IMPORTANT POINT
It is not necessary and really possible to prove adultery by any direct evidence.

G.D. Saxena, J.—This appeal is by the appellant wife against the judgment dated 16th December, 2011 in a Civil Case No.40A/2007 (HMA) of the Additional Principal Judge, Family Court, Gwalior (M.P.), granting a decree of divorce on the ground of adultery and cruelty in favour of respondent husband under Section 13(1)(i)(ia) of the Hindu Marriage Act 1955, while dismissing her petition filed under Section 9 of the Act for restitution of conjugal rights by the same judgment in Civil Case No.39A/07.

2. The facts are quite simple. The appellant married the respondent on 21st May, 2005 according to the rights of the Hindu religion. Immediately after the marriage, the husband and wife lived together at their permanent residence at Gwalior and later the respondent went back to join his duty. On 7th February 2006, when the respondent husband came on leave to his house he marked some changes in the behaviour of his wife. She did not allow him to perform conjugal relations. On 14th February 2006, he saw his wife in an objectionable position in making sexual relations with his younger brother Satyendra Singh. In the month of June 2006, she and his younger brother left the house of Gwalior for Pithampur district Dhar where they resided for six months period as husband and wife and led immoral life. She began to act in a cruel manner towards her husband and sometimes even using physical violence. He tolerated this, hoping that her conduct would improve but it went in vein. Ultimately, she expelled her husband/respondent and started living in her parental house. In order to implicate her husband, the FIR was also lodged by her for demand of dowry at Police Station against her husband and his relations. She also moved criminal complaint under Section 498A I.P.C. against her husband and his family before a Criminal Court. During prosecution of the complaint, the respondent husband had to suffer three days judicial custody. The respondent husband so apprehended actual danger to his life and therefore he filed the petition seeking divorce on the ground of adultery and cruelty against his wife.

3. The wife/appellant accepted the fact of marriage with the respondent, but she denied allegation of adultery, i.e., extra marital relations with Satyendra Singh, brother of her husband and the mental as well as physical cruelty against her husband. She asserted that her husband and other members of family in connection with an illegal demand of Maruti 800 car tortured her and expelled her out of her matrimonial house. She stated that her husband imputed false allegations regarding extra marital relations with her brother-in-law (Dewar) whereas she is willing to save her marital life and ready to resume her conjugal relations with her husband for which she had filed a petition under Section 9 of the Act. Accordingly, she prayed for dismissal of the petition filed by her husband for divorce.

4. The respondent husband in reply to the petition filed by the appellant denied that he had without any reasonable excuse withdrawn of his wife from the society and therefore prayed for dismissal of the petition.

5. The learned trial Judge tried both the petitions together, which were presented respectively by the husband and wife and decided by one and the common judgment.

6. While dealing with Civil Case No.40A/07, preferred by the respondent-husband, the trial Judge framed the following issues for consideration:

“(i) Whether the non-petitioner/wife had developed extra marital relations during the subsistence of her marriage with Satyendra Singh?

(ii) Whether the non-petitioner/wife had treated cruelly with petitioner husband?

(iii) Whether petitioner-husband is entitled to a decree of dissolution of marriage?

(iv) Relief and costs?”

7. On the other hand, in Civil Case No. 39A/07 moved by the petitioner-wife for restitution of conjugal rights, the trial court framed the following issues:

“(i) Whether the non-petitioner-husband without reasonable exc