Usha Rani vs Pardeep Kumar and Others

Sarojnei Saksena, J.—This is wife''s appeal filed u/s 28 of the Hindu Marriage Act (in short the ''Act'') against the decree of divorce granted by the lower Court in favour of the husband.

The uncontroverted facts of the case are that the appellant was married to the respondent on 16.11.1991 as per Hindu rites. She lived with the respondent till 26.10.1992.

On 9.3.1993 the husband-respondent filed the divorce petition alleging that the wife is a lady of bad character and had illicit connection with Sukhbir alias Raju and Rajesh, who are brothers of her elder sister''s husband. These persons are living in the close vicinity of the wife''s parental house. He also alleged that the appellant-wife was, in fact, pregnant from Raju or Rajesh respondents 2 and 3 and got herself aborted before the marriage. On the nuptial night when the husband wanted to consummate the marriage, the appellant-wife claimed that she has been advised by the lady doctor to avoid sexual intercourse. He also alleged that after 10/15 days of the marriage, the appellant-wife went back to her parental home. The husband went to her parental house at Hisar on 10.1.1992 and noticed that respondent Raju was lying in the bed of appellant-wife in compromising position. At that time the parents of appellant-wife were not at home. When they came back, the husband-respondent narrated the incident to them and came back to Bhiwani and then, informed his parent also about the said incident. In February, 1992, father of appellant-wife with some respectables of the locality came to respondent-husband''s house and requested to rehabilitate the appellant-wife and assured him that such lapse would not be repeated. Respondent-husband''s parents allowed the appellant-wife to be kept at Bhiwani. Respondent-husband has also alleged that on 16.3.1992 when be returned from the Bank where he is working as a Peon and reached the house at about 7.15 P.M., he noticed that respondent-Rajesh was with the appellant-wife. Both were naked. Rajesh immediately escaped from the house. Respondent-husband gave a massage to the parents of appellant-wife whereupon her father took her away. But again in September, 1992 her father came with relatives and again requested for her rehabilitation. Thereafter, appellant-wife started living with the respondent-husband. In October, 1992 appellant-wife threatened the respondent-husband that she wanted to go to her parental home. If she will not be sent, she will commit suicide and thereafter on 26.10.1992 in husband''s absence, she left the matrimonial home and went back to her parental home. On these grounds of having sexual intercourse with respondents 2 and 3 and treating the husband with cruelty, he prayed for a decree of divorce.

The wife filed reply and denied all these allegations and alleged that the husband demanded more dowry which her parents were unable to pay and therefore, she was turned out of the matrimonial home. She has specifically denied that she gave birth to any child but averred that on the date of filing of the written statement, i.e., on 16.4.1993 she had seven months'' pregnancy.

Respondents 2 and 3 also filed separate written statement and denied the allegations made in the petition.

The trial Court framed three issues. Issue No. 1 was decided in favour of the husband-respondent while issue No.2 was decided against him. Relying on the oral and uncorroborated testimony of the husband-respondent, the trial Court held that the appellant-wife had illicit relations with Sukhbir alias Raju and Rajesh respondents 2 and 3 and on this ground, a decree of divorce was granted in favour of the husband-respondent.

The appellant-wife''s learned counsel vehemently argued that initially the divorce petition was filed on 9.3.1993, which was subsequently amended on 8.5.1993. The husband pleaded that he saw the appellant-wife in compromising position with Raju on 10.1.1992 and with Rajesh on 16.3.1992 but still he not only pleaded but has also admitted on oath that till 26.10.1992 appellant-wife was residing with him. Thus, according to him, by willingly cohabiting with the appellant-wife till 26.10.1992 the husband has condoned the alleged moral lapse of the appellant-wife. According to him, on this ground alone the husband''s petition ought to have been dismissed.

The appellant''s learned counsel further fervently argued that the trial Court has misread the evidence, has not considered this fact that the husband has not examined any other witness to corroborate his interested testimony. The wife in her written statement has denied all these allegations of alleged adulterous act but the husband did not file any replication thereafter. Even this fact was not considered by the trial Court. The trial Court fell into an error in allowing the husband''s petition as he has not discussed the evidence adduced by the appellant-wife. She not only examined herself but also examined her father to disprove all these allegations. Thus, there was oath against oath. Why the lower Court accepted the oath of the husband, is beyond any comprehension. There is hardly any cogent reason assigned by the lower Court why the evidence adduced by the appellant-wife was not at all discussed and simply relying on the husband''s uncorroborated testimony, the petition was allowed. Relying on Smt. Sulekha Bairagi v. Prof. Kamala Kanta Bairagi and Anr., AIR 1980 Calcutta 370, he submitted that in such matters, corroboration should be insisted on.

Respondent''s learned counsel relying on Subbarama Reddiar Vs. Saraswathi Ammal, and Adelaide Mande Tobias Vs. William Albert Tobias, vehemently argued that in such matters direct evidence can hardly be adduced. Such cases are to be decided on the basis of circumstantial evidence to be proved by the person who raises such a plea. In this case, the husband has clearly stated on oath that even before the marriage, she had illicit relations with some other man and she was aborted in October, 1991. After marriage, when she was living in her parental home, the husband went to her father''s house on 10.1.1992. He reached there in the morning and saw Usha appellant in a compromising position with Sukhbir alias Raju. He made a complaint of her behaviour to her elder sister. On seeing him, Raju left the house. He came back and told his parents about the misconduct of his wife. A panchayat was also convened and in view of the compromise arrived at, she was rehabilitated by him.

Respondent-husband''s learned counsel also pointed out that the husband has further stated on oath that on 16.3.1992 respondent Rajesh came to his house. He saw Rajesh in compromising position with the appellant-wife in his house and at that time his parents were not at home. On seeing him, Rajesh left his house. Thereafter, his parents again wrote a latter to her father whereupon her mother came and took her away. In September, 1992 again a panchayat was convened and they decided that the last opportunity is given to the appellant-wife. If she does not behave properly, they would themselves take action. In this panchayat, appellant-wife''s father, Tilak, Janak, Ramesh and Chandu Lal participated. Thereafter, appellant-wife lived with the husband till 26.10.1992. However, as she wanted to go to her parents house and started giving threats to him, her father was called and she left the matrimonial home along with her father. Thereafter, she never came back to the matrimonial home. Thus, he submitted that the husband gave convincing and reliable statement and proved that the appellant-wife had indulged in sexual intercourse with respondents Rajesh and Raju and therefore, according to him, the trial Court has rightly granted a decree of divorce on this ground.

In Adelaide Mande Tobias''s case (supra) it is held that "where adultery has been charged in a divorce petition, it is not necessary that there should be direct evidence since it is not easily available and direct proof is rather rare. But the circumstantial evidence must be sufficiently strong and conclusive. Association coupled with opportunity, illicit affection, undue familiarity, guilty attachment are some of the instances which create an inference upon which the Court can act. The burden of proof is always on the person alleging adultery not so much because there is any legal presumption in favour of morality as on the plain common sense that a person who asserts a fact must prove it.''

In Subbarama Reddiar''s case (supra) also it is held that "adultery can very rarely, if ever, be proved by direct evidence of witnesses who saw parties in flagrante delicto". It is further observed that in most of cases evidence must be circumstantial.

"It is also observed that if unrelated person found alone with young wife after midnight, in her bedroom, in actual physical juxtaposition, unless there is some explanation for this which is compatible with innocent interpretation, the only interpretation that a Court of law can draw must be that two were committing act of adultery together."

In this case the husband has pleaded that on 10.1.1992 when he went to her parental home at Hisar, he saw his wife and Raju lying on a bed in a compromising stage. He has also pleaded that on 16.3.1992 when he came back to his house in the evening at about 7.15 he saw Rajesh and his wife lying in a bed in a compromising position and both were found naked on the bed and on knocking at the door by the petitioner, the door was opened and said Rajesh ran away. To prove these allegations, the husband examined himself. On oath, he has stated that on 10.1.1992 when he went to her parental home at Hisar, he reached there in the morning and saw his wife in a compromising position with Raju. What he means by this compromising position, he has not clarified on oath. He has also stated that on seeing him, Raju left the house. He made a complaint to the elder sister of his wife, came back to his house and informed his parents also about the misdeeds of his wife. His parents wrote a letter to her parents and thereafter a panchayat was convened and a compromise was arrived at, the wife started living with him. He has also stated that on 16.3.1992 respondent Rajesh came to his house and he saw Rajesh in a compromising position with his wife at his house. His parents were not at home. On seeing him, Rajesh left the house. Thereafter also, his parents wrote a letter to her father. Her mother came and took her away. He has also stated that in September, 1992 a panchayat was convened which consisted of Chandu Lal, father of respondent, Tilak, Janak and Ramesh. These persons are not examined by the husband though he has stated that the members of the panchayat gave last opportunity to his wife to improve her behaviour otherwise, they would take action themselves. He has admitted that the wife lived with him till 26.10.1992. In cross-examination, the husband stated that he saw Rajesh and Usha naked. They wore the clothes on seeing him and Usha touched her feet not to tell anything to anyone. This statement appears to be most improbable. As according to him, he saw Rajesh in his own house, though he has not given time on oath, but in the petition, he has alleged that he came back to his house at 7.15 in the evening. He has not stated whether the door of the room was bolted or not, whether he knocked at the door and thereafter the door was opened. He has not even stated as to who opened the door and whether the person who opened the door was standing naked before him or till then they wore the clothes. If the door was closed then, it was not possible for him to see that Rajesh and appellant Usha were naked. He has not given the details as to when they put on clothes. If the door was not bolted then the evidence was not improbable. If the door was bolted from inside then naturally after putting on the clothes, they must have opened the door. He could have examined any neighbour to prove at least this fact that at that point of time, they saw Rajesh either coming to his house in his absence or leaving his house when he reached his house. He has not even examined the alleged members of the Panchayat. He could have examined his parents as well to corroborate his statement as he has testified that on both the occasions, he informed his parents about the mis-deeds of his wife.

Thus, according to me, the statement of the husband is most improbable and unrealiable and without corroboration, the lower Court should not have relied on his interested testimony. He has made allegations of character assassination against his wife without any rhyme or reason. The wife has denied all these allegations. According to her, the husband demanded dowry and on that count she has been foresaken. She has also stated that no child was born to her earlier, but she gave birth to her husband''s son on 31.5.1993. When she filed written statement, she made specific averment that she is having seven months'' pregnancy. Her father has corroborated her on all these points. He has stated that the husband and his relations were demanding the dowry and on that count, they were beating the appellant-wife. He is categoric that he went to the husband''s house for compromise, but he did not allow him to enter the house and specifically told him that they have no relations with them and the matter will be decided in the Court.

The trial Court has not discussed the evidence of appellant-wife and her father. No doubt, the allegations of character assassination can be made by the husband against his wife which are very easy to make, but it is difficulty to prove them. No doubt, the direct evidence cannot be adduced with regard to such allegations but if the husband chooses to adduce direct evidence, he must prove this fact to the satisfaction of the Court. The husband''s statement, as I have already discussed above, suffers from inherent improbabilities and infirmities and thus, his statement is totally unreliable. The wife is living in her parental home since 26.10.1992. He is willing to take her back along with child. The wife is also willing to go to her matrimonial home along with child. But the only dispute between the parties is that she is willing to go back to the matrimonial home only after he comes to her parental home to take her to the matrimonial home. She is justified in demanding such course of conduct from her erring husband.

Further it is also apparent on record that if at all there was any minor moral lapse on the part of the wife, it was condoned by the husband as he lived with her till 26.10.1992. Had it been true that he saw his wife indulging in sexual intercourse with Sukhbir alias Raju and Rajesh in January, 1992 and in March, 1992, he would not have lived with his wife till 26.10.1992. This evidence further reveals that he has cordoned the alleged moral lapse. The trial Court has not considered all these facts and simply relying on uncorroborated testimony of the husband, it has granted a decree of divorce which cannot be sustained.

Accordingly, the appeal is allowed. The decree under appeal is set aside.