Patta Dhanalakshmi vs Patta Ramachandra Rao

Motilal B. Naik, J.—This appeal is directed against the judgment in O.P. No. 41 of 1989 dated 1 MI-1994 on the file of the Court of the Principal Subordinate Judge, Visakhapatnam.

The appellant is the wife while the respondent is the husband. The respondent-husband instituted O.P. No. 41 of 1989 u/s 13(1)(i) of the Hindu Marriage Act praying the Court to grant decree of divorce against the appellant-wife on the ground of adultery.

In the petition filed by the respondent-husband it was alleged by him that he married the appellant-wife on 26-5-1983 at Jami village as per the Hindu rites and custom and he set up his house at Visakhapatnam where both of them lived together. His is a lame person, permanently handicapped. The marriage was consummated, and he came lo know that the appellant-wife had undergone abortion prior to the marriage. He questioned the lapse on the part of the appellant -wife. The appellant-wife admitted the lapse but pieaded that she would rectify the mistake and live amicably with him. Since he is a layman and after getting assurance from the appellant-wife that she would remain faithful to him in future he did not raise this dispute before the Court or the ciders.

According to the respondent-husband, after few months of their marriage, the appellant-wife was behaving strangely abusing him on Ihe ground of his lameness. He further alleged that the appellant-wife informed him that she would not like to lead a conjugal life with him as he is a lame person. However, in the month of March, 1987 the appellant-wife went lo the house of her parents at Kasimkota. It is only on 10-2-1988 he went to the house of the appellant-wife and brought her back. Between March, 1987 and 10th February, 1988 he had no access to his wife and there was no conjugal relationship with his wife. By 10th February, 1988 the appellant-wife had been pregnant but he did not know that fact. On 2-4-1988 the appellant-wife was taken to a lady Doctor who confirmed that she was pregnant for 12 to 14 weeks.

According to the respondent-husband since he had no cohabitation with his wife from March, I987 till 10th February, 1988, the wife becoming pregnant by April, 1988 and the pregnancy being 12 to 14 weeks, he suspected that his wife had extra-marital relationship with someone and as a result she was pregnant. He desired to know the reasons but the appellant-wife evasively answered and did not give satisfactory reply. The respondent-husband also alleged that he stopped cohabitation with his wife from 2-4-1988 and cohabitation was not resumed uplo the date of filing of the petition which was presented in Court in the year 1989. According to him on 27-5-1988 the appellant-wife underwent screening in K.G. Hospital, Visakhapatnam and her pregnancy was confirmed lo be about 19 weeks 5 days. Basing on the scanning report, Ex.. A-2 issued by the hospital authorities, he suspected that his wife had extra-marital relationship with someone without his consent and, therefore, presented the petition seeking divorce on the ground of adultery.

In the counter filed by the appellant-wife in the lower Court she admitted the fact of she being married to the respondent. But, however, she denied the allegation that she had extra-marital relationship with any person. According to her the marriage with the respondent was arranged because the respondent was related to her. She further alleged that they had a female child born on 31-5-1984 who died later. The mother of the respondent-husband was torturing her and was subjected to cruelty as a result of which she was menially shocked and she was treated by Dr. Murali and subsequently in the Government hospital as an in-patient. During her stay in her parent''s house her husband used to visit quite often and stay in their house and had conjugal life with her as and when he used to visit their house. She admitted the facts that on 10-2-1988 she was taken hack by her husband to Visakhapatnam where they stayed as wife and husband again resuming their marital relationship. On 3-8-1988 her parents came to Visakhapatnam and took her for delivery and on 18-10-1988 she was blessed with a male child. According to her neither her husband nor his mother came to see the newly born child. She denied that she developed illicit intimacy with any person.

The respondent-husband besides examining himself as PW-1, examined PW-2 and got marked Exs. A-1 to A-10. Ex. A-1 is the out-patient chit dated 25-5-1988 issued by the hospital authorities. Ex. A-2 is the scanning report dated 27-5-1988. Exs. A-3 to A-10 are the letters of correspondence between the appellant-wife and the respondent-husband. On behalf of the appellant-wife she got examined hercself as DW-1.

On the basis of the oral and documentary evidence, keeping in view the allegation by the respondent-husband that during the period from March, 1987 till 10-2-1988 there was no cohabitation between him and his wife and that the Doctor''s observation that the pregnancy of his wife by 27-5-1988 was 19 weeks 5 days and in the light of the letters addressed to the husband particularly Exs. A-4 to A-7 and Ex. A-10 the lower Court held that the respondent-husband, had no access to his wife and cohabitation was not resumed during the period from March, 1987 till 10-2-1988 and in the light of the medical report which was against the appellant-wife, ordered the petition filed by the respondent-husband for divorce holding that the allegation of the respondent-husband that the appellant-wife is leading extra-marital life is proved and thus a decree of divorce is granted in favour of the respondent-husband against which the appellant-wife preferred the present appeal.

Heard Sri P. B, Vijaya Kumar, learned counsel for the appellant-wife exhaustively and also heard the learned counsel for the respondent-husband. The learned counsel for the appellant-wife mainly contended that even though the respondent-husband has failed to show that during March, 1987 and February, 1988 there was no resumption of cohabitation between him and his wife, the lower Court erroneously ordered decree of divorce holding that the allegation of the husband that during this period there was no cohabitation between the parties. The learned counsel also contended that in cases of this nature Courts are expected to view the entire evidence compassionately and contended that the burden is always on the petitioner who alleges adulterous acts by the other spouse lo prove that allegalion. The learned counsel stated that the respondent-husband has pleaded that from March, 1987 till 10th February, 1988 there was no cohabitation and it is for him to prove that there was no cohabitation and that his wife had developed extra-marital relationship with someone. The learned counsel further staled that the letter dated 5-2-1988, Ex. A-7, written by the father-in-law of the husband requiring him lo come to his house and to take his wife back lo Visakhapatnam along with him, the husband acted very swiftly and came to his father-in-law''s house and took his wife along with him to Visakhapatnam. The learned counsel stated that when the respondent-husband alleged that from March. 1987 to February, 1988 there was no cohabitation between the husband and wife and they were not on good terms. Quick response to the letler Ex. A-7 dated 5-2-1988 by the respondent-husband would invariably show that the respondent-husband had maintained contacts with his wife, and there was a suggeslion to him to take his wife along with him on a particular there (sic), and therefore, contended that the inner things which cannot be explained could have been noticed by the Court below in proper perspective. Apart from these submissions, Ihe learned counsel has drawn our attention to the letters particularly Exs. A-4 to, A-9, and the contents of Ex. A-10 and stated that these letters failed to throw any light on the allegation as to the appellant-wife having developed illegal intimacy with third party, and therefore, pleaded that the view of the lower Court, basing on Exs. A-4 to A-10 that the respondent-husband had stayed away and had not shown any interest to lead marital life with his wile during the period from March, 1987 to February, 1988 cannot be believed. The learned counsel slated that the conclusion arrived at by the Court below is erroneous and the decision rendered by the Court below cannot be sustained and it has to be set aside.

In support of his varied eontentions, the learned counsel for the appellant-wife has drawn our attention to the decision of the Supreme Court in Smt. Dukhtar Jahan Vs. Mohammed Farooq, . While relying on the decision, the learned counsel submitted, that the burden is always on the other spouse wh o alleges adultery against his spouse, and in the absence of such burden being proved, the wife cannot be held to be defaulter.

On hearing the varied submissions made by the learned counsel, the only point for consideration is whether the lower Court is justified in granting a decree of divorce on the ground of the appellant-wife leading an adulterous life without the consent of her husband.

As already mentioned, the respondent-husband got himself examined as PW-1 and has examined one Dr. A Chandrakala Devi as PW-2. So far as the appellant-wife is concerned she got herself examined as DW-1. In the entire evidence of PW-1 he is categorical on the point that his wife had an abortion prior to marriage which fact he came to know when nuptial function was arranged. According to him he noticed the unusual behaviour of his wife and questioned her. She admitted the fact of her having extra-sexual relationship with other person but pleaded that she may be excused and she would co-operate with him and lead faithful life, with him. It is in the evidence of PW-1 that he being a handicapped person and knowing the fact of his wife had already undergone abortion, he may not be in a position to marry another girl as nobody would be forthcoming to ma rry him, he condoned the mistake on the part of his wife and advised her to settle down with him honestly. PW-1 further deposed that after the marriage being consummated and after realising that his wife had undergone abortion he condoned the mistake of his wife and the matrimonial relationship was resumed. He further deposed that his wife had a child born to her who died later, and as a result of the death of the child she was mentally upset and she had to be treated by a competent surgeon in the Government Hospital at Visakhapatnam. Thereafter, according to the respondent-husband, he sent his wife in the month of March, 1987 in the company of her parents to he r native place Kasimkota which is about 40 to 45 Kms. from Visakhapatnam and she stayed there upto 10-2-1988. In his deposition he further stated that during this period from March, 1987 to February, 1988 he did not resume cohabitation, It is only on the basis of the letter Ex. A-7 dt. 5-2-1988 written by his father-in-law, he went to Kasimkota on 10-2-1988 and brought her back to his society. He resumed cohabitation but in the month of May, 1988 he found her vomiting and that was the reason for him to take.her to a Doctor and was examined. Necessary screening test was also done. He further deposed that Ex. A-1 is the out-patient chit and Ex. A-2 is the screening report dated 27-5-1988. According to the Doctor by that time, the wife was pregnant by 19 weeks 5 days. He further deposed he was certain that his wife had developed extra-marital relationship with somebody while her stay at Kasimkota and filed petition for dissolution of the marriage between him and his wife. Apart from examining himself he also got examined Dr. A Chandrakala Devi as PW-2. In her evidence PW-2 deposed that on 25-5-1988 the appellant-wife was examined and an out-patient chit was given under Ex. A-1. According to her the appellant-wife was clinically examined and a screening test was also held on 27-5-1988. In the screening test it was found that she was pregnant, by that lime, by 19 weeks and 5 days. 13. The evidence of PW-2 thus justify the allegation of the respondent-husband that his wife had become pregnant while she was in her parent''s house and that too in the absence of resumption of cohabitation between him and his wife during the period from March, 1987 to February, 1988.

The appellant-wife as DW-1 deposed that she stayed in her parent''s house from March, 1987 to February, 1988. Of course she has denied the suggestion that she had developed extramarital relationship during this period. She deposed that her husband used to visit her quite often during this period and then martial relationship continued, in other weirds, the consummalion conlinued.

In the background of the respondent''s allegation that there was no cohabitation between him and his wife from March 1987 and ,;.n the light of the medical evidence particularly Exs. A-1 and A-2 which throw light on the question of the wife being pregnant by 19 weeks and 5 days by 27th May, 1988 it would have been probable, the wife should have examined some others to suggest that the respondent-husband used to visit her house and stayed overnight s and cohabitation continued. The appellant-wife has neither examined her parents nor any other person to support her version that the respondent-husband had been visiting her house. Excepting her self-serving statement it is difficult for this Court to believe that the respondent-husband was visiting her place between the period from March, 1987 to February, 1988 and that the cohabitation continued with her. That apart the letters Exs. A-4 to A-7 and A-10 would reveal that the respondent husband was not visiting his wife in Kasimkota. The letter, Ex. A-10 dated 6-6-1988 written by the brother-in-law of the respondent-husband throws much light on the allegations made against his wife by the husband which reads as under:

(Vernacular matter is omitted).

We understand that this letter is intended to show that the relations of the appellant-wife including her brother wanted his sister to be sent back and they admitted the mistake committed by the appellant-wife. There is no explanation on the contents of this letter which is an incriminating piece of evidence against the wife''s conduct. In the absence of any explanation, we are of the view that the allegation made by the respondent-husband against his wife seems to be proper.

As discussed above, the lower Court has based its finding in the light of the evidence of PW-1 coupled with the supporting medical evidence that the appellant-wife was leading an extra-marital life during her stay in her parent''s house between March, 1987 to February, 1988 as a result she was pregnant by 19 weeks and 5 days by 27-5-1988. The finding of the lower Court is also based on the exchange of letters particularly Exs. A-4 to A-10 between the parties and the Court below has come to a reasonable conclusion that there was no resumption of cohabitation between the parties during the period from March, 1987 to February, 1988.

Though the learned counsel for the appellant-wife has drawn our attention to the decision of the Supreme Court in Dukhtar Jahan v. Mohd. Farooq (supra), we have no hesitation to say that the principle laid down by the Supreme Court, has no application to the facts of the present case. The question is whether in the set of circumstances, the principle laid down by the Supreme Court would accrue to the benefit of the appellant-wife. On reading of the decision, we are inclined to say, in the set of circumstances, the principle evolved goes against the appellant-wife. It was held by the Supreme Court that as long as the parties fail to show that there was access to each other, the question of conception would not arise. In this case, the respondent-husband has alleged that there was no access to his wife. On the contrary, the appellant-wife pleaded that her husband used to come and visit her house and the cohabitation continued. In the absence of any supporting evidence on behalf of the appellant-wife to show that her husband used to visit her house during the period from March, 1987 to February, 1988 and that the cohabitation continued between them, we do not think the law laid down by the Supreme Court could be made applicable to the facts of this case. On the contrary, the principle, undoubtedly, shows that when there is no access bewcen the parties, there is no possibility of the wife to become pregnant through the husband. In this view of the matter, we are inclined to hold that the submission made by the learned counsel for the appellant-wife, is not tenable.

As discussed, viewed from any angle, we are satisfied that the Court below has taken all the reasonable precau t ions which were needed. The lower Court was satisfied with the evidence let in by the respondent-husband against his wife. In our considered view the lower Court was satisfied in granting divorce against the wife. We confirm the decision of the lower Court under appeal and dismiss the appeal filed by the wife. No costs.