Jasumati Gorhanbhai Vaghela v. Priyakant Meghijibhai Vaghela
1985-09-20
A.S.QURESHI
body1985
DigiLaw.ai
JUDGMENT : A.S. Qureshi, J. The appellant herein is the wife who was the original opponent No. 1 in the Trial Court. Present respondent No. 1 is the husband who had filed the petition for divorce in the Trial Court on the ground that the appellant wife had committed adultery with present respondent No. 2 who was original opponent No. 2 in the trial court. 2. Appellant-Jasumati Gordhanbhai Vaghela (herein referred to as the wife') was married to present respondent No. 1 Priyakant Meghjibhai Vaghela (hereinafter referred to as the husband') on 18th May, 1978 at Bhavnagar according to the rites and custom of Harijan Bhangi Samaj to which the parties belong. It is the case of the husband that the wife stayed with him for a very short while as his wife. There seems to have been (Appellant) quarrel between the two as character was suspect in the eyes of her in-laws. The wife stayed at her father's place for a considerable time. According to her, her husband did not call her to go and live with him at Amreli, hence she sent an application to the President of her Samaj at Bhavnagar. The President of Samaj is Dr. Kantaben Vanmalidas who is also a Medical practitioner for last 40 years. She is General Practitioner and runs a maternity home. On receiving the application, dated 22nd April, 1982 (Exh. 40) Dr. Kantaben sent for the husband and his father and persuaded them to call the wife. The father of the husband had agreed that the matter may be settled in presence of the father of the wife. Dr. Kantaben called the father of the wife also who sent a reply stating that he was busy with some social engagements and, therefore, he would come after few days. In the meantime the wife is said to have gone away from Bhavnagar to Botad in company of Dhirubhai Chimanlal, present respondent No. 2. Dr. Kantaben on coming to know about the escapade called the wife and the second respondent from Botad. The couple came back from Botad and met Dr. Kantaben who scolded both of them. She told the wife that it was highly improper on her part to go away with another man when she was lawfully wedded wife of the original petitioner.
Kantaben on coming to know about the escapade called the wife and the second respondent from Botad. The couple came back from Botad and met Dr. Kantaben who scolded both of them. She told the wife that it was highly improper on her part to go away with another man when she was lawfully wedded wife of the original petitioner. She also scolded the second respondent that it was highly improper on his part to elope with the wife of somebody else. Dr. Kantaben even after knowing about the escapade of the wife and the second respondent still made efforts to see that the wife is accepted by the husband but she found that her efforts could not bear any fruits and therefore, she closed the chapter. The husband therefore filed divorce Petition in the trial court. 3. The trial court after recording the evidence of several witness and evaluating the some, came to the conclusion that the petitioner had proved that the wife had committed the act of adultery and, therefore he granted decree of divorce to the husband. Against the said order of the trial court the wife has come in appeal to this Court. 4. Mr. D. U. Shah, the learned counsel for the appellant has read all important evidence in the case and urged that taking the evidence as a whole, it cannot be said that the act of adultery by the wife has been proved by the husband. Mr. Shah has commented adversely on the evidence of Dr. Kantaben to show that her evidence is not reliable and the same must not be accepted. He has pointed out that the witness Dr. Kantaben has accepted the version that the wife and the second respondent had gone away to Botad without trying to find out as to whether in fact they had gone there and if so when did they go, for how many days they stayed there and when did they come back to Bhavnagar. Mr. Shah has urged that Dr. Kantaben's evidence does not establish the act of adultery. With regard to the other witnesses examined by the petitioner, also Mr. Shah urged that it does not prove the act of adultery is baseless and the petitioner has not been able to prove the same and, therefore, the decree of divorce granted by the trial Court is untenable and must be set aside. 5.
With regard to the other witnesses examined by the petitioner, also Mr. Shah urged that it does not prove the act of adultery is baseless and the petitioner has not been able to prove the same and, therefore, the decree of divorce granted by the trial Court is untenable and must be set aside. 5. Mr. B.C. Patel, the learned counsel of respondent No. 1 has urged that in the facts and circumstances of that case the trial Court is justified in granting decree of divorce. He was submitted that the evidence of Dr. Kantaben is reliable and must be accepted as correct. According to Mr. Patel, Dr. Kantaben is a disinterested witness and looking to her status as registered Medical Practitioner for 40 years and that she is the President of the Samaj to which the parties belong, she has maintained an impartial an and disinterested stand. Mr. Patel has pointed out that Dr. Kantaben has done her best to see that the break-up between the present appellant and respondent No. 1 is averted and, therefore, she has favoured the wife by suggesting that whatever has happened, may be overlooked and the husband and wife should come together. Mr. Patel has also urged that the appellant-wife did not want to come and live with respondent No. 1 husband and, therefore, when she began to realise that she will have to go to live with her husband, she eloped with respondent No. 2 who is her neighbour and both of them known each other since childhood. Mr. Patel, therefore, submits that from these circumstances an irresistible conclusion can be drawn that the appellant-wife and second respondent had eloped with a view to have sex relations between them and thereby to make the way clear for the wife in getting divorce from her husband. 6. There is no doubt that witness Dr. Kantaben is a disinterested witness and as a social worker she is lady of good will who had done her best to see that the appellant-wife and respondent No. 1 husband for give and forget what had happened in the past and live together as husband and wife. By no stretch of imagination, could it be said that Dr. Kantaben has taken up a partisan stand. The submission of Mr. Shah, therefore, must be rejected so far as the evidence of his witness Dr. Kantaben is concerned. 7.
By no stretch of imagination, could it be said that Dr. Kantaben has taken up a partisan stand. The submission of Mr. Shah, therefore, must be rejected so far as the evidence of his witness Dr. Kantaben is concerned. 7. The crucial point to be decided in this matter is whether the petitioner husband has been able to prove that act of adultery against the wife. Both the learned counsels of the parties are agreed that the only circumstances from which the adultery could be inferred, is the escapade by the wife and the second respondent Botad. It is true that the mere fact of a woman going away with another man to a different town and be away from her father's house as well as her husband's place, does not necessarily and conclusively establish that there was adulterous relationship between the two Something more is required to show that the relationship between the two has reached a point where the adultery could be safely inferred. Looking to the facts and circumstances of this case it becomes clear that the appellant-wife and the second respondent had known each other since childhood as they are neighbours at Bhavnagar. There seems to be some close family relationship and hence there is a photograph exh. 80 wherein the second respondent is found sitting with the appellant-wife in the family group photograph. The conduct of the second respondent in taking out a party of the group photograph where in he is shown to be sitting close to the appellant-wife and showing it to the husband and telling him that he has love affair with the appellant wife and that he intends to marry her, shows the second respondent had intimacy with the appellant wife and that he wanted to see that the husband gets prejudiced and divorces her so that the appellant-wife may be free to marry the second respondent. Again the second respondent going to Dr. Kantaben at Bhavnagar in company of the appellant-wife shows that both, the second respondent and the appellant wife were acting concert, aiding, and abetting each other in creating an impression that they desired that the appellant-wife may be divorced and the second respondent may be able to marry her.
Again the second respondent going to Dr. Kantaben at Bhavnagar in company of the appellant-wife shows that both, the second respondent and the appellant wife were acting concert, aiding, and abetting each other in creating an impression that they desired that the appellant-wife may be divorced and the second respondent may be able to marry her. Although it is not clear from the evidence on record as to when did the appellant wife and the respondent go to Botad to when did they came back to Bhavnagar, or, whether they went to some other places as well or for how many days they were away, the fact remains that this escapade was a joint venture of both. It does not appear that the appellant wife was a reluctant or an unwilling party to this affair. In her evidence she has made innumerable false statements. At first she denied that she was ever photographed with the second respondent. She also denied that she ever went away with the second respondent. She even stated that her relationship with the second respondent was that of brother and sister. At one stage she even stated that did not know the second respondent at all at any time. All these statements are proved to be false. Therefore, in the circumstances of the case it must be inferred that looking to the nature of the intimacy between the appellant-wife and the second respondent, the act of adultery must have been committed by them when they had gone away to Botad from Bhavnagar. It is more so because the incident was participated by the fact that the appellant wife was almost about to be sent to her husband's place to resume matrimonial life. To avert that, it seems that she contrived this incident of a planned escapade from Bhavangar to Botad with the second respondent with whom she had familiarity since childhood. The pretence that she did not know the second respondent at all and then subsequently to say that her relationship with him was that of the brother and sister shows that she could go to any length not only in telling falsehood but also in crossing all limits of decency. In the circumstances the inference of adultery is irresistible. 8.
The pretence that she did not know the second respondent at all and then subsequently to say that her relationship with him was that of the brother and sister shows that she could go to any length not only in telling falsehood but also in crossing all limits of decency. In the circumstances the inference of adultery is irresistible. 8. The trial Court was fully justified in coming to the conclusion that the petitioner-husband has proved the adultery of his wife and granting decree of divorce. Although the result of this finding is quite unfortunate, but on the evidence on record no other finding could be recorded. 9. In the result the appeal fails and is dismissed. The judgment and decree passed by the trial court is confirmed. In the circumstances of the case, there will be no order as to costs. Appeal dismissed.