Patna High Court - Orders
Arun Kumar Sinha vs Chandra Kant Sinha @ Chanda on 2 September, 2008
IN THE HIGH COURT OF JUDICATURE AT PATNA
C.R. No.2228 of 2007
ARUN KUMAR SINHA
Versus
CHANDRA KANT SINHA @ CHANDA
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2 02.09.2008No one appears to press this application on behalf of the petitioner.
The petitioner is aggrieved by the order of the Court below dated 30th July, 2007 wherein the application dated 5.5.2003 filed by the petitioner has been rejected on the ground that as the issue of adultery is one of the main issues in the matrimonial case, the application filed by the petitioner on 5.5.2003 to excuse him from not impleading the adulterer as co-respondent has become insignificant and thus infructuous.
Few facts have to be considered in order to find out the bonafide of the petitioner in pressing his aforementioned application dated 5.5.2003 after a lapse of more than four years. The petitioner had filed an application under Section 13 of Hindu Marriage Act hereinafter referred to as the Act, on 5.5.2003 seeking a decree of divorce on the ground of cruelty, desertion and adultery on the part of the respondent-wife. It is born out from Annexure-3 to this Civil Revision application which is a petition filed by the petitioner on 18.4.2007 in the Court below that he had filed as many as nine -2- interlocutory applications in between 5.5.2003 to 18.4.2007. One of such application was filed on the date on which the matrimonial case itself was filed i.e. on 5.5.2003 purportedly in terms of Rule 16 of Hindu Marriages Act, 1955. Rules 16 of the Hindu Marriages Act, 1955 reads as follows:-
"16. Co-respondent in husband's petition.- In any petition presented by a husband for divorce on the ground that the wife is living in adultery or judicial separation on the ground that the wife has, since the solemnization of the marriage, been guilty of adultery, the petitioner shall make the alleged adulterer, if alive, a co-respondent in the said petition, unless he is excused from so doing by an order of the Court which may be made on any or more of the following grounds which shall be supported by an affidavit in respect of the relevant facts.-
(i) that the respondent is leading the life of a prostitute, and that the petitioner knows of no person with whom the adultery has been committed;
(ii) that the name of the alleged adulterer is unknown to the petitioner,
(iii) that the alleged adulterer is dead; -3-
(iv) for any other sufficient reason that the Court may deem fit to consider."
It would thus appear from the aforementioned extracted provisions of Rule 16 that one of the procedural requirement for maintaining an application for divorce on the ground of wife living in adultery since the solemnization of the marriage is that the husband- petitioner shall make the alleged adulterer, if alive, a co- respondent in the petition seeking divorce unless he is excused from doing so by the order of the Court on anyone or more of the four grounds mentioned therein. The petitioner has in this regard tried to make out a case that he was not aware of the name of the adulterer and as such he should be allowed prosecute the application seeking divorce without making adulterer as a co- respondent.
In the opinion of this Court, when the application seeking divorce under Section 13 of the Act filed by the petitioner was admitted on 4.9.2003 without drawing any adverse inference on account of non-impleadment of adulterer as co-respondent, no useful purpose could have been served in the repeated insistence of the petitioner to pass an order on his interlocutory application dated 5.5.2003 and the Court below has committed no jurisdictional error in holding hardly that there was any -4- relevance of such application of the petitioner dated 5.5.2003 in the changed scenario when the case was pending for final hearing.
That Court would find from the facts of the case that marriage of the petitioner was solemnized on 5.7.1979 and it is his case that the wife-opposite party had deserted him in 1983 but still she could become pregnant leading to termination of her pregnancy on 13.7.1987 at Patna City Hospital and yet again on 9.4.2003 at Gardani Bag Hospital. Keeping in view the aforementioned pleadings, though denied by the wife- opposite party in her written statement the Court below had already framed a issue of adultery in the pending divorce case. The petitioner instead of discharging the burden of proving his allegation of adultery has only chosen to scandalize his wife by reiterating allegation of adultery by filing a series of interlocutory applications. The assertion of the petitioner that the respondent-wife is living in adultery and that she had conceived on account of sexual relationship with some other persons outside the marriage leading to repeated termination of pregnancy is a fact which is yet to be proven by him.
Adultery being a serious matrimonial offence, a very high standard of proof infact is required to establish that the wife had voluntarily sexual intercourse outside -5- the marriage. The petitioner infact has not named any person with whom his wife is said to have sexual intercourse. The petitioner however, is still at liberty to produce circumstantial evidence to establish that his wife had extra-marital sexual intercourse. The Apex Court in the case of Dr. N.G. Dastane v. Mrs. S. Dastane, reported in AIR 1975 SC1534 has laid down that adultery may be proved by preponderance of probabilities inasmuch as the transgression of bound of deceny or indecent behaviour with other persons may also raise a strong presumption of adultery. Thus the plea of the petitioner that his wife was having sexual relationship with some other persons is yet to be tested and as such he cannot be permitted to make personal attack on the character reputation and standing of his wife by filing repeated interlocutory applications on the matrimonial case only with a view to defame and malign her image.
At least, from the pleadings on record, there is hardly any reliable material to draw an inference that the wife of the petitioner had extra-marital sexual intercourse with any named person. A mere assertion of the wife having become pregnant and terminating her pregnancy by itself cannot be conclusive proof of the allegation of adultery. Reference in this connection may be made to the judgment of Calcutta High Court in the case of -6- Ramesh Farancis Toppos v. Violet Francis Toppo, AIR 1989 Calcutta, 128 wherein it was held that mere allegation that the wife may have freely and had intimate connection with different people does not prove adultery. Similar view in fact has already been recorded in the judgment of Madras High Court in the case of Mrs. Dawn Henderson v. D. Henderson, reported in AIR 1970 Madras 104 and by the Madhya Pradesh High Court in the case of KALPANA JAIN versus SHIV KUMAR JAIN reported in 2003 DIVORCE & MATRIMONIAL CASE
828. Judged, in this background it must be held the petitioner abused the process of court and his effort to obtain an order of the Court below under the guise of Rule 16 of the Rules after more than four years of filing of divorce application was only a device to strengthen his otherwise a weak case of adultery emanating from a rather vague, irresponsible and defamatory statement against his wife. In the considered opinion of this Court, the Court below therefore did not commit any jurisdictional error in rejecting such interlocutory application of the petitioner which to say least had infact become infructuous in course of a period of four years and was not required to be pressed.
That being so, this application is dismissed with an -7- exemplary cost of Rs. 5000/- to be paid by the petitioner to the opposite party within a period of three months. The Court below is also directed to take up the hearing of the matrimonial case filed by the petitioner on day to day basis so that the same is positively concluded within a period of nine months from the date of receipt/production of a copy of this order. It is however made clear that observations made above would not prejudice the parties and the Court below would decide all the issues including the issue of adultery in the light of evidence of record.
With the aforementioned observations and directions this applications stands dismissed.
Bibhash (Mihir Kumar Jha, J.)