MADHYA PRADESH HIGH COURT
(Indore)(DB)
Before:-Shri Vivek Rusia and Rajendra Kumar (Verma), JJ.
First Appeal No. 503 of 2012. D/d. 24.02.2022.
Nitu @ Priya – Appellant
Versus
Gajendra – Respondent
For the Appellant:- Shri Girish Desai, Advocate.
For the Respondent:- Shri Rishi Tiwari, Advocate.
Cases Referred :-
Anil Yashwant Karande v. Mangal Anil Karande 2015 SCC Online Bom 6257
Arun Kumar Agarwal v. Radha Arun, 2003 AIR (KAR) 508
Bhaktvatsal Singh Rajput v. Mrs. Vandana Rajput, 2018 AIR (Chh) 190.
Dinesh Nagda v. Shantibai, First Appeal No.272/2006 decided on 20.10.2011
Jaideep Shah v. Rashmi Shah @ Miss Rashmi Vyas 2011 Legal Egal (MP) 632
Jayachandra v. Aneel Kaur AIR 2005 SC 534
K. Srinivas Rao v. D.A. Deepa AIR 2013 SCC 2176
K.Srinivas v. Sunita (2014) 16 SCC 34
Madhuri Aswani v. Arjundas Aswani 2007 SCC Online MP 163.
Malathi Ravi, M.D. v. Dr. B. V. Ravi, M.D., AIR 2014 SC 2881
N.G. Dastane v. M/s S. Dastane, AIR 1975 SC 1534
Naveen Kohli v. Neetu Kohli (2006) 4 SCC 558.
Poonam v. Surendra Kumar, Civil Appeal No.9545/2010 dated 29.09.2021
Samir Gosh v. Jaya Gosh the year 2007 (4) SCC 511
Sangeeta v. Sushil
Vibha Shukla v. Kailash Dwivedi, First Appeal No.547/2019 decided on 03.01.2022
JUDGMENT
Shri Vivek Rusia, J. – With the consent of the parties, heard finally.
The appellant(wife) has filed the present appeal under section 28 of the Hindu Marriage Act against the judgment dated 10.07.2012 passed by third Additional Sessions Judge, Khargone (Nimar) whereby the marriage between the appellant(wife) and the respondent (husband) held on 24.04.2004 has been declared dissolved.
2. The appellant(wife) and respondent (husband) both belong to the Hindu religion. They entered into wedlock on 24.04.2004 by following customs and rituals at Village Un Tehsil Khargone and the same is legal under the Hindu Marriage Act. After the said marriage, they lived at Narayandas Colony Bistan Road, Khargone. Out of the aforesaid wedlock, the appellant(wife) gave birth to a daughter on 23.07.2005. respondent (husband) approached the Court of District Judge on 22.10.2008 by way of an application under section 13 of Hindu Marriage Act seeking a decree of divorcee by way of dissolution on the ground of adultery and cruelty. According to him, on 09.07.2008 near about 08:00 to 08:30, Smt. Maya Gupta wife of Dr Ajay Gupta gave a call four times and disconnected. Near about 09:00 to 09:30, she came to his house weeping and gave 4-5 slaps to the appellant(wife) by accusing that, she has spoiled her life by indulging in an illicit relationship with her husband. She has also told that there are many nude photos and videos of the appellant with Dr Ajay Gupta, and he has admitted this immoral act. According, to the Respondent (Husband), the appellant(wife) has also admitted that she is in an affair with Dr Ajay Gupta since college time and she would continue to do so. It is further pleaded by the respondent (husband) in the suit that the appellant(wife) has admitted the above conduct by writing a note (i.e. Ex.P/1) in her writing before leaving the house with her daughter. Thereafter, since 10.07.2008 she is living with her parents. On 10.07.2008, the brother of the appellant(wife) Shri Umesh Gupta came and requested the respondent (husband) not to make any complaint to the police to save the family from embracement. Mr Manohar Gupta i.e. father of Dr Ajay Gupta also came and requested him that Dr Ajay Gupta and the appellant has committed a sin and requested not to make a complaint to the Police. Hence, he did not make a complaint but after some time appellant(wife) has started threatening him that she would falsely implicate his family in the criminal case. He suffered mental agony and insecurity in the life, hence, he informed the police station Khargone on 13.07.2008 vide Ex. P/2. Later on, he came to know from his neighbours that in his absence Dr Ajay Gupta used to visit his house and the appellant(wife) used closed doors and windows of the house. Later on, he also came to know that the appellant(wife) and Dr Ajay Gupta were known to teach others when the appellant(wife) was working as a receptionist in the B.E.M.S. College. After the marriage, friendship has been developed between the families and they jointly visited Shirdi in the year 2005-06 and Vaishnev Devi in the year 2006-07. Respondent (Husband) provided a personal mobile to his wife but now he is recollecting that on the pretext of the treatment, she used to visit frequently the clinic of Dr Ajay Gupta in his absence. He has also come to know that she is having an illicit relationship with Ali Bohra as well. He also came to know that once the appellant(wife) and Ajay Gupta were caught in a compromising position in Maruti Car. On these grounds, he approached the civil court seeking the divorce on the ground of adultery. During the pendency of the suit, an amendment has been brought to the effect that she is living with K.P. Sharma as a wife without marriage in his government accommodation. He saw them roaming in the city in a two-wheeler. He also came to know that his payslips have been to the appellant(wife) by K.P. Sharma
3. The appellant(wife) has filed a written statement admitting the date of marriage, the birth of a daughter and date of separation from 10.07.2008, however, she has denied the alleged incident which allegedly took place on 09.07.2008. According to her on 09.07.2008, the non-appellant(wife) was beating her and at that time Smt. Maya Gupta and Dr Ajay Gupta came to the house but realising the situation, they left the house. Thereafter, the non- appellant has pressurized her to write a note about her affair with Dr Ajay Gupta i.e. Ex. P/1 and left him in the house of her father. Since then, both are living separately. She has specifically denied her illicit relations with Dr Ajay Gupta, Ali Bohra and K.P. Sharma. She has also refuted the allegation by submitting that by way of conspiracy, she was left in the house of his parents. On 15.07.2008, she has lodged a report of atrocities by her husband and father-in-law in the Police Station under Section 498-A of I.P.C. and ¾ of Dowry Prohibition Act has. She has alleged that under the apprehension of registration of a Criminal Case, the Respondent (Husband) has sent her a divorce notice. Accordingly to her due to pressure from the respondent (husband), the police did not register the case under section 498-A of I.P.C. According to her, the respondent (husband) himself has introduced her to Dr Ajay Gupta and friendship has been developed between both the families and they all visited religious places like Shirdi Vaisnavdevi and Nasik. She has claimed Rs. 10,00,000/- has compensation for levelling of false allegations and prayed for dismissal of the case.
4. On the basis of pleadings of respective parties, the learned Additional District Judge has framed six issues for adjudication. The respondent (husband) has examined himself as PW-1, Banwari Jaiswal (PW-2), Sudhi More (PW-3) and Smt. Devila More (PW-4) and marked written notes (Ex.P/1), complainant 13.07.2008 (Ex.P/2) and registration card Ex. P/3 as exhibits. In defence, the appellant(wife) has examined herself as N.A.W No.1 and Randeer Constable as N.A.W. No.2 and marked 23 documents as Exhibits NA-1 to NA-23.
5. After evaluating the evidence that came on record, the learned Additional District Judge has held that the respondent (husband) has established the allegation of adultery against the appellant(wife), hence, he is entitled to get a decree dissolution of marriage. The decree of divorce has been granted on the ground of cruelty as well as adultery, however, the court has found that the non-appellant/ husband has failed to prove the allegations of adultery against the appellant(wife) with Ali Bohra and K.P. Sharma. Vide judgment dated 10.07.2012 the court has granted the decree of dissolution of marriage held on 24.04.2004.
6. Being aggrieved by the aforesaid judgment, the present appeal has been filed.
7. Shri Desai, learned counsel for the appellant(wife) has argued that the learned court has committed a grave error of law as well as on fact while granting a decree of divorce on the ground of cruelty only on the basis of Exb. P/1. Learned counsel has drawn the attention of this Court to the Exb.P/1 and submitted that signature of the appellant in the handwritten note is in the middle of the paper instead of at the end of the narration written by its author. There is a difference in writing, therefore, such concocted documents ought not to have relied by learned Additional District Judge to establish the charge of adultery against the appellant(wife). He has further submitted that decree of divorce is liable to be granted under section 13 (1) (i) of Hindu Marriage Act where after solemnization of the marriage other party had voluntarily entered in sexual intercourse with any person other than a spouse but here no such direct evidence has been produced by the non-appellant(husband) to establish sexual intercourse between the appellant(wife) and Dr Ajay Gupta. In the depositions, neighbours PW-2 and PW-3 have nowhere stated that they saw the appellant(wife) and Dr Ajay Gupta performing the sexual intercourse or in a compromising position, therefore, merely entering the house and closing the door does not constitute an illicit relationship between them, therefore, the decree of adultery cannot be granted merely based on a handwritten note. Learned trial Court has erroneously placed a burden upon the appellant(wife) to establish that she wrote the letter under the threat and pressure of the non-appellant(wife). It is further submitted that when a spouse alleges adultery against the other by claiming that the spouse had sexual intercourse with a man or woman other than the husband or wife, the burden would lie only on the party pleading so. The respondent (husband) has failed to discharge his burden. The charge of extramarital relationship is a serious charge that causes stigma on the character of a spouse; hence, it needs to be proved by leading clinching evidence that would lead to a definite conclusion that the spouse had voluntary sexual intercourse with the person of the opposite sex other than a spouse. In support of his contention, he has placed reliance on the judgment passed by the High Court of Judicature at Bombay Nagpur Bench in the case of Sangeeta v. Sushil .Learned counsel has further emphasized that once the allegation of adultery is made against wife or husband then such person ought to have impleaded him as non-appellant or defendant in the suit as the necessary party as held by various High Courts in the case of Jaideep Shah v. Rashmi Shah @ Miss Rashmi Vyas 2011 Legal Egal (MP) 632, Arun Kumar Agarwal v. Radha Arun, 2003 AIR (KAR) 508, Bhaktvatsal Singh Rajput v. Mrs. Vandana Rajput, 2018 AIR (Chh) 190. Therefore, on this ground alone the decree of divorce is liable to be set aside.
8. Shri Rishi Tiwari learned counsel for the respondent (husband) has argued that the learned court below has rightly passed the decree of divorce based on evidence that came on record. The appellant(wife) has herself admitted that the letter Exb.P/1 was written by her. The appellant(wife) has admitted her writing as well as signature in the letter but alleged that it was got written by the respondent (husband)under coercion, but she has failed to prove this. The deposition of P.W.-1 P.W.-2 and P.W.-3 has established that Dr Ajay Gupta used to frequently visit the house to meet appellant(wife) in absence of a husband which is sufficient to establish the allegation of adultery. It is further submitted that after the leaving house, she has never tried to come back or file an application under section 9 of the Hindu Marriage Act for restoration of conjugal rights that establishes that she was also not willing to discharge marital obligation with the respondent (husband). Shri Rishi Tiwari learned counsel has further submitted that once she has alleged that she was beaten up and compelled to write Ex. P/1 then she ought to have lodged a report immediately to the police. She tried to implicate the husband and his family members in case of 498-A of I.P.C. but after investigation, the police did not find any substance hence did not register a case but she has managed to get FIR registered under Section 294, 323, 341/506 of I.P.C. Ex. P/2 against the non- appellant(wife) hence, the same amounts to mental cruelty and for which he is entitled to get a divorce. It is further submitted that more than 20 people had recorded their statement before the police that this appellant(wife) is in a relationship with Dr Ajay Gupta.
9. Where Dr Ajay Gupta is a necessary party in these proceedings or not, Shri Rishi Tiwari learned counsel has drawn the attention of this Court to the order 18.04.2012, on the said date Dr Ajay Gupta and Smt. Maya Gupta appeared as NA witnesses after the issuance of a bailable warrant but they were given up because the appellant(wife) was not willing to examine them as witnesses. Had they have been examined in the court, the truth would have come strongly before the Court, therefore, adverse inference has rightly been drawn against the appellant(wife). Thus, in view of the facts and circumstances of this case, the learned trial court has rightly found that the appellant(wife) was in adultery with Dr Ajay Gupta and filing a criminal case on false charges amount to cruelty as held by Apex Court as well High Court of Bombay and this Court in case of K.Srinivas v. Sunita (2014) 16 SCC 34, Anil Yashwant Karande v. Mangal Anil Karande 2015 SCC Online Bom 6257 and Madhuri Aswani v. Arjundas Aswani 2007 SCC Online MP 163.
10. It is further submitted by Shri Tiwari learned counsel that the parties are living separately since 09.07.2008 i.e. almost 16 years without any efforts to unite hence the marriage has become irretrievable, there is no possibility of living them as jointly in future. No efforts have been made by the appellant(wife) to seek restoration of conjugal rights with the respondent (husband). By setting aside the judgment and decree no fruitful purpose would be solved. Hence, no interference is called for and appeal is liable to be dismissed.
We have heard the learned counsel for the parties and perused the record.
11. In this case date of marriage of parties i.e. 24.04.2004, date of birth of child i.e. 23.07.2005 and date of separation between the parties i.e. 10.07.2008 are not in dispute. The only issue which requires consideration as to whether the learned trial court has rightly granted the decree of divorce on the ground of adultery?
12. According to the respondent (husband), his wife was in an illicit relationship with Dr Ajay Gupta, which she has admitted by writing note i.e. Ex. P/1 on 09.07.2008 by her own handwriting. Later on, he also came to know from his neighbour PW-2 P.W.-3 and PW-4 that in his absence Dr Ajay Gupta used to visit his house to meet the appellant/wife. The neighbours have also informed that after entering inside the house, his wife to keep the door and windows closed. After getting all the information, he filed a petition under section 13 of the Hindu Marriage Act seeking divorce on the ground of cruelty. The learned trial court by relaying Ex. P/1 has concluded that the appellant (husband) has successfully established the allegation of adultery. The appellant/wife in her deposition did not dispute her writing and contents of Ex.P/1 but according to her, she was compelled to writ aforesaid letter by her husband. Apart from this defence, she has only made vague allegations about beating, atrocity on petty issues and demand of dowry by the respondent(husband). According to her, on 09.07.2008, when a fight was going with the respondent(husband) at that time Dr Ajay Gupta and Maya Gupta came to their house but looking at the situation, they left the house. If the respondent(husband) had compelled her to write the Ex.P/1 on 09.07.2008, then she should have promptly made a complaint to the police. since there was no counter-reaction by the appellant, therefore, the learned trial court has rightly shifted the burden to establish that such a note was got written by the respondent(husband) by putting the pressure or under threat. Apart from these vague allegations about atrocities on petty issues and demand of dowry against the respondent(husband) no specific instance has been brought on record by the appellant, to give any reason to believe that he would indulge in creating the evidence.
13. In defence, the appellant/wife could have produced the evidence by examining Dr Ajay Gupta and Maya Gupta to rebut all allegations of adultery. They were called by way of the summons and both came to the Court but the appellant/wife has given up and did not examine them, therefore, the adverse inference has rightly drawn against her. Thus, the Trial Court has not committed any error of law as well as fact while granting the decree under section 13 (1) of the Hindu Marriage Act on the ground of adultery.
14. Learned counsel for the appellant/wife has argued that the divorce is liable to be granted under section 13(1) (i) of Hindu Marriage Act, if other party had voluntary sexual intercourse with other person and respondent has not led any evidence to that effect. It is further submitted by the learned counsel that merely visiting the house by Dr. Ajay Gupta in absence of respondent(husband) does not constitute that there was sexual intercourse between appellant/wife and Dr. Ajay Gupta. We are not agreeing to such submission because any party in a matrimonial dispute seeking divorce on the ground of adultery need not necessarily establish the adultery beyond the shadow of doubt proof, preponderance and probability would be sufficient. It is very difficult to give direct evidence of adultery because such an act are always committed in a closed room, the circumstantial evidence are sufficient in proof of allegation of adultery. The allegations of adultery must be reasonably proved and there must be a high degree of probability. The Apex Court in the case of N.G. Dastane v. M/s S. Dastane, AIR 1975 SC 1534 has held that the standard of proof in matrimonial cases would be the same as a civil case i.e. the court has to decide the case based on the preponderance of the probability, therefore, by proving the Ex.P/1 and examining the neighbours PW-2 to PW-4, the respondent(husband) has reasonably proved the allegation of adultery in order to get the decree of divorce.
15. Shri Tiwari, learned counsel for the respondent/ husband has raised the issue that the appellant/wife has lodged an FIR against the husband as well as his father levelling false allegation of Section 294, 323, 341, 506/34 of I.P.C. The FIR was registered and they have been acquitted in this case, therefore, on the basis of a false charge, the respondent(husband) and his family members were dragged to the Court, this amounts to cruelty and for which also the decree of divorce is not liable to have interfered.
16. Although this issue was not before the court below for seeking the divorce but respondent(husband) pleaded his suffering of mental cruelty because of the illicit relationship of the appellant(wife) but after filing a petition under section 13 of the Hindu Marriage Act on 22.10.2008, a criminal case 030/2010 was got registered by the appellant(wife) by lodging an FIR which is exhibited as Exb.N-2 for the offence punishable under Section 294, 323, 341, 506/34 of I.P.C. The appellant(wife) made a complaint to Superintendent of Police Ex.N.A.-5 on 15.07.2008 seeking registration of a case under Section 498-A of I.P.C. and ¾ of Dowry Prohibition Act. The police conducted a preliminary enquiry and found that allegations are false and did not register the case under Section 498-A and ¾ of the Dowry Prohibition Act. It is settled law that physical violence is not essential to constitute cruelty. The conduct and behaviour of one spouse towards the others also constitute cruelty, the kind of attitude, conduct, treatment behaviour either party has every reason to apprehend that it does not save him/her to continue in the marital relationship. The Apex Court in case of K.Srinivas v. Sunita (2014) 16 SCC 34 has held that making a false complaint about initiating a false criminal prosecution by one spouse to other constitute mental cruelty. Filing a false complainant against the husband and his family members under Section 498-A of I.P.C. and 307 of I.P.C. will amount to cruelty as defined under section 13 (1) (i-a) of the Hindu Marriage Act. The same view has earlier has been held in the case of Naveen Kohli v. Neetu Kohli (2006) 4 SCC 558. In another case of Dr. (Mrs.) Malathi Ravi, M.D. v. Dr. B. V. Ravi, M.D., AIR 2014 SC 2881, it is held that subsequent events established from controverted material on record can be taken into consideration in case of seeking dissolution of marriage. In the case of Jayachandra v. Aneel Kaur AIR 2005 SC 534, the Apex Court has held that the act subsequent to the filing of the divorce petition can be taken into consideration to grant the decree of divorce. Therefore, in view of the above, filing of FIR under section 294, 323, 341, 506/34 of I.P.C and making a complaint about registration of FIR on false charges of cruelty and demand of dowry against husband and father-in-law and mother-in-law constitute mental cruelty for which also the respondent/husband is entitled to decree of divorce.
17. Even otherwise the appellant/wife and respondent/husband are living separately since 10.07.2008. Recently, the Apex Court in the case of Poonam v. Surendra Kumar In Civil Appeal No.9545/2010 dated 29.09.2021 has granted the decree of divorce in the exercise of power under Article 142 of the Constitution of India mainly on the ground that parties have not been able to sub- serve the very object of the marriage of companionship of each other from the very inception and have been living apart from more than 19 years. In another case Samir Gosh v. Jaya Gosh reported in the year 2007 (4) SCC 511 in para 101 the Apex Court has enumerated some instances of human behaviour which may be relevant in dealing with the case of mental cruelty and a long period of continuous separation conclude that the matrimonial bond is beyond repair and marriage becomes fixation only supported by a legal tie.
18. The Apex Court in the case of K. Srinivas Rao v. D.A. Deepa reported in AIR 2013 SCC 2176 has held in para-20 that
“20. According to the appellant-husband on 6/12/2009 the brother of the respondent-wife came to their house and attacked his mother. His mother filed a complaint and the police registered a complaint under section 354 of the IPC. The brother of the respondent-wife also lodged a complaint and an offence came to be reigstered. Both the cases are pending.”
19. The Division Bench of this Court in case of Dinesh Nagda v. Shantibai reported in First Appeal No.272/2006 decided on 20.10.2011 which is reported in AIR 2012 has granted the decree of divorce in case of irretrievable breakdown of marriage and granted decree of divorce on the ground under section 13(1)(B) of the Hindu Marriage Act. The para 20 of the judgment is reproduced below:-
“20. So far as the issue of desertion is concerned, Section 13(1)(ib) of the Act requires desertion for a continuous period of not less than two years immedicately preceeding the presentation of the divorce petition. In the present case, the respondent Shantibai has admitted that she is living separately with her parents since 1995-1996 (since 9-10 years prior to giving the affidavit before the trial court, on 26/7/2005). The statement of the appellant also indicates that the respondent is living separately with her parents since 1995-96. The appellant has stated that for that reason he is having “dry life” for last several years. The aforesaid position is also reflected from the statements of the other witnesses. The respondent’s plea that she is living separately on account of the second marriage of the appellant cannot be accepted because the respondent has failed to produce any reliable evidence establishing the second marriage of appellant with Radhabai. The reliance on the affidavit (Ex. D-15) given by Radhabai does not establish second marriage since she has only stated that she is living in the appellant’s protection for certain reasons, but she has not stated that she is living as wife of the appellant. Though the respondent has stated that she is ready to live with the appellant, but the father of the respondent has categorically stated that it is not possible for the respondent to live with the appellant. The respondent has failed to establish any reasonable cause for living separately for last about 15 years. Thus is it clear tha tthe respondent has deserted the appellant and ground for divorce under section 13(1) (ib) of the Act is made out.”
20. Recently the Division Bench of this Court in Jabalpur in the case of Vibha Shukla v. Kailash Dwivedi in First Appeal No.547/2019 decided on 03.01.2022 the decree of divorce has been granted as the husband and wife is living separately for last 17 years and there was no cohabitation between them.
21. In view of the above, no case is made out for interference. The judgment dated 10.07.2012 passed by Third Additional District Judge, Khargone (Nimar) in H.M.A. No.08/2011 is hereby affirmed and First Appeal filed by the appellant/wife is hereby dismissed.
Certified copy as per Rules.
