Judgment:
Dev Darshan Sud, J.
1. The wife has appealed against the judgment and decree of the learned District Judge, Sirmaur District at Nahan, dissolving the marriage of the appellant and respondent No. 1 under Section 13(1)(i) of the Hindu Marriage Act (hereafter referred to as the Act) on the ground that the appellant had adulterous relations with proforma respondent No. 2 Rakesh Kumar alias Shalu, son of Shri Joginder Singh.
2. Shri Bhagat Ram, respondent No. 1/petitioner pleaded that he was married to the appellant on 3.1.1990 at Mandi according to Hindu rites and ceremonies. Four children, namely Kumari Divya, aged 13 years, Kumari Bhanu, aged 11 years, Master Anurag aged 9 years and Kumari Shakshi, aged 6 years were born out of this wedlock. Kumari Divya and Anurag are living with him whereas Kumari Bhanu and Kumari Shakshi are living with his in-laws. He pleaded that after solemnization of marriage, the appellant herein developed illicit sexual relations with respondent No. 2 with whom she was leading an adulterous life openly. On 18.10.2003, he caught her red handed with respondent No. 2 when both of them were in compromising position. He reprimanded them but of no avail and they continued to live in adultery. On 26.2.2004, both the appellant and respondent No. 2 were caught red handed and arrested by the police from a guest house at Nahan. They were challaned under Section 41 (1) and Section 109 of the Code of Criminal Procedure. They were produced before the Sub Divisional Magistrate, Nahan, who admitted them to bail and the case registered against them was still pending. He further pleads that they were found staying in a room of the guest house since 25.2.2004 and were freely indulging in carnal pleasures.
3. The appellant resisted the petition. Admitting that the children were born as pleaded, she levelled imputations adultery / unchastity against her husband (respondent No. 1) pleading that he was entangled with one Seema, resident of Ropar with whom he was indulging in sex openly. Whenever she protested, she was beaten up and thrashed by him and was thrown out of the matrimonial home on 24.2.2004. Criminal case under Section 109 of the Code of Criminal Procedure is said to have been manipulated against her. On the intervening night of 25/26.2.2004, she was waiting for her mother at Renuka Hotel, near Sheel Ghat, Nahan to take her to Mandi to resolve the disputes / differences between her and her husband when she was falsely implicated in the case.
4. The learned trial Court settled four issues, two being crucial to the decision of the case, namely whether the husband is entitled for a decree of divorce on the ground of his wife having adulterous relations with respondent No. 2 Rakesh Kumar, as alleged and whether the petitioner is himself living in adultery with one Seema, resident of Ropar, Punjab, as alleged. As would be evident from the pleadings, the parties are leveling allegations of adultery openly and without any hesitation or remorse against each other.
5. The husband appeared as PW-1 and reiterated the allegations made by him in the petition. He states that from March, 2001 to August, 2003, he was posted at Police Station, Paonta Sahib where he was living with his wife and two children. On 18.10.2003, when he woke up at around 2.30 A.M. to ease himself, he found his wife missing from the bed. He looked for her in the room where his parents were staying and did not find her there. Thereafter he went to the roof of the house where he found her sitting with Rakesh Kumar, respondent No. 2. On seeing him, he ran away from there. There was an altercation between the appellant and his wife, respondent No. 1 who threatened him with dire consequences and stated that in case he intervened in the relationship between her and respondent No. 2, he would be visited with dire consequences. She left the house on 3.11.2003 for Mandi, where she filed a case under Section 125 of the Code of Criminal Procedure claiming maintenance from him. PW-2 Divya is the daughter of the appellant and respondent No. 1. She was aged about 13 at the time when she was put in the witness box. The learned Court has put questions to her to ascertain her capacity to testify as a witness. She gives a graphic account as to how the appellant was having adulterous relations with respondent No. 2. She states that she along with her brother were living with her father at Nahan and her two sisters are living with her maternal grand father and mother at Mandi. She states that when her father respondent No. 1 was posted at Paonta Sahib, she used to reside with her mother at Nahan and her grand parents used to live in another room in the same house. She states that respondent No. 2 used to visit her mother in her room during the night when her father was not there. On 4-5 occasions, she saw her mother sharing a common bed with respondent No. 2. She witnessed this when she went to take water for drinking from the kitchen. Later on when she asked her mother about her conduct, she was threatened that she would be beaten up in case she discloses this fact to anybody. PW-4 Shri Ramphal, ASI, Incharge Police Post, Gunnughat states that on 26.2.2004, he got information that one lady and a boy are staying in Nahan in a guest house under suspicious circumstances. He recorded this in Khangi report Ex.PW-4/A and after asking Gopal Kumar Joshi, Manager of the Guest House, he knocked room No. 5 which was bolted from inside. It was opened by one boy and on entering the room, he found a lady sitting on the bed and was in a perplexed state of mind. She tried to leave the room but was stopped by him. The boy disclosed his name as Rakesh Kumar alias Shalu, son of Shri Joginder Singh, resident of Balmiki Basti, Nahan and the lady as Kamini Devi, wife of Bhagat Ram. On inquiry, he found that they were staying in the hotel since 25.2.2004 where the room had been booked in the name of Rakesh Kumar who had been staying there with the appellant and eating and drinking in the same room. Both of them were arrested by him and challaned under Section 41(1) and 109 of the Code of Criminal Procedure. He proves on record Kalandra Ex.PW-4/B which was filed in the Court of the Sub Divisional Magistrate. Shri Ramandeep Singh, PW-5 has proved on record the entry of the Hotel Register Ex.PW-5/A in the name of Shri Rakesh Kumar, son of Sh. Joginder Singh, who checked into the Hotel on 25.2.02004 with one other person. In the column of the Register 'number of persons' the entry made is '2'.
6. In reply to the petition, the defence of the appellant is that the petition is not maintainable on the ground:
That the petition is not maintainable being malafides and filed with ulterior motive only to bring one Seema R/O Ropar Punjab to keep her as his wife in place of replying respondent by the petitioner.
7. The other detailed averments made are in para 7 of the reply which is in reply to para 8 of the petition are:
7. That para No. 8 of the petition is admitted to the extent that after withdrawing the earlier application Under Section 125 Cr.P.C. replying respondent living with the petitioner at Nahan but in reply it is further submitted that petitioner is a man of loose character having illicit relationship with many women and he behave like a beast with the replying respondent at his house situated at Balmiki Basti Nahan and gave merciless beatings almost every day to replying respondent and her children when they object to illicit acts/ relationships of the petitioner with other women and petitioner want to keep one Seema R/O Ropar (Punjab) as his wife in place of replying respondent, therefore, on 24.2.2004 petitioner gave merciless beatings to the replying respondent and oust her forcibly from their matrimonial home situated at Balmiki Basti Nahan and after that replying respondent went back to her maternal home at Mandi HP and now residing there.
8. She continues and in reply to para 8 submits that the case under Section 109 of the Code of Criminal Procedure has been manipulated by the respondent herein to create false evidence for the purpose of bringing in Seema, resident of Ropar as his wife. She is categoric when she states that he is now residing with Seema whom he treats as his wife. These allegations are repeated at 2/3 places in the petition.
9. The evidence on behalf of the appellant is her own statement, the statement of RW-2 Shri Babu Ram, RW-3 Sh. Ishwar Kalyan, RW-4 Constable Budh Ram and RW-5 Rakesh Kumar, respondent No. 2 who has appeared as his own witness. What is material is the line of defence taken by the appellant herein. There is total denial of any adulterous relations with respondent No. 2 and allegations made with full conviction and surety that respondent No. 1 is having sexual relations outside the marriage with a number of women including Seema. Interestingly, no evidence has been produced by the respondent on record to prove as to who these women are including Seema about whose parentage she expresses ignorance. One another interesting aspect requires to be noticed and that is that the appellant in her evidence levels allegations that the petitioner lives with one other woman named Neelam from whom he has one son. She says that this information was given to her by her husband's friends. She does not know the parentage etc. of Seema. She states that in April, 2004, he has been married to her. This information was given to her by Rakesh, nephew of the petitioner. He is also stated to be serving in the police and has not been produced as a witness.
10. Section 13(1) (i) of the Act provides:
13. Divorce.- Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party-(i) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse....
11. Before adverting to the facts and circumstances which either establish or exonerate the parties of their sexual misconduct, the evidence and allegations in cases where adultery is imputed, the Court has to proceed with caution.
12. In Vijaykumar Ramchandra Bhate v. Neela Vijaykumar Bhate : AIR 2003 SC 2462, the Court holds:
7. The question that requires to be answered first is as to whether the averments, accusations and character assassination of the wife by the appellant husband in the written statement constitutes mental cruelty for sustaining the claim for divorce under Section 13 (1) (i-a) of the Act. The position of law in this regard has come to be well settled and declared that levelling disgusting accusations of unchastity and indecent familiarity with a person outside wedlock and allegations of extra marital relationship is a grave assault on the character, honour, reputation, status as well as the health of the wife. Such aspersions of perfidiousness attributed to the wife, viewed in the context of an educated Indian wife and judged by Indian conditions and standards would amount to worst form of insult and cruelty, sufficient by itself to substantiate cruelty in law, warranting the claim of the wife being allowed. That such allegations made in the written statement or suggested in the course of examination and by way of cross-examination satisfy the requirement of law has also come to be firmly laid down by this Court....
13. In Shivakumar s/o Shivanna, Appellant v. Premavathi W/O Shivakumar : AIR 2004 Karnataka 146, the Court rules:
12. It is well established general principle that if any imputation against the character of any spouse is alleged without any foundation such reckless and baseless allegations of illicit relationship amounts to mental cruelty and will constitute a valid and sufficient justification for the spouse to stay away from the other....
Dealing with Section 13(1)(i) of the Act, as amended in the year 1976, the High Court of Orissa in Sanjukta Padhan v. Laxminarayan Padhan and Anr. : AIR 1991 Orissa 39 holds:
6. ...It is well settled that direct proof of adultery is not imperative and Courts, therefore, have stated that it would be unreasonable to expect direct evidence and such evidence if brought before the Court must be suspect and is apt to be disbelieved. It must, therefore, be accepted as a rule that circumstantial evidence is all that can normally be expected in proof of the charge and the circumstances must be such as lead to it by fair inference as a necessary conclusion. In Mulla's Hindu Law, it has been stated that it is impossible to state those circumstances 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 important bearing upon the particular case. The only general rule upon the subject is that the circumstances must be such as would lead the guarded judgment of a reasonable and just man to the conclusion. The facts usually are not of a complicated nature, but determinable upon common grounds of reason. In Miller v. Ministry of Pensions (1947) 2 All ER 372, it was held:
it need not reach certainty, but must carry a high degree of probability.That is why it is said that the proof required to prove adultery need not necessarily be what is at times said proof beyond a shadow of doubt. At the same time, the Court does not as a general rule infer adultery from evidence of opportunity alone, but would require some more satisfactory proof.
14. On the facts of this case where the wife was seen leaving the house at odd hours, the Court holds:
8. ...In my considered opinion, leaving the house of her husband during evening hours; then proceeding on a motor cycle with a stranger called Rama Sahu; both of them were then found coming from a deserted house during that night and were further seen together at 1 O' clock at night on the canal road; absence of Sanjukta in her father's house when plaintiff's father went in search of her and on the other hand her presence in some other house which was told to be the house of Rama Sahu and her conduct of closing the door on being asked by her father-in-law to come back and finally the fact that she never returned to her husband thereafter - all these are sufficient to prove that defendant No. 1, Sanjukta had sexual intercourse with Rama Sahu and she lived in adultery with Rama Sahu and, therefore, the conclusion of the learned Subordinate Judge on this score cannot be interfered with...
15. The Madhya Pradesh High Court in Shantibai v. Rambilash 1999 (1) H.L.R. 302 holds that the Court has to carefully scrutinize evidence of adultery:
13. While dealing with the matrimonial cases, the Court has to be on guard while examining the evidence on record and passing the decree for divorce dissolving the marriage. No woman can be blamed for adulterous relations, adultery and no child can be called as illegitimate unless there is conclusive evidence in support of such conclusions.
16. That a single act of sexual intercourse outside the marriage is all that is required has been reiterated by the High Court of Punjab and Haryana in Manjit Kaur v. Santokh Singh and Anr. 1997 (1) H.L.R.66. The Court holds:
11. In such matters public interest requires that marriage bonds shall not be set aside lightly or without strict enquiry and proof. The act of adultery in its nature is 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 with lends to an inference of adultery is sufficient. The decree of proof need not reach certainty but it must carry a high degree of probability. Hence it is required that appreciation of evidence in such cases must be careful and proper. Only when the evidence is cogent, consistent and reliable, 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.
12. Circumstantial evidence is normal test in proof of the charge of adultery, but the circumstances must be such as to lead to it by fair inference as a necessary conclusion. Proof of adultery need not be on the touch stone of beyond a shadow of doubt, but at the same time, the Court does not, as a general rule, infer adultery from evidence of opportunity alone but would require some satisfactory proof. If from the circumstances which are proved by the petitioner only this much is proved that there were opportunities for committing adultery, that evidence is nothing, there must be circumstances amounting to proof that opportunities could be used, such as, the association of the parties was so intimate and their mutual passion so clear that adultery might reasonably be assumed as a result of an opportunity for its occurrence.
17. To similar effect is the judgment of the Madhya Pradesh High Court in Rajendra Agrawal v. Smt. Sharda Devi : AIR 1993 Madhya Pradesh 142, holding that solitary instance of voluntary sexual intercourse by the wife with another person is sufficient for grant of divorce on that ground.
18. Having considered the law on the point, what is required is to determine as to whether on the evidence on record the acts committed by the respondent constitute adultery or they merely arouse suspicion in the mind of the husband or are circumstances created by him to get rid of the appellant.
19. The crucial evidence in this case is that of the daughter of the parties to this petition, PW-2 Kumari Divya, who was clear in her statement that she has seen her mother with respondent No. 2 sharing a common bed in the middle of the night when she had gone to get water for drinking from the kitchen. She also states that she was threatened by her mother in case she disclosed these facts to anybody. What other evidence could be required? When the child herself takes exception to the relationship of her mother with another person and witnesses her with a stranger on a number of occasions at odd hours in the night sharing a common bed, the implications are all too clear. There is also no plausible explanation forthcoming as to why the appellant was staying with respondent No. 2 in the hotel from where both of them were arrested. Ex.PW-5/A is clear that they had been residing there for more than two days. The evidence of both the respondent RW-1 and respondent No. 2 as RW-5 is not at all satisfactory as the explanation offered by them has neither been pleaded and what they said in the witness box is at variance with the pleadings cannot be accepted as the gospel truth. Time and again the appellant and respondent No. 2 have been confronted in the witness box with their pleadings and what they state in evidence. There is no explanation coming forth with respect to the contradictions which are material. It must also be considered that the appellant has been leveling wild allegations of extra marital sex by respondent No. 1 with a number of women. Two are named by her in her evidence as Neelam and Seema. From one she says, he already has children and the second she says has been married to him. These allegations when tested in the light of the judgment of the Supreme Court in Vijaykumar Ramchandra Bhate's case (supra) constitute unfounded allegations made against respondent No. 1 without in any manner being supported by evidence.
20. In the totality of the circumstances, that is, (a) the husband - respondent No. 1 having caught the appellant and respondent No. 2 in a compromising position on two occasions; (b) daughter of the appellant and respondent No. 1 Kumari Divya having witnessed her mother and respondent No. 2 sharing a common bed at night on four or five occasions and then being threatened with dire consequences in case she disclosed these facts to anybody and (c) the appellant and respondent No. 2 being caught by the police from a guest house where they were staying for 2/3 days, all point only to one conclusion and that is that the appellant was living in adultery with respondent No. 2. When coupled with other facts in pleadings and evidence, that is, persistent allegations of immoral and illicit sexual relations made against respondent No. 1 by the appellant to the extent that he is a person of lascivious character which allegations have not been established on record also show that these allegations have been made solely for the purpose of justifying the conduct of the appellant.
21. Learned Counsel for the appellant has urged that respondent No. 1 cannot take advantage of his own wrongs when he indulges in sexual intercourse outside the marriage with a number of women including one Neelam and Seema and no relief can be granted to him under Section 23 of the Act. This submission requires to be rejected. As held by me, these allegations are unfounded and unsubstantiated.
22. Adultery as defined under Section 13 of the Act does not require evidence where it has to be established that the persons living in adultery have been caught in flagrante delicto or eye witnesses who have actually witnessed the couple in the act of sexual intercourse. This would be asking for a near impossibility. Of course, that is not to say that such evidence may be there in rare and exceptional cases.
23. On the totality of the facts and circumstances of the case, I hold that the learned Court below has rightly held that the appellant is guilty of adultery within the meaning of Section 13(1) (i) of the Act which postulates that even if a spouse has a voluntary sexual intercourse with another person after solemnization of marriage, a decree for divorce would follow. This appeal is accordingly dismissed. There shall be no order as to costs. All interim orders are vacated. All miscellaneous applications disposed of.