It is settled that physical violence is not absolutely essential to constitute cruelty.
Para 9. In a case where divorce is sought on the ground of adultery, the proof required to establish adultery need not necessarily be proof beyond a shadow of doubt. Proof by preponderance of probabilities would be sufficient. Direct proof of adultery can rarely be given. The circumstantial evidence is all that can normally be expected in proof of the charge of adultery. However, the circumstances must be such as lead to it by fair inference, as a necessary conclusion. The allegation must be reasonably proved, there must be a high degree of probability. Here in the case husband didn’t have any evidence of adultery , except the call records
Husband didn’t mention these allegation. in his earlier two divorce petition, which he withdrawn .
Para 11 It is true that there were calls on many occasions from their telephones for the period from 3/10/2012 to 24/7/2013. It is against the evidence given by the wife that she used to call the second respondent only occasionally that too for official purpose. But merely for the reason that the wife used to make calls regularly to the second respondent, we cannot jump into a conclusion that their relationship was an illicit one and that there was adulterous act between them. As stated already, there must be a high degree of probability to substantiate the allegation of adultery. The evidence adduced by the husband and discussed above are insufficient to prove adultery even by preponderance of probabilities. Hence, we find no reason to interfere with the finding of the court below on adultery.
Para 12. Before examining the correctness of the finding of the court below regarding condonation of cruelty, we will examine whether the husband has established the cruelty pleaded. Normally matrimonial cruelty takes place within the four walls of the matrimonial home and, therefore, independent witness may not be available. Thus, the court can even act upon the sole testimony of the spouse if it is found convincing and reliable. The Apex Court in Dr.N.G.Dastane v. Mrs.S.Dastane (AIR 1975 SC 1534) has held that the standard of proof in matrimonial cases would be the same as in civil cases, i.e., the court has to decide the cases based on preponderance of probabilities.