Bombay High Court
Sau. Smruti W/O Anant Khandale vs Anant S/O Mdhaukar Khandale, And ... on 21 October, 2016
Bench: V.A. Naik
FCA 339/14 1 Judgment
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
FAMILY COURT APPEAL NO. 339/2014
APPELLANT: Sau. Smruti
ON RA
...VERSUS...
RESPONDENTS : 1. Anant
ON RA
2. Keshav
3. Rajendra
Deleted as per order 4. Gajanan
dated 21/04/2016.
Ms Deepali Sapkal, counsel for the appellant.
Mrs Radhika Bajaj, counsel for the respondent No.1.
None for the respondent Nos.2 and 3.
CORAM : SMT.VASANTI A NAIK AND
KUM. INDIRA JAIN, JJ.
DATE : 20 TH & 21 ST OCTOBER, 2016.
ORAL JUDGMENT (PER : SMT.VASANTI A NAIK, J.)
The family court appeal is ADMITTED and decided finally after
perusing the original record and proceedings.
FCA 339/14 2 Judgment
2. By this family court appeal, the appellant-wife challenges the
judgment of the Family Court, Akola, dated 17.06.2013, allowing the petition
filed by the respondent-husband for a decree of divorce under section 13(1)(i)
of the Hindu Marriage Act on the ground that the appellant-wife had illicit
relationship with the respondent Nos.2, 3 and 4 during the subsistence of her
marriage with the respondent-husband.
3. The appellant-wife (hereinafter referred to as the "wife" for the
sake of convenience) and the respondent-husband (hereinafter referred to as
the "husband") were married at Hiwarkhed in Akola district on 25.06.2000,
according to the Hindu rites and custom. A girl named Khushi and a boy
named Harsh were born from the wedlock. The parties resided together till
08.06.2012 at Akola. The husband then filed a petition for a decree of divorce
under section 13(1)(i) of the Hindu Marriage Act on the ground that after the
solemnization of the marriage, the wife had illicit relationship with the
respondent Nos.2, 3 and 4. To the petition filed by the husband, the husband
had joined the wife, Keshav Kale, Rajendra Bhakre and Gajanan Bele as
respondent Nos.2, 3 and 4. In the said petition, it was pleaded that the wife
behaved well with the husband for about seven to eight years after the
marriage but, during the past two to three years before the filing of the petition
on 24.08.2012, the wife became unchaste and developed illicit relationship
with Keshav Kale, Rajendra Bhakre and Gajanan Bele. It is pleaded that Keshav
Kale was a relative of the wife from her maternal side and, therefore, the
FCA 339/14 3 Judgment
husband did not suspect about any illicit relationship when Keshav Kale was
visiting the matrimonial house and talking with the wife. It is pleaded that the
husband became aware from the tenants to whom certain rooms of the house of
the husband were rented that the wife had an illicit relationship with Keshav
Kale. It is pleaded that after the husband warned Keshav Kale that he should
not come to his house, Keshav Kale maintained relationship with the wife
outside the house by visiting hotels and other places. It is pleaded that the
tenants and other people had seen the wife and Keshav Kale in a compromising
position. It is then pleaded that it was learnt by the husband from his friends
that the wife had an illicit relationship with Rajendra Bhakre. It is pleaded that
the wife used to call Rajendra Bhakre to the matrimonial home whenever the
husband was out of the house for work. It is pleaded that the tenants had
witnessed the wife and Rajendra Bhakre in a compromising position on many
occasions. It is pleaded that though the husband scolded the wife and also
appealed to her to stop the relationship, the wife did not mend her ways. It is
then pleaded that the husband has a printing press and needs the services of an
electrician. It is pleaded that Gajanan Bele, an electrician, used to come to his
printing press and also to his house for electric repair work. It is pleaded that
during this period, Gajanan Bele developed illicit relationship with the wife. It
is pleaded that when the husband learnt about the said relationship and
warned Gajanan Bele not to enter his house, Gajanan Bele stopped coming to
the house of the husband. It is pleaded that Gajanan Bele then presented a
mobile phone to the wife and both of them used to contact each other outside
FCA 339/14 4 Judgment
the house. It is pleaded that the wife and Gajanan Bele used to roam about in
the city and the fact in regard to the illicit relationship between the wife and
Gajanan Bele was informed by the husband to the mother of the wife. It is
pleaded that the mother of the wife asked the husband to forgive her daughter
and told him that she would behave well in future. It is pleaded that the wife,
however, did not change her ways. It is pleaded that the husband asked the
wife about her illicit relationship with Keshav Kale, Rajendra Bhakre and
Gajanan Bele on 08.06.2012 and when the wife was confronted about the
relationship, she left Akola along with the two children to reside at her paternal
house at Hiwarkhed. It is pleaded that the parties are separated since then. It
is pleaded that on 12.06.2012, there was a meeting of the relatives of the
husband and the wife in the house of the aunt of the husband and in that
meeting, the wife admitted about her illicit relationship with Keshav Kale,
Rajendra Bhakre and Gajanan Bele. It is pleaded that since the wife was leading
an immoral life with Keshav Kale, Rajendra Bhakre and Gajanan Bele, the
husband was entitled to a decree of divorce under Section 13(1)(i) of the
Hindu Marriage Act.
4. The wife filed the written statement and denied each and every
adverse allegation made by the husband against her. The wife denied that
there was any illicit relationship between her and Keshav Kale, Rajendra Bhakre
and Gajanan Bele. In her specific pleadings, the wife pleaded that Khushi was
about eleven years of age and Harsh was about five years of age and it was not
FCA 339/14 5 Judgment
possible that the wife would have an illicit relationship with three persons at a
time. It is pleaded that when the printing business of the husband was in
doldrums, the wife prepared tiffins in the house and supported the husband,
both, financially and emotionally. It is pleaded that the father and the mother
of the husband resided in the matrimonial house for most of the time and a lot
of other relatives also visited the matrimonial home. It is stated that the
printing press of the husband is only at a short distance from the house and the
house can be viewed from the printing press. It is pleaded that there were
about five to six employees in the printing press and in the big wada, there are
many tenants and it is not possible that the wife would have illicit relationship
with Keshav Kale, Rajendra Bhakre and Gajanan Bele, specially when so many
relatives and friends come in and out of the house time and again. It is pleaded
that the husband was suffering from fits for a long time and that he has levelled
false allegations against the wife in respect of her relationship, thereby causing
mental agony to her. It is pleaded that though several relatives had intervened
in the matter and tried to tell the husband that the allegations made by him
were reckless and untrue, the husband refused to budge and ill-treated the wife
both, physically and mentally. It is pleaded that the parents of the wife had
spent huge amount for the marriage of the parties and since the printing
machine purchased by the husband at Rs.15,00,000/- was sold at a very low
price, the husband suffered financially and the husband and his mother ill-
treated the wife. The wife sought for the dismissal of the hindu marriage
petition.
FCA 339/14 6 Judgment
5. Keshav Kale and Rejendra Bhakre also filed their written statement
and denied the claim of the husband. They denied that there was an illicit
relationship between them and the wife. Gajanan Bele, the electrician,
however, filed the written statement admitting the allegations levelled by the
husband against the wife in regard to her illicit relationship with him. Gajanan
Bele admitted in his written statement that he had illicit relationship with the
wife and he had purchased a handset for her.
6.
On the aforesaid pleadings of the parties, the family court framed
the issues. The husband examined himself and also examined Shri Laxmanrao
Vyawahare, who was the husband of the maternal aunt of the husband. The
husband examined Santoshi Bhambe, who claimed to be a tenant in a room in
the wada-house of the husband. The husband examined Tanuja Tathod who
claimed to be the owner of a boutique to substantiate his case. The husband
examined Shekhar but, since this witness was not cross-examined, it would not
be possible to consider the evidence of this witness. The husband lastly
examined his daughter Khushi to substantiate his case in respect of the illicit
relationship. The wife examined herself and examined her brother, Shri Dilip
Bhople. Rajendra Bhakre and Keshav Kale examined themselves. Gajanan Bele
did not enter into the witness box though he had filed the written statement
admitting the illicit relationship with the wife. On an appreciation of the
evidence on record, the family court, by the judgment dated 17.06.2013,
allowed the petition filed by the husband and dissolved the marriage
FCA 339/14 7 Judgment
solemnized between the parties by a decree of divorce under Section 13(1)(i)
of the Hindu Marriage Act. The judgment of the family court is challenged by
the wife in this family court appeal.
7. Ms Sapkal, the learned counsel for the wife, submitted that the
family court was not justified in allowing the petition filed by the husband
under section 13(1)(i) of the Hindu Marriage Act. It is submitted that the
burden to prove that the wife had voluntary sexual intercourse with Keshav,
Rajendra and Gajanan was on the husband and the husband is not successful in
proving that the wife had voluntary sexual intercourse with Keshav, Rajendra
and Gajanan. It is submitted that the husband has made vague allegations in
respect of the immoral character of the wife, in the petition. It is stated that it
is casually pleaded in the petition that the wife had illicit relationship with
Keshav Kale, Rajendra Bhakre and Gajanan Bele without pointing out the
period during which the wife had illicit relationship with Keshav, Rajendra and
Gajanan. It is submitted that it is not pleaded whether the wife had illicit
relationship with all the three of them at the same time or she developed
relationship with each one of them after she severed the relationship with the
other. It is submitted that it is casually pleaded in the petition that the husband
became aware about the illicit relationship from the tenants and some other
people without mentioning in the petition as to who those tenants and people
were. It is submitted that it is casually pleaded in the petition that the tenants
had seen the wife in a compromising position with Keshav Kale and Rajendra
FCA 339/14 8 Judgment
Bhakre without mentioning on which date, or for that matter during which
month or year the wife was seen in a compromising position and by whom. It
is submitted that the printing press of the husband is at a distance of only 25
feet from the wada of the husband and it is impossible to believe the case of the
husband that the wife had illicit relationship with Keshav, Rajendra and
Gajanan in the wada which had so many tenants and so many relatives and
friends were visiting the matrimonial house. It is submitted that the husband
had never seen or witnessed any illicit relationship and the husband has not
pleaded as to who were the persons from whom he became aware of the illicit
relationship of the wife with Keshav, Rajendra and Gajanan. It is submitted
that the husband had, for the reasons best known to him picked up Gajanan
Bele, the electrician, for proving his case of illicit relationship of the wife and this
man, on the say of the husband had filed the written statement admitting the illicit
relationship but had failed to enter into the witness box. It is submitted that the
husband has stooped to a very low level by making allegations in regard to the
illicit relationship of the wife with Keshav, Rajendra and Gajanan. It is stated
that there are so many discrepancies in the evidence of the witnesses examined
on behalf of the husband. It is stated that the evidence of Santoshi and Tanuja,
in their cross-examination would prove that these witnesses are not trustworthy
and they have falsely deposed against the petitioner. It is submitted that it is
apparent from the cross-examination of the witnesses examined on behalf of
the husband that the witnesses do not have any regard for truth. It is submitted
that casting aspersions on the moral character of a woman is grave and serious
FCA 339/14 9 Judgment
and it would be necessary for a husband to prove, if not beyond doubt, by
cogent evidence, about the immoral character of the wife. It is submitted that
the husband would not be entitled to examine the husband of the aunt of the
husband, viz. Laxmanrao, Santoshi Bhambe, Tanuja Tathod and his daughter
Khushi when in the pleadings, there is no mention about these persons and it is
not the case of the husband that any of them had actually informed the
husband about the illicit relationship between the wife and Keshav, Rajendra
and Gajanan. It is submitted that in the circumstances of the case and on the
basis of the evidence on record the family court ought to have dismissed the
petition filed by the husband. It is submitted that there are no pleading in the
petition filed by the husband that the wife had voluntary sexual intercourse
with Keshav Kale, Rajendra Bhakre and Gajanan Bele and it is only pleaded that
she had illicit relationship with them.
8. Mrs. Bajaj, the learned counsel who was appearing for the husband,
had supported the judgment of the family court when the matter was argued on
26.09.2016. It was submitted on behalf of the husband that the judgment of
the family court was just and proper and the family court had rightly allowed
the petition filed by the husband on the basis of the evidence of the husband,
Santoshi Bhambe, Tanuja Tathod and Khushi. It is submitted that there was no
reason for Santoshi Bhambe, Tanuja Tathod or Khushi to depose against the
wife. It was submitted that on a reading of the evidence of these witnesses, it is
apparent that the wife had illicit relationship with Keshav, Rajendra and
FCA 339/14 10 Judgment
Gajanan. It is submitted that Santoshi had witnessed the wife in a
compromising position with Keshao Kale when she had visited the matrimonial
home. It was stated that it is also clear from the evidence of Tanuja Tathod
that she had seen the wife and Keshav Kale in an embrace in the kitchen when
she had visited the house of the husband. It is stated that Tanuja Tathod had
also tendered evidence to prove that in her boutique, the wife and Gajanan Bele
had embraced and kissed each other. It is submitted that there was no occasion
for Khushi to tender evidence against her mother and the family court has,
therefore, rightly accepted the evidence of Santoshi, Tanuja and Khushi to hold
that the husband was entitled for a decree of divorce on the ground that the
wife had voluntary sexual intercourse with Keshav Kale, Rajendra Bhakre and
Gajanan Bele. Though the matter was argued at length by Mrs.Bajaj, the
counsel for the husband on 26.09.2016, the matter was adjourned at the
request of the counsel so as to consider whether there was a possibility of
settlement between the parties. The matter was thereafter adjourned and on
17.10.2016, the husband remained personally present in the court and
informed this court that he does not want to defend the matter. Mrs.Bajaj, the
learned counsel for the husband, therefore, sought a discharge from the matter
on the said date. We had discharged her appearance for the husband and
proceeded to fix the matter for judgment. Though the husband had stated that
he does not want to defend the matter, we had recorded the submissions
made by Mrs.Bajaj on 26.09.2016 in this judgment, so as to keep the record
straight.
FCA 339/14 11 Judgment
9. On hearing the learned Counsel for the parties and on a perusal of
the record and proceedings, it appears that the following points arise for
determination in this family court appeal :-
i) Whether the husband is successful in proving that
the wife had voluntary sexual intercourse with
Keshav Kale, Rajendra Bhakre and Gajanan Bele
ig and whether he is entitled to a decree of divorce
under section 13(1)(i) of the Hindu Marriage Act?
ii) What order?
10. To answer the aforesaid points, it would be necessary to consider
the pleadings of the parties and the evidence tendered by them. It would not
be necessary for us to reiterate the pleadings of the parties as we have narrated
the pleadings in detail in the earlier part of the judgment. It is, therefore,
necessary to consider the evidence of the parties. It is not necessary to consider
the evidence of the witnesses examined on behalf of the wife, except their
evidence in the cross-examination as the wife and her witnesses had denied the
claim of the husband, in their examination-in-chief. So also, Keshav Kale and
Rajendra Bhakre have entered into the witness box and denied the case of the
husband. Mainly, it would be necessary to consider the evidence of the
husband and his witnesses, as it is well settled that the burden to prove that
FCA 339/14 12 Judgment
the spouse had voluntary sexual intercourse after the soleminzation of the
marriage, with a person other than his or her spouse would lie only on the
spouse levelling the allegation of voluntary sexual intercourse against his or her
spouse and the burden would not shift on the spouse against whom the
allegation is levelled. From the beginning of the trial to the end of the same,
the burden would lie in this case on the husband, as he has made the allegation
that after the solemnization of the marriage, the wife had illicit relationship
with Keshav Kale, Rajendra Bhakre and Gajanan Bele. It is held by this Court in
the judgment dated 29.08.2016 in Family Court Appeal No.58 of 2015 that the
charge of extra marital relationship is a serious charge that casts aspersions on
the character of the spouse and, hence, the charge needs to be proved by such
evidence that could lead to an irresistible conclusion that the spouse had
voluntary sexual intercourse with the person of the opposite sex, other than his
or her spouse. The allegation in respect of voluntary sexual intercourse is
required to be proved by cogent and convincing evidence. The allegation of
voluntary sexual intercourse could be proved from the circumstantial evidence
that excludes the presumption of innocence in favour of the person against
whom it is alleged. There could be a proof of voluntary sexual intercourse only
if no other inference is possible from the material on record. In the
backdrop of these principles, we are required to consider the pleadings
of the parties and the evidence tendered by them. At the outset, it is
necessary to note that the pleadings in respect of the serious allegation levelled
against the wife, are extremely vague and casual. No date, month or year
FCA 339/14 13 Judgment
during which the wife had illicit relationship with Keshav Kale, Rajendra
Bhakre and Gajanan Bele is mentioned. It is vaguely stated in the petition that
the husband became aware about the illicit relationship between the wife and
Keshav, Rajendra and Gajanan from some persons. It is not pleaded in the
petition as to who these persons are, so also, as to who are the tenants who
informed the husband about the illicit relationship of the wife with Keshav,
Rajendra and Gajanan. It is casually pleaded in the petition that the wife had a
good moral character for seven to eight years and suddenly she lost her
character and had illicit relationship with Keshav Kale, Rajendra Bhakre and
Gajanan Bele. The petition for a decree of divorce is filed on 24.08.2012.
However, it is not mentioned as to when the wife had illicit relationship with
Keshav Kale, with Rajendra Bhakre and with Gajanan. It is vaguely pleaded in
the petition that some tenants had seen the wife in a compromising position
with Keshav Kale and Rajendra Bhakre. It is not stated as to in which month or
in which year and which tenant had seen the wife with Keshav Kale and
Rajendra Bhakre in a compromising position. It is surprising that an allegation
is levelled against the wife that she had an illicit relationship with Gajanan Bele
who used to visit the printing press and the house of the husband for some
electric-repair work. It is surprising that Gajanan Bele had filed a written
statement accepting his illicit relationship with the wife. It is extremely
difficult to believe that a man having an illicit relationship with the wife of
another man would admit in a petition filed against the wife for a decree
of divorce under Section 13 (1) (i) of the Act that he had illicit
FCA 339/14 14 Judgment
relationship with the wife. It is not surprising that though Gajanan Bele had
earlier filed a written statement admitting the case of the husband in regard to
his illicit relationship with the wife, this man did not have the courage, may be
his conscience did not permit him to enter into the witness box to depose
against the wife though he had admitted in the written statement about the
illicit relationship with the wife. Therefore, it would be necessary to discard the
written statement of Gajanan Bele as he has not entered into the witness box in
support of his pleadings.
11.
We would now proceed to consider the oral evidence tendered by
the husband in the backdrop of a petition with extremely vague and general
pleadings in regard to the voluntary sexual intercourse by the wife with Keshav
Kale, Rajendra Bhakre and Gajanan Bele. The husband has examined himself
and has reiterated the facts pleaded by him in the petition. The husband
admitted in his evidence that there are several tenants in his house/wada as his
father had rented the rooms to the tenants. He had admitted that Dr.Maya
Thawre, Shantabai Hartalkar and Balu Raut were his neighbours. None of
these neighbours were however examined. The husband admitted in his
evidence that his printing press was just adjacent to his house. The husband
admitted that Gajanan Bele, the electrician, used to come to the printing press
as and when called. The husband admitted that Gajanan Bele is doing the job
of an electrician in his printing press for more than ten years and Gajanan Bele
has a family. The husband admitted that he was suffering from fits after the
FCA 339/14 15 Judgment
marriage and also faced health problems. The husband denied the suggestion
that he had colluded with Gajanan Bele and had cooked up a story in respect of
the illicit relationship of the wife with Keshav Kale, Rajendra Bhakre and
Gajanan Bele. The husband admitted that his father is a retired Class-I officer
and the mother is also highly educated. The husband admitted that though the
wife was ready for cohabitation, he was not ready for the same. The husband
admitted that the father of the wife was doctor and Rajendra Bhakre was
working as a teacher in the same village in which the wife resided before her
marriage. The husband examined Laxmanrao Vyawahare only to prove that in
the meeting dated 12.06.2012, the wife had admitted that she had illicit
relationship with Keshav Kale, Rajendra Bhakre and Gajanan Bele. It would not
be necessary to discuss the evidence of this witness in detail as he has not
actually witnessed the illicit relationship between the wife and Keshav Kale,
Rajendra Bhakre or Gajanan Bele. The evidence of this witness is rightly not
considered by the family court.
12. The husband examined Santoshi Bhambe, who claimed to be a
tenant in the wada-house of the husband. Santoshi stated in her evidence that
the wife was behaving very freely with Keshav Kale, Rajendra Bhakre and
Gajanan Bele and they were frequently visiting her house. Santoshi stated that
one day, when she unexpectedly went in the bedroom of the wife, she saw the
wife and Keshav Kale in a compromising position. Santoshi has, however, not
stated during which year or which month she went to the bedroom of the wife
FCA 339/14 16 Judgment
and had seen the wife and Keshav Kale in a compromising position. Santoshi
further stated that one day, she accompanied the wife to the house of Rajendra
Bhakre when he was alone in his house and Santoshi was asked to sit outside
and the wife went inside the house, she locked the door and she came out of
the house after half an hour. Santoshi stated in her evidence that she was
aware that the wife and Rajendra were involved in voluntary sexual intercourse
during that half hour. It is stated by Santoshi in her evidence that in her
presence, in the boutique of Tanuja Tathod, Gajanan Bele, the electrician, and
the wife embraced and kissed each other. Santoshi was cross-examined at
length. She admitted in her evidence that she was married on 16.09.2010 and
her matrimonial house as well as her paternal house is in Akola. Santoshi
admitted in her cross-examination that when she has physical relationship with
her husband she does not keep the doors and windows open. Santoshi admitted
that the wada in which the parties reside is extremely congested and crowded
and the printing press of the husband is just adjacent to the wada. Santoshi
admitted that there are several commercial shops and establishments near the
wada. Santoshi denied the suggestion that she was falsely deposing against the
wife. When a suggestion was given to Santoshi that her parents as well as her
in-laws were residing at Akola and there was no reason for her to stay alone in
the tenanted room, she volunteered that she had secured the room on lease for
study-purpose. Santoshi stated in her evidence that for her service, she is
required to leave early and she returns in the evening. Santoshi denied in her
cross-examination that because the tiffins are provided from the mess run by
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her mother, to the ladies hostel run by the husband, she is falsely deposing
against the wife.
13. The husband examined Tanuja Tathod, who stated in her evidence
that she used to visit the house of the wife only because her son and the
children of the wife were studying in the same school. Tanuja stated in the
affidavit that once when she had gone in the kitchen of the wife, she found that
Keshav Kale and the wife had embraced each other. Tanuja Tathod stated in
her affidavit that once when the wife attended her boutique along with Gajanan
Bele, the electrician, she told Tanuja that Gajanan Bele is Tanuja's jijaji. Tanuja
further stated in her affidavit that the wife and Gajanan Bele embraced and
kissed each other in her boutique. Tanuja was also cross-examined on behalf of
the wife. Tanuja admitted that her son was studying at Nasik and she had
started the boutique only one year before the tendering of her evidence in
February-2013. She admitted in her cross-examination that her boutique is
open from 11.00 to 3.00 in the afternoon and from 6.00 to 9.00 in the evening.
Tanuja admitted that when she has sexual relationship with her husband, she
closes the doors and windows and they are never kept open. Tanuja admitted
that the wada-house of the husband is very big and the offset press is at a very
short distance from the wada. Tanuja admitted that even from the shop or the
printing press, it could be seen as to who enters or comes out of the wada-
house. Tanuja admitted that she is not aware as to on which day or month, she
had witnessed the acts of illicit relationship. Tanuja admitted that the wife of
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Keshav Kale and the wife are related to each other. Tanuja, however, denied
that she was deposing falsely against the wife.
14. Lastly, the husband examined his daughter Khushi, who was eleven
years of age, then. Khushi had stated in her examination-in-chief that
whenever Keshav Kale, Rajendra Bhakre or Gajanan Bele came to her house,
her mother asked her to stand outside the house and clap if anybody else was
about to enter the house. It is stated by Khushi in her evidence that when her
father was out of Akola for one night, she and her brother Harsh slept in the
room of Santoshi, and Keshav Kale slept in the room of her mother. In the
pleadings of the husband, there is no reference about the knowledge of the
illicit relationship between the wife and Keshav, Rajendra and Gajanan, from
his daughter, Khushi. Khushi was residing with her grandparents at the
relevant time and, therefore, a suggestion was given to Khushi in her cross-
examination that she was deposing falsely against her mother on the say of her
grandparents, which she denied. Khushi admitted in her cross-examination
that she cannot tell, when her mother had asked her to stand outside and clap
if somebody was coming. Khushi admitted that she was aware about the court
case between her father and mother and that there was lot of discussion in the
house about the petition filed by her father against her mother. Khushi
admitted that she used to be out of the house from 8.30 a.m. to 10.30 a.m. for
her classes, thereafter for school and used to come home and study at only
8.30 p.m. Khushi admitted that she, her parents and her brother Harsh used to
FCA 339/14 19 Judgment
go together to restaurant on Sundays. Khushi admitted that on every Sunday,
there was a programme of Meherbaba and she along with her parents and
Harsh used to attend the same. Khushi admitted that in January-2011, she
along with her parents and her brother Harsh had been to Goa and that they
had enjoyed the tour very much. Khushi admitted that she and her parents had
gone to Meherbag to attend the marriage of her cousin sister on 24.05.2012.
This date would be relevant as it is the case of the husband in the petition that
the parties separated on 08.06.2012, after he became aware about the wife's
illicit relationship with Keshav Kale, Rajendra Bhakre and Gajanan Bele.
Khushi denied the suggestion that she had falsely stated that when her father
had been out of Akola for one day, she along with her brother slept in the room
of Santoshi. It is conspicuous to note that Santoshi did not state in her
evidence that Khushi and Harsh had slept in her room when the husband was
out of Akola, as Keshav Kale was sleeping with the wife in her bedroom.
Certain other suggestions were given to Khushi in the cross-examination but,
she denied the suggestions. Lastly, khushi denied that on the say of her father,
she was deposing falsely that Keshav Kale used to come to their house.
15. Though the wife examined herself and her brother, it would not be
necessary to consider their evidence in detail as we have already observed that
the burden to prove that the wife had voluntary sexual intercourse with Keshav
Kale, Rajendra Bhakre and Gajanan Bele would lie on the husband alone.
There is nothing in the evidence of Keshav Kale and Rajendra Bhakre, either in
FCA 339/14 20 Judgment
their evidence on affidavit or in their evidence in the cross-examination that
would support the case of the husband. Hence, it would be necessary to scan
the evidence of the husband and his witnesses to consider whether the family
court was justified in holding that the husband was successful in proving that
the wife had voluntary sexual intercourse with Keshav Kale, Rajendra Bhakre
and Gajanan Bele.
16. On a reading of the pleadings and on an appreciation of the
evidence on record, it appears that the Family Court was not justified in
allowing the petition filed by the husband on the ground that the wife had
voluntary sexual intercourse with Keshao Kale, Rajendra Bhakre and Gajanan
Bele. As already stated herein above, the pleadings in the petition filed by the
husband are extremely vague and casual. The husband has sought a decree of
divorce under section 13(1)(i) of the Hindu Marriage Act. The said provision
stipulates that a marriage could be dissolved by a decree of divorce on a
petition maintained either by the husband or the wife on the ground that either
party, after the solemnization of the marriage had voluntary sexual intercourse
with any person other than his or her spouse. There is no pleading in the
petition that the wife had voluntary sexual intercourse with either Keshao Kale,
Rajendra Bhakre or Gajanan Bele. It is only pleaded in the petition that the
tenants and other people had seen the wife with Keshao Kale and Rajendra
Bhakre in a compromising position. It is, however, not pleaded in the petition
as to who are the tenants or the persons that had witnessed the wife in a
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compromising position with Keshav Kale or Rajendra Bhakre. If the husband
was informed either by the tenants or some other persons that they had seen
the wife in a compromising position with Keshao and Rajendra, it was
extremely necessary for the husband to plead in the petition as to who had told
him that he/she had seen the wife in a compromising position with Keshao and
Rajendra. The pleadings in this regard are extremely vague and on the basis of
such pleadings, the husband cannot be expected to seek a decree of divorce on
the ground that after the solemnization of the marriage, the wife had voluntary
sexual intercourse with Keshao and Rajendra. About Gajanan Bele, it is merely
pleaded in the petition that he was an electrician, sometimes called in the
printing press or the house of the husband for some electric repair work. It is
only pleaded in paragraph No.4 of the petition that the husband had learnt
about the relationship between the wife and Gajanan Bele and, therefore, he
had restrained Gajanan Bele from entering in the house and hence Gajanan
Bele had gifted a mobile phone to the wife. It is stated in paragraph No.4 of
the petition that Gajanan Bele and the wife used to meet at different places
after contacting each other on the mobile. It is not stated as to how the
husband became aware that Gajanan Bele had gifted the mobile phone to the
wife and as to who told him or whether it was within his personal knowledge
that Gajanan Bele and the wife met outside the matrimonial home. These are
all the pleadings in regard to the illicit relationship between the wife and
Keshao Kale, Rajendra Bhakre and Gajanan Bele respectively. The husband
could not have been permitted to tender evidence of witnesses like Santoshi
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Bhambe and Tanuja Tathod without mentioning their names in the pleadings,
when it is his case that he was informed only by the tenants and some persons
about the illicit relationship. Since the burden to prove that the wife had
voluntary sexual intercourse with Keshao, Rajendra and Gajanan lies on the
husband alone, it was necessary for the husband to plead specifically by
giving dates and instances and the names of the persons from whom he secured
the knowledge about the illicit relationship between the wife and Keshao,
Rajendra and Gajanan respectively. It was necessary for the husband to have
specifically pleaded as to what was the period during which the wife was
involved in an illicit relationship with Keshao, with Rajendra and with Gajanan
and/or whether at the same point of time, she was having an illicit relationship
with all the three persons and what was this point of time. Though the petition
is filed on 24.08.2012, there is nothing in the petition to point out, during
which year the wife had developed illicit relationship with Keshao, Rajendra
and Gajanan. There is no mention, neither of the month, nor of the year during
which the wife had maintained illicit relationship with the aforesaid three
persons. In our view, in view of the vague and scanty pleadings in respect of a
serious charge that was levelled against the wife, the petition was liable to be
dismissed. A grave and serious charge that the wife had voluntary sexual
intercourse with Keshao, Rajendra and Gajanan could not have been levelled on
the basis of such vague and scanty pleadings.
17. Apart from the fact that the petition was liable to be dismissed in
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view of the vague and scanty pleadings, it was also necessary to dismiss the
petition, as the witnesses examined by the husband were not trustworthy and it
was clear on an appreciation of the evidence on record, that the husband had
procured the witnesses to prove the serious allegation in regard to the infidelity
of the wife, that was false. The vague statements in the pleadings are reiterated
by the husband in his evidence on affidavit. Though the husband had admitted
that Maya Thakare, Shyam Hartalkar and Balu Raut are his next door
neighbours, he had not examined them. The husband has admitted in his cross-
examination that his wada/house and his printing press were adjacent to each
other. If that be so, it is difficult to believe that the husband had never seen
Keshao Kale, Rajendra Bhakre or Gajanan Bele either entering in or out of his
house at any point of time and/or that the wife was behaving freely with them.
It is not the case of the husband that he had seen anything in the matter. It is
not his case that he had seen Keshao, Rajendra or Gajanan entering his house
when he was in the printing press. It is not his case that he had witnessed the
wife with Keshao, Rajendra or Gajanan at any point of time and/or that he
doubted that either of them had developed an illicit relationship with the wife.
The case of the husband is that he became aware about the illicit relationship
only from some tenants and some persons, without naming them. Thus, the
husband had seen nothing and his evidence is, therefore, not of much
importance. It is reiterated, that it is not the case of the husband in his
pleadings or in his evidence that the wife had sexual intercourse with Keshao
Kale, Rajendra Bhakre and Gajanan Bele. All that the husband stated in his
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pleadings and evidence is that some tenants and some other people had seen
the wife and Keshao and Rajendra in a compromising position There is nothing
in the evidence of the husband that would prove his case that the wife had
voluntary sexual intercourse with Keshao, Rajendra or Gajanan.
18. Laxmanrao Vyavahare, the other witness examined on behalf of the
husband has also seen nothing. This witness does not state in his evidence that
he had ever seen the wife and Keshao, Rajendra or Gajanan in contact with
each other. All that this witness states is that in a meeting in his house, the
wife had admitted that she had illicit relationship with Keshao, Rajendra and
Gajanan. The evidence of this witness is rightly not considered by the Family
Court while deciding the issue involved in the petition. The Family Court has
relied mainly on the evidence of Santoshi Bhambe, Tanuja Tathod and Khushi,
the daughter of the husband.
19. Let us examine the evidence of Santoshi. This witness has stated in
the examination-in-chief that she was residing in one room in the wada/house
of the husband as a tenant in the year 2010-2011. The very stay of Santoshi as
a tenant in the house of the husband is doubtful, as she has admitted in her
cross-examination that her parental house is in Akola and she was married on
16.09.2010 and her matrimonial house is also in Akola. It is extremely doubtful
as to why a girl, who is very recently married, would stay alone in one room in
a wada on rental basis, though her husband's house and the house of her
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parents is located in the same town/city. It is apparent that though the name
of Santoshi does not find place in the pleadings in the petition, this witness has
been examined by the husband as she became ready to support his case, for the
reasons best known to her. It is surprising that Santoshi has stated in the
examination-in-chief that one day, when she suddenly went into the
bedroom of the wife, she saw Keshao Kale and the wife involved in a physical
relationship. It is surprising that in a big wada with several tenants, the wife
would get herself involved in a physical relationship with a man other than her
husband by keeping the doors and windows of the bedroom open for the entry
of an outsider. Santoshi further states in the examination-in-chief that one day
the wife had taken her on a two wheeler to Rajendra Bhakre's house and
Santoshi was asked to sit outside and Rajendra and the wife had locked the
house and were inside for about half an hour. Santoshi has stated that she
knows that Rajendra and the wife were involved in a physical relationship
during that half hour. She further states in her evidence on affidavit that once,
in the boutique of Tanuja Tathod, the wife and Gajanan Bele were embracing
and kissing each other. It is difficult to believe the version of Santoshi in her
evidence on affidavit. Even if we consider it, at its face value, the evidence of
Santoshi gets shattered in view of her cross-examination. Santoshi admitted in
her cross-examination that when she is involved in physical relationship with
her husband, she does not keep the doors and windows open. She admitted
that she was married on 16/09/2010 and that her parental house and
matrimonial house are at Akola. As to why a young girl, who is recently
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married, would stay alone in a room in a wada cannot be gauged. Santoshi
further admits in her cross-examination that the printing press of the husband
is just adjacent to the wada and from the printing press, the wada could be
viewed. If that be so, it is difficult to believe that the husband had never seen
Keshao Kale, Rajendra Bhakre or Gajanan Bele in any physical relationship with
the wife and that he had never seen them even entering in his house, which is
just adjacent to his printing press. Santoshi admitted in her cross-examination
that she was working outside Akola and, therefore, she was required to leave
the house in the early morning and return late in the evening. If that be so, it is
difficult to follow as to how Santoshi witnessed the illicit relationship between
the wife and Keshao, Rajendra and Gajanan. Santoshi denied the suggestion
that she was deposing falsely against the wife on the say of the husband, as
tiffins are provided from her mother's mess to the ladies hostel that is run by
the husband in the wada. We are not inclined to accept the evidence of
Santoshi, as the same is incredible and it also stands falsified by the admissions
of Santoshi in her cross-examination. We are also not inclined to consider the
evidence of Santoshi as the husband has not named her in the petition to be
one of the persons or tenants that had informed him about the illicit
relationship of the wife with Keshao, Rajendra and Gajanan. It is also very
doubtful whether Santoshi was indeed a tenant in the wada of the husband, as
she had her parental as well as her matrimonial house in Akola.
20. We would now to turn to the evidence of Tanuja Tathod. Tanuja
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had stated in his evidence that she was acquainted with the wife as the wife's
children and her son were studying in the same school. The said statement was
falsified by the admission of Tanuja in her cross-examination that her son was
studying at Nashik and not in Akola. Tanuja has stated in her evidence that
when she went in the kitchen of the wife, she saw the wife and Keshao Kale in
an embrace. Tanuja has sated that once the wife came to her boutique along
with Gajanan Bele and told her that Gajanan Bele was her younger jijaji. It is
stated in her short evidence on affidavit that in her boutique Gajanan Bele and
the wife started embracing and kissing each other. This evidence is also
unbelievable. This evidence is also falsified by the admissions in her cross-
examination. Tanuja admitted in her evidence that the wada and the printing
press are adjacent to each other and a lot of persons attend the printing press
and a lot of relatives visit the house of the husband. Tanuja has admitted that
she is in her boutique only from 11.00 to 3.00 in the afternoon and from 6.00
to 9.00 in the evening. This witness admitted that she had started the boutique
since one year before tendering the evidence, on 01.02.2013. If that be so,
Tanuja should have mentioned in her evidence as to when the wife and
Gajanan had embraced and kissed each other in her boutique as the wife has
left the matrimonial house, even according to the case of the husband, on
08/06/2012. Tanuja admitted that she does not know as to when the
incidents narrated by her in her evidence on affidavit were witnessed by her.
Tanuja admitted that her son went to study at Nashik in the year 2004.
The case made out by Tanuja that since her son and the children of the wife
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were studying in the same school she was acquainted with the wife and hence
she attended her house, stands falsified by her admission that her son was
studying at Nashik since the year 2004.
21. Lastly, it would be necessary to consider the evidence of Khushi, the
daughter of the husband and the wife. Before considering the evidence it would
be necessary to consider that the husband had not pleaded in the petition for
divorce that either Santoshi, Tanuja or Khushi, his daughter, had told him
about the illicit relationship between the wife and Keshav Kale, Rajendra
Bhakre and Gajanan Bele. It is not the case of the husband that his daughter
had ever told him that her mother used to make her stand outside the house
and clap when she was alone in the house with Keshav Kale or Rajendra
Bhakre. Khushi stated in her examination-in-chief that the husband and wife
never quarreled and the husband had never beaten the wife. Khushi stated in
her examination-in-chief that when her father was out of Akola for one night,
her mother was staying in the house with Keshav Kale and she and her brother
Harsh were asked to sleep in the room of Santoshi. We have already expressed
great doubt about Santoshi being a tenant in a room in the 'Wada' of the
husband. It is not the case of Santoshi in her evidence that Khushi and her
brother Harsh were sleeping in her room at night when the husband was out of
Akola and the wife was alone in the house with Keshav Kale. Khushi admitted
that she could not tell the dates or the period during which her mother had
asked her to stand outside the house. Khushi admitted that she was living with
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her grandparents and her father and there were discussions in the house in
respect of this Court case between her father and her mother. This statement is
significant. It is apparent that Khushi has spoken about her mother on the say
of her grandparents and father and also in view of the discussions that she
heard in the house of her grandparents. Khushi admitted in her cross-
examination that till 24.05.2012, their entire family, i.e, her father, her mother,
her brother Harsh and herself travelled together to Goa and Meherabad and
that they enjoyed the trips. It is difficult to believe that when the husband and
the wife were travelling together to Goa and Meherabad and also visiting the
restaurants at Akola on Sundays, the husband knew about the relationship of
the wife. The wife had left the matrimonial house, even according to the
husband on 08.06.2012, i.e., just a few days after the wife and the husband last
travelled to Meherabad. We find that the witnesses examined on behalf of the
respondent are got-up witnesses and none of them have witnessed any physical
relationship between the wife and Keshav, Rajendra and Gajanan. The family
Court, however, erroneously relied on the evidence of Santoshi, Tanuja and
Khushi to hold that the husband had been successful in proving that the wife
had voluntary sexual intercourse with Keshav, Rajendra and Gajanan. In fact,
no finding is recorded by the family Court that the wife had voluntary sexual
intercourse with Keshav, Rajendra and Gajanan. The family Court has only held
that the wife was living an adulterous life and she had illicit relationship with
Keshav, Rajendra and Gajanan. There is neither a pleading in the petition in
regard to voluntary sexual intercourse nor is a finding recorded by the family
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Court that the wife had voluntary sexual intercourse with Keshav, Rajendra and
Gajanan. If there is no pleading or finding in this regard, it is difficult to gauge
as to how the family Court has dissolved the marriage between the parties
under Section 13 (1) (i) of the Hindu Marriage Act as the said section provides
for a dissolution of the marriage by a decree of divorce only on the ground that
either the husband or the wife had voluntary sexual intercourse with any
person other than his or her spouse after the solemnization of the marriage.
Neither has the husband pleaded in this regard nor has the family Court
rendered a finding to the aforesaid effect. We find that the husband has, for the
reasons best known to him sought to eliminate the wife from his house by
levelling serious allegations that cast aspersions on her character. Though the
husband has not stated as to how and from whom and when he became aware
about the wife's illicit relationship, the husband was successful in examining
Santoshi and Tanuja who are the got-up witnesses. It is conspicuous to note
that though the husband has examined Shekhar by tendering his evidence on
affidavit, this witness did not turn up for cross-examination. Also, it is apparent
from an appreciation of the evidence on record that the husband had cooked-up
a story of the wife having an illicit relationship with Gajanan, who was an
electrician, as the said electrician was working in the printing press of the
husband and the husband was successful in securing his admission in his
written statement that he had an affair with the wife. We have already stated
earlier and we reiterate that a man would never come forward to admit and
boast in the legal proceedings that he has an affair and illicit relationship with
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the wife of another man. We have a doubt as to why the wife, whose father is a
Doctor and who belongs to a very respectable family, both on the parents side
and the matrimonial side, would have an affair with an electrician. It is
conspicuous to note that the husband has admitted in his cross-examination
that Gajanan works with him as an electrician. This would falsify the case of the
husband, specially in regard to the illicit relationship between his wife and
Gajanan Bele. Why did the husband, who is aware about the illicit relationship
of his wife with an electrician, permit the electrician to work with him in his
printing press even after his wife leaves the matrimonial home and a case is
filed against the wife for divorce under Section 13 (1) (i) of the Act. The very
fact that Gajanan works with the husband as an electrician even after he is
aware about the relationship of Gajanan with his wife, falsifies the case of the
husband that his wife had an illicit relationship with Gajanan Bele. Though it is
not clear to us as to why the husband would level such allegations against the
wife, one thing is clear that the husband has levelled false and baseless
allegations against the wife and he has failed to substantiate them either
through his pleadings or by his evidence. We find that the case tried to be made
out by the husband against the wife is a concocted case and the husband has
maligned the image of the wife in the society by levelling false and baseless
allegations that cast aspersions on the moral character of the wife. The family
Court has not considered the evidence in the right perspective and has, by a
short judgment, which does not carry cogent reasons, granted a decree of
divorce in favour of the husband under Section 13 (1) (i) of the Act. In the
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circumstances of the case, the family Court should have dismissed the petition
filed by the husband with costs.
22. Hence, for the reasons aforesaid, the family court appeal is allowed.
The petition filed by the husband for a decree of divorce under Section 13(1)(i)
of the Act is dismissed with costs. As the petition is dismissed, the wife is free to
file the proceedings against the husband for maintenance, in accordance with
law. Order accordingly.
JUDGE JUDGE
APTE/KHUNTE/WADKAR
