Varadharajan John D. Britto vs Saraswathi and Moni

P.P.S. Janarthana Raja, J.—This Civil Miscellaneous Appeal is filed against the Fair and Decreetal Order of the Principal District Court at

Perambalur dated 15.12.1999 in I.D.O.P. No. 2 of 1999.

Background facts in a nutshell are as follows:

The marriage between the appellant and the first respondent was solemnised on 23.05.1973 at St. Joseph Church, Narkunam, Perambalur Taluk,

Tiruchirapalli District according to the rules, rites, ceremonies and custom of the Roman Catholic Church. The marriage was an arranged one. They

have three children. At the time of marriage, the appellant was employed as a Teacher at Little Flower Middle School at Nakalathur, Thanjavur

Taluk, Thanjavur District. The appellant is now employed as a Teacher at St. Mary''s School, Ariyalur, Tiruchirapalli District. The first two children

are under the care and custody of the appellant and the third child is under the custody of the first respondent. Later, the appellant made allegations

against the first respondent that the first respondent has been living in adultery with the second respondent for the past two years and also the first

respondent lost her love for the children. Hence the appellant filed a petition u/s 10 of the Indian Divorce Act (""Act"" in short) on the ground of

adultery. The said petition was filed before the District Court at Tiruchirapalli in Matrimonial O.P. No. 15 of 1992. The first respondent denied all

the allegations and resisted the claim. On the pleadings, the following issue was framed:

Whether the appellant is entitled to divorce on the ground of adultery or not?

The District Court, after hearing the oral and documentary evidence, held that the appellant has not produced any material or evidence to

substantiate his case and hence dismissed the petition filed u/s 10 of the Act. Aggrieved by that, the appellant has filed the present appeal.

Learned Counsel appearing for the appellant submitted that the first respondent had been guilty of adultery and the first respondent had been

living with the second respondent, living as husband and wife and also the first respondent deserted the appellant. It is further submitted that the

Lower Court is wrong in holding that the appellant has not produced any material. It is also further submitted that the order passed by the Lower

Court is not in accordance with law and the same has to be set aside.

Learned Counsel appearing for the first respondent has submitted that the Lower Court had considered all the relevant facts and circumstances

of the case and came to the correct conclusion and that therefore, the order passed by the Lower Court is in accordance with law.

Heard the counsel. On the side of the appellant, witnesses P.W. 1 and P.W. 2 were examined. P.W. 1 is the appellant himself. P.W. 2 is one

Arockiaswamy, who is the common friend of both the appellant and the first respondent. On the side of the first respondent, witness R.W. 1 was

examined, who is the first respondent herself. No documents were adduced on both the sides.

6.Chapter III of the Divorce Act deals with dissolution of marriage. Section 10 enumerate the grounds for dissolution of marriage. The appellant

filed a petition u/s 10(1) of the Act, which reads as follows:

Grounds for dissolution of marriage.-(1) Any marriage solemnized, whether before or after the commencement of the Indian Divorce

(Amendment) Act, 2001, may, on a petition presented to the District Court either by the husband or the wife, be dissolved on the ground that

since the solemnization of the marriage, the respondent-

(i) has committed adultery; or

Alleging adultery is a very serious allegation. There should be proper evidence. When there is no proper evidence, the petition filed u/s 10 cannot

be maintainable. Mere allegation alone will not be sufficient to file a petition u/s 10 of the Act. The appellant, merely stated that the first respondent

has been living in adultery with the second respondent for the past two years. It is not stated where and when it happened. It is also to be noted

here that the allegation was made after a period of two years. It is also further stated by the appellant that he had seen the first respondent and

second respondent together in many occasions, but no particulars were given where he had seen the first and second respondents together. The

appellant, has been examined as P.W. 1. In his deposition, he stated that only the first two children were born through him and the third child is not

his child. He also further given evidence that the matter was referred the Panchayatars and as per the Panchayatars he has given 3 acres of land

towards maintenance of the first respondent as well as the third child. In the oral evidence also, the husband, the appellant herein did not specify

any date or place of occurrence. P.W. 2 is one Arockiaswamy, who is the common friend for both the appellant as well as the first respondent. He

is an Assistant working in Industrial Chalk Piece Workers Co-operative Bank. He has given oral evidence that he being a Christian, he made

acquaintance with the appellant, but he has not stated anything about the occurrence of adultery. R.W. 1 is the first respondent, the wife of the

appellant. She denied all the allegations and stated that the first two children are with the husband and the third child is with her. She also made an

allegation that the appellant is leading immoral life and hence she left the matrimonial home. But no evidence has been produced to substantiate the

claim. The Lower Court held that the appellant failed to produce any evidence that the first respondent, the wife is living in adultery with the second

respondent. Besides mere allegations, no evidence were available or produced by the appellant to substantiate his case. The allegation, being an

adultery one, it is for the appellant to give cogent and consistent evidence. Due to lack of proper and corroborative evidence, the Lower Court

came to the correct conclusion. The Lower Court considered the entire factual matrix of the appeal and also the findings of the Lower Court are

based on a holistic consideration of all the matter. Therefore, the order passed by the Lower Court is in accordance with law.

In view of the foregoing reasons, I find no error or illegality in the order of the Lower Court so as to warrant interference. Accordingly, the Civil

Miscellaneous Appeal is dismissed. No costs.