Mandeep Kaur vs Lakhwinder Singh and Others

Ajay Kumar Mittal, J.

This appeal has been filed by the appellant-wife against the judgment and decree dated 1.8.2007 passed by the trial court whereby the petition under Section 13 of the Hindu Marriage Act, 1955 (in short, "the Act") filed by the respondent-husband for dissolution of marriage has been allowed. A few facts relevant for the decision of the controversy involved as available on the record may be noticed. Marriage between the parties was solemnized on 16.10.1991 at Mohalla Prithvi Nagar, Kishanpura, Jalandhar City as per Sikh religious rites. As per averments made in the petition field by the respondent husband in the petition under Section 13 of the Act are that after the marriage, the appellant and respondent lived and cohabited together as husband and wife at Jalandhar. Out of the wedlock, two children namely Malkit Kaur and Manpreet Singh were born and they are presently residing with the respondent. After about one year of the marriage, the respondent started residing separate from his old parents under the compelling circumstances as the appellant was not ready and willing to reside with the parents of the respondent. The respondent was working abroad and used to come only for few months every year due to nature of his job. She used to quarrel on petty matters in the family and always insisted the respondent to live separate from his parents. She also levelled allegation against his father that he tried to outrage her modesty. The respondent even started living separate from his parents. She also levelled allegation against the brother of the respondent that he molested her. She was in illicit relation with one Goldy who used to come to the house of the respondent in his absence and sometimes stayed for night also. The respondent tried his level best to ask the appellant to mend her ways but in vain. When the respondent came on leave from Dubai on 17.6.2004, he was again complained of the unsocial activities of the appellant by the neighbours. Upon notice, the appellant appeared and filed written statement controverting the averments made in the petition. The trial court after examining the entire evidence on record allowed the petition filed by the respondent husband vide impugned judgment and decree dated 1.8.2007. Hence the instant appeal by the appellant-wife.

The trial court on the pleadings of the parties framed the following issues:-

"i) Whether the respondent No. 1 has deserted the petitioner without any reasonable cause? OPP

ii) Whether the respondent No. 1 is living in adultery with respondent No. 2? If so, its effect? OPP

iii) Whether respondent No. 1 is quarrelsome lady and behavior of the respondent No. 1 with petitioner and his parents was not proper? OPP

iv) Whether the petition is not maintainable in the present form? OPP

v) Whether the petition is bad for misjoinder of parties i.e. Respondent No. 2? OPP

vi) Whether the petitioner has no locus standi to file the present petition? OPR

vii) Relief."

In support of his case, the respondent-husband reiterated the averments made in the petition under Section 13 of the Act. He deposed that immediately after the solemnization of the marriage, the appellant started creating trouble in the family by picking up quarrel on petty matters. She levelled false allegations against his father and brother regarding outraging her modesty. In his absence, she developed illicit relations with one Goldy. The respondent even saw Goldy while jumping from his house. On 23.6.2004, a news was published in the Punjab Kesri containing the news that the appellant had eloped with her paramour. DDR No. 18 dated 7.7.2004 was also registered in the police station as Ex. P. 1. She even made statement in the police statement that she was having extra marital relations with the said Goldy. On the other hand, the appellant appeared as RW 1 and produced one witness Harsh Sehgal as RW2 in support of her case. The trial court after examining the entire evidence allowed the petition under section 13 of the Act by the respondent husband and granted decree of divorce for dissolution of marriage to him vide judgment and decree dated 1.8.2007.

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

Learned counsel for the appellant submitted that the finding of adultery recorded by the trial court was erroneous as none of the witness who was present in the police station had been examined. The police officer who recorded the statement has also not been examined. The blank papers were got signed and were used as compromise. No person from the panchayat was produced, the witnesses of the husband are also his close friends from childhood and, therefore, interested witnesses. The grounds of cruelty and desertion were also challenged.

On the other hand, learned counsel for the respondent supported the impugned judgment and decree. He submitted that PW3 and PWS were independent witnesses who were examined. Reliance was placed on judgments in Surf it Kaur v. Avtar Singh and another, 2010 (1) R.C.R. (Civil) 371 , Rajendra Agrawal Vs. Smt. Sharda Devi, Velayudhan Vs. Chandrika, Poonam Kaur Vs. Jagjit Singh, and Manjit Kaur Vs. Santokh Singh and Others, in support of the submission that the wife being in illicit relations with third person, the respondent husband is entitled to the grant of decree of divorce.

Though the husband-respondent No. 1 had claimed divorce on the ground of cruelty, desertion and adultery but the entire emphasis of seeking divorce is based on the adulterous activities of the appellant-wife with respondent No. 2-Goldy.

Section 13(1)(i) of the Act empowers the Court to dissolve the matrimonial ties between the parties by a decree of divorce on a petition by either spouse where the other spouse after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse. The Madhya Pradesh High Court in Rajendra Agrawal''s case (supra) laying down the standard of proof required to establish adultery noticed that direct evidence of its proof is very rare and ordinarily it would be proved by circumstantial evidence and the conclusion of adultery ought to be on the basis of discretion of a reasonable and prudent man. The relevant observations recorded are as under:-

"10. The proceedings for dissolution of marriage by a decree of divorce under the Act are of civil nature and its proof is not to be judged on the touch-stone of'' beyond the shadow of doubt'' but only on the preponderance of probabilities leading to a fair inference as a necessary conclusion on the evidence and from the circumstances of a case. It is well settled that the direct evidence of proof of adultery is very rare and it is therefore accepted as a rule that it can be proved by circumstantial evidence and the circumstances ought to be such which would lead the guarded discretion of a reasonable and prudent man to a conclusion of adultery.

Mulla in his commentary on Hindu Law about such circumstances has expressed that:-

"It is impossible to state those circumstances universally, because they may be infinitely diversified by the situation and character of the parties, by the state of general manners and by many other incidental circumstances apparently slight and delicate in themselves but which may have important bearing upon the particular case".

Similar view had been expressed by this Court in Manjit Kaur''s case (supra) in the following terms:-

"11. In such matters public interest requires that marriage bonds shall not be set aside lightly or without strict enquiry and proof. The act of adultery in its nature is a very secret act. Direct proof could not be available in all cases. It is extremely difficult to get direct evidence and if the Courts insist on direct evidence in proof of adultery it will amount to a denial of the legitimate protection of marital rights. Therefore, proof of actual adultery is not necessary and circumstantial evidence which leads to an inference of adultery is sufficient. The degree of proof need not reach certainty but it must carry a high degree of probability. Hence it is required that appreciation of evidence in such cases must be careful and proper. Only when the evidence is cogent, consistent and reliable, the finding of adultery could be recorded, but where the evidence of the petitioner is lacking in corroboration and is inconsistent and unnatural, no finding of adultery could be recorded."

We proceed to examine the legality and validity of the findings recorded by the trial court on the said issue. The husband in order to prove the adultery had made statement in the form of affidavit Ex. PA wherein the narration of facts as stated in the petition have been reiterated. Admittedly, the marriage between the parties was solemnized on 16.10.1991. The wife from the very beginning had been levelling false allegations that the father-in-law as well as her brother-in-law were keeping evil eyes on her without any substance in such bald allegations. There has been specific reference to event of 19.6.2004 wherein the husband had narrated that on returning back from market, he witnessed that the door of the house was bolted from inside and on giving knock at the door, it was not opened immediately. On seeing upward towards the stair case of the first floor, Goldy-respondent No. 2 was seen jumping to the house of neighbour Mr. Narula and the door was opened thereafter by the wife when Goldy had run away. The condition of the bed room and the clothes of the wife showed that there was objection able relationship between the appellant-wife and Goldy-respondent No. 2. Further, in Punjab Kesri and Jagbani newspaper of 23.6.2004, a news item appeared therein that the appellant-wife had eloped with her paramour. Ex. P1 DDR No. 18 dated 7.7.2004 was also registered in Police Station, Division No. 2, Jalandhar. The statement made by the appellant-wife on 2.8.2004 before the police admitting her illicit relationship with Goldy and living in adultery with him was sufficient to prove the ground of divorce. The cross-examination of Mandeep Kaur (RW1) further fortifies the stand of respondent No. 1-husband regarding adultery. From the analysis of oral as well as documentary evidence, the irresistible conclusion is that the appellant-wife-Mandeep Kaur had illicit relations with respondent No. 2-Goldy and was living in adultery with him.

Issues No. 1, 2 and 3 were taken up together and were decided in favour of respondent No. 1. The relevant findings recorded by the trial court read thus:-

"It is well nigh impossible to bring any eye witness to prove the allegation of adultery. It is to be gathered from the surrounding circumstances. It is a fact that the petitioner for most of the time after marriage remained in Dubai. This gave ample opportunity to the respondents to develop illicit relations with each other which fact stands proved by giving specific incidents not contradicted by the respondents. Publication of the News in Jagbani and Punjab Kesri gave further dimension to the version of the petitioner who is further supported by three independent respectables of the locality. The petitioner and his witnesses have not been cross-examined on the material aspects of their case i.e. on such and such date she had eloped with respondent No. 2 Goldy and returned back after a period of two months. It has been held in Mehnga Singh and Others Vs. Gurdial Singh and Others, that failure to cross-examine on vital issue, adverse inference will be drawn. It has further been held in Rajendra Agrawal Vs. Smt. Sharda Devi, that solitary instance of voluntary sexual intercourse by wife with other person is enough for grant of decree of divorce. The fact that the parties are living separately for a long period serves additional ground. It has come on the record that immediately after the marriage between the parties, their relations had become strained. Respondent No. 1 has levelled very wild allegations against old father in law as well as her brother in law. No particular incident is mentioned as to when they misbehaved with her. In her statement before the police in the shape of document Ex. P2, she has admitted all the allegations levelled against him regarding her illicit relations with respondent No. 2. She openly gave challenge to the petitioner that she is not going to live with him any longer and she will continue to live with respondent No. 2. It is also admitted fact that since 2.8.2004 she has never lived with petitioner and has deserted him. All these proved facts go to establish that a lady i.e. respondent No. 1 has deserted the petitioner without any reasonable cause and further she is living in adultery with respondent No. 2. It further goes to prove that she is a lady of quarrelsome nature and her behavior towards her husband as well as her father in law and brother in law is not cordial. All the three issues are as such decided in favour of the petitioner and against the respondents."

The findings have been recorded by the trial court after appreciating the entire evidence on record. Learned counsel for the appellant has not been able to show any illegality or perversity in the said findings being misappreciation or misreading of evidence on record which may warrant interference by this Court. The trial court was, thus, justified in recording findings against the appellant. Consequently, finding no merit in the appeal, the same is hereby dismissed.

Another issue that arises for consideration relates to payment of maintenance pendente lite under Section 24 of the Act in appeal where the findings of adultery recorded by the trial court are sustained. No doubt, Section 24 of the Act entitles the wife or the husband to maintenance pendente lite and expenses of the proceedings and the conduct of the appellant would not act as a bar for awarding of the same. However, the act of adultery is considered by the Legislature as an offence against the sanctity of the matrimonial home. Those who defile that sanctity are liable for adverse consequences as the infidelity or defection from the normal rectitude in character is not only immoral but is not acceptable as it destroys the basic conjugal set up in the society. Therefore, in our opinion, the ground of adultery proved before the trial court and the said finding being maintained by the High Court on appeal, would be on different pedestal and material factor for denying the right available under Section 24 of the Act to the erring spouse in the appeal filed under Section 28 of the Act. Since the trial court held that the appellant was living in adultery with respondent No. 2 and the said finding has been affirmed by this Court, CMM No. 113 of 2014 is also dismissed.