Bindeshwari Gambhir vs Bhagwati Gambhir

The following judgment of the Court was passed by DeepakKumar Tiwari, J.

By this Appeal under Section 19(1) of the Family Courts Act, 1984 (for short ‘the Act’), the appellant is challenging the legality and propriety of the judgment and decree dated 30th April, 2016 passed by the Family Court, Rajnandgaon in Civil Suit No.33-A/2009 whereby the Family Court has decreed the suit for dissolution of marriage filed by the husband by passing decree of divorce under Section 13 (1)(i) of the Hindu Marriage Act, 1955.

Indisputably, the appellant was married with the respondent No.1 in accordance with the Hindu rites on 21st April, 1995 at Rajnandgaon (Ex.P/2, marriage invitation card). Earlier the appellant had challenged the judgment and decree dated 13th December, 2010 by way of filing FAM No.4/2011 in which by order dated 19.2.2015, the matter was remanded back to the Family Court, Rajnandgaon with an observation that the evidence adduced on behalf of respondent No.1 is not sufficient to prove the fact of voluntary intercourse of the appellant with Omprakash Sharma (respondent No.2 herein) and with further observation that in a matrimonial dispute, proper opportunity to adduce evidence to both the parties would be just and proper. Therefore, the matter was remanded.

As per the plaint allegations, the appellant has voluntary sexual intercourse with the respondent No.2 Omprakash after solemnizing her marriage with the respondent No.1. Thus, the appellant is living in adultery having illicit relations with Omprakash and on this ground, the suit has been filed for dissolution of marriage. In the written statement, the appellant has denied the aforesaid allegation and pleaded that she does not know the person namely Omprakash (Respondent No.2) and not having any illicit relations with the said person. She has further averred that both the daughters were born out of the wedlock of the plaintiff and only on the basis of suspicion, a false allegation has been made by the respondent No.1, therefore, the suit be dismissed.

After providing opportunity of hearing to the parties and after appreciating the statements of both the sides, the Court below came to the conclusion that the appellant had voluntary sexual intercourse with the respondent No.2 other than her spouse and granted decree of divorce against the appellant and decreed the suit in favour of respondent No.1 by the impugned judgment.

Learned counsel for the appellant would submit that the family Court committed gross irregularity in granting decree of divorce on the ground that the appellant is living adulterous life. The finding arrived at on this score is erroneous. The appellant was blessed with two daughters for which the respondent husband used to be unhappy with the appellant and he tried to marry some other girl. The said fact was not considered by the learned Family Court. Therefore, the Appeal may be allowed and the impugned judgment and decree may be set aside.

On the other hand, learned counsel for respondent No.1 would support the impugned judgment and decree.

We have heard learned counsel for the parties at length and perused the record.

The sole question for consideration in this Appeal is whether the respondent No.1 has proved the fact that the appellant after solemnizing her marriage had voluntary sexual intercourse with any other person i.e. respondent No.2 herein.

In the matter of Neelam Tiwari Vs. Sunil Tiwari {AIR 2009 MADHYA PRADESH 225}, the following has been observed at para-9:-

It is settled law that the marriage bond shall not be set aside lightly or without strict enquiry. The general standard and degree of proof required in such cases need not reach certainty, but it must carry a high degree of probability, because of the gravity of the issue. In the case of Dr. N.G. Dastane v. Mrs. S. Dastane, AIR 1975 SC 1534, it was pointed out that as the proceedings under the Hindu Marriage Act, 1955, are of civil nature, the test of criminal proceedings need not be applied and it is not necessary to prove the allegations beyond all reasonable doubt, the reason being that a criminal trial involves the liberty of the subject which may not be taken away on a mere preponderance of probabilities and it would be wrong to input such a consideration into trial of civil nature. The word 'satisfied' in Section 23 of the 'Act' must mean satisfied on preponderance of probabilities and not satisfaction beyond reasonable doubt; which requires proof of higher standard in criminal or quasi-criminal trials. Proof beyond reasonable doubt is not postulated where human relationship is involved and eye-witnesses are difficult to obtain. Similar proposition was laid down in Shobha Rani v. Madhukar Reddi, AIR 1988 SC 121.”

In the said matter, the following has also been observed at para-15:-

“15. In Banchhanidhi Das v. Kamla Devi, AIR 1980 Orissa 171, it has been observed that :-

“While it is true that evidence of adultery has to be clear and definite and the allegation has to be proved beyond reasonable doubt, it would be difficult to get direct evidence of acts of adultery. “Living in adultery” is suggestive of the fact that a single instance of adultery may not be adequate. In the instant case, the letters refer to a course of adulterous conduct and, therefore, the requirement of Section 13 of the Act has been satisfied. As has been pointed out in Raden on Divorce it is not necessary that there should be direct evidence of adultery as it is not easily available. It has been also stated that rarely the parties would be caught in acts of adultery. Circumstantial evidence must, however, be sufficiently strong and conclusive.””

In view of the aforesaid principle, reverting back to the facts of the present case, this Court is of the view that there is ample evidence on record to affirm the finding of the family Court. Though the appellant has denied in her written statement that she is not aware about any meeting which was held at her Mohalla Ram Nagar. Even she stated that she does not know any person namely, Omprakash and further deposed that her signatures were obtained by force on some blank papers. But in cross-examination, she admitted that the respondent No.2 is friend of her husband, but she denied that when her husband used to go to the office, respondent No.2 used to come in her house.

(PW-2) Madhukar Banjare, Ward Member; Mustkima Begum (PW-3), member of Karuna Mahila Mandal; (PW-4) Bhaiyalal have clearly deposed that the appellant was having illicit relations with the respondent No.2 and from such relation, second daughter namely, Disha, aged about 2 years, was born. Therefore, dispute occurred between the appellant and the respondent No.1 and hence a meeting was convened in the Mohalla and in the said meeting, both the parties (i.e. the appellant and respondent No.2) were asked and they had admitted their relations. Therefore, Ex.-P/3 was prepared in which the appellant and respondent No.2 had put their signatures.

13.Smt. Shalini Thakur (DW-3), a witness of the appellant, has also deposed that in the said meeting, the appellant was present. It is significant to mention that Omprakash Sharma (Respondent No.2) also admitted such relation in his statement. He further stated that the second daughter Disha was born out of his illicit relation. He deposed that from 2006 his physical relations with the appellant continued. Therefore, there was quarrel in the family of the appellant and respondent No.1. He further stated that in the said Mohalla meeting, he had admitted such relation and after the meeting, members of the Mohalla meeting had taken them to the Police Station. From the Police Station, the appellant had come to his house and stayed for one night and then she had gone to her parental house. Respondent No.2 also stated in the Police Station that both had signed voluntarily. Respondent No.2 also stated that his relation with the appellant continued up to 2012 and thereafter the appellant had developed relations with another man namely, Rajesh Yadav.

The appellant’s witnesses namely, Sattar Khan (DW-2) and Shalini Thakur (DW-3) have stated in their statements that they do not know the reason of quarrel between the appellant and respondent No.1, though they admitted that a meeting was held in their Mohalla. (DW-6) Sheikh Rahim has stated that the appellant delivered 2 girls and the respondent No.1 was desirous of a male child, so he wanted to perform second marriage and started dispute with the appellant. The said version was not corroborated by any other witness, therefore, this witness appears to be not trustworthy.

(DW-4) Amit Pal has stated that on 21st October, 2010, he had gone with the appellant at Labour Colony, Rajnandgaon and they had caught respondent No.1 with Kiran in a suspicious condition and both were living as husband and wife. Shanti Bai, (DW-5), mother of the appellant also deposed that the respondent No.1 in collusion with his friend and respondent No.2 had defamed the appellant and was residing with Kiran.

It is pertinent to mention that the suit was instituted on 19.6.2009 by the husband on the ground of adultery and there was no averment by the appellant in her written statement about illicit relations of her husband with Kiran.

On close scrutiny of the evidence available on record, it is established that the appellant had illicit sexual relations with the respondent No.2. To resolve the said issue, a meeting was also convened, therefore, the evidence rendered by the members of the meeting is found to be reliable and there is no reason to discard or disbelieve their version. Further Misc. Criminal Case No.391/2007 filed by the appellant under Section 125 of the CrPC for maintenance was rejected on the same ground as alleged by the respondent No.1in this Appeal.

It is noted that the appellant has never made any complaint to the police that any false accusation was made against her. Though no party has adduced any scientific evidence about the paternity of Ku. Disha, but from the evidence, as discussed above, it is amply proved that the appellant was having illicit relations with Omprakash. Therefore, the ground under Section 13(1)(i) of the Hindu Marriage Act has been proved by the respondent No.1 that after solemnization of marriage, the appellant had voluntary sexual intercourse with the respondent No.2. Hence, the findings recorded by the family Court do not call for any interference.

In the result, the Appeal filed by the appellant being bereft of any substance deserves to be and is hereby dismissed.

Parties shall bear their own costs.