Virajith Menon vs Vidya Virajith and Others

H.G. Ramesh, J.—This appeal is by the husband and is directed against the judgment and decree dated 1st August 2013 passed by the V Addl. Principal Judge, Family Court, Bangalore. By the impugned judgment, the Family Court has allowed the petition filed by the respondent-wife by granting a decree of divorce under Section 13(1)(i) of the Hindu Marriage Act, 1955 ("the Act" for short) and dissolving the marriage of the appellant and the respondent which was solemnised on 26.04.2000 at Kausthubham Hall, near Thiruvambadi temple, Shornur road, Thrissur, Kerala. Further, the Family Court has dismissed the counter claim filed by the appellant-husband under section 9 of the Act for restitution of conjugal rights.

We have heard learned counsel appearing for the parties, perused the impugned judgment and the record of the Family Court. The appellant and the first respondent, from their wedlock, have got a male child born on 15.10.2003, who is now aged 11 years.

It is not necessary to reiterate the pleadings of the parties referred to in detail in the judgment of the Family Court. On the pleadings of the parties, the Family Court formulated the following points as arising for determination:

Whether the petitioner proves that after her solemnization of marriage the first respondent had voluntarily sexual intercourse with the second respondent?

Whether the first respondent proves that the petitioner has voluntarily deserted him?

The Family Court answered point No. 1 in the affirmative and point No. 2 in the negative and accordingly, granted divorce by dissolving the marriage.

Learned counsel for the appellant-husband submitted that the finding recorded by the Family Court that the appellant had sexual intercourse with respondent No. 2 is not based on a proper consideration of the evidence and accordingly, the judgment of the Family Court requires to be interfered with.

On the contrary, learned counsel appearing for the respondent-wife submitted that the finding recorded by the Family Court is based on a proper appreciation of the evidence on record and hence the finding does not suffer from any legal infirmity warranting interference.

In view of the above, the only question that requires to be determined is as to whether the ground urged by the respondent-wife under section 13(1)(i) of the Act is proved on the basis of the evidence on record. Section 13(1)(i) of the Act reads as follows:

"13. Divorce.-(1) Any marriage solemnised, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party-

(i) has, after the solemnisation of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or

(ia) ....................................................................."

Respondent No. 2 herein, though served, had remained absent before the Family Court and hence, was placed ex parte. In this appeal, at the request of the counsel on both sides, notice to respondent No. 2 was dispensed with as per order dtd. 13.01.2015.

It is relevant to refer to the following reasoning of the Family Court in holding that the ground urged by the respondent-wife for dissolution of the marriage under section 13(1)(i) of the Act is proved:-

"14. ..................................................................... ....................................The first respondent during cross examination admitted that he and second respondent are in Exs. P4 to P6, P13 and P14 photos.

The respondent has got examined his friend RW2 and this witness in cross examination paragraph No. 12 stated that he can identify the person shown in Exs. P4 to P6, P13 and P14 photos as respondent No. 1 and 2. The first respondent during his cross examination not denied that Exs. P4 to P6, P13 and P14 are not belonging to him and second respondent. When the first respondent and his friend RW2 admitted that said photos are belonging to respondent No. 1 and 2, it is not necessary to produce their negatives and examination of photograph. The petitioner in the pleadings and evidence stated that after the first respondent moved out from her house on 15.04.2007 while cleaning the house she found Exs. P4 to P6, P13 and P14 photos and also Exs. P7, P8 and P11 documents. The photos have been produced from proper custody therefore, there is no force in the contention of first respondent that photos are in admissible in evidence and they have no evidentiary value.

The learned counsel for the first respondent submitted that the contents of Ex. P15 & P16 are not proved by the petitioner. The petitioner during cross examination of first respondent confronted Exs.P15 and P16 letters written by him admitting his guilt. The respondent in paragraph No. 24 of cross examination denied that he wrote Exs.P15 and P16 letters running about 16 pages and they are in his handwriting. RW2 friend of first respondent in beginning of cross examination paragraph No. 12 stated that he is familiar with the handwriting of the first respondent. The documents Exs. P15 and P16 shown to him are in the handwriting of the first respondent. 10 pages of handwriting ended with signature and it is marked as Ex. P15 and P15(a). Next document consisting of 6 pages and two lines is also in the handwriting of first respondent and it is marked as Ex. P16. The friend of first respondent RW2 in cross examination clearly stated that Exs. P15 and P16 are in the handwriting of first respondent and he signed at Exs. P15(a). In these letters the first respondent admitted his guilt and requested the petitioner allow him to stay with her................................................................

The petitioner has heavily relied upon Ex. P7 lodging bill (receipt) of hotel Pition, Mumbai. According to Ex. P7 the first respondent has occupied room No. 204 on 02.10.2006 at 6.40 P.M. along with another person and halted in the hotel till 05.10.2006 at 8.15. a.m. The petitioner contention is that the first respondent went along with the second respondent on office work and both of them stayed together in room No. 204 for four days. The petitioner evidence is that she went to her parents house Kerala for five days and she returned back to Bangalore and joined her duty on 05.10.2006 at 9.46 a.m. The petitioner marked Ex. P9 attendance certificate issued by her employer Glaxo SmithKline Pharmaceuticals, Bangalore. According to Ex. P9 the petitioner was absent from 01.10.2006 to 04.10.2006 and swipe her card and it indicates that she has attended duty on 05.10.2006 at 9.46 a.m. and left the office at 8 p.m. Ex. P9 indicates that the petitioner had not accompanied the first respondent to Mumbai from 02.10.2006 to 05.10.2006. This is one of the circumstances to believe that the first respondent went along with second respondent and stayed with her in same room for four days at Mumbai. Ex. P7 is in the name of first respondent and he has not given explanation why he went to Mumbai along with the second respondent. If it were a concocted document the first respondent would have disprove the said document by calling relevant document from hotel Pition. Ex. P7 proves that the first respondent went to Mumbai along with second respondent on official visit and both of them stayed together in a single room for four days.

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.............................................. In case of adultery it is not imperative to get direct evidence and the court has to rely upon circumstantial evidence. In the case on hand the petitioner-wife has relied upon Exs. P4 to P6, P13 and P14 photographs and from them the court can infer that the first respondent had physical relationship with the second respondent who is not the wife of first respondent. Ex. P7 lodging receipt proves that the first respondent had taken the second respondent to Mumbai on the guise of official trip and stayed in hotel Pition for four days in a single room. The respondent in the statement of objections and evidence admitted that he was going with the second respondent on official work. The first and second respondents were not working in same company but they were working in different companies. The photographs Exs. P4 to P6, P13 and P14 proves that the first respondent had sexual intercourse with the second respondent since 2006 till he moved out of the matrimonial house on 15.04.2007. The first respondent has not given explanation why such photographs were taken in a resort. The petitioner was compelled the first respondent to go out of the matrimonial home when he has developed illicit relationship with the second respondent and was not going home regularly and occasionally was going to the house at about 3 a.m. Therefore, the first respondent is not entitled for decree for Restitution of Conjugal Rights since he has developed illicit relationship with second respondent. No lady would tolerate when her husband is leading adulterous life with another woman. In view of the evidence on record, the petitioner is entitled for decree of divorce on the ground of adultery. Consequently, the counter claim filed by the first respondent deserves to be dismissed............................................"

(Underlining supplied)

We have perused the photographs-Exs. P4, P5, P6, P13 & P14 which depicts the appellant and respondent No. 2 together and the hotel bill-Ex. P7 showing the stay of ''Mr. & Mrs. Viraj P.K'' (appellant herein) in Mumbai between 2.10.2006 (16.40 hrs) and 5.10.2006 (08.15 hrs) and also the attendance extract-Ex. P9 of respondent No. 1-wife. The attendance extract would show that the respondent-wife attended her office in Bangalore on 05.10.2006 at 9.46 a.m. and hence, could not have accompanied her husband to Mumbai as per the hotel bill at Ex. P7. Therefore, the woman who stayed with the appellant in a Mumbai hotel for four days was not his wife. We have also perused the letters written by the appellant-husband.

In our opinion, in the light of the letters produced in evidence and the oral evidence of the wife (respondent No. 1-herein) coupled with the Photographs at Exs. P4, P5, P6, P13 & P14, particularly the photos at Ex. P5 and Ex. P14 which show physical intimacy between the appellant and respondent No. 2, we find no legal infirmity in the finding recorded by the Family Court that the wife has proved the ground under Sec. 13(1)(i) of the Act. The finding is based on a proper appreciation of the entire evidence on record. The appeal is devoid of merit. No ground to admit the appeal. The appeal is accordingly dismissed. In view of dismissal of the appeal, I.A. No. 1/2013 filed for interim stay also stands dismissed.

Appeal dismissed.