Veerendra Pampanna Koner vs Geeta Veerendra Koiner

Anand Byrareddy, J.—This appeal is preferred by the petitioner, who had filed a petition under Section 13(1 )(i)(ia) of the Hindu Marriage Act, 1955 (Hereinafter referred to as the ''HM Act'', for brevity) before the court below seeking a decree of divorce.

The petitioner was the husband, who had married the respondent as on 18.5.2006 as per the Hindu Customs and rituals. The petitioner was living along with his parents and elder brother and two younger brothers and even after the marriage with the respondent, he continued to reside with them. However, after some time, he had set up his own home and he and his wife started living there.

The petitioner had noticed that the respondent was frequently visiting her parents and when the visits became too frequent, he had broached the subject with her and the respondent is said to have reacted badly and they had quarelled over the circumstance and this lead to frequent quarrels between them. However, they did have a child. The quarrels continued and ultimately they lived separately for over a year. And on one occasion, it is claimed that the respondent and her mother had lodged a police complaint against the petitioner, claiming that he had come in a drunken state and had created nuisance in their house and therefore, he was taken to the police station and kept in custody for the entire day. However, the Police after advising him not to repeat any such incident had released him. Thereafter, he had brought the respondent and the child back to the matrimonial home.

It transpires that on one day in January 2012, he had come home at about 8 p.m. and did not find his wife in the house. He found his daughter sleeping in the bedroom and when he went to the terrace in search of his wife, he saw his wife with a man. whom he recognised as Siddu Hosmani and that they were in intimate position. He is said to have slapped Siddu Hosmani, who slapped the petitioner back in turn and ran away from there. He had then called upon his friends Sudhir and Shivaraj and told them about the incident and on the same day, he had lodged a complaint with the Police. The commotion had brought out the neighbours from their houses. It transpires that the respondent had tried to commit suicide by taking sleeping pills. She was promptly hospitalised and discharged after three days.

It further transpires that Siddu Hosmani was compelled to make a written statement that he had relationship with the respondent since one year and that she was living in adultery. It is in this background that the petitioner had approached the court below seeking divorce.

The respondent, on appearance, had denied the allegations, except the claim that the petitioner had demanded dowry and had, in fact, received dowry of Rs. 2,00,000/- and that they had a child by the marriage. She has completely denied the incident of her being found with Siddu Hosmani in a compromising position. But she had admitted that she had consumed sleeping pills on account of mental torture by the petitioner. It is on these pleadings that the parties had tendered evidence. The court below had thereafter framed the following issues:-

"1. Whether petitioner proves that the respondent had voluntary sexual intercourse with any person other than petitioner?

Whether petitioner proves that respondent has treated him with cruelty?

Whether petitioner is entitled to decree of divorce?"

The court below has answered the above issues in the negative. It is that which is under challenge in the present appeal.

The learned counsel for the appellant would contend that the trial court has dismissed the petition on an incorrect assumption that the petitioner was required to prove a previous history of adulterous life of the respondent with Siddu Hosmani. It is contended that it is without reference to the amendment to the relevant provision, which did not require establishment of any previous history and even a single instance of adultery was sufficient to establish a case f or divorce. This, the learned counsel would submit, is evident from Paragraphs 25 to 28 of the impugned judgment. The order completely ignores the amendment to the HM Act.

It is further contended that the court below was not justified in coming to the conclusion that Exhibit P.5, which was a statement reduced into writing of Siddu Hosmani, whereby he had admitted that he had sexual relationship with the respondent for over a year and the same having been recorded as on 2.2.2012 has not been accepted by the court below, on the ground that it ought to have been obtained on 29.1.2012 itself, that is the day after the incident, where the petitioner had discovered the respondent and Siddu Hosmani together and therefore has negated the same. The court has also negated the circumstance that Siddu Hosmani had voluntarily come and tendered evidence to admit that he had executed Exhibit P.5 and the court has also negated the said document and the evidence of Siddu Hosamani on a flimsy reason that it was executed at Jewardi Cross and not near the houses of the petitioner and the brother of Siddu and therefore has viewed the document with suspicion. It was wholly unnecessary and irrelevant.

Further, the trial court itself having observed that the standard of proof required in a matrimonial case is one of sufficient cause and not preponderance of probabilities and not the standard as required in a criminal case of a fact being proved beyond reasonable doubt, in the later portion of the judgment the trial court has given a go by to that principle and has held that the evidence tendered was insufficient and that the actual sexual intercourse between the parties ought to have been proved. This, the learned Counsel, would submit is in the face of the positive evidence of PW. 1, the petitioner and PW.3 Siddu Hosmani, the paramour of the respondent. And the fact that they were caught red-handed while involved in sex and the further fact that Siddu Hosmani had volunteered possibly under the pressure of the petitioner and his friends as to having had such relationship, could not have been trashed by the court below. The fact that there was a police complaint by the petitioner of the incident and that the respondent had consumed sleeping tablets and was admitted in a hospital immediately thereafter for several days, has been completely overlooked by the court below. The learned Counsel would also point out that the trial court has come to its own conclusions as regards the admitted circumstance of the respondent having consumed sleeping pills and being admitted in a hospital, which was quite contrary to the pleadings of the respondent. When there was no such pleading on behalf of the respondent, the trial court was not justified in jumping to such conclusions. It is in this vein that the learned counsel for the appellant would seek to question the correctness of the judgment of the court below and would submit that insofar as the child is concerned, the petitioner is ready and willing to take the custody of the child and would plead that the child should not be allowed to remain with the respondent given her character and background. He would further submit that though the respondent is not entitled to any maintenance on account of her conduct, since he had once loved her and had married her, notwithstanding her unfaithful conduct, the petitioner is ready to pay alimony of at least Rs. 2,00,000/- to the respondent.

On the other hand, the learned Counsel for the respondent would vehemently contend that the petitioner having invoked Section 13(1)(i) and (ia), the burden was on the petitioner to prove that the respondent had committed voluntary sexual intercourse with any person and secondly, that the respondent had treated the petitioner with cruelty. On both counts, there are neither pleadings nor proof. The pleading to the effect that the petitioner had found the respondent along with Siddu Hosmani on the terrace of their house having sex. is not established at all and the vague pleading of the respondent having treated the petitioner with cruelty is also not supported by any independent evidence and therefore, the trial court was justified in dismissing the petition and seeks to justify the further reasoning of the trial court in this regard and would submit that the respondent is very much interested in resuming the matrimonial life with the petitioner and the allegations against the respondent are only to obtain a decree of divorce and to remarry some other person. And therefore, the Counsel would staunchly oppose the appeal.

In the above background, as the petitioner and the respondent are relatively young and have a child, the endeavour of this Bench was to make an attempt at bringing about reunion. Therefore, they were directed to appear in person in chambers along with their child to remain outside the chambers in the company of the court staff. This Bench had a long discussion trying to pursuade the parties to consider forgetting any past incident even if it was proved and to reconcile at least for the sake of the child.

Though the respondent was ready and willing to do so, the petitioner was firm in his view that he was unable to wipe out the memory of the picture in his mind''s eye, of his wife lying in another man''s arms and that he would never be able to live with her in the same way as he did earlier in life and therefore had made it clear that he would rather commit suicide than live with the respondent.

In view of such a strong opinion having been expressed, in spite of the best efforts of this Bench, we are constrained to hear the matter on merits.

In the light of the above contentions, though it is unusual for a paramour to make a clean breast of his adventure, it would appear that the petitioner and his friends have brought pressure on him not only to declare in writing that he did have a relationship for over a year with the respondent, he has also been compelled to appear in court and tender evidence in this regard.

Though such a situation is rare, we are inclined to accept that he was not a bad witness, and given the demeanor of the petitioner and his apparent sincerity, the episode appears to be true and the strong conviction with which the petitioner declares his intentions would fortify that opinion. This is in the background that the petitioner and the respondent are said to have fallen in love with each other before marriage and therefore the petitioner to take such a staunch view, the incident having occurred appears to be strongly probable. In that view of the matter, even if the incidents where the petitioner is said to have been treated with cruelty, are not forthcoming. The said incident alone is sufficient ground to grant a decree of divorce. The court below has proceeded with extreme skepticism and suspicion insofar as the pleadings and the evidence of the petitioner is concerned.

Though the provision requires that there ought to have been sexual intercourse by a spouse with another person, it would be dependant on the facts and circumstance and within the discretion of the court to conclude whether the evidence tendered was sufficient to proceed on the assumption that there would have been a sexual relationship.

The standard of proof required in a criminal case such as the case of rape, where a close medical examination is made to ascertain whether the victim was subjected to sexual violation is not the degree of proof contemplated under section 13(1)(i) of the HM Act. The surreptitious conduct where the respondent had, along with her paramour, was on the terrace of the house of the petitioner and were in a compromising position, was sufficient to indicate that they had either indulged in sex or were about to indulge in sex.

It is obviously not intended that it is required to be proved with forensic precision that there were traces of sexual activity, which could be found from an examination of the private parts of the persons involved. This is not the degree of proof that is obviously contended. It is necessary to prove that there was a regular social contact by the wife with her paramour without the knowledge of the petitioner and that they were found in such intimate positions and familiarity, when it cannot be examined for a brother and sisterly love, it would indeed be naive to impute eurotarian relationship between a male and a female. And it would be foolish for the petitioner to assume that there was no sex intent as between the respondent and her paramour. Therefore, the decree of proof required to establish the ground under section 13(1)(i) is preponderance of probabilities and not a standard of proof, which required the fact to be proved beyond reasonable doubt. This Bench is fully aware that there can be myriad relationships between individuals. As for instance, in a situation where a wife is found in the company of another man, who may have been her old friend or classmate or a far-relative, whom she has accidentally met and may even have decided to have a meal together at a restaurant, it cannot be deduced that there was a sexual relationship between them. But if there is a surreptitious and frequent rendezvous between the two, that is never to the knowledge of the husband, it would not be possible to dismiss it as a casual and innocent relationship. A sexual intercourse can certainly be presumed. It would depend on the facts and circumstances of each case.

In the present case on hand, the further circumstance that the paramour himself has come forward albeit under pressure to make a clean breast of his conduct or rather misconduct, would certainly establish the case of the petitioner.

Therefore, the appeal is allowed. The judgment of the court below is set aside. The marriage of the petitioner and the respondent stands dissolved. A decree of divorce shall be drawn up. The petitioner may seek custody of the child, of which he is the natural guardian in due course of time, as the child is still young and would require her mother''s attention for some more time.

The petitioner however volunteers to provide for the maintenance of his child and also volunteers to pay alimony of a sum of Rs. 2,00,000/-. However, it is directed that the petitioner pay alimony of Rs. 3,00,000/- to the respondent within a period of eight weeks.