V.K. Agarwal, J.
1. This is an appeal under Section 28 of the Hindu Marriage Act, 1955, (hereinafter called as 'Act' for short), challenging the judgment and decree dated 19-3-1998, allowing the petition of the respondent under Section 13 of the 'Act' and granting him a decreeof divorce against the appellant-wife.
2. Undisputedly, the appellant was married to the respondent on 26-1-1989 in accordance with Hindu rites. A son Goldi was born out of the said wed-lock on 28-11-89. Appellant-wife has also given birth to her second son on 30-9-1997, while the petition for divorce by the respondent was pending in the lower Court.
3. The respondent-husband filed an application for divorce. It was averred by him that he was married to the appellant in 'Samuhik Vivah Sammelan' held by 'Rathore Chhatriya Sabha' Jabalpur, The respondent/petitioner lived with his wife - the appellant, and gave birth to their son Goidi. The appellant-Amita, however, started demanding money on threats that on the failure of respondent/petitioner she would involve the latter in a criminal case. It was also averred that the appellant-Amita was a woman of loose character and had extra-marital relations. The love letters written and addressed to the appellant were also recovered by the respondent/petitioner. The respondent/petitioner, therefore, prayed that a decree for divorce be granted to him under Section 13(1)(i) and 13(1)(ia) of the 'Act'.
4. The appellant-wife resisted the petition for divorce. According to her, sufficient dowry was given in their marriage. However, the respondent/petitioner started demanding more dowry and on failure of the parents of the appellant-wife to fulfil his demand she was tortured by the respondent/petitioner. On account of such torture and maltreatment, the appellant-wife fell ill and suffered from brain tumour. The respondent/ petitioner did not give her proper treatment and always asked her to bring money from her parents for treatment. A report was lodged by the appellant at the Police Station and an offence under Section 498A of the Indian Penal Code was registered against the respondent-husband. It was also averred by the appellant-wife that some love letters were got written by her husband in pursuance of his plan to obtain divorce on the protest that he was writing a 'Novel'. The respondent-petitioner after divorcing the appellant intends to marry some rich girl. With the above end in view, the petition for divorce has been filed by her husband. The appellant-wife therefore prayed that petition for divorce be dismissed.
5. The learned lower Court framed issues asto whether cruelty was meted out by the appellant on the respondent/petitioner, and whether she is living in adultery? Both the above issues were decided in favour of the respondent/petitioner by the trial Court. Accordingly, by the impugned judgment and decree, the petition for divorce of the respondent-husband was allowed.
6. The learned counsel for the appellant-wife has urged that there is no evidence that the appellant treated the respondent-husband with cruelty or that she was leading an adulterous life. It has also been urged that letters produced in the case by the respondent-husband alleging that they were the love letters, written by the appellant and addressed to her by one Akhilesh Shukla (NA.W. 5), were in fact obtained by the respondent/petitioner on the pretext that he was authority a 'Novel'. The affidavit of the appellant-wife filed by her husband-the respondent, was similarly obtained under threat and coercion. Therefore, such documents could not be relied upon, and it could not be justifiably held that the appellant treated the respondent-husband with cruelty or that the appellant-wife was leading an adulterous life.
7. Learned counsel for the respondent has however supported the impugned judgment and decree. It has been submitted that there is overwhelming evidence on record to support the findings of the learned lower Court that the appellant treated her husband-respondent with cruelty and was leading an adulterous life. Therefore, the findings as above, and the decree for divorce based thereon, was fully justified.
8. Firstly, it has to be considered whether ground for divorce under Section 13(1)(i) of the 'Act' has been established?
9. In the above context, the learned trial Court has framed an issue to the effect as to whether the non-applicant i.e. the present appellant Amita has been leading an adulterous life, and has recorded a positive finding in that regard. However, it may be noticed in the above regard that Clause 13(1)(i) has been amended by Marriage Laws Amendment Act (68 of 1976). Now under the said clause as amended, the ground for divorce is whether a person after that the solemnisation of his or her marriage had voluntarily sexual intercourse with any person other than his or her spouse. Thus, by the amendment in Section 13(1), the expression 'living in adultery is substi-tuted by the expression' had voluntary sexual intercourse.' Thus, in order to succeed on the ground under Section 13(i) of the 'Act', prior to amendment a continuous course of conduct amounting to adultery was to be established. However, after the amendment, a single act is sufficient to prove the ground for divorce.
10. In view of the amendment as above, now instead of considering as to whether the appellant-wife was living in adultery, it has to be considered whether there is evidence to indicate that the appellant-Amita after the solemnisation of her marriage had voluntarily sexual intercourse with any other person than her husband-the respondent?
11. It is settled law that the marriage bond shall not be set aside lightly or without strict enquiry. The general standard and degree of proof required in such cases need not reach certainty, but it must carry a high degree of probability, because of the gravity of issue. In Dr. N. G. Dastane v. Mrs. S. Dastane, AIR 1975 SC 1534, it was pointed out that as the proceedings under the Hindu Marriage Act, 1955, are of civil nature, the test of criminal proceedings need not be applied and it is not necessary to prove the allegations beyond all reasonable doubt, the reason being that a criminal trial involves the liberty of the subject which may not be taken away on a mere preponderance of probabilities and it would be wrong to in put such a consideration into trial of civil nature. The word 'satisfied' in Section 23 of the 'Act' must mean satisfied on preponderance of probabilities and not satisfaction beyond reasonable doubt; which requires proof of higher standard in criminal or quasi-criminal trials. Proof beyond reasonable doubt is not postulated where human relationship is involved and eye-witnesses are difficult to obtain. Similar proposition was laid down in Shobha Rani v. Madhukar Reddi, AIR 1988 SC 121.
12. Coming to the evidence, in the instant case, the petitioner-respondent Anil Kumar (AW/1) has stated that he was married on 26-1-1989 with the appellant-Amita in the 'Samuhik Vivah Sammelan' held by 'Veer Durga Das Rathore Panchayat Samiti' Jabalpur. Thereafter, both of them lived as husband-wife for eight years and a son Siddarth alias Goldi was born out of the said wed-lock on 28-11 -89. He has stated that no dowry was given in the marriage. Hefurther states that while his wife-the appellant resided with him, he provided her all amenities according to his capacity. However, his wife was ill-tempered and a person of loose character, and had illicit relations with another person.
13. The respondent-husband has produced love letters (Ex. P/l to Ex. P/16) and (Ex. P/31 and Ex. P/32), written by his wife Amita. He also states that letters (Exs. P/17 to P/22) are written by her paramour, Akhilesh. It may be noted that Akhilesh (NAW/5) has been examined by appellant-wife.
14. The petitioner-respondent has further stated that the appellant-Amita had executed and si fined document (Ex. P/23), in the nature of affidavit, in which she admitted that she had illicit relations, with another man and that she was caught red-handed by her husband. Close relatives of appellant Amita also signed the said document Ex. P/23, as witnesses.
15. The respondent-petitioner has examined his son Siddhurth alias Goldi (AW/2), who is aged about 8 years. He has stated that he used to deliver letters by his mother Amita to her paramour Akhilesh and also the letters sent by Akhilesh to his mother.
16. It may be noted that the appellant Amita in his reply to the petition has admitted that the letters were in her hand-writing. However, according to her, the letters were got written by her husband on the pretext that he was writing a 'Novel', and that she should co-operate in the writing of the said 'Novel'. She has also admitted to have executed the document which is marked as Ex. P/23, and has averred in her reply in the above connection, that me above document was not executed by her husband under duress and threats due to which she was forced to sign it, as would appear from para 4 of her reply.
17. In her statement also, the appellant Amita has admitted that the letters (Ex. P/1) to (Ex. P/16) and (Ex. P/31 and Ex. P/32) are in her hand writing, but she has stated that those are not the actual love letters written by her, and has reiterated her explanation regarding the said letters and has deposed that they were not written by her husband on the pretext that he was writing a 'Novel'. She states that since her husband had told her that she should not disclose to anybody about the petitioner writing a novel, therefore,she did not tell anybody about the aforementioned letters.
18. Akhilesh Shukla (NAA/5) who has been examined on behalf of appellant-Amita also admitted that the letters (Ex. P/17) to (Ex. P/22) have been written by him. He stated that he wrote the above letters on the asking of respondent-petitioner Anil. In cross-examination he further states that he wrote those letters on the dictation of Anil and that he did not ask him the reason, as to why Anil-the respondent/petitioner, was asking him to write those letters, as would be clear from para 5 of his statement.
19. The explanations, as above by the appellant Amita (NAW/1) as well as Akhilesh (NAW/5) however appear to be unnatural and are therefore unacceptable, as would be presently seen. It is highly improbable that several letters produced by the respondent, could not got written by the petitioner-respondent from Amita as well as from Akhilesh for the reasons stated by the above witnesses. If the said letters were got written by the respondent for the purpose of writing novel, as appellant Amita has stated, they would have been in regular sheets of papers and would have been written in continuity. Moreover, the letters would not have been written clumsily-vertically as well as horizentically, as some of the letters e.g.. Ex. P/l, Ex. P/8, Ex. P/15 and Ex. P/16 and some others would indicate. Some of those letters are written on papers of different sizes and some on small pieces of papers. Again, even if the respondent was writing a novel of which the letters were to form part; there was no need for the respondent to ask his wife Amita to write those letters. The respondent could himself have written the letters as other parts of the manuscript of the novel, he was allegedly writing. The nature, contents, language and tenor of the several letters produced by the respondent do not suggest that they were to form part of any novel, as is the explanation offered by the appellant regarding the said letters. Further there is no reason why Siddharth alias Goldi (AW/2) would make a false statement in this regard against his own mother that he used to carry letters of her mother-appellant Amita as well as that of Akhilesh.
20. Thus, the contents, as also the mode and manner of writing those letters falsify the explanations given by appellant Amita as well as by Akhilesh for writing those letters. Therefore, thelearned trial Court was fully justified in refusing to accept the explanations as above.
21. The learned counsel for the appellant has also submitted that the statement of the respondent Anil Kumar Rathore that he found the letters in the box of the appellant, cannot be accepted on its face value, as it was improbable that the letters written by the appellant would have been kept by her in the box. However, it may be noticed in the above connection that the appellant has admitted that she had written letters (Ex. P/1) to (Ex. P/16) as well as letters (Ex. P/31) and (Ex. P-32). As mentioned earlier, she states that she was forced to write those letters by her husband-the respondent on the pretext of writing a novel. However, as noticed earlier, the above explanation regarding writing of the letters cannot be accepted. Obvious inference, therefore, would be that the letters produced by the respondent/petitioner were actual love letters exchanged between the appel-lant-Amita and Akhilesh (NAW/5). Therefore, the statement of petitioner/respondent Anil Kumar (AW/1) that the letters, as above, were found by him in the box of the wife-appellant Amita cannot be discarded as unbelievable. There can be several reasons, as to why they were kept by the appellant-Amita in her box. Therefore, the submissions as above of the learned counsel for the appellant cannot be accepted.
22. The inference as above gets further fortified by the admission made by the appellant-Amita in document Ex. P/23, which is admittedly signed by her. Appellant-Amita in document Ex. P/23 has admitted that though she was at fault and has been detected by her husband, yet her husband-the petitioner/respondent is willing to keep her with him for the sake of the prestige of the family. The respondent-petitioner Anil Kumar Rathore (AW/1) has in paras 3 and 9 of his statement deposed that appellant-Amita executed document Ex. P/23, after the letters were recovered by the respondent from her box. Obviously therefore, the appellant-Amita was left with no choice but to make an admission, as per Ex. P/23 after detection of letters in her box, by the respondent.
23. The statement of appellant-Amita's mother Urmila Bai (NAW/2), would also indicate that she had put her signature in document Ex. P/23. Other close relatives of appellant also signed the said document. Urmila Bai (NAW/2) had tried toexplain her signature on document Ex. P/23 by saying that the respondent extended threat to her and had asked her to sign on the said document, and that she did not know what the contents of the said document were. However, it may be noted that not only the mother of Amita, but several other persons closely related to Amitahavc signed document Ex. P/23, as witnesses thereof.
24. The nature and contents of Ex. P/23 and the evidence led by the respondent/petitioner falsified explanation of Umiila Bai (NAW/2), that she was made to sign the said document under threat by the respondent/petitioner. Moreover, it is highly improbable that the respondent/ petitioner could have obtained signatures of so many persons, under duress or threat. It may be noted in the above connection, that none of such persons cared to lodge complaint about the above conduct of the respondent/petitioner to the police or to any of his family members.
25. Thus, from the evidence on record, it is amply established that the appellant Amita and Akhifesh had exchanged several love letters as noticed earlier. Contents of letters particularly Ex. P/l, Ex. P/2 and Ex. P/32 unmistakably indicate illicit sexual relationship between the two, as the appellant Amita therein tacitly has admitted to have conceived from Akhilesh. The execution of document Ex. P/23 by the appellant Amita further supports the above inference.
26. Though the learned counsel for the appellant Amila has urged that even if the letters were written by the appellant Amita and Akhilesh, they by themselves would not indicate that there was illicit sexual relationship between the two. Reliance in this connection has been placed by him on Smt. Chandra Mohini Shrivastava v. Avinash Prasad Shrivastava, AIR 1967 SC 581. In the said case, Chandra Prakash, with whom she was alleged to have illicit relations, had allegedly written two letters to the appellant-wife. However, the appellant-wife denied that she ever received any letter from Chandra Prakash. It was observed in that case that even if the appellant-wife received the letters produced in that case, in the absence of response or reciprocation of the said letters from the appellant, such letters would not prove that there was any illicit relationship between the appellant and Chandra Prakash.
27. In the instant case however, as noticedearlier there was exchange of several letters between the appellant-wife and Akhilesh. The letters as above as also the admission made by appellant Amita vide document Ex. P/23, would lead to irresistible conclusion that the appellant Amita was having extra-marital'sexual relationship with Akhilesh.
28. In Banchhanidhi Das v. Kamala Devi, AJR 1980 Orissa 171, it has been observed that:
'While it is true that evidence of adultery has to be clear and definite and the allegation has to be proved beyond reasonable doubt, it would be difficult to get direct evidence of acts of adultery. 'Living in adultery' is suggestive of the fact that a single instance of adultery may not be adequate. In the instant case, the letters refer to a course of adulterous conduct and, therefore, the requirement of Section 13 of the Act has been satisfied. As has been pointed out in Raden on Divorce it is not necessary that there should be direct evidence of adultery as it is not easily available. It has been also stated that rarely the parties would be caught in acts of adultery. Circumstantial evidence must, however, be sufficiently strong and conclusive.'
29. In the instant case, there is satisfactory and convincing circumstantial evidence that the appellant Amita was having extra-marital relations with Akhilesh and indulged in illicit sexual relationship with him. Hence, the decree for divorce under Section 13(1)(i) was justifiably granted by the learned trial Court in favour of the pctitioncr-husband.
30. The next question that deserves consideration is as to whether the appellant-Amita treated her husband-the respondent/petitioner with cruelty?
31. The expression 'cruelty' which constitutes aground for divorce under Section 13(1)(ia) of the 'Act' has not been defined. The Courts have to interpret, analyse and define as to what constitutes 'cruelty' in a given case. This would depend on many factors such as social status, background, customs, traditions, caste and community, upbringing of the parties as also the public opinion prevailing in the locality. The Court has to rest its decision on the facts and circumstances of each case on assessment of human nature and human affairs with due regard to social conditions and customs of the parties. A decree under Section 13(1)(ia) of the 'Act' can begranted only when there is proof of cruelty which satisfies the conscience of the Court that the relationship between the parties had deteriorate to such an extent that it has become impossible for them to live together without mental agony, torture or distress.
32. In Shobha Rani v. Madhukar Reddi (AIR 1988 SC 121) (supra), it has been observed that the word 'cruelty' has not been defined and has been used in relation to human conduct and human behaviour. It is the conduct in relation to or in respect of matrimonial duties and obligations. It is of course a conduct of one which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. If it is physical, the Court will have no problem to determine it. It is a question of fact and degree. If it is mental the problem presence difficulty. First the enquiry must begin as to the nature of the cruel treatment. Second the impact of such treatment in the mind of the spouse has to be determined and it has to be found out whether it casts reasonable apprehension that it would be harmful or injurious to live with the other. Ultimately, it is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse.
33. In the instant case, it may be noticed that the statement of respondent/petitioner Anil Kumar (AW/1) is that the appellant-Amita used to illtreat him. The appellant-wife also extended threat to her husband the respondent/petitioner that she would involve him in a dowry case on the allegation of demand of dowry. The respondent-husband therefore lodged reports against the appellant-wife in this regard as per Ex. P/29 and Ex. P/30. He has also stated that she used to administer sleeping pills to him in order to slowly poison him so that she could grab the money deposited in fixed deposits in his name by his mother, and wherein his wife, the appellant was named as nominee.
34. The petitioner/respondent Anil Kumar (AW/1) has also stated that his wife-appellant Amita lodged a false report as per Ex. P/24 at Police Station Kotwali on 13-6-1997 alleging that the respondent/petitioner demanded dowry of Rs. 20,000/- from her. The respondent/petitioner was released on bail in the case registered on the said report. The appellant Amita did not stop there, but also lodged a complaint on similarallegations of demand of dowry against the parents, brother and sister of the respondent/petitioner. Moreover, as noticed and discussed in detail earlier, the appellant Amita and Akhilesh were having illicit relationship and exchanged love letters. She was detected by the respondent-husband on which she executed document (Ex. P/23).
35. The defence of the appellant Amita was that her husband-the respondent and his family members were dissatisfied with the dowry given in the marriage and that the respondent-husband wanted to divorce her so that he could remarry. However, it may be noted in the above connection that the parties were married in a community marriage and admittedly no demand of dowry was made at the time of marriage. Therefore, the above statement of the appellant-Amita is highly improbable that after 7-8 years of marriage the respondent-husband or his family members would start demanding dowry from the appellant. Her defence as above is vague and evidence adduced by her in this regard does not inspire confidence. Therefore, it is clear that the allegation of demand etc. made by the appellant-Amita is unfounded.
36. On the scrutiny of evidence led by the parties, as above, it stands proved that the appellant-Amita had indulged in extramarital sexual relationship with Akhilesh, which continued for a long period. She administered sleeping pills to her husband, the respondent, as has been admitted by her in some of the letters written by her. The respondent apprehended danger to his life and suspected, that his wife the appellant was slowly poisoning him, in order to grab the amount of fixed deposits. The illicit relationship carried on by the appellant-wife must have naturally caused tension and suffering to the respondent. Both the parties have lodged reports with the police against each other. Clearly, therefore, the relations between the parties have, reached a stage, and have deteriorated to such an extent that it has become impossible for them to live together without mental torture, distress and agony. Therefore, it is established that the appellant-wife treated the respondent-petitioner with cruelty, as held by the trial Court. Thus, ground for divorce under Section 13(1)(ia) of the 'Act' has been made out by the respondent-husband.
37. The appellant-wife has filed an application dated 10-11-98 Section 25 of the 'Act' for the grant of permanent alimony. No application, in the above appears to have been filed in the trial Court. The allegations regarding the income etc., of the appellant have been made in the application which is supported by an affidavit. The application has been filed at the fag end of this appeal when the arguments have already been heard. The respondent has got no opportunity to reply and to adduce the evidence in that regard. Therefore, decision on merits cannot be given on the said application at this stage, merely on the basis of averments made therein. Hence, the said application is not being decided on merits and liberty is granted to the appellant to file an appropriate application under Section 25 of the 'Act' in the trial Court which shall be decided by it in accordance with law.
38. In view of the above discussion, clearly the decree of divorce granted by the learned trial Court under Section 13(1)(i) and 13(1)(ia) of the 'Act' is fully justified. It does not call for any interference, Hence, this appeal fails and is dismissed. The parties shall however, bear their own costs of this appeal.