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2001 DIGILAW 867 (MAD)

Sumitran Robert Petitioner v. Sophia Respondent

2001-08-06

M.CHOCKALINGAM

body2001
Judgment :- 1. This petition has been filed under Sec. 10 of the Indian Divorce Act to grant a decree of divorce by dissolution of the marriage between the petitioner and the respondent. 2. Petition averments are as follows: The marriage between the petitioner and the respondent was held with the consent of their respective parents on 5.1.1995 at Cathedral Church of St. George, Madras. They lived together at K-58, Anna Nagar East, Madras 600 102. At that time the petitioner was working with Ulka Advertising Agency, Madras while the respondent worked in Hotel Park Sheraton, Madras. She worked in Hotel Ambassador Pallava, Melior Agro, Madras and Dakshin Holiday Resorts, Madras. It is amply evident that she has a history of frequently shifting jobs, which is because she is incapable of interacting with people in a civil manner; and not capable of holding her temper under check and freely uses foul language. She refused to cook or even manage the house, which resulted in frequent and almost daily bickering, quarrels and disputes, instigated by the respondents divorced mother. On many occasions, she walked out of the house and had gone to her mothers residence, which was close by and her mother sheltered her and encouraged her by plotting against the petitioner. She and her mother continued to hurl abusive and unfounded allegations in the most offensive language against him. The respondent has developed an aversion to marriage and men in general, after her traumatic and abusive childhood. In February 1997, he left India for the Sultanate of Oman. Because of the tremendous mental cruelty meted out, he was forced to leave her and secure a foreign job. She got a job in Abu Dhabi and she went there on 18.3.1997. She phoned the petitioner before and after her arrival in Abu Dhabi. She frequently harassed the petitioner to send her money to maintain her lavish life-style. She had also grossly misused the ‘add-on’ credit card which the petitioner had taken in her name, as a result of which he was forced into deep financial debts. In April 1997, he had paid her a visit without informing her in advance and was shocked to find one Victor Chandrakanth and the respondent living together in Room No. 40 of Zakheer Royal Residence Hotel room in Abu Dhabi. When he became suspicious and scolded her, she did not reply. In April 1997, he had paid her a visit without informing her in advance and was shocked to find one Victor Chandrakanth and the respondent living together in Room No. 40 of Zakheer Royal Residence Hotel room in Abu Dhabi. When he became suspicious and scolded her, she did not reply. The respondent and the above said person were living in adultery for a number of days. Unable to control his anger, he returned to his work place in Muscat. After he has not spoken to her or sent money to her. He has not condoned the adultery. He does not know where the adulterer is. He is not in collusion with the respondent. As he does not know the residence of the adulterer at present, he has not been impleaded as a co-respondent. 3. The respondent filed a written, statement contending that the petitioner has not made out any ground for dissolution of marriage. Merely pleading adultery without even impleading the alleged adulterer exposes the hollowness of the pleadings. The non-joinder of necessary party goes to the very root of the allegations. Prior to getting engaged to the petitioner, she worked at Park Sheraton for nearly a year and half. After her engagement with him, she remained at home. The entire cost of the marriage was borne by the respondent. The respondent, her mother and the petitioner lived in a separate house arranged by her. The parents of the petitioner were spending money with the use of add-on credit card without her knowledge. She joined Hotel Ambassador Pallava and she has a good conduct service certificates from them. She left that job only on the insistence of the petitioner. She managed to get a job in Dakshin Resorts and she could come back home only at 11.00 pm. During this time he used to idle away his time by watching television and he was a chain smoker and had regular drinking habits also. She joined another job at Melior Agro. She saw an advertisement for a job at Abu Dhabi. He accompanied her for the interview at Mumbai. She had got a job much earlier than the petitioner. The allegations in para 8 of the petition are denied. She does not know Victor Chandrakant. The petitioner had created a fictitious person. He does not exist. She saw an advertisement for a job at Abu Dhabi. He accompanied her for the interview at Mumbai. She had got a job much earlier than the petitioner. The allegations in para 8 of the petition are denied. She does not know Victor Chandrakant. The petitioner had created a fictitious person. He does not exist. She had never been to Room No. 40 of Zaheer Royal Residence Hotel room in Abu Dhabi. After she came back to Chennai, he has sent two letters in which he does not mention about the alleged incidents stated in para 11 of the petition. There has been no adultery. There is no cause of action for seeking dissolution of marriage. She is ready to forget all the past events and is prepared to live with her husband. He has deserted her for reasons best known to him. She seeks for restitution of conjugal rights with the petitioner. Hence the petitioner may be dismissed and the prayer for restitution of conjugal rights may be allowed. 4. The following issues were framed: 1) Whether the petitioner is entitled for the divorce for the reasons stated in the petition? 2) Whether the petition is not maintainable in view of non-joinder of adulterer as co-respondent? 3) To what relief, the petitioner is entitled to? 5. ISSUES 1 to 3: — The petitioner has filed this petition for a grant of a decree of divorce by dissolution of his marriage with the respondent which took place on 6.1.1995. 6. The petitioner examined himself as P.W.1 Ex.P1 is an extract from the register of marriages of the Cathedral Church. Ex.P2 is their wedding card, Ex.D1 is his letter dated 15.6.96 to the respondent. Exs.D2 and D3 are also his letters dated 22.3.97 to her. Ex.D4 is the cover. Ex.D5 his letter 21.4.97. 7. Mr. Robert James was examined as P.W.2 Ex.D7 is the letter dt. 25.3.97 written by him to the respondent. 8. The respondent examined herself as D.W.1. Ex.D8 is the certificate given by Park Sheraton Hotel. The service certificate dt. 23.12.94 given by Hotel Park Sheraton is marked as Ex.D9. Ex.D10 series are the various certificates and letters issued by her different employers. Ex.D11 is the letter dated 3.2.97 written by the petitioner to her. The letter written by the petitioner from Muscat to her at Chennai is marked as Ex.D12 dated 4.2.97. The service certificate dt. 23.12.94 given by Hotel Park Sheraton is marked as Ex.D9. Ex.D10 series are the various certificates and letters issued by her different employers. Ex.D11 is the letter dated 3.2.97 written by the petitioner to her. The letter written by the petitioner from Muscat to her at Chennai is marked as Ex.D12 dated 4.2.97. Exs.D13 and D14 are the letters dated 18.2.1997 and 28.2.97 written by him to her. Ex.D6 is the letter dated 21.5.97. Ex.P4 is the letter dated 12.8.97 sent by her to the petitioner. Ex.P5 is the receipt for the money order sent by him to her at Abu Dhabi. The copy of the petition No. 1/99 for restitution of conjugal rights before the Family Court, Chennai is marked as Ex.P6. 9. Arguing for the petitioner, the learned counsel would submit that the marriage between the petitioner and the respondent was celebrated in Madras on 6.1.1995 at St. The copy of the petition No. 1/99 for restitution of conjugal rights before the Family Court, Chennai is marked as Ex.P6. 9. Arguing for the petitioner, the learned counsel would submit that the marriage between the petitioner and the respondent was celebrated in Madras on 6.1.1995 at St. George Cathedral Church as per the Christian rites and customs; that Ex.P1 is the extract of the marriage register; that Ex.P2 is the wedding card; that the marriage expenses were exclusively borne by the petitioners family; that the petitioner was employed in an advertising agency; that at the time of the marriage, the respondent was employed at Park Sheraton Hotel; that after the marriage the couple were living separately; that the petitioner was spending exclusively for the family expenses and the rental; that the respondent though did not contribute anything for the family expenses was spending lavishly; that the respondent by her nature a hot headed and temperamental and she used filthy language against the colleagues; that she shifted from one employer to another either she was asked to resign or resigned herself that the relationship of the petitioner with the respondent was not cordial, but miserable; that the petitioner could not give any money to his parents; that he was facing marital problems now and then that the petitioner who could not tolerate the sufferings that arose out of the troublesome and quarrelsome nature of the respondent found no option than to get away from the respondent and seek refuge in a foreign country by getting an employment; that the petitioner left for Muscat on 1.2.97 in view of his employment; that a month thereafter the respondent also left for Abu Dhabi as she got employment there; that when the respondent was in Abu Dhabi, the petitioner used to call her over phone every day; that whenever she asked money, the petitioner sent the same by money orders and by couriers; that the petitioner made a visit once on 29.4.97 without any prior information to her; that the petitioner who could not find her in the accommodation provided to her by her employer, on enquiry came to know that she vacated 15 days before and stayed nearby; that when he proceeded to meet her, he saw the respondent with Mr. Victor Chandrakanth; that the respondent told him that she could not stay in the quarters provided by her employer as she had quarrels with her flatmates, that at no point of time, she informed about her shifting from the flat to the place of Mr. Chandrakanths place; that the petitioner had heated arguments with the respondent regarding her stay with Mr. Chandrakanth; that the respondent could not give any explanation for her staying with him; that it is pertinent to note that though the respondent went to Abu Dhabi on a contract of service for two years, she left the place within a month to Madras; that the petitioner neither phoned to her nor correspond to her subsequently and the respondent also did not call him by phone; that the respondent phoned over to the petitioner informing him that she had met a lawyer and making arrangements to separate from him and further made a request to sign whatever documents that were necessary; that the petitioner informed about the incident and subsequent developments to his parents in India; that the petitioner who could not condone the serious adulterous conduct of the respondent has come forward with this petition for divorce; that the petitioner examined himself as PW1 and has categorically narrated all the above, in particular the adulterous conduct of the respondent; that the petitioners father examined as PW2 has categorically deposed among other things that in early May 1997 his son called him over phone from Muscat and informed him that he found his wife living with one Mr. Chandrakanth in one room; that he was very shocked to hear and could not give him any advise at that moment; and that after coming to know about the incident PW2 wrote a letter to Abu Dhabi to which she did not reply; that PW2 contacted the mother of the respondent and asked as to the address of her daughter, but she did not give; that after the respondent returned to India, she did not contact PW2, but PW2 phoned over to her and asked her to visit them, but the respondent flatly refused; that the petitioner has not added the adulterer as co-respondent since the petitioner could not get his parents address despite his sincere attempts; and thus by oral and documentary evidence, the petitioner has proved the adulterous conduct of the respondent and hence a decree of divorce has to be granted in his favour. 10. Vehemently opposing every one of the contentions of the petitioners side, the learned counsel for the respondent would submit that the petition seeking for divorce is not maintainable since it lacks bonafides and it has been filed with ulterior motive to harass the respondent; that the reasons given for the dissolution of marriage are utterly false to the knowledge of the petitioner; that the petition has got to be rejected in limine since the petitioner has not made out any ground for dissolution of marriage and mere pleading of adultery without any proof and without even impleading the alleged adulterer, cannot be entertained; that the petitioner has indulged in mudslinging; that the respondent neither had any relationship with the alleged adulterer nor she knew him; that the petition has got to be rejected on the ground of non joinder of the necessary party; viz. the adulterer; that it is true that the marriage between the parties took place on 6.1.1995 and they were living together for nearly about 2 years separately, but during that period she was continuously employed as borne out by records; that at the time of the marriage she was employed in Park Sheraton Hotel and subsequently it is true that she was employed in different hotels but the contention of the petitioners side that the respondent had a history of frequently shifting the job in view of her temperament, lack of civil manners and use of foul language is a false story; that the respondent was given a number of certificates by all her employers for her sincere service and those certificates have been marked as Exs.P8 to P10 series; that while the respondent was employed continuously and was spending for all the family expenditures, the petitioner not only remained unemployed, but also spent his time idle; that the petitioner has come with a false story to state that because of quarrelsome and troublesome nature he left India seeking a job in a foreign country; that the petitioner himself has admitted in his evidence that in order to get a better job he went to Muscat; that the correspondence between the petitioner and the respondent during the matrimonial life would clearly indicate that one had showered affection on the other and thus there was no disturbance in the matrimony; that in order to make out a case of adulterous conduct on the part of the respondent, the petitioner has created a fictitious person by name Victor Chandrakanth; that the respondent did not know any such person; that the respondent had no occasion to go to room No. 40 of Zakheer Royal Residence Hotel in Abu Dhabi as alleged by the petitioner; that the petitioner who came to know the name, age and nationality of the person has not even made an attempt to implead such a person; that the petitioner has not placed any proof to substantiate the adulterous conduct; that the respondent who went to Abu Dhabi on a contract of service for two years could not continue to be there, since she was home sick and she was telling the same to the petitioner; that the petitioner who came to know about that advised her to go back to India; that it is true that on 29.4.97, the petitioner came to Abu Dhabi, but he came over there to help the respondent in packing for the return to Madras and on 29.4.97, the petitioner was present at Abu Dhabi at the time when the respondent started to India; that the evidence of P.W.1 that he came to Abu Dhabi on 29.4.97 without any prior information is nothing but a tissue of falsehood; that the petitioner had written a letter to the respondent on 21.4.97 when he had already enquired about her tickets to India and following the same on information by the respondent, the petitioner came over to Abu Dhabi on 29.4.97 to help her in packing her for return to India; that even after herself coming over to India, the petitioner wrote Ex.D6 letter on 20.5.97, but he has not stated anything about the incident alleged to have taken place on 29.4.97 or any adulterous conduct of the respondent, but he has advised the respondent to take care of her health; that all these above would go to show that the petitioner has come with a false story of adulterous conduct against the respondent in order to get rid of and remarry, as he is a non resident Indian and thus the request of the petitioner has got to be rejected. 11. The petitioner herein a post graduate married the respondent, a graduate as per the Christian rites and customs on 6.1.1995 at St. George Cathedral Church, Mount Road, Madras, as evidenced by Ex.P1 extract from the register of marriages of the said church and Ex.P2 wedding card. At the time of the marriage the respondent was employed in Park Sheraton Hotel and continued to be in employment under various employers. Though it is contended by the petitioners side that he was employed prior to the marriage and he resigned the same soon after the marriage, no evidence is forthcoming from the petitioners side. It is not in dispute that from the time of marriage, the couple had a separate residence for a period of two years. The rival contention as to what was given to the respondent at the time of the marriage and who spent the marriage expenses do not require any consideration in this proceedings. The contention of the petitioners side that the respondent was constrained to switch over to different employments and at a short span of time because of her temperament, use of filthy language to her colleagues and lack of civil manners loses force in view of the conduct certificates issued by the different employers in respect of her sincere service, as exhibited under Exs.D8 to D10 series. It is contented by the petitioners side that he was forced to leave for Muscat in order to escape from the misery created by troublesome and quarrelsome nature of the respondent, which is falsified by his admission in his evidence that he left for Muscat on 1.2.97 because he got a better employment opportunity coupled with the correspondence with the respondent. 12. In this action, the petitioner has sought for grant of decree of divorce by dissolving his marriage with the respondent on the sole ground of adulterous conduct. This request is seriously contested by the respondent on two grounds viz. 1) the petition is not maintainable since the adulterer is not added as the co-respondent and 2) the petitioner has not strictly proved the adulterous conduct of the respondent as required by law. This request is seriously contested by the respondent on two grounds viz. 1) the petition is not maintainable since the adulterer is not added as the co-respondent and 2) the petitioner has not strictly proved the adulterous conduct of the respondent as required by law. The court is of the view that the first contention of the respondents side that the adulterer has not been added as the co-respondent and hence the petition is not maintainable has got full force in view of Sec. 11 of the Indian Divorce Act. Sec. 11 of the Act reads as follows: “11. Adulterer to be co-respondent: — Upon any such petition presented by a husband, the petitioner shall make the alleged adulterer a co-respondent to the said petition, unless he is excused from so doing on one of the following grounds, to be allowed by the Court: — (1) that the respondent is leading the life of a prostitute, and that the petition knows of no person with whom the adultery has been committed; (2) that the name of the alleged adulterer is unknown to the petitioner, although he has made due efforts to discover it; (3) that the alleged adulterer is dead. The petitioner has come forward with a specific averment that she was living in adultery for a number of days with one Mr. Victor Chandrakanth in room No. 40 of Zakheer Royal Residence hotel in Abu Dhabi. According to the petitioner, who is examined as PW1, he made a visit on 29.4.97; that he found the respondent with Victor Chandrakanth in that particular address and thus it would clear that the petitioner has got the full knowledge of the age, nationality and address of the alleged adulterer Mr. Victor Chandrakanth. In the instant case, the respondent has not only denied her adulterous relationship with the said Victor Chandrakanth, but has specifically averred that she did not know him. A very reading of the provision under Sec. 11 of the Act as stated above, would make it abundantly clear that it is a requirement of law that normally the adulterer must be made a co-respondent to the application seeking for divorce. The above section makes clear that the petitioner shall make the alleged adulterer a co-respondent to the petition unless the petitioner is excused from so doing on any three grounds specifically stated in the said provision viz. The above section makes clear that the petitioner shall make the alleged adulterer a co-respondent to the petition unless the petitioner is excused from so doing on any three grounds specifically stated in the said provision viz. that the respondent was leading a life of a prostitute and hence the petitioner knows of no person with whom the adultery has been committed; that the name of the alleged adulterer is not known despite due efforts to discover the same; and that the alleged adulterer is dead. In a given case where a divorce is sought for on the ground of adulterous conduct and the adulterer is not made a co-respondent, the petitioner must seek the permission of the court by making an application and satisfying the court as to the existence of any one of the aforementioned grounds. In the instant case, the petitioner has neither made an application to seek the permission of the court nor satisfied the court that any one of the afore stated grounds are applicable to him for not making the adulterer as a co-respondent. It is significant to note that this petition for divorce was filed in the year 2000, but PW1 has categorically deposed that he went to Abu Dhabi to enquire about the adulterer only a month before he gave evidence in the court. Hence the contention of the learned counsel for the petitioner that the present address of the adulterer is not known to the petitioner and hence he could not be impleaded is neither convicting nor acceptable. In the decision reported in AIR 1997 Orissa 162 {Madhusmita Nayak v. Simadri Nayak and another) the Special Bench has held as follows: — “In the case at hand, alleged adulterer has not been impleaded as a co-respondent. Until leave to dispense with the presence of the co-respondent, the suit cannot proceed. In absence of an application under Section 11 for excusing the petitioner-husband from not making the adulterer a co-respondent in the petition, the court has not jurisdiction to entertain the petition.” The Full Bench of the Calcutta High Court in a decision reported in AIR 1964 Calcutta 33 (V 51 C 5) (Susanta Kumar Mitra v. SM. In absence of an application under Section 11 for excusing the petitioner-husband from not making the adulterer a co-respondent in the petition, the court has not jurisdiction to entertain the petition.” The Full Bench of the Calcutta High Court in a decision reported in AIR 1964 Calcutta 33 (V 51 C 5) (Susanta Kumar Mitra v. SM. Himangshu Prova Mitra) has held as follows: — “(c) Divorce Act (1869), S. 11 - Husbands petition for dissolution of marriage on the ground of wifes adultery — Adulterer must be made co-respondent — Exceptions must be pleaded and Courts permission for not making adulterer co-respondent obtained. It is a requirement of the law that normally the adulterer must be made a co-respondent to the petition. Section 11 of the Divorce Act insists that the petitioner shall make the alleged adulterer a co-respondent to the said petition unless of course he is excused from so doing on one of the three grounds, mentioned therein. The only exceptions when the adulterer need not be made a party are those three and none others and even these exceptions can only be made by permission of the court and if allowed by the Court. Where the petitioner has made no application for permission of the court nor is there anything on the records that the Court allowed the petitioner not to include the adulterer as a co-respondent on any of the grounds recognized by S. 11 of t he Divorce Act, the petition is not maintainable.” Respectfully following the decision of the Calcutta and Orissa High Courts, this court without any hesitation has to hold that the petition is not maintainable on the ground of not impleading the adulterer as the co-respondent in the petition. 13. Needless to say that the adultery must be specifically and clearly averred and it has got to be reasonably proved. What are all pleaded in the petition in respect of the adulterous conduct of the petitioner runs as follows; — “11. In April 1997, the petitioner had paid her a visit without informing her in advance and was shocked to find one Victor Chandrakanth, Indian Christian, aged about 30 years, and the respondent living together in Room No. 40 of Zakheer Royal Residence hotel room in Abu Dhabi. When the petitioner became suspicious and scolded the respondent, she did not reply. In April 1997, the petitioner had paid her a visit without informing her in advance and was shocked to find one Victor Chandrakanth, Indian Christian, aged about 30 years, and the respondent living together in Room No. 40 of Zakheer Royal Residence hotel room in Abu Dhabi. When the petitioner became suspicious and scolded the respondent, she did not reply. The petitioner avers that the respondent and the above mentioned person were living in adultery for a number of days before being caught red-handed by the petitioner himself. Following this and unable to control his anger, the petitioner returned in anguish and in disgust from Abu Dhabi, to his work place in Muscat. After that, the petitioner has not spoken to the respondent or sent her money.” Even as per the averments of the petitioner, it is seen that he found the respondent with one Victor Chandrakanth, Indian Christian, aged about 30 years in Room No. 40 of Zakheer Royal Residence hotel in Abu Dhabi. The petitioner as P.W.1 has stated that he visited Abu Dhabi on 29.4.97; that he went to the accommodation which was allotted to the respondent by her employer; that he made enquiries about the respondent; that he was informed that she was staying nearby and when he came to Zakheer Royal Residence Hotel he found the respondent with the adulterer Victor Chandrakanth in his room. It remains to be stated that the petitioner has not either mentioned the date 29.4.97 nor has he stated about his enquiry made nor was he informed that she left her regular accommodation IS days prior to his visit to Abu Dhabi. It is an admitted position that the respondent though went to Abu Dhabi on a contractual service for two years and she stayed over for only one month till 29.4.97 when she left for India. It is the case of the petitioner that he made visit to Abu Dhabi on 29.4.97 without any prior information to the respondent and caught her red-handed when she was staying with Victor Chandrakanth. Contrary to the same, the respondent has stated that her journey to India on 29.4.97 was pre scheduled; that the petitioner knew about the same and he came over there in order to help the respondent in packing for the return to India. Contrary to the same, the respondent has stated that her journey to India on 29.4.97 was pre scheduled; that the petitioner knew about the same and he came over there in order to help the respondent in packing for the return to India. A perusal of Ex.D5 a letter written by the petitioner to the respondent on 29.4.97 would indicate that he had made enquiries about her return ticket to India. The petitioner himself has admitted that he has enquired in Ex.D5 letter as to “what is the latest about your return ticket to India”. This would clearly indicate that the petitioner had the prior knowledge about her plan to return to India, and hence the evidence of the petitioner that he was not aware that she was leaving for India at that time and he went over to Abu Dhabi on 29.4.97 without any prior information, has got to be rejected as false. The admiss ion by P.W.1 in the chief examination that Victor Chandrakanth was residing in a bachelors apartment would improbablise his case that the respondent was living with or staying for 15 days with Victor Chandrakanth in the bachelors apartments. According to the petitioner, following the incident there was a heated discussion between himself and his wife; that he asked about the respondents company with Victor Chandrakanth and that the respondent had no explanation to offer and that following the same he phoned over to PW.2 father of P.W.1. 14. The petitioner has written Ex.D6 letter to the respondent on 20.5.97. The contents in Ex.D6 letter would clearly falsify the case of the petitioner as to the adulterous conduct of the respondent. The said letter contains the following recitals: “Im sure you must be missing Abu Dhabi So sad, you had to return back home. What to do. Ive written to PIVA & to RCI to have the address changed to mine here. Im sending those letters also along with the colleague of mine whos going to Delhi for his annual vacation. Hes leaving now. Thats why I am in such a big hurry..I am making arrangements for cash. Ill soon send you the full amount including the 23 Grand () so that you settle an auntys dues in full. Im sending those letters also along with the colleague of mine whos going to Delhi for his annual vacation. Hes leaving now. Thats why I am in such a big hurry..I am making arrangements for cash. Ill soon send you the full amount including the 23 Grand () so that you settle an auntys dues in full. Ill try my best to send you some this month.” The very reading of the above recitals admittedly written by the petitioner within about 20 days from the date of the alleged incident on 29.4.97 would clearly and clinchingly indicate that the petitioner maintained unaffected cordial relationship with his wife. Had an incident of adulterous conduct of the respondent as alleged by the petitioner taken place on 29.4.97, the petitioner could not have written a letter as found under Ex.D6. The learned counsel for the petitioner submitted that after 29.4.97, the petitioner wrote two letters to the respondent out of which the petitioner has filed only one under Ex.D6 while he suppressed the other letter and had the letter been produced before the court that would clearly indicate the adulterous conduct of the respondent on 29.4.97. It is highly surprising that how and under what circumstances the petitioner wrote Ex.D6 letter on 20.5.97, if an incident of adulterous conduct of the respondent took place on 29.4.97. The petitioner had no explanation to offer. P.W.2 has deposed that in early May 1997 he was informed about the incident that took place at Abu Dhabi and he was shocked and attempted to contact the mother of the respondent and he also wrote a letter to the respondent to Abu Dhabi to which she never replied. It is not in dispute that the respondent left Abu Dhabi on 29.4.97 itself. Hence the evidence of P.W.2 that he came to know about the same from his son in early May 1997 and he wrote a letter to the respondent to Abu Dhabi cannot, but be false. All the above would falsify the case of the petitioner that the respondent was guilty of adulterous conduct. 15. Hence the evidence of P.W.2 that he came to know about the same from his son in early May 1997 and he wrote a letter to the respondent to Abu Dhabi cannot, but be false. All the above would falsify the case of the petitioner that the respondent was guilty of adulterous conduct. 15. Arguing on the standard of proof of adultery in matrimonial cases, the learned counsel for the petitioner would urge that the standard of proof required in a criminal case cannot be applied for the proceedings in matrimonial cases and the petitioner who alleged adultery is only required to prove the allegations by preponderance of probability. It cannot be disputed that the allegations as to the adultery have to be proved by preponderance of probability. But it has to be necessarily stated that it is well established that the petition for divorce on the charges of adultery should not be allowed merely on suspicion and doubts expressed by the party approaching the court. As stated above, the petitioner has clearly averred in paragraph 11 of the petition that he became suspicious of the conduct of the respondent. In the instant case, the averments made in the petition and the evidence adduced are not sufficient to hold that the respondent has committed adultery. On the contrary the available evidence would throw suspicion and doubt over the petitioners case whether an incident could have taken place on 29.4.97 as urged by the petitioners side. Thus on both grounds for not impleading the adulterer as co-respondent and on the ground of not proving the adulterous conduct of the respondent, the petition has to necessarily fail. The respondent has categorically admitted that at no point of time, the petitioner deserted herself. Under such circumstances, the request of the petitioner for restitution of conjugal rights in the counterclaim cannot be considered. The above issues are answered accordingly. 16. In the result, both the O.M.S. and the counter claim are dismissed. There shall be no order as to the costs.