Allahabad High Court
Firoz Karim vs Smt. Dimple Karim And Another on 2 July, 2024
Author: Saumitra Dayal Singh
Bench: Saumitra Dayal Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2024:AHC:106764-DB
Court No. - 39
Case :- FIRST APPEAL No. - 130 of 2016
Appellant :- Firoz Karim
Respondent :- Smt. Dimple Karim And Another
Counsel for Appellant :- Sanjay Kumar Yadav,Abhishek
Counsel for Respondent :- Brahmdatt Pathak,R.P. Tiwari,Shiv Shankar Prasad Gupta,Vijay Kumar Gupta
Hon'ble Saumitra Dayal Singh,J.
Hon'ble Donadi Ramesh,J.
1. Heard Shri Abhishek, learned counsel for the appellant and Sri R.P. Tiwari, learned counsel for the respondents.
2. The present appeal has been filed under Section 19 of the Family Courts Act, 1984 against the judgment and order dated 23.02.2016 passed by the Principal Judge, Family Court, Jhansi, in Petition No.410 of 2013 (Firoz Karim Vs. Smt. Dimple Karim and another). By that order, learned court below has dismissed the divorce petition filed by the present appellant under Section 10 of the Indian Divorce Act, 1869 (hereinafter referred to as "the Act" )
3. Primarily, the divorce petition had been filed by the present appellant on two grounds. First adultery and second desertion had been pleaded. As to the ground of adultery, according to the appellant, respondent no.2 had committed adultery. That pleading was made in the divorce petition. However, the same was not admitted. Rather the allegation of adultery was denied by respondent no.1. Respondent no.2 / adulterer did not appear in the proceeding. As to evidence of adultery, the appellant examined himself as PW-1, his mother Smt. Mercy Karim as PW-2 and Parvez Ahmed, neighbour as PW-3.
4. Learned counsel for the appellant would submit, in his testimony, the present appellant had clearly described the commission of adultery by alleging that respondent no.2 had often visited respondent no.1 at his home in the absence of the appellant. He had further proved that respondent nos.1 and 2 were often seen roaming around / travelling in a car belonging to respondent no.2.
5. According to the appellant, respondent no.1 had admitted of her forming an adulterous relationship with respondent no.2. The appellant further alleged having established payment of Rs.84,000/- made by respondent no.2 to respondent no.1 in her bank account as a result of adulterous relationship formed between those parties. The appellant further alleged that respondent no.1 admitted having formed such a relationship with respondent no.2.
6. Learned counsel for the appellant has further referred to SMS / text messages received and saved on the mobile phone of the appellant as were received by him from respondent nos.1 and 2 and as were elaborated and thus proved during the course of oral evidence.
7. Learned counsel for the appellant has then referred to the statement of PW-2 who proved that she had seen respondent nos.1 and 2 in an objectionable condition while the two were walking down the staircase of her house in April, 2012. Similarly, he has referred to the statement of PW-3 who allegedly described respondent nos.1 and 2 having visited an unnamed hotel premise.
8. On the strength of such evidence, the ground of adultery is described to have been proved sufficiently.
9. As to ground of desertion, relying on Section 14 of the Family Courts Act, 1984 and referring to the police complaint made by respondent no.1, dated 18.10.2014 as was part of the record of the learned court below, it has been vehemently urged that respondent no.1 deserted the appellant since 2012 inasmuch as she has admitted separate living from the appellant, since then.
10. On the other hand, learned counsel for the respondents would contend that entire fact allegations made in the divorce petition are false. Respondent no.1 has never committed adultery. No ingredient of adultery was proven. Only vague and general allegations were made as may never lead any Court to accept adulterous relationship formed by any party. He has referred to oral evidence of respondent no.1 to establish that she never admitted having committed adultery. As to oral allegations made by PW-1, PW-2 and PW-3, he would submit, sufficient doubt exists as to correctness of the statement made by those witnesses during their examination in chief.
11. The appellant never led any evidence to establish that he had witnessed any occurrence / transaction as may amount to adultery committed by the respondents. In fact, he chose to rely on hearsay. Neither he named the persons who may have seen the respondents having formed adulterous relationship nor he led any credible evidence to establish such occurrence. The appellant as also respondent no.1 are school teachers. Respondent no.2 was receiving tuition class from the appellant. For that reason, he used to visit the residence of the appellant and respondent no.1. There was no immoral or illegal relationship formed between respondents.
12. As to money paid in the bank account of respondent no.1, by respondent no.2, it has been asserted that the same was explained as money paid in the respondent's bank account on the instructions given by the appellant himself. The text messages relied upon by learned counsel for the appellant have been disputed as not proved. Neither any electronic evidence nor other credible evidence was led to establish that such text messages were actually received by the appellant either from respondent no.1 or respondent no.2. By merely stating that such text messages had been received by the appellant, the initial burden cast on the appellant to prove that such text messages had been dispatched by either of the respondents, remained undischarged. In any case, those text messages, read in entirety, do not remotely suggest commission of adultery.
13. As to the statements of PW-2 and PW-3, those have been described as wholly extraneous to the allegation of adultery. Then PW-2 did state, she had seen the respondents in objectionable condition. She neither specified the basis of the objection that arose to her on sighting respondent nos.1 and 2 on the staircase nor she described any transaction and in any case, once she admitted that the respondents were walking down staircase, inherently there was lack of evidence of commission of adultery, at that time.
14. As to statement of PW-3, it has been asserted that the same is also wholly extraneous to the allegation of adultery inasmuch as the said witness never specified the date or place of the occurrence. He merely stated, he had seen the respondents walked into an unspecified hotel. In short, it has been submitted that entire allegation of adultery is based on imagination and insecurity and not on cogent material or evidence. Forming of friendship relationship between two parties one of whom or both of whom may be married, may not be evidence of adultery.
15. As to further submissions, respondent no.1 had deserted the present appellant, the same has also been denied. Owing to abusive and violent conduct offered by the appellant, respondent no.1 used a separate room to live, in the same house to maintain domestic peace. At the same time, the said respondent continued to live in separate room of the house belonging to the appellant, over a long period of time exceeding 10 years. That fact itself establishes that respondent no.1 is not living in adultery. In any case, she cannot be described as a spouse who has deserted her husband. By living in the same house, respondent no.1 clearly indicated her desire to continue her matrimonial relation with the present appellant.
16. Having heard learned counsels for the parties and perused the record, as to allegation of adultery, we find that ground not made out. It is not that the appellant has not been able to prove exact commission of adultery in any detail, but that essential components of that ground are not shown to exist. It is not disputed to the appellant that respondent no.2 was receiving tuition classes from the appellant at his residence. Therefore, no objection could ever arise to the presence of respondent no.2 at the residence of the appellant. Second, merely because respondent no.2 may have visited the house of the appellant on certain occasions when the appellant may not have been present may also not be objected to in face of teacher and student relationship admitted between the appellant and respondent no.2. No ground of adultery may also arise for reason of such student having entered a room where the wife of his teacher may have been present.
17. In the context of relationship shown to exist between the appellant and respondent no.2, that occurrence may also remain to be described as normal / natural. In absence of any witness having led any evidence to establish commission of any act of adultery, the statement of the mother of the appellant, PW-2 is wholly inadequate to prove the allegation of adultery. She admitted to have seen the respondents walk down staircase of her house. It is only that occurrence she chose to describe as "objectionable". |As to objectionable conduct, she chose not to specify any specific act. Therefore, the statement of PW-2 remained extraneous to the allegation of adultery. Similarly, the statement of PW-3 is extraneous to the allegation of adultery inasmuch as he only stated having seen the respondents walk into hotel. He however, chose not to disclose the date or time of that occurrence. In any case, he chose not to describe any other act involving respondents which may tantamount to commission of adultery. Thus, the learned court below has not erred in disbelieving the allegation of adultery raised by the appellant.
18. As to ground of desertion, the same was not at all proved. It is an admitted fact between the parties, respondent no.1 continued to reside in the same house of the appellant since 2012. The fact that she may now be living separately is also of less significance. In any case, that fact has not been proven on record. Therefore, we do not propose to record any firm finding as to that.
In the context of limited ground of divorce available under Section 10 of the Act, we find no ground made out to dissolve the marriage between the parties on the pleadings made in these proceeding.
19. Accordingly, the present appeal lacks merit and is dismissed.
20. Lower court record be returned forthwith.
Order Date :- 2.7.2024
rkg
