Semantic Analysis by spaCy
Sanjukta Padhan Vs. Laxminarayan Padhan and anr.
Decided On : Jun-29-1990
Court : Orissa
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Patnaik', (int) 1 => 'Doleswari', (int) 2 => 'Rama Sahu', (int) 3 => 'Rama Sahu', (int) 4 => 'Nos', (int) 5 => 'Hindu Law', (int) 6 => 'Pati', (int) 7 => 'Rath', (int) 8 => 'Preston Jones', (int) 9 => 'Preston Jones', (int) 10 => 'Rama Sahu', (int) 11 => 'Bari', (int) 12 => 'Rama Sahu', (int) 13 => 'Rama Sahu', (int) 14 => 'Rams Sahu', (int) 15 => 'Sanjukta', (int) 16 => 'Sanjukta', (int) 17 => 'Sanjukta', (int) 18 => 'Sanjukta', (int) 19 => 'Sanjukta', (int) 20 => 'Sanjukta', (int) 21 => 'Rama Sahu', (int) 22 => 'Sanjukta', (int) 23 => 'Rama Sahu', (int) 24 => 'Rama Sahu', (int) 25 => 'Sanjukta', (int) 26 => 'Sanjukta', (int) 27 => 'Rama Sahu', (int) 28 => 'Sanjukta', (int) 29 => 'Sanjukta', (int) 30 => 'Sanjukta', (int) 31 => 'Sanjukta', (int) 32 => 'Sanjukta', (int) 33 => 'Sanjukta', (int) 34 => 'Rama Sahu', (int) 35 => 'Sanjukta', (int) 36 => 'Sanjukta', (int) 37 => 'Rama Sahu', (int) 38 => 'Rama Sahu', (int) 39 => 'Sanjukta', (int) 40 => 'Rama Sahu', (int) 41 => 'Sanjukta', (int) 42 => 'Rama Sahu', (int) 43 => 'Rama Sahu', (int) 44 => 'Pati', (int) 45 => 'Nos', (int) 46 => 'Pati', (int) 47 => 'Nos' ), 'NORP' => array( (int) 0 => 'J.1', (int) 1 => 'Paidamal', (int) 2 => 'Paidamal' ), 'CARDINAL' => array( (int) 0 => '1', (int) 1 => '1', (int) 2 => '20-11-1970', (int) 3 => 'one', (int) 4 => '1', (int) 5 => '1', (int) 6 => '1', (int) 7 => '1', (int) 8 => '1', (int) 9 => '1', (int) 10 => '1', (int) 11 => '1', (int) 12 => '1', (int) 13 => '1', (int) 14 => '1', (int) 15 => '2', (int) 16 => '1', (int) 17 => '9', (int) 18 => '1', (int) 19 => '2', (int) 20 => '1', (int) 21 => '2', (int) 22 => '2', (int) 23 => '1', (int) 24 => '1', (int) 25 => '2.', (int) 26 => '1', (int) 27 => '1', (int) 28 => '1', (int) 29 => '5', (int) 30 => '6', (int) 31 => '1', (int) 32 => '1', (int) 33 => '4', (int) 34 => '1', (int) 35 => '22-11-1970', (int) 36 => '1', (int) 37 => '1', (int) 38 => '2', (int) 39 => '393', (int) 40 => '1', (int) 41 => '2', (int) 42 => '2', (int) 43 => '1', (int) 44 => '2', (int) 45 => '2', (int) 46 => '1.8', (int) 47 => '2', (int) 48 => '1', (int) 49 => '3', (int) 50 => '2', (int) 51 => '1', (int) 52 => '1', (int) 53 => '10', (int) 54 => '1', (int) 55 => '1', (int) 56 => '1', (int) 57 => '1', (int) 58 => '5', (int) 59 => '1', (int) 60 => '5', (int) 61 => '6.10' ), 'DATE' => array( (int) 0 => '1956', (int) 1 => 'December, 1970', (int) 2 => '1977', (int) 3 => '1976', (int) 4 => '1947', (int) 5 => '1951', (int) 6 => 'Sunday', (int) 7 => 'the month', (int) 8 => '1970', (int) 9 => 'Sunday', (int) 10 => 'the month', (int) 11 => 'that quarters', (int) 12 => 'Sunday', (int) 13 => '1970' ), 'GPE' => array( (int) 0 => 'syphilis', (int) 1 => 'Barbandha', (int) 2 => 'Turunga', (int) 3 => 'Margasira' ), 'ORG' => array( (int) 0 => 'Themra', (int) 1 => 'First Appeal', (int) 2 => 'Court', (int) 3 => 'Mulla', (int) 4 => 'State', (int) 5 => 'Miller v. Ministry of Pensions', (int) 6 => 'Court', (int) 7 => 'the House of Lords', (int) 8 => 'AC 391', (int) 9 => 'P.W. 3', (int) 10 => 'P.W. 2', (int) 11 => 'P.W. 3', (int) 12 => 'Margasir', (int) 13 => 'Choukidar of Canal Colony', (int) 14 => 'Canal Department', (int) 15 => 'Rama', (int) 16 => 'Rama', (int) 17 => 'Themra' ), 'ORDINAL' => array( (int) 0 => 'second', (int) 1 => 'second', (int) 2 => 'second', (int) 3 => 'second' ), 'TIME' => array( (int) 0 => 'evening', (int) 1 => 'night', (int) 2 => 'night', (int) 3 => 'the next morning', (int) 4 => 'that hour', (int) 5 => 'a night', (int) 6 => '1.00 a.m.', (int) 7 => 'evening hours', (int) 8 => 'that night', (int) 9 => 'night' ), 'PRODUCT' => array( (int) 0 => 'P.W. 1', (int) 1 => 'P.W. 2', (int) 2 => 'P.W. 1', (int) 3 => 'P.W. 2', (int) 4 => 'P.W. 5' ), 'WORK_OF_ART' => array( (int) 0 => 'Subordinate', (int) 1 => 'Subordinate' ) ), 'desc' => array( 'Judgement' => array( 'id' => '524824', 'acts' => '<a href="/act/50935/hindu-marriage-act-1955-complete-act">Hindu Marriage Act, 1955</a> - Sections 13(1); Hindu Marriage (Amendment) Act, 1976', 'appealno' => 'First Appeal No. 380 of 1977', 'appellant' => 'Sanjukta Padhan', 'authreffered' => '', 'casename' => 'Sanjukta Padhan Vs. Laxminarayan Padhan and anr.', 'casenote' => ' - MOTOR VEHICLES ACT, 1988 [C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law]. - 1 held them to be wholly unreliable and found that defendant No. 1 could not prove by reliable and trustworthy evidence that the plaintiff had married for the second time and was living with a second wife. 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. 2 who saw both of them leaving the village as well as from P. 5 and 6 as well as the relevant evidence in that regard.', 'caseanalysis' => null, 'casesref' => 'Preston Jones v. Preston Jones;', 'citingcases' => '', 'counselplain' => 'P.K. Misra and ;N.C. Pati, Advs.', 'counseldef' => 'G. Rath and ;B. Naik, Advs.', 'court' => 'Orissa', 'court_type' => 'HC', 'decidedon' => '1990-06-29', 'deposition' => 'Appeal dismissed', 'favorof' => null, 'findings' => null, 'judge' => 'G.B. Patnaik, J.', 'judgement' => '<p style="text-align: justify;">G.B. Patnaik, J.</p><p style="text-align: justify;">1. Defendant No. 1 in a suit for divorce is the appellant. Plaintiff filed the suit alleging that he had married defendant No. 1 in 1956 and they continued to live as husband and wife till 20-11-1970. They had one female issue named Doleswari. Defendant No. 1 was suffering from the disease of syphilis which was in a communicable form and while the plaintiff was absent, defendant No. 1 deserting him eloped away with one Rama Sahu and had sexual intercourse with him and since then said defendant No. 1 is living in adultery with said Rama Sahu and has not returned to the plaintiffs house nor the plaintiff has cohabited with her at any point of time thereafter. On these averments it was pleaded that the marriage be dissolved or alternatively a judicial separation be granted.</p><p style="text-align: justify;">2. Defendant No. 1 denied the allegations made in the plaint. According to her case, as defendant No. 1 did not beget a male child, the plaintiff wanted to marry another girl, but defendant No. 1 did not agree to the same and on that account the plaintiff treated defendant No. 1 with cruelty and neglected her and at last forcibly left her in the house of her parents in mauza Themra. On the request of the plaintiff, defendant No. I had attended the funeral ceremony of her grandmother-in-law and was with the plaintiff till December, 1970, and during that period, the plaintiff again wanted the consent of defendant No. 1 for marrying for the second time, but defendant No. 1 did not agree to the same. Therefore, the plaintiff tortured her and criminally assaulted her and as it became intolerable defendant No. 1 had no other alternative than to leave her husband and remain in her father's house. On these averments, defendant No. 1 prayed for dismissal of the suit.</p><p style="text-align: justify;">3. Defendant No. 2 with whom it was alleged by the plaintiff that defendant No. 1 was living in adultery also filed a separate written statement denying the allegations made in the plaint.</p><p style="text-align: justify;">4. On the pleadings of the parties, 9 issues were framed and the learned trial Judge came to hold that before the marriage of defendant No. 1 with the plaintiff she had illicit relationship with defendant No. 2 and while defendant No. 1 was in her father's village she had contact with defendant No. 2. It was also held that the suppressed lascivious passion became insatiable and both the defendants made secret contacts and in that fateful evening defendant No. 2 came to Paidamal where defendant No. 1 came according to preplan and both of them went away in that night via canal colony by the motor cycle avoiding detection of their departure by the plaintiff. The learned trial Judge further held that the circumstantial evidence on record proved that defendant No. 1 was living a life of adultery with defendant No. 2. So far as the question of defendant No. 1 suffering from venereal disease, the plaintiff did not press that matter and accordingly no finding was recorded. Discarding the evidence adduced on behalf of defendant No. 1 and in view of the contradictions between her pleadings and evidence, the learned trial Judge did not believe the story of defendant No. 1 that she was tortured by the plaintiff and was forced to leave her matrimonial home and stay with her father. On the question whether plaintiff had married for the second time or not, the learned trial Judge on a thorough scrutiny of the evidence of witnesses Nos. 5 and 6 for defendant No. 1 held them to be wholly unreliable and found that defendant No. 1 could not prove by reliable and trustworthy evidence that the plaintiff had married for the second time and was living with a second wife. On issue No. 4, the learned trial Judge came to hold that it was defendant No. 1 who left the house of the plaintiff with clear intention of bringing an end to her matrimonial relationship with him since 22-11-1970 and the desertion was continuing since then. On these findings, the marriage between the plaintiff and defendant No. 1 was declared dissolved and a decree for divorce was granted.</p><p style="text-align: justify;">5. Defendant No. 1 has filed the present,appeal against the judgment and decree of thelearned trial Judge.</p><p style="text-align: justify;">Defendant No. 2 had also preferred an appeal being First Appeal No. 393 of 1977, but when the case was taken up for hearing the learned counsel appearing for the appellant stated that he had no instruction in the matter and prayed that his appearance be ignored which was allowed and since there was none to press the appeal, the appeal was dismissed for default.</p><p style="text-align: justify;">6. It would be appropriate to notice at this stage that the application for dissolution of marriage was filed before the amendment by Marriage Laws (Amendment) Act, 1976 had come into force. But by the time the suit was heard and disposed of, the amended provisions had come into force. Before amendment, one of the conditions for dissolution of marriage was that the 'spouse was living in adultery', but by the amendment in question a marriage could be dissolved by a decree of divorce on.the ground that the other party has after the solemnization of the marriage had voluntary sexual intercourse with any person other than his or her spouse. The sole question for consideration, therefore, is whether on the materials produced in this case, it can be said that the plaintiff has been able to establish that defendant No. 1 had voluntary sexual intercourse with defendant No. 2, as alleged. A comparison of both the provisions, namely the provision 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. 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:--</p><p style="text-align: justify;">'It need not reach certainty, but must carry a high degree of probability.'</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">7. Mr. Pati, the learned counsel for the appellant, strongly contends that on the evidence led by the plaintiff it is not possible for any reasonable man to come to a conclusion that defendant No. 1 had any sexual intercourse with anybody else than her spouse and the conclusion of the learned trial Judge on this score cannot be sustained in law. Accordingly he submits that the decree in question is liable to be reversed, Mr. Rath, appearing for the respondent, on the other hand, contends that on the evidence led by the plaintiff, it must be held that the plaintiff was able to establish beyond reasonable doubt that defendant No. I had sexual intercourse with defendant No. 2 and the facts proved are quantitatively and qualitatively sufficient to satisfy the tests laid down by the House of Lords in Preston Jones v. Preston Jones, 1951 AC 391. In view of the rival submissions, the question that arises for my consideration is whether on the evidence led, it can be said that the plaintiff has been able to establish the fact that defendant No. I had sexual intercourse with defendant No. 2, as alleged, after the marriage between plaintiff and defendant No. 1.</p><p style="text-align: justify;">8. P.W. 1 is the plaintiff himself. He has stated in his evidence that his wife left his house on a Sunday in the month of Margasir of 1970 and when he reached home at night, he found her absent. On being told by her mother that his wife had gone to the bundh, he called some villagers and searched for her at different places but could not get any trace of her. On the next morning, P.W. 2 of village Paidamal told him that he had seen his wife going away with Rama Sahu of village Bari-bandha. He went to Barbandha and came to know from P.W. 3 that his wife had been eloped away by Rama Sahu on his motor cycyle and since then his wife has not returned back to his house. He states in his evidence that though his wife had not returned back to him, but he was prepared to accept her and keep her with him if she was willing to come. Therefore, his knowledge about his wife going away with Rama Sahu is derived from P.W. 2 who saw both of them leaving the village as well as from P.W. 3 who also saw both of them going on the motor cycle on the relevant date. P.W, 2 corroborates the evidence of P.W. 1. According to him while Rams Sahu was talking with him, Sanjukta (defendant No. 1) came and reached there and both of them went away and this was on a Sunday in the month of Margasir towards dusk time. He also states that he has never seen Sanjukta in the house of the plaintiff. P.W. 3 states in his evidence that while he was coming home after thrashing paddy, it was 2 to 3 Ghadi of night and on the national highway he found Sanjukta coming out of the quarters of Choukidar of Canal Colony with a man who was coming from that quarters pushing a motor cycle up to the road. Then the said gentleman and Sanjukta went away on the canal road towards Turunga. The gentleman was bald headed who took away Sanjukta by the motor cycle and later on he came to know from plaintiff that Sanjukta had been taken away by that gentleman who was Rama Sahu. Seeing Sanjukta and Rama Sahu coming from that deserted Choukidwar quarters at that hour of the night and thereafter the fact that both of them left on a motor cycle, goes a long way to prove the plaintiff's case. P.W. 4 was serving in Canal Department and he saw on a night of Sunday in Margasira of 1970, Rama Sahu coming to the canal road at 1.00 a.m. in the night and with him he had a lady. Rama had a motor cycle and when the gate was opened they passed through the same. From his evidence it also transpires that the Choukidar quarters from which defendant No. 1 and Rama were seen coming together by P.W. 2 was not occupied and it was an open house without having any enclosure. P.W. 5 is the father of the plaintiff. His evidence discloses that when he came to know about his daughter-in-law leaving the house of his son, he went to the father of Sanjukta and told him about Sanjukta coming away with Rama Sahu. He could not find Sanjukta in her father's house and on being asked her father told him that she had gone somewhere, but her father further stated that Sanjukta would never return to her husband and he should, therefore, return. Thereafter he again went to Themra and met the father of Sanjukta and enquired about her from him, but he was told that it could not be said where Sanjukta had gone. While coming from the village a young man enquired from him as to whether he was searching for Sanjukta and on replying he was told that Sanjukta was in the new house constructed by Rama Sahu and pointed out the house to him. He then went to that house and knocked the door and Sanjukta came and opened the door. When she found her father-in-law, she again closed the door. A motor cycle had been parked in front of that house and when the door was never opened even though knocked, he returned from the house. This evidence of the father of the plaintiff also establishes the fact that Sanjukta (defendant No. I) was not staying with her father, but in some other house alleged to have been built by Rama Sahu. Though these witnesses have been cross-examined at great length but nothing has been elicited to impeach their version. On the aforesaid evidence the question that falls for my consideration is whether it can be reasonably said that the plaintiff has been able to establish that defendant No. 1 had sexual intercourse with somebody else other than her own spouse namely the plaintiff, so that a decree for divorce could be granted. 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 10 clock at night on the canal road; absence of Sanjukta in her father's house when plaintiffs 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. The contention of the learned counsel for the appellant must accordingly be rejected.</p><p style="text-align: justify;">9. Mr. Pati then urges that while coming to the conclusion that defendant No. 1 deserted the plaintiff on her own will and there was no torture to her as alleged by defendant No. 1, the learned trial Judge has not discussed the evidence in detail. But in view of my conclusion on the question already posed, even if it is held that the plaintiff had committed some act of torture on defendant No. 1, yet the plaintiffs prayer for dissolution of marriage and decree for divorce cannot be refused. However, since a contention had been raised by the learned counsel for the appellant, I have also examined the conclusion of the learned trial Judge on issues Nos. 5 and 6 as well as the relevant evidence in that regard. I am unable to take a different conclusion than what has been already found by the learned trial Judge on this score. No doubt, the learned trial Judge has become rather verbose and has unnecessarily stated many things which are not necessary, but the ultimate conclusion is fully supported by the evidence on record and it is difficult for me to accept the submission of Mr. Pati that defendant No. 1 had been able to establish that cruel treatment was meted out to her by the plaintiff for which she was forced to leave her matrimonial house.- 1 would, therefore, affirm the conclusion of the learned trial Judge on issues Nos. 5 and 6.</p><p style="text-align: justify;">10. No other contention having been raised and in view of my conclusion earlier on the question of adultery, the judgment and decree of the learned Subordinate Judge cannot be interfered with. Accordingly, this appeal fails and is dismissed, but in the circumstances, there would be no order as to costs.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => 'AIR1991Ori39; II(1991)DMC579', 'ratiodecidendi' => '', 'respondent' => 'Laxminarayan Padhan and anr.', 'sub' => 'Family', 'link' => null, 'circuit' => null ) ), 'args' => array( (int) 0 => '524824' ) ) $title_for_layout = 'Sanjukta Padhan Vs. Laxminarayan Padhan and anr. Semantic Analysis' $shops = array( 'PERSON' => array( (int) 0 => 'G.B. Patnaik', (int) 1 => 'Doleswari', (int) 2 => 'Rama Sahu', (int) 3 => 'Rama Sahu', (int) 4 => 'Nos', (int) 5 => 'Hindu Law', (int) 6 => 'Pati', (int) 7 => 'Rath', (int) 8 => 'Preston Jones', (int) 9 => 'Preston Jones', (int) 10 => 'Rama Sahu', (int) 11 => 'Bari', (int) 12 => 'Rama Sahu', (int) 13 => 'Rama Sahu', (int) 14 => 'Rams Sahu', (int) 15 => 'Sanjukta', (int) 16 => 'Sanjukta', (int) 17 => 'Sanjukta', (int) 18 => 'Sanjukta', (int) 19 => 'Sanjukta', (int) 20 => 'Sanjukta', (int) 21 => 'Rama Sahu', (int) 22 => 'Sanjukta', (int) 23 => 'Rama Sahu', (int) 24 => 'Rama Sahu', (int) 25 => 'Sanjukta', (int) 26 => 'Sanjukta', (int) 27 => 'Rama Sahu', (int) 28 => 'Sanjukta', (int) 29 => 'Sanjukta', (int) 30 => 'Sanjukta', (int) 31 => 'Sanjukta', (int) 32 => 'Sanjukta', (int) 33 => 'Sanjukta', (int) 34 => 'Rama Sahu', (int) 35 => 'Sanjukta', (int) 36 => 'Sanjukta', (int) 37 => 'Rama Sahu', (int) 38 => 'Rama Sahu', (int) 39 => 'Sanjukta', (int) 40 => 'Rama Sahu', (int) 41 => 'Sanjukta', (int) 42 => 'Rama Sahu', (int) 43 => 'Rama Sahu', (int) 44 => 'Pati', (int) 45 => 'Nos', (int) 46 => 'Pati', (int) 47 => 'Nos' ), 'NORP' => array( (int) 0 => 'J.1', (int) 1 => 'Paidamal', (int) 2 => 'Paidamal' ), 'CARDINAL' => array( (int) 0 => '1', (int) 1 => '1', (int) 2 => '20-11-1970', (int) 3 => 'one', (int) 4 => '1', (int) 5 => '1', (int) 6 => '1', (int) 7 => '1', (int) 8 => '1', (int) 9 => '1', (int) 10 => '1', (int) 11 => '1', (int) 12 => '1', (int) 13 => '1', (int) 14 => '1', (int) 15 => '2', (int) 16 => '1', (int) 17 => '9', (int) 18 => '1', (int) 19 => '2', (int) 20 => '1', (int) 21 => '2', (int) 22 => '2', (int) 23 => '1', (int) 24 => '1', (int) 25 => '2.', (int) 26 => '1', (int) 27 => '1', (int) 28 => '1', (int) 29 => '5', (int) 30 => '6', (int) 31 => '1', (int) 32 => '1', (int) 33 => '4', (int) 34 => '1', (int) 35 => '22-11-1970', (int) 36 => '1', (int) 37 => '1', (int) 38 => '2', (int) 39 => '393', (int) 40 => '1', (int) 41 => '2', (int) 42 => '2', (int) 43 => '1', (int) 44 => '2', (int) 45 => '2', (int) 46 => '1.8', (int) 47 => '2', (int) 48 => '1', (int) 49 => '3', (int) 50 => '2', (int) 51 => '1', (int) 52 => '1', (int) 53 => '10', (int) 54 => '1', (int) 55 => '1', (int) 56 => '1', (int) 57 => '1', (int) 58 => '5', (int) 59 => '1', (int) 60 => '5', (int) 61 => '6.10' ), 'DATE' => array( (int) 0 => '1956', (int) 1 => 'December, 1970', (int) 2 => '1977', (int) 3 => '1976', (int) 4 => '1947', (int) 5 => '1951', (int) 6 => 'Sunday', (int) 7 => 'the month', (int) 8 => '1970', (int) 9 => 'Sunday', (int) 10 => 'the month', (int) 11 => 'that quarters', (int) 12 => 'Sunday', (int) 13 => '1970' ), 'GPE' => array( (int) 0 => 'syphilis', (int) 1 => 'Barbandha', (int) 2 => 'Turunga', (int) 3 => 'Margasira' ), 'ORG' => array( (int) 0 => 'Themra', (int) 1 => 'First Appeal', (int) 2 => 'Court', (int) 3 => 'Mulla', (int) 4 => 'State', (int) 5 => 'Miller v. Ministry of Pensions', (int) 6 => 'Court', (int) 7 => 'the House of Lords', (int) 8 => 'AC 391', (int) 9 => 'P.W. 3', (int) 10 => 'P.W. 2', (int) 11 => 'P.W. 3', (int) 12 => 'Margasir', (int) 13 => 'Choukidar of Canal Colony', (int) 14 => 'Canal Department', (int) 15 => 'Rama', (int) 16 => 'Rama', (int) 17 => 'Themra' ), 'ORDINAL' => array( (int) 0 => 'second', (int) 1 => 'second', (int) 2 => 'second', (int) 3 => 'second' ), 'TIME' => array( (int) 0 => 'evening', (int) 1 => 'night', (int) 2 => 'night', (int) 3 => 'the next morning', (int) 4 => 'that hour', (int) 5 => 'a night', (int) 6 => '1.00 a.m.', (int) 7 => 'evening hours', (int) 8 => 'that night', (int) 9 => 'night' ), 'PRODUCT' => array( (int) 0 => 'P.W. 1', (int) 1 => 'P.W. 2', (int) 2 => 'P.W. 1', (int) 3 => 'P.W. 2', (int) 4 => 'P.W. 5' ), 'WORK_OF_ART' => array( (int) 0 => 'Subordinate', (int) 1 => 'Subordinate' ) ) $desc = array( 'Judgement' => array( 'id' => '524824', 'acts' => '<a href="/act/50935/hindu-marriage-act-1955-complete-act">Hindu Marriage Act, 1955</a> - Sections 13(1); Hindu Marriage (Amendment) Act, 1976', 'appealno' => 'First Appeal No. 380 of 1977', 'appellant' => 'Sanjukta Padhan', 'authreffered' => '', 'casename' => 'Sanjukta Padhan Vs. Laxminarayan Padhan and anr.', 'casenote' => ' - MOTOR VEHICLES ACT, 1988 [C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law]. - 1 held them to be wholly unreliable and found that defendant No. 1 could not prove by reliable and trustworthy evidence that the plaintiff had married for the second time and was living with a second wife. 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. 2 who saw both of them leaving the village as well as from P. 5 and 6 as well as the relevant evidence in that regard.', 'caseanalysis' => null, 'casesref' => 'Preston Jones v. Preston Jones;', 'citingcases' => '', 'counselplain' => 'P.K. Misra and ;N.C. Pati, Advs.', 'counseldef' => 'G. Rath and ;B. Naik, Advs.', 'court' => 'Orissa', 'court_type' => 'HC', 'decidedon' => '1990-06-29', 'deposition' => 'Appeal dismissed', 'favorof' => null, 'findings' => null, 'judge' => 'G.B. Patnaik, J.', 'judgement' => '<p style="text-align: justify;">G.B. Patnaik, J.</p><p style="text-align: justify;">1. Defendant No. 1 in a suit for divorce is the appellant. Plaintiff filed the suit alleging that he had married defendant No. 1 in 1956 and they continued to live as husband and wife till 20-11-1970. They had one female issue named Doleswari. Defendant No. 1 was suffering from the disease of syphilis which was in a communicable form and while the plaintiff was absent, defendant No. 1 deserting him eloped away with one Rama Sahu and had sexual intercourse with him and since then said defendant No. 1 is living in adultery with said Rama Sahu and has not returned to the plaintiffs house nor the plaintiff has cohabited with her at any point of time thereafter. On these averments it was pleaded that the marriage be dissolved or alternatively a judicial separation be granted.</p><p style="text-align: justify;">2. Defendant No. 1 denied the allegations made in the plaint. According to her case, as defendant No. 1 did not beget a male child, the plaintiff wanted to marry another girl, but defendant No. 1 did not agree to the same and on that account the plaintiff treated defendant No. 1 with cruelty and neglected her and at last forcibly left her in the house of her parents in mauza Themra. On the request of the plaintiff, defendant No. I had attended the funeral ceremony of her grandmother-in-law and was with the plaintiff till December, 1970, and during that period, the plaintiff again wanted the consent of defendant No. 1 for marrying for the second time, but defendant No. 1 did not agree to the same. Therefore, the plaintiff tortured her and criminally assaulted her and as it became intolerable defendant No. 1 had no other alternative than to leave her husband and remain in her father's house. On these averments, defendant No. 1 prayed for dismissal of the suit.</p><p style="text-align: justify;">3. Defendant No. 2 with whom it was alleged by the plaintiff that defendant No. 1 was living in adultery also filed a separate written statement denying the allegations made in the plaint.</p><p style="text-align: justify;">4. On the pleadings of the parties, 9 issues were framed and the learned trial Judge came to hold that before the marriage of defendant No. 1 with the plaintiff she had illicit relationship with defendant No. 2 and while defendant No. 1 was in her father's village she had contact with defendant No. 2. It was also held that the suppressed lascivious passion became insatiable and both the defendants made secret contacts and in that fateful evening defendant No. 2 came to Paidamal where defendant No. 1 came according to preplan and both of them went away in that night via canal colony by the motor cycle avoiding detection of their departure by the plaintiff. The learned trial Judge further held that the circumstantial evidence on record proved that defendant No. 1 was living a life of adultery with defendant No. 2. So far as the question of defendant No. 1 suffering from venereal disease, the plaintiff did not press that matter and accordingly no finding was recorded. Discarding the evidence adduced on behalf of defendant No. 1 and in view of the contradictions between her pleadings and evidence, the learned trial Judge did not believe the story of defendant No. 1 that she was tortured by the plaintiff and was forced to leave her matrimonial home and stay with her father. On the question whether plaintiff had married for the second time or not, the learned trial Judge on a thorough scrutiny of the evidence of witnesses Nos. 5 and 6 for defendant No. 1 held them to be wholly unreliable and found that defendant No. 1 could not prove by reliable and trustworthy evidence that the plaintiff had married for the second time and was living with a second wife. On issue No. 4, the learned trial Judge came to hold that it was defendant No. 1 who left the house of the plaintiff with clear intention of bringing an end to her matrimonial relationship with him since 22-11-1970 and the desertion was continuing since then. On these findings, the marriage between the plaintiff and defendant No. 1 was declared dissolved and a decree for divorce was granted.</p><p style="text-align: justify;">5. Defendant No. 1 has filed the present,appeal against the judgment and decree of thelearned trial Judge.</p><p style="text-align: justify;">Defendant No. 2 had also preferred an appeal being First Appeal No. 393 of 1977, but when the case was taken up for hearing the learned counsel appearing for the appellant stated that he had no instruction in the matter and prayed that his appearance be ignored which was allowed and since there was none to press the appeal, the appeal was dismissed for default.</p><p style="text-align: justify;">6. It would be appropriate to notice at this stage that the application for dissolution of marriage was filed before the amendment by Marriage Laws (Amendment) Act, 1976 had come into force. But by the time the suit was heard and disposed of, the amended provisions had come into force. Before amendment, one of the conditions for dissolution of marriage was that the 'spouse was living in adultery', but by the amendment in question a marriage could be dissolved by a decree of divorce on.the ground that the other party has after the solemnization of the marriage had voluntary sexual intercourse with any person other than his or her spouse. The sole question for consideration, therefore, is whether on the materials produced in this case, it can be said that the plaintiff has been able to establish that defendant No. 1 had voluntary sexual intercourse with defendant No. 2, as alleged. A comparison of both the provisions, namely the provision 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. 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:--</p><p style="text-align: justify;">'It need not reach certainty, but must carry a high degree of probability.'</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">7. Mr. Pati, the learned counsel for the appellant, strongly contends that on the evidence led by the plaintiff it is not possible for any reasonable man to come to a conclusion that defendant No. 1 had any sexual intercourse with anybody else than her spouse and the conclusion of the learned trial Judge on this score cannot be sustained in law. Accordingly he submits that the decree in question is liable to be reversed, Mr. Rath, appearing for the respondent, on the other hand, contends that on the evidence led by the plaintiff, it must be held that the plaintiff was able to establish beyond reasonable doubt that defendant No. I had sexual intercourse with defendant No. 2 and the facts proved are quantitatively and qualitatively sufficient to satisfy the tests laid down by the House of Lords in Preston Jones v. Preston Jones, 1951 AC 391. In view of the rival submissions, the question that arises for my consideration is whether on the evidence led, it can be said that the plaintiff has been able to establish the fact that defendant No. I had sexual intercourse with defendant No. 2, as alleged, after the marriage between plaintiff and defendant No. 1.</p><p style="text-align: justify;">8. P.W. 1 is the plaintiff himself. He has stated in his evidence that his wife left his house on a Sunday in the month of Margasir of 1970 and when he reached home at night, he found her absent. On being told by her mother that his wife had gone to the bundh, he called some villagers and searched for her at different places but could not get any trace of her. On the next morning, P.W. 2 of village Paidamal told him that he had seen his wife going away with Rama Sahu of village Bari-bandha. He went to Barbandha and came to know from P.W. 3 that his wife had been eloped away by Rama Sahu on his motor cycyle and since then his wife has not returned back to his house. He states in his evidence that though his wife had not returned back to him, but he was prepared to accept her and keep her with him if she was willing to come. Therefore, his knowledge about his wife going away with Rama Sahu is derived from P.W. 2 who saw both of them leaving the village as well as from P.W. 3 who also saw both of them going on the motor cycle on the relevant date. P.W, 2 corroborates the evidence of P.W. 1. According to him while Rams Sahu was talking with him, Sanjukta (defendant No. 1) came and reached there and both of them went away and this was on a Sunday in the month of Margasir towards dusk time. He also states that he has never seen Sanjukta in the house of the plaintiff. P.W. 3 states in his evidence that while he was coming home after thrashing paddy, it was 2 to 3 Ghadi of night and on the national highway he found Sanjukta coming out of the quarters of Choukidar of Canal Colony with a man who was coming from that quarters pushing a motor cycle up to the road. Then the said gentleman and Sanjukta went away on the canal road towards Turunga. The gentleman was bald headed who took away Sanjukta by the motor cycle and later on he came to know from plaintiff that Sanjukta had been taken away by that gentleman who was Rama Sahu. Seeing Sanjukta and Rama Sahu coming from that deserted Choukidwar quarters at that hour of the night and thereafter the fact that both of them left on a motor cycle, goes a long way to prove the plaintiff's case. P.W. 4 was serving in Canal Department and he saw on a night of Sunday in Margasira of 1970, Rama Sahu coming to the canal road at 1.00 a.m. in the night and with him he had a lady. Rama had a motor cycle and when the gate was opened they passed through the same. From his evidence it also transpires that the Choukidar quarters from which defendant No. 1 and Rama were seen coming together by P.W. 2 was not occupied and it was an open house without having any enclosure. P.W. 5 is the father of the plaintiff. His evidence discloses that when he came to know about his daughter-in-law leaving the house of his son, he went to the father of Sanjukta and told him about Sanjukta coming away with Rama Sahu. He could not find Sanjukta in her father's house and on being asked her father told him that she had gone somewhere, but her father further stated that Sanjukta would never return to her husband and he should, therefore, return. Thereafter he again went to Themra and met the father of Sanjukta and enquired about her from him, but he was told that it could not be said where Sanjukta had gone. While coming from the village a young man enquired from him as to whether he was searching for Sanjukta and on replying he was told that Sanjukta was in the new house constructed by Rama Sahu and pointed out the house to him. He then went to that house and knocked the door and Sanjukta came and opened the door. When she found her father-in-law, she again closed the door. A motor cycle had been parked in front of that house and when the door was never opened even though knocked, he returned from the house. This evidence of the father of the plaintiff also establishes the fact that Sanjukta (defendant No. I) was not staying with her father, but in some other house alleged to have been built by Rama Sahu. Though these witnesses have been cross-examined at great length but nothing has been elicited to impeach their version. On the aforesaid evidence the question that falls for my consideration is whether it can be reasonably said that the plaintiff has been able to establish that defendant No. 1 had sexual intercourse with somebody else other than her own spouse namely the plaintiff, so that a decree for divorce could be granted. 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 10 clock at night on the canal road; absence of Sanjukta in her father's house when plaintiffs 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. The contention of the learned counsel for the appellant must accordingly be rejected.</p><p style="text-align: justify;">9. Mr. Pati then urges that while coming to the conclusion that defendant No. 1 deserted the plaintiff on her own will and there was no torture to her as alleged by defendant No. 1, the learned trial Judge has not discussed the evidence in detail. But in view of my conclusion on the question already posed, even if it is held that the plaintiff had committed some act of torture on defendant No. 1, yet the plaintiffs prayer for dissolution of marriage and decree for divorce cannot be refused. However, since a contention had been raised by the learned counsel for the appellant, I have also examined the conclusion of the learned trial Judge on issues Nos. 5 and 6 as well as the relevant evidence in that regard. I am unable to take a different conclusion than what has been already found by the learned trial Judge on this score. No doubt, the learned trial Judge has become rather verbose and has unnecessarily stated many things which are not necessary, but the ultimate conclusion is fully supported by the evidence on record and it is difficult for me to accept the submission of Mr. Pati that defendant No. 1 had been able to establish that cruel treatment was meted out to her by the plaintiff for which she was forced to leave her matrimonial house.- 1 would, therefore, affirm the conclusion of the learned trial Judge on issues Nos. 5 and 6.</p><p style="text-align: justify;">10. No other contention having been raised and in view of my conclusion earlier on the question of adultery, the judgment and decree of the learned Subordinate Judge cannot be interfered with. 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Warning (2): Invalid argument supplied for foreach() [APP/View/Case/meta.ctp, line 39]Code Context//$shops = $shops['entities'];foreach ($shops2 as $key => $val) {$viewFile = '/home/legalcrystal/app/View/Case/meta.ctp' $dataForView = array( 'title_for_layout' => 'Sanjukta Padhan Vs. Laxminarayan Padhan and anr. Semantic Analysis', 'shops' => array( 'PERSON' => array( (int) 0 => 'G.B. Patnaik', (int) 1 => 'Doleswari', (int) 2 => 'Rama Sahu', (int) 3 => 'Rama Sahu', (int) 4 => 'Nos', (int) 5 => 'Hindu Law', (int) 6 => 'Pati', (int) 7 => 'Rath', (int) 8 => 'Preston Jones', (int) 9 => 'Preston Jones', (int) 10 => 'Rama Sahu', (int) 11 => 'Bari', (int) 12 => 'Rama Sahu', (int) 13 => 'Rama Sahu', (int) 14 => 'Rams Sahu', (int) 15 => 'Sanjukta', (int) 16 => 'Sanjukta', (int) 17 => 'Sanjukta', (int) 18 => 'Sanjukta', (int) 19 => 'Sanjukta', (int) 20 => 'Sanjukta', (int) 21 => 'Rama Sahu', (int) 22 => 'Sanjukta', (int) 23 => 'Rama Sahu', (int) 24 => 'Rama Sahu', (int) 25 => 'Sanjukta', (int) 26 => 'Sanjukta', (int) 27 => 'Rama Sahu', (int) 28 => 'Sanjukta', (int) 29 => 'Sanjukta', (int) 30 => 'Sanjukta', (int) 31 => 'Sanjukta', (int) 32 => 'Sanjukta', (int) 33 => 'Sanjukta', (int) 34 => 'Rama Sahu', (int) 35 => 'Sanjukta', (int) 36 => 'Sanjukta', (int) 37 => 'Rama Sahu', (int) 38 => 'Rama Sahu', (int) 39 => 'Sanjukta', (int) 40 => 'Rama Sahu', (int) 41 => 'Sanjukta', (int) 42 => 'Rama Sahu', (int) 43 => 'Rama Sahu', (int) 44 => 'Pati', (int) 45 => 'Nos', (int) 46 => 'Pati', (int) 47 => 'Nos' ), 'NORP' => array( (int) 0 => 'J.1', (int) 1 => 'Paidamal', (int) 2 => 'Paidamal' ), 'CARDINAL' => array( (int) 0 => '1', (int) 1 => '1', (int) 2 => '20-11-1970', (int) 3 => 'one', (int) 4 => '1', (int) 5 => '1', (int) 6 => '1', (int) 7 => '1', (int) 8 => '1', (int) 9 => '1', (int) 10 => '1', (int) 11 => '1', (int) 12 => '1', (int) 13 => '1', (int) 14 => '1', (int) 15 => '2', (int) 16 => '1', (int) 17 => '9', (int) 18 => '1', (int) 19 => '2', (int) 20 => '1', (int) 21 => '2', (int) 22 => '2', (int) 23 => '1', (int) 24 => '1', (int) 25 => '2.', (int) 26 => '1', (int) 27 => '1', (int) 28 => '1', (int) 29 => '5', (int) 30 => '6', (int) 31 => '1', (int) 32 => '1', (int) 33 => '4', (int) 34 => '1', (int) 35 => '22-11-1970', (int) 36 => '1', (int) 37 => '1', (int) 38 => '2', (int) 39 => '393', (int) 40 => '1', (int) 41 => '2', (int) 42 => '2', (int) 43 => '1', (int) 44 => '2', (int) 45 => '2', (int) 46 => '1.8', (int) 47 => '2', (int) 48 => '1', (int) 49 => '3', (int) 50 => '2', (int) 51 => '1', (int) 52 => '1', (int) 53 => '10', (int) 54 => '1', (int) 55 => '1', (int) 56 => '1', (int) 57 => '1', (int) 58 => '5', (int) 59 => '1', (int) 60 => '5', (int) 61 => '6.10' ), 'DATE' => array( (int) 0 => '1956', (int) 1 => 'December, 1970', (int) 2 => '1977', (int) 3 => '1976', (int) 4 => '1947', (int) 5 => '1951', (int) 6 => 'Sunday', (int) 7 => 'the month', (int) 8 => '1970', (int) 9 => 'Sunday', (int) 10 => 'the month', (int) 11 => 'that quarters', (int) 12 => 'Sunday', (int) 13 => '1970' ), 'GPE' => array( (int) 0 => 'syphilis', (int) 1 => 'Barbandha', (int) 2 => 'Turunga', (int) 3 => 'Margasira' ), 'ORG' => array( (int) 0 => 'Themra', (int) 1 => 'First Appeal', (int) 2 => 'Court', (int) 3 => 'Mulla', (int) 4 => 'State', (int) 5 => 'Miller v. Ministry of Pensions', (int) 6 => 'Court', (int) 7 => 'the House of Lords', (int) 8 => 'AC 391', (int) 9 => 'P.W. 3', (int) 10 => 'P.W. 2', (int) 11 => 'P.W. 3', (int) 12 => 'Margasir', (int) 13 => 'Choukidar of Canal Colony', (int) 14 => 'Canal Department', (int) 15 => 'Rama', (int) 16 => 'Rama', (int) 17 => 'Themra' ), 'ORDINAL' => array( (int) 0 => 'second', (int) 1 => 'second', (int) 2 => 'second', (int) 3 => 'second' ), 'TIME' => array( (int) 0 => 'evening', (int) 1 => 'night', (int) 2 => 'night', (int) 3 => 'the next morning', (int) 4 => 'that hour', (int) 5 => 'a night', (int) 6 => '1.00 a.m.', (int) 7 => 'evening hours', (int) 8 => 'that night', (int) 9 => 'night' ), 'PRODUCT' => array( (int) 0 => 'P.W. 1', (int) 1 => 'P.W. 2', (int) 2 => 'P.W. 1', (int) 3 => 'P.W. 2', (int) 4 => 'P.W. 5' ), 'WORK_OF_ART' => array( (int) 0 => 'Subordinate', (int) 1 => 'Subordinate' ) ), 'desc' => array( 'Judgement' => array( 'id' => '524824', 'acts' => '<a href="/act/50935/hindu-marriage-act-1955-complete-act">Hindu Marriage Act, 1955</a> - Sections 13(1); Hindu Marriage (Amendment) Act, 1976', 'appealno' => 'First Appeal No. 380 of 1977', 'appellant' => 'Sanjukta Padhan', 'authreffered' => '', 'casename' => 'Sanjukta Padhan Vs. Laxminarayan Padhan and anr.', 'casenote' => ' - MOTOR VEHICLES ACT, 1988 [C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law]. - 1 held them to be wholly unreliable and found that defendant No. 1 could not prove by reliable and trustworthy evidence that the plaintiff had married for the second time and was living with a second wife. 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. 2 who saw both of them leaving the village as well as from P. 5 and 6 as well as the relevant evidence in that regard.', 'caseanalysis' => null, 'casesref' => 'Preston Jones v. Preston Jones;', 'citingcases' => '', 'counselplain' => 'P.K. Misra and ;N.C. Pati, Advs.', 'counseldef' => 'G. Rath and ;B. Naik, Advs.', 'court' => 'Orissa', 'court_type' => 'HC', 'decidedon' => '1990-06-29', 'deposition' => 'Appeal dismissed', 'favorof' => null, 'findings' => null, 'judge' => 'G.B. Patnaik, J.', 'judgement' => '<p style="text-align: justify;">G.B. Patnaik, J.</p><p style="text-align: justify;">1. Defendant No. 1 in a suit for divorce is the appellant. Plaintiff filed the suit alleging that he had married defendant No. 1 in 1956 and they continued to live as husband and wife till 20-11-1970. They had one female issue named Doleswari. Defendant No. 1 was suffering from the disease of syphilis which was in a communicable form and while the plaintiff was absent, defendant No. 1 deserting him eloped away with one Rama Sahu and had sexual intercourse with him and since then said defendant No. 1 is living in adultery with said Rama Sahu and has not returned to the plaintiffs house nor the plaintiff has cohabited with her at any point of time thereafter. On these averments it was pleaded that the marriage be dissolved or alternatively a judicial separation be granted.</p><p style="text-align: justify;">2. Defendant No. 1 denied the allegations made in the plaint. According to her case, as defendant No. 1 did not beget a male child, the plaintiff wanted to marry another girl, but defendant No. 1 did not agree to the same and on that account the plaintiff treated defendant No. 1 with cruelty and neglected her and at last forcibly left her in the house of her parents in mauza Themra. On the request of the plaintiff, defendant No. I had attended the funeral ceremony of her grandmother-in-law and was with the plaintiff till December, 1970, and during that period, the plaintiff again wanted the consent of defendant No. 1 for marrying for the second time, but defendant No. 1 did not agree to the same. Therefore, the plaintiff tortured her and criminally assaulted her and as it became intolerable defendant No. 1 had no other alternative than to leave her husband and remain in her father's house. On these averments, defendant No. 1 prayed for dismissal of the suit.</p><p style="text-align: justify;">3. Defendant No. 2 with whom it was alleged by the plaintiff that defendant No. 1 was living in adultery also filed a separate written statement denying the allegations made in the plaint.</p><p style="text-align: justify;">4. On the pleadings of the parties, 9 issues were framed and the learned trial Judge came to hold that before the marriage of defendant No. 1 with the plaintiff she had illicit relationship with defendant No. 2 and while defendant No. 1 was in her father's village she had contact with defendant No. 2. It was also held that the suppressed lascivious passion became insatiable and both the defendants made secret contacts and in that fateful evening defendant No. 2 came to Paidamal where defendant No. 1 came according to preplan and both of them went away in that night via canal colony by the motor cycle avoiding detection of their departure by the plaintiff. The learned trial Judge further held that the circumstantial evidence on record proved that defendant No. 1 was living a life of adultery with defendant No. 2. So far as the question of defendant No. 1 suffering from venereal disease, the plaintiff did not press that matter and accordingly no finding was recorded. Discarding the evidence adduced on behalf of defendant No. 1 and in view of the contradictions between her pleadings and evidence, the learned trial Judge did not believe the story of defendant No. 1 that she was tortured by the plaintiff and was forced to leave her matrimonial home and stay with her father. On the question whether plaintiff had married for the second time or not, the learned trial Judge on a thorough scrutiny of the evidence of witnesses Nos. 5 and 6 for defendant No. 1 held them to be wholly unreliable and found that defendant No. 1 could not prove by reliable and trustworthy evidence that the plaintiff had married for the second time and was living with a second wife. On issue No. 4, the learned trial Judge came to hold that it was defendant No. 1 who left the house of the plaintiff with clear intention of bringing an end to her matrimonial relationship with him since 22-11-1970 and the desertion was continuing since then. On these findings, the marriage between the plaintiff and defendant No. 1 was declared dissolved and a decree for divorce was granted.</p><p style="text-align: justify;">5. Defendant No. 1 has filed the present,appeal against the judgment and decree of thelearned trial Judge.</p><p style="text-align: justify;">Defendant No. 2 had also preferred an appeal being First Appeal No. 393 of 1977, but when the case was taken up for hearing the learned counsel appearing for the appellant stated that he had no instruction in the matter and prayed that his appearance be ignored which was allowed and since there was none to press the appeal, the appeal was dismissed for default.</p><p style="text-align: justify;">6. It would be appropriate to notice at this stage that the application for dissolution of marriage was filed before the amendment by Marriage Laws (Amendment) Act, 1976 had come into force. But by the time the suit was heard and disposed of, the amended provisions had come into force. Before amendment, one of the conditions for dissolution of marriage was that the 'spouse was living in adultery', but by the amendment in question a marriage could be dissolved by a decree of divorce on.the ground that the other party has after the solemnization of the marriage had voluntary sexual intercourse with any person other than his or her spouse. The sole question for consideration, therefore, is whether on the materials produced in this case, it can be said that the plaintiff has been able to establish that defendant No. 1 had voluntary sexual intercourse with defendant No. 2, as alleged. A comparison of both the provisions, namely the provision 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. 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:--</p><p style="text-align: justify;">'It need not reach certainty, but must carry a high degree of probability.'</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">7. Mr. Pati, the learned counsel for the appellant, strongly contends that on the evidence led by the plaintiff it is not possible for any reasonable man to come to a conclusion that defendant No. 1 had any sexual intercourse with anybody else than her spouse and the conclusion of the learned trial Judge on this score cannot be sustained in law. Accordingly he submits that the decree in question is liable to be reversed, Mr. Rath, appearing for the respondent, on the other hand, contends that on the evidence led by the plaintiff, it must be held that the plaintiff was able to establish beyond reasonable doubt that defendant No. I had sexual intercourse with defendant No. 2 and the facts proved are quantitatively and qualitatively sufficient to satisfy the tests laid down by the House of Lords in Preston Jones v. Preston Jones, 1951 AC 391. In view of the rival submissions, the question that arises for my consideration is whether on the evidence led, it can be said that the plaintiff has been able to establish the fact that defendant No. I had sexual intercourse with defendant No. 2, as alleged, after the marriage between plaintiff and defendant No. 1.</p><p style="text-align: justify;">8. P.W. 1 is the plaintiff himself. He has stated in his evidence that his wife left his house on a Sunday in the month of Margasir of 1970 and when he reached home at night, he found her absent. On being told by her mother that his wife had gone to the bundh, he called some villagers and searched for her at different places but could not get any trace of her. On the next morning, P.W. 2 of village Paidamal told him that he had seen his wife going away with Rama Sahu of village Bari-bandha. He went to Barbandha and came to know from P.W. 3 that his wife had been eloped away by Rama Sahu on his motor cycyle and since then his wife has not returned back to his house. He states in his evidence that though his wife had not returned back to him, but he was prepared to accept her and keep her with him if she was willing to come. Therefore, his knowledge about his wife going away with Rama Sahu is derived from P.W. 2 who saw both of them leaving the village as well as from P.W. 3 who also saw both of them going on the motor cycle on the relevant date. P.W, 2 corroborates the evidence of P.W. 1. According to him while Rams Sahu was talking with him, Sanjukta (defendant No. 1) came and reached there and both of them went away and this was on a Sunday in the month of Margasir towards dusk time. He also states that he has never seen Sanjukta in the house of the plaintiff. P.W. 3 states in his evidence that while he was coming home after thrashing paddy, it was 2 to 3 Ghadi of night and on the national highway he found Sanjukta coming out of the quarters of Choukidar of Canal Colony with a man who was coming from that quarters pushing a motor cycle up to the road. Then the said gentleman and Sanjukta went away on the canal road towards Turunga. The gentleman was bald headed who took away Sanjukta by the motor cycle and later on he came to know from plaintiff that Sanjukta had been taken away by that gentleman who was Rama Sahu. Seeing Sanjukta and Rama Sahu coming from that deserted Choukidwar quarters at that hour of the night and thereafter the fact that both of them left on a motor cycle, goes a long way to prove the plaintiff's case. P.W. 4 was serving in Canal Department and he saw on a night of Sunday in Margasira of 1970, Rama Sahu coming to the canal road at 1.00 a.m. in the night and with him he had a lady. Rama had a motor cycle and when the gate was opened they passed through the same. From his evidence it also transpires that the Choukidar quarters from which defendant No. 1 and Rama were seen coming together by P.W. 2 was not occupied and it was an open house without having any enclosure. P.W. 5 is the father of the plaintiff. His evidence discloses that when he came to know about his daughter-in-law leaving the house of his son, he went to the father of Sanjukta and told him about Sanjukta coming away with Rama Sahu. He could not find Sanjukta in her father's house and on being asked her father told him that she had gone somewhere, but her father further stated that Sanjukta would never return to her husband and he should, therefore, return. Thereafter he again went to Themra and met the father of Sanjukta and enquired about her from him, but he was told that it could not be said where Sanjukta had gone. While coming from the village a young man enquired from him as to whether he was searching for Sanjukta and on replying he was told that Sanjukta was in the new house constructed by Rama Sahu and pointed out the house to him. He then went to that house and knocked the door and Sanjukta came and opened the door. When she found her father-in-law, she again closed the door. A motor cycle had been parked in front of that house and when the door was never opened even though knocked, he returned from the house. This evidence of the father of the plaintiff also establishes the fact that Sanjukta (defendant No. I) was not staying with her father, but in some other house alleged to have been built by Rama Sahu. Though these witnesses have been cross-examined at great length but nothing has been elicited to impeach their version. On the aforesaid evidence the question that falls for my consideration is whether it can be reasonably said that the plaintiff has been able to establish that defendant No. 1 had sexual intercourse with somebody else other than her own spouse namely the plaintiff, so that a decree for divorce could be granted. 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 10 clock at night on the canal road; absence of Sanjukta in her father's house when plaintiffs 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. The contention of the learned counsel for the appellant must accordingly be rejected.</p><p style="text-align: justify;">9. Mr. Pati then urges that while coming to the conclusion that defendant No. 1 deserted the plaintiff on her own will and there was no torture to her as alleged by defendant No. 1, the learned trial Judge has not discussed the evidence in detail. But in view of my conclusion on the question already posed, even if it is held that the plaintiff had committed some act of torture on defendant No. 1, yet the plaintiffs prayer for dissolution of marriage and decree for divorce cannot be refused. However, since a contention had been raised by the learned counsel for the appellant, I have also examined the conclusion of the learned trial Judge on issues Nos. 5 and 6 as well as the relevant evidence in that regard. I am unable to take a different conclusion than what has been already found by the learned trial Judge on this score. No doubt, the learned trial Judge has become rather verbose and has unnecessarily stated many things which are not necessary, but the ultimate conclusion is fully supported by the evidence on record and it is difficult for me to accept the submission of Mr. Pati that defendant No. 1 had been able to establish that cruel treatment was meted out to her by the plaintiff for which she was forced to leave her matrimonial house.- 1 would, therefore, affirm the conclusion of the learned trial Judge on issues Nos. 5 and 6.</p><p style="text-align: justify;">10. No other contention having been raised and in view of my conclusion earlier on the question of adultery, the judgment and decree of the learned Subordinate Judge cannot be interfered with. Accordingly, this appeal fails and is dismissed, but in the circumstances, there would be no order as to costs.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => 'AIR1991Ori39; II(1991)DMC579', 'ratiodecidendi' => '', 'respondent' => 'Laxminarayan Padhan and anr.', 'sub' => 'Family', 'link' => null, 'circuit' => null ) ), 'args' => array( (int) 0 => '524824' ) ) $title_for_layout = 'Sanjukta Padhan Vs. Laxminarayan Padhan and anr. Semantic Analysis' $shops = array( 'PERSON' => array( (int) 0 => 'G.B. Patnaik', (int) 1 => 'Doleswari', (int) 2 => 'Rama Sahu', (int) 3 => 'Rama Sahu', (int) 4 => 'Nos', (int) 5 => 'Hindu Law', (int) 6 => 'Pati', (int) 7 => 'Rath', (int) 8 => 'Preston Jones', (int) 9 => 'Preston Jones', (int) 10 => 'Rama Sahu', (int) 11 => 'Bari', (int) 12 => 'Rama Sahu', (int) 13 => 'Rama Sahu', (int) 14 => 'Rams Sahu', (int) 15 => 'Sanjukta', (int) 16 => 'Sanjukta', (int) 17 => 'Sanjukta', (int) 18 => 'Sanjukta', (int) 19 => 'Sanjukta', (int) 20 => 'Sanjukta', (int) 21 => 'Rama Sahu', (int) 22 => 'Sanjukta', (int) 23 => 'Rama Sahu', (int) 24 => 'Rama Sahu', (int) 25 => 'Sanjukta', (int) 26 => 'Sanjukta', (int) 27 => 'Rama Sahu', (int) 28 => 'Sanjukta', (int) 29 => 'Sanjukta', (int) 30 => 'Sanjukta', (int) 31 => 'Sanjukta', (int) 32 => 'Sanjukta', (int) 33 => 'Sanjukta', (int) 34 => 'Rama Sahu', (int) 35 => 'Sanjukta', (int) 36 => 'Sanjukta', (int) 37 => 'Rama Sahu', (int) 38 => 'Rama Sahu', (int) 39 => 'Sanjukta', (int) 40 => 'Rama Sahu', (int) 41 => 'Sanjukta', (int) 42 => 'Rama Sahu', (int) 43 => 'Rama Sahu', (int) 44 => 'Pati', (int) 45 => 'Nos', (int) 46 => 'Pati', (int) 47 => 'Nos' ), 'NORP' => array( (int) 0 => 'J.1', (int) 1 => 'Paidamal', (int) 2 => 'Paidamal' ), 'CARDINAL' => array( (int) 0 => '1', (int) 1 => '1', (int) 2 => '20-11-1970', (int) 3 => 'one', (int) 4 => '1', (int) 5 => '1', (int) 6 => '1', (int) 7 => '1', (int) 8 => '1', (int) 9 => '1', (int) 10 => '1', (int) 11 => '1', (int) 12 => '1', (int) 13 => '1', (int) 14 => '1', (int) 15 => '2', (int) 16 => '1', (int) 17 => '9', (int) 18 => '1', (int) 19 => '2', (int) 20 => '1', (int) 21 => '2', (int) 22 => '2', (int) 23 => '1', (int) 24 => '1', (int) 25 => '2.', (int) 26 => '1', (int) 27 => '1', (int) 28 => '1', (int) 29 => '5', (int) 30 => '6', (int) 31 => '1', (int) 32 => '1', (int) 33 => '4', (int) 34 => '1', (int) 35 => '22-11-1970', (int) 36 => '1', (int) 37 => '1', (int) 38 => '2', (int) 39 => '393', (int) 40 => '1', (int) 41 => '2', (int) 42 => '2', (int) 43 => '1', (int) 44 => '2', (int) 45 => '2', (int) 46 => '1.8', (int) 47 => '2', (int) 48 => '1', (int) 49 => '3', (int) 50 => '2', (int) 51 => '1', (int) 52 => '1', (int) 53 => '10', (int) 54 => '1', (int) 55 => '1', (int) 56 => '1', (int) 57 => '1', (int) 58 => '5', (int) 59 => '1', (int) 60 => '5', (int) 61 => '6.10' ), 'DATE' => array( (int) 0 => '1956', (int) 1 => 'December, 1970', (int) 2 => '1977', (int) 3 => '1976', (int) 4 => '1947', (int) 5 => '1951', (int) 6 => 'Sunday', (int) 7 => 'the month', (int) 8 => '1970', (int) 9 => 'Sunday', (int) 10 => 'the month', (int) 11 => 'that quarters', (int) 12 => 'Sunday', (int) 13 => '1970' ), 'GPE' => array( (int) 0 => 'syphilis', (int) 1 => 'Barbandha', (int) 2 => 'Turunga', (int) 3 => 'Margasira' ), 'ORG' => array( (int) 0 => 'Themra', (int) 1 => 'First Appeal', (int) 2 => 'Court', (int) 3 => 'Mulla', (int) 4 => 'State', (int) 5 => 'Miller v. Ministry of Pensions', (int) 6 => 'Court', (int) 7 => 'the House of Lords', (int) 8 => 'AC 391', (int) 9 => 'P.W. 3', (int) 10 => 'P.W. 2', (int) 11 => 'P.W. 3', (int) 12 => 'Margasir', (int) 13 => 'Choukidar of Canal Colony', (int) 14 => 'Canal Department', (int) 15 => 'Rama', (int) 16 => 'Rama', (int) 17 => 'Themra' ), 'ORDINAL' => array( (int) 0 => 'second', (int) 1 => 'second', (int) 2 => 'second', (int) 3 => 'second' ), 'TIME' => array( (int) 0 => 'evening', (int) 1 => 'night', (int) 2 => 'night', (int) 3 => 'the next morning', (int) 4 => 'that hour', (int) 5 => 'a night', (int) 6 => '1.00 a.m.', (int) 7 => 'evening hours', (int) 8 => 'that night', (int) 9 => 'night' ), 'PRODUCT' => array( (int) 0 => 'P.W. 1', (int) 1 => 'P.W. 2', (int) 2 => 'P.W. 1', (int) 3 => 'P.W. 2', (int) 4 => 'P.W. 5' ), 'WORK_OF_ART' => array( (int) 0 => 'Subordinate', (int) 1 => 'Subordinate' ) ) $desc = array( 'Judgement' => array( 'id' => '524824', 'acts' => '<a href="/act/50935/hindu-marriage-act-1955-complete-act">Hindu Marriage Act, 1955</a> - Sections 13(1); Hindu Marriage (Amendment) Act, 1976', 'appealno' => 'First Appeal No. 380 of 1977', 'appellant' => 'Sanjukta Padhan', 'authreffered' => '', 'casename' => 'Sanjukta Padhan Vs. Laxminarayan Padhan and anr.', 'casenote' => ' - MOTOR VEHICLES ACT, 1988 [C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law]. - 1 held them to be wholly unreliable and found that defendant No. 1 could not prove by reliable and trustworthy evidence that the plaintiff had married for the second time and was living with a second wife. 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. 2 who saw both of them leaving the village as well as from P. 5 and 6 as well as the relevant evidence in that regard.', 'caseanalysis' => null, 'casesref' => 'Preston Jones v. Preston Jones;', 'citingcases' => '', 'counselplain' => 'P.K. Misra and ;N.C. Pati, Advs.', 'counseldef' => 'G. Rath and ;B. Naik, Advs.', 'court' => 'Orissa', 'court_type' => 'HC', 'decidedon' => '1990-06-29', 'deposition' => 'Appeal dismissed', 'favorof' => null, 'findings' => null, 'judge' => 'G.B. Patnaik, J.', 'judgement' => '<p style="text-align: justify;">G.B. Patnaik, J.</p><p style="text-align: justify;">1. Defendant No. 1 in a suit for divorce is the appellant. Plaintiff filed the suit alleging that he had married defendant No. 1 in 1956 and they continued to live as husband and wife till 20-11-1970. They had one female issue named Doleswari. Defendant No. 1 was suffering from the disease of syphilis which was in a communicable form and while the plaintiff was absent, defendant No. 1 deserting him eloped away with one Rama Sahu and had sexual intercourse with him and since then said defendant No. 1 is living in adultery with said Rama Sahu and has not returned to the plaintiffs house nor the plaintiff has cohabited with her at any point of time thereafter. On these averments it was pleaded that the marriage be dissolved or alternatively a judicial separation be granted.</p><p style="text-align: justify;">2. Defendant No. 1 denied the allegations made in the plaint. According to her case, as defendant No. 1 did not beget a male child, the plaintiff wanted to marry another girl, but defendant No. 1 did not agree to the same and on that account the plaintiff treated defendant No. 1 with cruelty and neglected her and at last forcibly left her in the house of her parents in mauza Themra. On the request of the plaintiff, defendant No. I had attended the funeral ceremony of her grandmother-in-law and was with the plaintiff till December, 1970, and during that period, the plaintiff again wanted the consent of defendant No. 1 for marrying for the second time, but defendant No. 1 did not agree to the same. Therefore, the plaintiff tortured her and criminally assaulted her and as it became intolerable defendant No. 1 had no other alternative than to leave her husband and remain in her father's house. On these averments, defendant No. 1 prayed for dismissal of the suit.</p><p style="text-align: justify;">3. Defendant No. 2 with whom it was alleged by the plaintiff that defendant No. 1 was living in adultery also filed a separate written statement denying the allegations made in the plaint.</p><p style="text-align: justify;">4. On the pleadings of the parties, 9 issues were framed and the learned trial Judge came to hold that before the marriage of defendant No. 1 with the plaintiff she had illicit relationship with defendant No. 2 and while defendant No. 1 was in her father's village she had contact with defendant No. 2. It was also held that the suppressed lascivious passion became insatiable and both the defendants made secret contacts and in that fateful evening defendant No. 2 came to Paidamal where defendant No. 1 came according to preplan and both of them went away in that night via canal colony by the motor cycle avoiding detection of their departure by the plaintiff. The learned trial Judge further held that the circumstantial evidence on record proved that defendant No. 1 was living a life of adultery with defendant No. 2. So far as the question of defendant No. 1 suffering from venereal disease, the plaintiff did not press that matter and accordingly no finding was recorded. Discarding the evidence adduced on behalf of defendant No. 1 and in view of the contradictions between her pleadings and evidence, the learned trial Judge did not believe the story of defendant No. 1 that she was tortured by the plaintiff and was forced to leave her matrimonial home and stay with her father. On the question whether plaintiff had married for the second time or not, the learned trial Judge on a thorough scrutiny of the evidence of witnesses Nos. 5 and 6 for defendant No. 1 held them to be wholly unreliable and found that defendant No. 1 could not prove by reliable and trustworthy evidence that the plaintiff had married for the second time and was living with a second wife. On issue No. 4, the learned trial Judge came to hold that it was defendant No. 1 who left the house of the plaintiff with clear intention of bringing an end to her matrimonial relationship with him since 22-11-1970 and the desertion was continuing since then. On these findings, the marriage between the plaintiff and defendant No. 1 was declared dissolved and a decree for divorce was granted.</p><p style="text-align: justify;">5. Defendant No. 1 has filed the present,appeal against the judgment and decree of thelearned trial Judge.</p><p style="text-align: justify;">Defendant No. 2 had also preferred an appeal being First Appeal No. 393 of 1977, but when the case was taken up for hearing the learned counsel appearing for the appellant stated that he had no instruction in the matter and prayed that his appearance be ignored which was allowed and since there was none to press the appeal, the appeal was dismissed for default.</p><p style="text-align: justify;">6. It would be appropriate to notice at this stage that the application for dissolution of marriage was filed before the amendment by Marriage Laws (Amendment) Act, 1976 had come into force. But by the time the suit was heard and disposed of, the amended provisions had come into force. Before amendment, one of the conditions for dissolution of marriage was that the 'spouse was living in adultery', but by the amendment in question a marriage could be dissolved by a decree of divorce on.the ground that the other party has after the solemnization of the marriage had voluntary sexual intercourse with any person other than his or her spouse. The sole question for consideration, therefore, is whether on the materials produced in this case, it can be said that the plaintiff has been able to establish that defendant No. 1 had voluntary sexual intercourse with defendant No. 2, as alleged. A comparison of both the provisions, namely the provision 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. 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:--</p><p style="text-align: justify;">'It need not reach certainty, but must carry a high degree of probability.'</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">7. Mr. Pati, the learned counsel for the appellant, strongly contends that on the evidence led by the plaintiff it is not possible for any reasonable man to come to a conclusion that defendant No. 1 had any sexual intercourse with anybody else than her spouse and the conclusion of the learned trial Judge on this score cannot be sustained in law. Accordingly he submits that the decree in question is liable to be reversed, Mr. Rath, appearing for the respondent, on the other hand, contends that on the evidence led by the plaintiff, it must be held that the plaintiff was able to establish beyond reasonable doubt that defendant No. I had sexual intercourse with defendant No. 2 and the facts proved are quantitatively and qualitatively sufficient to satisfy the tests laid down by the House of Lords in Preston Jones v. Preston Jones, 1951 AC 391. In view of the rival submissions, the question that arises for my consideration is whether on the evidence led, it can be said that the plaintiff has been able to establish the fact that defendant No. I had sexual intercourse with defendant No. 2, as alleged, after the marriage between plaintiff and defendant No. 1.</p><p style="text-align: justify;">8. P.W. 1 is the plaintiff himself. He has stated in his evidence that his wife left his house on a Sunday in the month of Margasir of 1970 and when he reached home at night, he found her absent. On being told by her mother that his wife had gone to the bundh, he called some villagers and searched for her at different places but could not get any trace of her. On the next morning, P.W. 2 of village Paidamal told him that he had seen his wife going away with Rama Sahu of village Bari-bandha. He went to Barbandha and came to know from P.W. 3 that his wife had been eloped away by Rama Sahu on his motor cycyle and since then his wife has not returned back to his house. He states in his evidence that though his wife had not returned back to him, but he was prepared to accept her and keep her with him if she was willing to come. Therefore, his knowledge about his wife going away with Rama Sahu is derived from P.W. 2 who saw both of them leaving the village as well as from P.W. 3 who also saw both of them going on the motor cycle on the relevant date. P.W, 2 corroborates the evidence of P.W. 1. According to him while Rams Sahu was talking with him, Sanjukta (defendant No. 1) came and reached there and both of them went away and this was on a Sunday in the month of Margasir towards dusk time. He also states that he has never seen Sanjukta in the house of the plaintiff. P.W. 3 states in his evidence that while he was coming home after thrashing paddy, it was 2 to 3 Ghadi of night and on the national highway he found Sanjukta coming out of the quarters of Choukidar of Canal Colony with a man who was coming from that quarters pushing a motor cycle up to the road. Then the said gentleman and Sanjukta went away on the canal road towards Turunga. The gentleman was bald headed who took away Sanjukta by the motor cycle and later on he came to know from plaintiff that Sanjukta had been taken away by that gentleman who was Rama Sahu. Seeing Sanjukta and Rama Sahu coming from that deserted Choukidwar quarters at that hour of the night and thereafter the fact that both of them left on a motor cycle, goes a long way to prove the plaintiff's case. P.W. 4 was serving in Canal Department and he saw on a night of Sunday in Margasira of 1970, Rama Sahu coming to the canal road at 1.00 a.m. in the night and with him he had a lady. Rama had a motor cycle and when the gate was opened they passed through the same. From his evidence it also transpires that the Choukidar quarters from which defendant No. 1 and Rama were seen coming together by P.W. 2 was not occupied and it was an open house without having any enclosure. P.W. 5 is the father of the plaintiff. His evidence discloses that when he came to know about his daughter-in-law leaving the house of his son, he went to the father of Sanjukta and told him about Sanjukta coming away with Rama Sahu. He could not find Sanjukta in her father's house and on being asked her father told him that she had gone somewhere, but her father further stated that Sanjukta would never return to her husband and he should, therefore, return. Thereafter he again went to Themra and met the father of Sanjukta and enquired about her from him, but he was told that it could not be said where Sanjukta had gone. While coming from the village a young man enquired from him as to whether he was searching for Sanjukta and on replying he was told that Sanjukta was in the new house constructed by Rama Sahu and pointed out the house to him. He then went to that house and knocked the door and Sanjukta came and opened the door. When she found her father-in-law, she again closed the door. A motor cycle had been parked in front of that house and when the door was never opened even though knocked, he returned from the house. This evidence of the father of the plaintiff also establishes the fact that Sanjukta (defendant No. I) was not staying with her father, but in some other house alleged to have been built by Rama Sahu. Though these witnesses have been cross-examined at great length but nothing has been elicited to impeach their version. On the aforesaid evidence the question that falls for my consideration is whether it can be reasonably said that the plaintiff has been able to establish that defendant No. 1 had sexual intercourse with somebody else other than her own spouse namely the plaintiff, so that a decree for divorce could be granted. 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 10 clock at night on the canal road; absence of Sanjukta in her father's house when plaintiffs 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. The contention of the learned counsel for the appellant must accordingly be rejected.</p><p style="text-align: justify;">9. Mr. Pati then urges that while coming to the conclusion that defendant No. 1 deserted the plaintiff on her own will and there was no torture to her as alleged by defendant No. 1, the learned trial Judge has not discussed the evidence in detail. But in view of my conclusion on the question already posed, even if it is held that the plaintiff had committed some act of torture on defendant No. 1, yet the plaintiffs prayer for dissolution of marriage and decree for divorce cannot be refused. However, since a contention had been raised by the learned counsel for the appellant, I have also examined the conclusion of the learned trial Judge on issues Nos. 5 and 6 as well as the relevant evidence in that regard. I am unable to take a different conclusion than what has been already found by the learned trial Judge on this score. No doubt, the learned trial Judge has become rather verbose and has unnecessarily stated many things which are not necessary, but the ultimate conclusion is fully supported by the evidence on record and it is difficult for me to accept the submission of Mr. Pati that defendant No. 1 had been able to establish that cruel treatment was meted out to her by the plaintiff for which she was forced to leave her matrimonial house.- 1 would, therefore, affirm the conclusion of the learned trial Judge on issues Nos. 5 and 6.</p><p style="text-align: justify;">10. No other contention having been raised and in view of my conclusion earlier on the question of adultery, the judgment and decree of the learned Subordinate Judge cannot be interfered with. Accordingly, this appeal fails and is dismissed, but in the circumstances, there would be no order as to costs.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => 'AIR1991Ori39; II(1991)DMC579', 'ratiodecidendi' => '', 'respondent' => 'Laxminarayan Padhan and anr.', 'sub' => 'Family', 'link' => null, 'circuit' => null ) ) $args = array( (int) 0 => '524824' ) $pattern = '/\(((0[1-9]|[12][0-9]|3[01])[.](0[1-9]|1[012])[.](17|18|19|20)[0-9]{2}).*\)/' $shops2 = nullinclude - APP/View/Case/meta.ctp, line 39 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
PERSON: G.B. Patnaik, Doleswari, Rama Sahu, Rama Sahu, Nos, Hindu Law, Pati, Rath, Preston Jones, Preston Jones, Rama Sahu, Bari, Rama Sahu, Rama Sahu, Rams Sahu, Sanjukta, Sanjukta, Sanjukta, Sanjukta, Sanjukta, Sanjukta, Rama Sahu, Sanjukta, Rama Sahu, Rama Sahu, Sanjukta, Sanjukta, Rama Sahu, Sanjukta, Sanjukta, Sanjukta, Sanjukta, Sanjukta, Sanjukta, Rama Sahu, Sanjukta, Sanjukta, Rama Sahu, Rama Sahu, Sanjukta, Rama Sahu, Sanjukta, Rama Sahu, Rama Sahu, Pati, Nos, Pati, Nos
NORP: J.1, Paidamal, Paidamal
CARDINAL: 1, 1, 20-11-1970, one, 1, 1, 1, 1, 1, 1, 1, 1, 1, 1, 1, 2, 1, 9, 1, 2, 1, 2, 2, 1, 1, 2., 1, 1, 1, 5, 6, 1, 1, 4, 1, 22-11-1970, 1, 1, 2, 393, 1, 2, 2, 1, 2, 2, 1.8, 2, 1, 3, 2, 1, 1, 10, 1, 1, 1, 1, 5, 1, 5, 6.10
DATE: 1956, December, 1970, 1977, 1976, 1947, 1951, Sunday, the month, 1970, Sunday, the month, that quarters, Sunday, 1970
GPE: syphilis, Barbandha, Turunga, Margasira
ORG: Themra, First Appeal, Court, Mulla, State, Miller v. Ministry of Pensions, Court, the House of Lords, AC 391, P.W. 3, P.W. 2, P.W. 3, Margasir, Choukidar of Canal Colony, Canal Department, Rama, Rama, Themra
ORDINAL: second, second, second, second
TIME: evening, night, night, the next morning, that hour, a night, 1.00 a.m., evening hours, that night, night
PRODUCT: P.W. 1, P.W. 2, P.W. 1, P.W. 2, P.W. 5
WORK_OF_ART: Subordinate, Subordinate