Rajasthan High Court - Jaipur
Madhu vs Mukesh Naiyar And Ors. on 18 May, 2007
Equivalent citations: II(2007)DMC762
Author: Guman Singh
Bench: Guman Singh
JUDGMENT Shiv Kumar Sharma, J.
1. By a decree of divorce dated January 8,1999 learned Family Court No. 1, Jaipur City snapped the marital ties between the appellant wife (Madhu) and respondent husband (Mukesh). Against this decree that the present action for filing the appeal has been resorted to by Madhu.
2. Madhu and Mukesh got married according to Hindu rites on August 8,1972. Two daughters and one son viz. Meenakshi, Nidhi and Atul were born out of the wedlock. On March 18,1997 i.e. after 24 years and 7 months, Mukesh filed petition seeking divorce from Madhu under Section 13 of the Hindu Marriage Act, 1955 (for short 'the Act') on the grounds of adultery and cruelty. At that point of time age of Meenakshi was 23 years, whereas age of Atul and Nidhi was 20 and 18 years respectively. Mukesh impleaded in the petition Shiv Kumar Verma of Amritsar (Punjab) and Baldev Sagar Beri of New Delhi as co-respondents. In para 10 of the petition Mukesh pleaded that in the month of July, 1996 Shiv Kumar Verma came to Jaipur and stayed in his house. Illicit relationship of Madhu and Shiv Kumar Verma came to the light when Mukesh himself saw them sharing bed and committing sexual intercourse. Again in para 12 of the petition Mukesh averred that in July, 1996 when he woke up in the night he found Madhu in the room of Baldev Sagar Beri and they were committing sexual intercourse. Since Madhu treated Mukesh cruelly he became disturbed and filed petition seeking divorce from Madhu.
3. Madhu gave a detailed reply denying all the allegations and expressed her desire to continue the marriage. It was stated by her that she never indulged in the alleged activities and Shiv Kumar Verma was her sacrosanct Guru whereas Baldev Sagar Beri was her brother-in-law (Jija). She never had illicit relationship with them and Mukesh had levelled false allegations against her. She also pleaded that it was Mukesh and his family members who harassed her for the demand of dowry and she never behaved cruelly with Mukesh. She described in extenso how she brought a sum of Rs. 10,000 at the time of birth of child and thereafter a sum of Rs. 1 lac for raising construction of upper storey of the house and Rs. 20,000 for her treatment. She also averred that she was harassed, tortured and beaten by Mukesh.
4. Learned Family Court framed as many as four issues out of the pleadings of the parties thus:
(1) Whether after the marriage the behaviour of wife was cruel as per the facts stated in the petition?
(2) Whether the wife developed relationship with B.S. Beri and Shiv Kumar Verma?
(3) Whether the husband and his family members harassed the wife for demand of dowry as mentioned in the reply to petition?
(4) Relief?
5. Mukesh examined himself as P.W. 1 and in support of his testimony produced Raj Kumar Naiyar (P.W. 2), Tej Bahadur Singh (P.W. 3), Smt. Simmi (P.W. 4), Smt. Beena (P.W. 5), Jitendra Kumar Sharma (P.W. 6) and O.P. Naiyar (P.W. 7). Madhu on the other hand appeared as D.W. 1 and examined Sohan Lai Karir (D.W. 2), Veena Beri (D.W. 3), Om Prakash Gandhi (D.W. 4) and Rajesh Kumar (D.W. 5) to corroborate her contentions.
6. Learned Family Court decided all the issues against Madhu and granted decree of divorce in favour of Mukesh as indicated above.
7. We have heard learned Counsel for the parties and scanned the material on record. We shall take up issue of adultery first.
Sub-clause (i) was inserted in Section 13(1) of the Act w.e.f. May 27, 1976. Alter incorporation of this sub-clause no decree for divorce on the ground of adultery as mentioned in Section 13(1) could be granted in favour of respondent in the absence of any material on record to show that the appellant had voluntary sexual intercourse with a stranger to the marriage.
8. It is well settled that the charge of adultery or illicit connection made against the spouse is a serious matter and it must rest on evidence of unimpeachable character. In Pushpa Devi v. Radhey Shyam , this Court had occasion to scan Mulla's Hindu Law (13th Edition pages 671 and 672) and it was indicated that direct evidence is not required to prove the fact of adultery. It would be unreasonable to expect direct evidence and such evidence, if produced, would be normally suspect and is likely to be discarded. Normally the matrimonial offence of adultery is expected to be established by circumstantial evidence, but in that event the circumstances must be such as lead to the necessary conclusion that adultery was committed by the spouse concerned. The only general rule upon the subject is that the circumstances must be such as would lead to a guarded judgment of a reasonable and just man to the conclusion. Proof beyond reasonable doubt mean such proof as it precludes every reasonable hypothesis except that which it tends to support. It need not reach certainty, but must carry a high degree of probability. The Court would not as a general rule infer adultery from evidence of opportunity alone, but would require some more satisfactory proof.
(Emphasis Supplied)
9. Bearing these principles in mind when we scan the testimony of Mukesh (P.W. 1) we notice that he made bald allegation against Madhu. In his deposition Mukesh deposed thus:
(Hindi matter omitted) Similar averments were incorporated by Mukesh in para 12 of the petition. It was averred that one night in the month of July, 1996 when he awoke he found Madhu in the bedroom of B.S. Beri when both were lying on a bed and committing sexual intercourse. However in his deposition he only stated as under:
(Hindi matter omitted)
10. Witness Raj Kumar Naiyar (P.W. 2), Bahadur Singh (P.W. 3), Simmi (P.W. 4), Beena (P.W. 5), Jitendra Kumar Sharma (P.W. 6) and O.P. Naiyar (P.W. 7) deposed that Madhu was under the influence of Shiv Kumar Verma and B.S.Beri and because of her relations with them she had left the house of Mukesh.
11. Per contra Madhu (D.W. 1) in her deposition denied the allegations levelled against her by Mukesh and stated that she did not have illicit relationship with Shiv Kumar Verma and B.S.Beri. According to her she used to be harassed by Mukesh and his family members for demand of dowry.
12. From the material on record we notice that B.S.Beri is the elder Jija of Madhu and as per the testimony of Beena Beri (D.W. 3), who is the wife of B.S. Beri, B.S. Beri never visited Jaipur in the month of July, 1996 and he was with her during entire month of July, 1996 in Delhi. It also appears that Shiv Kumar Verma is the real maternal uncle (Mama) of Madhu and happens to be a fatherly figure as deposed by Madhu and her testimony could not be shattered in the cross-examination. We also find that prior to filing the petition, Mukesh, through his Advocate Chaman Lai Bajaj served a registered notice dated October 22,1996 on Madhu. A look at the copy of the notice, which is available on record, goes to show that allegations of adultery were not found place in the notice. It is thus evident that the allegations of adultery were after-thought. We find it difficult to believe that because of sexual urge, a middle aged mother of three adult children that too after 24 years seven months of her marriage, would share bed with her maternal uncle in her husband's house at the time when her husband usually returned from the office. Evidence of Mukesh is silent about the place from where he could see Madhu and Shiv Kumar Verma sharing bed and committing sexual intercourse. Whether the bedroom was not bolted from inside? Or whether they were enjoying sex keeping the bedroom open so that Mukesh could see them in compromising position. Similarly the averments made in the pleading that in the same month of July, 1996 Madhu and B.S. Beri were seen by Mukesh committing sexual intercourse. This fact has not been substantiated by Mukesh in his ocular testimony.
13. In regard to proof of adultery Sir William Scoff in (1810) 2 Hag Con 1, indicated thus:
It is a fundamental rule that it is not necessary to prove the direct fact of adultery; because, if it were otherwise, there is not one case in a hundred in which the proof would be attainable; it is very rarely indeed that the parties are surprised in the direct fact of adultery. In every case almost the fact is inferred from circumstances that lead to it by fair inference as a necessary conclusion: and unless this were the case, and unless this were so held, no protection whatever could be given to marital rights. What are the circumstances which lead to such a conclusion cannot be laid down 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 most important bearings in decisions upon the particular case.
14. Let it not be forgotten that the charge of adultery in this case is a charge against a respectable woman, who is the mother of three adult children. And adultery with whom? With a maternal uncle and brother-in-law. So, the basic fact which leads to the detection of such adultery must be proved to our complete satisfaction. Having closely scrutinised the evidence adduced by Mukesh we find ourselves unable to hold that the evidence led by Mukesh successfully makes out a case so as to invoke Section 13(1)(i) of the Act. It is highly unlikely that a woman who sacrificed her youthful 24 years as 'Pativrata' wife, would suddenly turn towards infidelity. We find evidence of Mukesh totally unworthy of credence.
15. That takes us to the issue relating to cruelty. On analysing the evidence adduced before the Family Court we find that the incidents demonstrated by Mukesh in his testimony come within the purview of petty quibbles, trifling differences and quarrels that happen in day to day married life of the spouses and these trivial irritations do not amount to cruelty. The incidents illustrated by Mukesh in his statement cannot be termed "more serious than ordinary wear and tear of married life." It appears to us that approach of learned Family Court in deciding the petition was too technical and hyper sensitive. The Family Court was dealing with particular man and woman and not ideal husband and ideal wife. Ideal couple do not have occasion to go to Matrimonial Courts. It also appears that despite quarrelsome conduct of Madhu, Mukesh tolerated her and both led a normal sexual life as a result of which Madhu gave birth to three children. Mukesh failed to explain the circumstances in which he came to lead and live a normal sexual life with Madhu, even after a series of acts of alleged cruelty. In such a situation even if it is held that behaviour of Madhu was cruel to Mukesh, he having led a normal sexual life with Madhu, had condoned that alleged cruelty. In Dr. N.G. Dastane v. Mrs. S. Dastane , Their Lordships of the Supreme Court indicated thus: (para 56) The evidence of condonation consists here in the fact that spouses led a normal sexual life despite the respondent's acts of cruelty. This is not a case where the spouses, after separation, indulged in a stray act of sexual intercourse, in which case the necessary intent to forgive and restore may be said to be lacking. Such stray acts may bear more than one explanation. But if during cohabitation the spouses, uninfluenced by the conduct of the offending spouse, lead a life of intimacy which characterises normal matrimonial relationship, the intent to forgive and restore the offending spouse to the original status may reasonably be inferred. There is then no scope for imagining that the conception of the child could be the result of a single act of sexual intercourse and that such an act could be a stark animal act unaccompanied by the nobler graces of marital life. One might then as well imagine that the sexual act was undertaken just in order to kill boredom or even in a spirit of revenge. Such speculation is impermissible. Sex plays an important role in marital life and cannot be separated from other factors which lend to matrimony a sense of fruition and fulfilment. Therefore, evidence showing that the spouses led a normal sexual life even after a series of acts of cruelty by one spouse is proof that the other spouse condoned that cruelty. Intercourse, of course, is not a necessary ingredient of condonation because there may be evidence otherwise to show that the offending spouse has been forgiven and has been received back into the position previously occupied in the home. But intercourse in circumstances as obtain here would raise a strong inference of condonation with its dual requirement, forgiveness and restoration. That inference stands uncontradicted, the appellant not having explained the circumstances in which he came to lead and live a normal sexual life with the respondent, even after a series of acts of cruelty on her part.
(Emphasis Supplied)
16. Learned Family Court has thus failed to consider the evidence of parties in right perspective and committed illegality in deciding issue Nos. 1 and 2 in favour of Mukesh.
17. We find no merit in the argument of learned Counsel appearing for Mukesh that since marriage had broken down irretrievably, no purpose would be served by prolonging the agony of the parties. In the facts and circumstances of this case where Mukesh levelled false allegations of adultery against Madhu, we are of the opinion that provisions contained in Section 23 of the Act would be attracted and Mukesh would not be allowed to take advantage of his own wrongs. In Chetan Das v. Kamla Devi , their Lordships of the Supreme Court propounded thus: (Para 19) In the present case, the allegations of adulterous conduct of the appellant have been found to be correct and the Courts below have recorded a finding to the same effect. In such circumstances, in our view, the provisions contained under Section 23 of the Hindu Marriage Act would be attracted and the appellant would not be allowed to take advantage of his own wrong. Let the things be not misunderstood nor any permissiveness under the law be inferred, allowing an erring party who has been found to be so by recording of a finding of fact in judicial proceedings, that it would be quite easy to push and drive the spouse to a corner and then brazenly take a plea of desertion on the part of the party suffering so long at the hands of the wrongdoer and walk away out of the matrimonial alliance on the ground that the marriage has broken down. Lest the institution of marriage and the matrimonial bonds get fragile easily to be broken which may serve the purpose most welcome to the wrongdoer who, by heart, wished such an outcome by passing on the burden of his wrongdoing to the other party alleging her to be the deserter leading to the breaking point.
18. Their Lordships of the Supreme Court had occasion to consider the object and purpose of Hindu Marriage Act, 1955 in Hirachand Sriniwas Managaonkar v. Sunanda and it was observed thus:(Para 16) ...At the cost of repetition it may be stated here that the object and purpose of the Act is to maintain the marital relationship between the spouses and not to encourage snapping of such relationship.
19. In Naveen Kohli v. Neelu Kohli , on which reliance is placed by learned Counsel for Mukesh, Neelu Kohli filed series of criminal case against Naveen Kohli, details of which have been incorporated in para 82 thus:
82. The High Court ought to have examined the facts of the case and its impact. In the instant case, the following cases were filed by the respondent against the appellant:
1. The respondent filed FIR No. 100 of 1996 at Police Station, Kohna under Sections 379/323, IPC.
2. The respondent got a case registered under Sections 323/324 registered in Police Station, Panki, Kanpur City.
3. At the behest of the respondent FIR No. 156 of 1996 was also filed in Police Station, Panki.
4. The respondent filed FIR under Sections 420/468, IPC at Police Station, Kotwali.
5. The respondent got a case registered under Sections 420/467/468 and 471, IPC.
6. The respondent filed a complaint against the appellant under Sections 498A/323/504/506, IPC at Police Station Kohna.
7. The respondent had even gone to the extent of opposing the bail application of the appellant in criminal case filed at Police Station, Kotwali.
8. When the police filed final report in two criminal cases at Police Station, Kotwali and Police Station, Kohna, the respondent filed protest petition in these cases.
9. The respondent filed Complaint No. 125 of 1998 in the Women's Cell, Delhi in September 1997 against the appellant's lawyer and friend alleging criminal intimidation.
10. The respondent filed a complaint under Sections 397/398 before the Company Law Board, New Delhi.
11. The respondent filed a complaint in Case No. 1365 of 1988 against the appellant.
12. Again on 8.7.1999, the respondent filed a complaint in Parliament Street Police Station, New Delhi and made all efforts to get the appellant arrested.
13. On 31.3.1999, the respondent had sent a notice for breaking the nucleus of HUF.
14. The respondent filed a complaint against the appellant under Section 24 of the Hindu Marriage Act.
15. The respondent had withdrawn Rs. 9,50,000 from the bank account of the appellant in a clandestine manner.
16. On 22.1.2001 the respondent gave affidavit before the High Court and got non-bailable warrants issued against the appellant.
17. The respondent got an advertisement issued in a national newspaper that the appellant was only her employee. She got another news item issued cautioning the business associates to avoid dealing with the appellant.
The findings of the High Court that these proceedings could not be taken to be such may warrant annulment of marriage is wholly unsustainable.
20. In paras 85 and 86, the Apex Court proceeded to observe as under:
85. Undoubtedly, it is the obligation of the Court and all concerned that the marriage status should, as far as possible, as long as possible and whenever possible, be maintained, but when the marriage is totally dead, in that event, nothing is gained by trying to keep the parties tied forever to a marriage which in fact has ceased to exist. In the instant case, there has been total disappearance of emotional substratum in the marriage. The course which has been adopted by the High Court would encourage continuous bickering, perpetual bitterness and may lead to immorality.
86. In view of the fact that the parties have been living separately for more than 10 years and a very large number of aforementioned criminal and civil proceedings have been initiated by the respondent against the appellant and some proceedings have been initiated by the appellant against the respondent, the matrimonial bond between the parties beyond repair. A marriage between the parties is only in name. The marriage has been wrecked beyond the hope of salvage, public interest of all concerned lies in the recognition of the fact and to declare defunct dejure what is already defunct de facto. To keep the sham is obviously conducive to immorality and potentially more prejudicial to the public interest than a dissolution of the marriage bond.
21. In the instant case, we have noticed that despite all odds Madhu did hot file even a single criminal case against Mukesh. On the contrary she has been devoting her life to serve her deaf, dumb and handicapped daughter Nidhi. Madhu still wants to live with Mukesh. In our opinion attention of Mukesh towards his invalid daughter is also required. In such a situation marital ties of the parties cannot be snapped.
For these reasons we allow the appeal and set aside the impugned judgment and decree dated January 8,1999 of learned Family Court No. 1, Jaipur. There shall be no order as to costs.