Peter Masih vs Smt. Angllina Masih And Another
1990 Latest Caselaw 295 Del

ORDER

Sunanda Bahdare, J.

1. This first appeal is directed against the judgment and order of the Additional District Judge, Delhi dated 4th July 1983 in H.M.A. case No. 98 of 1982 whereby the petition for divorce filed by the appellant-husband under Ss. 10 and 34 of the Indian Divorce Act was dismissed.

2. The brief facts are as follows:-

The marriage of the appellant was solemnised with respondent No. I-on 24th June 1970 in accordance with Christian religious rites. After their marriage they resided together at 4 Rajpur Road, Delhi and at, !St. Thomas Church, Mandir Marg, New Delhi. Respondent No. I gave birth to a second Niraj on 18th October 1971 and a daughter named Renu on 16th July 1973. They continued to live together till 7th May 1976. It is alleged that respondent No. I left the matrimonial home on 7th May 1976 and started residing with one Krishan Lal in house No. D-1/78 Krishna Market, Opposite Community Centre, Lajpat Nagar, New Delhi in one room tenanted premises. The children born from the wedlock of the appellant and respondent No. I however continued to live with the appellant.

3. It is the case of the appellant that respondent No. I was living in adultery with respondent No. 2 Krishan Lal since 7th May 1976 in the Lajpat Nagar premises which fact came to the notice of the appellant in the month of December 1981 and thereafter the appellant filed the petition for dissolution of marriage. The Additional District Judge after ,considering the evidence adduced by the parties came to the conclusion that the appellant having not proved the adultery was not entitled to a decree of dissolution of marriage. While coming to that decision the Additional District Judge has relied on the Full Bench judgment of this Court in Mrs. C. Howell v. R. S. Howell, AIR 1982 Delhi 328 and has observed that since in the instant case there is no evidence on the basis of which it can be ,held that the two respondents have committed the adultery, the decree cannot be passed.

4. Notice of this appeal was served on respondent No. I by substituted service by publication in the statement dated 6th Sept.1986. Respondent No. 2 was served by affixation his last known address pursuant to the order of this Court dated 30th Oct. 1984. In fact, respondent No. 2 had not chosen to appear even before the Additional District Judge, Delhi. After the admission of the appeal A.D. intimation for actual date was issued to both the respondents which has been received back unserved with the remark that they have left the residence without giving their address.

5. l have gone through the evidence produced by the appellant in support of his contention that respondent No. I was living in Adultery with respondent No. 2 at Lajpat Nakar premises. Learned counsel has particularly referred to the evidence of P.W. 6 and P.W. 7. P.W. 6 Shri Parkash Anand is the co-owner of the premises No. D-78 Lajpat Nagar, New Delhi. He has stated on oath that respondent No-. I was living with respondent No. 2 Krishan Lal in one room at the abovementioned premises owned by him. The respondents had taken the premises through a property dealer on rent and they were his tenants and of his brother Shri B. R. Anand who was the co-owner of the said house. PW 7 Shri S. P. Chawla was the neighbour of P.W. 6 Shri Parkash Anand living in the adjoining house No. D-77 Lajpat Nagar, New Delhi. He has stated on oath that respondent No. I was living with Krishan Pal in one room accommodation in house No. D-78 Lajpat Nagar, New Delhi. Respondent No. I used to visit him occasionally to use the telephone and he has heard her informing the employer of Krishan Lal that Krishan Lal would not be attending office on a particular day.

6. 1 find that the Additional District Judge has brushed aside the evidence of these two witnesses on the ground that they were seen on some day with the advocate appearing for the appellant. There is no other ground given for disbelieving the testimony of these two witnesses. It is an admitted fact that respondent No. I has been living separately s ince 7th May 1976 and it is now contended that even after the impugned order was passed, respondent No. I has not chosen to come and stay with the appellant and has not.returned to the matrimonial home. In fact, learned counsel submits that the whereabouts of neither respondent No. I nor respondent No. 2 are now known to the appellant. I find it difficult to sustain the judgment of the Additional District Judge because the very reason for rejecting the petition given by the Additional District Judge is that though circumstances would show that respondent No. I and respondent No. 2 were living in one room, adultery could not be said to be proved unless it was shown that respondent No. I and 'respondent No. 2 had sexual intercourse. In my view, the full Bench judgment of this Court in Mrs. C. Howell (supra) was totally on different facts. The position in this regard has been clarified by the Supreme Court in Earnist John White v. Mrs. Kathleen Olive White (Nee Meade), wherein the Supreme Court has observed that the standard of proof in divorce case is different than the standard of proof in criminal cases concerning adultery. In a suit based on matrimonial offence it is not necessary and it is indeed rarely possible to prove the issue by any direct evidence for in very few cases can such proof be obtainable. The Supreme Court has further observed that in such cases if the court is satisfied beyond reasonable doubt that the respondent has committed adultery which can be inferred from the surrounding circumstances, no direct evidence need be provided by a party to prove adultery as in Criminal cases.

7. In my view, the statements of PW 6 and PW 7 which goes unrebutted clearly show that respondent No. I and respondent No. 2 were living together in one room accommodation for more than 7 months and that fact alone was enough to prove that they were living in adultery.

8. In the circumstances, the appeal is allowed and the order of the Additional District Judge, Delhi dated 4th July 1983 is set aside. A decree nisi for dissolution of marriage as provided u/S. 10 read with S. 16 of the Indian Divorce Act is passed. The decree however will not be effective for a period of six months. No costs.

9. Appeal allowed.