*THE HON’BLE SRI JUSTICE B.PRAKASH RAO AND THE HON’BLE SRI JUSTICE G.BHAVANI PRASAD + C.M.A.No.1669 of 2002 %Dated 27.10.2009 # Bandlamudi David Sudhakar ……….. APPELLANT $ 1.Bandlamudi Nilda Raja Kumari and another. ………… RESPONDENTS ! Counsel for Appellant : Mr. T.S.Anand ^ Counsel for Respondents : Mr. G.R.Sudhakar < GIST: > HEAD NOTE: ? Cases referred 1. AIR 2001 Kerala 195 2. 1994 (2) ALT 356 (F.B.) HONOURABLE MR. JUSTICE B.PRAKASH RAO AND HONOURABLE MR. JUSTICE G.BHAVANI PRASAD CIVIL MISCELLANEOUS APPEAL NO.1669 OF 2002 JUDGMENT: (Per Hon’ble Sri Justice G.Bhavani Prasad) The dismissal of O.P.No.28 of 1995 on the file of the District Judge, West Godavari, Eluru, by the order dated 06/08/2001 led the aggrieved husband to file the present appeal. The appellant filed the petition for dissolution of the marriage between him and the first respondent under Sections 10 and 11 of the Indian Divorce Act, 1869, (for brevity ‘the Act’) alleging that after the marriage between him and the first respondent on 15/05/1981 as per the Christian Marriage Act, three children were born out of the wedlock who were then aged 12 years, 11 years and 8 years. But the first respondent was throughout adamant and was behaving in a manner unbecoming of a household wife. By virtue of their employment while the first respondent was working in Bhimavaram, the appellant was working at Dharbagudem. During one of the visits by the appellant to Bhimavaram, one Bhaskara Rao, a lecturer, was found in the company of the first respondent on which the appellant questioned the first respondent, but the first respondent was ill-treating the appellant and later the first respondent was transferred to Jangareddigudem. Then the appellant and the first respondent started living together at Jangareddigudem in the house of B.Veera Reddy and the first respondent was coming late in the nights and was quarrelling with the appellant. Once she beat the appellant on the forehead with stick causing a grievous injury on which a report was given to the police. After living separately for sometime, the couple joined again but the quarrelsome nature of the first respondent continued. The first respondent was again transferred to Buttaigudem, but the couple was still living at Jangareddigudem. The last born son had to be kept at Tenali with the brother of the first respondent as the first respondent could not find time to look after him and once when the appellant was forced to stay away for one week due to curfew, on return, the first respondent picked up a quarrel and damaged the movables in the house. The first respondent made a big issue of the visit of the daughter of one Ratna Kumar, the neighbour to the appellant’s house at Nawabpeta. On 02/05/1991, the first respondent bolted the bathroom door from outside when the appellant was taking bath and tried to pour kerosene over him to cause burn injuries. On the cries of the appellant, the neighbours intervened and a police report was given. Subsequently, the appellant detected letters from the files of the first respondent which were written by the second respondent asking the first respondent to meet him on the respective days. Thus, the first respondent was guilty of living in adultery and she herself filed M.C.No.38 of 1991 to forestall any action that may be taken by the appellant. The first respondent came to the high school of the appellant and threatened him and in view of the cruelty and adultery, the appellant filed O.P.No.173 of 1994 earlier for judicial separation and after withdrawing the same, filed this petition for grant of divorce. The first respondent contested the petition denying all the allegations made against her and contending that she was subjected to harassment and cruelty for money throughout by the appellant who was addicted to all vices. She claimed that the appellant never cared to maintain the first respondent or the minor children and she was forced to give a legal notice for which a false reply was given. The first respondent claimed that she was compelled to file M.C.No.38 of 1991 for maintenance which was allowed after an elaborate enquiry granting monthly maintenance of Rs.200/- each to the first respondent’s three minor children. The first respondent further stated that the appellant attributed unchastity to her uncharitably and pressed into service cooked up documents. The first respondent claimed that the second respondent is a vagabond and a characterless person and a close associate of the appellant. The second respondent who deserted his wife, was living with a concubine at Koppaka and could be easily hired for money and he purposefully remained ex parte in the petition. The first respondent further claimed that C.C.No.649 of 1994 was pending for the alleged assault on the first respondent by the appellant and she claimed that the motivated petition for grant of divorce is not maintainable on merits. On such contentious pleadings, the trial Court conducted enquiry during which it examined P.Ws.1 to 4 and R.Ws.1 to 3 and marked Exs.A-1 to A-6 and B-1 to B-3. The trial Court rendered the impugned order extracting the rival contentions and the evidence placed before the Court and observing that P.W.2 was not a resident of Jangareddigudem and could not have deposed about the marital life of the parties. P.W.2, who was a labourer was noted to have failed to even name the children of the parties though claiming to be their neighbour. The trial Court also noted that the evidence of P.W.3 only showed about the visits of the first respondent to the school of appellant where they had quarrels each time and the evidence of P.W.4, a rickshaw puller, was also noted to be about the disputes between the couple which quarrels did not throw any light on the question at whose fault the disputes arose. The trial Court further observed that the witnesses were not in any way related to the parties and had no concern with the dispute, and therefore, did not appear to be convincing. The trial Court placed reliance on the evidence of the paternal aunt of the first respondent i.e., R.W.2 and the second daughter of the parties as R.W.3 who spoke in corroboration of the defence of first respondent. The trial Court consequently concluded that it was the appellant who subjected the first respondent to cruelty. In respect of the alleged adultery, the trial Court found that except Exs.A-3 and A-4 and claims of P.W.1, the appellant, there was no other evidence on record and as the second respondent appeared to be known to both the parties, it was not known as to why the appellant did not take steps to prove the hand writing of the second respondent in Exs.A-3 and A-4. The trial Court also noted that in the reply notice and in the maintenance case, the appellant never attributed any unchastity to the first respondent which he attributed for the first time in this petition. The letters Exs.A-3 and A-4 were considered to have not been proved and the trial Court was in agreement with the claims of the first respondent about the reasons leading to the conflict between the parties and consequently, dismissed the petition with costs. The appellant challenged the impugned order mainly on the ground that the trial Court failed to appreciate the evidence from a proper perspective and should have noted that there was irretrievable break down of the marital tie between the parties, the continuance of which serves no purpose. Sri T.S.Anand, learned counsel for the appellant and Sri G.R.Sudhakar, representing Sri G.Jaya Prakash Babu, learned counsel for the first respondent are heard at length and the second respondent did not enter appearance before this Court also as in trial Court. The only question that arises for consideration in this appeal is whether the appellant is entitled to seek dissolution of the marriage between him and the first respondent. Section 10 of the Act, as it stood before the amending Act 51 of 2001, entitled the husband to file petition for dissolution only on the ground that his wife has, since the solemnization of the marriage, been guilty of adultery. No other ground appeared available from Section 10 of the Act, as it stood at the relevant time. This question was the subject of consideration of a Full Bench of the Kerala High Court in K.A.Philip v. Susan Jacob[1], where it was specifically decided that a divorce on the ground of cruelty and desertion is not available to the husband/petitioner under Section 10 of the Indian Divorce Act and that so far as a Christian husband is concerned, it is impermissible to dissolve the marriage by a decree of divorce on the ground of cruelty and desertion. Therefore, the conflicting pleadings and evidence of the parties on the question of cruelty are beyond the scope of Section 10 of the Act as it stood then and such a ground was unavailable to the appellant though the petition filed also on the ground of cruelty was decided on merits on that question also by the trial Court. If the ground of cruelty is unavailable to the appellant and the pleadings and the evidence in that regard are beyond the scope of consideration in the present appeal, the only ground that remains is the alleged adultery between the respondents herein. The evidence of P.Ws.2 to 4 or the evidence of R.Ws.2 and 3 had absolutely no reference to the aspect of adultery while it was only the conflicting claims of the husband and wife as P.W.1 and R.W.1 and the disputed letters Exs.A-3 and A-4 that have relevance to the said question in issue. The claim of the first respondent that at any time before filing of this petition for divorce, no unchastity was ever attributed to her by the appellant in any of the complaints or notices or proceedings before the Courts, is not in dispute and if such questionable conduct of the first respondent was known to the appellant since long prior to his filing the petition for divorce on his detecting the letters Exs.A-3 and A-4, it is inexplicable as to why the appellant remained silent till this petition on that aspect. The letters Exs.A-3 and A-4 by themselves are no unambiguous indications of any adulterous conduct on the part of the wife. It is true that in both the letters the second respondent was alleged to have addressed the first respondent as ‘Dear Raja Kumari’ and requested her to meet him in the manner requested in the letters. But merely because such a request by the second respondent to the first respondent was made to meet him on both the occasions, there cannot be a straight presumption of questionable relationship between both of them. The evidence of the appellant as P.W.1 was a reiteration of his suspicions on detecting Exs.A-3 and A-4 but the appellant never claimed to ever had any other reason to suspect any intimacy between the respondents and the appellant does not even know whether the second respondent deserted his wife and was living with a concubine at Koppaka village. While his allegation of the first respondent having any intimacy with Bhaskara Rao with whom she was alleged to have been seen in a compromising position was not pursued by the appellant, the conduct of the first respondent could not have escaped the attention of witnesses like P.Ws.2 to 4 if it had been what it was as alleged by the appellant. The first respondent specifically denied any acquaintance with the second respondent or receiving any letters from him and though it is true that she attempted to state in the counter and during the cross-examination of P.W.1 and in her own evidence about the second respondent being available to be influenced by the appellant for taking a stand against her, that will not be suffice to prove any continuous course of conduct of adulterous life between the respondents. The weakness of the version of the first respondent cannot be a ground to accept the case of the appellant and the appellant has to succeed in his case on the strength of his own case, more so, when such a serious allegation of living in adultery was made against the wife through whom he had three children after marital life since 1981 to 1995. The approach to be adopted concerning such allegations of adultery has been laid down in the Full Bench decision of this Court in S.Mallaiah v. Eisther and another[2]. Their Lordships were dealing with a case under Section 10 of the Act and were categorical that adultery is a very serious allegation and appreciation of evidence in such cases must be careful and proper. The Full Bench laid down that it is only when the evidence is cogent, consistent and irrefutable, the finding of adultery could be recorded but where the evidence of the petitioner is lacking in corroboration and is inconsistent and unnatural, no finding of adultery could be recorded even when the second respondent, the alleged adulterer, remained ex parte. The present case is no better and in fact in the case before the Full Bench, notwithstanding the claims of the witnesses for the petitioner to be eye-witnesses for the adulterous course of conduct, the Full Bench stated that one cannot jump to the conclusion that the respondents are guilty of adultery merely because it was alleged that the adulterer was seen along with the first respondent wife in the house of the petitioner in his absence. Their Lordships said that it would be a wild guess, an imagination of a suspicious mind, but cannot be finding of a Court of law to support a decree of divorce on the ground of adultery. If the strict standard of proof so laid down is adopted in the present case, Exs.A-3 and A-4 or/and the self-serving and uncorroborated claims of the appellant, cannot be considered sufficient to prove the allegation of adultery, apart from the fact that even Exs.A-3 and A-4 may only suggest at the worst occasional lapses in virtue which may not amount to the wife living in adultery. Under the circumstances, the appellant cannot succeed and the absence of any purpose in continuing the marital tie in view of separation of the couple since 1991 and any consequential irretrievable break down of the marriage cannot be valid grounds under the statutory provisions under which the relief is claimed. The Civil Miscellaneous Appeal hence fails and is accordingly dismissed. No costs. _________________ B.PRAKASH RAO, J ____________________ G.BHAVANI PRASAD, J Date: 27-10-2009 SKM NOTE: L.R. Copy to be marked. [1] AIR 2001 Kerala 195 [2] 1994 (2) ALT 356 (F.B.)