HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved on: 16.7.2019
Delivered on: 18.12.2019
Court No. – 34
Case :- FIRST APPEAL No. – 451 of 2016
Appellant :- Krishna Murarri
Respondent :- Sangeeta
Counsel for Appellant :- Uday Bhan Singh,Uday Bhan Singh
Counsel for Respondent :- Atul Kumar Tiwari
Hon’ble Sudhir Agarwal,J.
Hon’ble Rajeev Misra,J.
(Delivered by Hon’ble Rajeev Misra, J.)
1. The present first appeal under Sectionsection 19 of Family Courts Act, 1984 (hereinafter referred to as ‘Act 1984’) has been filed by Krishna Murari Plaintiff-appellant (hereinafter referred to as ‘Plaintiff’) challenging judgement dated 17.11.2015 and decree dated 27.11.2015, passed by Principal Judge, Family Court, Kanpur Dehat in Suit No. 11 of 2009 (Krishna Murari Vs. Sangeeta) under Sectionsection 13 of Hindu Marriage Act, 1955 (hereinafter referred to as ‘Act 1955’) whereby suit filed by Plaintiff for grant of decree of divorce on the ground of adultery, which is recognized as a ground of divorce under Sectionsection 13 (1) (i) of Act 1955 has been dismissed.
2. We have heard Mr. Udhay Bhan Singh, learned counsel for Plaintiff and Mr. Atul Kumar Tiwari, learned counsel representing Defendant-respondent (hereinafter referred to as ‘Defendant’)
3. According to plaint allegations marriage of Plaintiff was solemnized with Defendant on 17.6.2005 at Hindupur in accordance with Hindu Rites and Customs. After marriage, Defendant came to her matrimonial home at village Nasirapur. It is alleged by Plaintiff that after some time, Defendant insisted that they should live in Bilhour. However Plaintiff resisted the desire of Defendant on the ground that he is the only son of his parents and father of Plaintiff has died long ago. As such, Mother of Plaintiff will be left alone at Naserpur. Therefore, it is not advisable to live in Bilhour. However, it is alleged by Plaintiff that after some time again pressure was exerted by Defendant to live at Bilhour. Ultimately, Plaintiff acceded to the insistence of defendant and started residing at Bilhour. It is further alleged by Plaintiff that on 28.9.2005, when he returned after closing his shop found of his residence locked. On inquiry, it was gathered that Defendant has gone to house of her Jija, namely, Mahesh Chand, who is also living in Bilhour. According to Plaintiff, he reached house of Mahesh Chand at arround 6:00 pm and found Defendant in compromising position with Mahesh. Plaintiff is alleged to have words with Defendant but she refused to pay any heed. After the aforesaid incident, Plaintiff is alleged to have pursuaded Defendant to abstain from visiting her Jija’s place but she refused. On complaint being made to father and brother of Defendant Sangeeta, they also did not pay any heed, but to the contrary supported her. They are also alleged to have threatened Plaintiff of his life. Relationship between parties became strained. On 20.4.2006, father of Defendant came to Bilhour, and stating that there is some function in village and Sangeeta shall return after one week. Accordingly, Sangeeta wife of Plaintiff went with her father on 20.4.2006 to her parental home. After one week, Plaintiff went to Hindupur to bring back Sangeeta but father and brother of Defendant refused to send her along with Plaintiff. It is also alleged that on 5.6.2006, when Plaintiff was at his shop, his friend Girish Chand informed that his wife has arrived at her Jija’s house, since yesterday. Plaintiff closed his shop and retuned to his home waiting for Defendant. However, as Defendant did not return up to 8:00 pm, Plaintiff went to the house of Jija of Defendant and there he saw his wife Sangeeta in compromising position with Mahesh Chand, her Jija. Inspite of aforesaid, wife of Mahesh i.e. Ranu and Mahesh abused Plaintiff, as such, Plaintiff returned to his home. Defendant lodged an F.I.R. against Plaintiff in which Plaintiff surrendered before Court on 20.7.2006 and enlarged on bail on 20.7.2006. It is also alleged that on 4.8.2006, Pappu, brother-in-law of Plaintiff and Mahesh Chand, Sadhu of Plaintiff are alleged to have assaulted Plaintiff and also took away Rs. 10,000/- from the person of Mahesh. Inspite of all attempts made by relatives of Plaintiff, to have a compromise, Defendant did not accede to the same. To the contrary, she initiated criminal proceedings against Plaintiff. As such, except for divorce there is no other way to resolve the deadlock.
4. Suit filed by Plaintiff was contested by Defendant. She accordingly filed a written statement whereby, not only plaint allegations were denied but also additional pleas were raised. Defendant pleaded that her mother-in-law and sister-in-law have harassed her for demand of dowry. Consequently, criminal case regarding demand of dowry was initiated by Defendant, which is pending consideration. In respect of incident which was alleged to have occurred on 4.8.2006, in which Plaintiff was alleged to have been assaulted by Pappu, brother-in-law and Mahesh Chand (Sadhu) it was stated that Police upon investigation has submitted a final report, as the incident was found to be false. It is the Plaintiff-husband, mother-in-law and sister-in-law of Defendant, who have caused physical and mental cruelty upon defendant and have also harassed defendant for money. No attempt was made by Plaintiff to apologize for his previous mistakes or give an undertaking for good behaviour in future. Defendant categorically pleaded that in case Plaintiff is ready to remove the cause of agony and gives an undertaking that he will keep Defendant properly then Defendant is ready to live with Plaintiff and to discharge her marital obligations as wife of Plaintiff. Allegations made against Mahesh Chand, Jija of Defendant, were categorically denied.
5. After exchange of pleading, parties went to trial. Court below upon consideration of pleadings of parties, framed following issues:
(a) Whether plaintiff is entitled to decree of divorce on grounds mentioned in the plaint.
(b) Whether plaintiff is entitled to any other relief.
6. Plaintiff in support of his case, adduced himself as P.W.-1 and One Surjit as P.W.-2. No documentary evidence was filed by Plaintiff in support of his case. Defendant, in support of her defence adduced herself as D.W.1 and one Rani as D.W.-2. Defendant also filed documentary evidence, in proof of her defence. She accordingly filed copy of formal order passed in Misc. Case No. 20/74/10 Smt. Sangeeta Vs. Krishna Murari.
7. Court below examined pleadings and evidence of parties. It accordingly concluded that Plaintiff has instituted suit for divorce on the ground of adultery but Plaintiff could not prove the same. In support of aforesaid finding, Trial Court observed that in order to prove adultery, following three questions must be answered in affirmative:
(a) Whether after marriage, Defendant had extra marital intercourse with any other person.
(b) Whether Defendant had extra marital intercourse with any other person on account of fraud, force or under influence of some psychotherapeutic substance, as such, she could not understand what is being committed upon her and therefore, no offence can be said to be committed by her. It is only when such crime is committed with a guilty mind that decree of divorce can be granted.
(c) With which person other than husband or wife has defendant entered into extra marital physical relationship.
8. Court below before proceeding to answer aforesaid three questions guarded itself with the parameters by which jurisdiction of Courts while deciding issue of ‘adultery’ is circumferenced. Court below rightly observed that question of ‘adultery’ cannot be decided like other grounds for dissolution of marriage. ‘Adultery’ is normally committed in secrecy and therefore, it is difficult to prove same by direct evidence. Consequently, ‘adultery’ can be inferred from circumstances. However, burden is upon person, who alleges adultery.
9. Court below examined above mentioned three questions in the backdrop of limitation as stated above and concluded that Plaintiff has failed to prove ‘adultery’ on the part of Defendant. In view of finding recorded on Issue-1, Court below further held that Plaintiff is not entitled to any other relief. Consequently, Court below dismissed suit of Plaintiff for grant of decree of divorce on ground of ‘adultery’ vide judgement dated 17.11.2015 and decree dated 27.11.2015. Feeling aggrieved, Plaintiff has now approached this Court by means of present first appeal.
10. Mr. Uday Bahan Singh, learned counsel for Plaintiff in challenge to impugned judgement and decree passed by Court below has submitted that impugned judgement and decree passed by Court below are manifestly illegal and in excess of jurisdiction, hence same are liable to be set aside by this Court. He next submits that from the statement of P.W.-1 and P.W.-2, it is proved beyond doubt that Defendant is guilty of committing ‘adultery’. He lastly submits that irrespective of findings recorded by Court below crux of matter is that parties have been living separately since 20.04.2006. As such, for all practical purposes, marriage of parties has broken down irretrievably. Therefore, this Court in exercise of powers under Sectionsection 19 of Act 1984, can still reverse the decree passed by Court below and decree suit of plaintiff-respondent by granting decree of divorce on ground of irretrievable break down of marriage.
11. Before proceeding to consider the correctness of judgement and decree passed by Court below, it would be appropriate to understand meaning of term ‘Adultery’ as same has not been defined in Act, 1955.
(i) In Philips Divorce Practice 4th Edition “Adultery” has been defined as voluntary sexual connection between two person of opposite sex who are not married to each other but of whom one alreat is married to third person”
(ii) In Halsbury’s Laws of England, Adultery for the purpose of relief in matrimonial jurisdiction has been defined to mean “consensual sexual intercourse during the subsistence of the marriage between one spouse and a person of the opposite sex not the other spouse.”
(iii) In Divorce 14th Edition 1952, adultery in relation to matrimonial matters has been held to mean “willing sexual intercourse between a husband or wife and on the opposite sex while the marriage subsists”
(iv) In RAYDON on divorce, 10th Edition, adultery has been held to be a matrimonial offence. It has been defined as “Consensual sexual intercourse between a married person and a person of opposite sex not the spouse, during the subsistence of the marriage.”
(v) In Webster’s New English Dictionary, 1888, adultery has been defined to mean “Violation of marriage bed; voluntary sexual intercourse of a marrried person with one of the opposite sex, whether unmarried or married to another; (the former case being technically designated single, the latter double adultery).”
(vi) In Fowler’s Concise Oxford Dictionary, adultery has been defined as “Voluntary sexual intercourse of married person with one of opposite sex married (double adultery) or not (single adultery).”
(vii) Adultery has been defined in Section 497 I.P.C. as follows:-
” whoever has a sexual intercourse with a person who is and whom he knows or has a reason to believe to be the wife of the another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of the adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine or with both.”
(viii) The term ‘adultery’ has not been defined in Act, 1955. What has been stated in Section 13 (1) (i) of Act, 1955 only provides as to what would constitute adultery i.e. “has after the solemnisation of the marriage, had voluntary sexual intercourse with any person other than his or her spouse.”
12. Having noted the definition of ‘adultery’ as defined in various texts, the Court now proceeds to examine, whether Plaintiff has been able to prove ‘adultery’ on the part of Defendant so as to entitle him to a decree of divorce as prayed for.
13. From perusal of judgement, passed by Court below, it is apparent that Court below upon appreciation of oral and documentary evidence and pleadings of parties, concluded that Plaintiff has failed to establish ‘adultery’ on party of defendant-appellant. Court below concluded that there is clear contradiction in the statement of P.W.-1 and P.W.-2. It further observed that Plaintiff has alleged that Defendant was in adulterous relationship with husband of Poonam D.W.-2. sister of Defendant. Rani D.W.-2 wife of Mahesh has deposed before Court below and in her statement in chief has clearly supported Defendant. P.W.-2 Surjit Singh in his statement in chief has alleged that he saw Defendant in the company of Mahesh husband of D.W-2 Rani in compromising position. Court below disbelieved the testimony of P.W.-2. Statement in chief of P.W.-2 is completely silent with regard to day, date and timing of alleged act of ‘adultery’ on part of Defendant in the company of Mahesh, husband of D.W.-2. Thus, having considered the impugned judgement and decree in the light of material on record, we find that Court below did not commit any illegality or irregularity in disbelieving case set up by Plaintiff. Consequently, the conclusion drawn by Court below refusing to grant decree of divorce to Plaintiff, on ground of ‘adultery’ which is ground for divorce, recognized under Sectionsection 13 (1)(i) of Act 1955, cannot be said to be illegal or erroneous.
14. On the issue of irretrievable breakdown of marriage, learned counsel for Plaintiff submitted that marriage of parties was solemnized on 17.6.2005 in accordance with Hindu Rites and Customs. However, Defendant, has deserted Plaintiff on 20.04.2006 without any valid reason. As such, since 20.04.2006 Plaintiff has been denied the happiness and pleasure of marital relationship with wife, causing physical and mental pain and agony to Plaintiff. It is also submitted that inspite of efforts made by Plaintiff to bring back Defendant to her matrimonial home, no heed was paid by Defendant. So much so, that on 15.11.2008, relatives of Plaintiff made an attempt to resolve the dead lock and bring back Defendant to her matrimonial home, but same also failed. On the aforesaid factual premise, learned counsel for Plaintiff submits that admittedly parties have been living separately since 20.04.2006 without any attempt by either side after 15.11.2008 to re-establish marital relationship between the two. This deadlock/stalemate, between the parties, clearly proves that parties have given up each other and there are no chances of reunion between them. As such marriage of parties has broken down irretrievably. Counsel for Plaintiff further submitted that Plaintiff has categorically pleaded in plaint that in spite of repeated efforts made by him, Defendant has chosen not to reside with Plaintiff. In such state of affairs asking the parties to live together will itself amount to injustice rather than doing justice to them. Therefore, in the light of aforesaid facts, it is vehemently urged that decree of divorce be granted to do complete justice between parties.
15. From perusal of plaint, we find that decree of divorce was not prayed for on the ground of irretrievable breakdown of marriage. Therefore, the question that arises for our consideration is:
“Whether a decree of reversal can be passed on a ground which was not the subject matter of adjudication before Court below.”
16. The issue relating to irretrievable break down of marriage has been considered by a Division Bench of this Court in First Appeal No. 525 of 2006 (Smt. Kavita Sharma Vs. Neeraj Sharma) decided on 7.2.2018, wherein it has been observed as follows in paragraph 28:-
“28. The above findings recorded by Court below could not be shown perverse or contrary to record. Having considered the fact that parties are living separately from decades, we are also of the view that marriage between two is irretrievable and has broken down completely. Irretrievable breakdown of marriage is not a ground for divorce under Act, 1955. But, where marriage is beyond repair on account of bitterness created by the acts of the husband or the wife or of both, Courts have always taken irretrievable breakdown of marriage as a very weighty circumstance amongst others necessitating severance of marital tie. A marriage which is dead for all purposes cannot be revived by the Court’s verdict, if the parties are not willing. This is because marriage involves human sentiments and emotions and if they are dried-up there is hardly any chance of their springing back to life on account of artificial reunion created by the Court’s decree. On the ground of irretrievable marriage, Courts have allowed decree of divorce and reference may be made to SectionNaveen Kohli v. Neelu Kohli (2006) 4 SCC 558 and Rishikesh Sharma Vs. Saroj Sharma, 2006(12) SCALE 282. It is also noteworthy that in SectionNaveen Kohli v. Neelu Kohli (supra) Court made recommendation to Union of India that Act, 1955 be amended to incorporate irretrievable breakdown of marriage as a ground for grant of divorce.”
17. Similarly this Court in First Appeal No. 792 of 2008 (Ashwani Kumar Kohli Vs. Smt. Anita) decided on 17.11.2016 has also considered the question posed by us and observed as follows in paragraphs 7, 8, 10, 11, 12 and 13:-
“7. Therefore, point for adjudication in this appeal is “whether a decree of reversal can be passed by granting divorce to the appellant on the ground which was not subject matter of adjudication before the Court below and is being raised for the first time in appeal”.
8. Under the provisions of Act, 1955 there is no ground like any “irretrievable breakdown of marriage”, justifying divorce. It is a doctrine laid down by judicial precedents, in particular, Supreme Court in exercise of powers under SectionArticle 142 of the Constitution has granted decree of divorce on the ground of irretrievable breakdown of marriage.
10. This aspect has been considered by this Court in Ram Babu Babeley Vs. Smt. Sandhya AIR 2006 (All) 12 2006 AWC 183 and it has laid down certain inferences from various authorities of Supreme Court, which read as under:-
“(i) The irretrievable break down of marriage is not a ground for divorce by itself. But while scrutinizing the evidence on record to determine whether the grounds on which divorce is sought are made out, this circumstance can be taken into consideration as laid down by Hon’ble Apex Court in the case of Savitri Pandey v. prem Chand Pandey, (2002) 2 SCC 73 and V. Bhagat versus D. Bhagat, AIR 1994 SC 710.
(ii) No divorce can be granted on the ground of irretrievable break down of marriage if the party seeking divorce on this ground is himself or herself at fault for the above break down as laid down in the case of Chetan Dass Versus Kamla Devi, AIR 2001 SC 1709, Savitri Pandey v. prem Chand Pandey, (2002) 2 SCC 73 and SectionShyam Sunder Kohli v. Sushma Kohli, (2004) 7 SCC 747.
(iii) The decree of divorce on the ground that the marriage had been irretrievably broken down can be granted in those cases where both the parties have levelled such allegations against each other that the marriage appears to be practically dead and the parties can not live together as laid down in Chandra Kala Trivedi versus Dr. SP Trivedi, (1993) 4 SCC 232.
(iv)The decree of divorce on the ground that the marriage had been irretrievably broken down can be granted in those cases also where the conduct or averments of one party have been so much painful for the other party ( who is not at fault) that he cannot be expected to live with the offending party as laid down in the cases of V. Bhagat versus D. Bhagat, (supra), Ramesh Chander versus Savitri, (1995) 2 SCC 7, Ashok Hurra versus Rupa Bipin Zaveri, 1997(3) AWC 1843 (SC), 1997(3) A.W.C. 1843(SC) and A. Jayachandra versus Aneel Kaur, (2005) 2 SCC 22.
(v) The power to grant divorce on the ground of irretrievable break down of marriage should be exercised with much care and caution in exceptional circumstances only in the interest of both the parties, as observed by Hon’ble Apex Court at paragraph No. 21 of the judgment in the case of V. Bhagat and Mrs. D. Bhagat, AIR (supra) and at para 12 in the case of Shyam Sunder Kohli versus Sushma Kohli, (supra).”
11. The above authorities have been followed by this Court in ”Pradeep Kumar Vs. Smt. Vijay Lakshmi’ in 2015 (4) ALJ 667 wherein one of us (Hon’ble Sudhir Agarwal,J.) was a member of the Bench.
12. In Vishnu Dutt Sharma Vs. Manju Sharma, (2009) 6 SCC 379, it was held that under Section 13 of Act 1955 there is no ground of irretrievable breakdown of marriage for granting decree of divorce. Court said that it cannot add such a ground to Section 13, as that would amount to amendment of Act, which is the function of legislature. It also referred to some judgments of Supreme Court in which dissolution of marriage was allowed on the ground of irretrievable breakdown but held that those judgments do not lay down any precedent. Supreme Court very categorically observed as under:-
“If we grant divorce on the ground of irretrievable breakdown, then we shall by judicial verdict be adding a clause to Section 13 of the Act to the effect that irretrievable breakdown of marriage is also a ground for divorce. In our opinion, this can only be done by the legislature and not by the Court. It is for the Parliament to enact or amend the law and not for the Court. Hence, we do not find force in the submission of learned counsel for the appellant.”
13. The above view has been followed in Darshan Gupta Vs. Radhika Gupta (2013) 9 SCC 1. Similar view was expressed in ”Gurubux Singh Vs. Harminder Kaur’ (2010) 14 SCC 301. This Court also has followed the above view in Shailesh Kumari Vs. Amod Kumar Sachan 2016 (115) ALR 689.”
18. In the case in hand, we find that parties have not been living separately on account of their own free will. Defendant has been forced to live separately on account of conduct of Plaintiff and other in-laws. Record further shows that it is Plaintiff, who has refused to keep Defendant with him as he failed to initiate any proceedings for restitution of conjugal relationship. Defendant has continuously and consistently pleaded that she wants to live with Plaintiff. In this view of the matter, argument raised by learned counsel for Plaintiff that there has been an irretrievable break down of marriage has no factual foundation. That apart this Court in Ashwani Kumar Kohli (supra) has clearly held that divorce cannot be granted on aforesaid ground, particularly when such a plea is raised by one party alone. In addition to aforesaid, decree of divorce was not prayed for, on ground of irretrievable break down of marriage also as parties are alleged to have been living separately since 20.04.2006. Plaint was presented in the year 2009, whereas divorce petition was finally decided vide judgement dated 17.11.2015 and decree dated 27.11.2015 passed by Principal Judge (Family Court), Kanpur Dehat in Suit No. 11 of 2009 (Krishna Murari Vs. Sangeeta). For a period of six long years, Plaintiff kept quiet and now for the first time, this issue is being raised. In our opinion, it is half hearted attempt on the part of learned counsel for Plaintiff to raise this plea without there being any factual foundation for the same.
19. In view of discussion made above, present appeal fails and is, therefore, liable to be dismissed. It is accordingly, dismissed. Cost made easy.
Order Date :- 18.12.2019