RITA DEVI Vs. KARAM CHAND BALIA & ANR

Court:HIMACHAL PRADESH HIGH COURT

Bench: JUSTICE Arun Kumar Goel

RITA DEVI Vs. KARAM CHAND BALIA & ANR. On 26 November 2003

Law Point:
Both appellant wife and her adulterer found tied down by witnesses. Evidence of Wife regarding forcible extraction of some writing without letting its contents known to her preposterous. Dissolving the matrimonial bond between parties by a decree of divorce.

JUDGEMENT

 

By means of impugned judgment and decree, marriage between appellant-wife and respondent No. 1-husband stands dissolved. They have two children, i.e. daughter about 10 years and son about 9 years old. Admittedly they are residing with the appellant. Marriage having solemnized in the year 1990, paternity of the children is not in dispute between the parties.

2. Respondent No. 1 is employed as a Class-IV employee in the Himachal Pradesh Town and Country Planning Department. When he filed petition for the grant of divorce, he was posted at Rampur Bushehar. At the time of hearing of this appeal, i.e. on 17.11.2003, he stated that his present place of posting is Dharamsala.

3. Respondent No.1, the husband filed a petiton for dissolution of marriage by a decree of divorce against the appellant-wife, alleging that she was living in adultery with respondent No. 2 Madho Ram. She started learning tailoring from respondent Madho Ram against the wishes of her husband. Respondent No. 1 further claimed that as a consequence of it, appellant developed illicit intimacy with respondent No. 2, who started visiting the house of the appellant in his (husband’s) absence.

4. On 31.3.2000 when husband was not there, respondent No. 2 was seen entering the house of the appellant at about 10.30 p.m. This was noticed by nephew (P.W. 2) of the husband. He along with other members of the family knocked at the door on her house. Appellant when questioned who was there in her house, replied in the negative. However, when Rajai (quilt) was lifted, respondent No. 2 was spotted there below that cot naked, except a shirt on his person.

5. Further case of the husband was that the wife went to her parental house in Tehsil Jogindernagar. However, appellant-wife and respondent No. 2 admitted living in adultery for the last six months, after they were caught. While living in her parental house, appellant-wife filed a petition under Section 125 of the Cr.P.C. at Jogindernagar.

6. It may also be appropriate to point out here that another petition under Section 26 of the Hindu Marriage Act read with Section 6 of the Hindu Minority and Gardianship Act, 1956 for custody of the minor children was filed. The impugned judgment shows that both these petitions have been disposed of by a single judgment. However, learned Counsels for the parties were not at variance that separate decrees were drawn in both these cases. So far present appeal is concerned, it is only against the decree under the Hindu Marriage Act, whereby matrimonial bond between wife and husband stands dissolved.

7. Another fact that also needs to be noted here is, that an attempt was made by this Court on 17.11.2003 for reconciliation, as well as for right of visitation of the husband so that he is in a position to meet, as well as acquaint with his children. After having met the children, I am of the view that for the present, they are too much under the influence of their mother. Very reluctantly for a while the children went with their father. But after lunch session, when the case was taken up again, both the children flatly refused to be with their father even for a minute.

8. In the case of custody of children, case of the husband was that since his wife is living in adultery which fact they have admitted in the present case before the Panchayat, it is not in the interest of the children to live with their mother, as it will have adverse effect on them. It is further the case of the husband that one year of the children was wasted, as they were not sent to school. Wife said in the Court that because husband did not pay the money and withheld school leaving certificates of both the children, as such, they could not be sent to school. In this behalf, it may be appropriate to note that husband was ready and willing to pay all the expenses for shifting the children from Government Primary School to Saraswati Vidya Mandir School. Children plainly refused to shift to this school. They, however, clarified that to whatever school their mother will send them they will go to such school only.

9. In her reply to the petition for divorce, stand of the appellant-wife was that it was the husband himself who had asked her to learn tailoring, etc. from respondent No. 2. As such, averments to the contrary were denied. Number of other ladies and girls were undergoing such training. Said respondent No. 3 had tailoring shop in the village. Appellant-wife was being subject to maltreatment by other relations of her husband. As such, per force of circumstances, she was living separately in the new house constructed by her husband. Allegation of her either living in adultery or having been found as claimed by the husband, were denied. According to her, all these allegations are concocted and are a planted story on her to get rid of her. Averment of illicit relationship between her and respondent No. 2 was denied. In his separate reply, respondent No. 2 Madho Ram, controverted the pleas urged against him. He particularly denied of his having developed illicit relations with the appellant and further pleaded that this story has been falsely implanted.

10. Following issues were framed in the petition under Section 13 of the Hindu Marriage Act :

1.

Whether the respondent No. 1 was having illicit relations with respondent No. 2 ? If so, its effect ?

—OPP

2.

Whether respondent No.1 and 2 committed sexual intercourse with each other voluntarily, as alleged? If so, its effect

—OPP

3.

Whether the respondent has caused mental cruelty to the petitioner as alleged ? If so, whether the petitioner is entitled to divorce on this ground ?

—OPP

4.

Whether the petition is legally and factually not maintainable ?

—OPR-1

5.

Whether the petitioner is estopped to file the petition by his own acts and conduct ?

—OPR-1

6.

Whether the petition is not maintainable against respondent No. 2 ?

—OPR-2

7.

Relief.

11. After conclusion of the trial, decree has been passed dissolving marriage between appellant and respondent No. 1. Hence, this appeal at her instance.

12. Mr. O.P. Sharma, learned Counsel for the appellant-wife submitted that the impugned judgment and decree is contrary to evidence produced on record by the parties. According to him, statements of R.Ws., as well as P.Ws. 4 and 5 have been misread. Material parts of these statements have been ignored. Further per him, there was no medical evidence suggesting that appellant-wife, as well as respondent No. 2 Madho Ram had sexual intercourse. Appellant was not cross-examined regarding her so-called illicit relations with respondent No. 2. Susheel Kumar though named by P.W. 1, was not produced.

13. All these pleas have been controverted by Mr. Deepak Gupta, learned Counsel for respondent No. 1. According to him, accepting everything as alleged by the appellant-wife to be correct for the sake of argument and without conceding, this is one of the rare of rarest cases where direct evidence is available in the circumstances of the case establishing adultery to the hilt.

14. P.W. 1 is the husband who pledged his oath. He stated that he had asked his wife not to learn tailoring from respondent No. 2 whose reputation was not good. Despite that, appellant-wife continued to learn tailoring from respondent No. 2. As a result of which, illicit relations were developed between both of them, i.e. appellant and respondent No. 2 Madho Ram. He was working at Rampur Bushehar when he was informed that Madho Ram had visited his house in his adsence at 10.30 p.m. and was seen by nephew Kamaljit. Said Kamaljit and 50 other persons were present there. When door was got opened by Kamaljit, appellant hid Madho Ram below the cot. She held out that there was none inside. When Susheel Kumar looked below the bed, he found Madho Ram naked. At that time, villagers and Panchayat was called and in their presence, appellant and respondent No. 2 admitted about their illicit relations and writings Mark-A and B were prepared in that behalf. Report Mark-C was given to Pradhan who made his own report Mark-D on it. According to husband, his wife went to her parental house along with children. Her parents had come on the spot. Appellant had gone to her parental house of her own free will. She has initiated proceedings for maintenance at Jogindernagar. In his cross-examination, he admitted that none of the documents Mark-A to D were prepared in his presence. He denied that no compromise had taken place between them, i.e. husband and wife, wherein witness has agreed to keep his wife and children at her parental place. He also denied the suggestion that with a view to obtain divorce, this false case has been foisted on the appellant as well as respondent No. 2 based on false grounds.

15. P.W. 2 is Kamaljit, nephew of the husband. According to him, on 31.3.2000, he was watching television and after coming out from his residence for answering the call of nature, he found somebody signalling thrice towards the door of the appellant. He saw opening of the door by the appellant and then a man entering her house. On coming back to his residence, he informed his father and uncles that somebody had entered the house of the appellant. Then all of them went to her house and it was found there that radio was on, and someone was talking inside in low tone. Door of the appellant’s house was knocked. After 4-5 minutes, the appellant came out and on inquiry by this witness, she said that there was none inside her house. However, when Rajai (quilt) was lifted, Madho Ram was found naked except shirt on his person below the cot. Other persons were called from the neighbourhood and appellant and Madho Ram admitted before them that they were having illicit relations for the last six months. Mark-A and B were signed by both of them, i.e. Madho Ram and the appellant in the presence of all those present there. Written complaint Ext. P.W. 2/A was given by this witness under his signature to the Pradhan who made his endorsement Mark-D on it. Parents of the appellant were informed. Respondent No.1-husband came on 2.4.2000 on having been called by this witness. P.W. 2 was not aware whether any writing was scribed on 2.4.2000 and 4.4.2000 after arrival of Karam Chand -husband. He denied the suggestion that Mark-A to C, as well as Ext. P.W. 2/A have been cooked up. He also denied that appellant and children had gone to parental house of the appellant with the consent of Karam Chand – husband. All other suggestions were denied by this witness. On all other meterial aspects of the case of husband, he withstood the test of cross-examination.

16. P.W. 3 is Nand Lal, he was Ex-Pradhan of Gram Panchayat concerned. On 1.4.2000, Ext. P.W. 2/A was given to him. Then he went to the spot. Appellant as well as Madho Ram were found on the spot. Witness made inquiries from both of them at the spot. They admitted having illicit relation for the last six months. It was on this basis that he made his report vide Ext. P.W. 3/A. According to this witness, he had also seen Mark-A and B. While showing the ignorance who scribed Ext. P.W. 2/A, in his cross-examination, he admitted that Mark-A and B were admitted to have been scribed by Rita Devi and Madho Ram. Ext. P.W. 2/A was given to this witness on the spot. According to him, Ext. P.W. 3/A was in his hand and the entire proceedings took place at the spot. Therefore, those were not recorded in the Panchayat Register. Witness further stated in his cross-examination that he had reported the matter to the police, which came on the spot. What action was taken by the police, witness was unable to state. He further denied the suggestion that police found nothing in the matter, so no action was taken by it.

17. P.W. 4 Vijay Kumar is an important witness. He is Mausi’s son (son of the sister of the mother of the appellant), of the appellant. According to him, on 31.3.2000 at about 11.30 p.m. Kamaljit and Dulo Ram came to him. They called him to appellant’s house. This witness took four other persons of the village and went to the house of the husband of Rita Devi-wife. After having reached there, witness found that Rita Devi and Madho Ram had seen tied down and brothers of Karam Chand-the husband were also there. On inquiry by this witness and on asking of the witness to release them, needful was not done. Next morning Pradhan was called. In the presence of this witness, writings Mark-A and B were given. When Pradhan came in the morning, witness was present. Pradhan prepared the report. In his cross-examination, he stated that Mark-A and B do not bear his signatures and were not prepared in his presence. Similarly, he stated that both appellant and Madho Ram had not admitted in his presence regarding their having illicit relations. He voluntarily stated that the paper on which his signatures were obtained was not shown to him. Karam Chand-husband reached his place on 2.4.2000. This witness admitted that police came to the spot in connection with this case. He was not aware of what action was taken or that the matter was got compromised. He denied that all misunderstandings were removed and parties were living together.

18. P.W. 5 is Darshan Kumar. He is member of Panchayat from the Ward of Karam Chand. Dulo Ram had called this witness on 31.3.2000, and he reached the spot. He found that Madho Ram and Rita Devi had been detained there. This was at about 10.30/11.00 p.m. Both had admitted their crime and given writings Mark-A and B. He reported Ext. P-A under his signature. This endorsement was in the hand of the witness. Per him, Rita Devi had given in the presence of this witness, writing Mark-B.

19. Appellant-wife has appeared as R.W. 1. She had denied the allegation made against her of living in adultery. She has further stated that she was sent to learn tailoring, etc. from Madho Ram by her husband Karam Chand. According to her, 5-6 other women were also learning tailoring from Madho Ram. She admitted that Susheel Kumar was the brother of her husband and Kamaljit is the son of her Jeth (husband’s elder brother). According to her, relations between the husband and wife were cordial, but the brother of her husband and other family members were trying to create discord. She stated that Madho Ram held out that Kamaljit had informed him that money has been sent, so he ( Madho Ram) should collect it from her. Karam Chand had borrowed Rs. 2,000/ from Madho Ram. He had come to collect this amount. Per this witness, she informed Madho Ram that no money has been sent by Karam Chand. As and when he will send money, that will be paid to him. He was accompanied by Pritam Singh. (This Pritam Singh is not examined by appellant-wife or Madho Ram.) Karam Chand came after 2-3 days thereafter and he got Rajinama (compromise ) from her. It was scribed by his nephew Kamaljit. Per this witness, husband wanted her to live at her parents’ place with her children. She would be paid Rs. 1,500/- towards expenses. When Ext. R-A was entered upon her father had been called. In her croos-examination, she had denied the case set up against her, as also against Madho Ram having either come to her place or having been found by Kamaljit and others, as narrated hereinabove. She denied that either Mark-A or Ext. PA on it, was written by her, or in her presence, these were scribed. Similarly, she also denied that after this incident, she left for her parental house alongwith children. Rather, she stated that she was left at her parents’ place in a vehicle. She was not in a position to give the number of the vehicle or to say anything about the driver. According to her, she had been administered beatings by her Devar (husband’s younger brother) and nephew. She denied the suggestion that police came to the sopt or that she had undertaken to behave properly.

20. R.W. 2 is Diwan Chand who is the father of the appellant. Per him, relations between his daughter and son-in-law were cordial. However, relatives of the husband, i.e. brother and hephew were creating discord between them. He was called on 4.4.2000 by the in-laws of her daughter Rita Devi where compromise was arrived at between the husband and wife for their living peacefully. Karam Chand had agreed to give Rs. 1,500/- per month and children along with appellant were left with the witness. No expenses have been paid. In his cross-examination, he admitted that he was called by the in-laws of Rita Devi and when he reached there, Pradhan and Panches, etc., were also there, but husband was not present. He denied that at that time Rita Devi had written Mark-B or that Mark-A had been written by Madho Ram in his presence. He further stated that on 1.4.2000, Pritam Chand and nephew Kamaljit had fought with Rita Devi and for this reason, he had been called on telephone. He feigned ignorance that Rita Devi had illicit relations with Madho Ram and they had been caught red-handed. He denied the further suggestion that all that he came to know was, Rita Devi and Madho Ram were caught red-handed on 31.3.2000 or that she had gone to her parental house of her own will. When agreed maintenance was not paid, then per force of circumstances, case had to be instituted.

21. RW-3 is Madho Ram. According to him, he is a tailor and he teaches sewing to people. He knew both husband and wife, i.e. Karam Chand and Rita Devi. Karam Chand had been visiting his shop. In August, 1999, Karam Chand had asked him that I should teach tailoring to his wife and that the expenses will be borne by him. This witness admitted that Rita Devi learnt tailoring from him for eight months. Nephew of Karam Chand, i.e. Kamaljit (P.W. 2) came to him and told that Karam Chand had sent money for him and that he should collect it from Rita Devi. He went to collect money to her house. There was no money received by her. Thereafter one day, Kamaljit and other boys came to his shop and threatened him. They obtained signatures from this witness on a blank paper. He denied having illicit relationship with Rita Devi and stated that the case was false. In his cross-examination, he had stated that the case has been planted against him by Karam Chand. He further denied having given anything in writing.

22. Now coming to the case as set up by the appellant as well as Madho Ram in their statements regarding the documents having been obtained from them by Kamaljit P.W. 2. For the reasons to be recorded hereinafter, this defence projected is purely is an afterthought and is nothing, but a figment of imagination of both of them. Madho Ram has put up a theory of Kamaljit having visited his shop and then having obtained his signatures from him. No such suggestion was given to P.W. 2 when he appeared in the witness box on his behalf.

23. On this aspect R.W. 1 Rita Devi has stated that her signatures were obtained on 31.3.2000 and something was also got written on this paper from her by P.W. 2. She was not aware what was written on it. A perusal of the entire statement of P.W. 2 nowhere shows that any such suggestion was given to him, i.e. Kamaljit when he was under oath and was being cross-examined. In this behalf, it may be appropriate to observe that both appellant and Madho Ram were represented by separate Counsels and had filed separate defence. In case what is claimed was correct, then in the ordinary course of things first person to be informed should have been her husband. That is not her case. It is also not her case that she informed her husband, who did not pay any heed.

24. Another salient feature of this case is the statement of P.W. 4, Vijay Kumar. He is a close relation of the appellant. Per this witness, both Rita Devi and Madho Ram were found tied down when he went to spot. Both of them, i.e. Rita Devi and Madho Ram could not say as to why they were tied down. This omission assumes relevance in the context of the statement of other witness, i.e. P.W. 2 Kamaljit. P.W. 4 has no reason to state something which he had not found on the spot. And in case both had been tied down or were put under wrongful restraint by P.W. 2 and others, least they could do was to have complained to ex-Pradhan and/or to Ward Panch. There is no such suggestion given to both of them during cross-examination. And at that odd hour, they must not be saying their prayers.

25. P.W. 2 was the vital witness upon whose statement the entire case rests. So far as Rita Devi and Madho Ram are concerned, their statements are self-serving, and thus cannot be accepted.

26. Now coming to the documents Mark-A, the writing given by Madho Ram whereon signatures of Madho Ram have been identified by P.W. 3 ex-Pradhan. Endorsement made on this document is Ext. P-A. Ext. P.W. 2/A is the report made by Kamaljit P.W. 2, to Nand Lal P.W. 3. His report is Ext. P.W. 3/A. Compromise Mark R-2 has been placed on record by the appellant. It is a photostat copy of some writing. Where was the original, what happened to it, who scribed it and who signed it there is no evidence worth the name on record to this effect produced by the appellant.

27. Plea of Mr. Sharma, learned Counsel appearing for the appellant that Susheel Kumar has not been produced is of least significance. Reason being that R.W. 1 Rita Devi while in the witness box, had admitted that when a paper was got written and signed from her by Kamaljit, he was accompanied by Pritam and Susheel. As such, his non-production is of no consequence. And in case appellant wanted to examine him, nothing stopped her. Her evidence of forcible extraction of some writing without letting its contents known to the appellant by P.W. 2 Kamaljit is preposterous. Contents of such writing may not be correct. But her saying that she did not know what was written in it, cannot be accepted, as learned Counsel for the appellant wanted this Court to believe. So far non-holding of medical examination of Rita Devi is concerned, suffice it to say that she is a married woman having two children aged 10 and 9 years. In these circumstances, medical examination would not have been of any consequence. This is admittedly not a case of rape against her wishes having been committed by anyone.

28. No other point is urged.

29. In view of the aforesaid discussion and looking to the overall circumstances of this case, I am satisfied that findings recorded by learned trial Court while dissolving the matrimonial bond between the parties vide its judgment and decree dated 9.10.2002 in H.M.P. No. 66-I/III-2000, by the learned District Judge, Kangra at Dharamsala, is hereby upheld and as a consequence of it, the appeal having no merit is hereby dismissed. All interim orders passed from time-to-time shall stand vacated forthwith.

30. C.M.P. No. 1008 of 2002 : Stands disposed of in view of disposal of the main matter.

Appeal dismissed.

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