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Whether adultery in civil proceeding is required to be proved beyond reasonable doubt?


O.S.A. No. 11 of 1996

Decided On: 26.06.1997

M.R.G.L.J. Vailsher
Smt. Ramola Vailshery and others

Hon’ble Judges/Coram:
R.P. Sethi, C.J. and Hari Nath Tilhari, JJ.
Citation : AIR 1997 Kant 341

1. Alleging adultery coupled with cruelly, respondent-1 wife filed a petition under Section 10 of the Indian Divorce Act (hereinafter called the ‘Act’), praying to pass a decree nisi and to grant her the custody of the minor children. She further prayed for issuance of directions 10 the appellant-husband for providing sufficient means by way of settlements towards education, shelter, food, clothing, medical and other incidental expenses. On proof of the averments made, a decree nisi for dissolution of the marriage between the parties was passed in favour of the wife granting her six months time to seek an absolute decree. Minor children were directed to be given in the custody of the wife till the decree was made absolute. In the absence of sufficient evidence, the other reliefs claimed by the wife were not allowed by the learned single Judge in the order impugned in the appeal. It is submitted that the judgment and decree passed against the appellant is against law and facts which requires to be set aside.

2. The facts leading to the filing of the appeal are that the appellant and respondent No. 1 were married in accordance with the Christian rites on 20th December, 1981 at Hudson Memorial Church. Bangalore. Out of the wedlock, one male and another female children were born. The appellant husband was alleged to have neglected his wife and the children from 1-1-1991 onwards. The appellant was alleged to have come in contact with Miss Prema kumari, R2 herein. She was stated to be a Nurse and the appellant husband hired an apartment adjoining to his work spot where they used to meet. It was further alleged that he managed her transfer to Vani Vilas Hospital, Bangalore, by allegedly giving a bribe of Rs. 12,000/-. Prema kumari was alleged to have given birth to a daughter in 1986. The daughter was alleged to have been conceived out of the illicit relationship of the husband and the said Prema kumari. The name of the appellant husband was shown in the Kumud Nursing Home, Jayanagar, Bangalore, as father of the child. Out of this illicit relationship it is alleged that she gave birth to another male child in 1989. Efforts to disassociate the appellant from having extra marital relationship with the aforesaid lady allegedly did not bear any result and the relationship between the two widened. It was alleged that the appellant husband used to pick up quarrel with his wife and threatened her with dire consequences if she refused to part with money which she was earning from her employment. She was alleged to have been subjected to physical and mental cruelty. The husband was alleged to have made attempts to hit his wife with an iron rod when she refused to give the keys of the almirah. Much against the wishes of his wife, the appellant was alleged to be taking his children to the house of his alleged concubine. The appellant husband was further alleged to be a womaniser. He was alleged to have developed sexual relationship with R-3 herein who was a widow at the relevant time having a teenaged daughter.

3. On denial of allegations made by the wife, the learned single Judge formulated the following points for determination.

“(a) whether the petitioner has established that the respondent is guilty of adultery

(b) Whether the petitioner has established that the respondent has treated her with such cruelty as to entitle her to a decree of judicial separation?

(c) Whether the petitioner has condoned the adultery committed by respondent?

(d) Whether the petitioner is presented or prosecuted in collusion with the respondent? and,

(e) Whether the petitioner is entitled to the divorce sought for?”

On proof of points (a) and (b) and in the absence of evidence for point (c), the learned single Judge allowed the petition as noted herein above.

4. The learned counsel appearing for the appellant has vehemently submitted that he relient was not proved to have violated any of the conditions specified under S. 10 of the Act. It was submitted that as respondent-2 was admittedly an un-married woman and respondent No. 3 a widow, the appellant could not be held to be guilty of adultery as defined under S. 497 of the Indian Penal Code. It was contended that as the word ‘adultery has not been defined under the Act, the meaning assigned to it under the penal law was required to be deemed to have been incorporated in the Act, and the decree for dissolution of marriage could be granted only on proof of conditions as required under the penal law. The submissions apparently appear to be attractive but when considered in depth in relation to the matrimonial law have no legs to stand. Matrimonial law cannot be equated with Penal Law. The burden and the standard of proof in both the cases is also different. Adultery for matrimonial laws has to be considered in the ordinary meanings assigned to it and understood by the parties to the marriage. The Black’s Law Dictionary defines adultery to mean :–

“Voluntary sexual intercourse of a married person with a person other than the offender’s husband or wife”.

It means illicit cohabitation. In the Oxford dictionary it is defined as ;

“Consensual sexual intercourse between a married person and a person of the other sex, married or not, not being his or her spouse, during the subsistence of the marriage…..”

5. Matrimonial law contemplates that the erring spouse who is involved in illicit relationship with other person is to be blamed for breach in the matrimonial home or being guilty of adultery as the adultery is considered as an offence against the sanctity of the matrimonial home. Law does not confer freedom upon husbands to be licentious by gallivanting with unmarried or divorced woman. It only makes a specific kind of extra marital relationship a ground for dissolution of marriage. An unfaithful spouse risks and invites civil action by the offended spouse. A Division Bench of the Madhya Pradesh High Court in Gitabai v. Fattoo., MANU/MP/0034/1966 : AIR1966MP130 has rightly held that (Para 3) :

“….. In the absence of any special definition in the Act adultery means consensual sexual intercourse between married person and another person of the opposite sex during the subsistence of the marriage.”

The Supreme Court in Smt. Sowmithri Vishnu v. Union of India, MANU/SC/0199/1985 : 1985CriLJ1302 held that “‘adultery’ under the civil law has a wider connotation man under the Penal Code.”. On the technical ground of the applicability of Section 497 of the Penal Code, stability of the marriage cannot be permitted to be scorned or sacrificed. There is therefore no substance in the argument of the learned counsel that as the respondent wife had not proved the ingredients of Section 497 of the Indian Penal Code, the charge of adultery for the purpose of deciding the application under Section 10 of the Act had not been proved.

6. To prove the charge of adultery the standard of proof required in a criminal case cannot be applied for the proceedings under the Act. Person alleging adultery is only required to prove the allegations by preponderance of probabilities and the degree of probability depends on the gravity of the offence. It is well established that application for divorce is a civil proceeding and analogies of criminal law cannot be applied to it. It is equally true that the petition for divorce on the charges of adultery cannot be allowed merely on suspicion and doubts expressed by the party approaching the Court. The view of proving the matrimonial offence beyond reasonable doubt has undergone a sea change and in the modified form the petitioner is only required to prove his case by preponderance of probabilities and the degree of probability depends upon the gravity of the offence. A Full Bench of the Madhya Pradesh High Court, in Lalit Lazarus v. Smt. Lavina Lazarus, MANU/MP/0016/1979 : AIR1979MP70 considered this aspect of the matter in detail and held that (Paras 6 and 7)

‘The next question to be considered is whether the petitioner has proved that the respondent No. 1 is guilty of adultery. Previously the view was that the matrimonial offences have to be proved by petitioner beyond reasonable doubt but recently the view has been modified and it has been held that petitioner is only required to prove his case by preponderance of probabilities and the degree of probability depends on the gravity of the offence Rayden on Divorce in Vol. 1 at page 193 has observed “But a suit for divorce is a civil and not a criminal proceeding and the analogies and precedents of criminal law have no authority in the Courts administering divorces; they are civil Tribunals. It is wrong, therefore, to apply an analogy of criminal law and to say that adultery must be proved with the same strictness as is required in a criminal case. As far as the standard of proof is concerned, adultery, like any other fact on which irretrievable breakdown of marriage is concerned, may be proved by a preponderance of probability, and although it has been said that in proportion as the offence is grave, so ought the proof to be clear, and that even in these days there is a stigma in adultery, nevertheless views on adultery have changed and it no longer generally entails the serious social consequences that in some former limes resulted from its discovery.” Halsbury in para 562 has further observed that adultery must be proved to the satisfaction of the Court, that is on a preponderance of probability; but the degree of probability depends on the subject matter, and, in proportion as the offence is grave, so ought the proof to be clear. Divorce is a civil proceeding and the analogies of criminal law are not apt. It seems that the Supreme Court has also veered round to this view in the recent case of Dastane N.G v. S. Dastane AIR 1975 SC 1534 and it has been held that, while considering a case under Hindu Marriage Act, that the proceeding under the Act being essentially (if a civil nature, the word ‘satisfied’ means satisfied on preponderance of probability and not satisfied beyond reasonable doubt.

Direct proof of adultery can rarely he given. Even if given, it is 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 he such a; lead to it by fair inference, as a necessary conclusion; and unless this were so, no protection whatever could be given to marital rights. In the present case, the statement of the petitioner Lalit Lazarus (A.W.I) has been corroborated by Richard Titus (A.W.2). Titus is a resident of Indore. Both have stated that the respondent No. 1 has begotten a male child out of her illicit relationship with respondent No. 2. Titus has further stated that she was pregnant. She is living apart from the petitioner since October, 1972 and thereafter the petitioner had no access to her. Of course, such an oral evidence can always be given but the same is corroborated by the statement of Dr. Shakuntalabai. who was examined on commission. According to her, the respondent No. I gave birth to a female child on 25-11-1976 in her Maternity Home and she had disclosed the name of respondent No. 2 to be her husband. In support the doctor as filed an entry from the birth register (Ex. C-1 A) corroborating her statement. Under these circumstances, giving birth to a child when the petitioner had no access to the respondent No. I since October. 1972 itself is a strong circumstantial evidence to prove that she is guilty of adultery. Rayden at page 307 has observed that if the wife had given birth to a child, and it was proved to the satisfaction of the Court by admissible evidence that the husband could not possibly be the father, that was sufficient proof of the wife’s adultery. The evidence so led by the petitioner has been accepted by the learned District Judge to be sufficient to prove that the respondent No. 1 is guilty of adultery. There is nothing on record which will make us to differ with the view taken by the District Judge. There is no reason why the statement of Dr. Shakuntalabai coupled with the certificate filed by her should not be believed. The respondents in spite of the notice have not appeared and shown cause as to why the decree should not be affirmed. There is also no impediment in affirming the decree. We are satisfied that there is no collusion between the parties, there is no unreasonable delay in presenting the petition and the petitioner has not condoned the guilt of the respondent No. 1. Therefore, the decree has to be affirmed.”

To the same effect is the judgment of the Special Bench of the Rajasthan High Court in B. MANU/DE/0100/1978.

7. It is not necessary to prove adultery by direct evidence. Such evidence cannot be given credit even if produced. Adultery his to be inferred from circumstances which exclude any presumption of innocence in favour of the person against whom it is alleged. In matrimonial proceedings the Court has to be vigilant that the burden of proof is satisfactorily established and properly discharged. Adultery, from its nature, is a secret act. The Court must have due regard to the social conditions and the manner in which the parties are accustomed to live. Adultery can generally be proved by presumptive proof passed upon circumstantial evidence such as non-access and the birth of the children. When a man and a woman otherwise not related are found to be living together under suspicious circumstances secretely. It cannot be said that they had met to say prayers and that they were not guilty of matrimonial offence.

8. The learned counsel has further submitted that as the wife had been living with the husband despite knowledge of his living in adultery, she should be deemed to have condoned the acts of such adultery. Condonation has not been defined in the Act, but in the matrimonial matters it connotes the conduct of rectification and resumption of marital obligations even after the knowledge of infidelity on the part of the respondent. Rehabilitation or resumption of cohabitation without such knowledge cannot amount to condonation. Condonation is a conditional waiver of the right of the injured spouse to take matrimonial proceedings and it is not for givens at all in the ordinary sense. It means blotting out of offence imputed so as to restore to offending party to the same position he or she occupied before the offence was committed. There can be no condonation which is not followed by conjugal cohabitation.

9. The learned counsel has further submitted that merely being guilty of adultery cannot be a ground for divorce in favour of the wife. It is true that under Section 10 of the Act the wife can pray for discussion of marriage on the ground that since the solemnization of the marriage, her husband had exchanged his profession of Christianity for the profession of some other religion and gone through a form of marriage with another woman or has been guilty of incestuous adultery, or of bigamy with adultery, or of marriage with another woman with adultery, or of rape, sodomy or bestiality, or of adultery coupled with such cruelty as without adultery would have entitled her to a divorce a mensa et toro, or of adultery coupled with desertion, without reasonable excuse, for two years or upwards. The respondent wife in the instant case had alleged that the appellant husband had solemnized his marriage with respondent No. 2 and was also guilty of cruelty. Cruelty though not defined in the Act, means conduct of such type under which the petitioner cannot reasonably be expected to live with the respondent. It consists of acts which are dangerous to life, limb or health. It can cause injury to person or to health. Cruelty for the purpose of matrimonial relationship means where one spouse has so treated the other and manifested such feelings towards her or him as to have inflicted bodily injury, or to have caused reasonable apprehension of bodily suffering or to have injured. Cruelty may be physical, mental or legal. In matrimonial laws it may be of infinite variety. It can be subtle or brutal. It may be by words, gestures or by mere silence, violence or non-violence. It is understood as a behaviour by which pain is caused to another. Wilful and unjustifiable interference by one spouse in sphere of life of another may, in special circumstances, amount to cruelty for the purpose or determination of a matrimonial dispute.

10. While appreciating the evidence regarding cruelty. the whole conduct of the parties is required to be taken into account. No hard and fast standard of proof can be prescribed for proof of cruelty. Certain act or behaviour may be cruel to a particular person and the same may not be so so far as the other is concerned. In cases of physical cruelty it is expected that the petitioner proves the attributed act of the respondent by medical evidence. But, for mental or legal cruelty, parties may adduce evidence leading to the inference that he or she was subjected to a treatment which amounted to cruelty.

11. In the instant case the learned single Judge referred to the evidence and the record produced in the Court and held :

“8. But. the evidence of me petitioner that the respondent is having extra marital relationship with first co-respondent Smt. Prema kumari and that he has be gotten two children from her is made out not only by her evidence but also by the evidence of Smt. Prema kumari and the documents produced by her. The petitioner has stated that Sinl. Prema kumari gave birth to a female child in 1986 and another child in 1989. and that both children are born to the respondent. Site has produced the certificate issued by Kumudhini Nursing Home, where the first child of Smt. Prema kumari was born to show that the name of the father is mentioned as Jayaprakash. In her cross-examination it is suggested that Prema kumari is known to the respondent’s family even prior to petitioner’s marriage and that there was no extra marital relationship with her.

9. Smt. Prema kumari who is examined as R.W.-3 has stated in her evidence that the respondent married her on 12-6- I984 at Wilson Garden Shanti Church: that after the marriage they came to know that the respondent was also related to hen that after the marriage they stoned living in Suddaguntepalya, Bangalore; that she gave birth to o female child by name Elenora Sowmya on 8-2-1986 in Kumudini Nursing Home, Jayanagar, Bangalore; that because the respondent’s mother’s name was Elanora the same name was given to their daughter that the child was baptised at Holy Trinity Church, Bangalore; that second child was bom on 14-10-1989 and his name is Abraham Vivek Vailshery. She has further stated that at the time of her marriage she did not know that the respondent was married to the petitioner and that she came to know of it only at the time of birth of the second child and that when she enquired the respondent he then pleaded with her to pardon him. According to her, the respondent continued to live with her till November, 1993 and that thereafter she saw the respondent living with 2nd co-respondent and when she enquired the respondent, he did not turn up to her house.

10. P.W.-3 has produced various documents to prove that the respondent married her and she has given birth to two children from the respondent and that she has been living with the respondent as his wife. She has produced the photographs which are stated to have been taken at the time of her marriage and the photographs taken at the time of the christening ceremony of her two children. Ex. S. 3(a) photograph shows the respondent and R.W.-3 holding each others hand. Ex. S. 3(b) is another photograph-showing the respondent and R.W.-3 holding child and a priest. This photograph is stated to be taken at the time of the christening ceremony of her daughter. Ex. S. 3(c) is the photograph taken at the church at the time of christening ceremony of her son. This photograph shows the respondent taking the child from the hands of the priest. Ex. S. 3(d) is another photograph on the same occasion wherein all the relatives as well as respondent and R. W. 3 are seen with the children. R.W. 3 has also produced the suit summons addressed to the respondent in O.S. No. 4140/93 (Ex. S. 5), Ex. S. 6 the cumulative record of the respondent, Ex. S. 7 the confirmation certificate given by the church to the respondent; Ex. S. 8 the birth day card sent to her husband from a Memoriam church to show that the respondent was staying with her in her house. According to her, all these documents are found in her house. She has also produced the Baptism Certificate of her two children, Ex. S. 12 and S. 13, and in both these documents the name of the father is shown as G. L. Jayaprakash. She has also produced Ex. S. 14 student identity card, Ex.S. 15 training certificate of the first respondent. She has also produced Ex. S. 9, a letter sent by respondent authorising her to give money to the bearer of that letter.

14. The teamed counsel for the respondent contended that as the petitioner continued to live with the respondent even after they came to know about the adultery, there has been condonation of the adultery by the petitioner and as such she would not be entitled to a decree of divorce. It is no doubt true that even after coining to know about the respondent’s relationship with R.W. 3 the petitioner continued to live with the respondent till about January, 1991. But it must be remembered that this is not a case of a stray act of adultery by the respondent, which could be said to have been condoned by the petitioner cohabiting with the respondent even after the act of adultery. The evidence of R.W.-3 shows that the respondent was living with her till 1993. As such, the act of adultery committed by respondent with R.W.-3 has been a continuous one and it is admitted that before filing this petition, the petitioner filed a suit against the respondent and obtained an order of temporary injunction restraining him from coming to her house. This conduct clearly shows that by the date of filing of this petition, the petitioner had not condoned the continuous adultery committed by the respondent. As such this is not a case where it could be said that there is condonation of the adultery committed by the first respondent.

17. The evidence shows that the respondent developed intimacy with first co-respondent and he was actually living with her and had also begotten two children. The fact that the respondent lost his job in 1991 is not disputed by the respondent. Though the respondent states that the rift between him and the petitioner started because of his inability to pay sufficient money to the petitioner towards domestic expenses, it is highly improbable that the petitioner who is having two children would have gone to the extent of filing a suit against the respondent to prevent him from coming to her house. The respondent who had developed intimacy with correspondent No. 1 must have been in need of money to maintain that family also and his own income was not much and there is every possibility of the respondent insisting on the petitioner to pay him money out of her salary. Nothing has been elicited in the cross-examination of the petitioner to doubt the veracity of the petitioner that the respondent used to pick up quarrels with her and used to beat her if she refused to pay money or to part with her gold jewels. The learned counsel for the respondent submitted that in the petition the petitioner has only alleged that the responded was about to assault her on two occasions and that however that was prevented and that she has nowhere alleged that the respondent had actually beaten her and that as such her evidence cannot be relied upon.”

After referring to the evidence of adultery and cruelty, the learned Judge concluded :

“The material on record clearly establishes that the respondent has been guilty of adultery and that he has also treated the petitioner with such cruelty as would have entitles her to a judicial separation, even if he was not guilty of adultery. The manner in which the respondent has contested the petition shows that there is no collusion between the respondent and the petitioner.”

On going through the evidence add the record produced, we have not been persuaded to come to any other conclusion. We are satisfied that the order impugned in this appeal is based on proper appreciation of evidence and the, provisions of law. The allegations made in the petition filed by the respondent wife were proved both by oral as well as documentary evidence.

12. There is no merit in this appeal which is dismissed with costs throughout. The order of the learned single Judge is upheld. The marriage of the parties is directed to be dissolved in terms of the decree passed in favour of the respondent wife. She is also held entitled to the custody of the minor children.

13. Appeal dismissed.

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