Andhra HC (Pre-Telangana)
A. Hemamalini vs A. Pankajanabham And Anr. on 12 August, 1994
Equivalent citations: 1994(3)ALT30, I(1995)DMC258, 1995 A I H C 1869, (1994) 3 ANDH LT 30, (1995) 1 DMC 258, (1995) MATLR 222, (1995) 1 APLJ 27, (1995) 21 MARRILJ 591, (1995) 1 CIVLJ 766, (1994) 2 HINDULR 671, (1994) 2 LS 231, (1995) 3 CURCC 179
JUDGMENT S.R. Nayak, J.
1. This is a wife's appeal directed against the order dated 22.4.1991 in O. P. No. 35 of 1985 on the file of the Court of the Principal Subordinate Judge, Tiruputi allowing the petition of her husband filed under Section 13 of the Hindu Marriage Act, 1955, shortly referred to as the 'Act' and dissolving the marriage between them. In this appeal the appellant is the wife, the first respondent is the husband and the second respondent is the alleged paramour of the appellant.
2. The averments in the petition filed by the first respondent disclose that the first respondent married the appellant in accordance with the usage and custom of the Setti Balija community of Hindus, at Railway Kalyana Mandapam, Tirputi on 5.10.1984. It is alleged that soon after the marriage the appellant disclosed to the first respondent that she had illicit intimacy with the second respondent even before the marriage when the second respondent was working at Renigunta and she consented to marry the first respondent only on account of compulsion and coercion of her parents. It is alleged that the appellant did not permit the first respondent to consummate the marriage stating that she had pre-marital intercourse with the second respondent. However, on persuation of her parents the appellant agreed to live with the first respondent and therefore the first respondent set up a separate living with the appellant in one of the portions of the house belonging to the parents of the appellant in the first week of December, 1984. Even then, the appellant did not permit the first respondent to consummate the marriage. On 29.12.1984 the appellant was taken to her parental house by her parents on the ground that she was unwell and assuring the first respondent that she would stay with the parents only until Sankranti, but the appellant did not join the first respondent even after Sankranti. The first respondent made several attempts in vain to secure the company of the appellant. The parents of the appellant took one or the other pretext and did not send the appellant to the first respondent. On 22.4.1985 the patents of the appellant met the first respondent and informed the latter that the appellant was missing from the house from the previous night and they also disclosed to the first respondent their knowledge of the illicit intimacy between the appellant and the second respondent. The parents of the appellant also told the respondent that the second respondent eloped the appellant. After hearing this from the parents of the appellant, the first respondent along with his brother-in-law and a friend searched for the appellant at several places and after securing the address of the second respondent, the first respondent, his brother-in-law and his friend went to Vengalathur, the village of the second respondent on the afternoon of 29.4.1985 and met the second respondent. When the second respondent was confronted in the presence of his mother, the second respondent admitted the premarital intimacy and sexual intercourse with the appellant and elopement of the appellant. The appellant was not in the house of the second respondent. Therefore the first respondent and others gathered the elders of Vengalathur village including one R. Oovindaswamy Reddy (P. W. 2) who is said to be Sarpanch of the village to learn about the whereabouts of the appellant. In the presence of the elders of the village the second respondent disclosed that he had secreted the appellant in the house of his elder sister at nearby village, called Nallathur. On the advice of the elders, the second respondent brought the appellant to Vengalathur on the morning of 30th April, 1985 and in Vengalathur in the presence of elders both the appellant and respondent No. 2 admitted pre-marital intimacy between them as well as of having had sexual intercourse several times both before and after the marriage of the first respondent with the appellant. The appellant refused to joint and cohabit with the first respondent. On persuasion of the elders the first respondent and others escorted the appellant from Vengalathur to her parents house in Renigunta on the morning of 30.4.1985. The appellant had agreed for divorce by mutual consent but the parents of the appellant did not agree for the divorce unless the petitioner paid Rs. 20,000/- towards the marriage expenses incurred by them for performing the marriage. The first respondent issued a lawyer's notice dated 24.5.1985 to the appellant, second respondent and the parents of the appellant calling upon the appellant to join him in making a joint application for divorce by mutual consent. The appellant and her parents on the one hand and the second respondent on the other by separate replies set up false and untenable pleas. With these averments the first respondent sought the dissolution of the marriage on the ground of adultery.
3. Counter was filed by the appellant-wife. The appellant, while denying all the material, allegations contained in the petition filed by the first respondent except the fact of marriage, alleged that the appellant is no other than the daughter of elder sister of the first respondent and she married the first respondent with fond hope that she would lead a happy married life. It is stated that four days after the marriage the first respondent began to illtreat her for no fault of her. She also came to know that the first respondent was addicted to vices. She claimed that she was taken to parental house by her father on 29.12.1984 for Sankranti and when she was staying in the parental house the first respondent came to that place on 13.1.1985 and beat her and asked her to follow him in the morning of the very next day. The parents of the appellant pleaded with the first respondent to stay back and participate in Sankranti festivities on 14.1.1985 and assured him that they would send the appellant either on 15th or 16th of January, 1985. But the first respondent left the house even without informing anybody in the house. The appellant went to the house of the first respondent three days after Sankranti but the respondent did not accept her. On the other hand he beat the appellant severely and drove her out of the house and the appellant returned to her parental house. There afterwards there was a mediation through the elders who were also the relatives of the first respondent. On their advice the appellant again went to the house of the first respondent but she was again beaten severely and driven out from the house, threatening her that unless her father conveys the residential house, to the first respondent, he would not let her into the house. The appellant also alleged that the first respondent wants to marry the daughter of his another elder sister. She claimed that she is ready and willing to live with the first respondent. The second respondent also filed a counter denying all material allegations in the petition.
4. With these pleadings the parties went to trial. On behalf of the first respondent the himself examined as P.W. 1 and examined one R. Govindaswamy Reddi as P. W. 2 and marked 9 documents as Exs. A-1 to A-9. The appellant wife examined herself as R. W. 1 and examined four others as R. Ws. 2 to 5 and marked one document as Ex. X-1.
5. The learned Subordinate Judge after considering oral and evidence recorded the finding that the first respondent discharged sufficiently documentary the burden of establishing the ground on which he sought the divorce with the appellant under Section 13(1)(i) of the Act. In that view of the matter the learned Subordinate Judge allowed the petition and dissolved the marriage dated 5.10.1984 between the appellant and the first respondent by a decree of divorce.
6. It was strenuously contended by Sri P. S. Narayana, the learned Counsel for the appellant that the evidence adduced by the first respondent husband to prove the charge of adultery is self-contradictory, unsatisfactory as well as unnatural. He contended that there is absolutely no acceptable evidence to prove the fact that the appellant wife has, after solemnisation of the marriage on 5.10.1984, had voluntary sexual intercourse with the second respondent herein or any other person other than the first respondent and in that view of the matter the learned Subordinate Judge has seriously erred in law in granting the decree for divorce. Sri. P. S. Narayana, on the question of burden of proof and standard of proof has cited the decisions reported in--
Mrs. Joanal Thomas v. Geoffery Charles Thomas, Jami Sadhu Amma v. Jami Satyanarayana, 1967 (1) An. W. R. 179.
Champa Gouri v. Jamandas Amichand, 1971(1) APLJ 230.
Smt. Togari Ghandrakala v. Togari Venkatesh, .
S. Mallaiah v. Eisther and Anr., .
Dr. N. G. Dastane v. Mrs. S. Dastane, .
for the proposition that the fact of adultery should be proved strictly by very cogent convincing and acceptable evidence. On the other hand Sri K. V. Subrahmanyam Narsu, the learned Counsel appearing for the first respondent-husband while supporting the order of the learned Subordinate Judge contended that the charge of adultery need not be proved by any direct evidence or beyond reasonable doubt and what is required is the satisfaction of the Court on a preponderance of probabilities. In support of his submission the learned Counsel placed reliance on the decision of the Supreme Court reported in Dr. N. G. Dastane v. Mr. S. Dastane (supra) and the decision of the Orissa High Court in Sanjukta Padhan v. Laxinarayana Padhan and Anr., . He submitted that if the aforementioned principle is kept in mind, there is sufficient evidence on record to probablise the guilt of the wife and therefore no case is made out for interference by this Court.
7. Adultery is one of the grounds for a spouse to seek dissolution of the marriage under Section 13 of the Act. Sub-section (1) of Section 13 of the Act provides that any marriage solemnized, whether before or after the commencement of the Act, may, on a petition presented by either husband or the wife be dissolved by a decree of divorce on the ground among other grounds that the other party has after solemnization of the marriage had voluntary sexual intercourse with any person other than his or her spouse Therefore what is required to be proved is the appellant wife afier the solemnization of the marriage on 5.10.1984 had voluntary sexual intercourse with the second respondent or any other person other than the first respondent, to establish the ground for divorce under Section 13 of the Act. The original clause which reads "his living in adultery" is substituted by the present clause which is a verbatim reproduction of the original Section 10(1) (f) before its deletion in 1976. Hence the decisions under Section 10(1)(f) before amendment would also be relevant in construing this provision. After the amendment in 1976 under the present provision it is sufficient to prove that the respondent had voluntary sexual intercourse with any person other than the spouse. It need not be proved that the respondent has been living in adultery. A comparison of the provisions prior to amendment and subsequent to amendment would indicate that the rigour of establishing living in adultery" has been lessened by requiring to prove that the spouse had voluntary sexual intercourse with any person other than his or her spouse.
8. As stated by Lord Macdermott in Preston Jones v. Preston Jones (1951 A. C. 391) the jurisdiction in divorce invokes the status of the parties and public interest requires that the marriage bonds shall not be set aside lightly or without strict enquiry. The earlier view was that the charge of adultery was required to be proved beyond reasonable doubt because of the gravity and public importance of the issue. However the Supreme Court in Dr. N. G. Dastane v. Mrs. S. Dastane (supra) observed that in the case of a matrimonial offence it is not necessary and it is really not possible to prove adultery by any direct evidence in all cases and the question has to be decided on a preponderance of probabilities. An act of adultery is in its nature a very secret act. Direct proof could not be available in all cases. It is extremely difficult to get direct evidence and if the Courts insist on direct evidence in proof of adultery it will amount to a denial of the legitimate protection of marital rights. Therefore proof of actual adultery is not necessary and circumstantial evidence which lends to an inference of adultery is sufficient. The degree of proof need not reach certainty but it must carry a high degree of probability. The fact of adultery should be proved strictly by very cogent and convincing evidence. In a recent decision in the case of S. Mallaiah v. Eisther and Anr. (supra) a Full Bench of this Court has laid down that adultery is a very serious allegation. Appreciation of evidence in such cases must be careful and proper. It is only when the evidence is cogent, consistent and irrefragible, the finding of adultery could be recorded. But where the evidence of the petitioner is lacking in corroboration and is inconsistent and unnatural, no finding of adultery could be recorded. Similarly, a Division Bench of this Court in the case of Smt. Togari Chandrakala v. Togari Venkatesh (supra) has held that when the husband came forward with a plea that the wife was living in adultery, the burden is on him to prove that the wife was living in adultery. He must also examine the persons who have knowledge of it. In the case it is further held that mere allegation by the husband without corroborating testimony is of no avail to accept the plea that the wife committed the adultery. A Full Bench of Punjab High Court in the case of Mrs. Joan Bernal Thomas v. Geoffrey Charles Thomas (supra) ruled that a person who sets out to establish the charge of adultery must do so by clear and positive evidence. It is not necessary that direct evidence should be produced for it is open to a party to prove it by indirect or circumstantial evidence or partly by direct and partly by circumstantial evidence, but if the factum of adultery is sought to be proved by circumstantial evidence the evidence should be such as would be incompatible with the innocence of the party charged. In any case it should lead a just and reasonable man to the conclusion that adultery has been committed.
9. In the background of these legal principles governing burden of proof and standard of proof, we may proceed to examine the evidence on record in the present case. Before doing it, it may be pointed out that cruelty, ill-treatment, addiction to vices on the part of the husband cannot be a Justification for his wife to commit adultery. In that sense when husband seeks dissolution of the marriage on the ground of adultery committed by his wife and the wife while denying the said allegation, sets up cruelty, ill-treatment, addiction to vices etc., on the part of the husband, it may not be necessary for the Court to record its finding on the alleged cruelty, ill-treatment, addiction to vices etc., and any negative and disaffirmative finding that may be recorded on those issues by itself will not be a proof of adultery. The Division Bench of the Madras High Court in Dr. H. T. Vira Reddi v. Kistamma, has observed that as a general rule, in matrimonial proceedings the Court is vigilant to see that the burden of proof is satisfactorily and properly discharged by the applicant and that the respondent's putting forward a false defence is not regarded as sufficient by itself to establish the truth of the applicant's case and at the same time the putting forward of false defence will destroy the respondent's credibility. This does not however, mean that in all cases, irrespective of the precise setting and the nature of the rival theories, the Court cannot take into account its own findings that the version of the other side is totally false. For a limited purpose, depending upon the particular facts of such case and also depending upon the nature of the competing rival theories, it will not be improper for the Court to take into consideration, the fact that the case of one party has been proved to be completely false. At the same time it had to be borne in mind that by itself would not amount to holding that the applicant has discharged the burden. In the present case the appellant wife, in her counter, claimed cruelty, ill-treatment, addiction to vices on the part of her husband. The learned Subordinate Judge in the first place proceeded to consider whether the appellant-wife substantiated those allegations levelled against the husband and recorded findings that those allegations are not substantiated by the appellant wife. As pointed out by the Division Bench of the Madras High Court in the case of Dr. H. T. Vira Reddi findings that may be recorded on such defences by themselves would not amount to holding that the applicant before the Trial Court has discharged the burden. Those findings may be taken into account only in assessing the credibility of the respondent wife. It is needless to state that the burden to prove the adultery is on the person who seeks dissolution of marriage on the ground of adultery. Therefore the question before the Court is whether the first respondent-husband has discharged this burden to the satisfaction of the Court by adducing cogent and convincing evidence.
10. Now coming to the evidence on record, at the out-set it may be noted that the charge of adultery on the part of the appellant wife is sought to be proved only by the alleged confessions made by her, her parents and her alleged paramour respondent No. 2. First of all we are not impressed with the alleged confession on the part of the wife, her parents and her alleged paramour which appears to us to be absolutely unnatural and artificial. In assessing the evidence of such kind, the Court cannot keep its common sense in cold storage. None, much less a woman and her parents come forward voluntarily to disclose to the first respondent husband about the alleged illicit intimacy between the appellant and the second respondent, that too, within few days after the marriage. In assessing the credibility of this piece of evidence it is also necessary to bear in mind the family background of the spouses involved in this case and their up-bringing. The appellant is no other than the daughter of the elder sister of the first respondent. It has come in the evidence that the father of the appellant was kind and considerate to the first respondent. He was responsible for getting job to the first respondent. It has also come in the evidence that the first respondent even before the marriage was residing with his mother in a portion of the house belonging to the father of the appellant. Therefore the appellant and the first respondent must be known to each other quite closely from their childhood. If this family background of the spouse is kept in mind, it is rather difficult for the Court to believe that if the appellant had really an affair with the second respondent before the marriage that fact would not come to the knowledge of the first respondent and if that fact had come to the knowledge of the first respondent, he would have marriage her.
11. The charge of adultery is sought to be proved by the evidence of P.Ws. 1 and 2. P.W. 1 is the first respondent-husband P.W. 2 is one R. Govindaswamy Reddi. At this juncture it is also relevant to note that except the evidence of P.Ws. 1 and 2 there is absolutely no evidence to prove the charge of adultery. The Court after going through the evidence of P.Ws. 1 and 2 carefully finds that their evidence suffers from material contradictions and is totally unsatisfactory, unbelievable and to say the least most unnatural and fictional. To begin with we may point out it has come in the evidence of P.W. 1 that when the parents of the appellant met him on 22.4.1985 they informed him about the elopement of the appellant by respondent No. 2 and then he claims that a complaint was lodged with the police. The alleged complaint lodged with the police would have clinched the issue in great measure. But P.W. 1 has not taken any steps to summon that document and produce in the case. Added to this, look at the material considerations in the evidence of P.Ws. 1 and 2; P.W. 1 in his evidence states that he followed the parents of the appellant in the search of the appellants at Vijayawada, Kazipet and other places, but the appellant was not found. This evidence is quite contrary to what he has pleaded in the original position. In the original petition he has stated that after he came to know about the missing of the appellant he, on his part, with his another brother-in-law, and a friend searched for the appellant at several places. It is curious to note that he did not mention the name of his friend nor the name of another brother-in-law. Further, P.W. 1 states in his evidence that he met the second respondent on the afternoon of 29.4.1985 at the latter's residence and claims that at that time the mother of respondent No. 2, P.W. 2 and some others were present, and in the presence of all the 2nd respondent admitted his illicit intimacy with the appellant and told them that he had kept the appellant in the house of his sister in Nallathur village. This version of the petitioner is again quite contrary to what he has pleaded in the petition. In the petition P.W. 1 has stated that he reached Vengalathur village on the afternoon of 29.4.1985 and when he confronted the second respondent in the presence of his mother the second respondent admitted pro-marital intimacy and sexual intercourse with the appellant and the elopement of the appellant. At this juncture it is necessary to note that while P.W. 1 claims that he met respondent No. 2 and P.W. 2 on 29.4.1985 in Vengalathur village on the afternoon of that day, his own witness P,W. 2 in his evidence has clearly stated that P.W. 1 met him in the night of 29.4.1985. Further many other material contradictions can be noticed in the evidence of PW. 1 and P.W.2 regarding alleged confessions made by the appellant and second respondent about their illicit intimacy and sexual intercourse if we carefully compare the evidence of P.Ws. 1 and 2 and the averments made by P.W. 1 in his petition. On page 5 of the evidence, P.W. 1 states that on 30th April, 1985 when the appellant was brought to her parental house she agreed for divorce. But this fact is not stated in the petition. Added to this, look at the desperate attempt of P.W. 1 in putting certain suggestions of R.W. 1 the wife. In the cross-examination of R.W. 1 it is suggested to her that P.W. 1 and his relations along with the residents of Nallathur including P.W. 2 caught the appellant red-handed in the house of the sister of the second respondent at Nallathur, on the information of the second respondent. It is further suggested in the cross-examination that in the house of sister of the second respondent at Nallathur the appellant told P.W. 2 and others that she had sexual intercourse with the second respondent and that she would live with him and she refused to live with P.W. 1 as wife. This is not at all the case of P.W. 1. It is not his case that he and P.W. 2 went to Nallathur village and therefore the appellant telling them the facts attributed to her at Nallathur village does not arise.
12. Now coming to the evidence of P.W. 2 who is stated to be an office bearer of the Panchayat of the village. In his evidence he has stated that P.W. 1 met him on the night of 29.4.85 and expressed his suspicion about the second respondent's involvement. This piece of evidence of quite contrary to what is pleaded and stated by P.W. 1. P.W. 2 then states that after hearing P.W. 1 he sent for the second respondent and his mother and the second respondent confessed of having illegal intimacy with the appellant and hiding her in Nellathur village in the house of his sister. Then he states that he sent mother of the second respondent to Nallathur village to bring the appellant and she brought the appellant next day morning. This evidence is again quite contrary to the pleading of P.W. 1 and his evidence. According to P.W. 1 the second respondent brought the appellant to Vengalathur village on the morning of 30.4 1985. P.W. 2 in his evidence does not speak about the appellant and the second respondent confessing their illegal intimacy with each other on the morning of 30.4.1985. He also does not speak about the fact that the appellant agreed for divorce. The evidence of both P.W. 1 and P.W. 2 bristles with material contradictions and they are also at the same time totally unnatural. At this juncture it is also relevant to note that it may not be safe to place much reliance on the evidence on P.W. 2. In cross-examination of P.W. 2 it was suggested to him that P.W. 2 had illegal intimacy with the mother of the second respondent sometime back and when one Munikrishna Chowdary, a teacher developed illegal intimacy with the mother of the second respondent, the relationship between P.W. 2 and the mother of the second respondent and second respondent became strained" A mere suggestion is not the proof of that fact but the suggestion made to the witness cannot be totally ignored in assessing the credibility of the witness. Therefore, after careful consideration of the entire evidence on record we are of the considered opinion that the evidence let in support of the plea of adultery is quite contradictory, unsatisfactory as well as unnatural. We may also point out that there is absolutely no evidence whatsoever to prove the fact that the appellant after solemnization of the marriage on 5.10.1984 had voluntary sexual intercourse with the second respondent. Even accepting the evidence of P.W. 1 and P.W. 2 as correct and trustworthy neither P.W. 1 nor P.W. 2 deposed about the appellant confessing that she had sexual intercourse with the second respondent after the solemnization of the marriage on 5.10.1984.
13. The Supreme Court in Dr. N.G. Dastane v. Mrs. S. Dastane (supra) referred to above, observed that :
"That belief regarding the existence of a fact may be founded on a balance of probabilities. A prudent man faced with conflicting probabilities concerning a fact-situation will act on the supposition that the fact exists, if on weighing the various probabilities he finds that the preponderance is in favour of the existence of the particular fact. As a prudent man, so the Court applies this test for finding whether a fact in issue can be said to be proved. The first step in this process is to fix the probabilities, the second to weigh them, though the two may often intermingle. The impossible is weeded out at the first stage, the improbable at the second."
14. If the course suggested by the Supreme Court is applied to the facts of this case we do not find any preponderance of probabilities to establish the charge of adultery, alleged against the wife. Therefore, in our opinion, the learned Subordinate Judge, Tirupati was wholly wrong in drawing an inference of adultery from contradictory, unsatisfactory and highly unnatural type of evidence adduced by the husband.
15. Even the version of the appellant-wife that she went to Madras on 22.4.1985 as she was mentally disturbed by the happenings occurred in her matrimonial relationship with the first respondent-husband and stayed in the house of R.W. 4 is fully corroborated by the evidence of R.W. 4. R.W. 4, is a retired railway employee and known to the members of the family of the father of the appellant. He is an independent and disinterested witness. There is no reason to disbelieve his evidence. Therefore it is also clear that around 29.4.1985 and 30.4.1985 the appellant-wife was in Madras and Renigunta and not in Nallathur village or in Vengalathur village as claimed by the first respondent-husband.
16. Alternatively Sri. P.S. Narayana contended that assuming that the charge of adultery is established against the wife, the same was condoned by the husband. The learned Counsel submitted that there is sufficient evidence on record to show that the husband condoned the adulterous conduct of the appellant wife even if it were true as alleged by him. He also submitted that the decision rendered by the Division Bench of this Court in the case of Champa Gouri v. Jamandas Amichand (supra) squarely covers the facts of the case. We do not think there is any necessity to consider this alternative contention putforth by the learned Counsel for the petitioner in view of the decision taken by us on the question of discharge of burden of proof by the first respondent-husband.
17. For all these reasons the appeal is allowed. No costs; the order of the Prl. Subordinate Judge, Tirupati dated 22.4.1991 made in O.P. No. 35/85 is set aside and O.P. No. 35/85 is dismissed.