Premlata Vithal Ketkar vs Vithal Dhondiram Ketkar and Another

M.L. Dudhat, J.—This second appeal is preferred against the judgment and decree dated 19th of June, 1985 passed by the District and Sessions Judge, Ratnagiri in Civil Appeal No. 133 of 1981 preferred against judgment and decree passed by the Civil Judge Senior Division, Ratnagiri dated 4th of July, 1981 in Marriage Petition No. 313 of 1979. By the aforesaid judgment and decree, the lower Appellate Court allowed the appeal and passed the decree of dissolution of marriage in favour of Respondent No. 1.

Few facts which are necessary to dispose of this second appeal are as under:

Respondent No. 1 - husband in this case filed Marriage Petition No. 313 of 1979 for divorce u/s 13(1) of the Hindu Marriage Act, 1955 against the present Appellate-wife on the ground of adultery. In the aforesaid Marriage petition, petitioner-husband i. e. Respondent No. 1 also made Respondent No. 2 as party opponent, who indulged in adultery. The trial Court by its judgment and decree dated 4th of July, 1981 dismissed the Marriage Petition on the ground that Respondent No. 1 - husband had not proved the act of adultery as against the present appellant and Respondent No 2. The trial Court held that the writing given by the appellant wife more particularly Exhibits 32 and 33, were under coercion and therefore, cannot be relied upon. The trial Court held that taking into consideration the overall facts and circumstances the allegations of the Respondent No. 1 - husband are not, probable. Against the said judgment and decree passed by the trial Court, the Respondent No. 1 preferred an appeal before the District Judge, Ratnagiri, being Civil Appeal No. 133 of 1981. The appellate Court held that the evidence as led by Respondent No. 1 - husband was sufficient to show that the present appellant was in adultery with respondent No. 2 and, therefore, Respondent No. 1 - husband is entitled to get the decree of divorce. Against the aforesaid judgment and decree of the lower appellate Court, appellants-wife has preferred this second appeal.

Mr. S.M. Mamane, learned Counsel appearing on behalf of the appellant-wife strongly contended before me that the decision of the lower Appellate Court is based on conjectures and surmises and, therefore, the same is liable to be set aside- Mr. Mamane, learned Counsel appearing on behalf of the appellate drew my attention to the observations made by the trial Court and submitted that it is difficult to accept the contention of the Respondent No. 1 - husband that his wife the appellant had addressed a letter to him, which is at Exhibit 32, wherein she admitted the act of adultery. Further, it was argued on behalf of the appellant that the contents of the letter Exh. 32 also show that it was Respondent No. 2 who had raped the appellant against her wish and, therefore, she has not indulged in adultery. On the other hand, Mr. Jamdar, learned Counsel appearing on behalf of the Respondent No. 1 - husband contended that the decision given by the lower appellate Court, on facts, should not be disturbed in the second appeal, more particularly when there is a written admission on the part of the present appellant to the effect that she was in adultery with Respondent No. 2.

I have heard both the sides at length it is the case of the Respondent No. 1 - husband that somewhere in the year 1972 the appellate-wife was bitten by a dog and, therefore, she was taken to Ratnagiri for taking treatment in the Civil Hospital. Respondent No. 1 kept the appellate at the house of his friend Chandrakant Gavali, teacher and asked her to remain there till her treatment was over. It appears that after Respondent No. 1 left Ratnagiri for his village the appellant left the place of this Chandrakant Gavali and started residing in the house of Respondent No. 2 who is the cousin brother of the present Respondent No. 1. There, in the house of Respondent No. 2 , she had immoral sexual relationship with Respondent No. 2. When the said fact of her having immoral relationship with Respondent No. 2 was brought to the notice of the Respondent No. 1, Respondent No. 1 asked for an explanation from the Appellant, wherein the appellant confessed in writing that she has sexual intercourse with Respondent No. 2 during her stay at Ratnagiri. The aforesaid writing is Exhibit 32 dated 23.1.1973. The husband also relied on the contents of an inland letter Exhibit 33 produced by appellant-wife. The said Exhibit 33 is a letter written by appellant-wife to Respondent No. 2 and it is dated 2-2-1937. On the basis of this letter and the depositions, the lower appellate Court came to the conclusion that the evidence on record sufficiently shows that the appellant-wife was in adultery with respondent No. 2 during her stay at Ratnagiri and therefore, passed the decree of dissolution of marriage u/s 13(1) of the Hindu Marriage Act, 1955. It is this finding, which is the subject-matter of challenge in this second appeal.

It is an admitted position that Respondent No. 1 took the appellant from his village to Ratnagiri for taking treatment in the Civil Hospital as she had been bitten by a dog. It is the case of the Respondent No. 1 husband that he left the appellant, his wife at the house of his friend Chandrakant Gavali and that the appellant left the house of the said Chandrakant Gawali after his departure and started living, with Respondent No. 2, with whom she developed illicit connections. On the other hand, it is the case of the present appellant-wife that in fact her husband had left her in the house of Respondent No. 2, who happens to be the cousin brother her husband and she was staying with Respondent No. 2 along with the old father of Respondent No. 2 and maid servant. Mr. Mamane, learned Counsel appearing on behalf of the appellant-wife contended that admittedly Respondent No. 2 is the cousin brother of Respondent No. 1 and, therefore, it is natural that he will keep his wife in the custody of his cousin brother rather than in the house of his friend Chandrakant Gavali and, therefore, the trial Court was right in coming to the conclusion that Respondent, No. 1 husband has deliberately fabricated the evidence to prove the case of adultery against the appellant-wife. Though there is some substance in this argument, but the said argument cannot be accepted, because in this case there is direct evidence which will go to show that the appellant was having illicit relations with Respondent No. 2 Firstly, Respondent No. 1 relied upon the letter which is at Exhibit 32 dated 23.11.1973. In the aforesaid letter, in her own hand-writing appellant had stated that though Respondent No. 1 husband had kept her at the house of Gavali Guruji at Ratnagiri, but still she started living with Respondent No. 2, his cousin, behind his back. She stated that Respondent No. 2 took her to his house by special car and she was staying with him when there was nobody in the house she used to sleep in his room and on few occasions he had intercourse with her against her wish. She had also stated in her letter that she was very sorry for whatever had happened and hereafter she will not keep any illicit relations with any body and lead a disciplined life. About this letter, appellant admitted that the said letter Exhibit 32 is in her hand-writing she however, contended that since her husband was beating her out of coercion she had written the said letter as dictated by her husband. According to my opinion, it is very difficult to believe this defence of the present appellant. Present appellant contended that at the time of writing this letter, cloth was put in her mouth and she was beaten and Respondent No. threatened to kill her and in order to avoid that beating, when the cloth was in her mouth, she had written this letter which is at Exhibit 32 . If one looks at Exhibit 32, the letter is written in a clean hand-writing and it does not reflect any disturbed state of mind. Secondly, it is her case that she was driven away by her husband after getting the said letter written by her. If that be so, she has not made any complaint anywhere about the said beating or about the said coercion till the matter reached the Court. Therefore it is very difficult to accept the argument on behalf of the present appellant that the aforesaid letter at Exhibit 32 was written by the appellant at the behest of Respondent No. 1 under coercion. This letter clearly admits that at few times Respondent No. 2 had sexual intercourse with the appellant. In this letter also the appellant has admitted that though Respondent No. 1 had left her at the house of his friend Gavali, behind his back she left the house of Gavali and started living with Respondent No. 2.

There is also one more letter on record which is Exhibit 33 and it is dated 2-2-1973. This is the letter written by the present appellant to Respondent No. 2 on an inland letter wherein she has stated to Respondent No. 2 that inspite of the beating by Respondent No. 1 husband, she had not disclosed to him what had happened at the room of Respondent No. 2 during her stay at Ratnagiri. The letter also shows definite intimate relationship between appellant and Respondent No. 2. The way in which this letter is addressed by appellant to Respondent No- 2 falsifies the possibility of respondent No. 2 having sexual intercourse with the appellant against her wish. In view of this and in view of evidence as a whole, according to my opinion, there is no need to disturb the finding of fact arrived at by the lower appellate Court.

Hence this appeal is dismissed with no order as to costs.