Court:Punjab-Haryana High Court
Bench: JUSTICE Sarojnei Saksena
Manjit Kaur vs Santokh Singh And Ors. On 9 October 1996
Adultery Test — Circumstantial Evidence, Direct proof not available in all cases. Insistence — Denial of legitimate protection of martial rights. Circumstantial evidence — Normal test in proof of charge of adultery — Cogent, Consistent and reliable evidence — Sufficient to record finding of adultery — Uncorroborated inconsistent evidence will not prove adultery.
This is wife’s appeal under Section 28 of the Hindu Marriage Act (in short, the Act) against the divorce decree dated March 17,1992.
2. The uncontroverted facts are that appellant Manjit Kaur and respondent Santokh Singh were married on May 9,1985, at Village Mauli Kalan, District Patiala, according to Hindu rites. They lived together at Manimajra, U.T. Chandigarh. Respondent Jaswant Singh is real brother of Santokh Singh. Jaswant Singh was married to the sister of Manjit Kaur on May 9, 1985. All of them are residing in House No. 643, Manimajra. Santokh Singh and Manjit Kaur were not blessed with any issue in this wedlock.
3. Husband-respondent Santokh Singh averred in his divorce petition that immediately after the marriage wife-appellant started showing signs of mental disorder. She used to loose temper and abuse his parents as well as him without any rhyme or reason. When he tried to intervene, she used to hurl filthy abuses on him before all the members of his family. She was not discharging the duties of house wife. Many a times he had to go to his office without taking breakfast as appellant-wife did not prepare the same for him. She never looked after his old parents. Her behaviour was insulting and nagging. Whenever respondent-husband tried to pacify her, she manhandled him. Thus, she treated him with cruelty. Because of her quarrelsome nature, the environment in the matrimonial home was always surcharged. He never had peace of mind. He lived as a frustrated husband in mental agony. The husband also pleaded that she is incurably of unsound mind and is suffering from mental disorder of such a kind and to such extent that he is unable to live with her. She is abnormally aggressive and extremely suspicious. She refused to take any treatment for her mental ailment. Conversely she threatened him that she would lodge a false complaint against him with the police or would commit suicide and implicate him and his parents in a criminal case. She used to invite few of her relations who on her instigation used to misbehave and sometimes cause physical harm to him as well as to his family members. On November 18, 1989, on her invitation her father Ram Singh, uncle and brother-in-law came to his house, beat his mother and she got a false report lodged against them, but the matter was finally compromised on November 19, 1989, in the local Saini Sabha. Even after this compromise her behaviour remained the same. In June, 1990 the appellant-wife started living in adultery with Jaswant Singh respondent No. 2, brother of respondent-husband, who lives in the first floor of the said house. In June/July, 1990 when the wife of Jaswant Singh-respondent No. 2 was away to her parental home with her child, his wife lived alone with Jaswant Singh as his wife. They were also seen going to the market and cinema and other places together. She openly used to say that she is second wife of Jaswant Singh and her husband has no connection whatsoever with her. Thus, on these grounds he prayed for a decree of divorce.
4. Wife-appellant and respondent No. 2-Jaswant Singh filed their separate written statements, wherein they denied all the averments made by the husband-respondent in his divorce petition.
5. Issues were framed. Parties adduced their evidence. The Matrimonial Court held that the wife-appellant has treated the husband-respondent with cruelty and she has started living in adultery with Jaswant Singh-respondent No. 2 since June/July, 1990. On these grounds, it granted decree of divorce in favour of the husband-respondent.
6. The wife-appellant’s learned Counsel vehemenly argued that the Matrimonial Court has wrongly decided both these issues against the wife-appellant. The appellant-wife was always dutiful, obedient and of quiet nature. She always discharged all her duties, but her husband was never happy with her. Husband-respondent was keen to marry another woman. Therefore, he maltreated her and finally drove her out of the matrimonial home. Since wife of respondent No. 2 is her real sister, she decided not to go back to her parental home. She started living in one room of the upper floor of this house. He pointed out that the respondent-husband has examined his mother Smt. Kartar Kaur PW-3, who has admitted that on the first floor of the house there are three rooms. Appellant-wife has stated on oath that out of these three rooms she is living in one room and is cooking her own meals separately. He also scathingly criticised the lower Court’s judgment and submitted that in the divorce petition husband has pleaded that in June/July, 1990 when appellant’s sister went to her parental home in her absence appellant was residing with respondent-Jaswant Singh as his wife and she openly declared so, but while adducing evidence the husband-respondent has failed to prove these allegations. He also argued that the husband-respondent pleaded that his wife is suffering from mental disorder of such a kind and to such an extent that the husband-respondent is unable to live with her, but he has not said a word on oath about the alleged mental disorder of his wife. This only show he wanted to get rid of his wife by levelling false accusation against her. This accusation itself amounts to mental cruelty to the wife. He drove her out of the nuptial roof and, therefore, she started living in one room on the first floor of the matrimonial house. Under these circumstances, the husband-respondent cannot be allowed to take advantage of his own wrong and to say that the wife is living in adultery with his own younger brother. Thus, according to him, if the Matrimonial Court would have scanned the evidence very minutely and would have weighed it reasonably, it would have dismissed the divorce petition.
7. Husband-respondent’s learned Counsel argued that no direct evidence can be adduced about the illicit relationship of two persons. Only circumstances can be proved, wherefrom inference is to be drawn that those two persons must be having illicit relations. Husband-respondent has proved all those circumstances. His wife is openly residing with his younger brother in the same house. They are moving to different places in the society together. What else the husband was required to prove. Even his mother has supported his cause and has deposed that appellant-wife is living as a wife with her another son Jaswant Singh. He also argued that Jaswant Singh-respondent could not muster courage to enter the witness-box to deny the said allegations. Appellant-wife could also have examined her own sister to rebut the evidence adduced by the husband-respondent, but Jaswant Singh and his wife could not dare to enter the witness-box. This circumstance also lends support to the evidence adduced by the husband-respondent.
8. Husband-respondent’s learned Counsel also submitted that the husband has also proved the ground of cruelty. The cruel behaviour of the wife is proved by the statements of the husband, his mother and one tenant Raj Paul PW-2. There was no reason to disbelieve or discredit this evidence. Hence, according to him, the Matrimonial Court has rightly decided both these issues in husband’s favour and has rightly granted him a decree of divorce.
9. Adultery is one of the grounds for a spouse to seek dissolution of marriage under Section 13 of the Act Its Sub-section (1) provides that any marriage solemnized before or after the commencement of the said Act may, on a petition filed either by husband or wife, be dissolved by a decree of divorce on the ground that the other party has, after the solemnization of the marring has voluntary sexual intercourse with any person other than his or her spouse. Therefore, what is required to be proved in this case is that since June/July, 1990 appellant-wife had voluntary sexual intercourse with Jaswant Singh-respondent No. 2 to establish the aforementioned ground. The original clause “is living in adultery” is substituted by the present clause referred to above, which is a verbatim reproduction of the original Section 10(1)(f) before its deletion of 1976. After the amendment made in 1976, it is sufficient to prove that the respondent had voluntary sex with any other person other than the spouse. Now it need not be proved that the respondent has been living in adultery. A comparison of the provisions 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.
10. In such matters public interest requires that marriage bonds shall not be set aside lightly or without strict enquiry and proof. The act of adultery in its nature is a very secret act. Direct proof could not be available in all cases. It is extremely difficult to get direct evidence and if the Courts insist on direct evidence in proof of adultery it will amount to a denial of the legitimate protection of marital rights. Therefore, proof of actual adultery is not necessary and circumstantial evidence which leads to an inference of adultery is sufficient. The decree of proof need not reach certainty but it must carry a high degree of probability. Hence it is required that appreciation of evidence in such cases must be careful and proper. Only when the evidence is cogent, consistent and reliable, the finding of adultery could be recorded but where the evidence of the petitioner is lacking in corroboration and is inconsistent and unnatural, no finding of adultery could be recorded.
11. Circumstantial evidence is normal test in proof of the charge of adultery, but the circumstances must be such as to lead to it by fair inference as a necessary conclusion. Proof of adultery need not be on the touch stone of beyond a shadow of doubt, but at the same time, the Court does not, as a general rule, infer adultery from evidence of opportunity alone but would require some satisfactory proof. If from the circumstances which are proved by the petitioner only this much is proved that there were opportunities for committing adultery, that evidence is nothing, there must be circumstances amounting to proof that opportunities could be used, such as, the association of the parties was so intimate and their mutual passion so clear that adultery might reasonably be assumed as a result of an opportunity for its occurrence.
12. Keeping these principles in view the evidence produced by the parties is to be scanned very minuetly to arrive at a conclusion whether the husband-respondent has proved by cogent, reliable and unimpeachable evidence that the appellant-wife had sexual intercourse with Jaswant Singh.
13. Santokh Singh husband-respondent has stated that his wife was of quarrelsome nature. She asked him to live separately but as he declined, her behaviour became more quarrelsome and nagging. She used to quarrel with his parents. He went to the extent of saying that she even beat his parents. Raj Paul was his tenant, who intervened on few such occasions. He also stated that after a year of their marriage, she called her father, brother Naib Singh and Bakhtawar Singh, who are her relations, to his house. These persons beat his mother. At that time he was not in the house. His wife lodged a complaint with the police, whereupon his sister’s husband and his parents were called to the police station. When he was coming back from office, he saw them returning from the police station. Police asked them to come again but as there after the wife lodged a complaint before Saini Sabha at Manimajra, they attended Saini Sabha meeting. Wife and her parents were also there. In that meeting a compromise was arrived at between them. According to the husband, wife gave an assurance of her normal behaviour. Till that time wife was living with him. Husband has also stated that the wife assaulted him with cudgle on several occasions. Once her brother and her mother’s sister’s son attacked his sister’s husband Jaspal Singh in Sector 40-C, about which a report was lodged with the police.
14. Santokh Singh PW-1 also stated that he is living with his parents on the ground floor of the house, while in one room of Chobara of that house his wife is residing with his brother Jaswant Singh. Thus, he concludes that his wife is living in adultery with his brother in Chobara, she goes to cinema hall with his brother and they roam about together. He also felt annoyed and hurt as according to him she got him summoned to the police station on 12 occasions on false complaints. According to the husband, the wife is not prepared to live with him as his wife, as she wants to live as wife of his brother Jaswant Singh and, in fact, she is living as such with his brother. He has also testified that his wife has taken away all her dowry articles in the Chobara.
15. Raj Paul PW-2 has stated that he was a tenant in the husband’s house in the year 1988-89. He found that appellant-wife was of quarrelsome nature. She used to beat parents of Santokh Singh and also used to abuse them. Manjit Kaur had grappled with her in-laws on 6/7 occasions and on 4/5 such occasions he intrevened and separated them. He has also produced any document to prove that he was ever living in that house as a tenant.
16. Smt. Kartar Kaur PW-3 is the mother of husband-respondent. This mother-in-law has come out with a story that Manjit Kaur started quarrelling with her four months after her marriage. She has admitted that Manjit Kaur and her real sister were married to her both the sons Santokh Singh and Jaswant Singh on the same day. Jaswant Singh’s wife is residing with him in Chobara. She has candidly admitted that in the Chobara there are three rooms. Jaswant Singh respondent has separated from them and has stated living in a room on the first floor (Chobara). She has tried to explain that when she objected on Manjit Kaur’s going to Jaswant Singh, she started quarrelling with her. She suspects that Manjit Kaur is having illicit relations with Jaswant Singh. During nights Manjit Kaur used to stay with Jaswant Singh in the Chobara and sometimes she used to come to the ground floor at about midnight. This fact is neither pleaded in the divorce petition or even the husband-Santokh Singh has stated so. According to her, after filing of this divorce petition Manjit Kaur started physically assaulting her. She has also stated that when Manjit Kaur called her father, brother and cousins and they picked up quarrels with her, she reported the matter to the police, but no such police report is filed. She does not say that these persons beat her, as her son Santokh Singh has stated. She also made a complaint that once her another son Prem Singh visited them, but Manjtt Kaur did not permit him to enter the house. Even Santokh Singh PW-1 has not stated so. Mother-in-law is confident that wife of Jaswant Singh knows all about the illicit relations of Manjit Kaur with Jaswant Singh, but according to her, she has not checked him. Jaswant Singh is openly living with Manjit Kaur as her husband and she is living with him as his wife. Even when Jaswant Singh’s wife goes to her parental home, Manjit Kaur lives with Jaswant Singh as his wife. In the cross-examination, Kartar Kaur has admitted that till this divorce petition was filed, Manjit Kaur was living with them on the ground floor, but for the last two years she is living separately. She separated from them after the filing of the petition. She has clearly admitted that she came to know of illicit relations of Manjit Kaur with Jaswant Singh about four months after their marriage, but the husband-respondent has pleaded as well as has stated on oath that in June/July, 1990 Manjit Kaur started living with Jaswant Singh in the Chobara as his wife. Admittedly, they were married in May, 1985. This evidence by itself proves that somehow the husband and the mother-in-law do not want her to reside in the matrimonial home on some count or the other, they want that Santokh Singh should get divorce.
17. Manjit Kaur in her statement has denied all these allegations. She has clearly stated that her husband started maltreating her and therefore, she is residing separately for the last 2½ years in one room on the first floor of the said house. She is also cooking her meals separately. She has denied that she ever maltreated the husband-respondent or his parents or ever abused, insulted or beat them. She has further stated that on a complaint made by her father in Saini Sabha about her ill-treatment by Santokh Singh, the Sabha convened a meeting of both the parties and in that meeting Santokh Singh tendered apology for ill-treating her and gave assurance that in future he would treat her properly. But even after this compromise, he did not behave properly. After 5/6 day she started demanding money from her parents on the pretext that he would live separately. Her father gave him Rs. 35,000/-, but thereafter he did no shift anywhere and filed this divorce petition against her.
18. Manjit Kaur in her cross-examination has stated that she has no quarrel or dispute with her mother-in-law or father-in-law. She is categoric that the suspicion in the mind of her husband and mother-in-law that she is having illicit rleations with Jaswant Singh is false and baseless. She has also made a complaint that her articles of dowry were not given to her as per the compromise arrived at in the Saini Sabha. She denied that she ever made any complaint to the police against her husband and in-laws. She also denied the alleged incident of November 18, 1989. Her statement is corroborated by Dharam Singh RW-2, who is General Secretary of Saini Welfare Society, Manimajra. He produced the register of this Society and proved that on November 19, 1989, a meeting was convened of the parties. Husband and wife signed the proceedings Exhibit R2. Even after this compromise, the Sabha members were told that the parties have again fallen out and differences have cropped in. Both the parties were called for April 21,1990, the husband and his relations appeared, but the wife and her relations did not come.
19. From a perusal of proceedings Exhibit R-2 it is evident that appellant-wife’s father made a complaint before Saini Welfare Society complaining that his daughter is being ill-treated by her husband, hence they should be called. On that complaint both the parties were summoned by the Society. After deliberations the husband agreed that he would not maltreat the wife, would not beat her and would keep her properly. The wife also agreed that she would abide by his wishes and would live peacefully. This document supports the wife’s contention that she was maltreated by the husband. Even Jaswant Singh in his written statement has categorically pleaded that the husband-respondent used to treat the wife with cruelty as he does not want to keep her as his wife, he intends to marry again. He has also pleaded that the husband treats Manjit Kaur with cruelty as she does not agree for divorce.
20. Her father Ram Singh RW-3 has also supported her. He has also stated that in the Sabha the husband-respondent gave an assurance that he will treat Manjit Kaur well. But after 4/5 days of this compromise, husband demanded Rs. 35,000/-. After few days he paid this amount to him. Father has made it clear that when he lodged the complaint with the Saini Welfare Society, Manjit Kaur was residing in her matrimonial home. That is evident from the divorce petition itself, which was amended later on and the ground of adultery was added. This divorce petition was filed on December 4, 1989. Husband filed amendment petition on March 4, 1991. In this amendment petition the husband averred that during the month of June/July, 1990 wife of Jaswant Singh-respondent went away to her parental home with her child, there was no other person in the family living with Jaswant Singh. His wife and Jaswant Singh are openly going to the market and other places. She openly asserts that she is second wife of Jaswant Singh and the husband -respondent has no connection with her whatsoever.
21. Thus, it is evident that after June/July, 1990 till March 4, 1991, the husband never raised such a contention that his wife is living in adultery with his own real brother. This further proves the falsity of the said allegation. Had it been true, then in June/July, 1990 or immediately thereafter, he would have filed such an amendment petition.
22. To put it pithly, the husband-respondent wanted the Court to believe that by her tantrums and petulance she has treated him with cruelty, but he has utterly failed to prove it. From Exhibit R-2, which is an admitted document, as well as from the written statement of his own real brother Jaswant Singh, it is evident that shoe is on the other leg. It is he who treated his wife with cruelty and finally turned her out of the matrimonial home. She declined to go to her parental home as her real sister and her husband Jaswant Singh, who is real brother of her husband, are residing on the first floor of the same house. She opted to reside in one room on the first floor. Her mother-in-law Kartar Kaur PW-3 has categorically admitted that there are three rooms on the first floor. Thus, it is obvious that in two rooms of the first floor, Jaswant Singh is residing with his wife and child and in the third room Manjit Kaur is residing alone. She is cooking her meals separately. Simply because she is residing in one room of the first floor while adjoining rooms are occupied by her real sister and her husband, it cannot be deduced or even inferred that she is having illicit relations with Jaswant Singh. There is not even a scintilla of evidence on record to prove that they have any soft feelings or any intimate relations or they are enamoured or have mutual passion for each other. The opportunity is there for them to have sexual intercourse, but that alone cannot prove this ground of adultery. It cannot be suggested with any modicum of reasonableness that simply on the basis of this fact that she is living in one room on the first floor, she is indulging in sexual intercourse with her real sister’s husband who is none else but real brother of her own husband.
23. On a conspectus of the evidence on record, I fully agree with the submissions made by the appellant’s learned Counsel that husband simply wants to get rid of her; therefore, he levelled all the three false allegations against her. He failed to prove that she treated him with cruelty. He could not adduce on iota of evidence to prove her alleged mental disorder, though as per his own pleading she is of incurably unsound mind and is suffering from mental disorder of such a kind and to such an extent that he is unable to live with her. Had it been true, he would have adduced at least some evidence or would have himself said so on oath, but he could not muster that courage. It seems that when he thought that he will not be able to get divorce on the said ground of her mental illness and cruelty, then he added this ground of adultery by amending divorce petition. Except for showing his suspicion about the chastity of his wife, he could not prove that she is having, or had sexual intercourse with Jaswant Singh at any point of time. This allegation is most unnatural. When Jaswant Singh is living with his wife in the adjoining two rooms, it is not believable that she is having sexual intercourse with Jaswant Singh. If that would have been so, Jaswant Singh’s wife would have joined hands with the husband-respondent to prove this ground. The reasons of filing this petition is obvious. The husband-respondent wants to re-marry. Therefore, somehow or the other he wants to get a decree of divorce, so that he can legally enter into another matrimonial alliance.
24. In my considered view, the Matrimonial Court has fallen into an error in deciding issues 1 and 3 in favour of the husband-respondent.
25. Resultantly, the appeal is allowed. The impugned judgment and decree is set aside.
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