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Banchhanidhi Das Vs. Kamala Devi and Anr.



Bench: JUSTICE Ranganath Misra and Naba Kumar Das

Banchhanidhi Das Vs. Kamala Devi and Anr. On 03 July 1980

Law Point:
Wife had been living in adultery. Evidence clearly indicative of illicit relationship of Wife.





1. This is a husband’s appeal against the decree of the learned Subordinate Judge of Puri rejecting his application for divorce on the plea that his wife (respondent No. 1) had been living in adultery with respondent No. 2.

2. Plaintiff was resident of village Kurujang and after marriage with respondent No. 1 became a teacher in a basic school. He left behind his wife and children in the village home and used to come every week-end during holidays. Respondent No. 2 happens to be his paternal cousin brother, but younger in age to him. Taking advantage of the absence of the plaintiff from the village, he picked up illicit relationship with the respondent No. 1 and started living in adultery with her. Plaintiff came to know of this fact and recovered five letters written by respondent No. 2 to respondent No. 1, wherein the fact of illicit relationship had been clearly indicated by the second respondent. When the plaintiff confronted his wife with these writings she ran away and started living with the second respondent. Finding no other option, plaintiff sued for divorce under Section 13 of the Hindu Marriage Act.

3. Each of the respondents filed a written statement and denied the plaint allegations. At the trial, however, they remained absent.

4. Plaintiff examined himself as a sole witness in support of his case and relied upon the letters marked as Exts. 1 to 5. The learned Trial Judge observed:

“… .He relies on 5 letters Exts. 1 to 4 written to his wife and Ext. 5 written to his daughter. All these letters have been proved to have been written by respondent No. 2. I have carefully read the letters and though I have no doubt that the writer had written Exts. 1 to 4 secretly to respondent No. 1 to allure her to have sexual intercourse with him, they do not explicitly show that adultery had in fact been committed by respondent No. 1. Ext. 5 similarly does not contain anything to show that respondent No. 1 was guilty of committing adultery. So, none of the letters per se helps the court to come to a conclusion that adultery was committed by respondent No. 1 as alleged in the petition. …….”
The learned Trial Judge also took note of the position that the letters bore no date and, therefore, it was not known as to when they were written. Since plaintiffs marriage has taken place years back, it could be that the episode indicated in the letters was an event of the long past. The facts stated in the letter, therefore, according to the learned Trial Judge, did not establish adultery. Accordingly he dismissed the application.

5. Notice in appeal was issued to the respondents and notice through post appears to have been personally served on both the parties. It may be pointed out that the notice to respondent No. 1 by registered post had been taken to the residence of respondent No. 2 and there she has received the same. The husband’s plea that respondent No. 1 has been living in the company of respondent No. 2 receives substantial support from this fact. Notwithstanding personal notice and though aware of the allegations made against them, the respondents have chosen not to appear.

6. Mr. Rath for the plaintiff-appellant contends that although the learned Subordinate Judge has indicated in the impugned order that he had carefully gone through the letters, he does not seem to have really read the same with any attention. Ext. 1 clearly refers to events that had taken place. The language is vulgar, refers to illicit intercourse and is clearly indicative of the fact that the respondents were having illicit relationship. Ext. 2 also refers to an odd event which supports the plaintiff’s story that the relationship between the respondents was indeed of the type alleged. In Ext. 3, there is reference to the work done which Mr. Rath indicates is a statement with reference to sexual intercourse. Reading the letter in its own context we are inclined to agree with the submission of Mr. Rath. In Ext. 4, there is no clear statement. Respondent No. 1 in Paragraph 7 of her written statement had stated that she was staying in the house of the plaintiff at Kusapada. The second respondent had also taken the same plea in Paragraph 5 of his written statement. From the fact that the appeal notice has been served on respondent No. 1 at the house of the second respondent in village Musapada goes a long way to discard the plea taken in the written statement.

7. The learned Subordinate Judge had accepted the letters to have been written by respondent No. 2. The letters on the basis of the evidence of the plaintiff were found to have been recovered from the suit case of the wife. Plaintiff has categorically proved that the letters were in the handwriting of the second respondent. We also compared the writings with the admitted writing of the second respondent in the written statement as also in the acknowledgment of registered notice issued in the appeal. The writing fits in with the signature of the second respondent in the acknowledgment receipt, though in the written statement, he seems to have been careful enough to write somewhat differently. The plea of respondent No. 1 that she was almost an illiterate lady does not seem to be correct. Her handwriting is very clear and gives an impression that she is fairly literate and must be taken to be capable of reading and writing. The learned Subordinate judge made a mistake in coming to the conclusion that the letters held out allurement for sexual relationship while in clear terms the letters were narrative of past events.

8. In all the letters, respondent No. 2 has addressed respondent No. 1 as his brother’s wife. Thus the letters were certainly written after the marriage. Plaintiff has indicated that he came to know of such illicit relationship about a year before his coming to court and the period during which respondents were living in adultery was about that time. While it is true that evidence of adultery has to be clear and definite and the allegation has to be proved beyond reasonable doubt, it would be difficult to get direct evidence of acts of adultery. ‘Living in adultery” is suggestive of the fact that a single instance of adultery may not be adequate. In the instant case, the letters refer to a course of adulterous conduct and, therefore, the requirement of Section 18 of the Act has been satisfied. As has been pointed out in Rayden on Divorce it is not necessary that there should be direct evidence of adultery as it is not easily available. It has been also stated that rarely the parties would be caught in acts of adultery. Circumstantial evidence must, however, be sufficiently strong and conclusive. There is an old Scottish legal maxim which when translated into English would mean that if a man and a woman are found together under suspicious circumstances, it cannot be presumed that they were saying their prayers. If the relationship was not illicit there was no reason why respondent No. 2 was avoiding the presence of the petitioner and was always anxious to seek the opportunity of petitioner’s absence. The letters give an account of the relationship which leaves no room for doubt that the relationship was adulterous and the respondents were living in adultery.

9. We would accordingly reverse the decree of the trial court, allow the appeal and grant a decree of divorce as prayed for. There would be no order for costs.

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