THE HON'BLE SRI JUSTICE RAMESH RANGANATHAN AND THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
C.M.A.No. 1412 OF 2004
JUDGMENT: (per Hon'ble Sri Justice M.Satyanarayana Murthy) The unsuccessful petitioner in O.P.No. 69 of 1998 on the file of the Court of Additional Senior Civil Judge, Ongole, Prakasam District (for short, 'the trial Court'), filed this appeal under Section 28 of the Hindu Marriage Act, 1955 (for brevity, 'the Act of 1955'), challenging the dismissal order and decree passed therein on 18-07-2003.
The parties to the appeal, for convenience of reference, are ranked as in O.P.No. 69 of 1998 before the trial Court throughout the judgment.
2. The petitioner filed petition under Sections 13 (1) (i) and 13 (1) (ia) of the Act of 1955 seeking decree of divorce dissolving the marriage between the petitioner and the respondent contending that the marriage between the petitioner and the respondent took place on 05-05-1985 at the house of the petitioner at Karumanchi according to Hindu rites. The marriage was consummated and, during wedlock, they were blessed with two sons by name Srikanth and Sasikanth aged 9 and 7 years respectively. The petitioner, native of Karumanchi Village, Tanguturu Mandal, Prakasam District, is working as typist in the office of A.P. Bhavan, New Delhi. The petitioner and the respondent used to live in the quarters allotted to them in the premises of A.P. Bhavan. While so, the respondent developed illicit intimacy with one Srinivasa Rao of Ravinuthala, Prakasam District, who is residing at New Delhi. Subsequently, the illicit intimacy was questioned by neighbours and also gave complaint to Special Commissioner, Akbar Road, New Delhi, on 18-03-1995. The petitioner warned the respondent to change her ways of life. Instead of changing her attitude, she started threatening the petitioner to commit suicide in case the petitioner warned her again. The petitioner also found letters written by the respondent to Chikkala Bala Kotaiah, Jammulapalem. In those letters, there was a reference about illicit contact between the respondent and Chikkala Bala Kotaiah and a panchayat was held in Karumanchi Village in the month of May, 1996, in the presence of village elders Donempudi Jayarao, Koppolu Bala Kotaiah and Kandula Rajarao. The letters addressed to Chikkala Bala Kotaiah, found in briefcase of the respondent, were torn by her in the month of May, 1996. However, the act of illicit contact was condoned in the presence of mediators.
While the matter stood thus, the respondent started illicit contact with another person by name Kumar of Chittoor who is also working in A.P. Bhavan Canteen at New Delhi and the petitioner found love letters written by the respondent to Kumar. On coming to know about the illicit contact between the respondent and Kumar, neighbours questioned her but the petitioner was insulted among the public by the respondent. Thus, the respondent indulged in sexual intercourse with third persons other than the petitioner which affords a ground for divorce.
The respondent used to insult the petitioner in the public and, in many occasions, he was insulted by the respondent. The respondent abused the petitioner in filthy language which caused mental agony to him.
The efforts made by the petitioner for reconciliation were proved futile and, thereby, he was constrained to file O.P.No. 50 of 1997 for grant of divorce on the ground of adultery and cruelty and the same was dismissed, as adjusted out of the Court, due to intervention of elders. The petitioner excused the respondent and took her to Delhi but the respondent continued her old illicit intimacy with Kumar. Hence, the petitioner claimed divorce under Sections 13 (1) (i) and 13 (1) (ia) of the Act of 1955.
3. The respondent filed counter denying material allegations while admitting the relationship between the petitioner and the respondent. She specifically contended that the petitioner suppressed all the material facts so as to cover up his sexual misdeeds. The petitioner developed illicit intimacy with one Brahmin girl by name Bala Tripura Sundari of Ongole and she was brought to Delhi with a promise to provide employment to her. The petitioner and Bala Tripura Sundari also continued their illicit intimacy in the house. When it is questioned by the respondent, the petitioner started harassing her attributing unchastity to her. In the presence of elders, the petitioner expressed his intention to live with Bala Tripura Sundari and drove the respondent out from the house. On one occasion, the petitioner tried to do away with the life of the respondent and, in those circumstances, the respondent was made to go to her parents' house at Jammulapalem Village, Prakasam District.
The petitioner filed O.P.No. 50 of 1997 earlier on the file of the trial Court against the respondent, wherein he indicated that he had no intention to lead conjugal life with the respondent.
The petitioner also developed illicit intimacy with one Ramana of Karumanchi Village, who is Reddy by caste, and numbers of love letters were written by the petitioner to the said Ramana and Bala Tripura Sundari. The petitioner is a man of abnormal sexual apatite and quenches his sexual lust with many colourful women without considering their caste, creed, race, religion and region. It is difficult for her to describe the sexual activities of the petitioner in the counter.
The respondent, denying the alleged acts of illicit contact with anyone mentioned in the petition, denied the alleged cruelty by way of insulting the petitioner in public and that the present petition is filed with false allegations with a sinister motive to throw blame on the respondent and cause mental and physical sufferance to the respondent and finally prayed to dismiss the petition.
4. During the course of enquiry, on behalf of the petitioner, P.Ws.1 to 4 were examined and got marked Ex.A1 and Ex.C1. On behalf of the respondent, R.Ws.1 and 2 were examined and got marked Exs.B1 to B10.
5. Upon hearing argument of both counsel, the trial Court dismissed the petition on the ground that the petitioner failed to establish both the respondent living in adultery and caused mental cruelty by her acts and omissions.
6. Aggrieved by the dismissal order, the unsuccessful petitioner in O.P.No. 69 of 1998 preferred this appeal on various grounds totally repeating the attributions made against the respondent, non-consideration of it by the trial Court despite adducing evidence of witnesses from the village of Karumanchi and the letter written by the respondent to Raj Kumar @ Kumar, who is paramour of the respondent, marked as Ex.A1 clinches the issue but the trial Court did not consider the material available on record in proper perspective.
It is further contended that impleading of paramour as co-respondent is not mandatory as the respondent is living in adultery with several persons. Therefore, it is difficult to implead the paramour of the respondent as co- respondent and, on that ground, the petition cannot be dismissed.
The petitioner contended that the respondent and Raj Kumar were found in a room on 14-01-1998 during midnight in the petitioner's house. They were found red-handedly and, when the petitioner questioned the same, the said Kumar stabbed the Chowkidar by name Rambabu, who was on duty, in the presence of children i.e. P.Ws.2 and 3. This abnormal behaviour of Kumar, paramour of the respondent, is sufficient to conclude that the respondent is living in adultery or voluntarily indulged in sexual intercourse developing illicit intimacy with the said Kumar, which is a ground for grant of divorce, but the trial Court did not consider voluminous evidence on record in proper perspective and committed an error in dismissing the petition.
It is further contended that acts and omissions of the respondent viz. leading adulterous life by the respondent and insulting him in public, which amounts to cruelty, as the petitioner is a man of quick responding, are the grounds for grant of divorce.
During the course of argument, learned counsel for the appellant mainly contended that the evidence of P.Ws.2 and 3, who are children of the petitioner and the respondent, and P.W.4, who is a third party to the petition, is sufficient to conclude that the respondent is living in adultery or indulging in sexual intercourse voluntarily with third persons. Apart from that, insulting the petitioner in public certainly causes mental cruelty.
Learned counsel for the petitioner would further submit that impleading of paramour of the respondent as co-respondent is not possible because she is leading adulterous life with different persons. Therefore, failure to implead paramour as co-respondent by itself is not a ground to dismiss the petition but the trial Court, on erroneous appreciation of evidence, dismissed the petition without assigning any legal reasoning for such dismissal.
7. Per contra, learned counsel for the respondent, while supporting the order under challenge, contended that the petitioner did not implead the said Raj Kumar @ Kumar with whom the respondent allegedly developed illicit intimacy which is mandatory under Rule 8 of the Rules framed under the Act of 1955. On this ground alone, the petition is liable to be dismissed and prayed to dismiss the appeal.
8. Considering rival contentions and perusing material available on record, the points that arise for consideration are as follows:
(1) Whether the respondent had voluntary sexual intercourse with any person other than the petitioner, if so, is the petitioner entitled to a decree of divorce dissolving the marriage under Section 13 (1) (i) of the Act of 1955?
(2) Whether the respondent, by her acts and omissions, caused mental agony, which amounts to mental cruelty, if so, is the petitioner entitled to a decree of divorce under Section 13 (1) (ia) of the Act of 1955?
9. In Re. Point No. 1:
It is the case of the petitioner from the beginning that, on his employment, he shifted his family to Delhi; he is working as typist in A.P. Bhavan; the respondent allegedly developed illicit intimacy with one Srinivasa Rao of Ravinuthala Village, who is residing at Delhi, subsequently, with one Chikkala Bala Kotaiah of Jammulapalem, and, finally, with Raj Kumar @ Kumar, who is also working in A.P. Bhavan, New Delhi; the respondent was chastised many times and filed O.P.No. 50 of 1997 seeking divorce but, due to intervention of elders, O.P.No. 50 of 1997 was dismissed on 09-12-1997 as adjusted out of Court. It is not known to this Court whether the earlier petition was filed basing on the same allegations or not. Strangely, either the petitioner or the respondent did not bring on record a copy of the petition in O.P.No. 50 of 1997. However, it is clear from the allegations made in the petition, more particularly from para Nos. 'a' to 'd', that the incidents of developing illicit contact etc., took place prior to filing of O.P.No. 50 of 1997 seeking divorce. Due to intervention of elders, the previous acts of the respondent were condoned and brought her to Delhi but it is specifically alleged in para 'g' of the petition that she continued her illicit intimacy with Kumar who is working in A.P. Bhavan, New Delhi. At best, the cause of action for filing the petition would be the act of voluntary sexual intercourse of the respondent with Kumar subsequent to dismissal of O.P.No. 50 of 1997. So, the only act attributed to the respondent to attract Section 13 (1) (i) of the Act of 1955 is voluntary sexual intercourse with Kumar of Chittoor who is also working in A.P. Bhavan at New Delhi.
10. To substantiate the contention of the petitioner, the petitioner got examined 4 witnesses on his behalf. The evidence of children of the petitioner is an important piece of evidence. P.Ws.2 and 3 are children of tender age. P.W.2 died, subsequently, due to kidney ailment, after examining him on 08-01-2003. P.W.2 testified that, in the absence of the petitioner, another gentleman used to come and live in the house and the respondent threatened him not to disclose the same. P.W.3 also testified against the respondent. Visiting of house of the petitioner by a third person, in the absence of the petitioner, by itself is not sufficient to conclude that the respondent voluntarily participated in sexual intercourse with that third person. P.Ws.2 and 3 did not state anything about participation of the respondent in sexual intercourse voluntarily with the gentleman who used to visit the house of the petitioner but it is one of the circumstances to draw an inference. P.W.4, Kandula Raja Rao, elder brother of the petitioner and brother-in-law of the respondent, is an independent witness. He testified about seizure of love letters by the petitioner from the respondent addressed to Chikkala Bala Kotaiah and holding of panchayat but the allegation of developing illicit contact prior to filing of earlier O.P.No. 50 of 1997 is of no use since it was already condoned by the petitioner in the earlier petition for divorce. Therefore, except the evidence of P.Ws.2 and 3, no other evidence is brought on record to prove that the respondent had voluntary sexual intercourse with Kumar other than the petitioner but the evidence of P.W.1, at best, is helpful to draw an inference from the proved circumstances that the respondent indulged voluntarily in sexual intercourse with a third person.
11. Proof of voluntary sexual intercourse of the respondent with a third party is difficult in normal course of events since it is a secret act but the Court must take into consideration of all surrounding or attending circumstances including behaviour of spouse, adulterer and moving together to various places etc., basing on probabilities of the case. The Court cannot insist direct proof beyond reasonable doubt unlike proof of adultery in criminal cases. Therefore, the Court has to consider facts and circumstances of each case while appreciating evidence on record and come to an independent conclusion. To prove charge of adultery or voluntary sexual intercourse, standard of proof required in a criminal case cannot be applied for proceedings under the Divorce Act. Person alleging adultery is only required to prove the allegations by preponderance of probabilities and the degree of probability depends on the gravity of the offence. It is well established that application for divorce is a civil proceeding and analogies of criminal law cannot be applied to it. It is equally true that petition for divorce on the charge of adultery cannot be allowed merely on suspicion and doubts expressed by the party approaching the Court. The view of proving matrimonial offence beyond reasonable doubt has undergone a sea change and, in the modified form, the petitioner is only required to prove his case by preponderance of probabilities and the degree of probability depends upon the gravity of the offence.
12. It is not necessary to prove adultery by direct evidence. Such evidence cannot be given credit even if produced. Adultery has to be inferred from circumstances which exclude any presumption of innocence in favour of the person against whom it is alleged. In matrimonial proceedings, the Court has to be vigilant that burden of proof is satisfactorily established and properly discharged. Adultery, from its nature, is a secret act. The Court must have due regard to social conditions and the manner in which parties are accustomed to live. Adultery can generally be proved by presumptive proof passed upon circumstantial evidence such as non-access and birth of
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children. I n Augustine Johnson Vs. Elizabath , Kerala High Court, relying on Apex Court's judgment, ruled as follows:
"The view that was prevalent at one time was that in regard to the scanning of proof in cases under the Divorce Act, the Judge should be satisfied beyond reasonable doubt as to the commission of matrimonial offence. Then only it could be said that the Judge was satisfied within the meaning of Section 14 of the Indian Divorce Act. The rule laid down by the House of Lords, would provide the principle and rule which Indian Courts should apply to cases governed by the Act and the standard of proof in divorce cases would therefore be such that if the Judge is satisfied beyond reasonable doubt as to the commission of the matrimonial offence he would be satisfied within the meaning of Section 14 of the Act. The two jurisdiction i.e., matrimonial and criminal are distinct jurisdictions but terms of Section 14 make it plain that when the Court is to be satisfied on the evidence in respect of matrimonial offences the guilt must be proved beyond reasonable doubt and it is on that principle that the Courts in India would Act and the reason for adopting this standard of proof is the grave consequence which follows a finding of guilt in matrimonial causes."
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In E.J. White Vs. Mrs. K.O.White , the Apex Court, while dealing with the lis under Indian Divorce Act, ruled as follows:
"In all suits and proceedings under the Act shall act and give relief on principles and rules which in the opinion of the Court are as nearly as may be conformable to the principles and rules on which the Court for Divorce and Matrimonial Causes in England for the time being acts and gives relief. In our opinion the rule laid down by the House of Lords, would provide the principle and rule which Indian Courts should apply to cases governed by the Act and the standard of proof in divorce cases would therefore be such that if the Judge is satisfied beyond reasonable doubt as the commission of the matrimonial offence he would be satisfied within the meaning of Section 23 of the Act. The two jurisdictions i.e., matrimonial and criminal are distinct jurisdictions but terms of Section 14 make it plain that when the Court is to be satisfied on the evidence m respect of matrimonial offences the guilt must be proved beyond reasonable doubt and it is on that principle that the Courts in India would act and the reason for adopting this standard of proof is the grave consequence which follows a finding of guilt in matrimonial causes."
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In Wright Vs. Wright , Lord Justice Dixon observed as follows:
"In short it comes to this: So far as the grounds for divorce are concerned, the case, like any civil case, may be proved by a preponderance of probability, but the degree of probability depends on the subject-matter. In proportion as the offence is grave, so ought the proof to be clear. So far as the bars to divorce are concerned, like connivance or condonation, the Petitioner need only show that on balance of probability he did not connive or
condone or as the case may be."
In Dastane Vs. Dastane
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, Lordship Justice Chandrachud accepted the above view of the House of Lords in a case under the Hindu Marriage Act.
13. Thus, in view of the principles laid down in the above judgments, the Court has to scrutinize entire evidence on record basing on broader probabilities of case and decide attribution of adultery with reference to facts on hand. In the present case, according to the petitioner, the earlier acts of living in adultery or voluntary participating in sexual intercourse with third persons were condoned but the isolated act of finding one gentleman during night in the house of the petitioner with the company of the respondent is complained against the respondent and the same is supported by the evidence of P.Ws.2 and 3. That may be a circumstance to draw an inference but, basing on the isolated instance of company of third person with the respondent, that by itself is not a conclusive proof to establish the act of voluntary participation of the respondent in sexual intercourse with the alleged Raj Kumar @ Kumar. A Full Bench of this Court had an occasion to
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deal with a similar case in S.Mallaiah Vs. Eisther and another , wherein it was held thus:
"Adultery is a very serious allegation. Appreciation of evidence in such cases must be careful and proper. It is only when the evidence is cogent, consistent and irrefragable that the finding of adultery could be recorded. But where the evidence of the petitioner is lacking in corroboration and is inconsistent and un-natural, no finding of adultery could be recorded even when the second respondent, the alleged adulterer, remained exparte."
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In Byri Narayanamma Vs. Byri Sitharama murthy and another , a Division Bench of this Court, in para No. 11, discussing about standard of proof required in matrimonial offences like adultery, ruled as follows:
"We have already observed that whenever ground of adultery is pleaded by one spouse against another, the standard of proof is required to be substantially different from the one that is needed in respect of other grounds, such as cruelty and desertion. The reason is that unlike in the case of the divorce granted on the grounds of cruelty and desertion, a divorce granted on the ground of adultery would haunt the concerned spouse with that accusation for the rest of the life. Therefore, the Courts are required to be careful and cautious before recording a finding on those grounds. In a way, ignominy and disrepute, which the concerned party may suffer on account of such accusation, would be more severe in nature than the one in a criminal case, which may no doubt entail in punishment, but would virtually vanish with the serving of the sentence."
By applying the principle laid down in the above decisions, it is the duty of the petitioner to prove the specific act of adultery by adducing cogent and satisfactory evidence. In fact, the best evidence available, to prove adultery, is neighbours and inmates of the house, who witnessed the incident of visiting of any third person to lead adulterous life with the respondent, but, here, the petitioner got examined P.Ws.2 and 3, who are, inmates and children, residing away to the petitioner and the respondent by the date of their examination. Therefore, their evidence is not believable for the reason that they are totally under the influence of the petitioner and his parents. Thus, there is every possibility of cluttering them in view of their tender age.
14. According to Section 118 of Indian Evidence Act, 1872, all persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind but the settled principle of law is that, when a child witness is examined to prove a particular fact, unless testimony of a child witness is corroborated by testimony of any independent witness, it is unsafe to rely on the testimony of child witness. The Apex Court, in Nuvrutti Pandurang Kokate and others
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Vs. State of Maharashtra , while cautioning the Courts to accept the testimony of child witness, held as follows:
"A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the questions and able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanour must be like any other competent witness and there is no likelihood of being tutored.
The decision on the question whether the child witness has sufficient intelligence primarily rests with the trial Judge who notices his manners, his apparent possession or lack of intelligence, and the said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath. The decision of the trial court may, however, be disturbed by the higher court if from what is preserved in the records, it is clear that his conclusion was erroneous. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make-believe. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaken and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness."
In the present case, P.W.3 is in the custody of the petitioner and his parents. P.W.2 died due to ill-health while he was in the custody of the petitioner exclusively. That too, their evidence is not directly pointing out the guilt of the respondent for matrimonial offence under Section 13 (1) (i) of the Act of 1955. Hence, we are unable to place much reliance on the testimony of P.Ws.2 and 3 since the allegations is grave and no independent witness was examined to corroborate the testimony of P.Ws.2 and 3. Therefore, it is danger to rely on the evidence of P.Ws.2 and 3 to record a finding about the respondent's participation voluntarily in sexual intercourse with Raj Kumar @ Kumar. If the evidence of P.Ws.2 and 3 is excluded from consideration, absolutely no iota of evidence on record to establish the factum of the respondent's voluntary indulging in sexual intercourse with Raj Kumar @ Kumar. Even the evidence of P.Ws.2 and 3 is not clear that the gentleman, who visited the house, is Raj Kumar @ Kumar but he is a man, of speaking Telugu language, working in A.P. Bhavan, New Delhi. There may be several persons working in A.P. Bhavan from Andhra Pradesh who can speak Telugu language. Therefore, basing on evidence, it is difficult for the Court to conclude that the respondent voluntarily indulged in sexual intercourse with Kumar.
15. The best witness to speak about the incident of sexual intercourse is Chowkidar by name Rambabu who allegedly received stab injury but, for the reasons best known to the petitioner, the said Chowkidar was not examined to establish the act of voluntary sexual intercourse with Kumar. Non- examination of Chowkidar, who is an independent witness, is fatal.
16. The trial Court, after appreciation of evidence, disbelieved the evidence on record assigning its own reasons, concluded that the petitioner failed to prove the factum of the respondent's voluntary participation in sexual intercourse with Kumar and the said finding does not call for interference of this Court even after reappraisal of entire evidence. The alleged love letter marked as Ex.A1 is not relevant for deciding the real controversy in the present petition, as the said letter is prior to filing of O.P.No. 50 of 1997 and the said act is already condoned by the petitioner, even if true.
17. One of the major contentions urged before this Court by learned counsel for the respondent is that adulterer is a necessary party to the petition as co-respondent and, if any finding is recorded against the respondent about voluntary participation in sexual intercourse with Kumar, it is nothing but stigmatizing the character of the said Raj Kumar @ Kumar in his absence. Therefore, his presence is necessary. The relevant Rule, which deals with impleading of adulterer as co-respondent, is Rule 8 which reads as follows:
"Co-respondent – (1) Where a husband's petition alleges adultery on the part of respondent, the alleged adulterer shall if he is living be made a co- respondent in the petition:
Provided, however, that in case the adulterer's name, identity or whereabouts are unknown to the petitioner inspite of reasonable inquiries made and the Court is satisfied that it is just and expedient so to do, it shall, on the application of the petitioner, dispense with the naming of the co- respondent.
(2) In every petition under Section 13 (2) of the Act, the petitioner shall make 'the other wife' mentioned in that Section a co-respondent.
(3) In every petition under Section 11 of the Act, on the ground, that the condition in Section 5 (i) is contravened, the petitioner shall make the spouse, alleged to be living at the time of the marriage, a co-respondent."
According to the said Rule, if identity particulars of adulterer are known, he must be impleaded as a co-respondent to the petition and, if, for any reason, name, identity or whereabouts of adulterer are not known in spite of reasonable inquiries made, the Court, if satisfied, may dispense with naming of the adulterer as co-respondent. In the instant case on hand, name and address particulars of the alleged adulterer are known to the petitioner since he is also working in the same building but in different capacity. Despite knowledge about name and address particulars of the adulterer, the petitioner did not implead him as co-respondent as required under Rule 8 (1) of the Rule framed under the Act of 1955. When a similar question came up for consideration before a Division Bench of this Court in Ch.Padmavathi
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Vs. Ch.Sai babu , this Court held that impleading of adulterer is mandatory since the language used in Rule 8 (1) mandates impleading of adulterer, more particularly the word 'shall' indicates that presence of adulterer is necessary. Otherwise, it amounts to stigmatization of his character in his absence and it would adversely affect the interests of adulterer. An opportunity should be provided to him to defend himself to disprove the claim of adultery by applying the concept of principles of natural justice and for proper adjudication of the cause which affords a ground for divorce. In,
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earlier judgment, Mirapala Venkataramana Vs. Mirapala Peddiraju , a Division Bench of this Court, had an occasion to deal with a similar issue, held that "In a case for divorce basing on adultery, the adulterer is a necessary party and ought to the made as second respondent."
18. Learned counsel for the petitioner mainly contended that after amendment to the Act of 1955, the word "living in adultery" is, deleted, substituted by the word "had voluntary sexual intercourse with any person other than his/her spouse". In view of the amendment, Rule 8 is required to be amended suitably because question of adultery in the present provision does not arise and there is a difference between voluntary sexual intercourse and adultery. The offence adultery is defined under Section 497 of the Indian Penal Code, 1860 (for brevity, 'I.P.C.'), as follows:
"Whoever has sexual intercourse with a person who is and who he knows or has reason to believe to be the wife of another man, without the consent or connivance or that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor."
The language used under Section 497 I.P.C. and Section 13 (1) (i) of the Act of 1955 may be different but voluntary sexual intercourse with any person other than his/her spouse amounts to adultery. The purport of both the Sections is almost similar. The purport of Section 13 (1) (i) of the Act of 1955, as it stood prior to amendment in 1976, is "Adultery" which means participating in sexual intercourse. Even after amendment in 1976, the substituted word is nothing but incorporating the meaning of adultery. So, it makes no difference and, still, the same Rule i.e. Rule 8 is applicable till it is amended or deleted. The contention of the petitioner is unsustainable; if any finding is recorded about voluntary sexual intercourse of the respondent with Kumar, paramour of the respondent, in his absence, it is nothing but violation of principles of natural justice as no opportunity is afforded to the said Kumar, the alleged adulterer, to defend himself; such finding would stigmatize his character and it will have its own impact both in social and personal life. Hence, in the absence of adulterer, no finding be recorded by this Court about voluntary sexual intercourse of the respondent with the said Raj Kumar @ Kumar. Hence, on this ground alone, the petition is liable to be dismissed. The argument of learned counsel for the petitioner is not legally valid because the language used under Section 13 (1) (i) of the Act of 1955, both prior to amendment and after amendment, is almost similar to the language used under Section 497 I.P.C. and the person, who had sexual intercourse either under Section 497 I.P.C. or Section 13 (1) (i) of the Act of 1955, is an adulterer. Therefore, the amendment to the Act of 1955 would not change the position of adulterer. Thus, he is a necessary party and, in his absence, we are not inclined to record any finding as it would adversely affect his character, social and personal life. Hence, on this ground alone, the petition deserves to be dismissed and the finding of the trial Court does not call for interference of this Court. Accordingly, the point is answered in favour of the respondent and against the petitioner.
19. In Re. Point No. 2:
The second ground urged by the petitioner for grant of divorce is mental cruelty. The specific acts or omissions attributed to the respondent are that, on several occasions, the respondent insulted the petitioner in public, which caused mental agony, and her act of developing illicit contact with Raj Kumar @ Kumar also caused mental agony but, here, no finding is recorded with regard to voluntary sexual intercourse with Raj Kumar @ Kumar disbelieving the ground of adultery in the earlier point. Hence, it is not a ground to grant a decree of divorce under Section 13 (1) (ia) of the Act of 1955.
20. The second attribution made to the respondent is that she insulted the respondent in public many times but no specific instance is disclosed with details as required under Order VI Rule 2 of the Code of Civil Procedure except making a bald statement in the petition about insulting him in public. Even in the evidence of the petitioner, he did not disclose specific instances of insult, which caused mental agony, amounted to mental cruelty. When the petitioner sought divorce on the ground of mental cruelty under Section 13 (i) (ia) of the Act of 1955, it is for him to prove the mental cruelty attributed to the respondent by placing reliable evidence on record. Except the ipse dixit of P.W.1, no other material is brought on record to establish the same.
21. The word cruelty is not defined anywhere under the Act of 1955.
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However, in Savitri Pandey Vs. Prem Chandra Pandey , the Apex Court defined the word cruelty as follows:
"Cruelty has not been defined under the Act but in relation to matrimonial matters it is contemplated as a conduct of such type which endangers the living of the petitioner with the respondent. Cruelty consists of acts which are dangerous to life, limb or health. Cruelty for the purpose of the Act means where one spouse has so treated the other and manifested such feelings towards her or him as to have inflicted bodily injury, or to have caused reasonable apprehension of bodily injury, suffering or to have injured health. Cruelty may be physical or mental. Mental cruelty is the conduct of other spouse which causes mental suffering or fear to the matrimonial life of the other. “Cruelty”, therefore, postulates a treatment of the petitioner with such cruelty as to cause a reasonable apprehension in his or her mind that it would be harmful or injurious for the petitioner to live with the other party. Cruelty, however, has to be distinguished from the ordinary wear and tear of family life. It cannot be decided on the basis of the sensitivity of the petitioner and has to be adjudged on the basis of the course of conduct which would, in general, be dangerous for a spouse to live with the other. The averments made in the petition and the evidence led in support thereof clearly show that the allegations, even if held to have been proved, would only show the sensitivity of the appellant with respect to the conduct of the respondent which cannot be termed more than ordinary wear and tear of the family life."
In Samar Ghosh Vs. Jaya Ghosh
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, the Apex Court, while defining the word cruelty, laid down some instances of human behavior relevant for dealing with cases of mental cruelty and gave illustrative instances though not exhaustive, which are 14 in number. However, 9th illustration therein, which is relevant to the present case, is extracted hereunder:
"(ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day-to-day life would not be adequate for grant of divorce on the ground of mental cruelty."
[12]
In Naveen Kohli Vs. Neelu Kohli , the Apex Court, defining the word 'cruelty', held as follows:
"To constitute cruelty, the conduct complained of should be "grave and weighty" so as to come to the conclusion that the petitioner spouse can not be reasonably expected to live with the other spouse. It must be something more serious than "ordinary wear and tear of married life". The conduct taking into consideration the circumstances and background has to be examined to reach the conclusion whether the conduct complained of amounts to cruelty in the matrimonial law. Conduct has to be considered, in the background of several factors such as social status of parties, their education, physical and mental conditions, customs and traditions."
Thus, the consistent view of the Apex Court in various judgments is that cruelty creates reasonable apprehension in the mind petitioner that it is harmful or endangerous for him/her to live with other spouse. The only allegation made against the respondent is insulting him in the midst of public but no person among the general public was examined to prove the insult which created such apprehension. In the absence of any evidence, it is difficult for this Court to believe the mental cruelty attributed to the respondent so as to grant a decree of divorce. In Dr. (Mrs.) Malathi Ravi, M.D. Vs. Dr. B.V.Ravi, M.D., the Apex Court, after reviewing entire law on cruelty, held in para No. 37 as follows:
"For the present, we shall restrict our delineation to the issue whether the aforesaid acts would constitute mental cruelty. We have already referred to few authorities to indicate what the concept of mental cruelty means. Mental cruelty and its effect cannot be stated with arithmetical exactitude. It varies from individual to individual, from society to society and also depends on the status of the persons. What would be a mental cruelty in the life of two individuals belonging to particular strata of the society may not amount to mental cruelty in respect of another couple belonging to a different stratum of society. The agonized feeling or for that matter a sense of disappointment can take place by certain acts causing a grievous dent at the mental level. The inference has to be drawn from the attending circumstances."
In view of the principle enunciated in the above judgment, mental cruelty depends upon reaction, type of life, the parties are accustomed to or other economic and social conditions, their culture and human values to which they attach importance, judged by standard of modern civilization in the background of cultural heritage and traditions of society of individuals. Therefore, while deciding the act of mental cruelty, the Court has to take into consideration several factors referred. In the instant case on hand, no reliable evidence is brought on record to believe the act of mental cruelty which affords a ground to grant divorce. Even otherwise, the attribution of insult of the petitioner by the respondent in public is only a family wear and tear or trivial irritation in family life which would not amount to cruelty affording a ground to grant decree of divorce under Section 13 (1) (ia) of the Act of 1955.
22. Learned counsel for the petitioner mainly contended that the respondent always participates in sexual intercourse other than him which would cause mental agony. No doubt, in normal course of events, no husband will tolerate participation of wife voluntarily in sexual intercourse with third person and it would cause mental agony to any ordinary prudent husband but, here, such acts are not proved. On the other hand, the respondent also made several allegations attributing illicit contact to her husband and produced several letters. Taking advantage of the specific contentions raised by the respondent in the counter, learned counsel for the petitioner contended that unwarranted allegations made in the counter by the respondent, which remained not proved, are sufficient to hold that the respondent treated the petitioner cruelly as those allegations hurt the feelings of the petitioner and caused mental agony. In the present case, there is no pleading that such attributions made in the counter caused mental agony. If a rejoinder is filed, denying those allegations, after obtaining permission from the Court under Order VIII Rule 9 of C.P.C., the trial Court would have framed an issue calling the respondent to prove those allegations but those allegations were not put to an issue by the trial Court calling upon the respondent to prove those allegations made against the petitioner. In the absence of an issue before the trial Court and a finding thereon, the allegations made in the counter would not form a basis for grant of divorce under Section 13 (1) (ia) of the Act of 1955. Learned counsel for the petitioner, in support of his contention, placed reliance on the judgment
[13]
between B.Srinivasulu Vs. Mrs. Veena Kumari , wherein a Division Bench of this Court held that wife making unethical and unholy allegations linking up character of husband with character of sister-in-law amounts to mental cruelty and entitled to a decree of divorce on that ground. In the
[14]
earlier judgment between Naval Kishore Somani Vs. Poonm Somani , a Division Bench of this Court took a different view on this aspect holding that, if such allegation is put to an issue calling upon the person who made such allegation to prove, in the event of failure to prove such unholy allegation, that is a ground for grant of divorce. In view of the dichotomy between these two judgments, it is difficult for us to uphold the contention for the reason that the Court cannot travel beyond pleadings and grant relief in any civil proceeding, as a general rule, as held in State of Maharashtra Vs.
[15]
Hindustan Construction Company Limited and Kalyan Singh
[16]
Chouhan Vs. C.P. Joshi consistently ruled as follows:
"Pleadings and particulars are required to enable the Court to decide the rights of the parties in the trial. Thus, the pleadings are more to help the Court in narrowing the controversy involved and to inform the parties concerned to the question in issue, so that the parties may adduce appropriate evidence on the said issue. It is a settled legal proposition that "as a rule, relief not founded on the pleadings should not be granted". Therefore, a decision of a case cannot be based on grounds outside the pleadings of the parties. The pleadings and issues are to ascertain the real dispute between the parties to narrow the area of conflict and to see just where the two sides differ."
[17]
I n Union of India Vs. Ibrahim Uddin and another , the Apex Court held that "Relief not founded in pleading cannot be granted. A decision of a case cannot be based on ground outside the pleadings of the parties. No evidence is permissible to be taken on record in absence of pleadings in that respect. No party can be permitted to travel beyond its pleadings and that all necessary and material facts should be pleaded by the parties in support of the case set up by it."
It was further held as follows:
"Where evidence was not in lines of pleadings, the said evidence cannot be looked into or relied upon."
If the principle laid down by Apex Court is applied to the present facts of the case, there is no pleading by way of rejoinder, under Order VIII Rule 9 of C.P.C., denying such unholy allegations made against the petitioner. The Court cannot make out a case basing on the allegations made in the counter filed by the respondent and grant relief. Hence, we see no substance in the contention of learned counsel for the petitioner to grant a decree of divorce on the ground that the respondent made unholy allegations which caused mental agony to the petitioner.
23. On overall consideration of entire material available on record, we find no substantive evidence to establish the alleged mental cruelty by the acts or omissions of the respondent. Therefore, we find no legal infirmity in the finding recorded by the trial Court warranting interference of this court in this appeal. Hence, we are, totally in concurrence with the finding of the trial Court, holding this point in favour of the respondent and against the petitioner.
24. In view of our foregoing discussion, we find that the appeal is devoid of merits and deserves to be dismissed.
25. In the result, the appeal is dismissed confirming the order and decree dated 18-07-2003 passed in O.P.No. 69 of 1998 on the file of the Court of Additional Senior Civil Judge, Ongole, Prakasam District. Pending miscellaneous petitions in this appeal, if any, shall stand dismissed in consequence. No order as to costs.
RAMESH RANGANATHAN, J.
M.SATYANARAYANA MURTHY, J.
Date: September, 2014. JSK
[1] MANU/KE/0191/1983
[2] AIR 1958 SC 441
[3] (1948) 77 C.L.R. 191
[4] AIR 1975 SC 1534
[5] 1994 (2) ALT 356
[6] 2014 (4) ALD 547 (DB)
[7] AIR 2008 SC 1460
[8] 2013 (2) ALT 634 (D.B.)
[9] 2000 (1) ALT 540 (D.B.)
[10] AIR 2002 SC 591
[11] 2007 (4) ALD 11 (SC)
[12] AIR 2006 SC 1675
[13] AIR 2008 AP 20
[14] 1998 (5) ALT 234 (D.B.)
[15] 2010 (4) SCC 528
[16] AIR 2011 SC 1127
[17] 2012 (8) SCC 148