioner had filed the petition with bald allegations against this respondent without any truth.

3. Before the trial court, on the side of petitioner, three witnesses were examined as P.Ws.1 to 3, Exhibits A. 1 to 6 were marked. On the side of the first respondent, R.W.1 to 4 were examined, Exhibits R.1 to R.3 were marked.

4. The trial court framed the following issues for consideration of the petition:

“1)Whether the first respondent was having illicit relationship with the 2nd respondent.

2)Whether the petitioner has proved by proper witness that the first respondent caused mental and physical cruelty.”

5. As far as 1st issue is concerned, the trial court based on evidence of plaintiff’s side witness and also the respondents side witnesses, found that as stated by the petitioner an audio casette wherein both first and second respondents would accept their illicit relationship, was not at all produced before the court. Further, R.W.4 (wife of 2nd respondent) also deposed that no incident happened on 03.01.2009 as alleged by the petitioner. She stated that she and her husband/2nd respondent are in good terms;