IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID FRIDAY, THE 7TH MARCH 2008 / 17TH PHALGUNA 1929 MFA.No. 354 of 2001() --------------------- OP.97/1995 of PRINCIPAL SUB COURT, PALAKKAD .................... APPELLANT/1ST RESPONDENT: ----------- RAJAMONY, D/O. KANDU, AGED 32 YEARS, COOLIE WORKER, MELECHUR KUNNU, KANNAMBRA P.O., ALATHUR TALUK. BY ADVS. SRI.P.VIJAYA BHANU SMT.ROHINI V.MENON RESPONDENTS/PETITIONER & SECOND RESPONDENT: ------------- 1. PURUSHOTHAMAN, S/O. GOPALAN, COOLIE WORKER, AGED 36 YEARS, MUDAKUZHA HOUSE, KARINGAYAM P.O., MANGALAM DAM, PALAKKAD DISTRICT. 2.VARGHESE, S/O. MUTHUKUTTY, AGED 22 YEARS, TAPPER, KARINGAYAM, KIZHAKKANCHERRY, ALATHUR TALUK. BY ADVS. SRI.D.KRISHNA PRASAD-R1 SRI.D.NARENDRANATH SRI.JOJI VARGHESE SRI.M.HARISHARMA THIS MISC. FIRST APPEAL HAVING COME UP FOR ADMISSION ON 07/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: KURIAN JOSEPH & HARUN-UL-RASHID, JJ. ---------------------------------------------------------------- M.F.A.NO. 354 OF 2001 ---------------------------------------------------------------- Dated this the 7th day of March, 2008 JUDGMENT Harun-Ul-Rashid, J. This appeal is filed by the first respondent/wife challenging the order passed by the Principal Sub Court, Palakkad in O.P. No.97 of 1995 allowing dissolution of marriage between herself and the petitioner. She seeks to set aside the impugned order. 2. The parties herein are referred to as the petitioner and first respondent as in the Original Petition. The marriage between the petitioner and the first respondent was solemnised on 16.1.1984. They lived together as husband and wife and three children were born in the wedlock. It is the case of the petitioner/husband that his wife, the first respondent developed illegal relationship with the second respondent and that they had engaged in sexual intercourse as well. It is his further case that even though he cautioned the first respondent about the consequences, she is bent upon continuing the illegal relationship with the second respondent and he was compelled to send her back to her house. According to him, he put an end to the cohabitation with the first M.F.A.NO.354/2001 2 respondent on 2.5.1995 and filed the petition for divorce on the ground that his wife, the first respondent was living in adultery with the second respondent. 3. In the counter statement filed by the first respondent/wife, she denied the illegal relationship with the second respondent and also the allegation that she had engaged in sexual intercourse with him. According to the first respondent, the petitioner used to ill treat her, both physically and mentally and that led to the estranged relationship between them. 4. The trial court after taking the oral evidence of PWs.1 to 6 and RW.1 and perusing Exts.A1 to A5 considered the issue whether the petitioner was entitled to get a decree of divorce. After appreciating the oral evidence of PWs.1 and 2, the trial court found that the evidence of PW.1 regarding the sexual act committed by the first and second respondents on 2.5.1995 is corroborated by circumstantial evidence tendered by PW.2. The trial court also accepted the oral testimony of PW.1 that he had seen the second respondent fleeing from the scene wrapping his clothes around his waist. The trial court also believed the evidence of PW.3, a neighbour of PW.1 and found that the first respondent M.F.A.NO.354/2001 3 had engaged in sexual intercourse with the second respondent. On appreciation of the entire evidence, the trial court held that the defence set up by the first respondent is not correct. The trial court also found that normally it is very difficult to get direct evidence regarding adultery, but in this case the direct evidence as well as the circumstantial evidence proved the case of the petitioner. 5. We have also gone through the oral evidence tendered by the petitioner and his witnesses. The evidence tendered by the petitioner's witnesses probabilise the case set up by him and we find no reason to take a contrary view on the basis of the evidence, both oral and documentary. We agree with the reasoning and findings in the judgment under appeal. We find no merit in the appeal and the same is accordingly dismissed. There will be no order as to costs. (KURIAN JOSEPH, JUDGE) (HARUN-UL-RASHID, JUDGE) sp/ M.F.A.NO.354/2001 4 KURAIN JOSEPH & HAURN-UL-RASHID, JJ. M.F.A.NO.354/2001 JUDGMENT 7th March, 2008