MISC. APPEAL No.491 OF 2009 SHASHI SHEKHAR KUMAR, SON OF DUKHAN PASWAN, RESIDENT OF VILLAGE-BABHANGAMA, P.S. BIHARIGANJ, DISTRICT-MADHEPURA --------------- APPELLANT. -VERSUS- 1. SABITA KUMARI, D/O POLICE PASWAN, WIFE OF SHASHI SHEKHAR KR. 2. DAYA NAND PASWAN, SON OF BALESHWAR PASWAN, BOTH RESIDENT OF VILLAGE-AUJHOKOPA, P.S. RUPAULI, DISTRICT-PURNIA. ……………. RESPONDENTS For the Appellant: Mr. S.K. Agrawal, Advocate Mr. Arvind Kumar Verma, Adv. For the Respondents: Vasudeo Ram, Adv. Vivekanand Jha, Adv. P R E S E N T THE HON'BLE MR. JUSTICE SHIVA KIRTI SINGH THE HON'BLE MR. JUSTICE HEMANT KUMAR SRIVASTAVA Shiva Kirti Singh, Hemant Kumar Srivastava,JJ. Heard learned counsel for the appellant and learned counsel for the respondent No. 1. 2. On behalf of appellant, a grievance was raised that the learned Principal Judge, Family Court, Madhepura erred in law and in facts in not reading the plaint properly and not framing relevant issues relating to claim of the appellant that divorce be granted also on the grounds of desertion and cruelty besides adultery. 3. The pleadings in the Divorce Application do not show that desertion or cruelty was specifically pleaded 2 as cause of action. Necessary details are also lacking and hence we find that the learned Principal Judge, Family Court rightly framed issues inter alia, only in respect of allegation of adultery as a ground for divorce. 4. So far as finding of the learned court below that the appellant failed to prove the allegation of adultery is concerned, on going through the evidence, it is found that even the appellant as P.W.-1 did not support the allegation of adultery. The other witness on this issue, P.W.-2 has fairly admitted that he has no personal knowledge on this issue and he is only a witness having a hear-say version from the appellant. Reliance was sought to be placed upon P.W.3 Chandan Kumar but his evidence also is of no help. He has only tried to create a suspicion by saying that respondent No. 2 used to meet respondent No. 1. The evidence on record falls too short of proving the ingredients of adultery specially when the appellant himself has made no statements to prove the allegation. 5. Considering the entire facts and circumstances, we are of the view that the learned court below rightly held that the sole ground for seeking divorce i.e. adultery could not be proved by the appellant. We find no good reason to interfere with the order under appeal. Hence, the appeal is dismissed. 6. No costs. 7. On behalf of the appellant it was highlighted 3 that he had made efforts to persuade the respondent No. 1 to live with him but she did not agree for it during the course of reconciliation proceeding on one pretext or the other. In the facts of the case, it is observed that if the appellant is so advised, he may approach the concerned family court seeking restitution of conjugal right in accordance with law. . Patna High Court, The 27th day of September, 2010 NAFR/AKV/- (Shiva Kirti Singh,J.) ( Hemant Kumar Srivastava, J.)