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1993 DIGILAW 352 (MP)

Izreal Masih v. Sheela

1993-07-12

D.M.DHARMADHIKARI, P.P.NAOLEKAR, R.P.AWASTHY

body1993
Facts necessary for adjudication of the question involved in this application are that the petitioner Izreal Masih and the respondent Smt. Sheela, both professing Christian religion, were married at Raipur on 28.12.1981. The petitioner filed a petition under section 10 of the Indian Divorce Act, 1869. (hereinafter called the Act) on 11.8.1989 contending that the petitioner learnt through some persons that the respondent is leading an immoral life at Raipur and also at Jagdalpur; she is frequented with different persons at Raipur during her stay and the same life was led by her at Jagdalpur and as the respondent is leading an adulterous life, the petitioner desires to end his matrimonial relations with the respondent. The respondent entered appearance and filed her written statement denying the fact that she is leading an immoral life and frequented with different persons during her stay at Raipur and Jagdalpur. Later on, on 9.1.1992, the Court proceeded ex parte and after recording the evidence of the petitioner and his two witnesses, passed a decree for dissolution of the marriage on 4.11.1992. This decree is placed before this Court for confirmation as required under section 17 of the Act. Under section 10 of the Act, the only ground available for the husband for filing a petition for dissolution of the marriage is that the wife is guilty of adultery. Adultery is normally proved by circumstantial evidence produced by a party. The circumstantial evidence to take the place of proof should lead to a fair inference of logical and necessary conclusion. It need not lead to certainty, but must carry a high degree of probability which an ordinary man of prudence can arrive at. The petitioner has examined himself as P. W. 1 and has stated that on enquiries being made by him, he came to know that Sheela (his wife) had illicit relations with various persons at Raipur and Jagdalpur and she is leading an adultrous life. Petitioner's witness No.2 Sunder Singh in his evidence has deposed that he was informed by the petitioner Izreal Masih that Sheela Masih has illicit relations with different persons at Raipur and Jagdalpur and, therefore, he does not want to live with her. The statement of P.W. 3 Mahetar Ram is also to the same effect, when he Suited that he came to know at Raipur and Jagdalpur that the respondent has illicit relations with other persons. The statement of P.W. 3 Mahetar Ram is also to the same effect, when he Suited that he came to know at Raipur and Jagdalpur that the respondent has illicit relations with other persons. The statement of these witnesses, according to us, is not admissible in evidence. Section 60 of the Evidence Act enacts the general English rule that hearsay is no evidence. Hearsay is the evidence which does not derive its value from the credit given to witness himself, but rests upon also in part on the veracity and competence of some other person. The test to distinguish between direct and hearsay evidence is this: 'it is direct, if, to act upon it, the Court has to rely upon only the witness, whereas it is hearsay if it has to rely upon not only the witness but some other person also. The witnesses examined by the petitioner states that they were informed by somebody else that the respondent is living an adultrous life and she has illicit relations with different persons at Raipur and Jagdalpur. These witnesses have deposed on the information given by some other persons who have not been examined as witnesses and in case of P.W. 2 Sunder Singh by the husband, i.e. the petitioner, who himself was informed by some other persons. The statement of these witnesses is not admissible, although relied upon by the Court below for passing the decree of divorce. Besides the admissibility of the evidence, the bald statement of petitioner that the respondent was living an adultrous life and has illicit relations with other persons at Raipur and Jagdalpur cannot be believed. There is no evidence on record that the information given by some other persons was verified by the petitioner himself. The statement of the petitioner also does not mention as to who are those persons from whom he has received such information. The persons said to have given information to the petitioner have also not been examined. In the circumstances, without there being any other cogent evidence to support the statement of the petitioner, the fact that the respondent Sheela was living an adultrous life cannot be believed. The respondent Sheela was living with her parents at Raipur and after her father's transfer to Jagdalpur, she was living with them at Jagdalpur, as admitted by the petitioner himself. The respondent Sheela was living with her parents at Raipur and after her father's transfer to Jagdalpur, she was living with them at Jagdalpur, as admitted by the petitioner himself. A lady living with her parents in the normal circumstances would not lead an adultrous life. Apart from the statement of the three witnesses, nothing has been brought to our notice which would lead us to the conclusion that the respondent-wife Sheela was leading an adultrous life. The finding arrived at by the trial Court is perverse and deserves to be set aside. Decree not confirmed.