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Judgments of Supreme Court of India and High Courts

(O&M;) Rajesh Devi vs Jai Parkash on 1 May, 2019

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)
Judge

May 01, 2019 (Harnaresh Singh Gill)
vinod* Judge

Whether speaking / reasoned: Yes/No
Whether Reportable: Yes/No

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