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This appeal has been filed by the appellant-Nirmala Devi against the judgment and decree dated 01.09.1997 passed by the learned District Judge, Sonepat whereby the petition of the respondent-husband seeking dissolution of the marriage between the parties by a decree of divorce has been allowed.

The marriage between the parties was solemnized on 23.04.1982 at village Surakhpur, Tehsil Jhajjar, Distt. Rohtak according to Hindu rites and ceremonies. The parties were not earlier married. After marriage they lived as husband and wife at village Khanda, Tehsil and District Sonepat. According to the respondent-husband they had no issue from the marriage. It was alleged by the respondent-husband that since the time of Amit Kaundalsolemnization of their marriage, the appellant-wife used to visit her parents' house at her own will and wishes; besides, without the consent or permission of the respondent and his other family members. The appellant-wife on 14.12.1992 made a statement before the then learned District Judge, Sonepat in a petition under Section 9 of the Hindu Marriage Act, 1955 that was filed by the respondent-husband on 01.09.1992 that she was ready to accompany him to their matrimonial home from the Court itself. The respondent-husband, then visited the house of the appellant-wife on 27.12.1992 at village Surakhpur to bring her to his house. However, the brother of the appellant namely Mahabir Singh (RW-2) as also her mother; besides, she herself misbehaved with him. The appellant flatly refused to accompany the respondent-husband. The petition under Section 9 of the Hindu Marriage Act was ultimately dismissed as withdrawn on 14.12.1992. The behaviour of the appellant towards the respondent-husband and his family members, it is submitted, was quarrelsome from the very beginning. She used to leave the house of the respondent-husband without prior consent or permission. The appellant, it is alleged, had illicit relations with the younger brother of the respondent namely Nafe Singh (PW-2). Both were seen in a compromising position by the respondent-husband on 29.05.1993 at Sabzi Mandi, Delhi. A false case was registered against the respondent on 08.04.1994 at Police Station Kharkhoda under Sections 323 and 506 of the Indian Penal Code ('IPC'-for short) so as to harass the respondent-husband. The respondent- husband after knowing about the arrest of his parents and uncle went to the Police Station Kharkhoda with his younger brother Narain Singh. The SHO of the police station arrested him and his brother and he was subjected to cruelty in the presence of the appellant-wife. The appellant-wife for the last three years was living out of the house of the respondent-husband by leaving his company. She had been leading an adulterous life in village Mokhra (Rohtak) and she had conceived at that time. She tried to live with the respondent by force and with the help of the police. The respondent was pressurized by the Police to keep the appellant as his wife, which he refused. The appellant with her brother's wife on one occasion came to the school of the respondent-husband in village Pooth Khurd (Delhi) on 23.12.1993 where the respondent in those days was posted as a teacher. The appellant and her brother's wife both started creating nuisance in the presence of the staff members and students of the school. They quarrelled with him; besides, used filthy language. They were, however, sent back after persuasion by the staff members. The respondent-husband along with Pirthi Singh Lambardar and Chander Singh resident of Sehri went to the house of the appellant to persuade her and her family members but they flatly refused to reconcile the matter. The respondent-husband accompanied with other persons returned to their home. It is alleged that the appellant left the matrimonial home of the respondent- husband without and against the will and wishes of the respondent in February, 1992. All articles including clothes, utensils, ornaments etc. were taken by her while leaving his house. The attitude of the appellant during her stay at the matrimonial home with the respondent was insulting and disrespectful. Her illicit relations with the younger brother of the respondent and other persons of village Mokhra; besides, remaining out for the entire nights amounted to cruelty on her part. She had left the matrimonial home to indulge in illicit relations with others which caused great mental harassment and agony to the respondent-husband. Since February 1992, the appellant was residing out of her matrimonial home by deserting the respondent. No person from the side of the appellant tried to pacify the dispute between the parties and even did not try to visit the house of the respondent-husband.

The other allegation regarding adulterous life stated to be led by the appellant is that she had undesirable relations with one Ved Pal of village Mokhra. However, in the petition it is merely alleged that she had illicit relations with younger brother of the respondent and other persons at village Mokhra. The name of Ved Pal of village Mokhra is not mentioned in the pleadings. Jagbir Singh (respondent) while appearing as PW-1 in his deposition in Court stated that appellant had illicit relations with his brother (Nafe Singh); besides, she generally resides in village Mokhra with her sister. He does not state in his evidence that she had illicit relations with Ved Pal. He rather states that he saw the appellant with one Azad Singh in a compromising position on 28.05.1993. The name of Azad Singh is also not mentioned in the petition and neither is it stated in the examination-in-chief but has been mentioned in the cross- examination. The appellant Nirmala had appeared as a witness as RW-1 and she denied that she had any suspicious relation with Nafe Singh brother of the respondent. In cross-examination she denied as incorrect to suggest that she had been residing with one Ved Pal of village Mokhra. No suggestion was put to her that she was caught in a compromising position with Azad Singh. Mahabir (RW-2) brother of the appellant was examined by the appellant-wife and in his cross- examination he states as incorrect to suggest that at the time of his deposition the appellant was residing with Ved Singh of village Mokhra. Therefore, at places the appellant-wife is said to be having undesirable relations with Ved Singh of village Mokhra and at times it is mentioned as Ved Pal. This in fact goes to show the hollowness of the stand of the respondent-husband as regards the alleged illicit and undesirable realtions of the appellant. Besides, there is no mention of these names in the pleadings which is an infraction of Rule 6 of the Hindu Marriage (Punjab) Rules, 1956 referred to above, which enjoin that in a petition for divorce the petitioner shall be required to give particulars as nearly as he can of the acts of adultery alleged to have been committed by the respondent or respondents as the case may be; besides, the standard of proof for proving the charge of adultery in order to obtain a matrimonial relief is quasi criminal in nature and is to be established on the basis of proof beyond reasonable substantial doubt and not on mere probabilities or preponderances of evidence. Even otherwise the stand of the respondent that the child of the parties was not born from him is absolutely untenable. Ms. Ekta Thakur, Advocate for the respondent during the course of hearing placed on record a copy of the order dated 27.07.2000 passed by the learned Judicial Magistrate Ist Class, Sonepat. A perusal of the said order shows that a FIR was lodged by the appellant-Nirmala Devi against the respondent-Jagbir Singh and his brother Narian Singh. In pursuance of the said order dated 27.07.2000 passed by the learned Judicial Magistrate Ist Class, Sonepat, the accused Jagbir Singh (respondnet) and his brother Narain Singh were acquitted. The order was not part of the record of the trial Court. However, we consider that the same should be taken on record as it would be necessary to reach at a just conclusion in the case. After the enactment of the Family Courts Act, 1984, the rules of evidence in matrimonial disputes have been softened. Section 14 of the Family Courts Act reads as under:-

The said order dated 27.07.2000 passed by the learned Judicial Magistrate Ist Class, Sonepat shows that the appellant lodged FIR No.78 dated 09.04.1994 at Police Station Kharkhoda for the offences under Sections 323 and 506 read with Section 34 of the Indian Penal Code. The appellant in her deposition as RW-1 also states that she was turned out from the matrimonial home in April, 1994. Therefore, the said FIR registered on 09.04.1994 shows that dispute had occurred between the parties in April, 1994 which resulted in the registration of FIR. The police report (challan) was filed in the case on 22.04.1994. The respondent and his brother Narain Singh were acquitted on 27.07.2000 as Dr. Puran Singh (PW-1) and the eye witness namely Beer Singh (PW-2) had turned hostile and did not support the prosecution case. The said circumstances show that the dispute between the parties had occurred in April, 1994 and till then they were together and had access to each other. This in fact is the stand of the appellant even. Therefore, the child that was born on 30.09.1994 cannot by any stretch of imagination said to be illegtimate. Rather there is in fact a conclusive proof to the legtimacy of the child in terms of Section 112 of the Evidence Act, which enjoins that the fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days of its dissolution, the mother remaining un-married, shall remain conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten. Therefore, there is no doubt with regard to the legitimacy of the child of the parties who was born on 30.09.1994. The respondent has led no evidence to show that he did not have access to the appellant for a period of two hundred and eighty days prior to the birth of the child. The son was born during the subsistence of marriage between the parties and it cannot be said that it is not known as to whose son he was. Besides, Section 112 of the Evidence Act envisages a presumption of a child being legitimate. The presumption can be dislodged by strong evidence and not on the basis of mere probabilities. Therefore, findings on issue No.1 and 3 reached at by the learned trial Court are unsustainable and are set aside.