Madhya Pradesh High Court
Kalpana Jain vs Shiv Kumar Jain on 2 May, 2003
Equivalent citations: II(2003)DMC828
JUDGMENT A.K. Awasthy, J.
1. Appellant/petitioner has filed this appeal under Section 28 of the Hindu Marriage Act against the judgment and decree passed on 3.5.2000 by the IInd Additional District Judge, Balaghat in Civil Suit No. 32-A/98 rejecting the petition of the appellant filed for judicial separation under Section 10 of the Hindu Marriage Act and allowing the prayer of the respondent/husband for dissolution of the marriage by decree of divorce on the ground of cruelty and adultery.
2. The admitted facts of the case are that the appellant and respondent are Swetamber Jain and their marriage was solemnised on 7.5.1985 at Balaghat in accordance with Hindu customs and rights. It is not in dispute that from the wedlock they had two daughters namely Shruti and Shriya who are living with the respondent/husband. That the respondent is working in the Indian Oil Corporation and since August, 1994 the appellant and husband are living separately.
3. The case of the appellant/petitioner is that at the time of the marriage the father of the appellant gave dowry, silver and gold ornaments, sofa, T.V., Almirah and cash of Rs. 50,000/- to the respondent. That on 29th May, 1994 the respondent demanded a sum of Rs. 1,00,000/- from the father of the appellant alleging that he wants to purchase a Flat at Bombay. That the character of the respondent is loose and he is in the habit of consuming liquor. That the respondent used to insult and ill-treat the appellant and extended the threat to divorce her. The appellant has prayed that on account of cruel behaviour of the respondent she has become apprehensive of her life and a decree of judicial separation be passed against the respondent/husband.
4. The respondent/husband has denied that a sum of Rs. 50,000/-, gold and silver ornaments. T.V., Sofa set, etc. were given as dowry in the marriage of the appellant to the respondent. He has alleged that father of the appellant was Class III Government employee and he was not having enough income for the proper livelihood of his family and as such incapable of giving alleged dowry. The respondent has denied that he has ill-treated his wife and "threatened her to get the dowry or that he is in the habit of consuming liquour or he had illicit relation with other ladies. That the respondent was transferred in the year 1986 to Bhuvneshwar and the behaviour of his wife became reckless and quarrelsome and she used to give threat of committing suicide. It is contended that the appellant developed illicit relations with one Vipin Seth and she used to lock her daughters in the house and leave the house on the pretext that she is going for computer course. That the appellant was got entangled in the racket of call girls. That in the house of the respondent many blank telephone calls were received and the appellant was in the habit of having lusty and sexy conversation with the people on phone. The respondent has alleged that the appellant has filed false case against the respondent under Section 498A of the Indian Penal Code. Respondent has prayed that the decree of divorce be passed because the appellant is leading a life of adultery and she is guilty of matrimonial offence of physical and mental cruelty against the respondent/husband.
5. Learned Trial Court has examined the witnesses of the appellant Kalpana (A.W. 1), Kapoorchand (A.W. 2), Hemandra (A.W. 3), Hukumchand (A.W. 4) and on behalf of the respondent Shruti Jain (NAW 1), Rajesh Kumar (NAW 2), Lalchand Vishwakarma (NAW 3) and Shiv Kumar (NAW 4) were examined. The learned Trial Court has held that the appellant is in possession of the articles given in her marriage and that the appellant is guilty of matrimonial offence of cruelty and adultery and the learned Trial Court rejected the petition filed by the appellant under Section 10 of the Hindu Marriage Act. The petition of the respondent was allowed by the impugned judgment and decree passed under Section 13 of the Hindu Marriage Act.
5. The appellant has assailed the findings of the learned Trial Court on the ground that he has failed to properly appreciate the evidence adduced by the appellant and the findings are not in accordance with the evidence on record.
6. Kapoorchand (NAW 2), Hemendra (NAW 3) and Hukumchand (NAW 4) have stated that the appellant used to complain that the respondent demands more dowry and she was tortured and beaten many a times by the respondent. The appellant has not examined any witness before whom the appellant was beaten or tortured by the respondent. Kapoorchand (A.W. 2), Hemendra (A.W. 3) and Hukumchand (A.W. 4) are the close relatives of the appellant and they have made a bald statement about the complaint made to them by the appellant of the physical assault by the respondent. The respondent has denied that he used to beat the appellant and demanded dowry from the appellant or her father. Consequently, I hold that there is no sufficient evidence to establish that the appellant was tortured or beaten by the respondent and the respondent pressurised her to bring more dowry.
7. Respondent Shivkumar Jain (NAW 4) has stated that in the year 1989 he was posted at Calcutta and because his touring job he used to go away from Calcutta for about 10-15 days. Shivkumar (NAW 4) has stated that his wife used to enterain one Sanjay Kataria for which she was pulled and asked not to allow Sanjay in the matrimonial house. Shiv Kumar (NAW 4) further stated that when he abruptly came from tour at about 6.00 a.m. then he found Sanjay Kataria sleeping in his bed room. Shiv Kumar (NAW 4) has further stated that when he was posted at Bombay then a person namely Vipin Seth who was doing the work of modelling used to come to his house in his absence and his wife had illicit relations with Vipin Seth.
8. Shruti Jain (NAW 1) who is the daughter of the appellant has stated that at Bombay Vipin Seth usually comes to her house in the absence of her father. Shruti (NAW 1) has alleged that her mother used to close the door of the bed room from inside and Vipin Seth used to remain in the bed room for hours together. She has further testified that her mother threatened that she should not tell her father about the visits of Vipin Seth. Lalchand Vishwakama (NAW 3) has testified that the appellant and respondent were residing at Jyoti Apartment at Santakruz, Bombay and he has seen Vipin Seth visiting the house of the appellant in the absence of her husband. Lalchand (NAW 3) has stated that the wife of Vipin was working in Air India and one day Shiv Kumar asked him about his wife and he told Shiv Kumar that his wife has gone out with Vipin Seth. Consequently, from the statement of daughter of the appellant Shruti and blameless testimony of Lalchand (NAW 3), allegation of the respondent that the appellant had intimate relations at Bombay with Vipin Seth are established.
9. Rajesh Kumar (NAW 2) has stated that he was the neighbour of the respondent at Calcutta and the job of Shiv Kumar was of touring nature. That when Shiv Kumar used to be away from the town then the visit of Sanjay in the house of the appellant was regular. That he has seen Sanjay and the appellant going together to market and even after his advice to the appellant not to indulge extra marital relations with Sanjay, she kept on entertaining Sanjay.
10. Adultery being a serious matrimonial offence, a higher standard of proof is required to establish that the appellant/wife had voluntary sexual intercourse with said Sanjay and Vipin. It is held in case of Dr. N.G. Dastane v. Mrs. S. Dastane, II (1981) DMC 293 (SC)=AIR 1975 SC 1534, that adultery may be proved by preponderance of probabilities. The transgression of bound of deceny or indecence behaviour with other persons may only raise a strong presumption of adultery. In case of Ramesh Francis Toppo v. Violet Francis Toppo, AIR 1989 Calcutta, 128, it is said that mere evidence that the wife moved freely and had intimate connection with different peoples does not prove adultery. It is observed in case of Mrs. Dawn Henderson v. D. Henderson, AIR 1970 Madras 104 that the ill-reputation or lewd company would neither prove nor probable lies the adultery.
11. The respondent/husband has not produced enough circumstancial evidence to establish that the appellant/wife had extra marital sexual intercourse with said Sanjay and Vipin. Consequently, from the above evidence it is held that the appellant/wife had familiarities short of sexual intercourse and she was guilty of indecent behaviour and she transgressed the bound of decency in having relations with said Vipin and Sanjay. The learned Trial Court has erred in holding that the appellant/wife is guilty of matrimonial offence of having extra-marital sexual intercourse with said Sanjay and Vipin. The relationship of the appellant/wife with Sanjay and Vipin amount to matrimonial misconduct leading to the mental cruelty to her husband.
12. The general rule is that the matrimonial relation must be considered as a whole and this rule is of special value when matrimonial offence of cruelty is in question. The cumulativeness of the acts and conducts and their overall effect are taken into consideration to conclude that they amount to cruelty or not. There is evidence on record which will be discussed later on that the appellant/wife has made irresponsible, wild and reckless allegations against her husband about his having the black money to his higher authorities for which the enquiry was held by the authorities of the husband. Consequently, I hold that the act, of flirting and unwanted relationship of appellant/wife with Vipin and Sanjay is an act of mental cruelty to her husband.
13. Kalpana (A.W. 1) had admitted in paragraph 39 of her cross-examination that she lodged the complaint in the Vigilance Department of Indian Oil Corporation against her husband that her husband possesses the black money and of his indulgence in corrupt practices. Kalpana (A.W. 1) has further admitted in paragraph 39 of her statement that the officers of the department came to Balaghat to make the enquiry of the complaint lodged by her.
14. Kalpana (A.W. 1) has admitted in paragraph 38 of her cross-examination that on 20.1.1995 her father had lodged the report under Section 498 of the Indian Penal Code at Police Station Balaghat againt the respondent. Kalpana (A.W. 1) has stated in paragraph 45 of her statement that she is having the apprehension that the respondent will kill her and she does not want to live with the respondent. From the fact that the appellant made the complaint against the husband in his Vigilance Department of keeping black money and from the fact that the case under Section 498, IPC was got registered by appellant against the respondent and his family members and from the fact that the appellant had accused her husband that she will be killed by him. I hold that the case of causing mental agony and torture by the appellant against the husband is duly established.
15. The appellant in paragraph 37 and her father Kapoorchand (A.W. 2) in paragraph 36 of their cross-examination have admitted that the appellant used to keep her ornaments in her house at Balaghat. Consequently, the prayer of the appellant for return of the gold and silver ornaments under Section 27 of the Hindu Marriage Act is not tenable and rightly rejected by the learned Trial Court. The respondent/husband has succeeded and proved only one ground of divorce i.e. of cruelty under Section 13(l)(ia) of the Act.
16. The appeal is without merit and is hereby dismissed. The parties are directed to bear their own costs incurred in appeal.