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2025 DIGILAW 785 (GUJ)

Pinalben W/O Nimesh Yashvantbhai Jayswal v. Nimesh Yashwantbhai Jayswal

2025-07-18

A.Y.KOGJE, N.S.SANJAY GOWDA

body2025
ORDER : N.S.Sanjay Gowda, J 1. The wife is in the appeal challenging the order by which the husband’s petition for grant of divorce has been allowed and the marriage conducted between them on 24.5.2003 has been dissolved. 2. It is not in dispute that the marriage between the couple was solemnized on 24.5.2003 and out of this wedlock, they have a daughter, named Nandini, who was born on 17.10.2004 and is presently aged about 21 years. 3. The husband approached the Family Court seeking for divorce on the ground that he had been treated with cruelty and therefore, he was entitled for a decree of divorce. It was his case that he was engaged in the business of running a bakery with the help of several workers for whom a room had been provided in his house. He stated that his wife used to come to the shop and would stay at home as per the needs of the bakery and she was thus in touch with the workers. He contended that his wife was having an adulterous relationship with a worker of the bakery and despite warnings of the husband to desist from such adulterous activities, she continued the same and the husband was also constrained to inform his in-laws who demanded proof. 4. The husband contended that after noticing the behaviour of his wife and her insistence of continuing her adulterous life, he directed the workers to vacate his house and start living in a rented house, but yet there was no change in the conduct of his wife. He stated that he, therefore, set up CCTV camera in the house and in this equipment, he captured visual proof of his wife living in adulterous life with a worker of the bakery on 28.9.2014. He stated that he thereafter called his wife’s relatives and furnished them the proof of his wife’s adulterous life and his wife’s relatives pleaded that their reputation may be saved and that they would take the wife along with them. He stated that accordingly, the wife and he separated as per the decision of the relatives and after 3 years of separation, the wife demanded maintenance be given to her and only thereafter, she would give consent for divorce. He stated that accordingly, the wife and he separated as per the decision of the relatives and after 3 years of separation, the wife demanded maintenance be given to her and only thereafter, she would give consent for divorce. He stated that he accordingly, started paying Rs.7,500/- per month from May 2015 and despite the fact that she was receiving maintenance, she would go on to give various representations to the Corporation Bank and other authorities to cancel the licence of the bakery business being run by her husband. As a consequence of these complaints, the husband stated that he was forced to close the business and had to start a new business in his own name. Notwithstanding the wife was harassing the husband despite receiving maintenance. 5. The husband stated that in January 2018, the wife along with her brother and the relatives came to the rented house and behaved in an inappropriate manner and she also declared that she would reside with him, as a result of this quarrel, the owner of the house had asked the husband to vacate the house and the husband was also forced to vacate the house. He also stated that he was threatened with dire consequences and that he would be killed, for which he had also informed the police. The husband, therefore, contended that having regard to the manner in which he was treated with cruelty, it was obvious that he could not live with the wife and also by the reason of her desertion, he was entitled for divorce. 6. The wife entered appearance and contested the proceedings. While, denying all the allegations made by the husband, she stated that her parents had given various ornaments at the time of marriage and since the financial condition of the husband was weak, and his father died due to cancer, the husband had sold all the ornaments belonging to the wife. She stated that though she brought a sum of Rs.1.5 lacs from her parents and handed over the same to the husband, but the said amount remained unpaid to them. She also stated that after the marriage, her father had died and she was living with her elderly mother as a dependent. She also contended that for past 4 years, the husband was having an illicit relationship with one lady and despite she tried to stop that, the same was continued. She also stated that after the marriage, her father had died and she was living with her elderly mother as a dependent. She also contended that for past 4 years, the husband was having an illicit relationship with one lady and despite she tried to stop that, the same was continued. 7. The wife stated that she was treated with utmost cruelty and despite being aware of the fact that she was having a kidney ailment, she was thrown out of the house by the husband, and she had also lost the custody of the daughter. 8. The wife stated that the only reason for filing the petition for divorce by the husband was to marry once again and to escape the responsibility of maintaining her. She also stated that the husband had stopped giving maintenance from January 2018 and despite approaching the police, the husband had refused to take her back. She stated that she was having a serious ailment and yet her husband was ignoring her needs. 9. The husband examined himself and also produced a Pen drive and an agreement dated 8.9.2014. The wife also examined herself but did not produce any documentary evidence. 10. The Family Court on consideration of the evidence, came to the conclusion that the CCTV footage provided by the husband in the Pen drive was corroborated and he had established his assertion that his wife was living an adulterous life in as much as the employee, named Vijay, had entered in the room of the wife and was found in a compromising position. It held that the the wife admitted that Vijay was their employee and resided at their house situated at Shivnagar. The Family Court also took note of the fact that the wife had admitted that the employee had remained in touch with her. 11. The Family Court also took note of the fact that the wife had admitted in cross-examination that her husband had called her relative Rakeshbhai Shantibhai Jaiswal and Rahul (brother of the wife) and after their arrival, a covenant had been entered into, whereby the wife had handed over signed cheques to the husband in presence of her brother and other relative. The Family Court, therefore, noticed that to this covenant, Rakeshbhai Shantibbhai Jaiswal and her brother Rahul were signatories and since there was no allegation of forgery, it would have to be held that the adulterous life of the wife stood established. 12. The Family Court accepted the oral evidence of the husband, which was corroborated by the covenant relating to handing over the cheque-book and came to the conclusion that the objection regarding the lack of certificate under Section 65B of the EVIDENCE ACT was not detrimental to the case of the husband since it was clear that as per the evidence of the husband, he had himself taken the CCTV footage from the camera and, therefore, it was clear that adulterous life of the wife stood established. 13. The Trial Court also took note of the fact that the husband and the wife had separated from 28.9.2014 and the wife had made no attempt to seek for restitution. The Family Court also observed that the wife had admitted that daughter- Nandini was living with the husband for past 8 years, and she was not aware about in which faculty she was studying. The Trial Court, accordingly, came to the conclusion that the marriage was dead for all purposes and the grounds raised by the husband that there was desertion and that he had been treated with cruelty had been proved. It accordingly allowed the petition and dissolved the marriage. As a result, the wife is in appeal. 14. The learned counsel appearing for the wife strenuously contended that the allegation of adultery had not at all been established. He submitted that the entire claim of adultery was based on electronic evidence and since there was admittedly no certificate as contemplated under Section 65B of the EVIDENCE ACT , the basic reasoning of the Family Court was rendered illegal. He submitted that the husband had basically thrown the wife out of the house, and he was trying to take advantage of his own wrong by seeking a decree for divorce. He, therefore, submitted that the order of the Family Court cannot be sustained. 15. He submitted that the husband had basically thrown the wife out of the house, and he was trying to take advantage of his own wrong by seeking a decree for divorce. He, therefore, submitted that the order of the Family Court cannot be sustained. 15. Learned counsel for the husband, on the other hand, contended that the Family Court was justified in accepting the Pen drive as an evidence on the premise that the husband had himself downloaded/ transferred the video recording from the CCTV footage and, therefore, a certificate under Section 65B was not necessary. He also highlighted the fact that as a pure question of law, the certificate under Section 65B of the EVIDENCE ACT would be of no relevance for the proceedings before the Family Court by virtue of Section 14 of the FAMILY COURTS ACT . He submitted that since the execution of covenant was admitted, by clear and necessary implication, the allegation of adulterous relationship of the wife was clearly established and, therefore, he submitted that the Family Court was justified in allowing the petition. 16. Learned counsel for the husband also contended that the daughter, born out of the marriage, was staying with him from 2014 and there was no attempt made by the wife at any point of time to even seek for visitation and this by itself established that the wife only intended to harass the husband by denying him the benefit of a divorce. 17. In the light of the above submissions, the only point which arises for consideration is as to whether the Family Court was justified in coming to the conclusion that the husband had established that he had been deserted by the wife and the wife had treated him with cruelty, which entitled him to a decree of divorce. 18. At the outset, it is to be stated that the wife does not dispute the fact that she has been living separately from 2014 and the custody of the daughter has also been with the husband since 2014. It is, thus, an undisputed fact that for past 11 years, there has been no cohabitation between them. It is also forthcoming from the record that the wife has absolutely no relationship with her daughter and, she had never sought for the custody of or even for a visitation with her daughter. It is, thus, an undisputed fact that for past 11 years, there has been no cohabitation between them. It is also forthcoming from the record that the wife has absolutely no relationship with her daughter and, she had never sought for the custody of or even for a visitation with her daughter. It is, therefore, obvious that the marriage is dead for all purposes at least from 2014. 19. The evidence on record clearly indicates that the husband did install CCTV camera since he suspected the conduct of his wife. The husband. in fact, produced a Pen drive in which the fact that an employee had gone into room of the wife and was found in compromising position with the wife, had been recorded. The Family Court was therefore justified in coming to the conclusion that the wife was living an adulterous life by virtue of the fact that a corresponding covenant was entered on 8.9.2014, i.e. the day when the husband found his wife in compromising position with an employee. This covenant, which is also produced as Exh.64, basically indicated that the wife had handed over the signed cheque- leaves in respect of the bakery business and to this covenant, the brother of the wife and her relative Rakeshbhai Jaiswal were the witnesses. This, by itself, established the manner in which the husband had found out the adulterous way of life of his wife and the subsequent acts undertaken by him in summoning the relatives including the brother of the wife. If this covenant dated 8.9.2014 is taken into consideration coupled with the admission of the wife that there was indeed a confrontation in presence of her relatives and taking into consideration the further fact that they were not residing together since 2014, it would clearly and exclusively establish that the wife was living an adulterous life. 20. So far as the argument that the Pen drive, which was the proof of adulterous activities, could not be taken into consideration since it is not accompanied by a certificate under Section 65B of the EVIDENCE ACT is concerned, it it to be stated here that Section 14 of the FAMILY COURTS ACT makes it clear that the Family Court can receive as evidence any report, statement, documents, information or matter that may in its opinion assist it to deal effectually with a dispute. The question as to whether the same would be relevant or admissible in EVIDENCE ACT is specifically excluded from its application to the Family Court. It is, therefore, clear that the absence of certificate as contemplated under Section 65B of the EVIDENCE ACT to receive an electronic evidence would be of no consequence. 21. It is to be borne in mind that the provisions of the EVIDENCE ACT are deliberately diluted when it came to the proceedings under the Family Court Act and it is made clear that any information in relation to the marital relationship cannot be governed by the general rules of evidence. Section 14 has been incorporated in the FAMILY COURTS ACT keeping in mind that the matters which are personal in nature and normally inadmissible in evidence are nevertheless allowed to be brought in as evidence since the Family Court is obliged to adjudicate upon marital disputes, which by their very nature is personal and involve intimate details. 22. It may be also pertinent to state here that the objection raised by the wife regarding the admissibility of the Pen drive was adjudicated upon by the Family Court at the time when the Pen drive was admitted in evidence and the Family Court had in fact overruled the objection of the wife. This adjudication was not challenged by the wife and the same would, therefore, bind the wife. As a consequence, the wife would be estopped to contend in this appeal that the Pen drive could not have been admitted into an evidence. 23. It is also to be stated here that even if the Pen drive is ignored, the document, i.e. covenant, which was entered into in presence of her relatives in 2014, corroborates the assertion of the husband that the wife was found in a compromising position with an employee and, therefore, the Family Court was justified in coming to the conclusion that the husband had established the adulterous life being led by the wife. 24. It is also noticed here that the daughter born out of this marriage has been living with the husband since 2014, i.e. for past 11 years, and there is no attempt made by the wife at any point of time in past 11 years to establish any relationship with her daughter. 24. It is also noticed here that the daughter born out of this marriage has been living with the husband since 2014, i.e. for past 11 years, and there is no attempt made by the wife at any point of time in past 11 years to establish any relationship with her daughter. Having regard to the fact that the husband and wife have been residing separately since past 11 years and looking to the nature of evidence adduced by the parties, the finding of the Family Court that the husband was treated with cruelty is accepted. There is no error or infirmity found in the order of the Family Court, which requires interference. The appeal is, therefore, DISMISSED. Pending Civil Application, if any, also stands DISPOSED OF.