The respondent in her deposition in the maintenance proceeding admitted about the endorsement that the said letters were discovered from her trunk. Such fact was also deposed by her in the maintenance proceeding and that is evident from Ext. 5. It appears that not only learned Magistrate in the proceeding under Section 125, Cr. P.C. but also this Court while in session of the Criminal Revisions have rejected the claim of maintenance of the respondent on the ground of proof of adultery. That finding in the proceeding under Section 125, Cr. P.C. unless rebutted by strong evidence always goes against the respondent. That aspect was not at all considered Or visualised by learned Subordinate Judge. The letters Exts. 1, 2 and 3 as noted earlier spokes of sexual relationship and that proves the factum of adultery in this case between the respondent and Kulamani Misra. In the case of Banchhanidhi Das v. Kamala Devi, (1980) 50 Cut LT 173 : (AIR 1980 Orissa 171) involving similar facts and circumstances in a matrimonial dispute it is held that if the language in the letter is suggestive of adulterous conduct then the requirement under Section 13 of the Act is satisfied. From the facts and evidence on record, this Court finds that adulterous conduct of the respondent is proved from the evidence adduced by the appellant and that has not been rebutted by the respondent.
2. Appellant filed this Original Suit seeking a decree of divorce from the respondent in accordance with the provision in Section 13 of the Hindu Marriage Act, 1955 (in short 'the Act'). His case was that he married the respondent in 1959 and they were blessed with a daughter about four years after the marriage in 1963. Appellant discovered letters received by the respondent from her paramour Kulamani Mishra and it was apparent from the language used in those letters that she was leading an adulterous life and for that she was frequently visiting her parental house notwithstanding the resistence made by the appellant. After discovery of the letters in 1963, the respondent stayed in her parents house and in 1974, she instituted a proceeding under Section 125, Cr. P.C. registered as Misc. Case No. 77 of 1974 in the Court of J.M.F.C. Puri. She claimed for monthly maintenance for herself as well as the daughter. Learned Judicial Magistrate, First Class rejected her claim of maintenance on the ground that she was found to be leading adulterous life. However, maintenance was granted to the daughter. Both the parties preferred Criminal Revision No. 29 and 103 of 1978 against the Order in that proceeding under Section 125, Cr. P.C. This Court confirmed the Order and dismissed both the revisions. It is thereafter that appellant instituted this proceeding under Section 13 of the Act. Respondent entered appearance, filed a written statement denying the allegations and contested the case. On the basis of the pleadings, learned Subordinate Judge framed the following issues :--
ISSUES
1. Is the suit maintainable as framed.
2. Has the plaintiff any cause of action to bring the suit.
3. Is the plaintiff entitled to get a decree for divorce.
4. To what relief, if any, the plaintiff is entitled?
3. To prove his case, appellant examined himself as P.W. No. 1, a nephew of Kulamani Misra as P.W. No. 2 and his (appellants) elder brother as P.W. No. 3. Besides that appellant relied on certified copy of the letters and the deposition of the respondent in the proceeding under Section 125, Cr. P.C. respectively marked Exts. 1, 2, 3 and 5 besides judgment delivered by this Court in the Criminal Revision No. 29 and 103 of 1979-I marked Ext. 4. No other evidence was adduced on behalf of the respondent except examining herself as D. W. No. 1.
4. On assessment of the pleadings of the parties and such evidence, learned Subordinate Judge decided the Issue No. 3, as against the appellant on the ground that the aforesaid exhibited documents and the evidence of P.Ws 1 and 2 jointly or separately do not prove a case of adultery against the respondents and therefore, appellant is not entitled to a decree of divorce. On the basis of that finding, he determined the rest of the issues against the appellant and dismissed the suit.
5. When notice of hearing was issued from this Court, Respondent refused to receive the same and consequently she did not appear and participate in hearing of this appeal.
6. Mr. Prahalad Kar, learned counsel for the appellant argued that the reasons assigned by the trial Court to discard the evidence of the appellant and to hold that the case of adultery of the respondent is not proved was on the following findings :--
(i) the letters Exts. 1, 2 and 3 were not proved in original in the Civil Proceeding and the certified copy brought from the 125, Cr. P.C. Proceedings are not sufficient to prove the fact that said Kulamani Misra had written those letters or that from the narration in that letter a case of adultery is proved;
(ii) that deposition of the respondent in the maintenance proceeding (Ext. 4) cannot be accepted as evidence to prove the case of adultery.
(iii) that silence of the appellant from 1963 till 1977 improbabilises the story of discovery of the letters from the suit case of the Respondent.
7. The language used in the letters undoubtedly speaks of a sexual relationship between the male and the female communicated through that letter. Appellant succeeds if he proves that it was written to the respondent by Kulamani Misra. P.W. No. 2 the nephew of Kulamani Misra stated that the handwriting therein is of his uncle and he is acquainted with the handwriting of Kulamani Misra. Learned Subordinate Judge rejected that evidence on the grounds that --
(i) He did not produce any admitted handwriting of Kulamani Misra so as to prove that he had witnessed Kulamani Misra while writing and
(ii) being the nephew, he should not have spoken against his own uncle.
As rightly argued by learned counsel for the appellant, both the aforesaid reasons are illogical and irrational. The coconut business which the P.W. No. 2 had undertaken together with Kulamani Misra might not have needed maintenance of Books of Accounts or Stock Register and therefore, failure of P.W. No. 2 to produce documents of their partnership business does not disprove his capacity to identify the handwriting of Kulamani Misra. Similarly, P. W. No. 2 was not precluded to speak about a fact which does not penalise his uncle in any legal proceeding. Admittedly, Kulamani Misra was not a party to the suit or in the other proceedings. It might be that like the appellant, P. W. No. 2 would have been displeased in the conduct of the respondent in keeping relationship with his uncle. Therefore, no extraneous inference is to be drawn in such a case in the name of preponderance of probabilities when the core evidence remains unshaken and conduct wise P.W. No. 2 is not forbidden to speak about the relationship between the respondent and his (P.W. No. 2's) uncle. During cross-examination nothing has been brought on record to discredit the evidence of P.W. No. 2 or to attribute any motive to speak against his uncle Kulamani. Thus, the evidence of P.W. No. 2 in identifying the handwriting of his uncle is in furtherance of the proof of the three letters.
8. The respondent in her deposition in the maintenance proceeding admitted about the endorsement that the said letters were discovered from her trunk. Such fact was also deposed by her in the maintenance proceeding and that is evident from Ext. 5. It appears that not only learned Magistrate in the proceeding under Section 125, Cr. P.C. but also this Court while in session of the Criminal Revisions have rejected the claim of maintenance of the respondent on the ground of proof of adultery. That finding in the proceeding under Section 125, Cr. P.C. unless rebutted by strong evidence always goes against the respondent. That aspect was not at all considered Or visualised by learned Subordinate Judge. The letters Exts. 1, 2 and 3 as noted earlier spokes of sexual relationship and that proves the factum of adultery in this case between the respondent and Kulamani Misra. In the case of Banchhanidhi Das v. Kamala Devi, (1980) 50 Cut LT 173 : (AIR 1980 Orissa 171) involving similar facts and circumstances in a matrimonial dispute it is held that if the language in the letter is suggestive of adulterous conduct then the requirement under Section 13 of the Act is satisfied. From the facts and evidence on record, this Court finds that adulterous conduct of the respondent is proved from the evidence adduced by the appellant and that has not been rebutted by the respondent. Under such circumstance, this Court grants the decree of divorce by setting aside the impugned judgment and decree of the trial Court. The appeal is allowed accordingly. No costs. Hearing-fee is assessed at ex parte scale.
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Orissa High Court
Narayan Rath vs Smt. Kuntala Kumari Rath on 2 November, 2004
Equivalent citations: AIR 2005 Ori 49
1. This appeal is preferred against the judgment of the learned Subordinate Judge, Puri in O. S. No. 55 of 1978-1.2. Appellant filed this Original Suit seeking a decree of divorce from the respondent in accordance with the provision in Section 13 of the Hindu Marriage Act, 1955 (in short 'the Act'). His case was that he married the respondent in 1959 and they were blessed with a daughter about four years after the marriage in 1963. Appellant discovered letters received by the respondent from her paramour Kulamani Mishra and it was apparent from the language used in those letters that she was leading an adulterous life and for that she was frequently visiting her parental house notwithstanding the resistence made by the appellant. After discovery of the letters in 1963, the respondent stayed in her parents house and in 1974, she instituted a proceeding under Section 125, Cr. P.C. registered as Misc. Case No. 77 of 1974 in the Court of J.M.F.C. Puri. She claimed for monthly maintenance for herself as well as the daughter. Learned Judicial Magistrate, First Class rejected her claim of maintenance on the ground that she was found to be leading adulterous life. However, maintenance was granted to the daughter. Both the parties preferred Criminal Revision No. 29 and 103 of 1978 against the Order in that proceeding under Section 125, Cr. P.C. This Court confirmed the Order and dismissed both the revisions. It is thereafter that appellant instituted this proceeding under Section 13 of the Act. Respondent entered appearance, filed a written statement denying the allegations and contested the case. On the basis of the pleadings, learned Subordinate Judge framed the following issues :--
ISSUES
1. Is the suit maintainable as framed.
2. Has the plaintiff any cause of action to bring the suit.
3. Is the plaintiff entitled to get a decree for divorce.
4. To what relief, if any, the plaintiff is entitled?
3. To prove his case, appellant examined himself as P.W. No. 1, a nephew of Kulamani Misra as P.W. No. 2 and his (appellants) elder brother as P.W. No. 3. Besides that appellant relied on certified copy of the letters and the deposition of the respondent in the proceeding under Section 125, Cr. P.C. respectively marked Exts. 1, 2, 3 and 5 besides judgment delivered by this Court in the Criminal Revision No. 29 and 103 of 1979-I marked Ext. 4. No other evidence was adduced on behalf of the respondent except examining herself as D. W. No. 1.
4. On assessment of the pleadings of the parties and such evidence, learned Subordinate Judge decided the Issue No. 3, as against the appellant on the ground that the aforesaid exhibited documents and the evidence of P.Ws 1 and 2 jointly or separately do not prove a case of adultery against the respondents and therefore, appellant is not entitled to a decree of divorce. On the basis of that finding, he determined the rest of the issues against the appellant and dismissed the suit.
5. When notice of hearing was issued from this Court, Respondent refused to receive the same and consequently she did not appear and participate in hearing of this appeal.
6. Mr. Prahalad Kar, learned counsel for the appellant argued that the reasons assigned by the trial Court to discard the evidence of the appellant and to hold that the case of adultery of the respondent is not proved was on the following findings :--
(i) the letters Exts. 1, 2 and 3 were not proved in original in the Civil Proceeding and the certified copy brought from the 125, Cr. P.C. Proceedings are not sufficient to prove the fact that said Kulamani Misra had written those letters or that from the narration in that letter a case of adultery is proved;
(ii) that deposition of the respondent in the maintenance proceeding (Ext. 4) cannot be accepted as evidence to prove the case of adultery.
(iii) that silence of the appellant from 1963 till 1977 improbabilises the story of discovery of the letters from the suit case of the Respondent.
7. The language used in the letters undoubtedly speaks of a sexual relationship between the male and the female communicated through that letter. Appellant succeeds if he proves that it was written to the respondent by Kulamani Misra. P.W. No. 2 the nephew of Kulamani Misra stated that the handwriting therein is of his uncle and he is acquainted with the handwriting of Kulamani Misra. Learned Subordinate Judge rejected that evidence on the grounds that --
(i) He did not produce any admitted handwriting of Kulamani Misra so as to prove that he had witnessed Kulamani Misra while writing and
(ii) being the nephew, he should not have spoken against his own uncle.
As rightly argued by learned counsel for the appellant, both the aforesaid reasons are illogical and irrational. The coconut business which the P.W. No. 2 had undertaken together with Kulamani Misra might not have needed maintenance of Books of Accounts or Stock Register and therefore, failure of P.W. No. 2 to produce documents of their partnership business does not disprove his capacity to identify the handwriting of Kulamani Misra. Similarly, P. W. No. 2 was not precluded to speak about a fact which does not penalise his uncle in any legal proceeding. Admittedly, Kulamani Misra was not a party to the suit or in the other proceedings. It might be that like the appellant, P. W. No. 2 would have been displeased in the conduct of the respondent in keeping relationship with his uncle. Therefore, no extraneous inference is to be drawn in such a case in the name of preponderance of probabilities when the core evidence remains unshaken and conduct wise P.W. No. 2 is not forbidden to speak about the relationship between the respondent and his (P.W. No. 2's) uncle. During cross-examination nothing has been brought on record to discredit the evidence of P.W. No. 2 or to attribute any motive to speak against his uncle Kulamani. Thus, the evidence of P.W. No. 2 in identifying the handwriting of his uncle is in furtherance of the proof of the three letters.
8. The respondent in her deposition in the maintenance proceeding admitted about the endorsement that the said letters were discovered from her trunk. Such fact was also deposed by her in the maintenance proceeding and that is evident from Ext. 5. It appears that not only learned Magistrate in the proceeding under Section 125, Cr. P.C. but also this Court while in session of the Criminal Revisions have rejected the claim of maintenance of the respondent on the ground of proof of adultery. That finding in the proceeding under Section 125, Cr. P.C. unless rebutted by strong evidence always goes against the respondent. That aspect was not at all considered Or visualised by learned Subordinate Judge. The letters Exts. 1, 2 and 3 as noted earlier spokes of sexual relationship and that proves the factum of adultery in this case between the respondent and Kulamani Misra. In the case of Banchhanidhi Das v. Kamala Devi, (1980) 50 Cut LT 173 : (AIR 1980 Orissa 171) involving similar facts and circumstances in a matrimonial dispute it is held that if the language in the letter is suggestive of adulterous conduct then the requirement under Section 13 of the Act is satisfied. From the facts and evidence on record, this Court finds that adulterous conduct of the respondent is proved from the evidence adduced by the appellant and that has not been rebutted by the respondent. Under such circumstance, this Court grants the decree of divorce by setting aside the impugned judgment and decree of the trial Court. The appeal is allowed accordingly. No costs. Hearing-fee is assessed at ex parte scale.
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