JUDGMENT 1. The appellant is hereby assailing the correctness, propriety and legality of the decree of divorce which has been passed by IInd Additional District Judge, Mandsour, in the matter of suit No. 30/84, dissolving her marriage with respondent Rambilas. . 2. Shri P.K. Saxena with Shri Ashish Gupta has been heard for the appellant. Respondent was absent when this appeal was called on for hearing and none appeared for him, though this matter has been listed for final hearing as per the cause-list. . 3. The marriage between the parties took-place in the year 1972 or 1974 at village Dharakhedi. After the appellant attained puberty she went to cohabit with the respondent/husband and stayed with him as his wife for 4 years as contended by the appellant in the matrimonial petition filed by her for decree of restitution of conjugal right. She also contended that she conceived a male child which has been named as Suresh. According to her averment she was driven out of his house by the respondent in the month of December, 1982 when her husband/respondent alleged that she had conceived said male child named Suresh not from him but from some other person. After such departure she was not permitted to cohabit by the respondent and therefore she filed the petition for restitution of conjugal right. 3. In the matter of said matrimonial petition, the respondent made a prayer for decree of divorce in his favour and against the present appellant on the ground of adultery alleging that said son Suresh was the fruit of her adultery. The parties led the evidence which was appreciated by the learned trial Court. Learned trial Court dismissed the petition for restitution of conjugal right filed by the present appellant. However, he granted decree of divorce against the appellant and in favour of the respondent/husband and that is being assailed in this appeal. 4. Shri Saxena, learned Sr. counsel for the appellant argued that the learned trial Judge has committed an error in concluding that the appellant had committed adultery and was living in adultery and in the result granting decree of divorce against her and in favour of the respondent/husband. 4. Shri Saxena, learned Sr. counsel for the appellant argued that the learned trial Judge has committed an error in concluding that the appellant had committed adultery and was living in adultery and in the result granting decree of divorce against her and in favour of the respondent/husband. He placed reliance on provisions of section 112 of the Indian Evidence Act, 1872 (hereinafter referred to as Evidence Act, for convenience) for substantiating the argument He argued that learned trial Judge did not note that the birth of Suresh during the matrimonial wedlock between the appellant and the respondent was conclusive of legitimacy unless it was proved that the respondent had no access to appellant at any time when Suresh could have been begotten. He argued that burden of proving such non access was on respondent and in this case he has failed to prove it. He further submitted that the respondent has not led any evidence to prove that the birth of Suresh was not within 280 days after the association of the appellant and the respondent. Thus he has submitted that the said decree be set-aside by allowing this appeal. 5. After examining the impugned judgment and the evidence on record I come to the conclusion that the learned trial Judge committed the error in concluding that the appellant had committed sexual intercourse with some other person than the respondent and said Suresh was born out of that sexual intercourse. The learned trial Judge has committed the error in concluding that on that count, the respondent was entitled to get the decree of divorce against the appellant in view of the provisions of section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as Hindu Marriage Act, for convenience). 6. Sub-section 1 (i) of section 13 of the Hindu Marriage Act provides that on petition presented by either husband or wife, the marriage be dissolved by decree of divorce on the ground that the appellant has, after the solemnization of marriage had voluntarily sexual intercourse with any other person than his or her spouse. Appellant has stated in her evidence that after the marriage, after attaining the puberty she cohabited with respondent/husband Rambilash for four years and Suresh was conceived from him. Appellant has stated in her evidence that after the marriage, after attaining the puberty she cohabited with respondent/husband Rambilash for four years and Suresh was conceived from him. When this was the evidence of the appellant and the matrimonial tie was in existence between the appellant and the respondent, it was the duty of respondent to adduce such evidence which would have proved that appellant Shantabai had sexual intercourse with some other person than her husband-Rambilash. In this context, Rambilash examined himself, his father Nandlalji, his cousin Rameshwar and his neighbour Bhagatram. Respondent-Rambilash did not produce the extract from birth and death register from village Dharakhedi where said Suresh was born. No evidence has been brought by Rambilash to prove the date of birth of Suresh. Rambilash/respondent has stated in his evidence that after attaining the puberty, appellant-Shantabai was sent to his house for matrimonial cohabitation as per the traditions, by her father and she stayed with him for about six months. It is in his evidence that thereafter her father took her to his house where she stayed for 7-8 months. After that, as per his evidence, the appellant Shantabai was brought to his house and she stayed with him for about two months. During this period his relations were strained with his father-in-law, to that extent, that there was no conversation between both of them. After that again, the appellant Shantabai went to her parents house and stayed there for about 1 and 1/2 years till the time that she was brought again to the house of Ranmbilash by his father. It is his evidence that at that time he noticed that the appellant Shantabai was pregnant and he told about that to his family members. 7. Respondent/Rambilash further stated in his evidence that after that, he sent a message to the father of appellant Shantabai for talk in respect of said pregnancy of Shantabai and at that time her father told him that in the event of Shantabai delivering said child prior to nine months, he would take Shantabai to his house. He further stated in his evidence that after that talk, Shantabai delivered said Suresh within a span of six months. Thus he alleged' that said Suresh was not conceived by Shantabai from him but was the out-come of sexual intercourse by her with some other person than him. 8. He further stated in his evidence that after that talk, Shantabai delivered said Suresh within a span of six months. Thus he alleged' that said Suresh was not conceived by Shantabai from him but was the out-come of sexual intercourse by her with some other person than him. 8. Father of Rambilash, Nadlalji-PW -2 stated in the same terms as Rambilash stated in his evidence. In addition to that he stated in his evidence that when his wife suspected that Shantabai was pregnant after her last visit to their house, he had called a barbar woman for examining whether Shantabai was pregnant or not and when said woman examined Shantabai, she found that Shantabai was pregnant. 9. So far as the date of birth of Suresh is concerned, Rambilash had stated in his evidence that he had noted the date when he noticed for the first time that Shantabai was pregnant, in his diary. So also it is in his evidence that he had noted in -his diary the date of birth of Suresh. He answered in the cross-examination that he had not noted the date of departure of Shantabai to his parents' house prior to the said date when he noticed that Shantabai was pregnant. It is pertinent to note that said diary was not produced by Rambilash in this matter, in support of his contention. His father Nandlalji, stated that he did not note anywhere the date of birth of Suresh. He further stated that he was telling by estimation that Suresh was fully born child. His evidence is vague so far as the approximate time of birth of Suresh is concerned. 10. The evidence of Nandlalji, the father of respondent shows that said barbar woman was alive when the evidence was recorded in this matter. Said woman and the mother of Rambilash have not been examined in this case for the reasons best known to Rambilash. Therefore, there is no evidence on record for the purpose of knowing with certainty as to whether the appellant was not pregnant when she had left the house of Rambilash for visiting her parents' house which was her last departure from the house of Rambilash. 11. Blaming a woman of adultery and stamping a child as the out-come of adultery is a serious thing. Even charging a woman for extra marital intercourse is a serious thing. 11. Blaming a woman of adultery and stamping a child as the out-come of adultery is a serious thing. Even charging a woman for extra marital intercourse is a serious thing. Dissolving the marriage on such ground requires a close scrutiny of the evidence by the Court. The evidence on that point should be creating a full satisfaction in the mind of the Court about the existence of such fact. When such an averment has been made by the spouses in the matrimonial petition, the Court is to see whether sufficient evidence has been brought-forth by such. spouses for proving such averment. In the present case, respondent Rambilash has not brought the evidence even in respect of date of birth of Suresh for proving that Shantabai had delivered him within six months, from her departure from his house. When there was evidence of Shantabai on record, when she had stated on oath that Suresh was conceived by her from her husband Rambilash which was the out-come of her matrimonial association with him, a preemption was in existence in her favour in view of provisions of section 112 of the Evidence Act. It was necessary for the trial Court to appreciate the evidence on record for the purpose of coming to conclusion whether the evidence which was adduced by the respondent was sufficient to rebut that presumption. 12. While dealing-with the matrimonial cases, the Court has to be on guard while examining the evidence on record and passing the decree for divorce dissolving the marriage. No woman can be blamed for adulterous relations, adultery and no child can be called as illegitimate unless there is conclusive evidence in support of such conclusions. 13. Marriages are not to be dissolved lightly but in accordance with the provisions of Hindu Marriage Act. While finding-out whether a spouse praying for particular decree has proved his case which would fall within the provisions of sections 10, 11, 12 and 13 of the Hindu Marriage Act, the evidence is to be appreciated in proper perspective. The words used in those provisions have to be given proper weight age while recording the findings. The Court has to keep in mind that dissolution of marriage was not easily available till Hindu Marriage Act was enacted. Now in view of the provisions of Hindu Marriage Act, the strictriess in this respect has been liberalised. The words used in those provisions have to be given proper weight age while recording the findings. The Court has to keep in mind that dissolution of marriage was not easily available till Hindu Marriage Act was enacted. Now in view of the provisions of Hindu Marriage Act, the strictriess in this respect has been liberalised. But it is not too liberalised, the Court has to act keeping in view the intention of enacting the provisions of Hindu Marriage Act and the amendment thereafter. 14. In the present case the approach adopted by the trial Judge is totally erroneous. On insufficient evidence he has blamed the appellant by holding that she had committed sexual intercourse with some other person other than her husband and Suresh is the out-come of it. On insufficient evidence the learned trial Judge has put Shantabai to shame of such extra marital sexual intercourse and Suresh to be an illegitimate child. 15. In view of the discussion above, I have no hesitation in setting-aside the said decree which has been passed against the appellant and in favour of the respondent. Thus, the appeal is allowed with costs.