Bench:
R.P Sethi
Issue:
- Whether the wife has established that the husband is guilty of adultery?
- Whether the husband had treated the wife with such cruelty as to entitle her to decree a judicial separation?
- Whether the wife has condoned the adultery committed by the husband?
- Whether the wife is presented/prosecuted in collusion with the husband?
- Whether the wife is entitled to the divorce sought for?
Facts:
- The Appellant and Respondent No.1 were married at Hudson Memorial Church, Bangalore. Out of the wedlock one girl and one boy were born. The appellant was alleged to have been neglecting his wife and children from Jan.1,1991 onwards.
- The appellant was alleged to have come in contact with Miss. Prema Kumari (Respondent 2). She was a nurse and the appellant husband hired an apartment near his work space, where they met. Prema Kumai was alleged to have given birth to a daughter in 1986; from illicit relationship of the husband and Prema Kumari. She gave birth to another male child in 1989.
- Efforts to disassociate the appellant from extra marital affair with the aforesaid lady did not bear any result and the relationship widened. It was alleged that the husband used to quarrel with his wife and threatened her with dire consequences, if she refused to part the money she earned. She was alleged to have been subjected to physical and mental cruelty. The husband was alleged to have made attempts to hit his wife with an iron rod when she refused to give keys of the almirah. Against the wishes of the wife, the appellant was alleged to be taking his children to the house of his concubine.
- The appellant was further alleged to be a womanizer; and have developed sexual relationship with a widow (Respondent 3) at the relevant time having a teenaged daughter.
- Alleging adultery along with cruelty, the wife filed an petition under Section 10 of the India Divorce Act, praying to pass a decree nisi and to grant her the custody of the minor children. She further prayed for issuance of directions 10 the appellant-husband for providing sufficient means through settlement towards education, shelter, food, clothing, medical and other incidental expenses.
- On proof of the averments made, a decree nisi for dissolution of marriage was granted in favour of the wife granting her six months to seek an absolute decree. Minor children were directed to be given in the custody of the wife till the decree was made absolute.
- In the absence of sufficient evidence, the other reliefs claimed by the wife were not allowed by the Single Judge in the order impugned in the appeal. It was submitted that the judgment of decree passed against the appellant was against the law and facts which required to be set aside. The appellant denied the allegations made by the wife, and the Judge formulated the above mentioned points (issues) for determination.
Arguments of the Petitioner:
The reliant was not proved to have violated any conditions under Section 10 of the Act. The respondent 2 was an un-married woman and respondent 3 a widow, the husband could not be held guilty of adultery as defined under Section.497 of IPC.
The word ‘adultery’ has not been defined under the Divorce Act, the meaning assigned to it under the IPC was required to be deemed to have been incorporated in the Act, and the decree of dissolution of marriage can only be granted on proof of conditions as required under the IPC. Matrimonial law cannot be equated with penal law.
Adultery for matrimonial law has to be considered in the ordinary meanings assigned to it and understood by the parties to the marriage. (Counsel for the petitioner mentioned various definitions given by several dictionaries for adultery)
The wife had been living with the husband despite knowledge of his living in adultery, she should have condoned the acts of such adultery. (Condonation was explained)
Merely being guilty of adultery cannot be a ground for divorce in favour of the wife.
Arguments of the Respondents:
The appellant husband had solemnized marriage with Respondent No.2 and was also guilty of cruelty. (Cruelty was explained)
Smt. Prema Kumari stated in her evidence that the appellant married her on 12/6/1984 at Wilson Garden Shanti Church. At the time of the marriage she did not know that he was married to Respondent 1 and came to know only after the birth of second child. When she enquired the petitioner, he pleaded to pardon him. According to her the respondent continued to live with her till Nov.1993 and thereafter she saw him living with respondent No.3 (widow), and when she enquired him he did not turn up to her house.
Various documents and photographs were produced as proofs, that the respondent married her and was the father of her children.
Judgment:
After referring to all the evidences of adultery and cruelty, the husband was declared guilty of adultery and cruelty. The cruelty which entitles her to a judicial separation, even if he was not guilty of adultery. The manner in which the husband had contested the petition showed that there was no collusion between the petitioner and the respondent. The Court was satisfied that the order impugned in the appeal was based on proper appreciation of evidence and the provisions of law. The allegations made in the petition filed by the respondent wife were proved by oral as well as documentary evidence. The order of the Single Judge was upheld and the marriage was dissolved in the decree passed in favour of the wife. She was also held entitled to the custody of the minor children.
Relevant Paragraphs:
It is not necessary to prove adultery by direct evidence. Such evidence cannot be given credit even if produced. Adultery his to be inferred from circumstances which exclude any presumption of innocence in favour of the person against whom it is alleged. In matrimonial proceedings the Court has to be vigilant that the burden of proof is satisfactorily established and properly discharged. Adultery, from its nature, is a secret act. The Court must have due regard to the social conditions and the manner in which the parties are accustomed to live. Adultery can generally be proved by presumptive proof passed upon circumstantial evidence such as non-access and the birth of the children. When a man and a woman otherwise not related are found to be living together under suspicious circumstances secretly. It cannot be said that they had met to say prayers and that they were not guilty of matrimonial offence.
While appreciating the evidence regarding cruelty. the whole conduct of the parties is required to be taken into account. No hard and fast standard of proof can be prescribed for proof of cruelty. Certain act or behaviour may be cruel to a particular person and the same may not be so so far as the other is concerned. In cases of physical cruelty it is expected that the petitioner proves the attributed act of the respondent by medical evidence. But, for mental or legal cruelty, parties may adduce evidence leading to the inference that he or she was subjected to a treatment which amounted to cruelty.
"The material on record clearly establishes that the respondent has been guilty of adultery and that he has also treated the petitioner with such cruelty as would have entitles her to a judicial separation, even if he was not guilty of adultery. The manner in which the respondent has contested the petition shows that there is no collusion between the respondent and the petitioner."On going through the evidence add the record produced, we have not been persuaded to come to any other conclusion. We are satisfied that the order impugned in this appeal is based on proper appreciation of evidence and the, provisions of law. The allegations made in the petition filed by the respondent wife were proved both by oral as well as documentary evidence.There is no merit in this appeal which is dismissed with costs throughout. The order of the learned single Judge is upheld. The marriage of the parties is directed to be dissolved in terms of the decree passed in favour of the respondent wife. She is also held entitled to the custody of the minor children.
