FAO No.M-51 of 2003 [1]
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
FAO No.M-51 of 2003
Date of decision:May 01, 2019
Rajesh Devi …Appellant
Versus
Jai Prakash …Respondent
Coram: Hon’ble Mr. Justice Rakesh Kumar Jain
Hon’ble Mr. Justice Harnaresh Singh Gill
Present: Mr. N.S.Shekhawat, Advocate,
for the appellant.
Ms. Pratibha Yadav, Advocate,
for respondent no.1(i).
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Rakesh Kumar Jain, J.
The appellant-wife is aggrieved against the judgment and decree
dated 20.12.2002 passed by the Family Court, by which her marriage with the
respondent (since deceased) was dissolved on the ground of cruelty.
The brief facts of the case are that the marriage of the appellant
with the respondent was solemnized on 14.02.1982 as per Hindu rites and
ceremonies at village Gokalgarh, Tehsil and District Rewari. At the time of
marriage, the respondent was a widower as his earlier wife, namely, Ramawati
died and out of the said wedlock, he had a son, namely, Ravinder Kumar,
whereas the appellant was a spinster. It was pleaded by the respondent-
husband that two sons, namely, Dipender and Yogender were born out of the
said wedlock and when he was in service at Gujrat police at Ahmedabad, the
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appellant developed relations with some other person of her village Gokalgarh.
It was also pleaded that the appellant had admitted the act of adultery in her
letters by referring herself to be a bad woman. It was further averred in the
pleadings that the appellant used to call him an eunuch (Hijra) and had refused
to do the household work. It is categorically pleaded in para no.9 of the
petition that in the month of August 1995, when she was at village Nimoth, her
two friends came to his house on a scooter and in his presence, they talked to
the appellant in a closed room and Master Mukesh kissed her in his presence.
The appellant and her friend consumed liquor in his house and did sexual act in
his presence, therefore, it is an act of cruelty. It is further averred that he was
in service and did not come to his village from August 1995 to 15.10.1997 and
during this period, the appellant was having pregnancy of 5-6 months and
aborted the same on 18.10.1997 in a private hospital at Rewari. The
respondent-husband has, thus, sought the decree of divorce by filing the
petition on 20.10.1997 on the ground of cruelty caused by the appellant to him
by living an adulterous life.
All the allegations made by the respondent-husband were denied
by the appellant in her written statement rather she has made allegations that
her husband was an alcoholic from the very beginning and used to spend all his
income to pursue his bad habits instead of maintaining her and the children and
used to beat her whenever she made a complaint about his bad habits.
On the pleadings of the parties, two issues were framed by the
Family Court on 27.03.1998, namely, “(1) whether the petitioner is entitled to
seek divorce from the respondent on the ground of cruelty as well as
adultery?OPP.” and “(2) Relief”.
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The respondent-husband had examined himself as PW1, his
brother Jaswant Singh as PW2, Ajit Singh, Record Keeper of Kalawati
Hospital, as PW3 and Sarpanch Rameshwar as PW4, whereas the appellant had
examined Chander Parkash, Record Keeper of Uma Bharti Senior Secondary
School, Rewari as RW1, herself as RW2, Raj Kumar as RW3 and Ram Avtar
as RW4. The learned Court below, after taking into consideration oral as well
as documentary evidence led by the respondent, concluded that the appellant
had been living an adulterous life which constitute cruelty and, therefore,
granted the decree of divorce under Section 13(1)(ia) of the Hindu Marriage
Act, 1955 (hereinafter referred to as the “Act’).
The appellant-wife has challenged the said decree by way of
present appeal, which was admitted on 07.10.2003. Thereafter, it came on
record that the respondent-husband had died on 18.11.2013 and before his
death, he had executed a registered Will dated 25.03.2008, bequeathing his
property in favour of Ravinder Kumar, son of his previous wife. The appellant
had also filed an application bearing CM No.21703-CII of 2015 under Order
22 Rule 4 read with Section 151 CPC for impleading the legal representatives
of the respondent. The said application was allowed on 23.07.2016, with the
following order:-
“This is an application filed under Order 22 Rule 4 read
with Section 151 CPC to implead the legal representative of
respondent-husband.
Respondents No.ii and iii are none other than the children
of the appellant born out of the wedlock of the appellant with the
deceased-respondent, namely, Jai Parkash. In our considered view,
respondent No.ii and iii are only proforma parties. Respondent i-
Ravidner Kumar, the son born out of the first wedlock of deceased-
Jai Parkash, is found to be a necessary party to the present appeal
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filed by Rajesh Devi challenging the decree of divorce granted in
favour of deceased-Jai Parkash. Therefore, the application is
allowed. Amended memo of parties is taken on record.
Mr. Jatinder K. Sehrawat, Advocate files vakalatnama for
respondents No.ii and iii.”
At the outset, counsel for the respondent has raised an issue
regarding maintainability of the present appeal after the death of the
respondent-husband on the ground that the divorce is a personal remedy which
cannot be pursued after the death of the husband. In this regard, she has relied
upon a decision of the Supreme Court rendered in the case of SectionSmt. Yallawwa
vs. Smt. Shantavva, 1997(11) SCC 159.
On the other hand, counsel for the appellant has submitted that the
present appeal is still maintainable even after the death of the husband because
the decree obtained by the husband is effective in law and determines status of
the appellant as a wife and also the decree has been obtained by the respondent
on the false grounds of adultery which attaches a stigma to the appellant. In
this regard, he has relied upon a decision of the Supreme Court rendered in the
case of SectionR. Lakshmi vs. K. Saraswathi Ammal, 1996(6) SCC 371. He has
also referred to a decision of this Court rendered in the case of SectionBalwinder
Kaur vs. Gurmukh Singh, 2007(2) PLR 22.
The question, thus, arises as to whether the appeal at the instance
of a spouse, challenging the decree passed against him/her of divorce, is
maintainable even if the other spouse dies during the pendency of the appeal?
The law in this regard has been settled by the Supreme Court in
R. Lakshmi’s case (supra), in which it has been held that even though the
husband is dead, yet the decree obtained by him is effective in law and
determines status of appellant as a wife. Apart from determining her status as a
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wife, it also determines her rights in the properties of her deceased husband,
which gives her sufficient locus standi and right to contest the divorce
proceedings even after the death of her husband. Similar is the view taken by
this Court in Balwinder Kaur’s case (supra) after referring to the judgment
relied upon by the respondent in Smt. Yallawwa’s case (supra).
Thus, we are of the considered opinion that the present appeal is
maintainable even after the death of the husband during pendency of the
present appeal as the decree of divorce passed in his favour during his lifetime
on the ground of adultery would determine her status as wife of the respondent
(deceased husband) and also going to effect her right to succeed to his property
as his wife.
On merits, counsel for the appellant has submitted that the
respondent has failed to prove the alleged act of cruelty based upon the act of
adultery by the appellant. However, before referring to the evidence which has
been allegedly misread by the Family Court, he has submitted that the
respondent had not impleaded the said adulterer as a co-respondent in his
petition though he has specifically named him in para no.9 of his petition,
which is contrary to the provisions of the Hindu Marriage (Punjab) Rules,
1956 (hereinafter referred to as the “Rules”) and in this regard, he has
particularly referred to Rule 10 of the Rules. There is no dispute that in para
no.9 of the divorce petition, the appellant has averred as under:-
“9. That in the month of August 1995 when she was at village
Nimoth two friends of respondent one name xxxx xxxx Village
Gokalgarh come to petitioner’s house on scooter and in the
presence of petitioner they talked with respondent in a closed room
and master Mukesh Kiss her in the presence and respondent her
friend used liquor in house and sexually enjoy in petitioner’s house.
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Hence its cruelty with petitioner.”
Learned counsel for the appellant has, thus, submitted that in view
of the failure on the part of the respondent in impleading the said adulterer as a
co-respondent in the divorce petition, the plea of adultery cannot be accepted
and in this regard, he has relied upon a judgment of this Court rendered in the
case of SectionDr. Ashok Kumar Aggarwal vs. Smt. Anju Raje, 2011(6) RCR
(Criminal) 1639.
Learned counsel for the respondent has not referred to any other
rule or provisions of law to counter the argument of the counsel for the
appellant in the above regard nor has referred to any decision in her support.
Thus, the question which arises for consideration is as to whether
the petition filed for seeking a divorce on the ground of adultery without
impleading the adulterer as a co-respondent, though having knowledge of the
person with whom the spouse is having sexual relations and also mentioning
about the same in the petition, is maintainable in view of Rule 10 of the Rules?
In order to answer this question, it would be relevant to refer to
the definition of adultery, which has been taken from the Concise Oxford
Dictionary and means “voluntary sexual intercourse between a married person
and a person who is not their spouse”. Sections 14 and Section21 of the Act empower
the High Court to frame the Rules and in pursuance thereof, the Rules have
been framed in which Rules 6, 10, 11 and 14 are relevant, which are
reproduced as under:-
“6. Full facts of adultery to be given.– 6.In any petition for
divorce the petitioner shall be required to give particulars as nearly
as he can of the acts of adultery alleged to have been committed by
the respondent or respondents, as the case may be.
xxx xxx xxx xxx
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10. Petition on ground of adultery : Adulterer to be impleaded
as party. — Upon a petition presented by a husband for divorce on
the ground of adultery, the petitioner shall make the alleged
adulterer a co-respondent. The petitioner may, however, be excused
from so doing on any of the following grounds with the permission
of the Court :–
(a) That the respondent is leading the life of a prostitute and
that the petitioner knows of no particular person with whom the
adultery has been committed;
(b) that the name of the alleged adulterer is unknown to the
petitioner although he has made due efforts to discover the same;
(c) that the alleged adulterer is dead.
11. True copy of pleadings to be served on adulterers.– Where
a husband is charged with adultery with a named person, a true
copy of the pleadings, containing such charge shall unless the
Court for good cause shown otherwise directs, be served upon the
person with whom adultery is alleged to have been committed,
accompanied by a notice that such person is entitled, within the
time therein specified, to apply for leave to intervene in the cause.
xxx xxx xxx xxx
14. Adulterer to pay whole or part of costs. — Whenever in any
petition presented by a husband, the alleged adulterer has been
made a corespondent and the adultery has been established the
Court may order the co-respondent to pay the whole or any part of
the costs of the proceedings; Provided that the co-respondent shall
not be ordered to pay the petitioner’s costs- (i) if the respondent
was, at the time of the adultery living apart from her husband and
was leading the life of a prostitute, or (ii) if the co-respondent had
not, at the time of the adultery, reason to believe the respondent to
be a married woman.”
Section 13(1)(ia) of the Act deals with the ground of cruelty but
Section 13(1)(i) of the Act deals with the ground of adultery. In the present
case, the decree has been granted to the respondent on the alleged act of
adultery by the appellant without impleading the adulterer who has been
specifically named in para no.9 of the petition. Rule 6 of the Rules provides
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that if a petition for divorce is filed on the ground of adultery, then the
particulars of the adulterer have to be given as early as possible. Rule 10 of the
Rules provides that it is incumbent upon the petitioner husband or wife to
implead the adulterer as a co-respondent but for three exceptions which are
provided therein. Rule 11 further says that copy of the pleadings is to be
served upon the said adulterer and Rule 14 further says that if the adultery is
established, the Court may order the adulterer to pay the whole or pay part of
the costs of the proceedings except for two exceptions provided in the Rules.
Thus, from the aforesaid Rules, it is apparent that the spouse
alleging adultery, has to implead the alleged adulterer as a party and in the
absence of the said adulterer as a co-respondent, the plea of adultery cannot be
accepted.
Although in the absence of the adulterer, whose name has been
mentioned in para no.9 of the petition filed by the respondent-husband, the
petition itself was not maintainable before the Family Court but we would also
refer to the evidence led by the respondent which has been misread by the
Family Court while holding that the appellant was living an adulterous life.
Learned counsel for the appellant has submitted that the
respondent has set up a case that after the birth of his children from the
appellant in the years 1985 and 1987, he underwent vasectomy operation and
was not capable of causing a pregnancy. However, it is submitted that in the
year 1992, when he came home in vacations, his family members told him that
the appellant was pregnant and had an abortion in a private hospital at Rewari.
It is also alleged by him that in 1997, he came to know that the appellant had
another abortion after consuming some medicine and had kept the foetus in a
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sac in the fodder room. He had allegedly reported the matter to the police by
way of DDR but no action was taken as the abortion was not found to be a
crime.
Counsel for the appellant has submitted that the respondent had
not pleaded a word about the vasectomy operation in the year 1987 in his
petition and, therefore, the evidence in this regard led by him should not have
been taken into consideration by the Family Court. It is further submitted that
the Family Court had just relied upon the suggestion given to the appellant
while appearing as a witness to treat the same as admission though it has been
held by the Division Bench of the Rajasthan High Court in the case of SectionSmt.
Madhu vs. Mukesh Naryar and others, 2007(2) J:R 715 that the charge of
adultery is required to be established, though not by direct evidence, but by
evidence of unimpeachable character especially when the said allegation has
been made after so many years of the marriage and birth of two children. He
has further submitted that the oral evidence of the respondent and his brother is
not sufficient to prove the alleged act of adultery on the part of the appellant
and the documentary evidence Ex.PW3/A and Ex.PW3/B, the record of
Kalawati Hospital, does not inspire confidence to show that the treatment taken
by the appellant from the said hospital was for the purpose of abortion. He has
further submitted that although the appellant has mentioned the birth of her
sons Dipender and Yogender in the years 1988 and 1989 but they were
actually born in the years 1985 and 1987 and their date of birth was mentioned
as 1988 and 1989 to show them younger in the school record as they had
become over age at that time. It is further submitted that in any case, the
appellant has not denied in his petition that he is father of both the children and
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has levelled allegation of adultery after the birth of both the children when he
came to know that the appellant had aborted a child in the year 1992 in
Kalawati hospital. It is further submitted by him that the appellant has not
admitted the act of adultery in any of her letters Ex.PX and Ex.PY rather she
has only mentioned that she has committed some sin, which does not mean that
she has committed adultery. It is further submitted that the Family Court has
further committed an error in recording a finding that it is not necessary for the
respondent to implead the adulterer because it was not possible for him to
know the identity of the adulterer as he was serving in the State of Gujrat. It is
submitted that this finding runs contrary to the pleadings of para no.9 of the
petition in which he has specifically named the person who had sexual
intercourse with his wife in his house in his presence.
On the other hand, counsel for the respondent has submitted that
the documentary evidence of Kalawati hospital (Ex.PW3/A and Ex.PW3/B),
letters written by the appellant (Ex.PX and Ex.PY) and the other oral evidence
led by the witnesses of the respondent are sufficient to prove that the appellant
was leading the life of adultery.
After hearing learned counsel for the parties and perusing the
available record in this regard, we are of the considered opinion that the Court
below has erred in appreciation of evidence available on record because
Ex.PW3/A and Ex.PW3/B do not show that the appellant had taken the
treatment at Kalawati hospital for the purpose of abortion and in particular, the
document Ex.PW3/B is mentioned in such a manner as if the appellant is a
male instead of a female because the first line of the said document reads that
“main apni aurat ki safai apni marji se kara raha hu”. Similarly, the letters
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available on record, more particularly Ex.PX and Ex.PY, do not show at all the
admission on the part of the appellant of having sexual intercourse with a
person rather than his husband has to prove the allegation of adultery. There is
no cogent evidence brought on record to prove that the appellant, after her
abortion at home, had concealed the foetus because not even a single person
much-less a lady amongst his family members were examined by the
respondent in regard to termination of pregnancy by the appellant, who could
have been the best witness. The appellant has relied upon the statement of his
friend who was with him in Gujrat Police and has no connection with the
family of the appellant and, thus, his evidence cannot be relied upon.
Keeping in view the totality of the aforesaid facts and
circumstances, we are of the considered opinion that the respondent has
miserably failed to prove the act of adultery on the part of the appellant by
leading cogent and convincing evidence and also the petition filed by him,
knowing fully well about the person with whom the appellant was living the
alleged life of adultery but without impleading him as a co-respondent, was not
maintainable in view of Rule 10 of the Rules.
Thus, in view of the above, the present appeal is hereby allowed
being meritorious and the judgment and decree passed by the Court below
dated 20.12.2002 is set aside, though without any order as to costs.
(Rakesh Kumar Jain)
JudgeMay 01, 2019 (Harnaresh Singh Gill)
vinod* JudgeWhether speaking / reasoned: Yes/No
Whether Reportable: Yes/No11 of 11
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