IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE P.D.RAJAN
FRIDAY,THE 20TH DAY OF DECEMBER 2013/29TH AGRAHAYANA, 1935
Mat.Appeal.No. 15 of 2006 ( )
AGAINST THE ORDER IN OP 112/2002 of FAMILY COURT,KOZHIKODE
P.MOHANDAS PANICKER, AGED 50 YEARS,
S/O.GOVINDA PANICKER, PARAMBIL SREEMOD VILLA
CHEVAYUR AMSOM AND DESOM, KOZHIKODE TALUK.
BY ADVS.SRI.MANJERI SUNDERRAJ
1. K.K.DAKSHAYANI, AGED 45 YEARS,
D/O.RAMANKUTTY PANICKER, KALARIKANDY VEEDU
P.O.KODUVALLY, KODUVALLY AMSOM AND DESOM
2. RATHNAKARAN NAIR, AGED 35 YEARS,
PUTHALATHKANDY HOUSE, P.O.PUTHUPADI, PUTHUPADI AMSOM
MALAPPURAM DESOM, KOZHIKODE TALUK.
R,R1 BY ADV. SRI.P.V.KUNHIKRISHNAN
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 20-12-2013, ALONG WITH RPFC. 206/2005, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Mat.Appeal.No. 15 of 2006
ANNEX-1: IMPUGNED ORDER DATED 19/10/2005 IN O.P.NO.112/2002 FAMILY COURT, KOZHIKODE (CERTIFIED CARBON COPY OBTAINED ON 02/11/2005).
ANTONY DOMINIC & P.D. RAJAN, JJ.
Mat. Appeal No.15/2006 & R.P.(FC)No.206/2005
Dated this a 20th day of December, 2013
1. This seductiveness is filed conflicting a sequence upheld by a Family Court, Kozhikode in OP No. 112/2002 that was elite by a appellant/husband on a belligerent of adultery as supposing u/Section 13(1)(i) of a Hindu Marriage Act, 1956 seeking divorce conflicting a 1st respondent, his wife. The appellant married a 1st respondent on 14/12/1974 as per a Hindu prevalent rites and thereafter, they lived together as father and wife. In a wedlock, dual children were innate to them and both of them have achieved majority. According to a appellant, while they were staying in a family house, a 1st respondent used to collect adult quarrels with him for stupid reasons and used to act indifferently. She used to emanate problems in a chateau and yet any provocation, cry aloud to attract a courtesy of neighbours. For one reason or a other, she frequently visited her chateau and stayed there. Subsequently, they shifted their chateau to a new house. After a matrimony of her initial daughter, a 1st respondent used to revisit her family chateau during Koduvally and stayed there for several days. Such indifferent function and a write calls during that duration were beheld by a appellant. From this, it was learnt that a masculine used to make phone calls to her. He was after identified as one Manoj. When a appellant enquired about this, she sensitive him that she had some income transaction with Manoj, and that a phone calls were done in that connection. Further enquiry done by a appellant suggested that a aforesaid Manoj was a revisit caller to a family chateau of a 1st respondent during Koduvally and that they confirmed an intimacy. Knowing this, his son, Sreejith warned her not to continue this control and attribute and a 1st respondent certain him that she would mend her ways.
2. Subsequently, she grown an cognisance with a 2nd respondent and on 19/08/2001 during 10.30 p.m. a 2nd respondent was found in a bed room of a 1st respondent. According to a appellant, while he was sleeping in another room, on conference some noise, he came to a backside of a bed room of a 1st respondent and saw him inside and that realising a participation of a appellant, a 2nd respondent ran away. White evading from there, a neighbours reason him red handed. The second occurrence was on 05/11/2001 when a appellant and his son returned from a shop, they found a front doorway of a chateau sealed when they looked in to a bed room by a window respondents 1 and 2 were found naked, and indulging in passionate retort and that on saying them, a 2nd respondent transient from there. In these circumstances, a appellant contended that a 1st respondent is vital in adultery and he prayed for dissolving his matrimony with a 1st respondent on a belligerent of adultery.
3. In a Family Court, a 1st respondent mom resisted a petition by filing a created matter denying a explain of adultery with a 2nd respondent. She certified that after a marriage, a appellant and a 2nd respondent lived together, but, contended that she did not emanate any problems in a marital life. It was contended that after a marriage, for a duration of 8 years, they lived together during tharavadu chateau and afterward they shifted to a new residence. While staying in a tharavadu house, a appellant treated her with cruelty and in such circumstances, they shifted to a new house. She denied a explain that she had unlawful tie with Manoj or Retnakaran Nair and according to her, they were sum strangers to her. According to her, after immoderate liquor, lifting fake allegations, he used to attack her frequently. He is an astrologer, removing some-more than Rs. 15,000/- per month and he used to association with conflicting kinds of people and was heading a careless life. On 05/11/2001 during 11.30 a.m., a appellant assaulted a 1st respondent and driven her out of a chateau and thereupon she left a chateau with her hermit during 10 p.m. on a same day. Hence, she prayed to boot a petition.
4. The 2nd respondent filed a conflicting and contended that he had no tie with a 1st respondent and a purported incidents of 19/08/2001 and 05/11/2001, had no tie with him. According to him, a allegations in a petition were groundless and he also prayed to boot a petition.
5. RP (FC) No. 206/2005 is filed conflicting a sequence in MC No. 146/2003, that was filed by a mom conflicting a appellant husband, claiming maintenance. Her box was that a appellant was removing some-more than Rs. 15,000/- per month from his row and Rs. 3,000/- from his landed properties. She had no income of her possess and she compulsory Rs. 1500/- per month for her maintenance. The appellant father strongly resisted a above contentions and argued that a respondent is carrying sufficient income of her possess for her provision and that she was not entitled to get any volume for her maintenance. He also purported that she was vital in adultery and that an unfaithful mom is not entitled to get upkeep from her father and he prayed to boot this explain also.
6. In a Trial Court, a appellant and a respondent adduced both verbal and documentary evidence. The justification consists of verbal testimony of PWs 1 to 3 and RW 1 and documentary justification of Exts. B1 to B5. The Trial Court discharged OP No. 112/2002 and partly authorised a MC. Aggrieved by that order, a appellant father elite Mat. Appeal No. 15/2006 and RPFC 206 of 2005.
7. The categorical belligerent urged by a schooled warn for a appellant was that it was valid that a 1st respondent willingly had passionate retort with another masculine and that therefore, she tricked a husband. The justification of PWs 1 to 3 showed that a 1st respondent intent in passionate retort with a foreigner and a anticipating of a Court next on this emanate is incorrect, bootleg and improper. It was complained that a approach justification on adultery was not skill appreciated by a Trial Court and that when approach justification with courtesy to adultery is adduced, a Court can't omit such justification on groundless and illogical grounds. According to a appellant, a justification of PW 3 throws light on a emanate of adultery and a 1st respondent was vital alone yet any usually and reasonable means and that her explanations are not satisfactory.
8. There was no coming for a respondents.
9. The issues that arise for caring in Mat. Appeal No. 15 of 2006 is presumably a 1st respondent willingly had passionate retort with any chairman other than her associate and presumably a appellant is entitled for a approach of divorce underneath Section 13(1)(i) of a Hindu Marriage Act?
10. According to Section 13(1)(i) of a Hindu Marriage Act, 1955, any matrimony solemnised, presumably before or after derivation of this Act, may, on a petition presented by presumably a father or wife, be dissolved by a approach of divorce on a belligerent that after a solemnisation of a marriage, a other celebration willingly had passionate retort with any chairman other than her or his spouse. In this case, a appellant married a 1st respondent as per a prevalent rites and while staying together she is purported to have led an unfaithful life. We examined a verbal justification adduced by PW 1 and his son, PW 3 in support of this allegation. According to PW 1, while he was staying with his mom in a family house, a 1st respondent behaved indifferently and she visited her chateau and stayed there yet any reason. On several occasions, she quarrelled with him yet any reason and a appellant practiced to all these contravention to snub a family. Subsequently, they shifted their chateau to a new chateau and there also, a 1st respondent continued her progressing control and function and started connecting with other masculine persons. After his daughter’s marriage, a 1st respondent stayed in her chateau during Koduvally for several days where, she came in hit with one Manoj from Thamarassery. One day their son, PW 3, happened to attend a phone call and came to know that Manoj was job his mom and realising this, he warned her. In annoy of this warning, she continued her attribute with Manoj. On enquiry a appellant found that Manoj was a revisit caller to a 1st respondent’s chateau during Koduvally. When a appellant enquired about a visit, she replied that there was some income transaction with him. Another occurrence narrated by PW 1, was on 19/08/2001. On that day during 10.30 p.m., while he was hearing T.V., he told a 1st respondent to revoke a volume of a T.V. and during that time, she switched it off and went to nap in a apart bedroom and sealed a doorway from inside. After some time, on conference some sound from inside a room, a appellant went to a behind side of a chateau and looked into a room. At that time, realising a participation of a appellant, somebody ran divided from a 1st respondent’s bedroom. On conference a paint and cry of a appellant, a neighbours collected there reason reason of a 2nd respondent and on interrogation, a 2nd respondent confessed his unlawful tie with a 1st respondent.
11. The appellant also narrated another incident, that happened on 05/11/2001. On that day, along with his son, he went to a grocery shop, that is 1 k.m. divided from his chateau for purchase. At 11.30 a.m., they returned home and found a front doorway closed. Both of them went to a backside of a chateau and peeped into a bed room by a window, when they found respondents 1 and 2 exposed and in a compromising position indulging in sex. On saying a appellant, a 2nd respondent ran divided from there by a backside of a house. This occurrence was witnessed by one Suresh and Girish, neighbours of a appellant. PWs 2 and 3 upheld a occurrence and zero has been brought out in cranky hearing to disprove this approach evidence. But, a Trial Court rejected a justification of PW 1 to 3 yet deliberating a peculiarity or acceptability and we do not find any justification in dispatch a approach verbal testimony of PW 1 to PW 3.
12. The 1st respondent denied all a allegations conflicting her. When she was examined as RW 1, she contended that she had no tie with a 2nd respondent or Manoj. The 1st respondent deposed that a above allegations were lifted by a appellant with distant motive, after transferring his skill in a name of his daughter. She also staid that a dual incidents purported were also fake and that she had never indulged in any passionate retort with a 2nd respondent or Manoj. Her box is that a appellant is an Astrologer by row and that while staying together, he was in a robe of torturing her brutally after immoderate liquor. RW 1 certified that her matrimony was a adore matrimony and according to her, a appellant was always meddlesome in his personal happiness. She purported that whenever RW 1 sensitive about her illness and inconvenience, a appellant became aroused and treated her in an evil way. During menstrual periods, when she had serious bleeding, during that time also, a appellant did not caring to take her to a sanatorium and that even in annoy of medical advice, he did not give scold medical assistance to her.
13. Adultery is one of a drift accessible for divorce underneath all personal laws. In Section 13(1)(i) of a Hindu Marriage Act, it is supposing thus: “has, after a solemnisation of a marriage, had intentional passionate retort with any chairman other than his or her spouse;” It is therefore transparent that father or mom can sue for divorce conflicting a other on a belligerent of adultery and a essential part of adultery is passionate intercourse, that presupposes a carnal kinship between a masculine and woman. It means passionate retort between a married chairman and a chairman of a conflicting sex, not being a other associate presumably married or unmarried. The second essential component is that a act of passionate retort contingency be consensual. This means that if a mom lacks a mental ability to give agree or was underneath a change of any drug or wine and any passionate act is achieved desiring that a conflicting celebration is her spouse, it will not volume to adultery. The Apex Court in a preference of Eamist John White v. Kathleen Olive White and Others, in divide 10 13 reason thus:
10. The appellant contends that a usually end to be arrived during on a justification taken as a whole is that a mom was guilty of adultery with respondent 2. In other difference a justification was in peculiarity and apportion such that it satisfies a mandate of Section 14 of a Act that provides:
Section 14 “In box a Court is confident on a justification that a box of a postulant has been proved….
The critical difference requiring caring are ‘satisfied on a evidence’. There difference indicate that a avocation of a Court is to pronounce a approach if confident that a box for a postulant has been valid yet boot a petition if not so satisfied. In Section 4 of a English Act, Matrimonial Causes Act of 1937 a same difference start and it has been there reason that a justification contingency be transparent and excusable over a small change of probabilities and decisive in a clarity that it will infer what Sir William Scott described in Loveden v. Loveden 1810 (161) E.R. 648 (D) as “the rhythmical option of a reasonable and usually man”. Lord Mac Dermott referring to a outline of Sir William Scott pronounced in Preston Jones v. Preston Jones, 1951 A.C. 391 during p. 417(E):
The office in divorce involves a standing of a parties and a open seductiveness requires that a matrimony bond shall not be set aside easily or yet despotic enquiry. The terms of a Statute recognize this plainly, and we skinny it would be utterly out of gripping with a endangered inlet of a supplies to reason that a Court competence be “satisfied” in honour of a belligerent for dissolution, with something reduction than explanation over reasonable doubt. we should, perhaps, supplement that we do not bottom my conclusions as to a suitable customary of explanation on any analogy drawn from a rapist law. we do not cruise it is illusive to say, during any rate given a preference of this House in Mordaunt v. Moncrelffe, 1874 (30) LT 649 (F), that a dual jurisdictions are other than distinct. The loyal reason, as it seems to me, given both accept a same ubiquitous standard- explanation over reasonable doubt-lies not in any analogy yet in a sobriety and open significance of a emanate with that any is concerned.
13. In a fit formed on a matrimonial corruption it is not compulsory and it is indeed frequency illusive to infer a emanate by any approach justification for in really few cases can such explanation be obtainable. The doubt to be motionless in a benefaction box therefore, is presumably on a justification that has been led a Court can be confident over reasonable doubt that adultery was committed by a mom with respondent No. 2 during Patna between Jul 25, 1950 and Jul 28, 1950. In a opinion a fact valid are quantitatively and qualitatively sufficient to infer a exam laid down by a House of Lords in Preston Jones box (E) (supra). The mom went to Patna and stayed with respondent No. 2 underneath an insincere name. They assigned a same room i.e., room No. 10. There was positively a guilty desire and passion indicated by a control of respondent No. 2 and there is no discordant denote as to a desire and control of a wife. On a other palm her control as shown by a justification is so wholly unchanging with her shame as to transparent a end of her carrying committed adultery with respondent No. 2 and therefore a anticipating of a Courts next as to a shame should be reversed.
In a light of a above authorised principles, it should be reason that in cases where adultery is alleged, a postulant (here a appellant) has to infer his box and a Court should be “satisfied” on a drift of dissolution. Here, a verbal testimony tendered by PWs 1 to 3 is arguable and excusable and we do not find any reason for a rejection. It is really formidable to get approach justification in cases of adultery. In Bipin v. Prabhabate MANU/SC/0058/1956 : 1957 KHC 573 : AIR 1957 SC 176 : 1956 SCR 838, Apex Court staid a inlet of justification and “Standard of Proof” compulsory in matrimonial cases and adopted a customary “beyond reasonable doubt”. But in a after preference in Eamist John White [supra] it was celebrated that in cases of adultery a Court should be “satisfied on a evidence” that a box of a postulant has been valid and that such was a inlet of customary of proof.
14. The explanation of adultery and weight of explanation are frequently a confused one, while filing a box and introducing evidence. In progressing decisions Apex Court reason that a sequence of “proof over reasonable doubt” is a element practical in rapist case, yet in complicated law, in matrimonial disputes, adultery can be valid by infancy of probabilities. The law relating to “Standard of Proof came adult before a 3 Judge dais of a Apex Court in Narayan Ganesh Dastane v. Sucheta Narayan Dastane MANU/SC/0330/1975 : 1975 KHC 183 : 1975 KLT SN 61 : AIR 1975 SC 1534 : 1975 (2) SCC 3263 in that Supreme Court reason that a normal sequence that governs a polite move is that it is valid by infancy of probabilities.
Normally this Court would not have left into a justification in second appeal. Section 100 of a CPC. Restricts a office of a High Court in second seductiveness to questions of law or to estimable errors or defects in a procession that competence presumably have constructed blunder or forsake in a preference of a box on merits. The High Court came to a end that both a Courts next had unsuccessful to request a scold beliefs of law in last a emanate of cruelty. Accordingly a High Court proceeded to cruise justification for itself. Under Section 103 CPC a High Court can establish any emanate of fact if a justification on a annals is sufficient yet if a High Court takes on itself a avocation of last an emanate of fact, a powers to conclude justification would be theme to a same confining conditions to that a energy of any Court of contribution is usually theme The boundary of that energy are not wider for a reason that a justification is being appreciated by a High Court and not by a District Court. While appreciating evidence, inferences competence and have to be drawn yet Courts of contribution have to remind themselves of a line that divides an deduction from theory work. Normally this Court would have remanded a matter to a High Court for a uninformed caring of a justification yet given a record were tentative for 13 years a Court itself went into a evidence. The weight of explanation in a matrimonial petition contingency distortion on a postulant given usually a weight lies on a celebration that affirms a fact, not on a celebration that denied it. This element accords with common sense, as it is most easier to infer a certain than a negative. The postulant must, therefore, infer that a respondents had treated him with cruelty within a definition of Section 10(1)(b) of a Act. But a High Court was wrong in holding that a postulant contingency infer his box over a reasonable doubt. The normal sequence that governs polite record is that a fact is pronounced to be determined if it is valid by infancy of probabilities. Under Section 3 of a Evidence Act, a act is pronounced to be valid when a Court presumably believes it to exist or if conspires a existence so illusive that a advantageous masculine ought in a circumstances, to act on a conjecture that it exists. The initial step in this routine to repair a probabilities, a second to import them. The unfit is weeded out in a initial stage, a extraordinary in a second. Within a far-reaching range, of probabilities a Court has mostly a formidable choice to make yet it is this choice that eventually determines where a infancy of probabilities lies. Important issues like a standing of parties approach closer inspection than those like a loan on a promissory note. Proof over reasonable doubt is explanation by a aloft customary that generally governs rapist trials or trials involving enquiries into issues of quasi-criminal nature. It is wrong to import such considerations in trials of a quite polite nature. Neither Section 10 nor Section 23 of a Hindu Marriage Act requires that a postulant contingency infer his box over reasonable doubt Section 23 confers on a Court a energy to pass a approach if it is confident on a matters mentioned in Clauses (a) to (e) of that Section. Considering that record underneath a Act are radically of a polite inlet a word ‘satisfied’ contingency meant confident on a infancy of probabilities and not confident over a reasonable doubt. The multitude has a interest in a establishment of matrimony and therefore, a imperfect associate is treated not as a small defaulter yet as an offender. But this amicable philosophy, yet it competence have a temperament on a need to have a clearest explanation of an explain before it is supposed as a belligerent for a retraction of marriage, it has no temperament on a customary of explanation in matrimonial cases.
Calcutta High Court in Dr. Saroj Kumar Sen v. Dr. Kalyan Kanta Ray and Another MANU/WB/0083/1980 : AIR 1980 Cal. 374, in paragraphs 9 reason thus:
9. At a opening let us understanding with a indicate of law. Halsbury’s Laws of England, 4th Edition, Vol. XIII, para. 563 says that adultery contingency be valid to a compensation of a Court, that is on a infancy of luck depends on a subject-matter and in suit as a corruption is grave, so ought a explanation to be clear. The divorce is a polite move and a analogies of rapist law are not apt. Now, this is not a rapist case. In a rapist case, there is a hypothesis of ignorance in a accused’s favour. In annoy of a supplies of Section 3 of a Indian Evidence Act, such hypothesis of ignorance of an indicted has been alien into a Indian Criminal Law from a English law. In a obvious box of Woolmington v. Director of Public Prosecutions reported in 1935 AC 462, it has been staid that via a web of a English Criminal Law one golden thread is always to be seen, that is a avocation of a charge to infer a prisoner’s guilt. But there is no such law in courtesy to a polite proceedings. Section 3 of a Indian Evidence Act will bind a emanate on this for it says when a fact is proved, disproved and not proved. That Act nowhere says that a polite Proceeding has to be valid over reasonable doubt. Of course, relying on a box of Preston Jones v. Preston Jones reported in 1951 (1) ALL ER 124, it has been staid in a box of White v. White in MANU/SC/0103/1958 : AIR 1958 SC 441 that in cases of adultery, a postulant contingency infer his box to a hilt. In England formerly a perspective was taken that such cases contingency be valid over reasonable doubt. Then in a box of Blyth v. Blyth, 1996 AC 643 (supra) a House of Lords has reason by a infancy that per divorce or a bars to divorce like connivance or condonation, like any other polite case, a petitioner’s box contingency be valid by a infancy of probability. In a box of Dastane v. Dastane, MANU/SC/0330/1975 : AIR 1975 SC 1534 during p. 1540, this aspect of customary of explanation was discussed by a Supreme Court and it was reason that such cases need not be valid to a hilt. In these forms of cases, this is a latest position of law in England and in India as well. Consequently, a views voiced in a cases of Sachindra v. Nilima, MANU/WB/0007/1970 : AIR 1970 Cal. 38 (supra) and of Subrata v. Dipti, AIR 1974 Cal 61 (supra) are no longer good law. Therefore, it is now compulsory to see, if a box of adultery has been valid and presumably a exam of infancy of luck satisfied.
15. The 3 Judge Bench of a Apex Court in Jayachandra v. Aneel Kaur MANU/SC/1023/2004 : 2005 KHC 7 : AIR 2005 SC 534 : 2005 (1) KLT 26 : 2005 (2) SCC 22 explained a visualisation of customary of explanation as follows:
Standard of proof.– The visualisation of explanation over a shade of doubt can be practical usually to rapist trial. It can't be practical to polite disputes and positively not to matrimonial disputes concerning ethereal personal attribute between father and wife.
The beliefs laid down in a above decisions echo that in polite cases, infancy of probabilities is a customary to be adopted to infer a case. No doubt, matrimonial cases are polite record and a Court can act on infancy of probabilities, generally in adultery cases, given it is formidable to get approach evidence.
16. In a above contribution and circumstances, we reject a row put forwarded by a 1st respondent mom and accept a justification of a appellant. The infancy of probabilities are in foster of a appellant. Hence we reason that a box of a appellant that on 05/11/2001 a 1st respondent committed adultery with a 2nd respondent after 10.30 a.m. in a bed room of a appellant’s chateau stands valid and we find no collusion between a parties. When adultery is valid and determined a approach of retraction of matrimony should be granted. Therefore, a visualisation and approach upheld by a Family Court are to be set aside.
17. Now we shall understanding with RP (FC) No. 206/2005. The justification of PWs 1 to 3, discussed above proves that a 1st respondent is vital in adultery. When she is vital in adultery, she is not entitled to get any volume towards maintenance. Section 125(4) of Cr.P.C. reads as follows:
125. Order for upkeep of wives, children and parents.–
xxxx xxxx xxxx
(4) No mom shall be entitled to accept an stipend for a upkeep or a halt upkeep and losses of proceeding, as a box competence be, from her father underneath this territory if she is vital in adultery, or if, yet any sufficient reason, she refuses to live with her husband, or if they are vital alone by mutual consent.
Here adultery is valid and therefore she is not entitled to get any volume as maintenance.
In a result, Mat. Appeal No. 15/2006 and RP (FC) No. 206/2005 are likely of as follows:
a) The sequence upheld by a Family Court, Kozhikode in OP No. 112/2002 is set aside.
b) The matrimony solemnised between a appellant and 1st respondent is dissolved by a approach of divorce u/Section 13(1)(i) of a Hindu Marriage Act, 1955 with outcome from today.
c) The sequence of upkeep postulated in MC 146 of 2003 is hereby set aside.
No cost ordered.