Smt. Bindeshwari Gambhir vs Bhagwati Gambhir
2022 Latest Caselaw 4355 Chatt

                                     1

                                                                       NAFR

          HIGH COURT OF CHHATTISGARH, BILASPUR

                          FAM No. 242 of 2016

                   Judgment Reserved On : 04/07/2022
                   Judgment Delivered On : 11/07/2022

   • Smt. Bindeshwari Gambhir W/o Bhagwati Gambhir, Aged About 35
     Years Occupation- Majduri, R/o Satation Para Down Of Over Bridge,
     Khairagarh Road, Rajnandgaon, Tahsil And District Rajnandgaon,
     Chhattisgarh ..................Defendant No.1

                                                              ---- Appellant

                                  Versus

  1. Bhagwati Gambhir S/o Late Badriprasad Gambhir, Aged About 43
     Years Occupation Job, R/o Behind B.N.C. Mills, New Ram Nagar,
     Rajnandgaon             Tahsil          And District Rajnandgaon,
     Chhattisgarh ................Plaintiff,

  2. Omprakash Sharma @ Bhuruva S/o Late Shri Madan Lal Sharma, R/o
     Ramnagar Ward No.05, Ramnagar Motipur Distt. Rajnandgaon,
     Chhattisgarh ..............Defendant No.2

                                                            ---- Respondent



For Appellant       : Shri Arvind Dubey, Advocate.
For Respondent No.1 : Shri Samir Singh, Advocate.



                 Hon'ble Shri Goutam Bhaduri &
               Hon'ble Shri Deepak Kumar Tiwari, JJ


                          C A V JUDGMENT

   The following judgment of the Court was passed by Deepak
Kumar Tiwari, J.

1. By this Appeal under Section 19(1) of the Family Courts Act, 1984 (for

short 'the Act'), the appellant is challenging the legality and propriety

of the judgment and decree dated 30th April, 2016 passed by the Family

Court, Rajnandgaon in Civil Suit No.33-A/2009 whereby the Family

Court has decreed the suit for dissolution of marriage filed by the

husband by passing decree of divorce under Section 13 (1)(i) of the

Hindu Marriage Act, 1955.

2. Indisputably, the appellant was married with the respondent No.1 in

accordance with the Hindu rites on 21st April, 1995 at Rajnandgaon

(Ex.P/2, marriage invitation card). Earlier the appellant had challenged

the judgment and decree dated 13th December, 2010 by way of filing

FAM No.4/2011 in which by order dated 19.2.2015, the matter was

remanded back to the Family Court, Rajnandgaon with an observation

that the evidence adduced on behalf of respondent No.1 is not sufficient

to prove the fact of voluntary intercourse of the appellant with

Omprakash Sharma (respondent No.2 herein) and with further

observation that in a matrimonial dispute, proper opportunity to adduce

evidence to both the parties would be just and proper. Therefore, the

matter was remanded.

3. As per the plaint allegations, the appellant has voluntary sexual

intercourse with the respondent No.2 Omprakash after solemnizing her

marriage with the respondent No.1. Thus, the appellant is living in

adultery having illicit relations with Omprakash and on this ground, the

suit has been filed for dissolution of marriage. In the written statement,

the appellant has denied the aforesaid allegation and pleaded that she

does not know the person namely Omprakash (Respondent No.2) and

not having any illicit relations with the said person. She has further

averred that both the daughters were born out of the wedlock of the

plaintiff and only on the basis of suspicion, a false allegation has been

made by the respondent No.1, therefore, the suit be dismissed.

4. After providing opportunity of hearing to the parties and after

appreciating the statements of both the sides, the Court below came to

the conclusion that the appellant had voluntary sexual intercourse with

the respondent No.2 other than her spouse and granted decree of divorce

against the appellant and decreed the suit in favour of respondent No.1

by the impugned judgment.

5. Learned counsel for the appellant would submit that the family Court

committed gross irregularity in granting decree of divorce on the

ground that the appellant is living adulterous life. The finding arrived at

on this score is erroneous. The appellant was blessed with two

daughters for which the respondent husband used to be unhappy with

the appellant and he tried to marry some other girl. The said fact was

not considered by the learned Family Court. Therefore, the Appeal may

be allowed and the impugned judgment and decree may be set aside.

6. On the other hand, learned counsel for respondent No.1 would support

the impugned judgment and decree.

7. We have heard learned counsel for the parties at length and perused the

record.

8. The sole question for consideration in this Appeal is whether the

respondent No.1 has proved the fact that the appellant after solemnizing

her marriage had voluntary sexual intercourse with any other person i.e.

respondent No.2 herein.

9. In the matter of Neelam Tiwari Vs. Sunil Tiwari {AIR 2009

MADHYA PRADESH 225}, the following has been observed at para-

9:-

9. It is settled law that the marriage bond shall not be set aside lightly or without strict enquiry. The general standard and degree of proof required in such cases need not reach certainty, but it must carry a high degree of probability, because of the gravity of the issue. In the case of Dr. N.G. Dastane v. Mrs. S. Dastane, AIR 1975 SC 1534, it was pointed out that as the proceedings under the Hindu Marriage Act, 1955, are of civil nature, the test of criminal proceedings need not be applied and it is not necessary to prove the allegations beyond all reasonable doubt, the reason being that a criminal trial involves the liberty of the subject which may not be taken away on a mere preponderance of probabilities and it would be wrong to input such a consideration into trial of civil nature. The word 'satisfied' in Section 23 of the 'Act' must mean satisfied on preponderance of probabilities and not satisfaction beyond reasonable doubt; which requires proof of higher standard in criminal or quasi-criminal trials. Proof beyond reasonable doubt is not postulated where human relationship is involved and eye-witnesses are difficult to obtain. Similar proposition was laid down in Shobha Rani v. Madhukar Reddi, AIR 1988 SC 121."

10.In the said matter, the following has also been observed at para-15:-

"15. In Banchhanidhi Das v. Kamla Devi, AIR 1980 Orissa 171, it has been observed that :-

"While it is true that evidence of adultery has to be clear and definite and the allegation has to be proved beyond reasonable doubt, it would be difficult to get direct evidence of acts of adultery. "Living in adultery" is suggestive of the fact that a single instance of adultery may not be adequate. In the instant case, the letters refer to a course of adulterous conduct and, therefore, the requirement of Section 13 of the Act has

been satisfied. As has been pointed out in Raden on Divorce it is not necessary that there should be direct evidence of adultery as it is not easily available. It has been also stated that rarely the parties would be caught in acts of adultery. Circumstantial evidence must, however, be sufficiently strong and conclusive.""

11.In view of the aforesaid principle, reverting back to the facts of the

present case, this Court is of the view that there is ample evidence on

record to affirm the finding of the family Court. Though the appellant

has denied in her written statement that she is not aware about any

meeting which was held at her Mohalla Ram Nagar. Even she stated

that she does not know any person namely, Omprakash and further

deposed that her signatures were obtained by force on some blank

papers. But in cross-examination, she admitted that the respondent

No.2 is friend of her husband, but she denied that when her husband

used to go to the office, respondent No.2 used to come in her house.

12.(PW-2) Madhukar Banjare, Ward Member; Mustkima Begum (PW-3),

member of Karuna Mahila Mandal; (PW-4) Bhaiyalal have clearly

deposed that the appellant was having illicit relations with the

respondent No.2 and from such relation, second daughter namely,

Disha, aged about 2 years, was born. Therefore, dispute occurred

between the appellant and the respondent No.1 and hence a meeting

was convened in the Mohalla and in the said meeting, both the parties

(i.e. the appellant and respondent No.2) were asked and they had

admitted their relations. Therefore, Ex.-P/3 was prepared in which the

appellant and respondent No.2 had put their signatures.

13.Smt. Shalini Thakur (DW-3), a witness of the appellant, has also

deposed that in the said meeting, the appellant was present. It is

significant to mention that Omprakash Sharma (Respondent No.2) also

admitted such relation in his statement. He further stated that the

second daughter Disha was born out of his illicit relation. He deposed

that from 2006 his physical relations with the appellant continued.

Therefore, there was quarrel in the family of the appellant and

respondent No.1. He further stated that in the said Mohalla meeting, he

had admitted such relation and after the meeting, members of the

Mohalla meeting had taken them to the Police Station. From the Police

Station, the appellant had come to his house and stayed for one night

and then she had gone to her parental house. Respondent No.2 also

stated in the Police Station that both had signed voluntarily.

Respondent No.2 also stated that his relation with the appellant

continued up to 2012 and thereafter the appellant had developed

relations with another man namely, Rajesh Yadav.

14.The appellant's witnesses namely, Sattar Khan (DW-2) and Shalini

Thakur (DW-3) have stated in their statements that they do not know

the reason of quarrel between the appellant and respondent No.1,

though they admitted that a meeting was held in their Mohalla. (DW-6)

Sheikh Rahim has stated that the appellant delivered 2 girls and the

respondent No.1 was desirous of a male child, so he wanted to perform

second marriage and started dispute with the appellant. The said

version was not corroborated by any other witness, therefore, this

witness appears to be not trustworthy.

15.(DW-4) Amit Pal has stated that on 21st October, 2010, he had gone

with the appellant at Labour Colony, Rajnandgaon and they had caught

respondent No.1 with Kiran in a suspicious condition and both were

living as husband and wife. Shanti Bai, (DW-5), mother of the

appellant also deposed that the respondent No.1 in collusion with his

friend and respondent No.2 had defamed the appellant and was residing

with Kiran.

16.It is pertinent to mention that the suit was instituted on 19.6.2009 by the

husband on the ground of adultery and there was no averment by the

appellant in her written statement about illicit relations of her husband

with Kiran.

17.On close scrutiny of the evidence available on record, it is established

that the appellant had illicit sexual relations with the respondent No.2.

To resolve the said issue, a meeting was also convened, therefore, the

evidence rendered by the members of the meeting is found to be reliable

and there is no reason to discard or disbelieve their version. Further

Misc. Criminal Case No.391/2007 filed by the appellant under Section

125 of the CrPC for maintenance was rejected on the same ground as

alleged by the respondent No.1in this Appeal.

18.It is noted that the appellant has never made any complaint to the police

that any false accusation was made against her. Though no party has

adduced any scientific evidence about the paternity of Ku. Disha, but

from the evidence, as discussed above, it is amply proved that the

appellant was having illicit relations with Omprakash. Therefore, the

ground under Section 13(1)(i) of the Hindu Marriage Act has been

proved by the respondent No.1 that after solemnization of marriage, the

appellant had voluntary sexual intercourse with the respondent No.2.

Hence, the findings recorded by the family Court do not call for any

interference.

19.In the result, the Appeal filed by the appellant being bereft of any

substance deserves to be and is hereby dismissed.

20.Parties shall bear their own costs.

                     Sd/-                                       Sd/-
             (Goutam Bhaduri)                         (Deepak Kumar Tiwari)
                   Judge                                       Judge

Barve