Madhya Pradesh High Court
Rajendra Agrawal vs Smt. Sharda Devi on 17 March, 1992
Equivalent citations: AIR1993MP142, AIR 1993 MADHYA PRADESH 142, 1993 MARRILJ 568, (1992) JAB LJ 649, (1995) 20 MARRILJ 317, 1992 JABLJ 289, (1994) 1 HINDULR 1, (1993) JAB LJ 649, (1992) MATLR 435
JUDGMENT Shacheendra Dwivedi, J.
1. The husband/appellant has preferred this appeal against the judgment and decree passed by the Court below thereby dismissing the suit filed by him under Sections 13(1)(i) and 13(1)(ia) of the Hindu Marriage Act, 1955, (hereinafter referred to as 'the Act').
2. The facts leading to the filing of this appeal fall within a short compass. The petitioner/husband filed the suit against his wife-defendant/respondent, alleging that she is a cruel and characterless woman having illicit relations with many persons and with one Mohan Shivhare in particular. The other ground taken was that of 'cruelty' and the learned Court below found that the plaintiff could not succeed on both the counts in proving the suit allegations against the respondent/defendant and as such dismissed the suit, by the impugned judgment.
3. Shri K. K. Lahoti, appearing for the appellant contends that the impugned order is bad in law, mainly based on the mis-appreciation of document Ex.P1 executed by the respondent, defendant Smt. Sharda Devi, wherein though she admitted her illicit relationship with Mohan Shivhare but promissed to be of good character in future. Despite the execution of the document Ex. P1 when she did not improve and was further found meeting the said Mohan Shivhare, the suit for the decree of divorce as contemplated under Sections 13(1)(i) and 13(1)(ia) was filed by the appellant.
4. To support his contentions, the appellant examined himself as PW1, one Ramesh Chandra, an attesting witness of document Ex.P 1, as PW2 and Jagdish a teacher as PW3, in whose house the appellant and the respondent had resided and the house was got vacated by witness Jagdish PW3, because of the above described illicit activities of the respondent.
5. The fact, which has mainly weighed with the learned trial Court with regard to document Ex.P1 was an over-writing on the date of execution of the document, making it as 27-10-83, instead of 24-10-83 and on this count, the learned trial Court found that the document was suspicious. This document is on a stamp-paper, which itself was purchased on 27-10-83. The learned trial Court failed to take note of this date and has discussed the over-writing in the light of the amendment made by the plaintiff in the plaint, correcting the date of the execution of document from 24th October to 27th October, 1983, assuming that it was made after the objection in the written-statement and treated it, an after thought affair.
6. While discussing the evidence and the circumstances in this regard, the learned trial Court lost sight of a very important material circumstance that prior to the filing of present suit a notice Ex.P2 dated 24-9-84, was served by the plaintiff/appellant on his wife, mentioning therein the date of execution of document Ex.P1 as 27-10-83 and as such the correction in the plaint by way of amendment could not be the result of the objection in the written statement. The over writing on the date of execution could not assume such material importance so as to discredit the document and also the plaintiffs whole evidence. On the document Ex.P1 her signatures have been admitted by the respondent. This document is also stated to be bearing the signatures of her brother Mahesh Chandra Bansal as an attesting witness.
7. The respondent to rebut that evidence did not examine her brother Mahesh Chandra Bansal, whereas, the other attesting witness Ramesh Chand has been examined by the plaintiff. That apart, there is version of the plaintiff himself on oath that once he being unwell, when reached at unusual noon-time to his house, from the Bank duty, he found the door bolted from inside and on being knocked, it was opened only (after) some interval.
8. On entering the room, he found Mohan Shivhare with his wife. The clothes of the respondent were also found in a disorderly state and on her cheek there was an impression of a kiss. From these circumstances, it could very strongly be presumed that his wife had sexual intercourse with Mohan Shivhare.
9. The Court would not as a general rule, presume or infer sexual intercourse from the evidence of opportunity alone, but would require some more material for the proof of voluntary intercourse. In this regard, the ground under Section 13 prior to the amendment by Marriage Laws (Amendment) Act, 68 of 1976, stood differently and a spouse seeking a decree of divorce was required to prove that the other spouse was 'living in adultery' but now under the present provision, the rigour of establishing 'living in adultery' is reduced and what is required to be proved is that 'the other party has after the solemnization of the marriage had voluntary sexual intercourse with any person other than his or her spouse'.
10. The proceedings for dissolution of marriage by a decree of divorce under the Act are of civil nature and its proof is not to be judged on the touch-stone of 'beyond the shadow of doubt' but only on the preponderance of probabilities leading to a fair inference as a necessary conclusion on the evidence and from the circumstances of a case. It is well settled that the direct evidence of proof of adultery is very rare and it is therefore accepted as a rule that it can be proved by circumstantial evidence and the circumstances ought to be such which would lead the guarded discretion of a reasonable and prudent man to a conclusion of adultery.
11. Mulla in his commentary on Hindu Law about such circumstances has expressed that :--
"It is impossible to state those circumstances universally, because they may be infinitely diversified by the situation and character of the parties, by the state of general manners and by many other incidental circumstances apparently slight and delicate in themselves but which may have important bearing upon the particular case".
12. While dealing with the standard of proof required for proving the ground of 'cruelty' under the 'Act' their Lordships of Apex Court in Dr. N. G. Dastane v. Mrs. S. Dastane, AIR 1975 SC 1534, observed that (at page 1539) :-
"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, Section 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."
It was further observed that (at page 1540) :--
"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."
13. In a case based on the ground falling under Section 13 of the Act, Dr. Saroj Kumar Sen v. Dr. Kalyan Kanta Ray, AIR 1980 Cal 374, it was found that divorce being a civil proceeding, the standard of proof cannot be on the analogies of criminal law.
14. The learned trial court has wrongly assessed the evidence for the proof of adultery. After the amendment the proof of only one instance of voluntary sexual intercourse by the other party with any other person except his or her spouse, is enough for a decree of dissolution of marriage. It is, therefore, difficult to upheld the finding of trial court with regard to ground under Section 12(1) of the Act.
15. The document Ex.P1 as also the other circumstances and the evidence of the plaintiff and his witness, as there is no cogent reason to disbelieve their testimony, when considered with the fact of the non-examination of her brother Mahesh Chandra Bansal or her parents by the respondent go to support the suit allegations based on the ground under Section 13(1)(i) of the Act.
16. With regard to the other ground, falling under Section 13(1)(ia), the Court below has rightly held that there is no material to substantiate the allegations of cruelty. The plaintiff alleged that the respondent was cruel to his mother but he has not examined his mother nor there is any other material to prove the allegations.
17. Before passing a decree of divorce, the court must bear in mind that for a Hindu marriage, if there is any chance of reconciliation between the husband and the wife, the Court should be slow in granting a decree of divorce. Under the Hindu Law, the marriage is a sacrament and not a contract, and therefore, there should always be an effort to save the marriage tie than to break it, but once the Court is satisfied that there is no chance of the marriage tie being continued, then it would be desirable to dissolve it rather than to continue. The respondent/wife has undergone nurses-training and is in service. The suit was filed in January, 1986. It is for more than 7 years that the parties are living separately. The effort made by the trial Court to reconcile the dispute between the parties proved futile.
18. After such a long lapse of time, now there appears to be hardly any possibility of the husband and wife settling their matter amicably and coming closer to live together. The essence of marriage is sharing of common life, all the pleasures so also the sorrows and sufferings. Living apart for a fairly long period, is the negation of such sharing. This situation may serve as an additional justification for granting a decree of divorce, as the continuance of marriage tie may not subserve any social good. (See Smt. Saroj Rani v. Sudarshan Kumar Chadha, (1984) 4 SCC 90 : (AIR 1984 SC 1562)).
19. On the foregoing discussion, taking the totality of circumstances and the evidence on record, the marriage deserves to be dissolved, on the ground falling under Section 13(1)(i) of the Act and resultantly in that regard the impugned judgment and decree is set aside, allowing the appeal. The decree of divorce is passed in favour of appellant, with no order as to costs.