.\oV (r1' ^^ ^ HIGH COURT OF CHHATTISGARH AT BILASPUR Division Bench: Hon'ble Shri T.P. Sharma, & Hon'ble Shri Rangnath Chandrakar, JJ, FLrstAppeaL (IVI) No. 70 of 2007 Appellant Mrs. Salena Khalkho Respondent Vs. Niranjan Khalkho and another JUDGMENT FOR CONSIDERATION Sd/- T.P.Sharma Judge Hon'ble Shri Rangnath Chandrakar,^J °) a-.<5 Sd/- Rangnath Chandrakar Judge Post for pronouncement ofjudgment on f (3 -2-2010 Sd/- HIGH COURT OFCHHARTTISGARHAT BILASPUR CORAM: Hon'ble Shri T.P. Sharma & Hon'ble Shri Rananath Chandrakar. JJ FirstAppeal (Ml No.70 of2007, Appellant Non-applicant. Mrs. Salene Khalkho, w/o. Niranjan Khalho, Teacher, Chhattisgarh Public School, R/o. Village Jhabar, Basahat, Tahsil Katghora, Distt. Korba (CG). Respondents. Applicant Versus 1) Niranjan Khalkho, S/o. Prem Prakash Khalho, aged about 49 years, R/o. Deepka Colony, Qtr. No. M/634, Tahsil Katghora, Distt. Korba (CG). 2) llusis Ekka, S/o. M. Ekka, aged about 36 years. R/o. M.D. 799, Deepka Colony, Tahsil Katghora, Distt. Korba (CG). {Appeal under Section 19 (1) ofthe Family CourtAct, 1984) Present: Shri Sudhir Verma, counsel for the appellant. Shri D. M inj, counsel for the respondent No.1 Shri Anand Kesharwani, counsel forthe respondent No.2. JUDGIVIENT (Delivered (fcday of February, 2010) Per T.P. Sharma, J. By filing thisappeal under Section 19(1) of the Family Court Act, 1984, the appellant has challenged the legality and propriety-of the judgment and decree of dissolution of marriage by a decree of divorce dated 10-10-2007 passed by learned Judge, Family Court, camp at Katghora, in civil suit No. 21-A/2001 whereby the marriage between the appellant and respondent No.1 has been dissolved by a decree of divorce on the ground of adultery. 2) The decree is impugned on the ground that without any proof of adultery the court below has passed the decree of divorce and thereby committed illegality. 3) Brief facts necessary for disposal of this appeal are that the appellant and respondent No.1 are married spouses, their marriage was performed on 10-12-1986 according to Christian law at Kanshabel, Distt. Jashpur and after marriage they resided together at village Deepka. The appellant and respondent No.2 were known to each other since their student life. Respondent No.2 came to village Deepka in search of job in the year 1987 on the ground that they were residents of same village. The appellant asked the respondent No.1 that respondent No.2 will live with them in their house till the respondent No.2 getting the job and then respondent No.2 started living in the house of appellant and respondent No.1, but after leaving the house for office by respondent No.1, the respondent No.2 used to come back to the house and appellant and respondent No.2 used to stay in the house together. The neighbours started murmuring of their relation. In November, 1990, the respondent No.1 went to Korba and when he came back to his house at naorr aldng with his friend namely Silvester Tigga , the house was closed from inside and slow talking sound was coming from the house. Respondent No.1 and Silvester Tigga tried to see what was going on inside the house. They saw from the window that the appellant and respondent No.2 were in one bed in objectionable position. When the respondent No.1 shouted, the appellant prayed for excuse and taking the opportunity, respondent No.2 fled away from the scene of occurrence. Thereafter, appellant went to her brother-in- law's house (Jijaji) where shewas residing since 1990 and persons used to visit the house of appellant and she is living in adulterous life since 1990. therefore, on the ground of adultery, the respondent No.1 has filed the petition for dissolution of marriage by a decree of divorce under Section 10 ofthe Indian DivorceAct, 1869. 4) The present appellant has denied the allegations made by the respondent No.1 and has specifically alleged that the respondent No.1 has leveled false charge of adultery. The present appellant is not having any relation with respondent No.2. Two children were born out of the wedlock of appellant and respondent No.1. The respondent No.1 was having illicit relation with Rosemarry Ekka and Mahatin Bai and he is still having illicit relations with them. Respondent No.1 ousted the appellant from his house and committed cruelty. 5) Respondent/Defendant No.2 has also denied the allegations made in the petition and has specifically alleged that he never stayed with the appellant and he has not taken co-education with the appellant. Respondent No.2 and the appellant are not residents of same village and at present he is residing at village Deepka in the quarter allotted by the SECL and he is not having any illicit relation with the appellant. 6) • On the basis ofaverments made by the parties, issues were framed andafter affording an opportunity of hearing to the parties;'the"marriage between the appellant and respondent No.1 was dissolved by a decree of divorce on the groundof adultery by thecourt below. 7) We have heard Shri Sudhir Verma, learned counsel for the appellant, Shri D. Minj, learned counsel for respondent No.1 and Shri Anand Kesharwani, learned counsel for the respondent No.2, perused the judgment & decree and record ofthe Family Court. 5 1 ^sse^. ^^ss^ ''^ ^"^^ '-^.' ;' '^.^''•/y c-^. <^" 8) Learned counsel appearing for the appellant vehemently argues that the burden to prove the factum of adultery was solely on respondent No.1, but respondent No.1 has not discharged the burden although he was requiredto prove the same by preponderance of probabilities. The appellant has not examined Silvester Tigga in support of her version, but the appellant has examined him who has categorically deposed that he had never gone to the house of respondent No.1 and he has not seen the appellant and respondent No.2 in objectionable position. In absence of any proof of adultery the decree of divorce is not sustainable under law. 9) On the other hand, learned counsel appearing for the respondent No.1 vehemently opposed the appeal and submitted that his evidence alone is sufficient for discharging the burden. The witness [lusis Ekka has illicit relation with the appellant, therefore, he has not supported the case of respondent No.1. Learned counsel further submits that in case of irretrievably break down of marriage, decree of divorce may be granted. In support of his arguments, he has placed his reliance in the matter of Rishikesh Sharma vs. Saroj Sharma, reported in 2007(2) SCC 263 wherein it has been held that in case of irretrievably break down of marriage, decree of divorce is proper. 10) Per contra, learned counsel appearing for the respondent_No»2 argues that respondent No.2 has nowhere affairs with appellant and respondent No.1 and he has been dragged unnecessarily by respondent No.1. 11) In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalfofthe parties. On the basis of pleadings of respondent No.1, issue relating to adultery was framed. The burden to prove the issue of adultery was solely on ^ respondent No.1. The respondent No.1 has examined himself and deposed that the respondent No.2 was residing in his house and after leaving the house for office, the appellant and respondent No.2 used to stay together inside the house. He has also deposed that in November, 1990 he along with Silvester Tigga has seen the appellant and respondent No 2 in one bed in objectionable position and when he shouted, the appellant prayed for excuse and taking the opportunity respondent No.2 fled away from the spot. He also deposed that the appellant is residing separately from him since 1990 and persons used to visit her house frequently. She is living in adulterous life since 1990. In para 3 of his cross examination he has admitted that two children were born out of their wedlock i.e., Amina Khalkho was born on 4-12-1986 and Mr. Abhishek Khalkho was born on 2- 11-1989. He also admitted in para 4 of his cross examination that at the instance of appellant one crimina] case under Section 498-B of the IPC was lodged against him and on the basis of compromise with ihe appellant, he was admitted on bail. He has admitted in para 9 of his cross examination that in the year 1990 his younger brother Niman came to his house for study and he is residing in his house since 1990. He has admitted in para 30 of his cross examination that the appellant and her relatives threatened Silvestar Tigga, therefore, he has not supported his case. 10) PW/2 Kripadan Khalkho has' deposed in his evidence that the relation and manner of behaviour between the respondent No.2 and the appellant was not natural and there was murmuring of their illicit relation in the vicinity. In para 7 of his cross examination he has admitted that the appellant and the respondentNo.2 are residents of different villages. He has admitted in para 8 of his cross examination that the respondent No.2 is residing with his brother at Korba since 1988. The appellant has also examined herself and specifically deposed that she is not having any relation with respondent No.2. She and respondent No.2 are not residents of same village and she has not taken co-education with respondent No.2. She has denied that she has canvassed for respondent No.2. In para 12 of her cross examination she has admitted that she is residing separately from her husband/respondent No.1 since 1990. She has denied that she and her relatives had threatened Silvester Tigga. She has examined Silvester Tigga as DW/2, who has denied the fact that he has seen the respondent No.2 and appellant in objectionable position. Her another witness Santosh Shri Tiwari has also corroborated the evidence of the appellant. 11) The factum of adultery in the present case is based on the evidence of respondent No.1 and one Silvester Tigga and murmuring of neighbours. In the present case, the appellant has not examined any neighbour and to support her case her witness PW/2 Kripadan Khalkho is not a resident of Deepka, but resldent of Jingatpur, Tahsil Khatghora. He is brother of the respondent No.1 and occasionally he used to visit the house of respondent No.1. Silvester Tigga has not supported the case of respondent No.1. He has not lodged any report in the year 1990, especially, according to him, even when the appellant left his house, he has not filed any petition for divorce in the year 1990 or before 2007. He has filed this petition after 17 years of the alleged incident. According to the evid'ence of re§pondent No.1, respondent No.2 came to his hbuse and startedlivingwith them since 1987 till November, 1990, but according to para 8 of the evidence of his brother Kripadan Khalkho, respondent No.2 had left the h'ouse of respondent No.1 in the year 1988 and since then respondent No.2 was residing at Korba with his brother. It reveals that at the time of alleged incident in November, 1990, respondent No. 2 was not residing in the house of respondent No.1 and even if he was present in the house of respondent No.1 along with the appellant in suspicious condition, then it would have been the natural conduct of the respondent No.1 to lodge the report immediately. Especially, when the appellant left his house, neither the respondent No.1 has lodged any report nor has filed any petition in the year 1990, but he has filed this appeal after 17 years. The evidence of respondent No.1 and his brother PW/2 Kripadan Khalkho are self- contradictory which is not sufficient to prove the factum of adultery and also not sufficient to shift the onus of such proof. As held in case ofRishikesh Sharma (supra), divorce may be granted in case of irretrievably break down of the marriage, but this ground is not available in Section 10 of the Indian Divorce Act, 1869. The burden to prove the factum of adultery was solely on respondent No.1, but respondent No.1 has failed to discharge the burden. In absence ofsuch proof, a decree impugned for dissolution of marriage by a decree of divorce is not sustainable under the law. 12) For the foregoing reasons, the appeal is allowed and the judgment and decree of dissolution of marriage by a decree of divorce between the appellantand respondent No.1 is hereby set aside. Parties shall bear their own costs. Advocate fee as per schedule. 13) Decree be drawn up accordingly. Sd/- T.P.Sharma Judge Sd/- Ransnath Cbandrakar Judge Raju