Single incidents of sexual intercourse beyond marriage suffice as evidence for adultery under Hindu Marriage Act, supporting grounds for divorce.

JUDGMENT

S. Talapatra, J. - Heard Mr. K. Nath, learned counsel appearing for the appellant. None appears for the respondents despite service of notice. However, both the respondents had refused to accept the notice and as such, service against them has been deemed by this court.

2. The appellant herein, had filed a petition under Section 13(1)(i) of HINDU MARRIAGE ACT , 1955 seeking divorce by dissolving marriage that subsisted between the appellant and the respondent No.1 on the ground of having voluntary sexual intercourse' with the other person [the respondent No. 2. beyond marriage. The respondent No.2, the other person, who has been held to have the sexual intercourse with the respondent No.1. After recording of the evidence and appreciation thereof, the District Judge, North Tripura, Dharmanagar came to inference that the evidence does not support the ground under Section 13(1)(i) of the said Act. But it has been categorically held that since that the marriage has been irretrievably broken and there is no hope of its reconstruction, in that circumstance, the decree of divorce be granted in favour of the appellant and accordingly, such decree has been passed. The appellant being the person who sought the decree has filed this petition projecting the solitary ground that despite the sexual intercourse with other person having substantially proved, the District Judge has opined differently.

3. Mr. K. Nath, learned counsel appearing for the appellant has submitted that there is no grievance against grant of the decree of divorce but the grievance is for negation of solitary ground of sexual intercourse with the other person beyond the marriage. Mr. Nath, learned counsel has submitted that the wife of the respondent No.2 [the paramour] claimed to have witnessed such sexual intercourse. In her words, seeing both the respondents No.1 and 2 in a compromising position, she raised her alarm. The neighbouring people, some of whom testified in the trial, came and saw both the respondents No.1 and 2 coming out of the room almost in "undressed condition." Those witnesses from the neighbourhood and from the parental home of the respondent No.1 have stated that they saw several times the respondents No.1 and 2 in the intimate condition. They were, according to them, engaged in an illicit relation.

4. Mr. Nath, learned counsel has thus, submitted that this ground under Section 13(1)(i) of the said Act stands squarely proved and the finding of the District Judge that a case of adultery against the appellant has not been made out against the appellant's wife is therefore liable to be interfered with, but the appellant has stated that he has not challenged the decree of divorce and prayed for its affirmation.

5. We have been taken to the thick of evidence. It is useless to give detailed assessment of the evidence in the case in hand inasmuch as the respondents being aware that an appeal has been filed against the said judgment, they preferred not to appear in order to contest the appeal. Even, they have not filed any appeal against the said judgment dated 06.07.2017 delivered in T.S.(Div.)36 of 2016. As stated earlier, this appeal is structured on the solitary objection against the finding that there is no proof of' adultery'.

6. The appellant [PW-1] has testified in the trial stating that he came to learn from the wife of the respondent No.2 namely Rina Sabdakar [PW-2] that she caught her husband [the respondent No.2] and the respondent No.1 in a compromising position an