Smt. Parvati v. Shiv Ram And Another

1. Smt. Parvati, who has filed this appeal under S. 28 of the Hindu Marriage Act (hereinafter, “the Act”) against the decree for divorce dated May 7, 1985, passed by the District Judge, Mandi, in Hindu Marriage Petition No. 75 of 1983, for divorce, was married to Shiv Ram, the first respondent, some time in the year 1955. Shiv Ram was then about 7 years in age. In due course, two children, namely, a duaghter and a son, were born out of the wedlock. Shiv Ram filed the petition for divorce in Oct. 1983. In Paragraph 4 of this petition he alleged that for the past 15 years Smt. Parvati had started living adulterous life and had deserted him for nearly 3 years and started living in the house of Param Dev, the second respondent. She was, thus, committing adultery openly. She had not performed her marital obligations as legally wedded wife with Shiv Ram for the past 15 years resulting in cruetly and desertion. When she was asked by Shiv Ram to live in his house, she did not do so. The case of Shiv Ram is that he was constrained to file the petition for a decree for divorce as he had not condoned the cruelty in any manner.

2. Parvati filed a written statement. While admitting the allegations in regard to her marriage with the petitioner, and two children being born out of their wedlock, she denied the allegations of adultery, cruelty and desertion made by Shiv Ram in paragraph 4. She gave out that Shiv Ram was working as a Lines-man in the Electricity department, Shimla, and was living there. He contracted a second marriage and a daughter was born to him out that marriage. In fact, Shiv Ram had deserted her and was treating her with cruelty and has refused to maintain her without any reasonable cause.

3. Param Dev, who is the second respondent, also filed a written statement. He denied that Parvati was residing with him or that she had any adulterous relations with him, as alleged.

4. The learned District Judge framed the following issues on the pleadings of the parties:—

1. Whether the respondent, Smt. Parvati, has after the solemnisation of her marriage with the petitioner had voluntary sexual intercourse with respondent No. 2, as alleged?

2. Whether Smt. Parvati respondent has after the solemnisation of her marriage with the petitioner, treated him with cruelty, as alleged?

3. Whether the respondent Smt. Parvati has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of this petition?

4. Whether there has been unnecessary or improper delay in instituting the petitioner? If so, its effect?

5. Relief.

5. Parties adduced evidence before the learned District Judge. On evaluation of that evidence, the first three issues were answered by the learned Judge in the affirmative, against Smt. Parvati. On these answers the petition was allowed. Thereafter, the present appeal.

6. Section 13 of the Act, in its material part, says that:

“(1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party—

(i) has after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or

(1-a) has, after the solemnization of the marriage, treated the petitioner with cruelty; or

(1-b) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or

……………………………………. …………………………………….

Explanation.— In this sub-section, the expression “desertion” means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expression shall be construed accordingly.

……………………………………”

7. This Court has framed the ‘Hindu Marriage and Divorce (Himachal Pradesh) Rules, 1982’ in exercise of powers under Ss. 14 and 21 of the Act. Rule 5, which deals with the contents of the petition, says that in addition to the particulars required to be given under O. 7, R. 1 of the Code of Civil Procedure and S. 20(1) of the Act, in a petition for divorce on the ground of adulterous sexual intercourse with any other person other than the spouse, the petitioner shall, amongst other things, mention the name, occupation and place of residence of such person or persons so far as they can be ascertained, the specific act of sexual intercourse and the occasion when and the place where such acts were committed; in the case of desertion it shall state the date and circumstances in which it began; and in the case of cruelty, the specific acts of cruelty and the occasion when and the place where such acts were committed. Rule 7 casts an obligation upon the petitioner to implead the alleged adulterer as a corespondent.

8. Coming to the present case, the pleadings in paragraph 4 of the petition, of which the material part has been noticed earlier, is absolutely vague and does not comply with the requirement of the aforesaid Rule.

9. Quite apart the rule, the judicial opinion in the country also points to the view that the pleadings should be clear and specific. In the case of adultery, which is a charge of a very serious nature, the pleadings should be specific. In Emmanuel Simon Peters v. Mrs. Alice Peters, 1977 Hindu LR 672 it was observed by the Delhi High Court that “the particulars of the time, the date, the place of commission of acts of adultery must be specific so that the opponent can defend the case……….How can the spouse defend the petition when she does not know the charge which she is to meet.” It has further been observed that “if no particulars are given in the petition and evidence is brought to establish adultery, a court of law is entitled to show that it will not place reliance on the words of the witnesses.”

10. The reason is obvious. The charge of adultery is a serious charge and casts aspersion on the character of the spouse which affects the Reputation of the spouse in the society. It is to be established beyond doubt though it may be difficult to find direct evidence for establishing it. The spouse against whom the charge is made should be aware of the precise allegation so as to be able to effectively answer the same. In case the charge is vaguely made, without furnishing the particulars, it would not be possible for the spouse to do so.

11. It was argued on behalf of the first respondent in this respect that in a case like the present when the allegation was that the wife was openly living in adultery with the corespondent, Param Dev, it was not necessary to give particular instances. The precise submission was that particularisation was needed when relief was claimed on the basis of isolated acts of adultery and not when the allegation was that the wife was living with another man as his wife. This submission does not merit serious consideration in this case because all that is stated in paragraph 4 of the petition by Shiv Ram is that for the past three years Smt. Parvati had totally deserved the petitioner and was residing in the house of the second respondent “and as such ……………committing adultery openly……….”. In the entire paragraph there is no allegation that Smt. Parvati was living as the wife of Param Dev in his house. Such an allegation has not been made in any paragraph of the petition. There is no allegation anywhere in the petition, not even in, paragraph 4, that Smt. Parvati was living an adulterous, life with Param Dev. The crucial allegation, thus, is lacking in the petition. The averments in paragraph 4 of the petition are these:

“4. That when the marriage of the petitioner was solemnised with the respondent No. 1, the petitioner was only of the age of 7 years. After the marriage, the respondent No. 1 lived in the house of petitioner for some years and for the last 15 years, the respondent No. 1 started living adulterous life and now from the last 3 years, the respondent No. 1 has totally deserted the petitioner and is residing in the house of respondent No. 2 and as such is committing adultery openly. The respondent No. 1 also not performed matrimonial obligation being legally wedded wife with the petitioner for the last 15 years, which has caused cruelty and desertion towards the petitioner. Before 3 years, when the respondent No. 1 started living adulterous life openly, the respondent No. 1 was asked by the petitioner to live in his house nicely but she did not pay any heed towards the performance of matrimonial obligations as well as towards the requests of the petitioner to live nicely in his house, and as such due to the reasons submitted above, the petitioner is constrained to file the present petition for a decree of divorce.”

12. Like the ground of adultery, the pleadings in regard to desertion and cruelty also have to be specific in nature as envisaged by R. 5 mentioned earlier. Desertion in essence means the intentional permanent forsaking and abandonment of one spouse by the other without that other's consent and without reasonable cause. Heavy burden lies upon a petitioner who seeks divorce on the ground of desertion. The offence of desertion must be proved beyond any reasonable doubt. The proof…………required in a matrimonial case has been equated by the Supreme Court to that in a criminal case. See Bipinchandra Jaisinghbai Shah v. Prabhavati, AIR 1957 SC 176, Lachman Utamchand Kirpalani v. Meena, AIR 1964 SC 40. The necessity of proper pleadings in the context of the nature of the proof required, cannot be over emphasised.

13. Acts of “cruelty” have to be specifically pleaded. In the absence of such pleadings it would be impossible for the answering spouse to effectively meet the allegations. If specific allegations are not made with sufficient details no amount of evidence can cure the defect for it cannot be looked into. (See Smt. Maya… v. Brij Nath…., AIR 1982 Delhi 240; Om Prakash v. Smt. Rajni, AIR 1988 Delhi 107). The cruelty as a ground for divorce contemplated in S. 13(1)(i-a) is a conduct of such nature that the petitioner cannot reasonably be expected to live with the respondent (See Dr. Dr. Keshaorao Krishnaji Londhe… v. Mrs. Nisha Londhe…. Londhe, AIR 1984 Bom 413 (FB); Varinder v. Major Ranjit Singh, ILR (1985) Him Pra 807).

14. If the grant of a decree of divorce on the ground of cruelty depends upon a conclusion of this nature, it is obvious that the pleadings in that regard should be clear and specific so that the answering spouse may be in a position to meet the case of the petitioner.

15. The petitioner in the present case does not plead any of the grounds for a decree for divorce contemplated by S. 13(1)(i-a) and (i-b) in accordance with law, any amount of evidence, would, therefore, not help the petitioner for getting a decree of divorce.

16. Even the evidence in the instant case is not sufficient to establish any of the aforesaid grounds. Shiv Ram has appeared in the witness-box as P.W 1 and has examined Smt. Satya Devi, the wife of Param Dev, (respondent No. 2) as PW 2. Appellant Smt. Parvati has appeared as RW 1. She has not examined any other witness in support of her plea.

17. P.W 1 Shiv Ram says in the opening part of his statement that he was living separately from his wife for the last 17 years and that during this period Smt. Parvati had not discharged matrimonial obligations. She had committed cruelty towards him during these 17 years. Also, that she was residing at the house of Param Dev for the last three years. Param Dev and Smt. Parvati were living like husband and wife.

18. In the cross-examination Shiv Ram says that prior to three years Smt. Parvati was living at his own house in the village and was in complete charge thereof. Further, that this land was being cultivated by Smt. Parvati. He had been residing at Shimla for the last 14 years and for a year some-time he went home once or two times. He could not say if Parvati had married Param Dev but he had come to the conclusion that she had illicit relations with him because she was always found in his company during the past three years. He had no relations with Smt. Parvati as husband and wife for the last 17 years. He had seen Smt. Parvati loitering with Param Dev.

19. It is true that an inference of adultery can be drawn from circumstantial evidence (see Banchhanidhi Dass v. Kamala Devi, 1980 Mat LR 349 : (AIR 1980 Orissa 171) and that it is not necessary that it should be established by direct evidence because normally it is very difficult to have such evidence in these matters. However if the same standard of proof is required to establish an allegation of adultery as was necessary for proving a criminal charge, it is obvious that the circumstances should be such which could lead to only one inference, namely, that there was adulterous relationship between the allegedly offending spouse and her paramour. The mere fact that she was seen in the company of the paramour or that, the petitioner never found his spouse at his residence whenever he visited the village, would not be enough to lead to only that inference. The statement of Shiv Ram that Smt. Parvati and Param Dev were living like husband and wife cannot be taken into consideration for there is no such plea in the petition filed by Shiv Ram. Besides, the fact that Smt. Parvati had been residing at the house of the petitioner Shiv Ram and was in complete charge of his house and that the land of Shiv Ram was being cultivated by Smt. Parvati who had children aged 16 and 14 years of age from him, makes it doubtful that Smt. Parvati would leave that house and her children and would live with Param Dev in adulterous relationship with him, at his house.

20. True it is, as was the case before a Full (Special?) Bench of the Madras High Court in Antonishwamy v. Anna Manickam, AIR 1970 Mad 91 and before a single Judge of the Delhi High Court in Bidhan Chandra Sinha v. Sushmita Sinha, 1986 Mat LR 171 : (AIR 1986 Delhi 387), that it is possible to accept the uncorroborated testimony of the husband to come to the conclusion that the wife had deserted him and had been living in adultery with the co-respondent, yet, it is the quality of the evidence which is the determining factor in such a case. In the present case, reading as a whole, the statement of Shiv Ram cannot be said to be such upon which implicit reliance may be placed. More so, when judged in the light of the statement of Smt. Parvati (as RW 1) who says that she was cultivating and looking after the land of the petitioner Shiv Ram who came home sometimes after a year and sometime after 2 or 3 years or after 5 years and further that sometimes he did not come even up to 7 years. This part of her statement has not been questioned in cross-examination at all. Besides, she has denied the suggestion that she had any illicit connection with Shri Param Dev and that she roamed about with him or was staying with him.

21. Stress was laid by Shri M.L Sharma upon the fact that Smt. Satya Devi, wife of Param Dev had come forward to support the petitioner's case. The statement of Smt. Satya Devi (as PW 2) does not inspire confidence. In the very first sentence of her cross-examination she has admitted that she had not gone to her matrimonial house for the past four years. She further says that she could not tell the month or the year when Smt. Parvatijoined the society of her husband and further that she did not make any complaint about it to any authority, even though she says that even she was living with her husband, Smt. Parvati used to pay visits to her house and drink liquor with Param Dev who, under the influence of liquor, used to give beatings to her at the instance of Smt. Parvati She accepts in her cross-examination that in villages like one in which she lives people visit the place of one another. In view of what she has stated in her cross-examination, the statement made by Smt. Satya Devi in the opening part of her cross-examination that Smt. Parvati had been living with her husband as his wife for the past four years and that she herself had been turned out of the house, cannot be easily accepted.

22. The evidence in the case does not establish the allegation that Smt. Parvati had deserted petitioner Shiv Ram or had practised cruelty on him or further that she was living in adultery with Param Dev, affirmatively. The conclusion which the learned District Judge had recorded on each of the first three issues cannot be upheld. Nor can the decree passed by him be affirmed on the evidence on record.

23. I may add that on May 27, 1988, when orders were reserved, learned counsel for the parties were directed to ensure that the parties are present in Court today to bring about reconciliation between them. In spite of best efforts no reconciliation between the parties appears possible. The Court wishes to place on record its appreciation of the effort which counsel for the parties made in this respect, though, without success. It has been stated that the two children, of wedlock between the appellant and the first respondent, are now settled in life, inasmuch as the daughter is already married and the son is gainfully employed.

24. In conclusion, as a consequence of the discussion made earlier, the appeal succeeds and the decree dated May 7, 1985 passed by the learned District Judge, Mandi, in Hindu Marriage Petition No. 75 of 1983 is set aside.

25. Parties are, however, left to bear their own costs.

Appeal allowed.