Research › Search › Judgment

Gauhati High Court · body

2001 DIGILAW 34 (GAU)

Kripesh Ranjan Nath v. Sukla Rani Nath

2001-02-15

J.N.SARMA

body2001
This appeal has been filed under section 28 of the Hindu Marriage Act against the judgment dated 4.2.94 passed by the learned District Judge, Cachar at Silchar in Title Suit 33 of 1989. 2. A suit was filed by the husband for dissolution of the marriage under section 13 (1) of the Hindu Marriage Act. The case of the plaintiff was that the wife behaved cruelly to the husband as well as to his mother and taking advantage of the absence of the husband due to exigency of service, she engaged herself into immoral activities and being warned she gave an undertaking in writing not to repeat such things. Thereafter she deserted the house of the plaintiff on 6.6.84 by taking away all her materials/belongings including ornaments given by husband. On the next date i.e. 7.6.84 an ejahar was lodged in the police station. Thereafter several notices were served through lawyer to the wife asking her to come back, but she did not come back. A written statement was filed by the wife wherein she denied all the allegations, rather she brought a fresh allegation against the husband stating that the husband maintained illicit relationship with one, Alpana Nath, the daughter of his maternal uncle and even they shared the same bed. Regarding the undertaking stated to be given by her, she stated that she was forced to sign a blank paper on the false plea of opening a bank account in her name and thereafter it was fabricated into a false document. It is the case of the wife that she never deserted the plaintiff, rather she was driven out from the house of the plaintiff causing mental and physical torture. 3. As many as 6 issues were framed. The plaintiff examined 6 witnesses and exhibited 7 documents. PW1 Sanahar Ali. He only deposed that on a morning when he was ploughing the field, he saw a married lady going out of the house of the plaintiff with three bags. In the cross examination he categorically stated that he did not know the wife of the plaintiff and he deposed as follows : "I have never seen Kripesh's wife leaving his house." PW 2 Kripamay Nath. He deposed that on 5.6.84 the defendant left for her paternal house early in the morning with her belongings. In the cross examination he categorically stated that he did not know the wife of the plaintiff and he deposed as follows : "I have never seen Kripesh's wife leaving his house." PW 2 Kripamay Nath. He deposed that on 5.6.84 the defendant left for her paternal house early in the morning with her belongings. So it was known that she left for her father's house and what was the necessity to lodge an ejahar is not understood. It is further clear from the evidence of this witness that the plaintiff sometime used to abuse her. PW 3 is Kripesh Ranjan Nath. He deposed that he came to know that she left the house with her belongings without informing anybody and further she engaged herself in immoral activities having illicit relation with one Budul Nath, the servant and even she gave a written undertaking not to repeat such activities. The trial Court rightly disbelieved the deposition made by this witness as there was no corroboration with the statement made by other witnesses. Nothing is there that it was stated by the brother or other members of the family. So, it was rightly disbelieved by the trial Court. PW 4 is Girindra Nath, PW 5 Sunil Nath, PW 6 is Ranjoy Rajbongshi. 4. The defendant only examined herself as DW 1. A bare perusal of Ext 1 will show that this is a concocted document. It was not written by the defendant. It was written by plaintiff. On perusal of the materials on record, the suit was dismissed by the learned District Judge. Hence this appeal. 5.1 Have heard Mr. D. Mazumdar, learned counsel for appellant and Mr. N. Choudhury, learned counsel for defendant. The settled law is that whenever an allegation of adultery is brought, it must be proved by the person who takes up mat plea. It must be noticed that after amendment of the Act in 1976, a petition for divorce can lie at the instance by the husband or wile if the other party has been after the solemnization of the marriage committed even a single act of adultery. It is not necessary now to show that the respondents is living in adultery to bring a case under this section. The direct proof of adultery is not imperative. It is not necessary now to show that the respondents is living in adultery to bring a case under this section. The direct proof of adultery is not imperative. It would be unreasonable to expect direct evidence and such evidence if brought before the Court must be suspect and is apt to be disbelieved The accepted rule, therefore, is that circumstantial evidence is all that can normally be expected in proof of the charge. The circumstances must be such as lead to it by fair interference, as a necessary conclusion, and unless this were so, no protection whatever could be given to marital rights. It is impossible to indicate those circumstances universally, because they might be infinitely diversified by the situation and character of the parties, by the state of general manners, and by many other incidental circumstances, apparently slight and delicate in themselves, but which may have important bearing upon the particular case. The only general rule upon the subject is, that the circumstances must be such as would lead the guarded judgment of a reasonable and just man to the conclusion. The facts usually are not of a complicated nature but determinable upon common grounds of reason. It is in consequence of this rule that it is not necessary to prove a fact of adultery in time and place. Nor is it absolutely incumbent on the petitioner to prove the identify of the person with whom the alleged act of adultery took place. 6. Proof required to prove adultery, need not necessarily be what is at times said proof beyond a shadow of doubt. "It need not reach certainty, but must carry a high degree of probability." The Court does not as a general rule infer adultery from evidence of opportunity alone but would require some more satisfactory proof. There must be something more than opportunity and evidence of inclination or passion is generally needed. In respect of what were known in England as the hotel bill and register cases where the evidence consisted of an entry in a hotel register and of the respondent being seen in a bed room with an unknown woman the view was expressed that the Court would insist upon evidence of back ground of an adulterous association. In respect of what were known in England as the hotel bill and register cases where the evidence consisted of an entry in a hotel register and of the respondent being seen in a bed room with an unknown woman the view was expressed that the Court would insist upon evidence of back ground of an adulterous association. Apart from evidence of opportunity there should be some evidence of disposition on the part of the respondent This latter may be proved by showing that prior or subsequent to the alleged fact there had been improper familiarity between the parties or other circumstantial facts. Evidence of the conjunction of strong inclination or disposition and opportunity would be strong prima facie evidence but there is no rule of law that such evidence raises an irrebuttable presumption that adultery has been committed. The mere fact that some male relation of the respondent had written most improper letters to her is not of itself sufficient to prove adultery. 7. There is a saying that adultery may be assumed when a man and woman is found in a dark room alone as in such a case there can be no presumption that a they have gone there for pray, In view of that matter, the learned District Judge rightly found that the plea of adultery was not established. 8. The next question comes the question of desertion. We must bear in mind that desertion in order to be a material evidence must be animus deserendi. If someone is forced or pushed back to the wall and for that the wife left her £ husband's house, that cannot be deemed to be desertion because the law is that one cannot take advantage of his own misdeeds or misconduct and it was rightly found by the learned District Judge that there was no desertion. 9. The next thing which comes up for determination is whether alimony can be given under section 25 of the Act in view of the rejection of the petition of husband for divorce. The ground of alimony is necessary in such a situation inasmuch as it is the mandate of law and sacred duty of the society that no lady should be made a destitute by operation of law because of the conduct of somebody and if it comes to the notice of the Court, the Court must step in such a case. The ground of alimony is necessary in such a situation inasmuch as it is the mandate of law and sacred duty of the society that no lady should be made a destitute by operation of law because of the conduct of somebody and if it comes to the notice of the Court, the Court must step in such a case. That is what I want to do. During the pendency of the suit, maintenance was being paid though a very meagre amount. The husband is a Forest Guard . and as on today he is drawing salary of Rs. 4,500/- per month. In view of that matter, I direct in exercise of my equitable power, to pay Rs. 500/- per month to the wife. This order I am passing as indicated above in view of the fact that the Courts are the Courts of equity and if without violating some statutory prohibition, an equitable order can be passed, that should be done by the Court and that is what I have done. 10. With this observation, this appeal shall stand dismissed.