Easmie Mukand Lal vs Mukand Lal Etc.
1990 Latest Caselaw 561 Del

JUDGMENT

Usha Mehra, J.

(1) The case has come to us on a reference made by Additional District Judge under Section 17 of the Indian Divorce Act. In spite of notice having been served, there has been no appearance on behalf of the respondents.

(2) Briefly, the relevant facts stated are that the marriage between the petitioner and the respondent No. 1 was solemnized at Delhi on 11th March, 1971 according to Indian Christian Marriage Act. For some time the couple lived happily and on 22nd December 1971 were blessed with a female child named, Sujata and on 3rd January, 1973 with another female child named Meenakshi. The husband-respondent no. 1, however, could not remain faithful to the petitioner-wife for long and developed illicit relations with one Karuna, the respondent no 2. On account of his having developed unholy alliances with Karuna his attitude towards the petitioning-wife became indifferent, harsh and cruel. He used to beat her and made her life miserable on account of his involvement with Karuna.

(3) PETITIONING-WIFE is a nurse in T B. Hospital, Kingsway Camp, Delhi. Being a nurse, she was required to be on shift duties. On some days she had to be on night duty. On 22nd October, 1986, she was on night duty. however, after finishing the same when she came to her house, she found the respondent husband sleeping with Karuna respondent no. 2 on the same bed. They were lying on the bed in a shameful way On being questioned. respondent-husband apologised and assured to mend his ways, but to her surprise be never changed. The act of adultery continued at her house which was witnessed by her as well as her daughters. She left the matrimonial home finding respondent-husband to be not faithful. Respondent-husband came to her on 18th February, 1987, felt sorry and assured her that in future he would be faithfully. On this assurance she went to the matrimonial home but on the very next day she found the attitude of the respondent-husband to be the same. He bad not changed and was still having adulterous relation with respondent no. 2. On her objecting she was beaten in the intervening night of 19th/20th March, 1987 and was tamed out from the house. These incidents gave rise to proceeding for divorce which the petitioning-wife made under Section 10 of the Divorce Act in the Court of Learned District Judge, Delhi, which application was registered as Ida No 532/88.

(4) On notice of the said application having been served on him as well as on the co-adulterous respondent no.2, the respondent-husband appeared before the trial Court on 8th November. 1988, but did not file his written statement. He rather expressed that he did not wish to contest the case. He thereafter neither attended the Court nor cared to defend himself. So far as the respondent no.2 is concerned, she filed the written statement on 24th November, 1988, but on subsequent dates did not appear nor choose to defend Hence both the respondents were proceeded exparte by the Additional District Judge on 28th January, 1989.

(5) In support of her case, the petitioner herself stepped into the witness box as Public Witness 1 and by her deposition on oath supported in detail the averments made in the petition. According to her the attitude of the respondent-husband became indifferent after be developed unholy alliances with Karuna whom he had been calling at their residence at night on such days when she was on night duties. In her absence they had been sleeping on her bed in the bed room On 22nd October, 1988 she found both the respondents in compromising petition. They were lying on the same bed in her bed room She objected to this shameful act of the respondent-husband with respondent no. 2. Respondent-husband had apologised and assured to be faithful and that such an act would not be repeated but the said assurances did not last very long, because she again found them in her bed room sharing her bed for their adulterous act. When she found he bad not changed she left the matrimonial home. On his assurance that be would mend his ways, the came back on 18th February, 1987. This assurance was very short-lived. Respondent-husband instead of mending himself started bringing respondent no. 2 to her house. They would go to the bedroom and sleep together in her presence and in the presence of their children. He took Karuna out of Delhi even without applying for leave from his office. He stayed with Karuna at her house in the month of April, 1987 without informing the petitioner, from there be took her to his native place at Gurgaon. At Gurgaon they lived as husband and wife. There Respondent no. 1 introduced Karuna an bids wife. On seeing this attitude of the respondent-husband she lodged strong protest, respondent-husband on being question gave her beating on the intervening night of 19th/20th March, 1987 and turned her and the children out from the house.

(6) Relying upon this testimony and also taking into consideration the conduct of respondent-husband, the learned Additional District Judge held. that the respondent no. 1 committed adultery coupled with cruelty, entitling the petitioner to a decree of divorce.

(7) "ADULTERY" the word has not been defined in the Indian Divorce Act, 1869, itself. The definition of "Adultery" as given in Section 497 of the Indian Penal Code, is however too narrow and the word "Adultery" as mentioned in the said Act cannot be restricted to such a definition as given in the Indian Penal Code.

(8) According to (Encyc. 156) Cp. Fornication adultery is "the offence of incontinence by married persons" Adultery has been defined in the following manner in Standard Treatises, such as Rydon on Divorce, 10th Edition:- "CONSENSUAL sexual intercourse between a married person and a person of the opposite sex, not the other spouse during the subsistence of the marriage,"

(9) It it is not, however, necessary to adduce direct evidence in order to prove adultery. The fact that adultery has taken place can be inferred from the surrounding circumstances, such as undue familiarities, admissions, suspicious circumstances, improper behavior, .inclination of the spouses and the opportunities available. Adultery can rarely be proved by direct evidence which is looked upon only with disfavor.

(10) The onus to prove this charge of adultery is upon the person making it. He or she has to satisfy the court by leading sufficient and proper evidence. The evidence must be clear, cogent and convincing. It should admit only one inference before it can be accepted to infer adultery. Circumstantial and presumptive evidence assume importance in the case of adultery because direct evidence is normally not possible. The uncorroborated evidence supported by circumstantial evidence at times can be considered sufficient, cogent and reliable.

(11) Court is required to be satisfied that the offence is proved and this requires proof by a preponderance of probability, but the degree of probability depends on the subject-matter, 80 that in proportion as the offence is grave, so should the proof be clear. Proof beyond reasonable doubt is not required and it is a misdirection for the court to require itself to be satisfied with the same certainly as in a criminal case. This is precisely the law prevailing in England after the decision in Blyth v. Blyth (1966) 1 All Er 524).

(12) Indecent familiarities and caresses short of adultery are insufficient to found a decree, but such familiarities and improper behavior between the respondent and co-respondent are strong evidence in support of a charge of adultery, and, together with evidence of opportunity, may be sufficient for the court to draw the inference that adultery has taken place, the inference that adultery has taken place arises if the respondent and the co-respondent spend the night in the same room.

(13) The Full Bench of the Madhya Pradesh High Court was dealing with the standard of proof required in case of a matrimonial offence in a. petition for divorce in the case of Prem Masih v. Mst. Kumudani Bai , which reads as under:- "THE case of Blyth v. Blyth (1966) 1 All Er 524 will, therefore, show that the view expressed in Preston-Jones' case (1951 Ac 391) that the standard of proof in case of a matrimonial offence in a petition for divorce is proof beyond reasonable doubt, does not now hold the field and that the correct test in that matter is that expressed by Dixon, J. in (1948) 77CLR 191 (Supra), in view of the mandate in Section 7 of the Act that the principles and rules on which the Court of Divorce and Matrimonial Causes in England for the time being ads and gives relief should be applied by the Indian Courts, we feel that now the standard of proof recommended in (1966) I All Er 524) (Supra) will have to be applied by the Indian Courts also But the change in principle as to the standard of proof will most. often not make any difference in the result, turn even applying the civil standard of proof to a divorce proceeding based on adultery, a high standard of proof will be needed to satisfy the Court that adultery has been committed"

(14) We are in respectful agreement with the view so expressed. Admittedly, the respondents have not cared to contest the proceedings but that would not justify for this Court to come to the conclusion that whatever the petitioner has stated is worthy of credit. The petitioner has to satisfy the court of the truth of her allegations of adultery Viewing in this background we have to see whether the petitioner in this case has been able to show satisfactorily the adulterous relation of the respondents. We have evidence of the wife that her husband was found with one Karuna on the same bed in her bed room on the night of 22nd October, 1986 She saw them lying on the same bed. Karuna was not properly dressed. Her husband and Karuna were in compromising position. So-much-so in her presence also respondent-husband brought Karuna, took her in the bed room He even took Karuna with him to his native village, where he introduced Karuna as his wife. He remained absent from office because he took Karuna out of Delhi. The petitioner's testimony discloses that respondent-husband was bringing Karuna to his house at nights and sharing the bed with her. Such a stay of Karuna in the petitioners's house in her absence at nights was for quite a long duration. It can safely be inferred that when two able bodied persons of opposite sex are found together inside the house by themselves, this they certainly did not do for offering prayers but for sharing the bed. His assurances, apology and regrets regarding his adulterous relation with Karuna lasted for a very short period. Husband's conduct in this case was such that-it would be inequitable to disregard the same. The incident of 22nd October, .1986 which was witnessed by the petitioning wife is in itself sufficient to prove the offence of adultery. There is ring of truth in her testimony and it inspires confidence.

(15) Collusion is a bar to divorce. Collusion can be defined as agreement to give false evidence or to suppress material evidence. On the facts of this case we have to determine whether husband's statement that he was not interested to contest the case and that divorce be granted, would amount to collusion ? The court has to be satisfied that the petition is not presented in collusion whether it is a defended or undefended petition. Respondent- husband No. 1 has not filed any written statement, but respondent no. 2 co-adulterer has filed one. Merely because husband has not filed his defense by itself would not amount to agreement to withholding material evidence, nor it would mean that husband has concealed from this court some pertinent facts with the sole object to allow the petitioner to procure divorce, even otherwise the fact that both the spouses desire a divorce does not make them guilty of collusion. Respondent no. 2 Karuna in her defense has denied all the allegations by stating that she never committed the act of adultery nor visited the respondent no. 1 during night time. Morning visits to his house, however, have been admitted. The defense set up by the co adulterer lends support to the arguments of the petitioner that there was no collusion. Had there been any such agreement or collusion, then even the respondent no. 2 would not have filed her defense.

(16) From the facts which have come on record and discussed above we do not find that the petitioning-wife and respondent-husband have entered into any agreement obnoxious to the court. Denning, J. in Teale v. Burt (1951) All Er 433 .emphasised the fact that the arrangements between the parties arc not necessarily collusion, unless they tend to prevent the course of justice.

(17) In the present case we do not have the evidence of the husband- respondent no. 1 and of Ms. Karuna, respondent no. 2 to contradict the version given by the petitioning wife. We are satisfied with the evidence of the petitioning wife which is reliable and trustworthy. From the conduct of the respondent husband and the evidence of the wife, the offence of adultery having been committed by the respondent no. 1 with respondent no. 2 stands proved. She is, in our opinion, entitled to a decree of divorce.

(18) Reference is allowed and the decree nisi passed by the learned Additional District Judge dated 3rd February, 1989 is hereby confirmed with no order as to costs.