JUDGMENT : Vasanti A. Naik, J. Since the issues involved in these family court appeals are identical and since the parties to the appeals are the same, they are heard together and are decided by this common judgment. 2. Sangeeta, the appellant in Family Court Appeal No.58 of 2015 is the original respondent No.1 in Hindu Marriage Petition No.A839 of 2012, that was filed by her husband Sushil. So also, Kamlesh, the appellant in Family Court Appeal No.67 of 2015 is the respondent No.2 to Hindu Marriage Petition, bearing No.A839 of 2012, filed by Sushil for a decree of divorce against Sangeeta on the ground that Sangeeta had voluntary sexual intercourse with Kamlesh and hence, the marriage between Sushil and Sangeeta may be dissolved by a decree of divorce under Section 13(1)(i) of the Hindu Marriage Act. 3. Few facts giving rise to these family court appeals are stated thus– Sushil and Sangeeta were married at Nagpur on 25/04/1999 according to Hindu rites and customs. A girl child named Anushree and a boy named Gaurav were born from the said wedlock. On 03/03/2010, Sangeeta was admitted to the Hospital of Dr. Gaikwad for consuming poison and after she was discharged from the said Hospital, she did not join the company of Sushil and went to reside in the house of her parents. Immediately thereafter, Sangeeta filed a petition for a decree of divorce against Sushil, bearing Petition No.A-260 of 2010 on 31/03/2010. A written statement was filed by Sushil in the said petition on 13/12/2010. Along with the written statement, a counter claim for a decree of restitution of conjugal rights was made by Sushil. During the pendency of Hindu Marriage Petition bearing No.A260 of 2010, Sushil filed an amendment application seeking permission to file a counter claim for a decree of divorce on the ground that Sangeeta had voluntary sexual intercourse with Kamlesh. The Family Court did not permit the filing of the aforesaid counter claim in the petition filed by Sangeeta for a decree of divorce, however, liberty was granted to Sushil to file appropriate proceedings. Sushil, then filed the present petition bearing Petition No.A839 of 2012 for a decree of divorce under Section 13(1)(i), (ia) and (ib) of the Act on the ground that Sangeeta had deserted him, had treated him with cruelty and she had voluntary sexual intercourse with Kamlesh. Sushil, then filed the present petition bearing Petition No.A839 of 2012 for a decree of divorce under Section 13(1)(i), (ia) and (ib) of the Act on the ground that Sangeeta had deserted him, had treated him with cruelty and she had voluntary sexual intercourse with Kamlesh. We are not concerned with the petition filed by Sangeeta for a decree of divorce, as these family court appeals arise from the judgment of the Family Court granting a decree of divorce in favour of Sushil after recording a finding that Sangeeta had voluntary sexual intercourse with Kamlesh and that she had treated Sushil with cruelty. In the petition filed by Sushil, it was pleaded by Sushil that after the marriage, Sushil and Sangeeta happily lived together for nine years. It is pleaded that in the year 2008, the cousin sister of Kamlesh, namely Lata came to reside in the house of Kamlesh and frequently started visiting the house of Sushil and Sangeeta. It is pleaded that Sangeeta also started visiting the house of Kamlesh when Sushil went for his duties. During the relevant time, Sushil was posted as a Head Constable in Nagpur and Kamlesh was serving in Symbiosis Company as a Sales Executive. It is pleaded that after Sangeeta came in contact with Kamlesh, her behaviour and approach towards Sushil started changing and Sangeeta started fighting with Sushil on trifle matters. It is pleaded that the father of Sushil had told Sangeeta that it was not proper for Kamlesh to visit the house of Sushil and Sangeeta frequently. It is pleaded that Shilpa, the daughter of the elder sister of Sangeeta by name Rekha used to visit the house of Sangeeta and Sushil. It is pleaded that Shilpa was in love with Dinesh, the brother of Kamlesh. It is pleaded that Sangeeta and Kamlesh started developing an illicit relationship, as Sangeeta was greatly influenced by Kamlesh. It is pleaded that Sangeeta picked up quarrel with Sushil on 03/03/2010 and made a show that she had consumed poison, as a result of which Sushil admitted her in the Hospital of Dr. Gaikwad. It is pleaded that even before the incident, dated 03/03/2010, Sangeeta had stopped cooperating with Sushil and had prevented him from sleeping near her. It is pleaded that Sangeeta picked up quarrel with Sushil on 03/03/2010 and made a show that she had consumed poison, as a result of which Sushil admitted her in the Hospital of Dr. Gaikwad. It is pleaded that even before the incident, dated 03/03/2010, Sangeeta had stopped cooperating with Sushil and had prevented him from sleeping near her. It is pleaded that in the Hospital also, Sangeeta did not permit Sushil or his family members to meet her and only Kamlesh and his family members could see her. It is pleaded that after the discharge from the Hospital, Sangeeta went to her parental home. It is pleaded that Kamlesh started visiting the parental home of Sangeeta, after she started residing there. It is pleaded that as per a plan hatched by Sangeeta and Kamlesh at Ujjain, Sangeeta filed a divorce petition against Sushil, on 31/03/2010. It is pleaded that in the said petition Sushil filed a written statement and made a counter claim for restitution of conjugal rights. It is pleaded that in October, 2011 Sushil came in contact with Priyanka's sister Khushbu, who informed Sushil that Priyanka is desperate to meet him and wishes to tell him some important facts relating to the relationship between Sangeeta and Kamlesh. It is pleaded that Priyanka being the wife of Jitendera, the brother of Sangeeta was in the know of things and she made certain startling revelation. It is pleaded that Sushil asked Priyanka whether she could state the facts on affidavit and she readily agreed and narrated the facts about the illicit relationship between Kamlesh and Sangeeta. According to Sushil, Priyanka narrated the following facts to Sushil:- “From 17/05/2010 Sangeeta started residing at Prem Nagar in the house of her sister Rekha and Kamlesh started visiting her in the said house. That Sangeeta and Kamlesh were involved in physical relationship in the house of Rekha in Prem Nagar. That Jitendra did not have a job and hence in January, 2010, Kamlesh secured a job for Jitendra in his company. That Priyanka and Jitendra started residing at Yavatmal and Kamlesh brought Jitendra, Priyanka and the mother of Sangeeta to Yavatmal, on 20/09/2010. That ten days later, Kamlesh brought Sangeeta to Yavatmal in his car and Kamlesh started visiting Jitendra and Priyanka's house in Yavatmal twice a week. That Priyanka and Jitendra started residing at Yavatmal and Kamlesh brought Jitendra, Priyanka and the mother of Sangeeta to Yavatmal, on 20/09/2010. That ten days later, Kamlesh brought Sangeeta to Yavatmal in his car and Kamlesh started visiting Jitendra and Priyanka's house in Yavatmal twice a week. That there were only two rooms in the house and that Kamlesh and Sangeeta used to sleep in the front room and Jitendra and Priyanka used to sleep in the kitchen. That the two rooms were partitioned only by a curtain and once when Priyanka awoke in the night, she saw Kamlesh and Sangeeta in a compromising position and they were involved in physical intercourse two or three times. That Priyanka was shocked, but she did not disclose this fact to anybody. That Kamlesh gifted a mobile phone to Sangeeta bearing No.9422141139 at Yavatmal and Sangeeta used to talk to Kamlesh from the said mobile. That Sangeeta was using a different mobile bearing No.9579335665 and she talked with Kamlesh from that mobile also. That when Sangeeta was residing with Jitendra and Priyanka at Yavatmal, on 10/01/2011 Kamlesh came to Yavatmal along with Rekha Bagal, (elder sister of Sangeeta), her husband Baba Bagal and her daughter Shilpa Bagal in his car and all of them proceeded for Nashik by car. That Kamlesh and Sangeeta were sitting on the front seats and all the rest were sitting on the back seat. That in Trambakeshwar, Kamlesh and Sangeeta stayed in one lodge whereas all others stayed in another lodge. That at that time Sangeeta was using mobile phone bearing No. 9579335664 that was registered in the name of Amol Bagal, the son of Rekha.” It is pleaded in the Hindu Marriage Petition that Sushil came across Prashant Bhoskar in December 2011 and Prashant revealed certain facts to Sushil pertaining to the illicit relations between Sangeeta and Kamlesh. It is pleaded that Sushil asked Prashant to state the facts on affidavit and Prashant narrated the facts on affidavit and handed over the affidavit to Sushil. According to Sushil, Prashant revealed the following facts to him: “That in December 2010, Prashant and his wife had decided to go to Chikhaldara. That Kamlesh, Prashant and his wife came to Yavatmal in the car of Kamlesh. That Kamlesh brought Sangeeta, her niece Shilpa and Kamlesh's younger sister Neha in the car and then they went to Amravati. According to Sushil, Prashant revealed the following facts to him: “That in December 2010, Prashant and his wife had decided to go to Chikhaldara. That Kamlesh, Prashant and his wife came to Yavatmal in the car of Kamlesh. That Kamlesh brought Sangeeta, her niece Shilpa and Kamlesh's younger sister Neha in the car and then they went to Amravati. In Amravati, Prashant and his wife slept in one room and Kamlesh, Sangeeta, Shilpa and Neha slept in another room. That in Chikhaldara, for the stay of Prashant, his wife, Kamlesh, Sangeeta, Shilpa and Neha for two nights and three days, three cottages were booked. That Prashant and his wife slept in one cottage, Shilpa and Neha slept in another cottage and Kamlesh and Sangeeta slept in the third cottage. That Kamlesh took the photographs of Sangeeta and himself in his mobile, but when the battery of his mobile was down, he asked Prashant to take their photographs. Prashant took their photographs and stored the images in the computer. According to Prashant, Kamlesh and Sangeeta lived like husband and wife during their stay at Chikhaldara in December 2010.” It is pleaded by Sushil in his petition that after securing the aforesaid information from Priyanka and Prashant, a complaint was filed by him against Kamlesh for an offence punishable under Section 497 of the Indian Penal Code. It is pleaded that the criminal complaint was registered as Criminal Complaint Case No.2611 of 2011. It is pleaded that during investigation under Section 202 of Criminal Procedure Code, the Investigating Officer collected CDR from the respective cellular companies. It is pleaded that it is clear from the information supplied to Sushil by Priyanka and Prashant that Sangeeta had voluntary sexual intercourse with Kamlesh in the house of her elder sister Rekha at Prem Nagar, her brother Jitendra at Yavatmal, in the rest house in Trimbkeshwar in January 2011 and in the guest house at Chikhaldara in December 2010. Since Sangeeta and Sushil were residing separately from 03/03/2010, after Sangeeta was admitted to Gaikwad Hospital, Sushil sought a decree of divorce on the ground of desertion. Apart from seeking a decree of divorce on the ground that Sangeeta had voluntary sexual intercourse with Kamlesh, Sushil also sought a decree of divorce on the ground of cruelty. Sangeeta filed her written statement and denied the claim of Sushil. Apart from seeking a decree of divorce on the ground that Sangeeta had voluntary sexual intercourse with Kamlesh, Sushil also sought a decree of divorce on the ground of cruelty. Sangeeta filed her written statement and denied the claim of Sushil. Apart from denying all the adverse charges and allegations that were levelled against her, she denied that she and Sushil happily resided in the matrimonial house for nine years. Sangeeta denied that Sushil was a good, loving and caring husband and was providing her with all the comforts of life. After denying the allegations levelled against her in totality, Sangeeta pleaded that Sushil was of extremely suspicious nature and due to the said nature, Sushil used to torture her. It is pleaded that she was harassed, beaten up and threatened by Sushil in a very cruel manner. It is pleaded that she was sometimes beaten by a belt on a wrongful assumption that in the absence of Sushil, somebody had visited their bed room as the toilet was stinking. It is pleaded that Sushil used to beat her under the influence of liquor. It is pleaded that Sushil did not permit her to talk to any man and he used to spend time on spying. It is pleaded that under the influence of liquor, Sushil not only gave beating to her on several occasions, but he used to go to backyard to ensure whether there was any male in the backyard with whom she had a relationship. It is pleaded that sometimes under the influence of liquor, Sushil passed urine in any corner of the room. It is also pleaded that Sushil has made wild allegations against her character and she would be entitled to a decree of divorce, in the absence of proof of the same. It is further pleaded by Sangeeta in her written statement that she is ready for a decree of divorce, but not on the ground that she had voluntary sexual intercourse with Kamlesh. Sangeeta sought for the dismissal of the Hindu Marriage Petition filed by Sushil. Kamlesh also filed a written statement and denied the claim of Sushil. Nothing much was stated by Kamlesh in his written statement except the fact that he did not have any illicit relationship with Sangeeta as pleaded by Sushil. Sangeeta sought for the dismissal of the Hindu Marriage Petition filed by Sushil. Kamlesh also filed a written statement and denied the claim of Sushil. Nothing much was stated by Kamlesh in his written statement except the fact that he did not have any illicit relationship with Sangeeta as pleaded by Sushil. It is pleaded that he had approached Sushil for an insurance policy and that is how, the parties had met. 4. On the aforesaid pleadings of the parties, the Family Court framed the issues and Sushil, Sangeeta and Kamlesh examined them selves. Sushil and Sangeeta also examined some witnesses. Sushil examined as many as seven witnesses including him self. Sushil examined Prashant Bhoskar, who had tendered the affidavit in which the fact about the stay of Sangeeta with Kamlesh in one cottage in Chikhaldara was narrated. Sushil examined Yogita Chafale, the Investigating Officer, in the enquiry in the proceedings filed by Sushil under Section 497 of the Indian Penal Code. Sushil also examined Sanjay Wagh, the Manager of Bhakt Niwas, Trimbkeshwar and Govind Dore, the Manager of Durvankar Lodge, Trimbkeshwar. Sushil examined Dr. Vijay Ponkshe to prove that poison traces were not found in the blood and urine samples of Sangeeta after she was admitted to Gaikwad Hospital on 03/03/2010. Vidya Gaidhane, the Warden in Savitribai Fule Mahila Karmachari Vasti Gruha was examined to show that Sangeeta was living in the Vasti Gruha after he filed the petition for a decree of divorce. Sangeeta examined herself and also examined her mother Pushpamala. Kamlesh examined himself and closed the evidence on his side. 5. On an appreciation of the material on record, the Family Court by the judgment and order dated 26/05/2015, dissolved the marriage between Sangeeta and Sushil under Section 13(1)(i) and (ia) of the Hindu Marriage Act, 1955 by recording a finding that after the solemnization of her marriage with Sushil, Sangeeta had voluntary sexual intercourse with Kamlesh and she had treated Sushil with cruelty. The judgment of the Family Court is challenged by Sangeeta in Family Court Appeal No.58/2015 and by Kamlesh in Family Court Appeal No.67/2015. 6. Mrs. Chandekar, the learned Counsel for Sangeeta, submits that the Family Court was not justified in holding that Sangeeta had voluntary sexual intercourse with Kamlesh and hence, Sushil was entitled to a decree of divorce under Section 13(1)(i) of the Hindu Marriage Act, 1955. 6. Mrs. Chandekar, the learned Counsel for Sangeeta, submits that the Family Court was not justified in holding that Sangeeta had voluntary sexual intercourse with Kamlesh and hence, Sushil was entitled to a decree of divorce under Section 13(1)(i) of the Hindu Marriage Act, 1955. It is stated that before Sushil filed the petition for divorce on the aforesaid ground, Sangeeta had filed a petition for divorce on 31/03/2010, that was registered as Petition No.A260/2010. It is submitted that in the said petition, though Sushil had filed the written statement on 13/12/2010, it was not pleaded by him that Sangeeta had illicit relationship with Kamlesh. It is stated that there is no pleading about any relationship, much less an illicit relationship between Sangeeta and Kamlesh in the written statement filed by Sushil on 13/12/2010. It is further stated that not only is the relationship between Sangeeta and Kamlesh not mentioned in the written statement filed by Sushil on 13/10/2010, but not a word about the said relationship also finds place in the evidence of Sushil in Hindu Marriage Petition No.A-260/ 2010, filed by Sangeeta though the evidence was recorded in the year 2012. It is stated that after the amendment application moved by Sushil in the petition filed by Sangeeta for a decree of divorce was rejected and he was not permitted to file the counter claim for seeking a decree of divorce under Section 13(1)(i) of the Hindu Marriage Act, 1955, he has filed the instant petition for a decree of divorce on the ground that Sangeeta had voluntary sexual intercourse with Kamlesh. It is stated that the allegations levelled by Sushil against Sangeeta are not based on his personal knowledge, but are solely based on the information allegedly supplied to him by Priyanka, the wife of Sangeeta's brother Jitendra, who was separated from Jitendra at the relevant time and Prashant Bhoskar, who was on inimical terms with Kamlesh. It is stated that since Priyanka has not tendered oral evidence, her affidavit could not have been considered by the Family Court for holding that Sangeeta had voluntary sexual intercourse with Kamlesh. It is submitted that the evidence of Prashant is liable to be discarded as he has admitted in his cross-examination that he had received a legal notice from Kamlesh for returning an amount of Rs.1,78,528/-, which Prashant was required to pay to Mohit Agro Agency. It is submitted that the evidence of Prashant is liable to be discarded as he has admitted in his cross-examination that he had received a legal notice from Kamlesh for returning an amount of Rs.1,78,528/-, which Prashant was required to pay to Mohit Agro Agency. It is stated that the fact that Prashant and Kamlesh were on cross terms could be substantiated from the admission of Prashant in his cross-examination that both of them had filed complaints against each other in the month of May 2012 and the Police had registered the case as non cognizable. It is stated that it is apparent from the admissions of Prashant in his cross-examination that he was on extremely bad terms with Kamlesh and, therefore, had an axe to grind against him. It is stated that the Family Court had erroneously held that though Prashant was not on good terms with Kamlesh and there was a reason for him to implicate Kamlesh, there was no reason for Prashant to involve Sangeeta in the matter and make allegations against her. It is stated that the CDR placed by Sushil on record is not proved. It is stated that Sushil has neither examined any responsible person from the Cellular Companies nor is it proved by Sushil that Kamlesh and Sangeeta were talking to each other from the mobile phones that are mentioned in the CDRs. It is stated that the identity of the persons– owners and possessors of cell phones is not proved nor is it proved as to who were actually using the cell phones with the particular numbers. It is further stated that the Family Court committed a serious error in holding that it was necessary for Sangeeta to have examined Priyanka and also her niece Shilpa, if she wanted to disprove the allegations levelled by Sushil against her. It is submitted that the burden of proof would lie only on Sushil and the burden would not have shifted in the case like the one in hand on the party against whom allegations of illicit relationship are made. It is submitted that the burden could not have been cast upon Sangeeta to prove a negative fact as is done by the Family Court. It is submitted that the burden could not have been cast upon Sangeeta to prove a negative fact as is done by the Family Court. It is stated that the judgment of the Family Court is liable to be set aside as the Family Court has erroneously placed the burden on Sangeeta to disprove the allegations made against her. It is stated that the witnesses examined on behalf of Sushil, namely, Govind Dore and Sanjay Wagh, the Managers of Durvankar Lodge and Bhakt Niwas respectively, do not prove that Sangeeta was staying with Kamlesh in one room in Trimbkeshwar on 12/01/2013 and 13/01/2013. It is stated that there is no evidence whatsoever, tendered by Govind Dore and Sanjay Wagh that Sangeeta was staying with Kamlesh in one room in Bhakt Niwas. It is stated that the allegations made by Sushil against Sangeeta are false, baseless and imaginary. It is submitted that there is no material on record except the bare words of Prashant, whose evidence is liable to be discarded, that Sangeeta was staying in one room in the Lodge at Chikhaldara with Kamlesh in December 2010. It is stated that without any pleadings to the effect that Sangeeta had been to Chikhaldara with Kamlesh in July 2011, the Family Court, solely on the basis of CDRs, has recorded a finding that Sangeeta stayed with Kamlesh in Chikhaldara for three days in July 2011 and she had voluntary sexual intercourse with Kamlesh during that period. It is stated that in the absence of any pleadings to that effect, the Family Court could not have recorded such a finding. It is submitted that the Family Court has not considered the provisions of Section 14 of the Family Courts Act, 1984 in the right perspective while accepting the affidavit allegedly tendered by Priyanka to Sushil and also her evidence in the criminal proceedings. It is stated that the Family Court was not justified in observing that Priyanka could not have attended the Court to tender evidence against Sangeeta as during the relevant period, Priyanka had again started residing with Sangeeta's brother Jitendra and a child was born to them. 9. Shri Deopujari, the learned Counsel for Kamlesh, made submissions on similar lines and sought for the reversal of the judgment and decree passed by the Family Court. 9. Shri Deopujari, the learned Counsel for Kamlesh, made submissions on similar lines and sought for the reversal of the judgment and decree passed by the Family Court. It is stated that in the absence of concrete and cogent evidence, a finding is recorded against Kamlesh that he had sexual intercourse with Sangeeta and this has spoiled his career and reputation. 8. Shri Mourya, the learned Counsel for Sushil, supported the judgment of the Family Court. It is submitted that most of the allegations pertaining to the illicit relationship between Sangeeta and Kamlesh were duly proved by Sushil by tendering the affidavits of Priyanka and Prashant and examining Prashant and the Managers of Durvankar Lodge and Bhakt Niwas of Trimbkeshwar. It is submitted that when Sushil filed his written statement in Petition No. A260/ 2010 filed by Sangeeta, for a decree of divorce, on 13/12/2010, he knew nothing about the relationship between Sangeeta and Kamlesh. It is stated that in the absence of knowledge about the illicit relationship between Kamlesh and Sangeeta, Sushil could not have levelled allegations in respect of illicit relationship against them. It is submitted that after Prashant and Priyanka informed Sushil about the illicit relationship between Sangeeta and Kamlesh sometime in the month of November/ December 2011, he became aware of the illicit relationship. It is stated that though Sushil does not have any personal knowledge about the illicit relationship between Sangeeta and Kamlesh, the said relationship is clearly proved by the oral evidence of the witnesses examined on behalf of Sushil, the affidavit of Priyanka and the copies of the CDRs. It is stated that the Family Court has rightly held that the affidavit filed by Priyanka could be looked into by taking recourse to the provisions of Section 14 of the Family Courts Act, 1984. It is submitted that in view of the said provisions, the principles of admissibility of evidence, as required under the provisions of Evidence Act, need not be applied in matrimonial matters. It is stated that it is clear from the CDRs that Sangeeta and Kamlesh were talking to each other for hours together on the phone and there was illicit relationship between them. It is stated that it is clear from the CDRs that Sangeeta and Kamlesh were talking to each other for hours together on the phone and there was illicit relationship between them. It is submitted that it is apparent from the evidence of Prashant and the affidavit of Priyanka that Kamlesh and Sangeeta slept in one room in Trimbkeshwar and Chikhaldara during their visit to the said places in January 2011 and December 2010 respectively. It is stated that it is amply proved by Sushil that Sangeeta had voluntary sexual intercourse with Kamlesh and, hence, Sushil was entitled to a decree of divorce under Section 13(1)(i) of the Hindu Marriage Act, 1955. The learned Counsel sought for the dismissal of the Family Court Appeals filed by Sangeeta and Kamlesh. 9. On hearing the learned Counsel for the parties and on a perusal of the original record and proceedings, it appears that the following points arise for determination in these appeals: (I) Whether Sushil has proved that Sangeeta had voluntary sexual intercourse with Kamlesh and whether he is entitled to a decree of divorce under Section 13(1)(i) of the Hindu Marriage Act, 1955? (II) Whether Sangeeta has treated Sushil with cruelty and whether Sushil is entitled to a decree of divorce under Section 13(1)(ia) of the Hindu Marriage Act, 1955? (III) What order? 10. To answer the aforesaid points for determination, it would be necessary to consider the pleadings of the parties. We have already narrated the pleadings in the petition filed by Sushil in the earlier part of this judgment. We have also narrated the facts pleaded by Sangeeta in her written statement, specially the ones pertaining to the conduct and behaviour of Sushil, after denying the serious allegations levelled by Sushil against her. Since we are aware of the pleadings of the parties, it would be necessary to consider the evidence of the parties. 11. As already mentioned herein above, Sushil has examined himself and reiterated the facts pleaded by him in the Hindu Marriage Petition in his evidence on affidavit. Sushil was cross-examined at length. Sushil admitted in the cross-examination that he did not plead about the illicit relationship between Sangeeta and Kamlesh in the written statement filed in the proceedings filed by Sangeeta, bearing No.A260/2010. Sushil was cross-examined at length. Sushil admitted in the cross-examination that he did not plead about the illicit relationship between Sangeeta and Kamlesh in the written statement filed in the proceedings filed by Sangeeta, bearing No.A260/2010. Sushil admitted that Sangeeta had gone to her son Gaurav's School to meet him, but denied that he had objected for the meeting and hence, she was not allowed to meet Gaurav. Sushil admitted that during their trip to Ujjain, Sushil, Sangeeta, their son Gaurav, Kamlesh, his parents, his cousin Lata, her cousin Mohit and uncle and aunt of Kamlesh were present. Sushil admitted that Shilpa, the daughter of Rekha, the elder sister of Sangeeta, was married to Parag Bhandarwar in 2011. Sushil admitted that though he had seen Sangeeta on the two wheeler of Kamlesh in May 2010, he did not make a mention of the said fact in the written statement filed by him in the petition filed by Sangeeta. Sushil also admitted that all the incidents mentioned by him in paragraphs 21 to 29 of the petition were told to him by others. Sushil admitted that he did not know about the affair between Shilpa, the niece of Sangeeta and Dinesh, the brother of Kamlesh and hence, he did not complain about the same to Shilpa's mother. Sushil admitted that he had no knowledge whether Dinesh was taking education in Pune from 2008 to 2012. He further admitted that he had no proof about the affair between Shilpa and Dinesh. He admitted that he was not aware of the incidents pleaded in paragraphs 14 and 16 of the petition and, hence, they were not pleaded in his written statement filed in the petition No.A260/ 2010. Sushil admitted that he had not witnessed any illicit relationship between Kamlesh and Sangeeta. He further admitted that the incidents at Yavatmal, Chikhaldara, Trimbkeshwar and Rekha's house at Prem Nagar did not occur in his presence. He also admitted that though Sangeeta and Kamlesh started roaming openly on two wheeler from 05/05/2010, he did not plead the said fact in his written statement filed on 13/10/2010 in petition No.A260/ 2010. He admitted that he had complained about the fact of Sangeeta and Kamlesh roaming openly to Sangeeta's brother. 12. Sushil examined Prashant Bhoskar, who claimed that he was a friend of Kamlesh in the High School. He admitted that he had complained about the fact of Sangeeta and Kamlesh roaming openly to Sangeeta's brother. 12. Sushil examined Prashant Bhoskar, who claimed that he was a friend of Kamlesh in the High School. He stated in his evidence that he and Kamlesh had joined Symbiosis Agro Management Company and had worked together for about two years. He admitted that Kamlesh was his superior in the said Company. He stated that in March 2010, Kamlesh asked him to visit Gaikwad Hospital where Sangeeta was admitted and give Rs.10,000/- to Sangeeta when she was residing with her parents after she was discharged from Gaikwad Hospital. Prashant further stated in his evidence that in November 2010, when Prashant, his wife, Kamlesh, Sangeeta, Shilpa and Neha had gone to Chikhaldara, three cottages were booked and Kamlesh and Sangeeta stayed in one cottage, Prashant and his wife stayed in other cottage and Shilpa and Neha stayed in the third cottage. Prashant stated that Kamlesh started harassing him as he was not doing the personal work of Kamlesh. It is stated that he had to leave the job in March 2011 when Kamlesh complained about him to the Marketing Manager Shri Ramanarao. It is stated that after leaving the job, he started his own business and Kamlesh started harassing him. He stated that he told about the illicit relationship between Sangeeta and Kamlesh to Sushil in the last week of November 2011 and also gave an affidavit and some photographs to Sushil. It is stated in the evidence on affidavit that Kamlesh and his friend Sandeep attempted to beat him and, therefore, he lodged a complaint in the Police Station at Hudkeshwar. 13. Prashant was cross-examined on behalf of Sangeeta and he admitted in his cross-examination that Adv. Itankar, who was the Advocate of Sushil, had prepared his affidavit that was tendered to Sushil in November/December 2011. Prashant admitted in his cross-examination that he does not understand English properly and the affidavit, which is in English language, was not read over to him or translated to him in Marathi language. He admitted that he was called to the Police Station after the father of Priya, his wife, had lodged a complaint against him. It is admitted by Prashant that both he and Priya were referred for medical examination and the case was tried in the Court. He admitted that he was called to the Police Station after the father of Priya, his wife, had lodged a complaint against him. It is admitted by Prashant that both he and Priya were referred for medical examination and the case was tried in the Court. Prashant admitted that Kamlesh had sent a legal notice to him as he did not pay a sum of Rs.1,78,528/- to Mohit Agro Agency. It is admitted that the said amount was claimed by Kamlesh. Prashant admitted that Kamlesh had filed a complaint against him on 25/05/2012 and in the complaints filed by Prashant and Kamlesh against each other, the Police had registered the case as non cognizable. Prashant admitted in his cross-examination that he did not see Kamlesh in Gaikwad Hospital at 12.30 a.m. though he had stated so in his evidence on affidavit. Lastly he stated in his cross-examination that according to him, illicit relations would mean the relations that are not legal. 14. After examining Prashant, as a witness, Sushil examined Yogita Chafale, the Investigating Officer. She stated in her evidence that when the case came to her for enquiry under Section 202 of the Code of Criminal Procedure, she had collected call records of certain selected phone numbers as per the order of the Police Inspector. The letter bearing the signature of Police Inspector was exhibited as Exh.151. She, however, admitted in the cross-examination that she had not personally filed Exh.151 and the hard copy of the CDR in the Court. She stated that she did not know how the document came on record. 15. The oral evidence of the Managers of Bhakt Niwas and Durvankar Lodge was recorded. Sanjay Wagh, the Manager of Bhakt Niwas stated in his evidence that one room in Bhakt Niwas was booked by Kamlesh Zode and in that room, there were three beds. The witness, however, did not state as to who was accompanying Kamlesh in the room in Bhakt Niwas at Trimbkeshwar. The other part of the evidence of Sanjay Wagh is not relevant for the purpose of deciding the points involved in these Family Court Appeals as he was merely examined to prove that Kamlesh had booked a room in Bhakt Niwas. It is, however, not stated by Sanjay Wagh in his evidence that Kamlesh was residing with Sangeeta in Bhakt Niwas. It is, however, not stated by Sanjay Wagh in his evidence that Kamlesh was residing with Sangeeta in Bhakt Niwas. In fact, in his cross-examination, he has admitted that he cannot identify the persons, who reside in Bhakt Niwas. Similarly, Govind Dore, the Manager of Durvankar Lodge, was examined and he stated in his evidence that Babarao Bagal, the husband of the elder sister of Sangeeta, namely, Rekha, had booked a room in Durvankar Lodge and the same was for five people. 16. Sushil examined Dr. Vijay Ponkshe only for proving that there were no traces of poison in the blood and urine samples of Sangeeta after she was admitted in Gaikwad Hospital on 03/03/2010 and the allegation of Sangeeta that he had tried to administer poison to her is false. Smt. Vidya Gaidhane, the Warden of Savitribai Fule Mahila Karmachari Vasti Gruha was examined to point out that Sangeeta was living in the said Vasti Gruh after she left the house of her sister Rekha. 17. Sangeeta examined herself and her mother Pushpamala. It would, however, be not necessary to consider the evidence of Sangeeta and her mother in their examination-in-chief on affidavit as, in our view, the burden would lie only on Sushil to prove that Sangeeta had voluntary sexual intercourse with Kamlesh and the burden cannot be placed on Sangeeta to prove the negative fact. In her cross-examination, Sangeeta denied that she had talked for hours together with Kamlesh from her mobile No.9422129412. She denied that there was conversation between herself and Kamlesh from her mobile No. 9579335664. She denied that she and Kamlesh talked to each other from his mobile No.9021422810. She denied the suggestion that Kamlesh used to talk to her from other cell numbers and he had talked to her several times from the cell of Dahivalkar, bearing No.9763523380. She denied the suggestion that Kamlesh used to talk to her from the cell of Sandeep Shahane, bearing No.9823829547. She further denied that Kamlesh talked to her from his cousin Lata's phone, bearing No.9923136006. She also denied that Kamlesh spoke to her from mobile No.9404342155 registered in the name of his father Kamlakar. Sangeeta denied in her cross-examination that she stayed with Kamlesh in one room in Bhakt Niwas at Trimbkeshwar, in her brother's house at Yavatmal and in a cottage in Chikhaldara in Decmeber 2010/January 2011. 18. She also denied that Kamlesh spoke to her from mobile No.9404342155 registered in the name of his father Kamlakar. Sangeeta denied in her cross-examination that she stayed with Kamlesh in one room in Bhakt Niwas at Trimbkeshwar, in her brother's house at Yavatmal and in a cottage in Chikhaldara in Decmeber 2010/January 2011. 18. The evidence of Pushpamala does not throw any light on the controversy. Her evidence is considered by the Family Court only to hold that she had refused to accept the Bailiff's summons for summoning Priyanka to tender evidence, as Jitendra, her son and Priyanka, her daughterinlaw were not residing with her at the relevant time. 19. It is clear from the pleadings and evidence of the parties that Sushil had no personal knowledge about the illicit relationship between Sangeeta and Kamlesh and he had merely witnessed Sangeeta on the two wheeler with Kamlesh in the month of May 2010 on 34 occasions. Thus, Sushil does not have any personal knowledge about the illicit relationship between Sangeeta and Kamlesh. Apart from not witnessing any act of illicit relationship between Sangeeta and Kamlesh, Sushil has also not heard any conversation between Sangeeta and Kamlesh that would disclose about an illicit relationship. All that Sushil has witnessed is that Sangeeta was sitting on the two wheeler of Kamlesh on few occasions as a pillion rider. Though Sushil had witnessed that Sangeeta was roaming with Kamlesh on his two wheeler in May 2010 and he had complained about the same to the father of Kamlesh and to the parents of Sangeeta, it is surprising that he did not plead the said fact in the written statement filed by him on 13/10/2011, in the proceedings filed by Sangeeta for a decree of divorce on the ground of cruelty. Nothing is pleaded in the written statement filed by Sushil, in the proceedings filed by Sangeeta, about the illicit relationship between Kamlesh and Sangeeta. The entire pleadings in the petition filed by Sushil, narrate the facts, which came to his knowledge from the information supplied to him by Priyanka, the wife of the brother of Sangeeta and by Prashant Bhoskar. Priyanka was not living with Jitendra, the brother of Sangeeta, at the relevant time when Sushil allegedly secured the information from her. The entire pleadings in the petition filed by Sushil, narrate the facts, which came to his knowledge from the information supplied to him by Priyanka, the wife of the brother of Sangeeta and by Prashant Bhoskar. Priyanka was not living with Jitendra, the brother of Sangeeta, at the relevant time when Sushil allegedly secured the information from her. In fact, it is Sushil's case that Priyanka was interested in telling him about the illicit relationship between Sangeeta and Kamlesh and Khusboo, Priyanka's sister, informed him about the eagerness of Priyanka to do so. According to Sushil, Priyanka had stated the facts about the illicit relationship on affidavit and handed over the affidavit to Sushil. It is surprising that the stamp paper for preparing the affidavit is purchased in the name of Sushil. It is also necessary to note that the said affidavit was allegedly handed over by Priyanka to Sushil only during the time when she was separated from her husband Jitendra. Priyanka started residing with Jitendra when evidence was being tendered in this case. The Family Court has, therefore, held that Priyanka could not have attended the Court to tender evidence as she was happily residing with her husband Jitendra and a child was born from the marital relationship. Though Priyanka did not enter the witness box and did not tender any oral evidence, the Family Court has relied on the affidavit of Priyanka at Exh. 42. The Family Court has relied on the provisions of Section 14 of the Family Courts Act, 1984 for accepting the affidavit of Priyanka as admissible evidence. Sushil has secured the knowledge in respect of illicit relationship only from Priyanka and Prashant Bhoskar. One of them, namely, Priyanka is not examined. Prashant Bhoskar has entered the witness box, but from the cross-examination of Prashant, it is clear that the relationship between Prashant and Kamlesh was extremely strained when he allegedly informed Sushil about the illicit relationship between Kamlesh and Sangeeta and both of them had filed complaints against each other and Prashant had also received a legal notice from Kalmesh for refund of the amount of Rs.1,78,528/- that was liable to be paid by him. Sushil has admitted in his cross-examination not once, but several times that he had not witnessed anything that is pleaded by him in respect of the illicit relationship between Sangeeta and Kamlesh. Sushil has admitted in his cross-examination not once, but several times that he had not witnessed anything that is pleaded by him in respect of the illicit relationship between Sangeeta and Kamlesh. He has admitted that all the facts concerning the illicit relationship are informed to him only by Priyanka and Prashant. We find that the Hindu Marriage Petition is filed by Sushil solely on the basis of the facts heard by him from Prashant and Priyanka. Since Priyanka has not entered into the witness box, in the case like the one in hand, where serious allegations in respect of voluntary sexual intercourse with Kamlesh are made against Sangeeta, we are not inclined to consider the affidavit of Priyanka at Exh.42 in the absence of her oral evidence. 20. The charge of extra marital relationship is a serious charge that casts aspersions on the character of a spouse and hence, the charge needs to be proved by such evidence that would lead to an irresistible conclusion that the spouse had voluntary sexual intercourse with a person of the opposite sex, other than his/her spouse. In the instant case, the Family Court has relied only on the affidavit of Priyanka, the evidence of Prashant Bhoskar, the evidence of Managers of Bhakt Niwas and Durvankar Lodge though they have not stated anything in respect of stay of Kamlesh and Sangeeta in one room and the evidence in the form of CDRs. We are not inclined to accept the affidavit of Priyanka at Exh.42 as admissible evidence. The observation of the Family Court that if Priyanka had not entered into the witness box and Sushil could not secure her presence, Sangeeta should have secured her presence to prove her innocence is clearly against the settled principles of law, specially the principles relating to burden of proof. In our view, from the commencement of the proceedings till the conclusion in this case, the burden would lie only on Sushil to prove that Sangeeta had voluntary sexual intercourse with Kamlesh. In the absence of examination of Priyanka, the entire pleadings in regard to illicit relationship between Kamlesh and Sangeeta at Yavatmal, at Trimbkeshwar on 13/01/ 2011 and in the house of Rekha at Prem Nagar should fall to the ground. 21. Prashant stated in his evidence that he was asked by Kamlesh to attend Gaikwad Hospital. In the absence of examination of Priyanka, the entire pleadings in regard to illicit relationship between Kamlesh and Sangeeta at Yavatmal, at Trimbkeshwar on 13/01/ 2011 and in the house of Rekha at Prem Nagar should fall to the ground. 21. Prashant stated in his evidence that he was asked by Kamlesh to attend Gaikwad Hospital. He has stated that he was asked by Kamlesh to give a sum of Rs.10,000/- to Sangeeta in her parents' house where she was residing after her discharge from Gaikwad Hospital. Both the aforesaid facts have nothing to do with the illicit relationship. It is then stated by Prashant that when he, his wife, Kamlesh, Sangeeta, Shilpa and Neha had been to Chikhaldara in Decemeber 2010, Sangeeta and Kamlesh were staying in one room. We are inclined to discard the evidence of Prashant in view of his admissions in the cross-examination. A serious charge of adultery or sexual intercourse with the person other than the spouse needs to be proved either by direct evidence or by the evidence of independent witnesses or documents. We do not find that Prashant is an independent witness. Even the Family Court has observed that there is enmity between Prashant and Kamlesh. Prashant has admitted in his cross-examination that Prashant and Kamlesh have registered criminal complaints against each other. Prashant has admitted that he is not on good terms with Kamlesh and that Kamlesh had issued a legal notice to him for returning the amount of Rs.1,78,528/-. It is apparent from the cross-examination of Prashant that he is on cross terms with Kamlesh. The evidence of Prashant is not the evidence of an independent witness. The evidence of Prashant would not be reliable and it would not be possible to hold on the basis of his evidence that Kamlesh and Sangeeta were staying in one cottage in Chikhaldara in December 2010. It is also surprising that though Sushil, who is in the Police Department, has examined the Managers of Durvankar Lodge and Bhakt Niwas of Trimbkeshwar to prove that two separate rooms were booked in two separate Lodges at Trimbkeshwar at the relevant time, the Manager of the Lodge in Chikhaldara is not examined to prove whether three cottages were booked at Chikhaldara in December 2010 and whether Kamlesh and Sangeeta were staying in one of the cottages. Though the evidence of the Managers of the Lodges at Trimbkeshwar is not helpful to us for deciding the points involved in these Family Court Appeals, in our view, the non examination of the concerned persons from the Lodge at Chikhaldara in respect of the stay of Kamlesh and Sangeeta in one room would necessitate the drawing of an adverse inference against Sushil. It would be necessary to hold that had Sushil examined the concerned person from the Lodge at Chikhaldara, in respect of the stay of Sushil and Sangeeta in one room in December 2010, the case of Sushil would have been falsified. We are making these observations only in view of the examination of the Managers of the two Lodges at Trimbkeshwar by Sushil as his witnesses in contradistinction with his failure to examine the concerned person from the Lodge at Chikhaldara. 22. The evidence of the Managers of Durvankar Lodge and Bhakt Niwas can only prove that one room in one of the Lodges was booked by Kamlesh and the other room in the other lodge was booked by Babarao Bagal, the husband of the sister of Sangeeta. The evidence of the Managers of the two Lodges, however, does not prove that Sangeeta and Kamlesh were staying in one Lodge and the other persons were staying in the other. There is nothing in the evidence of the Managers of the two Lodges to show that Kamlesh and Sangeeta were staying in one room and all other members in the other. In the absence of any evidence to the aforesaid effect, the evidence of the Managers of Durvankar Lodge and Bhakt Niwas would not be helpful to Sushil for proving his case in respect of illicit relationship between Sangeeta and Kamlesh. 23. We find on a reading of the evidence that the facts pleaded by Sushil are not proved. Priyanka did not enter the witness box to support the case of Sushil. The Managers of Durvankar Lodge and Bhakt Niwas did not advance the case of Sushil in respect of the illicit relationship. The evidence of Prashant is liable to be discarded and hence, the same would also not be helpful to prove the stay of Sangeeta and Kamlesh in one cottage in December 2010. The Managers of Durvankar Lodge and Bhakt Niwas did not advance the case of Sushil in respect of the illicit relationship. The evidence of Prashant is liable to be discarded and hence, the same would also not be helpful to prove the stay of Sangeeta and Kamlesh in one cottage in December 2010. It is also surprising that though Prashant has stated about the stay of Kamlesh and Sangeeta in one cottage in 2010, he disclosed about the said fact to Sushil a year later in November/December 2011. There is no proof that three cottages were booked in a Lodge at Chikhaldara as stated by Prashant and that Sangeeta and Kamlesh stayed in one of the cottages. In any case, we are not inclined to accept the evidence of Prashant, who had an axe to grind against Kamlesh. The observation of the Family Court that though there is enough material to show that Prashant had an axe to grind against Kamlesh, there was no reason for him to implicate Sangeeta in the relationship is not worthy of acceptance. 24. Apart from the aforesaid evidence, Sushil as well as the Family Court have relied upon the copies of CDRs to hold that Sangeeta was continuously talking to Kamlesh on the cell phones. We are surprised as to how the CDRs could be considered as admissible piece of evidence in the case like the one in hand. The copies of CDRs are not compared. The concerned Officer or any responsible person from the Cellular Companies has not been examined by Sushil. Before relying on the evidence in the form of CDRs, it was necessary for Sushil to have examined some responsible persons from the Cellular Companies for proving that the CDRs were supplied by them to the Investigating Agency and the copies of the CDRs that were tendered by Sushil in the Court reflect the true and correct record in respect of the mobile numbers. In the cross-examination, Yogita Chafale, the Investigating Officer has admitted that she has not filed Exh.151 and copy of CDR and she does not know as to how the document has come on record. In the absence of examination of some responsible persons from the Cellular Companies, it cannot be said that the copies of CDRs are admissible and reliable pieces of evidence. In the absence of examination of some responsible persons from the Cellular Companies, it cannot be said that the copies of CDRs are admissible and reliable pieces of evidence. It is also not proved that Sangeeta is the registered owner of Cell Nos.9422129412 and 9579335664. We do not find any convincing evidence on record to show that either Sangeeta was a registered owner of the aforesaid mobile numbers or she was actually using them. In fact, it is the case of Sushil that one of the mobile numbers that Sangeeta was using is the mobile number of Amol Bagal, her sister's son. We are surprised with the suggestions given to Sangeeta in her cross-examination. It is suggested to Sangeeta that she was talking from her cell with Kamlesh on several cell phones, bearing Nos.7304353522, 9021422810, cell phone of Dahivakar, bearing No.9763523380, on Sandeep Shahane's cell, bearing No.9823829547 and Lata's and Kalmesh's father's cell phones, bearing Nos. 9923136006 and 9404342155. It is suggested to Sangeeta that apart from the aforesaid five cell numbers, she was talking to Kamlesh on several other unknown numbers. It is surprising that with every person to whom Sangeeta had allegedly talked from various cell numbers, it is stated that Sangeeta was talking to Kamlesh on those cell numbers. We find that the CDR is not proved though the letter of the Investigating Officer at Exh.151 is proved. We find that the Family Court was aware that the CDR was not proved and hence, instead of marking it as exhibit, the Family Court has marked it as Article `D'. In any case, in the aforesaid circumstances, we are not inclined to accept the evidence in the form of CDRs for the purpose of proving that Sangeeta had voluntary sexual intercourse with Kamlesh. 25. It is very surprising that the Family Court, in the absence of any pleadings that Kamlesh and Sangeeta were staying together in one cottage in July 2011, has recorded a finding on the basis of CDRs that the parties were residing together at Chikhaldara for more than two days as there was no contact between Kamlesh and Sangeeta on cell phones on those two days. We are really surprised with the approach of the Family Court in deciding the matter. We are really surprised with the approach of the Family Court in deciding the matter. Only on the basis of CDRs, which we find, are not worthy of acceptance in evidence, it was held in the absence of pleadings that Kamlesh and Sangeeta were staying at Chikhaldara for more than two days in July 2011. Such is not the case of either Sushil or his witness Prashant. If that be so, the Family Court could not have recorded the finding on the basis of CDRs, which are not liable to be accepted in evidence, that Kamlesh and Sangeeta had voluntary sexual intercourse at Cbikhaldara in July 2011. The approach of the Family Court in deciding the matter is not proper. The Family Court has unduly placed the burden on Sangeeta to prove a negative fact. In paragraph 71 of the judgment, the Family Court has observed that if Sushil could not secure the presence of Priyanka, Sangeeta could have secured her presence to prove that the affidavit of Priyanka at Exh.42 was false. As already stated herein above, right from the commencement of the proceedings till its culmination, the burden was on Sushil to prove that Sangeeta had voluntary sexual intercourse with Kamlesh. In paragraph 82 of the judgment, the Family Court has observed that it was easy for Sangeeta to disprove the serious allegations that were made against her by Sushil by examining Priya and Shilpa, the daughters of her sister Rekha. We find that in several paragraphs of the judgment, the Family Court has placed the burden on Sangeeta to prove her innocence. It is well settled that when a spouse alleges adultery against the other by claiming that the spouse had sexual intercourse with a man or woman other than the husband or wife, the burden would lie only on the party pleading so. Rather than placing the burden on Sangeeta to prove a negative fact by examining Priyanka, Priya or Shilpa or any other family member, the Family Court should have held that it was necessary for Sushil to examine the Notary before whom Priyanka had sworn the affidavit and also Khusboo, the sister of Priyanka, who informed him that Priyanka was eager to disclose some startling facts to Sushil. 26. 26. On an appreciation of the evidence on record, we find that since Priyanka was on cross terms with Jitendra and Sangeeta and since Prashant was on cross terms with Kamlesh, Sushil has taken advantage of the strained relationships between them and has secured the affidavits from Priyanka and Prashant, if at all they were really tendered by them, to Sushil. We find from the evidence of Prashant that Prashant was removed from his job in Symbiosis in view of the complaint made by Kamlesh to their superior Shri Ramanarao and, hence, the relationship between Kamlesh and Prashant was strained and they had even lodged criminal complaints against each other. The observation of the Family Court that since Priyanka had decided not to come to the Court, the Family Court had no other alternative, but to believe her affidavit before the Notary under Section 14 of the Family Courts Act, 1984 is erroneous. The observation of the Family Court in paragraph 111 of the judgment that there is ample evidence to hold that Kamlesh and Sangeeta had physical relationship in Trimbkeshwar, Yavatmal and Chikhaldara is not supported by the evidence on record. The finding recorded by the Family Court in paragraph 111 of the judgment that there is proof that Kamlesh and Sangeeta had voluntary sexual intercourse in the house of Sangeeta's sister Rekha, is not only erroneous, but perverse. The allegation in respect of voluntary sexual intercourse is required to be proved by cogent and convincing evidence. We have already recorded herein above that the charge casts aspersions on the character of the spouse. The allegation of voluntary sexual intercourse should be proved from the circumstantial evidence that excludes the presumption of innocence in favour of the person against whom it is alleged. There could be a proof of voluntary sexual intercourse only if no other inference is possible from the material evidence on record. In our view, the evidence on record cannot prove the act of voluntary sexual intercourse between Sangeeta and Kamlesh. While holding that the said charge is proved, the Family Court has erroneously placed the burden on Sangeeta to prove a negative fact that she did not have voluntary sexual intercourse with Kamlesh. In our view, the evidence on record cannot prove the act of voluntary sexual intercourse between Sangeeta and Kamlesh. While holding that the said charge is proved, the Family Court has erroneously placed the burden on Sangeeta to prove a negative fact that she did not have voluntary sexual intercourse with Kamlesh. The evidence on record, in our considered view, does not lead to a conclusion, much less an irresistible conclusion that Sangeeta had voluntary sexual intercourse with Kamlesh and that Sushil was entitled for a decree of divorce under Section 13(3)(i) of the Hindu Marriage Act, 1955. We do not find that Sushil has on the basis of the evidence available on record either proved that Sangeeta had voluntary sexual intercourse with Kamlesh or that she had treated him with cruelty. On the other hand, levelling serious allegation that Sangeeta had voluntary sexual intercourse with Kamlesh and failing to prove the same, would tantamount to cruelty on Sangeeta. Even if we accept the evidence of Sushil on its face value that Sangeeta was roaming on a two wheeler with Kamlesh, the said evidence cannot be helpful to Sushil to prove that Sangeeta had voluntary sexual intercourse with Kamlesh. The judgment of the Hon'ble Supreme Court in Earnest John White vs. Mrs. Kathleen Olive White (Nee Meade) and others, ( AIR 1958 SC 441 ) and relied on by the learned Counsel for Sushil cannot be made applicable to the facts of this case. In the case before Hon'ble Supreme Court, there was clinching evidence, including the evidence of the hotel boy, who had identified the wife and had stated that she was living in a suite in the hotel for more than two days with a man with the fake name, Charles Chaplain. Similarly, the judgment of the Hon'ble Supreme Court in Shiv Shakti Co-operative Housing Society, Nagpur vs. Swaraj Developers and others, { (2003) 6 SCC 659 )} has no applicability to the case in hand. 27. Hence, for the reasons aforesaid, the Family Court Appeals are allowed. The judgment of the Family Court, Nagpur, dated 26/05/2015 in Petition No.A-839/2012 is quashed and set aside. The Hindu Marriage Petition filed by Sushil stands dismissed with costs.