Madras High Court
Mr. Sugumaran vs Smt. Selvi on 20 November, 2006
Author: S. Ashok Kumar
Bench: S. Ashok Kumar
JUDGMENT S. Ashok Kumar, J.
1. The appellant/husband herein filed the HMOP petition against the respondent/wife on the ground of adultery and cruelty. According to him, the marriage took place on 21.8.1989 and he was working as a Grade-II Police Constable in the Armed Reserve Police Service at Thanjavur and because of his work nature he used to go on for duty even for a week at a stretch and hence he was not able to stay at home during that period and exploiting the situation, the respondent started to have illicit intimacy with several persons. The child born also does not resemble the appellant. During 1994 he got appointment as Typist in the Secretariat and was staying at Chennai. During that time the respondent had illicit intimacy with one Senthil. The respondent refused to stay at Chennai along with him. He used to visit Thanjavur where the wife was staying once in a fortnight and understood her indulging in adultery. The advice of the neighbours all went in vain. During 1997 he got transfer to Thanjavur Collectorate and the respondent was always quarreling with him. On 9.2.1999 when the appellant came home in search of some office papers, found that one Ravi, elder brother of Senthil and the respondent were in a compromising pose. When questioned her, she removed her thali and gave it to the appellant. During 1999, the respondent took away Rs. 10000/- and all the jewels and valuable articles and went to her parents' house.
2. The respondent field a counter contending that it is only the appellant had illicit intimacy with one Mala. The appellant gave Rs. 25,000/- for his transfer from Chennai to Thanjavur Collectorate. He had developed illicit intimacy with one Sarawathy and when questioned, he treated her cruelly. The appellant also filed a false complaint to All Women Police Station, Thanjavur as if the respondent had illicit intimacy with one Ravi. Due to these things, she is living at her elder brother's house with the child.
3. During enquiry the appellant examined himself as P.Ws 1 along with P.W.2 to 4 and Exs.A.1 to A.3 were marked. the respondent examined herself as R.W.1 along with R.W.2 and R,.W.3 and Exs.R.1 and R.2 were marked.
4. The trial court after elaborate enquiry ultimately granted divorce. Aggrieved over the same, the respondent wife preferred appeal before the Prl. District Judge, who reversed the findings and set aside the divorce granted by the Trial Judge. Hence this Civil Miscellaneous Appeal.
5. As rightly viewed by the learned Principal District Judge, in a petition for divorce filed by the husband, alleging the wife indulging in adultery, the issue to be decided is whether the allegation has been substantiated by acceptable evidence or not and it is not for the courts to decide whether the husband is having any illicit intimacy with any other woman as a ground to grant a divorce.
6. No doubt the plea of adultery normally cannot be proved by examining direct eye witnesses. But the circumstantial evidence should be clinching, and should unerringly point towards the adultery by the wife. But in this case as rightly held by the learned Principal District Judge, the evidence of P.Ws 1 to 4 is not reliable and have to be eschewed for the following reasons. P.Ws.2 to 4 are in the age group of 24 to 27 years and unmarried. In a case of this nature, disputing the chastity of the wife, the stereo typed version of these witnesses cannot be accepted as true. As pointed out by the learned Principal Judge, nothing prevented the appellant to examine the elders of his family or the neighbours in support of his case.
7. P.W.2 only says that on some occasions he saw Ravi being inside the house of respondent and the door being closed. There is no specific instance or date or time given by these witnesses as to the alleged intimacy between the Respondent and one Ravi. According to P.W.3 he is having a vulcanizing work will go to work in the morning and will return only by 8.00pm. He also stated that he is the owner as well as the worker for that job. As regards P.W.4 who was aged about 24 years nothing elicited as to whether he was studying or doing any job. But both P.Ws 3 and 4 have in a parrot like manner stated that one Ravi used to go to the house of the respondent and they will be inside the house by locking the doors and they have enquired about this with the said Ravi. Though P.W.3 would state that he will come for lunch between 12.00 and 2.30 pm., in the absence of any specific instance, his evidence is liable to be eschewed. As regards the evidence of P.W.4 his evidence that on one day he saw the said Ravi coming out of the house of the respondent and he saw the sticker kumkum in his cheek. This will only goes to show that he has no other job except to watch the said Ravi going to the house of the respondent. The evidence from such persons is to be highly deprecated. In fact, in his chief examination he has stated that such intimacy between them is known to many others in the area. But none of them have been cited as a witness by the appellant.
8. As regards P.W.1, the appellant, he has stated that on 9.2.2000 when he came to he house during lunch hours he saw the said Ravi and his wife in a compromising pose. As rightly held by the learned Principal District Judge, the normal conduct of a person seeing his wife indulging in such activities with another person would be either to shout at them, report to the Police or complaining the same to the neighbours, elders of both family immediately. For this, the learned Counsel for the appellant submitted that he was more concerned about the decency in life and that is why he did not made it a big issue. But the evidence of P.Ws 2 to 4 would reveal that many of the persons in the area know about the illicit intimacy. But they have not been informed of the alleged ugly scene on 9.2.2000 seen by the appellant. Further, as pointed out by the learned appellate Judge, the appellant did not say at what time he came and saw such incident. He also says that he used to go to office 9.00 a.m., and return only by 7.00 pm., But in the HMOP petition he stated that he used to visit in lunch hours. These discrepancies will only show that the evidence of the appellant is also liable to be eschewed. In the circumstances it has to be necessarily held that the appellant has not proved the alleged adultery.
9. Taking consideration of these serious infirmities only the learned Principal District Judge, Cuddalore set aside the order of divorce granted by the trial Judge. I do not see any error of law to interfere with the well considered judgment of the learned Principal District Judge. In the result, the CMSA is dismissed holding that no substantial question of law involves in this appeal. Consequently, connected CMP is also dismissed. No costs.