The court emphasized that allegations of adultery and desertion must be substantiated by credible evidence, which the appellant failed to provide.

JUDGMENT :

1. Heard Shri Abhishek, learned counsel for the appellant and Sri R.P. Tiwari, learned counsel for the respondents.

2. The present appeal has been filed under Section 19 of the Family Courts Act, 1984 against the judgment and order dated 23.02.2016 passed by the Principal Judge, Family Court, Jhansi, in Petition No.410 of 2013 (Firoz Karim Vs. Smt. Dimple Karim and another). By that order, learned court below has dismissed the divorce petition filed by the present appellant under Section 10 of the Indian Divorce Act, 1869 (hereinafter referred to as "the Act")

3. Primarily, the divorce petition had been filed by the present appellant on two grounds. First adultery and second desertion had been pleaded. As to the ground of adultery, according to the appellant, respondent no.2 had committed adultery. That pleading was made in the divorce petition. However, the same was not admitted. Rather the allegation of adultery was denied by respondent no.1. Respondent no.2 / adulterer did not appear in the proceeding. As to evidence of adultery, the appellant examined himself as PW-1, his mother Smt. Mercy Karim as PW-2 and Parvez Ahmed, neighbour as PW-3.

4. Learned counsel for the appellant would submit, in his testimony, the present appellant had clearly described the commission of adultery by alleging that respondent no.2 had often visited respondent no.1 at his home in the absence of the appellant. He had further proved that respondent nos.1 and 2 were often seen roaming around / travelling in a car belonging to respondent no.2.

5. According to the appellant, respondent no.1 had admitted of her forming an adulterous relationship with respondent no.2. The appellant further alleged having established payment of Rs.84,000/- made by respondent no.2 to respondent no.1 in her bank account as a result of adulterous relationship formed between those parties. The appellant further alleged that respondent no.1 admitted having formed such a relationship with respondent no.2.

6. Learned counsel for the appellant has further referred to SMS / text messages received and saved on the mobile phone of the appellant as were received by him from respondent nos.1 and 2 and as were elaborated and thus proved during the course of oral evidence.

7. Learned counsel for the appellant has then referred to the statement of PW-2 who proved that she had seen respondent nos.1 and 2 in an objectionable condition while the two were walking down the staircase of her house in April, 2012. Similarly, he has referred to the statement of PW-3 who allegedly described respondent nos.1 and 2 having visited an unnamed hotel premise.

8. On the strength of such evidence, the ground of adultery is described to have been proved sufficiently.

9. As to ground of desertion, relying on Section 14 of the Family Courts Act, 1984 and referring to the police complaint made by respondent no.1, dated 18.10.2014 as was part of the record of the learned court below, it has been vehemently urged that respondent no.1 deserted the appellant since 2012 inasmuch as she has admitted separate living from the appellant, since then.

10. On the other hand, learned counsel for the respondents would contend that entire fact allegations made in the divorce petition are false. Respondent no.1 has never committed adultery. No ingredient of adultery was proven. Only vague and general allegations were made as may never lead any Court to accept adulterous relationship formed by any party. He has referred to oral evidence of respondent no.1 to establish that she never admitted having committed adultery. As to oral allegations made by PW-1, PW-2 and PW-3, he would submit, sufficient doubt exists as to correctness of the statement made by those witnesses during their examination in chief.

11. The appellant never led any evidence to establish that he had witnessed any occurrence / transaction as may amount to adultery committed by the respondents. In fact, he chose to rely on hearsay. Neither he named the pers