Now question arises on whom burden lies to establish the allegation of adultery. It is the person, who makes the allegation of adultery, has to establish the same. With the above provisions of law, now it is to be examined in the case in hand, whether the Learned Judge, Family Court, Cuttack, has followed the principles of law in proper perspective to decide the question of adultery as alleged against Kuni. 'Adultery' being a serious allegation, which affects the chastity of a woman, should not be dealt with casually, rather great care and caution should be taken while considering such allegations. On perusal of the materials available on record, it is found that the Learned Judge, Family Court, Cuttack has committed gross error by not considering the plea taken by Kuni and has proceeded to accept the contentions raised by Pabitra by relying upon the documents, which have been marked as exhibits, i.e. Ext. 1 the complaint, which has been subsequently turned as G.R. Case, Ext. 4, the statement of Kuni recorded under Section 164, Cr.P.C. and Exts. 5 to 7, the Faisalanama in the criminal proceeding and by utilizing the same against Kuni, passed the impugned decree of divorce. That apart, Ext. 4, the statement recorded under Section 164, Cr.P.C. on which reliance has been placed by the Learned Judge, Family Court, Cuttack to establish the allegation of adultery, has not been recorded in accordance with the provisions of law enshrined under the Code of Criminal Procedure, more particularly, the Learned Magistrate while recording such statement has not taken consent from her that if she makes such statement that may be utilized against her and her signature, which has been given in the form of LTI has neither been identified nor the contents of the statement recorded under Section 164, Cr.P.C. which has been recorded by the Learned Magistrate, has been read over and explained to her at any point of time, thereby such recording of statement of Kuni in a criminal case under Section 164, Cr.P.C. cannot be utilized against her in the civil proceeding.
IN THE HIGH COURT OF ORISSA
Decided On: 07.08.2013
Hon'ble Judges/Coram:S. Panda and Dr. B.R. Sarangi , JJ.
1. Husband-Pabitra Mohan Behadi filed Civil Proceeding No. 138 of 2000 seeking for a decree of divorce under Section 13 of the Hindu Marriage Act on the ground of adulterous life of his wife Kuni Dei with Nilu. Kuni Dei, the wife filed Criminal Proceeding No. 291 of 2000 under Section 125 of the Cr.P.C. claiming maintenance from her husband Pabitra Mohan Behadi at the rate of Rs. 500 per month on the ground of his negligence and refusal to maintain her.
2. Since the parties to the dispute is same, Learned Judge, Family Court, Cuttack passed an order on 14.1.2.2001 in C.P. No. 138 of 2000 to hear both the matters analogously and accordingly they were heard together and Judgment was passed on 21.08.2006 granting ex parte decree of divorce as against the wife of Kuni Dei. Against the said Judgment, Kuni Dei-wife has preferred an appeal bearing MATA No. 55 of 2006 under Section 19 of the Family Courts Act to set aside the ex parte decree of divorce passed against her and also filed RPFAM No. 15 of 2006 claiming maintenance of Rs. 1500 per moth. Both the matters were heard together with the consent of Learned Counsel for both the parties.
3. The fact of the case, in nut-shell, is that both Pabitra and Kuni had married in the year 1983. They led happy conjugal life for a period of sixteen years and out of their wed-lock three sons ware born. By the time the dispute was filed, these three sons were aged about 13, 10 and 7 years respectively. Pabitra alleged that Kuni had developed illicit relationship with his cousin Nilu and was leading a adulterous life. In spite of several attempts being made to refrain her from such activities, she did not pay any heed to such request of Pabitra. Finding no other alternative, Pabitra filed a complaint case before the Learned J.M.F.C., Baramba bearing I.C.C. No. 13 of 2000 and the Learned Magistrate referred the matter to the police, which was ultimately converted to G.R. Case No. 19 of 2000 In the said proceeding, wife-Kuni was examined under Section 164 Cr.P.C., which was marked as Ext. 4. Learned Judge, Family Court, Cuttack relying upon the complaint, which was turned to G.R. Case No. 19 of 2000 as Ext. 1 and Exts. 5 to 7, the certified copy of the Panchayat Faisalanama, dissolved the marriage solemnized between Pabitra and Kuni by passing a decree of divorce on 21.08.2006, which is impugned in MATA No. 55 of 2006.
4. Though Nilu had appeared and filed written statement, he has been set ex parte on 3.11.2003 whereas Kuni filed written statement denying all the allegations made by Pabitra and also stated that 6-7 months prior to May, 2000 Pabitra physically assaulted her and drove her away from his house and thereafter sent his younger cousin Nilu to her father's house, conveyed his desire to talk with her in her uncle's house. Believing that her husband is attempting to take her back, she went to her uncle's house with Nilu, the cousin of Pabitra Suddenly, the police appeared with her husband Pabitra and took her along with Nilu and influenced her to tell against Nilu to let her free from blames, as a result her statement was recorded before the Magistrate under Section 164 Cr.P.C. and, as such, she has expressed her ignorance about the statement recorded in the Court and she has completely denied to have adulterous life with Nilu, who is of the age of her elder son. The reasons for filing of the application by Pabitra is due to the fact that Kuni after giving birth to three children became weak, but Pabitra did not take care of her health rather tried to marry another lady of his choice and started assaulting her. Ultimately Pabitra married to Gita alias Gitarani Pradhan, daughter of Laxmidhar Pradhan of village Ratagarh, Banki in a Durga Temple on 11.07.2000 at village Mahulia, in the district of Cuttack and also enjoyed bigamous married life.
5. Pabitra was serving in a local Spinning Mill and was getting Rs. 2,500 per month. In the maintenance proceeding bearing Criminal Proceeding No. 291 of 2000 under Section 125 Cr.P.C. filed by Kuni, the Learned Judge, Family Court, Cuttack granted interim maintenance of Rs. 200 per month but she has been denied maintenance due to the Judgment passed in C.P. No. 138 of 2000, which was allowed in favour of Pabitra under Section 19(i)(1) of the Hindu Marriage Act on the ground of adultery of Kuni. Against non-grant of maintenance in Criminal Proceeding No. 291 of 2000, Kuni has filed RPFAM No. 15 of 2006 claiming maintenance.
6. In order to establish the case of adulterous life of Kuni, Pabitra examined two witnesses, namely, P.W. 1, he himself and P.W. 2 Raj Kishore Behari, whereas from the side of Kuni, she has only been examined as O.P.W. No. 1. Pabitra relied upon the documents Exts. 1 to 9 to establish the case of adultery against Kuni and, as such, he has utilized the complaint arising out of G.R. Case No. 19 of 2000, marked as Ext. 1 and Ext. 4 the certified copy of the statement of Kuni recorded under Section 164 Cr.P.C. in G.R. Case No. 19 of 2000 and certified copy of the Panchayat Faisalanama Exts. 5 to 7 to prove his contention of adulterous life of Kuni.
7. On perusal of Ext. 4, it is found that the same has not been recorded in accordance with the provision of Section 164 Cr.P.C. rather, the Magistrate had proceeded in a manner contrary to the said proviso. So far as reliance placed on the other documents, which are outcome of G.R. Case and utilized against Kuni to get a decree of divorce, is concerned, while considering such documents, Learned Judge, Family Court has not applied his mind in proper perspective inasmuch as he has proceeded in a footing as if Kuni has indulged in adultery and finally passed the impugned order granting a decree of divorce against Kuni.
8. Kuni's plea is to the extent that in order to have a second marriage, Pabitra ill-treated and assaulted her and, more so, Pabitra had married to one Gita @ Gitarani Pradhan daughter of Laxmidhar Pradhan of village Ratagarh on 11.07.2000, Learned Judge, Family Court without considering the contentions raised by Kuni has passed the decree which is not sustainable in the eye of law.
9. Mr. Satapathy, Learned Counsel appearing for Kuni relied upon the Judgment of various Courts such as, MANU/WB/0064/2001: 11 (2001) DMC 383 (Cal.), MANU/MH/0022/1998 : 11 (1997) DMC 499, MANU/KE/0745/1999 : 1 (2000) DMC 508(Kerala), 11 (1996) DMC 356 (P & H),MANU/OR/0364/2002: 11 (2003) DMC 275 (Orissa) in his written statement of argument in support of his contention, whereas no citation has been given by the Learned Counsel appearing for Pabitra.
10. Before going to the merits of the case, it is to be first considered as to what is the meaning of 'adultery'. 'Adultery' as per the judicial dictionary means, "Ad to: alter, another person); anciently termed advowtry (quasi ad alterius thorum), the sin of incontinence between two married persons, or it may be where only one of them is married, in which case it may be called single adultery to distinguish it from the other, which has sometimes been called double". It means voluntary sexual intercourse between a married man or married woman and any person other than his or her wife or husband during the subsistence of such marriage (Abson v. Abson (1925) P55 : Chorlton v. Chorlton, (1952) P 169 ). Adultery is a ground for judicial separation (q.v.) and for dissolution of marriage (Matrimonial Causes Act, 1950, Section 1(1)(a) , See WITNESS, By the Matrimonial Causes Act, 1857, which created a Court for Divorce and Matrimonial Causes (Superseding the Ecclesiastical Court) which would grant to the innocent party a divorce a mensa et thoro on the ground of the others adultery, a husband could obtain a dissolution of his marriage (which previously was only obtainable by a private Act of Parliament) upon the ground of her husband's adultery, or a dissolution of marriage on the ground of his adultery coupled with cruelty or desertion or bigamy, or of his incestuous adultery, provided there was no collusion or connivance, and that the alleged charges had not been condoned. The Matrimonial Causes Act, 1923, gave a wife the right to divorce her husband on the ground of adultery alone. See ACCUSARE NAMO SE DEBET DIVORCE. Under the Statute of Westminister I, 1285, c. 34, a wife forfeited unless condoned, by subsequent cohabitation by the husband. Upon the adultery of the wife, the husband's common law liability to supply her with necessaries ceases. It is a good defence to a charge under the Vagrancy Act, 1824. Section 3 , of neglecting to maintain here; and unless condoned, to an application against the husband under the National Assistance Act, 1948, Section 42 , for an order that he shall maintain her (National Assistance Board v. Wilkinson, (1952) 2 Q.B. 648 ), and also, unless he has condoned, connived at or conduced to the adultery, to a summons against him by the wife for maintenance under the Summary Jurisdiction (Married Women) Act, 1895, Section 6 . If an order has been made under the last-mentioned Act, it may be revoked either upon proof of subsequent adultery by the wife or upon proof of such antecedent adultery as would have been an answer to the application for the order, if it appears either that such antecedent adultery was not within the knowledge of the husband when the order was made or that he was prevented by some sufficient cause, such as illness, from appearing on the hearing of the original application and proving such adultery. Adultery was formerly a tort actionable by a Writ of trespass in an action off criminal conversation (q.v.) but now damages for adultery may be claimed by a husband only in proceedings in the divorce Court (Matrimonial Causes Act, 1950, Section 30 ); where, however, adultery follows upon enticement, damages for the adultery may be recovered in an action for enticement (Menon (1936) p. 200). Adultery has always been one of the offences with regard to which the ecclesiastical Courts had jurisdiction. That jurisdiction still exists, but is now obsolete, Chapter 10 of the Acts of Parliament of 1950 made adultery a felony, without benefit of clergy, and punishable with death; but this Act which does not seem to have been put in force, was of no effect after the Restoration. Where a man finds another in the act of adultery with his wife (R.V. Greening, (1913) 3 K.B. 846 ) and kills him or her, in the first transport of passion, he is only guilty of manslaughter, but this does not extend to a confession by the wife of past adultery (Holmes v. D.H.P., (1946) A.C. 588 ). The killing of an adulterer deliberately and upon revenge is murder. The word adultery is also used by ecclesiastical writers to describe the intrusion of a person into a bishopric during the former bishop's life. The reason of the application is that a bishop is supposed to contract a sort of spiritual marriage with his church. (See: Earl Jowitt's. The Dictionary of English Law, 2nd Ed. at. 6788).
Adultery is the matrimonial offence, defined in the following manner in standard Treatises, such as Rydon on Divorce, 10th Edn., it is:
"Consensual sexual intercourse between a married person and a person of the opposite sex, not the other spouse, during the subsistence of the marriage". (See Divorce Act, 1869, Section10 [(Dawn Hendereson v. D. Henderson, MANU/TN/0095/1970 : AIR 1970 Mad. 104 at 105 (SB)]A marriage solemnized after the commencement of the Hindu Marriage Act, 1955, in the lifetime of a married spouse, renders, the second marriage null and void ab initio. This is so by virtue of Section 11, read with Section (5)(i) of the Act, the marriage is void opsojure. Such a marriage, is, in law no marriage at all.Sexual intercourse between the husband and the second wife is adultery so as to attract the provisions of Section 10(1)(f) and13(1)(i) of the said Act. (Gita Bai v. Fattoo, MANU/MP/0034/1966 : AIR 1966 MP 130 : 1965 MPLJ 559 : 1965 Jab. LJ 663).In the absence of any definition of the Act itself the Special Bench referred to the meaning of the word "adultery" as given in the English Dictionary, such as Strouds Judicial Dictionary and Tomin Law Dictionary. Where the evidence justifies the finding that the Respondent had sexual intercourse with the co-Respondent at any place and point of time as alleged by the Petitioner then it will be a clear case of adultery. [(Subrata Kumar v. Dipti Banerjee. MANU/WB/0012/1974 : AIR 1974 Cal. 61 at 65 (SB)]
11. Apart from the above, meaning of 'adultery' can only be derived from Section 497, IPC to mean, whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man; such sexual intercourse not amounting to the offence of rape, is the offence of adultery. 'Adultery' is the willful violation of the marriage bed. 'Adultery' is the offence of incontinence by married persons'.
12. Now question arises on whom burden lies to establish the allegation of adultery. It is the person, who makes the allegation of adultery, has to establish the same. With the above provisions of law, now it is to be examined in the case in hand, whether the Learned Judge, Family Court, Cuttack, has followed the principles of law in proper perspective to decide the question of adultery as alleged against Kuni. 'Adultery' being a serious allegation, which affects the chastity of a woman, should not be dealt with casually, rather great care and caution should be taken while considering such allegations. On perusal of the materials available on record, it is found that the Learned Judge, Family Court, Cuttack has committed gross error by not considering the plea taken by Kuni and has proceeded to accept the contentions raised by Pabitra by relying upon the documents, which have been marked as exhibits, i.e. Ext. 1 the complaint, which has been subsequently turned as G.R. Case, Ext. 4, the statement of Kuni recorded under Section 164, Cr.P.C. and Exts. 5 to 7, the Faisalanama in the criminal proceeding and by utilizing the same against Kuni, passed the impugned decree of divorce. That apart, Ext. 4, the statement recorded under Section 164, Cr.P.C. on which reliance has been placed by the Learned Judge, Family Court, Cuttack to establish the allegation of adultery, has not been recorded in accordance with the provisions of law enshrined under the Code of Criminal Procedure, more particularly, the Learned Magistrate while recording such statement has not taken consent from her that if she makes such statement that may be utilized against her and her signature, which has been given in the form of LTI has neither been identified nor the contents of the statement recorded under Section 164, Cr.P.C. which has been recorded by the Learned Magistrate, has been read over and explained to her at any point of time, thereby such recording of statement of Kuni in a criminal case under Section 164, Cr.P.C. cannot be utilized against her in the civil proceeding.
13. In view of such position, the finding arrived at by the Learned Judge, Family Court, Cuttack granting decree of divorce against Kuni, is absolutely misconceived one inasmuch as the same is an out-come of non-application of mind, thereby the order passed by the Learned Judge, Family Court, Cuttack in C.P. No. 138 of 2000 is hereby Set aside.
14. So far as payment of maintenance under Section 125, Cr.P.C. in Criminal Proceeding No. 291 of 2000 is concerned, three sons born out of the wed-lock of Pabitra and Kuni, who were aged 13, 10 and 7 years respectively at the time of filing of the criminal proceeding have in the meantime become 26, 23 and 20 years respectively and have attained the age of majority. On query being made, it has been brought to the notice of this Court that all the three sons are staying with their father Pabitra. In a proceeding under Section 125, Cr.P.C. the major sons have equal responsibility to maintain the parents. Therefore, both Pabitra and his three sons are duty bound under the provisions of taw to maintain Kuni by paying maintenance for her sustenance. Reliance is placed on a recent Judgment of the Apex Court in K. Srinivas Rao v. D.A. Deepa, MANU/SC/0180/2013 : (2013) 5 SCC 226 wherein it has been held that it is the husband's obligation to maintain the wife so also the major children have also equal obligation to maintain their mother under the provisions under Section 125, Cr.P.C.
15. In the case at hand, since Pabitra and three sons are earning, it would be just and proper to direct them to pay maintenance of Rs. 400 per month from the date of passing of this order and we direct accordingly. Further Kuni is also entitled to get the arrear maintenance of Rs. 200 from 21.8.4006, the date the Judgment in C.P. No. 138 of 2000 was passed till date as she has not been paid anything because of grant of decree of divorce by the Learned Judge, Family Court, Cuttack. Therefore, we direct Pabitra to pay the arrear maintenance of Rs. 200 per month from the date of the Judgment passed, in C.P. No. 138 of 2000, i.e. 21.8.2006 till date as she was getting interim maintenance during pendency of the said proceeding. Such arrear shall be paid within a period of two months from the date of passing of this order. With the above observation and direction, both MATA No. 55 of 2006 and RPFAM No. 15 of 2006 are disposed of.
I agree.
No comments:
Post a Comment