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2014 DIGILAW 115 (AP)

Byri Narayanamma v. Byri Sitharama Murthy

2014-01-28

L.NARASIMHA REDDY, M.S.K.JAISWAL

body2014
Judgment : L. Narasimha Reddy, J. 1. The marriage between the appellant and the 1st respondent (for short ‘the respondent’) took place, on 31.10.1992. The respondent is said to be assisting his father in ‘Pourohityam’, and thereafter, he started doing the same. Out of the wed-lock between the appellant and the respondent, a baby child was born, in the year 1993. They lived together for quite a considerable length of time amicably. The respondent got issued a notice, dated 16.01.2000, marked as Ex.A.1, through an advocate narrating the factum of marriage and the birth of the child, and the manner in which the parties lived up to that date was also mentioned. Thereafter, it was alleged that the appellant developed illicit intimacy with the 2nd respondent and when questioned about the same, the appellant is said to have replied that she is willing to give divorce to the respondent. On that basis, a demand was made to the appellant to agree for divorce. 2. On receipt of the notice, the appellant got issued a reply denying all the allegations. She further stated that after the birth of the child, she has been subjected to harassment for bringing additional dowry, and in that context, panchayats were held, with the participation of elders from both sides and the respondent has agreed to live peacefully with the appellant. It has also been mentioned that demands were made thereafter, and the appellant was driven out of the house. A complaint was submitted before the nearby police station. 3. The respondent filed O.P.No.3 of 2001 in the Court of Senior Civil Judge, Chodavaram, against the appellant, for divorce. He alleged adultery on the part of the appellant and the 2nd respondent was made a party to the O.P., in that context. The appellant repeated the contents of Ex.B.2, in the counter. The trial Court allowed the O.P., through its order, dated 13.11.2002. Hence, this appeal under Section 28 of the Hindu Marriage Act. 4. Sri E.Srinivas, learned counsel for the appellant, submits that the very provision of law invoked by the respondent in his O.P., was improper and that even on facts, he miserably failed to prove the reckless allegation made by him. Hence, this appeal under Section 28 of the Hindu Marriage Act. 4. Sri E.Srinivas, learned counsel for the appellant, submits that the very provision of law invoked by the respondent in his O.P., was improper and that even on facts, he miserably failed to prove the reckless allegation made by him. He contends that there was no mention in the O.P., or for that matter, in Ex.A.1, about what was spoken to by RWs.2 and 3, nor the said version was put to the appellant, who deposed as RW.1 in her cross-examination. He submits that a serious allegation of that nature required valid proof and the trial Court has treated the same in a casual manner and decreed the O.P. He further submits that the respondent did not file any rejoinder to the allegations and averments in the counter filed in the O.P. by the appellant, which included a plea about the relationship of the respondent with another woman. He further submits that the trial Court did not follow the principles of appreciation of evidence, that too, when it was dealing with serious allegations touching upon the character of the appellant and that the order and decree passed by the trial Court cannot be sustained in law. 5. The matter was heard at length, yesterday. Since there was no representation for the respondent, it was directed to be listed today, ‘for Judgment’, with a view to give an opportunity to the counsel for the respondent. Even today, there is no representation for the respondent. Therefore, we are left with no alternative, except to decide the appeal on the basis of the material available on record. We find that the appeal has been pending before this Court for the past 12 years and it cannot be kept pending any more. 6. Notwithstanding the increase in the institution of O.Ps., for divorce and other related matters, it is very rare that the O.Ps., are filed by pleading the grounds of adultery. The law requires cogent evidence for establishing the grounds of that nature. Any lapse, in this behalf must, naturally, result in rejection of the relief. The O.P. filed by the respondent is very brief in its content. The counter filed by the appellant, however, is very elaborative, not only the allegations made in the petition are denied, but also other grounds are pleaded. The respondent did not file any rejoinder. 7. Any lapse, in this behalf must, naturally, result in rejection of the relief. The O.P. filed by the respondent is very brief in its content. The counter filed by the appellant, however, is very elaborative, not only the allegations made in the petition are denied, but also other grounds are pleaded. The respondent did not file any rejoinder. 7. The trial Court framed only point for consideration, namely, “Whether there is any ground to allow the petition for dissolving the marriage between the petitioner and the 1st respondent by way of decree for divorce?” 8. We are of the view that the point ought to have been specific, with reference to the allegation made by the respondent, so that it could have been discussed, in a succinct manner. 9. On behalf of the respondent, PWs.1 to 3 were examined and he filed a copy of the legal notice, got issued by him as Ex.A.1 and acknowledgment thereof as Ex.A.2. The appellant deposed as RW.1, her brother deposed as RW.2 and her maternal uncle as RW.3. She filed the copy of Ex.A.1 as Ex.B.1, as well as the reply got issued by her as Ex.B.2. The trial Court decreed the O.P. 10. The question that arises for consideration before us is as to, “Whether the respondent pleaded the ground of adultery against the appellant?” 11. We have already observed that whenever ground of adultery is pleaded by one spouse against another, the standard of proof is required to be substantially different from the one that is needed in respect of other grounds, such as cruelty and desertion. The reason is that unlike in the case of the divorce granted on the grounds of cruelty and desertion, a divorce granted on the ground of adultery would haunt the concerned spouse with that accusation for the rest of the life. Therefore, the Courts are required to be careful and cautious before recording a finding on those grounds. In a way, ignominy and disrepute, which the concerned party may suffer on account of such accusation, would be more severe in nature than the one in a criminal case, which may no doubt entail in punishment, but would virtually vanish with the serving of the sentence. 12. In a way, ignominy and disrepute, which the concerned party may suffer on account of such accusation, would be more severe in nature than the one in a criminal case, which may no doubt entail in punishment, but would virtually vanish with the serving of the sentence. 12. In the instant case itself, the trial Court made an observation in para 11 of the order that on every date of hearing, the appellant herein was crying and exhibited her displeasure. It only shows her agony, on account of being accused of such a heinous act. The allegation made in the O.P. filed by the respondent in this behalf, is very brief. We propose to reproduce the same in its entirety, so that, no part of it is missed in the process of referring to it. “The marriage between the petitioner and 1st respondent took place on 31.10.1992 at Simhachalam Devasthanam according to Hindu Law and custom. Immediately after the marriage the 1st respondent joined with the petitioner to lead marital home frequently without informing to the petitioner. The 1st respondent used to stay frequently at her parents’ house. The petitioner used to take back the respondent No.1 to the marital home. Out of the wedlock the 1st respondent gave birth to one female child by name Swathi through the petitioner. The petitioner is living by doing pourohityam and is maintaining his family with great difficulty. After the birth of Swathi the 1st respondent used to harass the petitioner. The 1st respondent has developed illicit intimacy with the 2nd respondent. About six months back the 1st respondent eloped with the 2nd respondent leaving her daughter. Thereupon the petitioner raised a dispute through the elders and in that dispute the 1st respondent expressed her desire that she is not willing to join the petitioner and asked the petitioner to give divorce. About 15 days back the 1st respondent came to the house of petitioner and asked the petitioner gave her belongings. For which the petitioner and his parents directed the 1st respondent to bring elders. Thereupon the 1st respondent and her brother threatened the petitioner with dire consequences. The petitioners got issued Lawyer Notice to the 1st respondent demanding divorce on 10.01.2001, 1st respondent received the same but did not send any reply. The 1st respondent totally neglected the petitioner and his daughter in spite of the appeals by the petitioner. Thereupon the 1st respondent and her brother threatened the petitioner with dire consequences. The petitioners got issued Lawyer Notice to the 1st respondent demanding divorce on 10.01.2001, 1st respondent received the same but did not send any reply. The 1st respondent totally neglected the petitioner and his daughter in spite of the appeals by the petitioner. The 1st respondent has deserted the petitioner and her daughter without any justifiable cause. The 1st respondent is openly living in adultery with the 2nd respondent causing mental agony and thereby cruelly treating the petitioner. There is no chance of reunion between the petitioner and the 1st respondent. Hence, this petition is filed to dissolve the marriage between the petitioner and the 1st respondent by granting of decree of divorce. Since the 2nd respondent is the paramour to the 1st respondent, he is added as necessary party.” 13. The O.P. is bereft of any specific instance, much less, the dates or the alleged acts attributed to the respondent. No mention is made of any person, who is said to have witnessed the instances. Even the respondent did not state that he has seen by himself, any acts or omissions on the part of the appellant leading to such allegations. 14. Order VI C.P.C., no doubt, mandates that the pleadings must be precise and details must be supplemented through evidence. However, it carves out an exception in Rule 4 thereof, that wherever allegations of fraud and misrepresentation are made, the pleadings must be elaborate and every detail thereof must be furnished including the dates, if any. An allegation touching upon the character of a party to the proceeding, stands on a higher footing, when compared to that of mere fraud or misrepresentation. In the absence of the specific instances, the opposite party cannot be expected to wander in the darkness of guessing and the party making it cannot be extended the facility of hit and run. Viewed in this context, the O.P., was totally inadequate in its purport, to sustain the plea of adultery against the appellant. 15. Apart from denying the allegation made against her, the appellant made several counter allegations, touching upon various acts, which, if proved, would tell upon the character of the respondent. The respondent did not file any rejoinder to it. 16. 15. Apart from denying the allegation made against her, the appellant made several counter allegations, touching upon various acts, which, if proved, would tell upon the character of the respondent. The respondent did not file any rejoinder to it. 16. Assuming that there was no defect in the pleading, in the O.P., it needs to be seen as to whether the respondent was able to substantiate the grounds pleaded by him. He deposed as PW.1. The affidavit filed by him is nothing but a repetition of an order in the O.P. After stating that himself and the appellant have kept a separate residence nearby the house of the parents in the same village, he stated that the 2nd respondent was visiting their house and was having illicit contact with the appellant. Here again, he did not mention any dates, much less the other circumstances. The affidavit is a substantial improvement upon the O.P. For instance, he stated in page 3 of the chief-examination, as under: “…I personally see the illicit contact of R.1 and R.2 with my own eyes. For this, I gave warning to her and excused her as i.e. the first time. Then also she abused me in filthy language. Subsequently also I see the R.1 and R.2 in two or three times. Then I developed hateness against the R.1. One D.Venkateswara Rao, T.Venkata Rao, D.Suribabu, K.Chittibabu, Y.L.N.Murthy, Chukka Demudu etc., also knows about the illegal contacts of the R.1 & R.2. The above persons also chastised the R.1 with regard to the illegal contact of R.1 & R.2. For which the R.1 stated that she is not going to listen their words.” 17. The trial Court ought not to have permitted this, since it is an improvement upon the O.P. 18. The O.P. was silent as to any other person witnessing the alleged activity of the appellant. Even in the chief examination, the respondent did not state as to whether any other person has informed. 19. One thing, which becomes clear from the chief-examination is that the respondent continued to live with the appellant, even after he is said to have noticed the alleged illicit acts on the part of the appellant. What would be the legal effect thereof, would be considered a bit later. 20. 19. One thing, which becomes clear from the chief-examination is that the respondent continued to live with the appellant, even after he is said to have noticed the alleged illicit acts on the part of the appellant. What would be the legal effect thereof, would be considered a bit later. 20. In the cross-examination, he has gone even to the extent of feigning ignorance about the reply under Ex.B.1, issued by the appellant. A suggestion was also made to him that he had developed illicit intimacy with another woman. The relevant portion at page 6 thereof reads: “…I do not know whether R.1 have issued reply notice to my Advocate. It is not true to say that I have illegal contact with one person at China Appannapalem village and that I myself driven away my wife for bringing fo more dowry. Subsequent to giving the reply notice by R.1 to me I filed this O.P. It is true the S.I. registered a case U/sec.498-A I.P.C. in C.C.No.93/2001 on the file of A.J.F.C.M. Court, Chodavaram.” 21. There is self-contradiction in what is extracted above. On the one hand, it is stated that he does not know whether the appellant has issued any reply and on the other hand, he stated that he filed the O.P., after receiving the reply. 22. PW.2 is said to have gone to the house of the respondent, on one occasion to get a Muhurtham fixed and when he pushed the door he is said to have found the appellant and the 2nd respondent. He did not mention the date on which he went or that he has informed the same either to the respondent or his parents. The O.P. as well as the evidence of PW.1 was totally silent about this. In the cross-examination, it was suggested to him that he is a stock witness, in cases of this nature, and that he is a chronic litigant. Though he stated that he is acquainted with R.2, he failed to give his particulars. 23. PW.3 is another such witness. The only difference is that he has some political affiliation, being the brother’s son of a Chairman of a Cooperative Society. He is said to have seen the appellant and the 2nd respondent, in a room in a hostel. He admitted that there were number of other persons at that time. 23. PW.3 is another such witness. The only difference is that he has some political affiliation, being the brother’s son of a Chairman of a Cooperative Society. He is said to have seen the appellant and the 2nd respondent, in a room in a hostel. He admitted that there were number of other persons at that time. He too did not state that he mentioned what was alleged to have been witnessed by him to any other persons, including the respondent. 24. Whatever may be the strength or otherwise of the evidence, of the witnesses examined in relation to an allegation of this nature, much would depend upon the suggestion made to the person who is facing the allegation. The appellant was cross-examined at length. Nowhere in the cross-examination it was suggested to her that the respondent i.e. PW.1 has seen her living with the 2nd respondent, or that PWs.2 and 3 have seen what they have mentioned in their respective chief-examinations. Therefore, the whole of the evidence adduced on behalf of the respondent becomes, irrelevant, since no part of it was suggested to the appellant. 25. If, in fact, there is any semblance of truth in what PWs 2 and 3 have stated, the suggestions in that behalf would have been made to the appellant in her cross-examination. Not a word in that behalf was suggested. It only fortifies the contention of the appellant that PWs 2 and 3 are stock witnesses and they would be prepared to state anything before a Court, if they are paid for that. Except the reckless statements made by PWs 2 and 3, there is nothing on record to prove the allegation made against the appellant. 26. When this is the purport of the evidence, one just cannot come to a conclusion that he appellant was guilty of any acts of adultery. 27. The conduct of the respondent does not support his allegations. If any spouse notices illicit relation of the other spouse, the first reaction would be to live separately. Continued living together, even after such alleged incidents, would either belie the allegation or would amount to condonation. 28. A perusal of the judgment of the trial Court discloses that the conclusions were arrived at mostly on the basis of conjectures. If any spouse notices illicit relation of the other spouse, the first reaction would be to live separately. Continued living together, even after such alleged incidents, would either belie the allegation or would amount to condonation. 28. A perusal of the judgment of the trial Court discloses that the conclusions were arrived at mostly on the basis of conjectures. The basic principles of appreciation of evidence, namely that the Court must first cull out various facts pleaded by the parties, identify the probabilities on the one hand, and the opposite thereof, on the other hand and then arrive at a conclusion, was totally ignored. 29. We therefore allow the appeal and set aide the judgment and decree passed by the trial Court. There shall be no order as to costs. 30. The miscellaneous petition filed in this appeal shall also stand disposed of.