Citation Codes

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Case Number

F.A.O No. 311 of 1982

Attorney(S)

— Mr. B.B Sawhney, Advocate.
— None.

Acts

Section 13 (1) (i), (ia) and (ib) of the Hindu Marriage Act, 1955.
Order XVI, rules 19 of the Code of Civil Procedure
Section 13 (1) (d) (ia)

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Smart Summary

Summary of the Judgment (Mahinder Narain, J.)

Factual and Procedural Background

The husband (appellant) filed a petition under Section 13(1)(i), (ia) and (ib) of the Hindu Marriage Act, 1955, alleging that after solemnization the wife committed adultery with another person, treated him with cruelty, and had deserted him for a continuous period of not less than two years immediately after presentation of the petition. The marriage was solemnized on 13 June 1978 at Bolpur, District Birbhum, West Bengal. The petitioner lived in Delhi for most of the relevant period while the respondent returned to her parental home at various times to pursue studies. The respondent left Delhi on 10 November 1979 taking her jewellery and belongings and did not return. The petitioner later learned that the respondent had an intimacy with one Jadu Gopal Ghosh (respondent No. 2) and that a child was born to the respondent on 27 March 1981 at a local hospital in Suri, Birbhum.

At trial, service on the respondents proved difficult. After multiple attempts, substituted service by publication in the Statesman (Calcutta edition) on 16 June 1982 was ordered; no one appeared. An ex parte statement of the petitioner was recorded as PW-1 on 31 August 1982, in which he identified certain letters and their English translations (Ex. P-1 / Ex. P-2 and Ex. P-3 / Ex. P-4) that provided information about the respondent's alleged relationship with respondent No. 2 and the birth of a child.

The trial court (District Judge) disbelieved the contents of the English translations (referred to as Ex PW-2 and PW-4) and denied relief on the ground of adultery, reasoning that the petitioner was not an eye-witness to the alleged living in adultery and had not produced hospital records nor summoned the authors of the letters. The appellant appealed to the High Court. Notices sent on appeal were returned unserved because the respondents refused to accept them. The High Court heard the matter and delivered the oral judgment summarized here, setting aside the District Judge's order and granting the decree of divorce.

Legal Issues Presented

Whether the petitioner was entitled to a decree of divorce on the grounds alleged in his petition (adultery, cruelty and desertion) based principally on his uncorroborated ex parte testimony and documentary communications received by him.
Whether the trial court was correct in refusing relief for adultery on the ground that the petitioner was not an eyewitness and had not produced hospital records or summoned authors of letters which informed him of the respondent's conduct.
Whether the inability to procure the attendance of certain witnesses (authors of the letters) who reside beyond the jurisdictional limits affected the admissibility or probative value of the petitioner's evidence.

Arguments of the Parties

Appellant's Arguments

The appellant (husband) stated that after marriage the respondent left for her parental home and thereafter failed to return; she finally left on 10 November 1979 and did not return.
He asserted that while residing away from him, the respondent developed an intimacy with respondent No. 2 (Jadu Gopal Ghosh) and that a child was born to her on 27 March 1981; he had no access to her between November 1979 and the birth.
The appellant relied upon documentary communications he received (letters and their English translations) which informed him of the respondent's marriage to respondent No. 2 and of the childbirth, and he identified the handwriting of some senders.
He maintained he had suffered mental agony and had not condoned the alleged adultery, and that there was no collusion in filing the petition.
He relied on authority (Antoniswamy v. Anna Manickam, AIR 1970 Madras 91) as being in pari materia, where the husband's sole testimony had been accepted.

Respondents' Arguments

The opinion does not contain a detailed account of the respondents' legal arguments; the respondents did not appear in the proceedings and repeatedly refused to accept summons or notices.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Antoniswamy v. Anna Manickam, AIR 1970 Madras 91	Illustration that in matrimonial proceedings (Indian Divorce Act context) the sole testimony of the husband, if believed, may suffice to grant relief (parimateria principle relied upon).	The court treated this decision as being in pari materia with the present case and used it to support the proposition that a husband's uncorroborated testimony can be accepted where circumstances make calling corroborating witnesses impracticable.

Court's Reasoning and Analysis

The High Court judge identified errors in the District Judge's approach and set out reasons for accepting the petitioner's testimony and documentary evidence:

The District Judge disbelieved the English translations of communications (Ex PW-2 and PW-4) and rejected the adultery claim because the petitioner was not an eyewitness to the alleged living in adultery; the District Judge also noted that the petitioner had not produced hospital records nor summoned the authors of the letters.
The High Court observed that the petitioner had been residing in Delhi and had limited, if any, opportunity to summon witnesses who resided in Bolpur (outside the jurisdictional limits applicable to issuing summons). The court specifically referred to Order XVI, Rule 19 of the Code of Civil Procedure as setting jurisdictional limits and noted that the authors of the letters lived beyond those limits and at a place not connected by air, making issuance of summons impracticable.
The court accepted the petitioner's evidence that he had received letters and translations (Ex. P-1/Ex. P-2 and Ex. P-3/Ex. P-4) informing him of the respondent's relationship with respondent No. 2 and the birth of a child, and that he had identified handwriting/signatures where relevant. The court considered the practical difficulties of obtaining attendance of those writers and found this explained the absence of their testimony.
The court relied on the reasoning of Antoniswamy v. Anna Manickam (AIR 1970 Madras 91) as being in pari materia: that a husband's uncorroborated testimony may be accepted in matrimonial matters under ordinary circumstances of society where the allegations are unlikely to be made without foundation.
The court further observed that notices sent on appeal by registered A.D. post were refused by the respondents on the same date, showing an attempt at service and the respondents' deliberate non-acceptance of court communications; consequently the respondents were ex parte before the High Court.
Taking into account the petitioner's credible ex parte testimony, the documentary communications before the court, the impossibility or impracticability of securing attendance of the foreign witnesses within jurisdiction, and the respondents' failure to appear, the High Court concluded that the petitioner's statements should be believed. The court held that what was stated under Section 13(1)(d) (ia) and (ib) stood proved by the petitioner's uncorroborated statement and that no collusion existed between the parties.

Holding and Implications

Holding: The High Court allowed the appeal, set aside the order of the District Judge, and granted the petitioner a decree of divorce dissolving the marriage between the petitioner and respondent No. 1. The court also ordered that there would be no order as to costs. The opinion concludes with "Appeal accepted."

Implications:

Direct effect: The petitioner was granted a decree of divorce; the marriage stands dissolved as a result of this judgment. There was no order as to costs.
On evidentiary practice in matrimonial matters: The court affirmed that in circumstances where corroborative witnesses reside beyond the jurisdictional limits and cannot be summoned, and where substituted service and attempts at notice have been made but the respondents remain ex parte, a credible uncorroborated statement by the petitioner may be accepted. The court treated the cited Madras decision as supportive authority for this approach.
The opinion does not state that it establishes a new precedent beyond the application of existing principles to the facts of this case; it primarily sets aside the trial court's factual assessment and accepts the petitioner's evidence in the specific factual and procedural context described.

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Shri Bidhan Chandra Sinha v. Smt. Sushmita Sinha & Anr S

Mahinder Narain, J. (Oral):— The husband, who is appellant before me, filed an application under Section 13 (1) (i), (ia) and (ib) of the Hindu Marriage Act, 1955. The assertion in the petition filed by the husband was, therefore, that the wife, after the solemnization of the marriage had voluntary sexual intercourse with a person other than the petitioner; that after the solemnization of the marriage, treated the petitioner with cruelty; and that the husband has been deserted by the respondent for a continuous period of not less than two years immediately after the presentation of the petition.

2. The facts as stated in the petition are that the marriage was solemnized between the petitioner and respondent No. 1, Smt. Sushmita Sinha alias Sikha Sinha on 13th June, 1978 at Kashim Bazar, Bolpur, District Birbhum, West Bengal. It is asserted in the petition that after the marriage the parties lived at Bolpur and 15 days after the marriage, the petitioner came Delhi and the respondent stayed back with her father. It was asserted by the petitioner that when his letters to the respondent to come to Delhi did not have any response, he brought the respondent from Bolpur to Delhi. The petitioner stated that the respondent left Delhi for her father's house in the middle of February 1979, on the plea that she has to complete her studies and stayed with her father till April, 1979. Respondent came to Delhi at the end of April, 1979 and stayed in Delhi for about a month thereafter. After she had come back to Delhi, the result of the examination which she had taken, was declared and communicated to Delhi. After that she insisted for doing further studies like Ph.D This was done by the respondent against the wishes of the petitioner who wanted her to do further studies by taking Page: 394admission in Jawahar Lal Nehru University, Delhi. The respondent did not do so and insisted that she would pursue the studies in her father's house and accordingly left Delhi.

3. The petitioner went to Bolpur again in September, 1979 to bring the respondent back but she did not want to come back on the plea that she had taken admission in Vishwa Bharti University. There is also an assertion in the plaint that the petitioner was humiliated in his in-laws house and as such he returned to Delhi.

4. In October, 1979, however, respondent No. 1 came to Delhi with her brother. After staying in Delhi with her brother for a few days, she left Delhi and on 10th November, 1979, when she left Delhi, she took all her jewellary and belongings etc. Thereafter she never returned to the petitioner.

5. The petitioner further stated in the petition that he had come to learn that while residing away from the petitioner, respondent No. 1 developed intimacy with one Jadu Gopal Ghosh, respondent No. 2 in the petition. As a result of the said intimacy between respondent No. 1 and respondent No. 2, a child was born to respondent No. 1 on 27th March, 1981. It is obvious from the pleadings that the petitioner, by necessary intendment stated that he had no access to respondent No. 1 since November, 1979 till the birth of the child on 27th March, 1981. It was asserted in the petition that he learnt about the child being a born at a local hospital at Suri in district Birbhum, West Bengal and as a result of the birth of the child the petitioner suffered mental agony and pain; and that the respondent had not condoned the said act of cruelty and desertion. It is stated by the petitioner that respondent No. 1 was continuing to live with respondent No. 2.

6. Before the trial court attempts were made to have service effected on the respondents. Summons sent to the respondent were not received back and after having made a number of attempts, as is apparent from the order dated 25th May, 1982 and 28th May, 1982, it became necessary to order to have substituted service effected by publication in the newspapers. Publication was made in the ‘Statesman’ dated 16th June, 1982 in the Calcutta edition. No one appeared in spite of publication in the newspaper.

Page: 3957. Thereafter ex parte statement of the petitioner as PW-1 was recorded in the court on 31-8-1982. The statement reads as under: —

“My marriage with the respondent No. 1 was solemnised on June 13, 1978 at Bolpur district in West Bengal according to Hindu rites. The marriage was arranged through the maternal uncle of my father Shri Kishori Mohan Dutta. After marriage I and the respondent lived there for 15 days, and thereafter I came back to Delhi while the respondent No. 1 continued to stay there as she was studying in M.A in those days. She lived there upto December, 1978. In December, 78 I went to take her and brought her to Delhi after my stay there for 3 days. The respondent lived with me at Delhi upto February, 1979. In February, 1979 the respondent went to her parents house in Bolpur for her studies as she was still doing M.A The respondent lived there for 1 ½ month. In the last week of April or Ist week of May, 1979 the respondent returned to Delhi. Her result was declared when she was living in Delhi. The respondent went to Bolpur in June, 1979 as she had to take admission in M.A second year after her qualifying the M.A Previous. I asked the respondent to discontinue the studies but she persisted and then I requested her to take admission in Jawahar Lal Nehru University, Delhi. She, however, declined to study in Delhi and demanded that she will go to Bolpur and studying in Vishwa Bharti University. She left for this purpose in June, 1979. I had been writing letters to her requesting her to return. In September, 1979 I personally went there. The father of the respondent questioned as to why had gone to his house. The respondent No. 1 did not return with me. I came back. Thereafter I sent a letter to her. The respondent No. 1, however, came to my house in Delhi in October, 1979 with her younger brother. She lived with me till 9th November, 1979 and then she left for Bolpur in West Bengal. After that the respondent has not returned. She had carried all her jewellery with her on the pretext that the marriage of her younger sister was coming off in December, 1979. The marriage of her younger sister was not performed in Page: 396December, 1979. While the respondent No. 1 was residing with me she was not behaving properly with me and with other members of my family. I sent letters to the respondent No. 1 asking her to come back but she has not returned.”

8. Shri Kishori Mohan Dutta is maternal uncle of my father. Shri Anand Moy Sinha is my father. I am acquainted with Bengali and also the English language. I am also acquainted with the handwriting of Shri Kishori Mohan Dutta. He had sent the letter Ex. P-1 to my father written in Bangla script. I identify his writing on it. Its correct english transcription is Ex. P-2. Shri Ramesh referred to in this letter at point ‘A’ in the letter Ex. P-2 is the one of the daughter of Shri Kishori Mohan Dutta. He is a resident of Kulia in district Birbhoom of West Bengal. From this letter we learnt that the respondent No. 1 has married the respondent No. 2 in a temple of Tara Maan in district Birbhum. Shri Lakhi Narain Dutta is the son of the sister of Kishori Mohan Dutta. I am acquainted with his writing and signatures. He had sent a letter to my father which is Ex. P-3. I identify his writing and signatures on it. It is in Bangla script. Its correct english translation is Ex. P-4. The letter Ex. P-3 contained in the envelope Ex. P-5 was sent to my father at his shop's address. From this letter we came to know that the respondent No. 1 has delivered a child on 27-3-1981 in Suri Hospital near Bolpur and the respondent No. 2 was shown as the husband of the respondent No. 1. I suffered mental shock and torture and agony from all these things. I do not want to live with the respondent No. 1 now. I have not condoned the adultery and cruelty of the respondent No. 1 I have not filed the petition in collusion with the respondent No. 1. I have not filed any other matrimonial petition against the respondent.”

9. Learned District Judge did not believe the contents of Ex. PW-2 and PW-4, which are English translations of the communications which have been received by the petitioner. It is these communications which informed the petitioner that a child had been born to respondent No. 1 on 27-3-1981. The trial court has denied the relief on the ground of adultery for the reason that the petitioner is not the eye-witness to the living in adultery, inasmuch as the petitioner is living in Delhi and as the respondent is living at Bolpur, it was obviously impossible for the petitioner to be an eye witness to the same. The District Judge also says that the petitioner had not himself seen the hospital records nor he “dare to call the writers of the letters”.

Page: 39710. I think that the District Judge has gone wrong in his approach to this case. In this particular, case the petitioner has all along been living at Delhi. He had no occasion to have any connection with Bolpur since the respondent left him. There was no way in which the petitioner could summon these witnesses as these witnesses reside beyond the limits of jurisdiction as postulated by Order XVI, rules 19 of the Code of Civil Procedure and the authors of the letters Ex. P-1 and P-3 reside similarly outside these limits and they reside at a place which is not connected by air, therefore, summons could not be issued to them. The petitioner relied upon Antoniswamy v. Anna Manickam, AIR 1970 Madras 91 (1). This case is under the Indian Divorce Act but appears to be in Pari Meteria with the present case. In that case also the only person examined was the husband. His testimony was believed, and a decree of divorce was granted.

11. In this case I have set out the statement of the petitioner. I am in respectful agreement with the judgment of Madras High Court that in the ordinary circumstances of society in this country, a man would not like to make statements against a wife, such as of prolonged desertion, and continued illicit intimacy with another man, if such averments have no basis or foundation in truth.

12. On filing of the appeal in the High Court the notices were sent to the respondents through this court by Regd. A.D post. Notices were sent to respondent No. 2 under the name of Jadu Copal Dutta, C/o Shri Chand Gopal Datta whereas in the petition, the name of respondent No. 2 is shown as Jadu Gopal Ghosh. I am satisfied that as they are the same person. Notices which were sent by registered A.D post to both the respondents were also refused on the same date, i.e on 5-3-1983. The Regd. covers which have come back unserved clearly stipulate that the papers have been sent through the Registrar of High Court of Delhi. It is difficult for me to believe that both the respondents were unaware that these envelopes would contain documents pertaining to some court proceedings. Even in the trial court they have chosen to refuse to acknowledge (accept) the summons which have been sent. They are ex parte before me. For all the aforestated reason I am satisfied that the statements which have been made by the petitioner are true and ought to be believed. From the uncorroborated statement of the petitioner it is established that whatever is stated in the petition under Section 13 (1) (d) (ia) and (ib) stands proved. There is obviously no collusion between the parties.

Page: 39813. The petitioner, in my view, is entitled to have divorce. I accordingly, after setting aside the order of the learned District Judge, grant the petitioner relief of decree of divorce against respondent No. 1. The marriage between the petitioner and respondent No. 1 stands dissolved by a decree of divorce.

14. There will be no order as to costs.

Appeal accepted.

Shri Bidhan Chandra Sinha v. Smt. Sushmita Sinha & Anr S

Summary of the Judgment (Mahinder Narain, J.)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's Arguments

Respondents' Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Shri Bidhan Chandra Sinha v. Smt. Sushmita Sinha & Anr S

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