Bombay High Court
Chandrashekhar Trimbak Patwardhan vs Sau. Vaijayanti Chandrashekhar ... on 21 January, 1993
Equivalent citations: (1993)95BOMLR267
JUDGMENT D.J. Moharir, J.
1. By this appeal the appellant Chandrashekhar Patwardhan who is the original petitioner-husband in Marriage Petition No. A-582 of 1989 takes exception to the judgment and decree passed by the learned judge of the Family Court, Pane, dismissing his petition for a decree of divorce against his wife on the grounds of adultary and cruelty under Section 13(1)(i) and (i-a) respectively of the Hindu Marriage Act, 1955. This petition was originally filed in the Court of the Civil Judge, Senior Division, Pune,. but upon the establishment of a family court at Pune under the Family Court Act, was transferred to that Court and decided as such.
2. Reference to the parties would be made in this judgment by their original status, the Husband being the petitioner, the wife being the Respondent No. 1 and the alleged adulterer being co-Respondent No. 2.
3. The petitioner Chandrashekhar and the respondent No. 1 Vaijayanti were married at Pune according to Hindu religious rites on 9-1-1983. Both of them are residents of Pune. The marriage was arranged one. At the time of the marriage the petitioner was serving as a Peon in the office of the Life Insurance Corporation of India at Pune and the Respondent No. 1 was employed in a private business house. The Kirloskar Manila Udhyog. After marriage, the Respondent No. 1 started living with the petitioner-husband in the latter's house. The petitioner's family at that time consisted of himself, his mother Shantabai and a divorcee sister. Respondent No. 1's family consisted of herself, her parents and a mentally affected but grown up brother. Her father was a retired police head constable. The Respondent No. 1 also had two younger sisters. It was only after the two younger sisters, were married that the Respondent No. 1 herself thought of entering the wedlock. Accordingly, she was the last of the three sisters in the family to be married. The poor condition of the parents, the responsibility of maintaining the two younger sisters and the mentally affected brother all compelled the Respondent No. 1 to earn by seeking some job. Virtually therefore she had been the earning member in the parental home. She continued her job even after the marriage.
4. In the Kirloskar Manila Udhyog at Khadki, Pune, where she was employed, the Respondent No. 1 had to work in one or the other of the two shifts. Whenever she was in the day shift, she used to return home by about 2.30 p. m.; when in, the second shift she used to return at 10.30 p. m. in the company's bus. At the spot where she used to get down from the bus, the petitioner-husband used to be present with his scooter. He used to take her home from the bus stop on the scooter. After some days the petitioner realised that Respondent No. 1 wife had started returning home quite late-about 4.30 p. m. instead of 2.30 p. m. On enquiry she represented to the husband that her parents being old and there being no - one else to attend to them., she used to go to them first on returning at 2.30 p. m. She used to make tea for them and then return to the marital home by about 4.30 P. m. She also explained that this did not however use to be the every day position. The petitioner was not however, satisfied Suspicion obviously took root in his mind leading to frictions. The result ",,as that he, stopped picking her up at the bus stand whenever she was in the second shift for work in her factory.
5. The suspicion harboured in the mind prompted the petitioner to investigate further. On one day, specifically on 31-8-1983 he went to the bus stop and remained in a position not readily visible. When the Respondent No. 1 alighted from the bus, the Respondent No. 2 was there with his scooter. The Respondent No. 1 hurriedly took the pillion seat of the scooter arid the two of them were about to drive away when the petitioner suddenly accosted them. The embarrassment and feeling of guilt on the fact, of the Respondent No, 1 was obvious. She got down from the scooter and came upto the petitioner and the Respondent No. 2 then went away. The Respondent No. 1 gave evasive answers when questioned. She even represented that the Respondent No. 2 was a distant uncle of her's. The Respondent No. 1 however continued in her association with the Respondent No. 2. On inquiries made with the landlord of the premises in which her parents used to live, one Anna Pathak, the petitioner came to know that there had been a long standing illicit intimacy between the Respondents 1 and 2; that this had continued even after her marriage with the petitioner.
6. The Respondent No. 1 was therefore probed more deeply when she eventually confessed to the fact of her indecent intimacy with the Respondent No. 2 and sought to pardoned. She not only promised to be faithful to the petitioner thereafter but even volunteered to make an affidavit in that behalf on a stamp paper and handed over the same to the petitioner. The petitioner expressed his disapproval of the wife's conduct in the strongest terms.
7. There was a distinct change in the Respondent No. 1's behaviour with the petitioner and his family members thereafter. She indulged in several acts which amounted to-clear cruelty in the legal sense of the word. The petitioner enumerated these acts, as many as 10 in the petition. Some of the more serious ones were the Respondent No. 1's threats to immolate herself and bring the petitioner and his family members in trouble by prosecution; charging him with visits to prostitute charging him with illicit intimacy with one Sandhya Sathe who was a friend of the Petitioner's divorce sister and used to be a frequent visitor at the Petitioner's house, accusing the divorces sister also with indulging in prostitution of herself, abusing the deceased father of the petitioner, accusing the petitioner of incest with his mother arid sister, etc. In the circumstances, the cruelty to which the petitioner was thus subjected was according to him, sufficient to constitute legal cruelty which would entitle him to a decree for divorce under Section 13(1)(i-a) of the Act. He also asserted that it was clear that after solemnisation of marriage with him, the Respondent No 1 was having voluntary sexual inter-course with the Respondent No. 2 Bhide, On the ground under Section 13(1)(i) the petitioner was entitled to a decree of divorce.
8. While the co-Respondent No. 2 Bhide remained absent and 'was proceeded against ex-parte, the Respondent No. 1 wife strongly opposed the petition. In her written statement she denied all these adverse allegations contained in the petition for divorce under Section 13(1)(i) and 13(1)(i-a). She admitted that after marriage she did visit the house of the parents, they being old and the brother a mentally retarded person not earning. Her visits were neither regular nor daily. She used to visit them sometimes to inquire after and comfort them, being the eldest child. It was false that she was regularly late in returning home whenever in the first shift nor were there, such quarrels or disputes nor was, it true that because of any such dispute the husband stopped picking her from the bus stop at 10.30 when she returned from work whenever in the second shift. She categorically denied any association, much less illicit intimacy as alleged, with the Respondent No. 2. The incident, dated 31-8-1983 and also the alleged disclosure of tile landlord Anna Pathak to the petitioner that she had been in long illicit intimacy with the Respondent No 2 were categorically denied. Admitting the fact that the affidavit before the Notary Public had been sworn by her on 29-9-83, she submitted that this had been obtained from her by force and under threats. With reference to Sandhya Sathe who was admittedly a friend of the petitioner's divorce sister, the Respondent No. 1 submitted that the petitioner was himself involved in extra-marital affairs with this Sandhya Sathe who was also a divorcee. Sandhya Sathe was so intimately involved in the affairs of the petitioner's family that all domestic decisions used to be in fact taken and affairs conducted by the said Sandhya Sathe. She contended that it was because the petitioner wanted to have a free and unhindered illicit intimacy with the said Sandhya Sathe that the false charge of adultery had come to be made against her. Without prejudice to these contentions and assertions, the Respondent No. 1 submitted that even on an assumption of such adulterous relations between Respondent Nos. 1 and 2, that conduct had been very clearly condoned by the petitioner himself and could not therefore be made a ground for divorce, for by reason of the cohabitation, the Respondent No. 1 conceived from the petitioner-husband and had given birth to a child the daughter by name Madhura, on 16-1-1984 almost after a year when the petitioner concluded that she had been having illicit intimacy with the Respondent No. 2. Not only this, the Respondent No. 1 conceived from the petitioner-husband for the second time and gave birth to a male child on 23-3-1987. It was a premature delivery and the infant died also. Therefore, of cruelty indulged in by the Respondent No, 1 there was none; adultery indulged in there was none. Alternatively and at any rate without prejudice to this married the alleged adultery had been condoned also and condonation constituted a legal bar as provided under Section 23(1)(b) of the Act, to the petitioner's claiming divorce on the ground of adultery. Under Section 13(1)(i-a) of the Act.
9. At the trial the petitioner examined himself. He also examined his mother Shantabai and the colleague in the L. I. C. office Laxman Deshmukh. These two witnesses spoke principally on the aspect of cruelty relied upon by the petitioner as a ground. The petitioner's own evidence and the affidavit, dated 23-9-1983 duly sworn by the Respondent No. 1 before the Notary Public were principally relied upon to prove the fact of adultery indulged in by the Respondent No, 1. The Respondent No, 1 however led no other evidence except her own version. The learned Judge of the trial Court, upon consideration of the evidence, upheld the allegation of adultery but also held that the adultery had come to be condoned and the same did therefore' constitute a legal bar to the granting of divorce on the ground under Section 13(1)(i) of the Act. The allegations of cruelty had not been proved by the petitioner's evidence as the learned Judge further held. The petitioner thus came to be dismissed and hence this appeal.
10. In taking exception to the dismissal of the petition the two limbs of the arguments advanced by learned Counsel Shri Jahagirdar for the appellant are (i) that the allegations of adultery committed by the wife having been upheld by the trial Court it was a factual error to hold further that the said adultery had been however condoned also and that the ground under Section 13(1)(i) was not available to the petitioner and (ii) that on the facts and in the circumstances of the case as revealed from the evidence the ground of cruelty under Section 13(1)(i-a) of the Act should have been upheld and a decree for divorce granted accordingly on that ground also.
11. Both these submissions have been stoutly opposed by learned Counsel for the Respondent No. 1. She contends that it is open to her in the first place to show and it would also have to be actually found that the fact of adultery was itself wrongly upheld by the trial Court and that the alternative plea of the wife that cruelty had come to be condoned did not really arise for consideration under Section 23(1)(b) of the Act. Further, none of the alleged ten instances was proved for establishing the ground of cruelty and the plea was rightly rejected by the trial Court. Respondent No. 1's Counsel has further argued that the filing of the petition was after such delay as was in law, under Section 23(1)(d) of the Act, neither necessary nor proper.
12. As a Court of fact as much as of law we have gone through the entire evidence on record with the able assistance provided by learned Counsel for both the parties.
13. It is with the co-Respondent No. 2 Bhide that the wife had been having an adulterous relationship, according to the petitioner. The evidence which he led is this:-
Both the respondents were employed in the Kirloskar Mahila Udhyog at Khadki. The Respondent No. 1 was a Machine Operator, while the Respondent No. 2 Bhide was the superior of the Respondent No. ], there being one more superior in between. The Kirloskar Mahila Udhyog which was located at Khadki had come to be, sometime later, shifted to Kothrud, Pune. This evidence is admitted by the wife also. It could therefore no doubt provide an indication that the two respondents were known to each other and possibly further that there was occasion and opportunity for the two respondents to come close. But this could not be left to be merely conjectured. The petitioner therefore relies upon the Respondent No. 1's admission that on one occasion she had also gone to the house of the Respondent No. 2 in the Navi Peth locality of Pune. However that cannot and does not prove much since such a stray instance of visit could also be equally innocent and casual. One swallow certainly does not make summer.
14. The petitioner stated that the wife Respondent No, 1, whenever on duty in the first shift, would be back home by about 2.30 p. m. Some days after the marriage she started returning home by 4.30 p. m., almost every day. That prompted the petitioner to enquire from him as to how and why she had started getting so late in returning home. These queries, as the petitioner says, were only evasively answered. The wife had explained, as he states, that she was required to meet and attend to her old parents there being none else to do so; her two younger sisters were already married and had, gone away to their respective marital homes; and the brother was a mentally affected person suffering from epilopsy and not able look after even himself. Upon this explanation, the petitioner claimed to have made discreet enquiries from the wife's parents themselves. It was revealed that she did use to call on the parents but only once in a while and did not use to be with for long hours. There is however no independent evidence of such queries made by the petitioner with the appellant in the first instance.
15. The learned Judge of the trial Court however appears to hold that the husband having stated what the wife's parents disclosed to him about the daughter's visits to them it was for the wife to examine her mother as the surviving parent (the father having died during the pendency of the petition) to enter the witness box to state that no such enquiry was made from her by the petitioner son-in-law. The fact of the mother-daughter relationship cannot in our opinion, shift per se, the burden which is on the petitioner of giving primary evidence i.e. by himself calling Respondent No. 1's mother to the witness box. We do not think that the onus to examine the mother as a witness had shifted to the Respondent No. 1 from the petitioner son-in-law. At any rate, the burden to prove this important and relevant fact was of the petitioner to discharge.
16. The submission of learned Counsel for the appellant was however to the effect that the parents of the Respondent No. 1 wife could not be expected to be examined by him in this behalf-they being interested in her. This according to us cannot be the easy way out for answering the question of fact and proving whether in fact any such enquiry was made by the petitioner from the parents.
17. The petitioner says that he also then decided to investigate for himself into the late coming of the wife. He says that after the revelations made by the Respondent No. 1's parents-that she did not use to visit them every day and that the visits used to be of short duration also-he had stopped escorting her home on his scooter whenever she used to return at the scheduled bus stop at 10.30 p. m. while working in the second shift. He states that on 31-3-1983 he went to the bus stop and lay in wait there for the wife to arrive. She did get down from the bus at 10.30 p. m. However instead of starting to walk back home, he found the Respondent No. 2 picking her up. She got behind the Respondent No. 2 on the pillion of his scooter. The petitioner then came out from his hiding and suddenly accosted them. Taken completely by surprise, the feeling of guilt showing on her face, the Respondent No. 1 got down from the pillion and walked towards the petitioner. The two of them then started going home on foot, while the Respondent, No. 2 drove away on his scooter. On reaching home, the petitioner says that lie questioned the wife and she then also made two false statements; first, that the Respondent No. 2 had met her at the bus stop in connection with some official work and second that the Respondent No. 2 was her uncle which he was not as the petitioner also found out later.
18. The petitioner says that his suspicion thus strengthened. Two days after the incident dated 31-8-1983 he made enquiries from the residents of the wada (big building) where the Respondent No. 1 used to live with her parents, before the marriage. The landlord, one Anna Phatak, then told him that the illicit intimacy between the Respondent No. 1 and Respondent No. 2 was a fact and that it bad been a longstanding one also. Anna Phatak was however not alive to give evidence in that behalf. The non-availability of Anna Phatak to be cross-examined, if he really had made any such disclosure to the petitioner, keeps the petitioner's version also untested and therefore not available as a reliable piece of evidence, as we think. For it remains unascertainable whether what Anna Phatak conveyed to the petitioner was a matter of his personal knowledge or a mere surmise founded on some otherwise explainable or innocuous facts, It also needs to be noted that if Anna Phatak could be a witness to the adulterous intimacy between the Respondent No. 1 and Respondent No. 2 merely by reason of his being the landlord and hence a person present in the wada premises, most of the time, so could then, also be the several other tenants or occupants in the wada.
19. Armed with the disclosure made by Anna Pathak the petitioner claims to have more bluntly confronted the wife in regard to her intimacy with the Respondent No, 2, Whereupon she is said to have broken down and made a clean breast. She made a complete confession that the Respondent No. 2 was her paramour; that she had been in illicit intimacy with him for a long time since before the marriage with the petitioner. The Respondent No. 1 has however denied each and every one of these allegations in the petition and equally strongly repudiated each of these statements of the petitioner on oath. She denied having had any such illicit intimacy with the Respondent No. 2 or about having made any such confession in that behalf to the petitioner.
20. The petitioner has therefore proceeded to rely upon what he considers to be a piece of evidence which is clinching enough and firmly and inescapably manacles the Respondent No. 1 wife into a confession. He states that apart from the oral confession which she made, the Respondent No. 1 also handed over to him an affidavit, dated 23-9-1983 duly sworn before a Notary Public, containing an unequivocal confession of her adultery with the Respondent No. 2. It is produced on record at Ex. 22. This affidavit is scribed on a stamp paper. The Respondent No. 1 wife while admitting her signature on this affidavit however explained that it had been so obtained under pressure or coercion. The learned Judge has observed that no such details of such coercion were stated by the Respondent No. 1 in her. written statement - nor deposed to, the manner in which the coercion was practised upon her had not been thus clarified. He also observes that the Respondent No'. 1 should or ought to have complained to and informed her father (then alive) of the compulsion to which she had been subjected in swearing the affidavit. Upon that failure, the learned Judge appears to have held, she stood to be disbelieved in her explanation.
21. The dividing line between a strong sense of persuasion and a strong sense of compulsion so strong as to be a coercion can be so thin indeed. Arguing in this vein Smt. Bhagalia, learned Counsel for the Respondent No. 1, pointed to the Respondent No. 1's version that at the time of signing and executing this affidavit for which 'she had been taken' to the Notary Public by the petitioner and the latter's mother and sister, the mother-in-law had said to her that if what was contained in the affidavit was not true but if it, all the same, stood to satisfy the husband and if it was likely to be conducive to a approachment between the spouses, she should go ahead and sign it. The learned Judge has observed that 'this by no stretch of imagination can be said to be compulsion on the Respondent No. 1 to swear the affidavit'. We think the learned Judge fell into an error because for a wife the need for continued recognition of her status as a married woman and the shelter of the matrimonial home are the most coveted objectives-once she is married. The derecognition of that status of hers by the world at large is a happening which she abhors. Hence according to us the driving force for execution of this affidavit could well have been the persuation by the mother-in-law Shantabai. Actually Shantabai admits on cross-examination that the Respondent No. 1 was not ready to sign the affidavit but that she (Shantabai) made her to understand things and sign the same.
22. The conclusion thus and yet drawn by the learned Judge is that since the Respondent No. 1 has admittedly signed the affidavit it means that she did so because the contents thereof must be true. This conclusion stands to be questioned by Respondent No. 1 seriously. For according to her learned Counsel there are a large number of significant facts and circumstance which make the affidavit Ex. 22 suspect for its genuineness and voluntary execution, a free and consciously willing state of mind for making a confession. Smt. Bhagalia pointed out that it was two days after the incident dated 31-8-1983 that according to the petitioner he made enquiries from Anna Phatak, the landlord, and learnt about Respondent No. 1's illicit intimacy with Respondent No. 2. The petitioner also claimed to have promptly confronted her with this information gained from Anna Phatak and she wilted thereunder to confess. Apart from this fact that no husband would permit such a wife to live under his roof thereafter-which she did, the affidavit relied upon is yet found to be dated 23-9-1983, an interval so long that it would rather dissuade the wife from swearing such an affidavit even if she had initially contemplated making one-for pleasing and assuaging a hurt husband. How the confessional affidavit come to be so much delayed after the oral confession remains unexplained.
23. The petitioner's evidence is that after the oral confession made by the Respondent No. 1 he had asked her to leave the house. This is not corroborated even by his mother Shantabai. He does not even remotely indicate in his evidence that he wanted and called for a written confession of adultery from the wife or that he wanted it in the form of a duly sworn affidavit. Therefore, impliedly enough, he suggests that on 23-9-1983 the wife left the house at 6.00 p. m. entirely of her own accord, went away and returned at 8.30 p. m, and handed over the affidavit Ex. 22 to him. We cannot bring ourselves to believe this. The stamp paper for the affidavit is seen to have been purchased by one Shri Kanitkar Advocate. Kanitkar was and is not Respondent No. 1's Advocate. The petitioner also denied that Kanitkar was his Advocate either. However this latter denial is demonstrably a false statement as we find. The Roznama, dated 25-8-1988 shows that the plaint in this suit (as it initially was before being converted into a petition under the Family Courts Act) was actually presented to the Court of Civil Judge (Senior Division) Pune, by Shri Kanitkar Advocate himself. Secondly, the petitioner has also admitted that one Shri Uraj Kunthe, also an Advocate, is the junior of Shri Kanitkar and that he (petitioner) used to consult this Uraj Kunthe in the present matter. The falsehood on the part of the petitioner thus exposed discredits him.
24. The petitioner might well but we are unable to convince ourselves that the decision to make an affidavit, the obtaining of the stamp paper from a stamp vendor, scribing, executing and swearing of it could all have taken place beyond the ordinary working hours of any office or Court and that again within such a small span of two and a half hours. We find much reason to believe that it was the petitioner who must have and had in fact demanded such an affidavit from Respondent No. 1 on advice given by the lawyer and had also arranged for the execution of it by the Respondent No 1 wife. Much had been done by and at the instance of the petitioner himself in this behalf. That the Respondent No, 1 was being called upon to execute such an affidavit and was all the same unwilling to do so, is admitted by Shantabai and this clearly brings out the petitioner's involvement in extracting such an affidavit and rules out the possibility of the Respondent No. 1 doing all this of her own volition. Otherwise, Shantabai would not have exhibited her clear awareness and knowledge of the Respondent No. 1 being called upon to execute the affidavit. For she states .
It is true that I told respondent to sign on that affidavit as there were disputes in the family. It is true that I made respondent to understand the respondent to sign and that she was not ready.
This affidavit as the bastion of the petitioner's case for divorce on the ground of adultery committed by the spouse wife after the solemnization of marriage and confessed to it also must therefore fall-as Smt. Bhagalia argues. We are inclined to accept her argument that adultery indulged in by the Respondent No. 1 wife is itself not established in the first instance and a decree for divorce under Section 13(1)(i) could not be claimed by the petitioner.
25. It should therefore follow that the question as to whether the adultery committed by Respondent No. 1 with Respondent No. 2 if ever proved by the petitioner was also and yet condoned by him and whether therefore under Section 23(1)(d) it disentitled him from claiming a decree for divorce under Section 13(1)(i) of the Act would not and does not arise. We do not therefore also consider it necessary to dwell at any length on the condonation aspect of the evidence on record though we have gone through the same scrutinisingly enough. We may only mention cursorily therefore, a few facts and circumstances which would prove the petitioner's condonation of the adultery committed by Respondent No. 1 as alleged and if only assumed for a moment.
26. The petitioner has stated that by reason of the incident, dated 31-8-1983 he was convinced that Respondent No. 1 was having extra-marital relations with Respondent No. 2. He also claimed to have obtained an oral and then a written (Ex. 22) confession from her. Though he asserted that thereafter be had no sexual intercourse with the Respondent No. 1 wife, he eventually admitted that she was delivered of a female child on 16-8-1984 and that the said child was born to Respondent No. 1 from him, that he had sexual intercourse with the wife even after the affidavit Ex. 22 was made by her on 23-9-1983, at least for a period of two months. Learned Counsel Shri Jahagirdar for the petitioner is therefore fair, and candid enough in conceding that so far as the birth of the daughter Madhura on 16-8-1984 is concerned, the adultery committed earlier and upto that date, would indeed have to be found and held as condoned by the petitioner husband.
27. However a second child was born to Respondent No. 1 on 23-3-1987. Shri Jahagirdar strongly canvasses that the conception on this occasion was not from the petitioner and that after the birth of Madhura he had no sexual intercourse with Respondent No. 1 at any time. When the petitioner states in his examination-in-chief, dated 20-8-1989 that "Since the date of making over the affidavit to me I never had sexual intercourse with her." and is yet made to admit that the child Madhura was born to Respondent No. 1 on 16-8-1984 was so born from him, he does not deserve to be believed in his denial of paternity of the second child born to Respondent No. 1 on 23-3-1987 and which was while the Respondent No. 1 was admittedly living with him in his house all the time. Petitioner's mother corroborates the Respondent No. 1's evidence that in September, 1985 the Respondent No. 1 and the petitioner had visited the native place of Chiplun for darshan of the family deity Karanjeshwari Devi, They also visited the sacred place Ganpati Pole for darshan of the Lord Ganesh. During this sojourn and outing Respondent No. 1 says the petitioner had sexual intercourse with her. The petitioner's mother also corroborates the Respondent No. 1 about this visit to Chiplun and Ganpati Pole.
28. The petitioner's learned Counsel Shri Jahagirdar however argues that there must have been only stray instances of such sexual intercourse between petitioner and Respondent No. 1 and these cannot amount to condonation of the adulterous relationship between Respondent No. 1 and Respondent No. 2. Reliance is placed on the decision of the Calcutta High Court in Santana Banerjee v. Sachindra Nath Banerjee :-
The law is well-settled that cohabitation at time and/or living together in an attempt to repair the fissures in the relationship of husband and wife by themselves may not amount to condonation. To constitute condonation, the offended spouse must accept the offending partner with a spirit of forgiveness and by wiping off the unpleasant memories, start the conjugal life as if on a clean slate..
However a more apt case of observations in favour of the Respondent No. 1 wife could not be cited. For the facts in this case viz.; (I) The petitioner's admitted cohabitation with Respondent No. 1 even after obtaining the confessional affidavit Ex. 22 from her the truth, genuineness and reliability of which has been rejected earlier, (2) Their continuing to live together after the birth of Madhura on 16-8-1984, (3) Their going to place of pilgrimage for religious worship in September, 1985 and further as believably stated by petitioner had sexual intercourse during this trip, (4) The awareness of petitioner's mother Shantabai that Respondent No. 1 had become pregnant a second time; her looking after Respondent No. 1 during this second pregnancy, (5) Petitioner's getting Respondent No. 1 admitted to a hospital for treatment during pregnancy and visiting her there from time to time, (6) Petitioner admission though he stated in his evidence that the second conception was not at his instance that he never questioned or asked her as to from whom she had conceived, (7) And most important the fact of Respondent No. 1's second conception and delivery on 23-3-1987 are not even mentioned in the petition. This last mentioned particular fact and circumstance would certainly have to be viewed against the petitioner's claim that he had not condoned her adultery -
29. However about this omission in the plaint, the Petitioner explained that he had instructed his Advocate not to mention the fact of the second delivery so as to save his reputation. This explanation cannot be believed when he is shown to have obtained a confession in the form of a duly sworn affidavit of the Respondent No. 1, when he admits to have made enquiries about her character from the landlord Anna Phatak, when he got Respondent No. 1 admitted to the hospital for treatment and delivery as being his wife and when he also gave his consent as the husband to a caesarean delivery of the Respondent No. 1. There can therefore be no doubt that the alternative plea of the Respondent No. 1 that, on assumption of adultery committed by her, the same had been yet condoned right upto the filing of the present petition on 25-8-1988 would also have to be upheld to dismiss the petition. The facts and, circumstances indeed cover a much larger extent of the cohabitation canvass of married line than the case of an occasional or stray sexual intercourse. No assistance can therefore be derived by the petitioner from the ratio of the decision in Santana Banerjee's case (supra).
30. The next argument of the appellant's learned Counsel is that the evidence on record fully establishes the cruelty in the legal sense and meaning of the word, to which he was subjected by the Respondent No. 1. A decree for divorce should therefore have been granted under Section 13(1)(i-a) of the Act as he submits,
31. The facts and circumstances attendant upon the affidavit Ex. 22 as discussed above have demonstrated that it had been extracted from the Respondent No. 1 and the petitioner has lied to the Court when he says that Advocate Kanitkar who is seen to have purchased the stamp paper for the affidavit Ex. 22 is not his lawyer and that he does not even know the said Shri Kantikar, while the Roznama of the proceedings in the petition shows that it was actually presented to the Court by the said Advocate Kantikar. Therefore left to himself the petitioner would only be disbelieved in his evidence on this second ground of cruelty, for claiming a decree for divorce. Of the two witnesses examined by him, Laxman Deshmukh is his colleague in the L. I. C office and Shantabai is none but his mother. Both are therefore interested witnesses as must be found unhesitatingly. The corroboration provided by such witnesses cannot be readily accepted. Tested by cross-examination they stand according to us, exposed as unreliable on the merits of their version. They have to be found tutored. As the evidence shows Sandhya Sathe is the only person who could be said to have been competent as an independent person to depose about all the ten acts of cruelty listed in Para 8 of the petition. For Sandhya Sathe is admittedly an every day visitor at the petitioner's house, spending long hours in that house. Yet she was not examined as a witness. This, as we also find, was for the obvious reason that the petitioner was apprehensive that Sandhya Sathe when subjected to cross-examination would confess to the petitioner's illicit intimacy with her.
32. The first instance of cruelty alleged in the petition is that the Respondent No. 1 used to threaten the petitioner that she would commit suicide by setting herself on fire and charge him and his family members with her murder. Neither the petitioner nor the witnesses Laxman and Shantabai speak a word about such threats, Respondent No. 1 denies this allegation categorically on oath.
33. The second allegation is that Respondent No. 1 accused the petitioner of visiting prostitutes. Grave though the accusation is, even the interested mother Shantabai does not say that she even once heard such utterances from Respondent No. 1 Nor does Laxman claim to have ever heard so. Actually Laxman's testimony-the incriminating examination-in-chief loses all weight when he admits on cross-examination :-
It is true that the respondent was not present in the house when (ever) I had gone.
Crowning one is the fact that the petitioner himself does not state so on oath.
34. The next instance of cruelty alleged is that the Respondent No. 1 used to keep the gas stove switched on without igniting it to burn. The escape of gas pervading the house was a potential danger to all the family members as suggested. Non-else than the mother Shantabai who admittedly remains in the house all the 24 hours of the day could have been a better witness to prove this fact and yet she makes no mention of it. Laxman who says that he actually saw the Respondent No. 1 keeping the gas switch open stands already disbelieved on his admission that the Respondent No. 1 did not use to be present whenever he visited the petitioner and the visits were also not more than once a fortnight at the most.
35. The allegation in the petition that Respondent No. 1 used to indulge in abusing the deceased father of the petitioner is again one to which the petitioner himself makes no reference; nor do Laxman and Shantabai - the latter one would in our opinion, be certainly more sensitive to such insulting Words to her deceased husband and would not fail to mention the same in her, evidence. Yet she says nothing about the same and this exposes the allegation as a false and merely engineered one.
36. It is no more than a childish allegation to make that the Respondent No. 1 used to inconvenience the petitioner and family members front using the latrine whenever they had an urge to relieve themselves. Even so, versions on this point are, so dubious and divergent. Laxman says that Respondent No. 1 used to get into the privy and stay insider for a long time whenever the petitioner had an urge. One wonders whether Laxman could even have had an occasion to drop in at the petitioner's house at so opportune a moment for witnessing his friend's predicament. What establishes this allegation as a patently false one is the version of the mother Shantabai, who says that Respondent No. 1 used to put a lock on the door of the latrine from outside and thus prevent its use at the hour of need. It is inconceivable that the Respondent No. 1 would just for the fun of it spend so much time in such an uncomfortable and in sanitary place. The allegation has thus to be stated only to reject it outright.
37. The remaining five allegations in Para 8 of the petition upon which also the plea of mental cruelty is founded may be put into two groups (i) the immorality of the petitioner in committing incest and having extra-marital relations with the divorcee Sandhya Sathe, a friend of the petitioner's divorcee sister and (ii) immorality of the petitioner's mother and sister. The cruelty contemplated by Section 13(1)(i-a) of the Act as contemplated by the Full Bench decision of this Court in Keshavrao v. Nisha 1984 Mah LJ 576, is the conduct of such a type that the petitioner cannot reasonably be expected to live with the respondent. Therefore there can be no doubt that if the petitioner proves that the wife accused him of incest and illicit sexual relations with Sandhya Sathe and also, that the petitioner's mother and sister were no more than prostitutes and secondly if Respondent No. 1 failed to substantiating these accusations or the petitioner showed them to be false, then there would be no worse type of ignominy to which the petitioner could be said as subjected. That ignominy heaped upon him and his near and dear ones- the family members, sister Sandhya and mother Shantabai, would indisputably amount to such cruelty as would make further cohabitation reasonably impossible and the respondent's conduct totally incompatible with that of the petitioner,
38. The question however is whether these allegations are proved by the petitioner to have been in fact made by the wife. It is to be noted that the Respondent No. 1 has categorically denied each and every one of these grave allegations in her written statement and also proceeded to deny of them on oath from the witness-box. As we find, her cross-examination failed to obtain any admission from her about making of such wild accusations and in a manner reckless at that. We shall single out for separate consideration the petitioner's case that the Respondent No. 1 accused him of adultery with Sandhya Sathe because that allegation has in fact been made by Respondent No. 1 in her written statement.
39. So far as the incestuous conduct of the mother and sister of the petitioner is concerned, the petitioner says that the Respondent No. 1 used to call them as prostitutes; that she also used to say to the mother-in-law that she should sleep with the son or somebody else. The sister is not examined as a witness and the mother Shantabai does not state that such unspeakable utterances in regard to her and the daughter were ever heard by her escaping the Respondent No. 1's mouth. Such foul words, we believe, would never be forgotten by the old mother. All that Shantabai deposed to is that the Respondent No. 1 daughter-in-law used to abuse her. What these abuses were she does not explain. Nor does Laxman, the great friend. Shantabai says that Respondent No. 1 used to call her daughter a hoyden (ghodi). Laxman does say that the Respondent No. 1 used to call the petitioner's sister a prostitute. But we have already found him unworthy of any credit. Even so, we note that he also does not say that he ever heard the Respondent No. 1 calling Shantabai an immoral woman.
40. Coming lastly to the petitioner's case that the wife accused him of having illicit intimacy with one Sandhya Sathe, we do note that the Respondent No. 1 asserted in her written statement that such was the case in fact while refuting the petitioner husband's charge that she was having adulterous relationship with the Respondent No. 2. Petitioner's allegation would therefore become an admitted fact and as observed earlier, unless substantiated to a degree of preponderant possibility, it ought to provide to the petitioner the ground of mental cruelty for claiming divorce. We therefore propose to discuss the evidence on record in some more detail.
41. Sandhya is the married sister of the petitioner. She has been divorced by her husband and has been therefore living in the parental home. She does not appear to be gainfully employed and remains at home. Sandhya Sathe whom the petitioner did not examine as a witness-or rather dared not-is a bosom friend of petitioner's sister Sandhya. Respondent No, 1 's assertion is that Sandhya Sathe is almost the all-in-all in the Patwardhan household, so much so that she (Respondent No. 1) herself has virtually become a non-entity though an earning member. This assertion finds support from the admissions made by both the petitioner and his mother Shantabai. The petitioner states:-
Sandhya Sathe is the friend of my sister., Sandhya Sathe managed my family affairs. Her place of service is near my residence. She stays sometimes at night at my place upto 8-9 p.m.
42. The ever obliging friend Laxman of the petitioner has as dutifully as studiously maintained silence about Sandhya Sathe though he claims to be so close to the entire family of the petitioner. We suspect that Shantabai has also not said a word about Sandhya Sathe, only advisedly. But she is probed sufficiently in cross-examination and admits that, her daughter Sandhya is a divorcee that Sandhya has a son who is in custody of the father since the age of one and a half years and that Sandhya had come to live in the parental home even before the divorce took place. About this daughter's friend Sandhya Sathe, Shantabai has this to say :-
She is friend of my daughter. She frequently visits our house and chit chats with us. She sits even till 10 p. m. (when) the respondent returns from duty.
(Emphasis provided) Against the backdrop of these not-so-innocent but in fact significantly suggestive admissions of the petitioner and his mother the respondent-wife asserts, indeed undislodged, as follows :-
Sandhya Sathe is the friend of my husband's sister and she visits my house frequently. She teaches my husband and the sister of petitioner how to harass me. The relations between Sandhya Sathe and my husband are friendly. On days of festival Sandhya Sathe cooks in our house by displacing me. The mother of petitioner tells Sandhya Sathe to cook and provide tiffins to petitioner in my absence. It is my say that mother of the petitioner desires to take Sandhya in the house by driving me out.
(Emphasis provided)
43. This last sentence which we have emphasised should explain the eloquence of the petitioner's mother's silence in making any mention about Sandhya Sathe in her examination-in-chief. On cross-examination the Respondent No. 1 plants her feet even more firmly on the ground asserting:
It is true that Sandhya Sathe is the friend of petitioner. It is not true that petitioner had no illicit relations with Sandhya Sathe. I have witnessed these illicit relations. Once when I was going to my duty I forgot to take key. I went back to the house and at that time found petitioner and Sandhya Sathe alone in the house. They were frightened and stood up as soon as I entered the house. Sandhya Sathe used to be in the house of petitioner often.
(Emphasis provided) One would not expect the Respondent No. 1 wife to be more explicit in describing the connection between her husband and Sandhya Sathe. Therefore, on the premise that petitioner's allegation that Respondent No. 1 had accused him of illicit intimacy with Sandhya Sathe; was admitted by the Respondent No. 1 in her written statement and that the onus shifted to her to substantiate the same for avoiding a decree for divorce in favour of the petitioner, we have no hesitation that the onus had been sufficiently and satisfactorily discharged.
44. Smt. Bhagalia, learned Counsel for the Respondent No. 1, also submitted that apart from the petitioner's failure to establish that the Respondent No. 1 wife was guilty of an adulterous relationship with Respondent No. 2 and which had not been condoned by him; that she was guilty of such cruelty to him as made cohabitation between them incompatible, the petitioner could not also succeed unless he satisfied the Court that in coming to Court to claim relief there had been no unnecessary or improper delay on his part as was required under Section 23(1)(d) of the Act. The petitioner has failed to so satisfy the Court, she argues.
45. Smt. Bhagalia points out that as alleged by the petitioner himself, his suspicion about the Respondent No 1's infidelity was confirmed when he found her meeting the Respondent No. 2 near the bus stop at 10.30 p.m. on 31.8.1983. At any rate, the petitioner claimed to have had the final proof of Respondent No. 1's infidelity when she made her confessional affidavit Ex. 22 on 23-9-1983. There was therefore nothing which prevented the petitioner from filing the present petition earlier. Then the indulgence in cruelty towards him, as the petitioner alleged, commenced after she made the said affidavit and was a continuing one though, it could not be said that there was any degree of continuity and duration which was required by statute to pass before entitling the petitioner to file the petition. The present petition was filed on 25-8-1988 five years or so after the cause of action arose. The delay was therefore and prima facie as unnecessary as improper-that is the submission of Smt. Bhagalia. Indeed, we find that the petitioner not only offers no explanation in this behalf but also pleads as if to beguile the court that the cause of action has been a continuing one. That as the explanation for the gross delay cannot be either satisfactory or sufficient. The petitioner was bound to explain and satisfy how it was necessary for him to wait till 25-8-1988 for filing the petition; how it was only proper to wait till that time. We hold that the petition was indeed-for want of due compliance with the requirements of Section 23(1 )(d) liable to be dismissed in. limine also.
46. In the result, this appeal must fail and is accordingly dismissed with costs.