JUDGMENT Vinod K. Sharma, J.:-The husband-appellant by way of this appeal has challenged the judgment and decree dated 17.3.2006, passed by the learned Additional District Judge, Ambala, on a petition filed under Section 13 (1)(i), of the Hindu Marriage Act. 2. The facts pleaded in the divorce petition were, that the marriage between the parties was solemnised on 26/27.7.1996 at Chandigarh according to Hindu rites and ceremonies. Both the parties were divorcee. After the marriage, the parties lived together for 2/3 days. However, after 5/6 days of marriage, respondent No. 1 started quarreling with every member of the family and, therefore, they were separated on 2.10.1996. 3. It was pleaded case of the appellant that on 28/29.1.1999, respondent No. 1 left for certain place, but she did not reach the disclosed place and often absented from the house on similar pretexts. The appellant and his family members subsequently came to know that respondent No. 1 was spending her nights with respondent No. 2. It was also the pleaded case, that respondent No. 1 left for satsang on 10.3.1997, and thereafter she never came back and, in fact, went away with mother of respondent No. 2. She was also said to have left the house on 16.2.1997 and during this period she remained out of the house. It was the pleaded case of the appellant-husband that Station House Officer had summoned the appellant and family members, and on being satisfied advised the father and brothers of the appellant to separate the appellant and respondent No. 1, and writing to this effect was also executed. It was the case of the appellant that even after separation his life was made hell. 4. The main ground on which the divorce was sought was the adultery, on the plea that the appellant had never lived with respondent No. 1 after 8.3.1997. It was also the case, that earlier respondent No. 2 used to reside at H. No. 238, Vijay Niwas, Dayal Bagh, Ambala Cantt., and now the respondents were living together in H. No. 6, Sham Nagar, Ambala Cantt., which is the house of one Raunki Ram. The household articles belonging to the appellant were also taken away by respondent No. 1. Application in this regard was made to the police by the appellant and respondent No. 1 agreed to return the clothes etc., but nothing was done. 5. The household articles belonging to the appellant were also taken away by respondent No. 1. Application in this regard was made to the police by the appellant and respondent No. 1 agreed to return the clothes etc., but nothing was done. 5. The petition was contested, wherein the factum of marriage was admitted. Other averments made in the petition were denied. It was pleaded, that the appellant was earlier married twice, but he had turned out both the earlier wives. The allegation of demand of dowry was also levelled. It was also pleaded, that the plot to kill her was also made by the appellant by poisoning her but it did not materialise. The stand taken was, that she was turned out of the matrimonial house on 15.2.1997 and she took refuge in the Nirankari Bhawan for two days. It was further pleaded that complaint was made to the police on 20.2.1997 and thereafter the appellant and respondent No.1 started living together, separately from rest of the family. It was pleaded that the appellant again left the company of respondent No. 1 in the end of March, 1997 and after great efforts the appellant again started living with respondent No. 1 from April, 1997, but he again left respondent No. 1 on 13.5.1997. Respondent No. 1 delivered male child on 25.1.1998, and intimation regarding this was given to the appellant and his family members, but nobody came to see the child. The relationship with respondent No. 2 was denied. The allegations of adultery were also denied. 6. In the replication, the averments made in the petition were reiterated and that of written statement were denied. 7. On the pleadings of the parties, the learned Matrimonial Court framed the following issues: - 1. Whether respondent No. 1 has treated the petitioner with cruelty. If so, to what effect? OPP 2. Whether respondent No. 1 after the solemnisation of marriage had voluntarily sexual intercourse with any person other than her spouse. If so, to what effect? OPP 3. Whether the petitioner is estopped by his own act and conduct from filing the petition? OPR 4. Relief.? 8. The learned Matrimonial Court was pleased to hold, that the only ground of divorce set up in the divorce petition was that of adultery and there was no independent allegation of cruelty made in the petition. Therefore, issue No. 1 was decided against the appellant. OPR 4. Relief.? 8. The learned Matrimonial Court was pleased to hold, that the only ground of divorce set up in the divorce petition was that of adultery and there was no independent allegation of cruelty made in the petition. Therefore, issue No. 1 was decided against the appellant. 9. On issue No. 2, the learned Matrimonial Court held that the allegation of adultery is a serious charge, which was required to be proved beyond reasonable doubt. The learned Court further held, that adultery was required to be proved by the person who alleges it and the other party cannot be asked to prove the negative. The learned Matrimonial Court further held that standard of proof is higher to prove the adultery in a case under Section 13 of the Hindu Marriage Act, 1955 and adultery could not be proved by mere preponderance of probabilities. 10. In support of the plea of adultery, the appellant examined Raunki Ram as PW1, who stated that respondent No. 2 was his tenant. He deposed that respondent No. 1 used to come to the house of respondent No. 2 at 7.00 p.m. everyday and she used to go at 10.00 p.m. He further deposed that respondent No. 2 used to tell him that respondent No. 1 was his sister. However, in the cross-examination, he admitted that he did not have any rent note or any other written proof to show that respondent No. 2 or his father was his tenant. 11. PW2 Assistant from S.P. office, Ambala, only deposed about the complaint made to the S.P. office by the appellant. 12. PW3 father of the appellant and the appellant merely reiterated their case. 13. PW6 mother’s brother of respondent No.2 merely stated that he had seen both the respondents living together, but he admitted his enmity with respondent No. 2 and lodging of FIR against him. 14. The learned Matrimonial Court held that possibility of his deposing against respondent No. 2 due to enmity could not be ruled out. 15. The plea of the appellant that it was proved on record that respondent No. 1 started living separately from him on 3.3.1997 and thereafter they did not live together even for a single day, and birth of male child on 25.1.1998 conclusively proved that respondent No. 1 was living in adultery. 15. The plea of the appellant that it was proved on record that respondent No. 1 started living separately from him on 3.3.1997 and thereafter they did not live together even for a single day, and birth of male child on 25.1.1998 conclusively proved that respondent No. 1 was living in adultery. The appellant also took a plea that maternal uncle of respondent No. 1 had also deposed that respondent No. 1 was living with respondent No. 2, which proved the factum of adultery. It was further the case of the appellant that he wanted to produce the conclusive evidence by subjecting the child to DNA test, to which respondent No. 1 did not agree, which shows her guilty conscious. It was also pleaded that the Advocate representing respondent No. 2 was representing respondent No. 1 also, which showed their liaison with each other. Reference was made to the admission that she was visiting Central Jail, Ambala, to meet respondent No. 2, when he was confined there. It was also the contention of the appellant that it was the admission of respondent No. 1 in a petition filed under Section 125 Cr.P.C. that she was living separately since 20.2.1997 and, therefore, the charge of adultery stood proved. 16. The contention raised by the appellant was rejected by the learned Matrimonial Court in view of the fact, that in the petition, the appellant had taken a stand that respondent No. 1 left the matrimonial home on 10.3.1997 and thereafter she did not join the company of the appellant even for a single day. However, in the cross-examination, he deposed as under: - “I do not remember whether I and Saroj Bala had resided together as husband and wife upto 12/13.5.1997. Volunteered that probably we had resided together upto the month of March/April 1997.” 17. The learned Matrimonial Court also noticed that though Om Parkash Kashyap PW2, father of the appellant, in cross-examination denied the suggestion that the parties resided together upto 13.5.1997, but he volunteered that they stayed together upto 31.3.1997. Thus, the learned Court found the evidence to be not conclusive to hold that charge of adultery, and that the son was not born out of the loins of the appellant. Reference was made to Section 112 of the Evidence Act, which reads as under: - 112. Thus, the learned Court found the evidence to be not conclusive to hold that charge of adultery, and that the son was not born out of the loins of the appellant. Reference was made to Section 112 of the Evidence Act, which reads as under: - 112. Birth during marriage, conclusive proof of legitimacy – The fact that any person born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be 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.” 18. The learned Matrimonial Court rejected the plea of the appellant, that there was admission by respondent No. 1 that she left the matrimonial home on 20.2.1997, in view of the specific stand taken by the appellant in his petition that she left the matrimonial home on 10.3.1997, and further in view of the admission made by him in the cross-examination. 19. The learned Matrimonial Court held, that it was for the appellant to prove his case and could not have taken benefit of the weakness of the case of the respondent. 20. Mr. Amit Jaiswal, learned counsel, appearing on behalf of the appellant, has challenged the judgment and decree passed by the learned Matrimonial Court on the plea, that allegation of adultery was specifically pleaded, which was proved by examining six witnesses i.e. PW1 Raunki Ram, who categorically stated that respondent No. 1 used to visit the house of respondent No. 2 everyday and used to leave at 10.00 p.m. 21. This contention deserves to be rejected straightaway, as it is contrary to the pleadings of the appellant, as he stated that she used to spend nights with respondent No. 2. 22. Learned counsel for the appellant also pressed into service the statement of PW6 i.e. maternal uncle of respondent No. 2. This contention deserves to be rejected straightaway, as it is contrary to the pleadings of the appellant, as he stated that she used to spend nights with respondent No. 2. 22. Learned counsel for the appellant also pressed into service the statement of PW6 i.e. maternal uncle of respondent No. 2. However, main stress of the learned counsel for the appellant was on the pleadings of respondent No. 1 in a petition under Section 125 Cr.P.C., to contend that there was admission by respondent No. 1 that she was living separately since 10.2.1997 and, therefore, birth of child clearly proved the plea of adultery, as it was not possible for the appellant to bring any direct evidence. 23. Learned counsel for the appellant further contended, that learned Matrimonial Court committed an error in not drawing adverse inference for non-acceptance of DNA test by respondent No. 1. 24. The plea raised by the learned counsel for the appellant cannot be accepted. As already observed above, the appellant, while appearing as his own witness, did not deny the suggestion that the parties lived together upto May, 1997. Learned counsel for the appellant referred to para 12 of the judgment of the Hon’ble Supreme Court in Smt. Kamti Devi and another Vs. Poshi Ram, AIR 2001 Supreme Court 2226. Para 12 of the said judgment reads as under: - “12. Whether the burden on the husband is as hard as the prosecution to prove the guilt of the accused in a trial deserves consideration in the above background. The standard of proof of prosecution to prove the guilt beyond any reasonable doubt belongs to criminal jurisprudence whereas the test of preponderance of probabilities belongs to civil cases. The reason for insisting on proof is to guard against innocent being convicted and set to jail if not to extreme penalty of death. It would be too hard if that standard is imported in a civil case for a husband to prove non-access as the very concept of non-access is negative in nature. But at the same time the test of preponderance of probability is too light as that might expose many children to the peril of being illegitimatised. It would be too hard if that standard is imported in a civil case for a husband to prove non-access as the very concept of non-access is negative in nature. But at the same time the test of preponderance of probability is too light as that might expose many children to the peril of being illegitimatised. If a Court declares that the husband is not the father of his wife’s child, without tracing out its real father the fall out on the child is ruinous apart from all the ignominy visiting his mother. The bastardized child, when grows up would be socially ostracised and can easily fall into wayward life. Hence, by way of abundant caution and as a matter of public policy law cannot afford to allow such consequence befalling an innocent child on the strength of a mere tilting of probability. Its corollary is that the burden of the plaintiff-husband should be higher than the standard of preponderance of probabilities. The standard of proof in such cases must at least be of a degree in between the two as to ensure that there was no possibility of the child being conceived through the plaintiff-husband.” 25. The judgment, referred to above, goes against the case set up by the appellant. In this case not only the parties had possibility of access, but there was admission by the appellant in cross-examination that the parties lived together upto March/April, 1997. Suggestion that they lived together upto May, 1997 was also not denied. 26. Learned counsel for the appellant thereafter contended that learned Matrimonial Court failed to notice that respondent No. 1 has refused DNA test and, therefore, adverse inference was required to be drawn. 27. The plea that the adverse inference was required to be drawn, also cannot be accepted, as the application moved by the appellant for DNA test was got dismissed as withdrawn and the Court, therefore, was right in rejecting the second application, as it was not maintainable. 28. Even otherwise, the learned Matrimonial Court rightly did not order DNA test, as held by the Hon’ble Supreme Court in Smt. Kamti Devi and another Vs. Poshi Ram (supra), wherein the Hon’ble Supreme Court was pleased to hold as under: - “4. The marriage between appellant Kamti Devi and respondent Poshi Ram was solemnised in the year 1975. 28. Even otherwise, the learned Matrimonial Court rightly did not order DNA test, as held by the Hon’ble Supreme Court in Smt. Kamti Devi and another Vs. Poshi Ram (supra), wherein the Hon’ble Supreme Court was pleased to hold as under: - “4. The marriage between appellant Kamti Devi and respondent Poshi Ram was solemnised in the year 1975. For almost fifteen years thereafter Kamti Devi remained childless and on 4-9-1989 she gave birth to a male child (his name is Roshan Lal). The long period in between was marked by internecine legal battles in which the spouses engaged as against each other. Soon after the birth of the child it was sought to be recorded in the Register under the Births, Deaths and Marriages Registration Act. Then the husband filed a civil suit for a decree declaring that he is not the father of the child, as he had no access to the appellant-Kamti Devi during the period when the child would have been begotten. 11. We may remember that Section 112 of the Evidence Act was enacted at a time when the modern scientific advancements with Dioxy Nucleic Acid (DNA) as well as Ribonucleic Acid (RNA) tests were not even in contemplation of the legislature. The result of a genuine DNA test is said to be scientifically accurate. But even that is not enough to escape from the conclusiveness of Section 112 of the Act, e.g. if a husband and wife were living together during the time of conception but the DNA test revealed that the child was not born to the husband, the conclusiveness in law would remain unrebuttable. This may look hard from the point of view of the husband who would be compelled to bear the fatherhood of a child of which he may be innocent. But even in such a case the law leans in favour of the innocent child from being bastardized if his mother and her spouse were living together during the time of conception. Hence the question regarding the degree of proof of non-access for rebutting the conclusiveness must be answered in the light of what is meant by access or non-access as delineated above.” 29. There is another aspect of the matter. Section 13(1)(i) of the Hindu Marriage Act reads as under: - 13. Divorce. Hence the question regarding the degree of proof of non-access for rebutting the conclusiveness must be answered in the light of what is meant by access or non-access as delineated above.” 29. There is another aspect of the matter. Section 13(1)(i) of the Hindu Marriage Act reads as under: - 13. Divorce. - (1) Any marriage solemnised, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party- (i) has, after the solemnisation of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; 30. There was no evidence whatsoever regarding respondent No. 1 having sexual intercourse with respondent No. 2. The whole case of the appellant was based on inference to be drawn on account of birth of the child. As already observed above, the evidence produced on record, specially the admission of appellant, left no manner of doubt that he had access to respondent No. 1 and, therefore, no adverse inference was required to be drawn. 31. The learned Matrimonial Court, therefore, rightly decided the issues in favour of respondent No. 1 and against the appellant. 32. No ground is made out to interfere with the findings recorded by the learned Matrimonial Court. No merit. Dismissed, but with no order as to costs. ------------------