A. Manuel v. K. Maria Goretti — 1998 DIGILAW 1053 (MAD)

Judgment :- SHIVARAJ PATIL, J. 1. The petitioner is the husband of respondent No. 1. He filed Original Petition No. 46 of 1994 in the Court of the District Judge of Nilgiris at Udhagamandalam under Section 10 of the Indian Divorce Act, praying for a decree of divorce, dissolving the marriage between himself and the first respondent which had taken place on 5.9.1981. It is the case of the petitioner that the petitioner and first respondent being Christians, they married on 5.9.1981 as per Christian rites at Sacred Heart Church, Udhagamandalam. Out of the wedlock three daughters were born to them. They were all living together near Savoy Hotel till 28.5.1993. First respondent left the marital home along with the children after quarrelling with the petitioner on 28.5.1993. Since then the first respondent has been living separately. 2. The first respondent developed illegal intimacy with the second respondent. On 25.12.1993 at about 7.00 P.M., the petitioner went to the first respondents house with sweets for the children. The door was locked from inside, and he peeped through the window. To his shock, he saw that both the respondents were lying in a compromised position on the floor. He shouted and the first respondent opened the door after some time. The second respondent was hiding in the bathroom. The petitioner beat him severely. The owner of the house Shri Augustine, hearing the commotion, came down and separated the petitioner and the second responddent. Respondent No. 1 was leading an adulterous life. Hence the petition for divorce was filed. 3. The first respondent filed counter stating that the averment in the petition that she left the marital home after quarrelling; with the petitioner was false. On 28.5.1993 the petitioner beat the respondent and the children in a drunken mood and chased them away in the night. She denied the allegation that the petitioner visited the first respondents house on the Christmas day with sweets to the children and that the door was locked from inside. She also denied that the first respondent was lying in a compromised position with the second respondent. Similarly she denied the other allegations that the petitioner shouted: The first respondent opened the door; second respondent was hiding in the bath-room, the petitioner beat him; and that the house owner Augustine came and separated them. She also denied that the first respondent was lying in a compromised position with the second respondent. Similarly she denied the other allegations that the petitioner shouted: The first respondent opened the door; second respondent was hiding in the bath-room, the petitioner beat him; and that the house owner Augustine came and separated them. First respondent stated that the petitioner had illicit intimacy with one Shanthi; he used to bring her to the house; when first respondent questioned the petitioner, he used to beat her and the children. 4. The second respondent also filed counter denying the allegations made by the petitioner as false. He stated that he is the cousin brother of first respondent. Thus both the respondents prayed for dismissal of the petition. 5. In the Court below, the petitioner was examined as P.W.1 and Shri Augustine-owner of the house as P.W.2, and three documents, viz., copy of the notice issued by the petitioners counsel to the first respondent, reply notice, and rejoinder were marked as Exs. A1 to A3. First respondent examined herself as R.W.I. Appreciating the evidence brought on record, and in the light of the submissions made by the learned counsel for the parties, the learned District Judge allowed the petition dissolving the marriage between the petitioner and the first respondent, subject to confirmation by this Court. 6. The learned counsel for the petitioner argued in support and justification of the order passed by the Court below granting the decree. 7. On the other hand learned counsel for the first respondent strongly contended that the petitioner did not substantiate the averments made in the petition; the material placed on record is totally inadequate and insufficient to accept the allegation that the first respondent was having illicit intimacy with the second respondent; there is no corroborating evidence or circumstance. He also submitted that there is inconsistency between the pleadings and the evidence of P.Ws. 1 and 2. According to the learned counsel for the first respondent, the learned District Judge committed an error in dissolving the marriage dated 5.9.1981 of the petitioner with the first respondent. 8. We have considered the submissions made by the learned counsel for the parties. 9. 1 and 2. According to the learned counsel for the first respondent, the learned District Judge committed an error in dissolving the marriage dated 5.9.1981 of the petitioner with the first respondent. 8. We have considered the submissions made by the learned counsel for the parties. 9. The facts not in dispute are the petitioner and the first respondent got married as per the Christian rites on 5.9.1981; out of their wedlock three female children were born; they were 10, 12 and 14 years of age as on 28.2.1996 when the first respondent was examined as witness; the petitioner and first respondent were living together up to 27.6.1993 i.e., almost for a period of 12 years; first respondent has filed a suit M.C. No. 7 of 1994 for maintenance prior to the filing of the present O.P. No. 46 of 1994 by the petitioner under Section 10 of the Indian Divorce Act, 1869, the petitioner and first respondent-both are employed; and the first respondent gets higher salary than the petitioner. 10. In the light of these admitted facts, the evidence placed on record is to be appreciated. The Court below has allowed the petition filed by the petitioner on the grounds that the respondent our denied in her counter that the petitioner and second respondent had gone to the house of first respondent on 25.12.1993 but the first respondent in her evidence has admitted that the petitioner had gone with a sweet box to her house on 25.12.1993 and the second respondent had also come there on that day; P.W.2-the landlord of the house where first respondent was residing with her children spoke about the quarrel between the petitioner and second respondent and he separated them; and as such the evidence of P.W.2 corroborated the evidence of P.W.I. As far as ExsA1 to A3 are concerned, they are only notice issued by the petitioner, reply given by the first respondent, and rejoinder of the petitioner. They only indicate their respective contentions. 11. The Court below has not appreciated the evidence brought on record objectively and in a proper perspective. The learned Judge has taken the view that the first respondent admitted the presence of the second respondent at her house on 25.12.1993. They only indicate their respective contentions. 11. The Court below has not appreciated the evidence brought on record objectively and in a proper perspective. The learned Judge has taken the view that the first respondent admitted the presence of the second respondent at her house on 25.12.1993. P.W.2 also saw the second respondent and the petitioner quarrelling on 25.12.1993, barring the interested testimony of the petitioner examined as P.W.1 about the illicit intimacy of respondents 1 and 2, and, that he found them in a compromised position, there is no other evidence-circumstantial or corroborating. 12. First respondent, in her evidence, no doubt, admitted that the petitioner came to her house with sweet box on 25.12.1993. But she has specifically stated that the second respondent was not there in her house on 25.12.1993 at 7.00 P.M.; the second respondent came to the spot only on hearing the commotion created by the petitioner when he was asking the first respondent to sign on a blank paper. In the counter first respondent denied the allegation that the petitioner came on 25.12.1993 and found respondents 1 and 2 in a compromised position. 13. Even P.W.2 in his evidence stated that on 25.12.1993 at 7.00 P.M. he was in his house taking meals; the petitioner and second respondent were shouting at that time and so he came down and separated them. He has further stated that the petitioner and second respondent were quarrelling within the compound of the house and the quarrel was only wordy; none else were there except those two; there were other houses around his house, and the Government Hospital is in front of it; and at that time it was not dark at that place as electric light was burning. 14. The evidence of P.W.2 runs contrary to the evidence of P.W.1, as P.W.1 in his evidence has stated that he beat the second respondent severely and there was fracture at his wrist and P.W.2 had seen all that. P.W.2 had only seen the petitioner and second respondent shouting in the compound and not inside the house where first respondent was residing. First respondent admittedly was residing in the house with her three children aged 10, 12 and 14, and the house was small having only two rooms. It is not known what the children were doing. P.W.2 had only seen the petitioner and second respondent shouting in the compound and not inside the house where first respondent was residing. First respondent admittedly was residing in the house with her three children aged 10, 12 and 14, and the house was small having only two rooms. It is not known what the children were doing. But it has come in the evidence that at the time when the petitioner was quarrelling, they came there. 15. The evidence of P.W.1 that he peeped through the win dow as the curtain was not fully drawn and saw the respondents 1 and 2 in a compromised position cannot be accepted. If respondents 1 and 2 were to indulge in sexual intercourse, in the ordinary course, they would not have left the curtain half drawn so as to make it possible for others to see what was happening inside. His evidence cannot be accepted on this point, particularly in the absence of any other corroborative or circumstantial evidence. 16. P.W.1 in his evidence has stated that first respondent would, not hand over her salary regularly and properly; his aunt Jagatha had told him that first respondent had contact with a person. The name of the said person was not given. The said lady Jagatha was also not examined, and this fact was also not mentioned in the notice issued on behalf of the petitioner prior to the filing of the petition. 17. First respondent has specifically stated that the petitioner had illicit intimacy with one Shanthi. The petitioner was in the habit of drinking, and he had inferiority complex on getting a lesser salary than the first respondent. 18. P.W.1 has stated that he had given a complaint to the Bishop about the incident happened on 25.12.1993. Neither copy of the complaint was produced nor the Bishop was examined. Both the respondents 1 and 2 have contested the I.D.O.P. They filed counter statements denying the allegations made by the petitioner. First respondent has stated that the second respondent is her cousin. First respondent in her evidence has stated that she filed a suit M.C. No. 7/94 for maintenance for her children, and the present I.D.O.P. was filed thereafter to harass her and deny maintenance to her children. 19. First respondent has stated that the second respondent is her cousin. First respondent in her evidence has stated that she filed a suit M.C. No. 7/94 for maintenance for her children, and the present I.D.O.P. was filed thereafter to harass her and deny maintenance to her children. 19. Thus, having regard to the facts that the petitioner and first respondent lived together for 12 long years and three daughters were born to them; both of them are employed; the present petition for divorce was filed after the first respondent filed the suit for maintenance; and in the absence of satisfactory and convincing evidence, we are unable to persuade ourselves to agree with the conclusions arrived at by the Court below so as to confirm the decree. 20. In the result, for the reasons stated, the Judgment and decree passed by the learned District Judge, Nilgiris at Uthagamandalam in O.P. No. 46 of 1994 are set aside, and the petition filed by the petitioner under Section 10 of the Indian Divorce Act is dismissed.