Chattisgarh High Court
Jairam vs Smt. Gayatri Bai on 11 May, 2022
1
FA (MAT) No.89 of 2019
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
FA (MAT) No.89 of 2019
{Arising out of judgment & decree dated 2-11-2019 passed by the First
Additional Principal Judge, Family Court, Durg, in civil suit No.30-A/17}
1. Jairam S/o Khilawan Patel (Lodhi) Aged About 30 Years R/o
Village Kanharpuri, Post Office Kanharpuri, Via Basni, Tahsil
Dhamdha, District Durg Chhattisgarh.
---- Appellant
Versus
1. Smt. Gayatri Bai W/o Jairam Patel (Lodhi) Aged About 28 Years
R/o C/o Sukhuram Patel (Lodhi), R/o Village Khilorakala, Post
Office Ghontha, Tahsil Dhamdha, District Durg Chhattisgarh.
---- Respondent
For Appellant Mr. H.B. Agrawal, Sr. Advocate with Ms
Richa Dwivedi, Advocate
For Respondent Mr. Saket Pandey, Advocate
Hon'ble Mr. Justice Goutam Bhaduri &
Hon'ble Mr. Justice N.K. Chandravanshi,
Judgment on Board
Per Goutam Bhaduri, J.
11-05-2022
1. Challenge in this appeal is to the judgment & decree dated
2-11-2019 passed by the First Additional Principal Judge, Family
Court, Durg, in civil suit No.30-A/17 whereby the suit filed by the
appellant/husband under Section 13(1)(i) and 13(1)(ia) of the Hindu
Marriage Act, 1955 (for short 'the Act, 1955') seeking decree of
divorce was rejected.
2. The indisputable facts, in brief, are that on 20-4-2006 the marriage
took place between the parties and out of the wedlock three
FA (MAT) No.89 of 2019
daughters were born and one daughter died immediately after birth.
It was alleged by the appellant/husband that the respondent/wife was
having an illicit relation with a person outside the marriage. While
she was talking to that person over mobile, the said conversation was
recorded, which got transcripted into a CD (Compact Disc). The
husband also stated that when he asked the wife to hear the voice
recorded in mobile, she broke it into pieces. According to the
husband, the chip of the mobile, however, was kept by him. It was
pleaded thus, it is evident that the wife was having an illicit relation
with other person outside the marriage. The husband also pleaded
that the wife has refused to have physical sexaul relation with him as
such it also amounts to cruelty within the ambit of Section 13(1)(i)
and 13(1)(ia) of the Act, 1955.
3. The respondent/wife denied the entire allegations and instead it was
stated that since three daughters were born (one died immediately
after birth) she was being treated with cruelty. It was further stated
that under those circumstances the wife was made to leave the house
of the husband by force.
4. Learned counsel appearing for the appellant/husband would submit
that the evidence on record would show that the husband has
categorically stated that he caught the wife while she was talking
with other person outside marriage and the conversation was
recorded in mobile. The said conversation recorded in mobile was
further transcripted in a CD, which was produced as Article A/1.
The trial Court should have, therefore, examined that CD by playing
FA (MAT) No.89 of 2019
the same. He would next submit that though the sufficient evidence
was produced, it was ignored. He would lastly submit that from the
statement of husband it is evident that the wife refused to have
sexual relation with him, which would result into cruelty to the
husband. Thus, the husband is entitled for decree of divorce.
5. Learned counsel appearing for the respondent/wife, per contra,
would submit that only bald allegations have been levelled by the
husband. The averments which have been made in the plaint should
have been proved by acceptable evidence. He would further submit
that only by production of CD it cannot be presumed or assumed
what was recorded in it and, as such, the statement of the appellant
cannot be accepted. As far as the allegation levelled by the husband
with regard to refusal of physical relation with him is concerned, the
wife never refused the same. According to the respondent, the
finding of the trial Court on this count too was legal and the
impugned judgment and decree do not require any interference.
6. We have heard learned counsel appearing for the parties and perused
the record.
7. The Family Court framed the issues for adjudication i.e. (1) (a)
whether the respondent wife has illicit relation with other person;
2(b) whether the wife had an sexual intercourse with a person other
than the husband after the marriage; and (3) whether the wife refused
to have a sexual relation with the husband.
FA (MAT) No.89 of 2019
8. To appreciate the facts, we have gone through the pleadings and
evidence. The husband stated in his evidence that on 29-1-2016
while wife was taking with other person the voice was recorded in
the mobile, as the mobile contains auto recording feature. He further
stated that when she was confronted with this fact, the wife admitted
that she is having an affair with other person since last two years.
Thereafter, those facts were informed to the father of the respondent
namely; Sukhuram Patel. The evidence of the husband would show
that the CD was marked as Article A/1. The CD was said to be of
conversation over mobile in between wife and the other person to
whom she was talking on 29-1-2016. Though it is stated that the
mobile was broken by the wife when she was confronted, the
husband kept chip of the mobile and got the conversation converted
into a CD, no evidence has been placed on record to establish that by
whom the said voice transcription was converted and recorded into
CD. The original mobile chip was also not produced before the
Court. Even the certificate as required under the provisions of
Section 65-B of the Evidence Act is also not attached to the CD.
The submission of the counsel for the appellant if accepted that the
Court should have heard the CD also would have been no use as to
whose voice was recorded in the CD cannot be affirmed even by
playing the CD or examination of the same by the Family Court. The
appellant has averred that the person with whom the wife was
talking was Toran Patel, who was a neighbour. In cross-examination
at para 16 he stated that he has not informed about the illicit relation
of his wife to the society. Toran Patel was not arrayed as a party.
FA (MAT) No.89 of 2019
9. Section 13(1)(i) of the Act, 1955 purports that the decree of divorce
can be passed on the ground that the other party has after the
soleminisation of marriage had voluntarily sexual intercourse with
any other person other than his or her spouse. The statement in this
regard of the husband is only confined to that he found his wife to
have a conversation with the person outside the marriage, therefore,
the evidence which are placed on record by the husband is not
sufficient to envelope grounds as enumerated under Section 13(1)(i)
and 13(1)(ia) of the Act. 1955. The appellant appears to have
miserably failed to prove the fact to get decree of divorce.
10. The other ground which is raised is about the fact that the wife
refused to have sexual relation with the husband.
11. The Hon'ble Supreme Court in the matter of N.G. Dastane (Dr.) v
S. Dastane reported in AIR 1975 SC 1534 observed that sex plays
an important role in marital life and cannot be separated from other
factors which lend to matrimony a sense of fruition and fulfillment,
but in order to get a decree of divorce to convert into as cruelty it is
to be proved by an evidence, which is beyond reasonable doubt and
acceptable fact. The husband in his pleading and evidence stated
that without any reason the wife refused to have sexual relation.
Dinesh Patel (PW-2), brother of the appellant, has also supported the
contention of the appellant that he disclosed that the wife refused to
have sexual relation. On the other hand, in her statement the wife
completely disowned those facts and stated that she never refused to
have sexual relation, but instead she alleged that on account of birth
FA (MAT) No.89 of 2019
of three daughters (one died immediately after her birth) she was
subjected to torture by the husband and his family members and
eventually she was forced to leave the house on 30-1-2016. She
further stated that the reason for the hidden object on the part of the
husband was to have perform second marriage.
12. From the fact that three daughters were born during continuation of
husband and wife were being together, the presumption may be
otherwise. Except the bald statement that the wife refused to have
sexual relation it cannot be conclusively proved that they are not
supported with ancillary facts and circumstances. The statement of
the husband cannot be accepted to be conclusive.
13. Under the circumstances the finding recorded by the trial Court that
the husband failed to prove the fact that the wife refused to have
sexual relation with him appears to be correct. The impugned
judgment and decree passed by the Court below is just and proper
warranting no interference of this Court.
14. In the result, the appeal sans merit is liable to be and is dismissed,
leaving the parties to bear their own cost(s).
15. A decree be drawn accordingly.
Sd/- Sd/-
(Goutam Bhaduri) (N.K. Chandravanshi)
Judge Judge
Gowri
