JUDGMENT Deepak Gupta, J. This is unusual case where the husband has sought divorce on the ground of adultery more than 30 years after the marriage, The allegations are that the wife is living in adultery with the brother of the husband and that two sons, Surinder Kumar and Dinesh Kumar were born to the wife out of her adulterous relations with the elder brother, Jeeta Ram. 2. The petition under Section 13 of the Hindu Marriage Act for grant of divorce was allowed by the learned District Judge by holding that from the evidence on record it stands proved that the wife is living is adultery with Jeeta Ram, brother of the husband. He was relied upon various facts in this regard including the fact that in the school record the name of the father of the sons is entered as Jeeta Ram and not Rattan Singh. The trial court has also held that during evidence a new case was built up that Dinesh Kumar, one of the sons, had been adopted by Jeeta Ram, whereas there was no pleading in this regard. According to the trial court the wife and Jeeta Ram have been residing together for the last 22 years at Nohra, whereas the husband has been residing at Rajgarh. He has further relied upon the fact that as per the statements of the wife and Jeeta Ram whenever they came to Nahan to attend the case they lived together sometimes with relatives and sometimes in Hindu Ashram. He has also held that the allegations of the wife that the husband was living in adultery with one Nirmala Devi have not been proved and as such this allegation itself amounts to an act of cruelty entitling the husband to divorce. 3. This appeal has been filed by the wife, Basanti Devi, challenging the decree of divorcee granted by the learned District Judge, Nahan in H.M. Petition No. 10-HMA/3 of 2003, decided on 24.6.2004. 4. I have heard Ms. Jyotsna Rewal Dua, learned counsel appearing for the appellant, and Kanwar Kuldip Singh, learned Senior counsel appearing on behalf of respondent No.1-husband. The main grounds raised by Ms. 4. I have heard Ms. Jyotsna Rewal Dua, learned counsel appearing for the appellant, and Kanwar Kuldip Singh, learned Senior counsel appearing on behalf of respondent No.1-husband. The main grounds raised by Ms. Jyotsna Rewal Dua, Advocate, are that the petition was filed in the year 2003 with the allegations that the adultery has been taking place for the last 25 years and that there is no explanation for the delay in filing the petition. She further submits that no adultery as at present has been mentioned in the petition. According to her out of the four children of Basanti Devi, the two daughters, Raksha and Sheela have been admitted by the husband to be his children. She submits that Raksha Devi was born in the year 1975, thereafter Surinder Kumar was born in 1977, Sheela was born in the year 1979 and Dinesh Kumar was born in the year 1991. Therefore, she submits that the plea of the husband that Surinder Kumar is the son of Jeeta Ram does not appear to be correct. She also submits that there is no allegation that the husband had no access to the wife and, therefore, presumption under law is that the children born during the marriage are the children of the husband and wife. 5. On the other hand, Mr. Kanwar has supported the judgment of the learned District Judge. He submits that the act of adultery is a continuing act and has continued till today. According to him there has been no condonation of the act of adultery. He further submits that the wife and Jeeta Ram continue to live in adultery. The explanation given for the delay is that Jeeta Ram and the wife had held out to the husband, Rattan Singh that in the records that would get his name deleted as husband and the name of the Jeeta Ram would be entered as the husband of Basanti. Therefore, the petition was not filed earlier. 6.1 have gone through the entire evidence. The husband, Rattan Singh has appeared as PW-1. He states that his wife, Basanti Devi and brother, Jeeta Ram are living as husband and wife for the last 25 years. He also states that he has not filed the petition earlier since they had held out to him that in the record his name would be deleted as husband. The husband, Rattan Singh has appeared as PW-1. He states that his wife, Basanti Devi and brother, Jeeta Ram are living as husband and wife for the last 25 years. He also states that he has not filed the petition earlier since they had held out to him that in the record his name would be deleted as husband. He has produced the original school leaving certificates, Ex.PA and Ex.PB in which the name of the father of Surinder Kumar and Dinesh Kanwar is shown as Jeeta Ram. He also states that he had filed a petition for divorce in the year 2001, which was withdrawn with permission to file a fresh one on the same cause of action. Copy of the relevant order is Ex. PC. He states that his wife, Basanti Devi is working as helper in the Angan Bari at Nohra and his brother is Chowkidar in Gram Panchayat Nohra and both resides together in the Panchayat Ghar at Nohra. In cross examination he states that he, Jeeta and two other brothers have a joint house, though the land was been separated. He has denied the suggestion that Dinesh Kumar had been given to his brother, Jeeta Ram in adoption in the year 1985-86. He states that Surinder Kumar and Dinesh Kumar are not his sons, but the sons of Jeeta Ram. He has been confronted with the written statement where it is not recorded that the petition was not filed earlier since the wife and Jeeta Ram had held out to him that they would get his name changed in the record. He has also denied the suggestion that while getting Suridner Kumar admitted to school, he had got the name of Jeeta Ram entered with the intention of grabbing his property. He has denied the suggestion that he has an adulterous relations with Nirmala Devi. 7. PW-2 is one Subhash who is a resident of village Phangan which is about 6-7 k.m. from Nohra. He states that his aunt is the niece of Rattan Singh and Jeeta Ram and they belong to the same caste. According to him Jeeta Ram and Basanti Devi have always been living together and he always thought that they were husband and wife. He further states that Dinesh Kumar, son of Jeeta Ram had come to their house with the proposal to marry his sister. According to him Jeeta Ram and Basanti Devi have always been living together and he always thought that they were husband and wife. He further states that Dinesh Kumar, son of Jeeta Ram had come to their house with the proposal to marry his sister. He states that both, Jeeta Ram and Basanti Devi, live in Nohra. In cross examination he has denied the suggestion that his village is 22 k.m. away from Nohra. He also knows the other brothers. He admits that he is no on visiting terms with Jeeta Ram. 8. PW-3 is one Bhagtu, who is a resident of village Chatarna which is about 2 k.m. from Nohra. He states that Rattan Singh is a government employee posted at Rajgarh. He states that he always thought that Jeeta Ram and Basanti Devi are husband and wife as they always move around together. They come to Rajgarh together also. He states that they both reside at village Satani in Nohra. He further states that he has seen Basanti Devi and Jeeta Ram together for the last 24-25 years. According to him, he has never seen Basanti Devi residing with Rattan Singh during this period. He admits that he is Rajput by caste whereas the party to the dispute are Kolis and he also admits that he is not on visiting terms with the parties. He states that they only meet in weddings and in the bazaar. He states that for the last about 4-5 years he is residing at Rajgarh. He admits that he is on friendly terms with the husband, Rattan Singh. 9. RW-1 is the wife, Basanti Devi. She states that out of her marriage with Rattan Singh four children were born, namely, Raksha, Surinder Kumar, Sheela and Dinesh Kumar respectively. She states that her brother-in-law, Jeeta Ram had taken the younger son, Dinesh Kumar in adoption. She further states that in the Panchayat record the husband had wrongly got the name of Jeeta Ram entered as the father. She states that similarly in the school record the parentage has wrongly been shown to be that of Jeeta Ram. She states that she is not residing with Jeeta Ram and has no illicit relations with him. According to her in fact Rattan Singh is living in adultery with one Nirmala. She states that similarly in the school record the parentage has wrongly been shown to be that of Jeeta Ram. She states that she is not residing with Jeeta Ram and has no illicit relations with him. According to her in fact Rattan Singh is living in adultery with one Nirmala. She admits that the husband always wanted that in the Panchayat record her name should be entered as wife of Jeeta Ram. In cross examination she states that Jeeta is not married. She further states that she does not reside in Nohra, but resides in Satani which is about 2-3 k.m. from Nohra. According to her Jeeta resides at Nohra. She has denied the suggestion that she does not reside in Satani, but in Nohra with Jeeta. She does not remember the date, month or year of the alleged adoption of Dinesh Kumar. According to her he was 2-3 years old at that time. She further states that no written record was prepared with regard to the adoption nor any entry made in the Panchayat record. According to her, for the last 2-3 years the husband wanted to marry one Nirmala and, therefore, he filed the petition for divorce. In cross examination she states that she believed that Rattan Singh had illicit relations with Nirmala since they were residing together for the last 2 years in Rajgarh. She admits in cross examination that on 8 to 10 occasions on the various dates fixed, she and Jeeta Ram have come together to Nahan to attend the hearings in the case. She has denied the suggestion that they lived together in one room. According to her she resided in the house of her cousin (maternal uncles daughter). She states that Jeeta Ram also stayed there. 10. Jeeta Ram has appeared as RW-2. He states that he has no illicit relations with Basanti. He states that Rattan Singh had wrongly got his name entered as the father at the time of their birth and admission in the school. According to him he has taken the younger son in adoption. In cross examination he denied the fact that Basanti is living along with him in Nohra. He volunteered that Basanti along with him and two other brothers and their families resides in the joint house at Nohra. According to him he has taken the younger son in adoption. In cross examination he denied the fact that Basanti is living along with him in Nohra. He volunteered that Basanti along with him and two other brothers and their families resides in the joint house at Nohra. He has denied the suggestion that he had got the boys admitted in the school and got his name recorded as the father. He, however, could not explain or give any reason for his name being shown as father in the record. He further states that Rattan Singh had got married to one Nirmala about 6 years back and he had brought her home as his wife and that they being the relatives had given them money. He further stated that Nirmala had been brought to their joint house at Nohra in the presence of Basanti 4-5 times. He admits that he and Basanti come together to attend the hearings of the case at Nahan. According to him sometimes they stayed at Hindu Ashram and sometimes with some relatives. According to him they have stayed in Basantis cousins house about once or twice. 11. RW-3 is one Bhakti Devi, who is a resident of Nohra. She states that Basanti is living in village Satani for the last 20 years. This witness is the Pradhan of Mahila Mandal of that area. According to her, Jeeta Ram and Basanti do not have the relations of husband and wife. She further states that Dinesh Kumar was given in adoption to Jeeta Ram. In cross examination she admits that she is a Rajput. She does not know when Rattan Singh and Basanti got married. She denied the suggestion that Basanti and Jeeta live together in Nohra. 12. RW-4 is one Sunder Singh, who is also a resident of village Nohra. He states that Basanti is the wife of Rattan Singh, and they have four children. He states that Basanti and Jeeta live like sister-in-law and brother-in-law. 13. RW-5 is one Narinder Singh. He is a class-mate of the husband. He has no knowledge about any illicit relations between Basanti and Jeeta. 14. RW-6 Raksha Devi is the daughter of the parties. She is aged 28 years and states that she lives at Satani village. According to her all the children i.e. her brothers and sister are the children of Rattan Singh. He is a class-mate of the husband. He has no knowledge about any illicit relations between Basanti and Jeeta. 14. RW-6 Raksha Devi is the daughter of the parties. She is aged 28 years and states that she lives at Satani village. According to her all the children i.e. her brothers and sister are the children of Rattan Singh. She states that after the four children were born the father never came home. According to her there are no illicit relations between her mother and uncle. She has denied the suggestion that Jeeta and Basanti live together or that Dinesh and Surinder are the sons of Jeeta. She admits that relation between Rattan Singh and Basanti are not cordial 15. From the evidence discussed above, it is clear that the parties have not been living together for many years. The husband and his witnesses have put up a clear-cut case that Jeeta and Basanti have been living together for the last 22-23 years. The husband in his statement deposed that they were living together in the Panchayat Ghat at Nohra. He was not cross examined on this point. Though the wife has stated that she does not live in Nohra, but lives in Satani, her statement does not appear to be correct since Jeeta in his statement states that the wife Basanti is living at Nohra, though according to him she lives in the joint house and not alone with him. It would be pertinent to mention that both, Jeeta and Basanti have filed a common written statement and are represented by one lawyer. Therefore, why should there be contradictions in their stand with regard to the residence of Basanti. Serious allegations of adultery have been made against them. Despite this they continued to visit Nahan together and lived together sometimes in the Hindu Ashra, and sometimes with relatives. Though Mr. Jyotsna, Dua, Advocate, has strenuously contended that nothing has been proved to show on record that they lived in one room, the fact remains that they were travelling together and living together at one place. It is almost impossible for any party to prove the personal conduct of the other party. However, once it is proved that they were living together the burden shifted on them to have shown that they were living in separate rooms. It is almost impossible for any party to prove the personal conduct of the other party. However, once it is proved that they were living together the burden shifted on them to have shown that they were living in separate rooms. Another important aspect is that admittedly both, in the panchayat record as well as in the school record, the name of the father of Surinder and Dinesh is shown to be Jeeta. Jeeta is the Chowkidar of the Panchayat Ghar. Why did he not get these entries corrected when he was aware about the same? It is too late for him to state that these entries were made at the instance of Rattan Singh behind his back, .Even the daughter states that Rattan Singh had left the house after the birth of the children and there was no contact with him thereafter. What was the reason for this? The only reason can be the one given by the husband that his wife and brother were having an adulterous relationship. All these facts when considered together lead to only one conclusion that Basanti and Jeeta have been living together as husband and wife for the last many years. 16. Ms. Jyotsna Duea, Advocate, has relied upon the provisions of Section 114 of the Evidence Act and certain authorities, i.e. Chilukuri Venkateswarlu Vs. Chilukuri Venkatanarayana AIR 1954 SC 176; perumal Nadar (dead) by Legal representative Vs. Ponnuswami Nadar (minor) AIR 1971 SC 2352; Sohan Lall Vs. Smt. Dharampati AIR 1967 HP 38 and Dr. N.G. Dastane Vs. Mrs. S.Dastane AIR 1975 SC 1534 and contends that the burden was on the husband to prove that the children were not his. In the present case these judgments are not applicable. 17. Section 114 only gives rise to a presumption. This is a rebuttal presumption. In the present case another presumption which has arisen is from the school records where the name of the father is shown as Jeeta. Therefore, the question has to be decided on the other material and evidence on record. No cogent explanation has come forth as to why the name of Jeeta is mentioned as the father in the school record. With regard to Dinesh, a case has been set up that he was given on adoption to Jeeta. With regard to Surinder even this explanation is not there. No cogent explanation has come forth as to why the name of Jeeta is mentioned as the father in the school record. With regard to Dinesh, a case has been set up that he was given on adoption to Jeeta. With regard to Surinder even this explanation is not there. It is not normal human conduct for any person to get the name of some other person entered as the father. From the statement of the daughter, Raksha, it also appears that after children were born, Rattan Singh broke contact with the rest of the family. He was living in Rajgarh. In all probability it was either Basanti or Jeeta who got the children admitted in the school. It was for them to have explained why the name of Jeeta was shown as the father. In the absence of any such explanation the court can reasonably presume that his name was entered as the father because he was their father. 18. It is next contended that there is unexplained delay in filing the petition. Ms. Jyotsna Dua, Advocate, submits that in view of the provisions of Section 23(1) (d), the husband has failed to explain the delay and hence the petition should be rejected on this count. I am unable to accept this contention. First of all the act of adultery is a continuing act. Secondly in the present case the wife is also guilty of making scandalous allegations of adultery against the husband. These allegations have not been proved at all and the husband would be entitled to divorce even on the ground of cruelty, emanating from the false allegations leveled against him. There is no denying the fact that the husband and the wife have been living separately for the last 25 years. There is no chance of their living together and, therefore, in my opinion the learned District Judge was fully justified in allowing the petition of the husband under section 13 of the Hindu Marriage Act and dissolving their marriage by granting a decree of divorce. 19. In view of the above discussion the appeal is without any merit and the same is dismissed with no order as to costs CMP No. 192 of 2005 20. This application for grant of stay has become infructuous in view of the disposal of the main appeal. The application stands disposed of. CMP No. 191 of 2005 21. 19. In view of the above discussion the appeal is without any merit and the same is dismissed with no order as to costs CMP No. 192 of 2005 20. This application for grant of stay has become infructuous in view of the disposal of the main appeal. The application stands disposed of. CMP No. 191 of 2005 21. This is an application under Sections 24 and 25 of the Hindu Marriage Act for grant of alimony. According to the wife the husband is earning about Rs. 8,000/-per month, whereas she is only getting Rs. 300/- per month and, therefore, she is entitled to alimony. The application is being considered only under Section 25 of the Hindu Marriage Act since this court has upheld the decree of divorce Section 25(3) of the Hindu Marriage Act reads as follows:- "25. x x x x x x x x x x x (3) If the Court is satisfied that the party in whose favour an order has been made under this section has remarried or, if such party is the wife, that she has not remained chaste, or, if such party is the husband, that he has had sexual intercourse with any woman outside wedlock, [It may at the instance of the other party vary, modify or rescind any such order is such manner as the Court may deem just.]" 22. The divorce in the present case has been granted on the ground that the wife is living in adultery with respondent Jeeta, living in adultery with respondent Jeeta. Therefore, In my opinion the wife is not entitled to any permanent alimony. The reliance placed by Ms. Jyotsna Dua, Advocate, on the judgment of this court in Smt. Sarvo Devi vs. Lashkari ILR 1983, 180 and Kamlash vs.Ram Daya, Latest HLJ 2004 (HP) 311 is totally misplaced since both these cases were under section 24 of the Hindu Marriage Act which does not have a provision corresponding with Section 25(3). Therefore the present application is dismissed and stands disposed of.