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SIKKAM HIGH COURT
Sunil Kumar Sinha, A.C. J. & S. P. Wangdi, J.
Smt. Renu Rai —Appellant
versus
Buddha Kumar Rai —Respondent
MAT. App. No.3 of 2014
Decided on 5.3.2015
For the Appellant:Mr. Sudesh Joshi and Mr. Deepen Pradhan, Advocates
For the Respondent:Mr. Zangpo Sherpa, Ms. Doma Lepcha and Ms. Mon Maya Subba, Advocates.
IMPORTANT POINT
Adultery by wife with third person, normally is to be proved by circumstantial evidence as there is less probability of direct evidence but where her own son had seen his mother sleeping with third person, adultery held stood proved.
Headnote:Hindu Marriage Act 1955- Section 13 (1) (i)- Divorce petition by husband on the ground of cruelty on the part of the wife, alleging indecent comments, quarrelling and humiliation and spending of money in luxury and that later she started living separate and that she developed extra marital affairs with one Jevan Rai- Son of the petitioner, stating that on one occasion his mother was seen sleeping with said Jevan Rai in the midnight- Wife failed to explain all such circumstances- Held there was sufficient proof to prove the allegations of husband- Grant of divorce petition to the husband upheld. (Paras 10, 19 to 22)
Facts of the case
Where marriage of the parties was solemnized in December 1999 and a son was born to them. The husband filed divorce petition on the ground of cruelty and extra marital relation of wife, quoting many instances of cruelty. According to him she used to pass indecent comments using vituperative words over trivial issues and was always quarelling with him and humiliating him and that she used to take money and spent on luxury items. It was further pleaded that she developed extra marital affairs with one Jevan Ram.
Findings of the Court
Though there was no eye witness to the allegations and alleged sexual intercourse between the wife and Jevan Rai, however, extra marital relation were proved on the evidence of their son who stated that he himself had seen her mother sleeping with Jevan Rai and one another night he saw Jevan Rai going to the room where her mother was sleeping. Proof beyond reasonable doubt is proof by a higher standard which generally governs criminal trials or trials involving inquiry into issues of a quasi-criminal nature. A criminal trial involves the liberty of the subject which may not be taken away on a mere preponderance of probabilities. If the probabilities are so nicely balanced that a reasonable, not a vacillating, mind cannot find where the preponderance lies, a doubt arises regarding the existence of the fact t be proved and the benefit of such reasonable doubt goes to the accused. It is wrong to import such considerations in trials of a purely civil nature. It has been held that adultery can be proved circumstantial evidence. If some unrelated person is found alongwith young wife after midnight in her bedroom in actual physical juxtaposition unless there is some explanation, only interpretation must be that two were committing act of adultery together. In the instant case, the extra marital relation were clearly proved in the statement of there son and his statement was unblemished. Therefore the decree of divorce granted by the trial Court to the husband upheld.
Result: Appeal dismissed.
Sunil Kumar Sinha, A.C.J.—This Appeal is directed against the Judgment and Decree dated 06.02.2014 passed in Family Court (Civil) Case No.55 of 2013 by the Judge, Family Court, South & West Sikkim at Namchi. By the impugned Judgment and Decree, a petition filed by the Respondent/Plaintiff (husband) under Section 13(1)(i) and (ia) of the Hindu Marriage Act, 1955 has been allowed and a Decree of Divorce has been granted in his favour.
2. The marriage between the parties took place in December, 1999. After their marriage, they were residing at Sumbuk, Kamarey, South Sikkim. They have a son, namely, Ujjal Rai, aged about 12 years. The Respondent (husband) filed the petition, inter alia, pleading that he was treated with cruelty by the Appellant (wife). Many instances of cruelty were pleaded in the plaint. According to him, the Appellant used to pass indecent comments using vituperative words over trivial issues and was always quarrelling with him without any rhyme or reason. She was unnecessarily humiliating him by passing undermining remarks and on quarrel causing violence and creating unhealthy atmosphere in day to day life. The Respondent further alleged that the Appellant used to take money from him citing many false reasons and spend all the money lavishly in luxury. When it was objected by him, she used to quarrel and become violent. The Respondent further contended that since June, 2013, the Appellant started residing separately in the canteen run by her, fully ignoring household responsibilities. The Respondent further pleaded that the Appellant had developed extra marital affairs with one Jeewan Rai, a Namchi based businessman. The Respondent also pleaded that on 05.09.2013, the Appellant had filed a Private Complaint (Domestic Violence) Case No.20/2013 falsely, implicating him, but on 31.10.2013, the same was disposed of as withdrawn. On these accounts, the Respondent pleaded that the Appellant has treated him with mental and physical cruelty and a Decree of Divorce may be granted.
3. The Appellant filed her written statement and denied the allegations of cruelty as also her relation with Mr. Jeewan Rai. About the complaint, she admitted that it was filed in the concerned Court and the same was ultimately withdrawn.
4. The learned Judge, Family Court mainly framed two points for determination. First, whether the Appellant has treated the Respondent with cruelty? and second, whether the Appellant had voluntary sexual intercourse with any other person (apart from the Respondent) ?
5. Both the parties led their evidence. On due consideration of entire material, the learned Judge, Family Court recorded the findings that it was proved that the Appellant had voluntary sexual intercourse with Jeewan Rai, which also caused cruelty to the Respondent. Thus, on these accounts, a Decree of Divorce was passed against the Appellant.
6. Mr. Sudesh Joshi, learned Counsel appearing on behalf of the Appellant, firstly contended that it was not established that the Appellant had voluntary sexual intercourse with Jeewan Rai. He further contended that there was no evidence of cruelty, therefore, the Decree based on these accounts cannot be sustained.
7. On the other hand, Mr. Zangpo Sherpa, learned Counsel appearing on behalf of the Respondent, contended that there was sufficient material on record to show that the Appellant had voluntary sexual intercourse with Jeewan Rai and she has treated the Respondent with cruelty and the Decree was rightly passed in favour of the Respondent. He cited the decisions of Dr. N. G. Dastane v. Mrs. S. Dastane, AIR 1975 SC 1534 and Subbarama Reddiar vs. Saraswathi Ammal, AIR 1967 Madras 85
8. We have heard Counsel for the parties.
9. For the second point, Mr. Joshi contended that nobody had seen that the Appellant was performing sexual intercourse with Jeewan Rai. The evidence comes that Jeewan Rai was in touch with the Appellant as he was frequently visiting the canteen run by her. It also comes in
