The burden of proof lies on the party alleging adultery, and lack of credible evidence leads to rejection of presumption.

B. PANIGRAHI, J.

( 1 ) IN this appeal, the wife has challenged the legality, validity and propriety of the decree of divorce passed by the learned Judge, Family Court, Cuttack in Civil Proceeding No. 100 of 1994 filed under S. 13 of the Hindu Marriage Act.

( 2 ) THE factual matrix leading to filing of this appeal is as follows :

( 3 ) THE marriage between the appellant and the sole respondent was solemnised on 11-7-1993 according to Hindu "rites and customs. After marriage both the parties lived as husband and wife till 26-9-1993. It is alleged by the respondent that on the 4th night of the marriage, he suspected the appellant was pregnant which was subsequently discovered. He was greatly shocked since prior to the marriage, she had illicit relationship with others. The wife appellant has however strongly denied about the said averment and has pleaded that out of their wed-lock, a male child was born, of course earlier than the normal period of gestation.

( 4 ) MR. Mohanty, learned counsel appearing on behalf of the appellant wife, has submitted that the learned Judge, Family Court has erred factually and legally in coming to the conclusion that the gestation period should be 9 months and 10 days. There are innumerable cases where the birth of a child can also take place prior to the full period of gestation, therefore, merely because there was premature birth of the baby no presumption can ever arise that the child was illigitimate. There has been practically no credible evidence other than above fact that the appellant was leading an adulterous life.

( 5 ) WE have carefully gone through the evidence placed before us and we do not find any credible evidence led by the respondent to establish that the appellant had extramarital relationship with any other person prior to the marriage. Since the burden lies on him to prove regarding the alleged adultery, we are of the opinion that the learned judge, Family Court has wrongly raised a suspicion and/ or presumption regarding the legitimacy of the child.

( 6 ) IT is found that the learned Judge while disposing of the case directed the respondent to deposit Rs. 25,000/- towards maintenance and educational expenses of the child. Be it noted here that no amount for permanent alimony was fixed after granting a decree of divorce on the finding that the appellant was leading an adulterous life. However, we do not agree with that part of the finding.

( 7 ) BOTH the spouses have been living separately since later part of 1993 and it is submitted by the learned counsel for the parties that there is no chance of their reconciliation at this stage. We were therefore, unable to make any attempt for their reunion. In this background, the only alternative left with us is to determine the permanent alimony payable by the respondent-husband to the appellant wife. In these hard days at least the appellant and her child should be assured with their food and clothing if not anything more besides the educational expenses of the child. While determining the quantum of permanent alimony the income of the husband has to be kept in mind. In this case, the husband has no fixed source of income. We, therefore, find it reasonable to ask the husband to pay rs. 1,50,000/ as permanent alimony payable within a period of two years. Be it noted here that the appellant does not have any other source of income other than depending upon her husband. Therefore, till such amount is paid to the appellant, we direct the respondent to pay maintenance at the rate of Rs. 800/- (rupees eight hundred per month from the month of October, 2002 payable on or before 10th of each succeeding month by way of money order/bank draft. This arrangement shall continue till the respondent pays Rs. 1,50. 000/- by way of bank draft in the name of the appellant whereafter he shall be absolved of the liability to pay monthly maintenance of rs. 800/

( 8 ) WITH the above direction, the Civil appeal is disposed of. Order accordingly.