1. The challenge here is to the decree for divorce granted to the husband-Narinder Kumar Handa against his wife Veenu Handa under Section 13 of the Hindu Marriage Act on the grounds of adultery and cruelty.
2. The marriage between Narinder Kumar Handa and Veenu Handa took place at Jullundur on March 4, 1976 A son Gaurav was born from this marriage on January 21, 1977. This child is now in the custody of its father or to be precise with his grand mother, that is, the mother of Narinder Kumar Handa.
3. At the time of his marriage Narinder Kumar Handa used to live jointly with other members of his family. Later, however, as a result of a settlement between him and his wife, they started living together separately from September 1978 till sometime in January, 1979. They have been living apart with each other since then. The present petition for divorce was filed on April 7, 1979.
4. The cruelty alleged by the husband in the petition was that Veenu Handa insisted upon them living separately from his parents and other members of the family and when he expressed his inability to do so, she started picking up quarrels with him and his other relations for no valid reason and would leave his house without his permission. He would then have to bring her back from her parents' house. It was further alleged that when their child was only a week old Veenu Handa left her husband's house against his wishes leaving behind also her infant son without bothering to feed him.
5. As regards adultery, the case pleaded was that during the period September, 1978 to January, 1979 when the parties lived together separately in Dhobi Mohalla, Jullundur, it was noticed that Veenu Handa used to mix up and behave with other males in a manner which smacked of unfaithfulness. On January 5, 1979 her husband learnt that she had had an abortion at the Civil Hospital, Jullundur in November, 1978. It was stated that as her husband had not any sexual intercourse with her this pregnancy was obviously, therefore, the result of her illicit relations with some other person.
6. Veenu Handa, in her written statement, denied the allegations of cruelty and adultery levelled against her by her husband. Her plea, on the other hand, was that her husband had been constantly maltreating her. The reason she put-forth being his dissatisfaction with the dowry, she had brought. Further, it was stated that in July, 1978 she was beaten and turned out of the house by her husband and her child was also then snatched away from her. On going to her parents' home, the matter was reported to the police and it was then that her husband and his parents begged pardon and promised to treat her properly. A separate residence was thereafter taken and she and her husband then started living together in Dhobi Mohalla, Jullundur. During this period, her child was, however, never brought to her nor was she allowed to see him. She kept asking for the child and it was when she persisted in asking to at least see the child, she was beaten and turned out of the house. According to her it was on January 16, 1979 that she had been turned out and since then she and her husband had been living apart.
7. As regards adultery, it was denied by Veenu Handa that she had ever had an abortion in November, 1978 as alleged by her husband or that she had any illicit relations with any one. It was also denied that during the period that she and her husband lived together in Dhobi Mohalla, Jullundur, they had not had any sexual intercourse between them. It was further stated in the written statement that during this period she had been taken to the Civil Hospital, Jullundur, for check up by her husband and on that occasion at his instance, she had signed some papers there. She was examined by a lady doctor, who declared her fit.
8. The main emphasis on the issue of adultery was upon the abortion said to have been undergone by Veenu Handa on November 2, 1978. In an attempt to establish this, Narinder Kumar Handa, who appeared as P.W. 2 deposed that when he returned from his morning walk on January 5, 1979. he found his luggage lying scattered in the courtyard and his wife missing. His neighbourer Tarsem Lal told him that he had seen Veenu Handa at Civil Hospital, Jullundur in M. T. P. Department. He thereupon went to the Civil Hospital and it was on enquiry there that he learnt that his wife had got her pregnancy terminated on November 2, 1978. It was also his statement that there had been no sexual intercourse between them from September, 1978 to that date, that is, November 2, 1978 and further that his wife had not told him about the termination of the pregnancy.
9. The medical termination of the pregnancy of Veenu Handa was said to have been performed by Doctor Harpreet Kaur, who was examined as P.W. 4. Her testimony was that on November 2, 1978 she had terminated the pregnancy of one Mrs. Binu wife of Narinder Kumar, resident of 101, Nakodar Chowk, Jullundur. At that time the form Exhibit A-1 was received by her which was duly signed by the patient. It is pertinent to note her statement that she did not know Mrs. Binu personally nor did she state that this form Exhibit A-1 had been signed by her in her presence. The form itself, she stated, had been filled up by some Assistant, but she did not name him. The other witness from the Civil Hospital, Jullundur, examined in this behalf, was P.W. 1 Daulat Ram, who produced the form Exh. A-1 as also the medical termination pregnancy register. The form Exh. A-1 had not been filled in by him nor could he state who had done so.
10. In this situation in order to show that the patient, that Doctor Harpreet Kaur and P.W. 1 Daulat Ram referred to, was Veenu Handa, great stress was laid upon the handwriting expert P.W. 5 Sh. B. S. Ahuja, who deposed that the signatures on the form Exh. A-1 were those of Veenu Handa.
11. To counter this evidence, besides denying the factum of abortion and her alleged signatures on the form Exh. A-l, Veenu Handa too examined a handwriting expert namely, R. W. 6. Mr. R. S. Bal. His testimony was that the disputed signatures on Exh. A-1 did not tally with her signatures on the written statement and power of attorney and other documents filed in this case.
12. There is a presumption of innocence to a charge of adultery. The burden of dispelling this presumption lies on the party who alleges it. This burden can be discharged by proof, which as is said, "need not reach certainty, but must carry a high degree of probability."
13. Here, it is significant to note at the very outset, that whereas it had been alleged by the husband in the petition that his wife "used to mix up and behave with other males in such a manner which smacked of unfaithfulness", there was no mention of the name of any person or persons with whom she had behaved in a manner to warrant such an accusation nor is there any mention of any instance or occasion which might have given rise to such suspicion in the mind of the husband. It was only during the cross-examination of Veenu Handa that a suggestion was made to her that she had illicit relations with one Rajinder Kumar of Amritsar. No mention of the name of this person was made by the husband Narinder Kumar Handa in the petition or even in his evidence. This thus can be treated as an allegation entirely without basis.
14. The charge of adultery is founded upon the allegation of abortion undergone by Veenu Handa at the Civil Hospital, Jullundur in November, 1978. Proof of this was sought to be established by the testimony of P.W. 4 Dr. Harpreet Kaur and P.W. 1 Daulat Ram. The significant omission, here is of evidence to show that the patient undergoing abortion was the wife Veenu Handa Neither Daulat Ram nor Dr. Harpreet Kaur personally knew the patient that they deposed about. In the form Exh. A-1, the name of the patient mentioned was only Smt. Binu and the address given was 101, Nakodar Chowk, Jullundur. This is neither the correct name nor address of Veenu Handa. Further, as regards the signatures on the form Exh. A-1, here again, it was not the testimony of either of these witnesses that the patient signed this form in their presence. It is significant to note that even Narinder Kumar Handa had not stated in his testimony that this form bore the signatures of his wife. The handwriting expert examined by the husband, P.W. 5 Mr. B S, Ahuja, no doubt, stated that the signatures on Exhibit A-1 tallied with the signatures of Veenu Handa on the written statement, the power of attorney and other documents but this testimony was contradicted. by that of the expert examined on behalf of Veenu Handa namely RW 6 Mr. R. S. Bal, who stated that the signatures did not tally. As is well known, the comparison of handwriting is not a perfect science. Deviations in signatures can arise due to natural variations and various other causes. In such a situation, it would clearly not be sate to rely on the testimony of PW 5 Mr. B. S Ahuja. Indeed, in dealing with his testimony, suspicion is raised by the fact that this witness purported to compare the disputed signatures with what he says were the "deemed signatures" of Veenu Handa, without the knowledge or permission of the Court. He admitted that he had not obtained permission from the Court for taking photographs of the signatures and what is more he did not even verify from the Court which were the disputed signatures and the admitted signatures. He merely acted on the basis of information given to him by the counsel of Narinder Kumar Handa and that too behind the back of the opposite counsel. Such. evidence clearly deserves no credence and must indeed be adversely commented upon.
15. An attempt was made by Mr. Ravinder Seth, counsel for husband Narinder Kumar to argue that as Veenu Handa had admitted that when she was taken to the Civil Hospital, Jullundur by her husband she had signed certain papers there, she must be taken to have impliedly thereby admitted her signatures on the form Exh. A-1. Here he also sought to press-in-aid the statement of Narinder Kumar Handa in cross examination, where he had said
"it is incorrect that the signatures of the respondent on the form Exh. A-1 were obtained on the pretext of medical check up"
. This was sought to be construed as an admission by Veenu Handa of the signatures of Exh. A-1 being her's.
16. The above contention runs counter to the version of the husband himself that it was on January 5, 1979 that he had gone to the hospital and then learnt of the termination of his wife's pregnancy. In other words, if Veenu Handa had gone to the hospital for abortion when her husband had taken her there, he cannot be heard to plead ignorance of this fact nor that it was something which she had hidden from him. There is thus no substance in this contention and therefore, no such inference can be drawn as suggested by the counsel for the husband.
17. There is also no warrant to accept the statement of Narinder Kumar Handa that there had been no co-habitation between the parties during the period they lived together in Dhobi Mohalla, Jullundur. In a situation, as admittedly was the case here, where there was access and ample opportunity for inter-course, a strong inference of co-habitation between husband and wife must arise, which mere denial by either husband or wife cannot dispel.
18. In the circumstances there is no escape from the conclusion that the finding of adultery recorded against Veenu Handa cannot be sustained and must therefore, be set aside.
19. The finding returned against Veenu Handa on the sound of cruelty too cannot stand as it was based largely upon the allegations of adultery which no 1onger survive.
20. For holding against Veenu Handa on the ground of cruelty the trial Court had also taken it against her that it amounted to cruelty for the husband to be summoned to the police station and compelled to beg pardon from his wife in the presence of others. The filing of the complaint by Veenu Handa against her husband under Sections 406 and 409 of the Penal Code and the neglect of the infant child as alleged were also taken against her in this behalf. In dealing with this matter, it must be noticed that the summoning of the husband to the police station and the compromise effected between the parties there, does not find mention in the petition nor for that matter the complaint filed by Veenu Handa against her husband. The trial Court was, therefore, clearly in error in treating these as circumstances for holding her guilty of mental torture.
21. Turning to the case sought to be set up against Veenu Handa of neglect of the infant son on the allegation that she had abandoned the child when he was only seven days old, it will be seen that this is an allegation, which was not only denied by Veenu Handa, but she came forth with the counter allegation that the child had in fact been snatched away from her when she was turned out of the house in ***** 1978 and thereafter she was not even allowed to see the child even during the period when she lived with her husband in Dhobi Mohalla, Jullundur. It is pertinent to note that despite a specific averment to this effect in the written statement, no statement to the contrary was made by Narinder Kumar Handa when he came in the witness box. In cross-examination, on the other hand, he admitted that during their stay in Dhobi Mohalla, the child remained with his mother. It is significant that he did not say that the child was ever shown to Veenu Handa during this period or at any other time. What is more, the statement of Veenu Handa that it was in July, 1978 that the child had been taken away from her when she was turned out of the house was not challenged in cross-examination. The evidence thus supports her case that the child was taken away from her without her consent and she was not allowed to see the child thereafter. In this situation to impute neglect of the child to Veenu Handa smacks of adding insult to injury.
22. The totality of the circumstances of the case leads to the irresistible conclusion that the findings of adultery and cruelty against Veenu Handa are unsustainable and are indeed wholly unwarranted. Rather the evidence suggests that she has been a victim of mal-treatment at the hands of her husband. The judgment and decree of the Additional District Judge, Jullundur are consequently hereby set aside and this appeal is accepted with costs. Counsel's fee Rs. 300/-.
23. Appeal accepted.