The Madhya Pradesh High Court recently comprising of a bench of Justices Vivek Rusia and Amar Nath has observed that a wife’s act of meeting or raining around with a man other than her husband would not amount to adultery. (Veeram v. Shaitan bai)
Facts of the case
The appellant/husband has filed this appeal against the judgment passed by the 1st Additional District Judge, whereby the application filed under section 13(1)(1)(1a) of the Hindu Marriage Act has been dismissed.
Appellant filed the aforesaid application seeking the dissolution of the marriage on the ground of adultery and cruelty. According to the appellant, the marriage with the respondent was solemnized 8 years ago under Hindu customs and rituals. Thereafter they started living together. She filed an application under section 125 Cr.P.C seeking maintenance for herself as well as her child which was dismissed for her but maintenance was allowed to the child at the rate of Rs.1500/- per month.
Appellant filed an application under section 10 of the Guardian and Wards Act before the District Judge, Shajapur and the application was allowed and the custody of child Rahul was given to him.
Appellant filed an application under section 13(1)(1)(1a) of the Hindu Marriage Act alleging that the respondent is residing with one Jaswant Pal in adultery. She assaulted his mother for which an FIR was lodged against her, therefore, he is entitled to divorce on the ground of adultery and cruelty..
Courts observation and judgment
The bench at the very outset observed, “So far as the allegation of adultery is concerned, according to the appellant the respondent is residing with Jaswant Singh as his wife and he saw her going to the house of Jaswant Singh 5 months ago. He has also examined other witnesses i.e. PW/2, PW/3 and PW/4 to establish that they also saw the respondent along with Jaswant Singh on several occasions.
It settled the law that mere roaming along with any male other than the husband does not constitute a presumption of adultery against the wife. There must be direct evidence to establish that she was seen in a compromising position or adultery with other than her husband then only the charge of adultery can be said to have been established. Merely meeting or roaming with a person other than the husband does not constitute adultery, therefore, the trial Court has rightly held that the allegation of cruelty has not been established.”
The bench further observed, “The appellant has also challenged the findings on the ground that learned trial Court has denied the maintenance under section 125 Cr.P.C doubting the character of the respondent. It is settled law that the findings recorded while deciding the application under section 125 Cr.P.C do not constitute res judicata. The proceedings under section 125 Cr.P.C are summary proceedings where the allegation and counter allegation are not liable to be established beyond reasonable doubt and only desertion or inability to maintain are liable to be examined, therefore, the trial Court has rightly rejected the aforesaid application and we also do not find any substance in that ground raised by the appellant.”
The bench dismissing the appeal remarked, “So far the cruelty in respect of registration of criminal case concerned, that was filed by the mother of the appellant against respondent Shaitanbai in which she has been given the benefit of the Probation of Offenders Act, therefore, that does not constitute cruelty against the appellant, hence we do not find any ground to interference in the impugned judgment. Accordingly, the appeal is dismissed.”
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