Renu Rai vs Buddha Kumar Rai

Sunil Kumar Sinha, Actg. C.J.—This Appeal is directed against the Judgment and Decree dated 06.02.2014 passed in Family Court (Civil) Case No. 55 of 2013 by the Judge, Family Court, South and West Sikkim at Namchi. By the impugned Judgment and Decree, a petition filed by the Respondent/Plaintiff (husband) under Section 13(1)(i) and (ia) of the Hindu Marriage Act, 1955 has been allowed and a Decree of Divorce has been granted in his favour.

The marriage between the parties took place in December, 1999. After their marriage, they were residing at Sumbuk, Kamarey, South Sikkim. They have a son, namely, Ujjal Rai, aged about 12 years. The Respondent (husband) filed the petition, inter alia, pleading that he was treated with cruelty by the Appellant (wife). Many instances of cruelty were pleaded in the plaint. According to him, the Appellant used to pass indecent comments using vituperative words over trivial issues and was always quarrelling with him without any rhyme or reason. She was unnecessarily humiliating him by passing undermining remarks and on quarrel causing violence and creating unhealthy atmosphere in day to day life. The Respondent further alleged that the Appellant used to take money from him citing many false reasons and spend all the money lavishly in luxury. When it was objected by him, she used to quarrel and become violent. The Respondent further contended that since June, 2013, the Appellant started residing separately in the canteen run by her, fully ignoring household responsibilities. The Respondent further pleaded that the Appellant had developed extra marital affairs with one Jeewan Rai, a Namchi based businessman. The Respondent also pleaded that on 05.09.2013, the Appellant had filed a Private Complaint (Domestic Violence) Case No. 20/2013 falsely, implicating him, but on 31.10.2013, the same was disposed of as withdrawn. On these accounts, the Respondent pleaded that the Appellant has treated him with mental and physical cruelty and a Decree of Divorce may be granted.

The Appellant filed her written statement and denied the allegations of cruelty as also her relation with Mr. Jeewan Rai. About the complaint, she admitted that it was filed in the concerned Court and the same was ultimately withdrawn.

The learned Judge, Family Court mainly framed two points for determination. First, whether the Appellant has treated the Respondent with cruelty? and second, whether the Appellant had voluntary sexual intercourse with any other person (apart from the Respondent)?

Both the parties led their evidence. On due consideration of entire material, the learned Judge, Family Court recorded the findings that it was proved that the Appellant had voluntary sexual intercourse with Jeewan Rai, which also caused cruelty to the Respondent. Thus, on these accounts, a Decree of Divorce was passed against the Appellant.

Mr. Sudesh Joshi, learned Counsel appearing on behalf of the Appellant, firstly contended that it was not established that the Appellant had voluntary sexual intercourse with Jeewan Rai. He further contended that there was no evidence of cruelty, therefore, the Decree based on these accounts cannot be sustained.

On the other hand, Mr. Zangpo Sherpa, learned Counsel appearing on behalf of the Respondent, contended that there was sufficient material on record to show that the Appellant had voluntary sexual intercourse with Jeewan Rai and she has treated the Respondent with cruelty and the Decree was rightly passed in favour of the Respondent. He cited the decisions of Dr. N.G. Dastane Vs. Mrs. S. Dastane, and Subbarama Reddiar Vs. Saraswathi Ammal, .

We have heard Counsel for the parties.

For the second point, Mr. Joshi contended that nobody had seen that the Appellant was performing sexual intercourse with Jeewan Rai. The evidence comes that Jeewan Rai was in touch with the Appellant as he was frequently visiting the canteen run by her. It also comes in the evidence that the Appellant had visited the house of Jeewan Rai and had stayed there in the night, but by such evidence alone, a finding that sexual intercourse was performed by them cannot be recorded.

True it is that there is no eye-witness to the incident of alleged sexual intercourse between the Appellant and Jeewan Rai. However, it comes in the evidence of Ujjal Rai (P.W. 6), son of the Appellant, that sometime during April, 2013, he had gone to Namchi along with his mother (Appellant), Jeewan Rai and younger sister of his mother. In the night, they stayed in the house of Jeewan Rai. His mother (Appellant) was sleeping on the floor along with him and his aunt. Jeewan Rai was sleeping on the bed next to them. Sometime during the night, he saw Jeewan Rai coming near his mother and laying beside her. On another occasion, they had again stayed in Jeewan Rai''s house at Namchi. During the night, his mother was sleeping in the storeroom and he was sleeping in an adjacent room, along with Jeewan Rai. Sometime during the night, Jeewan Rai entered the storeroom and came out only later.

Ujjal Rai (P.W. 6) was put to cross-examination but nothing could be elicited against the circumstances which he deposed in his examination-in-chief. Why he would depose against his own mother. Mr. Joshi has argued that there was a chance of tutoring. It is true that such possibility always remains with a child witness, but there is absolutely no material on record to take it as proved or even as attempted by the Respondent.

Mr. Joshi further contended that even if we take that Jeewan Rai had entered into the storeroom where the Appellant was all alone, it does not mean that he must have performed sexual intercourse. This argument has to be appreciated in light of the prevailing fact and circumstances of the case.

In Dr. N.G. Dastane (supra), the Supreme Court held that "the normal rule which governs civil proceedings is that a fact can be said to be established if it is proved by a preponderance of probabilities. This is for the reason that under the Evidence Act, Sec. 3, a fact is said to be proved when the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. The belief regarding the existence of a fact may thus be founded on a balance of probabilities. A prudent man faced with conflicting probabilities concerning a fact-situation will act on the supposition that the fact exists, if on weighing the various probabilities he finds that the preponderance is in favour of the existence of the particular fact. As a prudent man, so the court applies this test for finding whether a fact in issue can be said to be proved. The first step in this process is to fix the probabilities, the second to weigh them, though the two may often intermingle. The impossible is weeded out at the first stage, the improbable at the second. Within the wide range of probabilities the court has often a difficult choice to make but it is this choice which ultimately determines where the preponderance of probabilities lies. Important issues like those which affect the status of parties demand a closer scrutiny than those like the loan on a promissory note : "the nature and gravity of an issue necessarily determines the manner of attaining reasonable satisfaction of the truth of the issue" Per Dixon, J. in Wright v. Wright, (1948) 77 CLR 191 at p. 210; or as said by Lord Denning, "the degree of probability depends on the subject-matter. In proportion as the offence is grave, so ought the proof to be clear. Blyth v. Blyth. 1966-1 All ER 524 at p. 536." But whether the issue is one of cruelty or of a loan on a pro-note, the test to apply is whether on a preponderance of probabilities the relevant fact is proved. In civil cases this, normally, is the standard of proof to apply for finding whether the burden of proof is discharged." "Proof beyond reasonable doubt is proof by a higher standard which generally governs criminal trials or trials involving inquiry into issues of a quasi-criminal nature. A criminal trial involves the liberty of the subject which may not be taken away on a mere preponderance of probabilities. If the probabilities are so nicely balanced that a reasonable, not a vacillating, mind cannot find where the preponderance lies, a doubt arises regarding the existence of the fact to be proved and the benefit of such reasonable doubt goes to the accused. It is wrong to import such considerations in trials of a purely civil nature."

In Subbarama Reddiar (supra), it was held that adultery can very rarely, if ever, be proved by direct evidence of witnesses who saw parties in flagrante delicto. In most cases, evidence must be circumstantial. If unrelated person is found along with young wife after midnight, in her bed room, in actual physical juxtaposition, unless there is some explanation for this which is compatible with innocent interpretation, only interpretation must be that two were committing act of adultery together. A note was also taken of the judgment of V. Varadarajulu Naidu Vs. Baby Ammal, , in which it was held that in divorce cases on the ground of adultery, courts can act even upon uncorroborated testimony and grant relief taking surrounding circumstances into consideration. Many other judgments were also taken note of.

In the instant case, on the above principles, proof beyond reasonable doubt would hardly be required as the same being the proof of higher standard which generally governs criminal trials or quasi-criminal matters. In this case, probabilities are to be looked into and if the probabilities and other surrounding circumstances are in such a fashion that a reasonable man can draw only one conclusion, then it has to be drawn. The test to be applied is whether, on the preponderance of probabilities, the fact is proved or not? As stated in Dastane''s case, in civil cases, normally, this is the standard of proof to apply for finding whether the burden of proof is discharged.

The evidence of Ujjal Rai (P.W.-6) appears to be unblemished. According to him, on one occasion the Appellant was seen sleeping with Jeewan Rai in the midnight and on an other occasion in the night when all the family members were sleeping, Jeewan Rai was seen going inside the storeroom, where the Appellant was sleeping all alone. According to Ujjal Rai (P.W.-6) on this occasion, Jeewan Rai had stayed for a reasonably long period in the storeroom. Why Jeewan Rai entered and stayed in the storeroom in midnight, where the Appellant was sleeping all alone. The above circumstances have not at all being explained.

Respondent Buddha Kumar Rai (P.W.-1) has also deposed about one incriminating circumstance. One night when Jeewan Rai had visited his house, he found that the Appellant and Jeewan Rai were chatting in a room. When he peeped, he saw the Appellant massaging the back of Jeewan Rai, who was half-naked (his shirt was not there). On an other occasion in the night, he saw that the Appellant was showing intimacy with Jeewan Rai. When he objected to all this, she started challenging him.

Sunita Rai (P.W.-3) was neighbour of the Respondent. According to her, she most oftenly saw the car of Jeewan Rai being parked in front of the house of the Respondent. Once when she had visited the house of the Respondent, she also saw that Jeewan Rai was sitting on a chair and the Appellant was massaging his shoulders.

The learned Judge, Family Court has held all these surrounding circumstances as incriminating in the said background of the case and has recorded a finding that in the fateful night, when the Appellant had visited the house of Jeewan Rai (second occasion) she had sexual intercourse with him. We are of the view that the said finding is based on sufficient materials on record and the same deserves to be upheld.

The above instances, on the one hand, as we have held, were sufficient to prove the second point i.e. the ground raised under Section 13(1)(i), and on the other hand they were also sufficient to prove the act of mental cruelty committed by the Appellant against the Respondent. In fact, the above conduct of the Appellant must have developed a feeling of deep anguish, disappointment and frustration to the Respondent, which he sustained for quite a long time. The above acts of the Appellant were, in fact, humiliating treatment and were torturing to the Respondent and thus were instances of mental cruelty. (Vide Gurbux Singh Vs. Harminder Kaur, .

There was yet an other instance of cruelty i.e. filing of a false complaint case by the Appellant against the Respondent under Section 12 of the Protection of Women from Domestic Violence Act, 2005 on 05.09.2013. The said complaint was registered as Private Complaint (D.V.) Case No. 20/2013 in the Court of Judicial Magistrate (South) at Namchi. It was alleged in the complaint that the Respondent harassed and tortured the Complainant/Appellant and failed to fulfill his responsibility as a father. Further, the Appellant was brutally assaulted and kicked out of her house and that she faced dire financial hardship as no financial support was given to her by the Respondent. In the said case, notice was issued to the Respondent, who appeared before the Magistrate and was released on bail upon furnishing Personal Bond and Surety Bond of Rs. 10,000/- each. Later on, this complaint was withdrawn by the Appellant on 31.10.2013. If we look at the pleadings in this regard, it is in the following manner vide paragraph 19 of the plaint:--

"19. That, on 05/09/2013, the Respondent had filed a Private Complaint Domestic Violence Case against this Petitioner falsely implicating him, which was registered as Private Compt. (D.V.) Case No. 20/2013, but on 31-10-2013, same was disposed as withdrawn." The Appellant has filed her written statement and in paragraph 12 of the written statement she admitted the contents of above paragraph 19 of the plaint, stating therein in the following manner:--

"12. That with reference to the statements made in paragraph numbering 19 of the ''said application'', is admitted by this answering Respondent." 22. Thus, on the principles of admission, the facts pleaded by the Respondent vide paragraph 19 of the plaint that the Appellant falsely implicated him in the said Domestic Violence case was fully admitted by the Appellant vide paragraph 12 of her written statement, and the net result of the above admission was that the case registered under Domestic Violence Act was a false case and the Respondent was falsely implicated by the Appellant. Though the above case was ultimately withdrawn by the Appellant, but the humiliation and agony suffered by the Respondent on above false allegation cannot be denied and it was also an instance of cruelty against the Respondent. [Vide G.V.N. Kameswara Rao Vs. G. Jabilli, ; Narendra Kumar Gupta Vs. Smt. Indu, ; Smt. Kavita Vs. Harish Raisen, ; Smt. Mamta Shrivastava Vs. Taresh Kumar Shrivastava, and Smt. Sangeeta Shukla Vs. Ganesh Shukla, .

For all these reasons, we do not find any substance in this Appeal. The Appeal is dismissed.

The parties shall bear their own cost(s).

A decree be drawn accordingly.