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2012 DIGILAW 1722 (JHR)

Bijesh Kumar Sahu v. Asha Prasad

2012-12-13

JAYA ROY, PRAKASH TATIA

body2012
JUDGMENT I.A. No. 1876 of 2004 Jaya Roy, J. – Heard the counsel for the parties. Appellant has filed an application under Order 41 Rule 27 of the Code of Civil Procedure and seeks indulgence of this Hon'ble Court to produce additional evidence in this appeal. The learned counsel for the appellant has submitted there is a letter written by the sister of respondent herein which was received by the appellant on 18.2.2002, from perusal of this letter written by Ms. Usha, the own sister of the respondent, it would be evident as to how the respondent has been entangled with other person having illicit relationship. This letter could not be produced because the appellant tried his level best to search it out but it could be traced during the course of trial. The said letter is annexed in this application as Annexure-1. 2. Admittedly the said letter is received by the appellant on 18.2.2002 and the appellant has filed the Title Suit in concerned Court in the year 2003 i.e. Matrimonial Title Suit No. 26 of 2003. It is clear from the submission of the appellant that before filing of the aforesaid suit, the appellant had received the said letter (Annexure-1) and it is unbelievable that the appellant could not trace out the said letter during the whole trial period. Therefore, it cannot be said that the said documentary evidence was not within his knowledge or he could not receive due to which he could not exhibit the said document in the suit. The basic principle of admission of additional evidence is that the person seeking the admission of additional evidence should be able to establish that with the best efforts such additional evidence could not have been adduced at the first instance. The provision of Order 41 Rule 27 does not authorise the party to fill up any lacunae or gap in evidence so as to patchup the weak points in the case. Therefore, we do not find any merit in this application. Accordingly the I.A. No. 1876 of 2004 is dismissed. 3. Heard the learned counsel for the appellant and the learned counsel for the Respondent. 4. Therefore, we do not find any merit in this application. Accordingly the I.A. No. 1876 of 2004 is dismissed. 3. Heard the learned counsel for the appellant and the learned counsel for the Respondent. 4. The plaintiff-appellant has preferred this appeal against the Judgment dated 8.6.2004 passed by the learned Principal Judge Family Court, Ranchi in Title Matrimonial Suit No. 26 of 2003 whereby the Principal Judge dismissed the appellant's suit filed under Section 13 (1) (ia) of the Hindu Marriage Act, 1955 against the respondent (his wife) on the ground of adultery. 5. The appellant's case in brief is that he was married to respondent Asha Prasad on 10.7.1995 according to Hindu customs and rituals. After marriage they lived together but subsequently, the appellant came to know that his wife was a lady of questionable character. It is alleged that in October, 1995, when the appellant returned from Patna, he saw his wife sleeping with one Koleshwar and on seeing the appellant, Koleshwar fled away and his neighbour Dinesh, had seen the occurrence. It is further alleged that his wife got entangled with another person at the place of his new job. It is further alleged that in July, 1999 the appellant had seen his wife in a compromising position with her brother-in-law, Satish. In October, 1998 some photographs of the respondent with other persons was found by the appellant whereafter he asked the respondent to terminate her illicit relationship but she retaliated by saying that she had solemnized the marriage for realising a heavy amount from him and she demanded Rs.5 lacs from the appellant. The appellant disclosed the facts regarding the illicit relationships of the respondent to his father-in-law, but he was asked to bear everything calmly. It is stated that the respondent left the house of the appellant on 16.5.2001. 6. The Respondent wife has appeared and filed a written statement and she has denied all the allegations made against her. She has further stated in her written statement that the appellant asked her to bring Rs.50,000/- from her father and also used to threatened her for divorce if her father does not fulfill the said demand. 7. The learned counsel for the appellant has submitted that as the respondent left his house in the 2001 and since then they are living separate i.e. for more than ten years. 8. 7. The learned counsel for the appellant has submitted that as the respondent left his house in the 2001 and since then they are living separate i.e. for more than ten years. 8. The learned counsel for the respondent has submitted as the appellant wants to solemnize second marriage, he has leveled the allegation of adultery against the respondent. It is further submitted that the respondent is having daughter from the said marriage with the appellant and the appellant does not care to provide any financial help to the respondent and her daughter, even do not care to take them back. 9. From the materials on records, we find, that the appellant has examined himself as P.W.1 and he has not examined any other witness to prove his case. He has not even named the other persons with whom his wife was having illicit relationship neither he has made the said persons as party in this suit. He has not examined Dinesh Singh who had seen the occurrence according to his case. Furthermore, not a single photographs is exhibited by the appellant. Though the photographs are not exhibited but the trial court after seeing the photographs has given its finding:- “Some of the photographs shows the happy moments in which the family member of the respondent are present. There is no indecent or suggestive posture of respondent other photographs do not have any thing of indecency or any objectionable posture to prove that the wife of the petitioner had any illicit relationship with her brother-in-law or one Koleshwar. Merely because the wife has been photographed with another person it cannot be concluded that she had an illicit relationship with the said persons”. 10. According to the allegation made by the appellant that he had seen his wife sleeping with Koleshwar in October 1995 and further allegation that in the year 1998 the appellant had seen his wife in compromising position with her brother-in-law namely Satish but there is no explanation as to why the appellant has filed this case after such a long time i.e. in 2003. 11. It is true adultery cannot be proved directly, the factum of adultery has to be considered from the circumstances but in the present case the appellant has not examined any witness to support his case except himself. 11. It is true adultery cannot be proved directly, the factum of adultery has to be considered from the circumstances but in the present case the appellant has not examined any witness to support his case except himself. After going through the records of the case in our considered opinion that the appellant could not establish the adultery against his wife (the respondent). Therefore, we do not find any merit in this appeal. Accordingly, the appeal and I.A application (I.A. No. 1876 of 2004) are dismissed.