Clear evidence is required to prove adultery in divorce cases; mere suspicion is insufficient for granting relief.

ORDER :

Mathivanan, the appellant herein got married to the first respondent Jegatha on 02.09.2013 as per Hindu rites and customs. No child was born through the wedlock. The relationship between them had come under strain. The appellant filed HMOP No.24 of 2018 on the file of the II Additional Sub Court, Nagercoil seeking divorce on the ground of cruelty and adultery. The appellant herein had arrayed one Sudharshan as the alleged adulterer. The HMOP was transferred to Family Court, Kanyakumari at Nagercoil and renumbered as HMOP No.7 of 2018. The appellant examined himself as PW.1. One Govindarajan was examined as PW.2. Exs.P1 to P5 were marked. Jegatha examined herself as RW.1. After considering the evidence on record, the trial court dismissed the petition. Challenging the same, this civil miscellaneous appeal has been filed.

2.The learned counsel appearing for the appellant submitted that the parties have been residing separately for more than nine years. The relationship has irretrievably broken down. The long period of separation by itself should be deemed to constitute cruelty. He relied on the decision of the Hon'ble Supreme Court reported in 2023 SCC OnLine SC 497 (Rakesh Raman v. Kavita). He called upon this Court to follow the said decision and grant relief as prayed for.

3.Per contra, the learned counsel for the wife submitted that she is willing to live with the appellant. He called upon this Court to sustain the impugned order and dismiss this appeal.

4.We carefully considered the rival contentions and went through the evidence on record. As already noted, the appellant herein pleaded two grounds ie., cruelty and adultery in support of his prayer for divorce. In support of the allegation of adultery, the appellant examined one Govindarajan, his friend, as PW.2. PW.2 in his chief examination had deposed that in March 2017, he accompanied the appellant to go to the parents' house of Jegatha in a car to bring her back. Jegatha was not in Keerivilai, her native village. Coming to know that she is with the second respondent at Vandikudiyiruppu, PW.2 and the appellant went there. The house was in locked condition. Since they heard sound coming from inside the house, the appellant and PW.2 claimed to have seen through the window on the southern side Jegatha and the second respondent in a compromising position. The appellant is said to have cried thereafter. PW.2 pacified him and taken him home. The appellant in his proof affidavit had also testified on the same lines. Both the appellant as well as PW.2 were cross examined. The court below noted that the specific date on which they saw the second respondent was not mentioned. The testimony of the appellant as well as PW.2 sounds so artificial and unconvincing. If really the appellant had found his wife in such a condition with the adulterer, his normal reaction would be to raise an alarm. The natural conduct expected of him was to bang the door and challenge his wife and the adulterer to come out. He would have definitely raised a hue and cry and sought support of the residents of the locality. Definitely, he would not have returned crying. Section 114 of the Indian Evidence Act enables the court to presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct in relation to the facts of the particular case. It is not as if the appellant was alone when he had seen the alleged act committed by his wife with the second respondent. He was accompanied by his friend. Therefore, the version projected by the appellant and PW.2 is not consistent with normal human conduct. That is why, the court below disbelieved the same. Paragraphs 13 to 16 of the judgment of the court below read as under :

“13.Thus there must be clear proof of adultery. The mere fact that the petitioner considers the conduct of the 1st respondent- wife open to suspicion is not sufficient. The petitioner has to state the specific act