IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FAMILY COURT APPEAL NO. 31 of 2003
Girish Gopinath Rallapali,
residing at .. Floor,
Yashwant Smruti Bldg.
12th Road, Khar (West)
Mumbai 400 052. ...Appellant
v/s.
Kalavati Girish Rallapali
r/at: Kal-bhairo Temple
15th Lane, Kamathipura
Mumbai. ...Respondent
Smt. Amarjeet Kaur, advocate for the Appellant.
None for the respondent.
CORAM:- A.M.KHANWILKAR
A.A.SAYED, JJ.
DATED:- JUNE 14, 2010.
Oral Judgment ( PER A.M.KHANWKLKAR, J)
1. This Appeal takes exception to the Judgment and decree passed by the IVth Family Court, Mumbai at Bandra dated September 25, 2002 in MJ Petition A-1697/1996 to the extent it rejects the counter claim Petition filed by the Appellant-husband for decree of divorce on the ground that Respondent-wife 2 treated him with cruelty and also because the Respondent-wife had adulterous relations with the co-respondent after the solemnization of marriage with the Appellant.
2. The Respondent filed Petition for restitution of conjugal rights being MJ Petition A-1697/96 against the Appellant. In the said proceedings the Appellant filed counter claim Petition for divorce on 20th January, 1997. The Respondent filed reply to the said counter claim Petition and denied the allegations made therein. The matter went for trial. During the trial the Respondent examined herself as PW1. The Appellant not only examined himself as DW1 but also examined witness Ashok Talpade as DW2 in support of his plea that the Respondent had admitted her misdeeds in the meeting held at the residence of the said witness after the incident in question. Notably, the co-respondent Palep Lingana did not appear in the proceedings. In other words, he has neither countered the allegations made in the Petition against him nor chosen to appear before the Court and deposed on relevant matters to explain his position. The trial Court analyzed the evidence which has come on record and chose to discard the evidence produced by the Appellant. On that basis the trial Court concluded that the Appellant failed to establish both the grounds of cruelty as well as adultery against the Respondent and, therefore, dismissed the counter claim 3Petition filed by the Appellant. This decision is the subject matter of challenge in the present appeal. In so far as relief of custody of the minor child is concerned, that has become infructuous due to distance of time. It is fairly conceded that the son Sankarsh has attained majority on 19th March, 2010. In that sense, this relief cannot be considered.
3. Besides the present appeal, other proceedings were filed by the Respondent-wife which were kept alongwith the present Appeal. The said matters came up for hearing on 8th June, 2010 alongwith present Appeal. As none appeared for the Respondent-wife, the said proceedings have been dismissed for non-prosecution. The present appeal was heard on 8th June, 2010 for substantial part of the day and the hearing continued on 9th June, 2010. On both these dates none appeared for the Respondent. Even today when the matter has been notified for pronouncement of Judgment, no appearance is made on behalf of the Respondent. In the circumstances, we are proceeding to decide the present appeal on the basis of assistance given by the Counsel for the Appellant. We have waded through the entire pleadings and evidence on record. We have also carefully examined the Judgment given by the Lower Court.
4. As aforesaid, in this Appeal we are only concerned with the issue as to whether the Appellant is entitled for decree of divorce on the ground of cruelty and/or adultery. We find that the trial Court has reproduced the oral evidence given by the respective witnesses in detail. We would, therefore, proceed to analyze the Judgment of the trial Court in the first instance. The trial Court has discarded the evidence of the Appellant (DW1) essentially on the ground that the conduct of the Appellant even after witnessing the incidents referred to in the Petition which indicated that the Respondent was having adulterous relationship with the co-respondent, he did not react in a normal manner but was content with merely questioning the Respondent and doing nothing more. This is the basis on which the evidence of DW1 has been discarded as unbelievable or untrustworthy version with regard to the facts deposed to by him in relation to the relevant events. In so far as the evidence of DW2 Ashok Talpade is concerned, the same has been discarded on the finding that he was an interested witness. The Court has noticed that he was the landlord in respect of the premises where the Appellant resided alongwith the Respondent . The Court then found that there was no good or tangible reason as to why the Respondent and co-respondent would make disclosure before him about their relationship or the fact that the Respondent had voluntary sexual intercourse with the co-respondent after the solemnization of marriage with the Appellant. After discarding the oral evidence of DW1 and DW2, the trial Court concluded that there was no legal evidence to accept the case made out by the Appellant for grant of decree of divorce. The Court concluded that the entire evidence of Appellant-DW1 was on the basis of suspicion. Further, the Appellant took support from the evidence of DW2 Ashok Talpade to substantiate his suspicion. It proceeded to hold that there was no legal evidence to establish the fact about the illicit relations between the Respondent and the co-respondent. The Court also opined that non-examination of other witnesses by the Appellant in particular Madhu Shastri, his brother-in-law who was present at one of the meetings was also fatal. Accordingly, the Court rejected the allegation regarding voluntary sexual intercourse by Respondent with the co-respondent as alleged.
5. In so far as the ground regarding Respondent having treated the Appellant with cruelty, essentially the same was pressed on two counts. Firstly, that the Respondent even after marriage was not in a position to cook food. Secondly, after she gave birth to her son, she was not in a position to look after her son including to bathe the son. In so far as, this ground was concerned, the trial Court found that in the pleadings it was nowhere stated by the Appellant that the Respondent was unwilling to do the said work of cooking or looking after the child. The fact that she was not in a position to discharge her matrimonial duties properly could not be the basis to grant decree of divorce, as her inability to discharge her matrimonial duties was because she was unable to do that work properly. On that reasoning, the trial Court negated the ground of cruelty pressed into service by the Appellant for decree of divorce.
6. We would first deal with the later ground. In so far as ground of cruelty is concerned, as aforesaid, it is only on two counts. Firstly, that the Respondent was unable to discharge her matrimonial duties of cooking food or doing household work. Secondly, she was even unable to look after the child properly. In so far as these facts are concerned, there is no difficulty in accepting the argument of the Appellant that the Respondent admitted that factual position. In her evidence, the Respondent has admitted that she was unable to cook proper food and also unable to properly look after the child. Further, that it is the Appellant who was forced to do the said work. Even so, we find no infirmity in the reason recorded by the lower Court that that by itself was not enough. It is not even the case pleaded by the Appellant that inspite of his request or for that matter even though the Respondent otherwise was in a position to properly discharge her matrimonial duties, she was not doing so only to harass the Appellant. We are in agreement with the view taken by the Lower Court that the fact that the Respondent was unable to discharge her matrimonial duties properly by itself cannot be the ground to straightway grant decree of divorce. The conduct of the Respondent to grant decree of divorce in terms of Section 13(1)(i-a), what is to be established is that the Respondent treated the Petitioner with cruelty. The term cruelty has not been defined in the Act. The Counsel for the Appellant has invited our attention to the decision of the Apex Court in Sujata Uday Patil vs. Uday Madhukar Patil reported in 2007 AIR SCW 896. In Paragraph-7 of the said decision, the Court observed thus:
The word “cruelty” and the kind or degree of “cruelty” necessary which may amount to a matrimonial offence has not been defined in the Act. What is cruel treatment is to a large extent a question of fact or a mixed question of law and fact and no dogmatic answer can be given to the variety of problems that arise before the court in these kind of cases. The law has no standard by which to measure the nature and degree of cruel treatment that may satisfy the test. It may consist of a display or temperament, emotion or pervasion whereby one gives vent to his or her feeling, without intending to injure the other. It need not consist of direct action against the other but may be misconduct indirectly affecting the other spouse even though it is not aimed at that spouse. It is necessary to weight all the incidents and quarrels between the parties keeping in view the impact of the personality and conduct of one spouse upon the mind of the other. Cruelty may be inferred from the facts and matrimonial relations of the parties and interaction in their daily life disclosed by the evidence and inference on the said point can only be drawn after all the facts have been taken into consideration. Where there is proof of a deliberate course of conduct on the part of one,intended to hurt and humiliate the other spouse, and such a conduct is persisted, cruelty can easily be inferred. Neither actual nor presumed intention to hurt the other spouse is a necessary element in cruelty.” The term cruelty, therefore, will have to be understood as in common parlance.
The Blacks Law Dictionary, Eighth Edition, defines the term cruelty as follows:
“cruelty. The intentional and malicious infliction of
mental or physical suffering on a living creature, esp. a
human; abusive treatment; outrage. Cf. ABUSE;
INHUMAN TREATMENT; INDIGNITY.
“When William Blake opined that “Cruelty has a
common heart’, he posited the physical and
emotional forms which cruelty may take. But
when is one party so cruel to the other that it goes
to the heart of the marriage and justifies
dissolution? A New York court defined cruelty as
bodily harm, or a reasonable apprehension of
bodily harm, which endangers life, limb or health
and renders marital cohabitation unsafe or
improper. Some states are reluctant to permit
divorce when there has been only emotional
suffering without physical harm. And in a
marriage of long duration, some courts require that
the cruelty be more extreme to justify divorce than
if the relationship has been brief. Acts
constituting the ground must continue over an
extended period of time unless they are so severe
as to shock the conscience, or raise the probability
that it would be unsafe for the innocent party if the
couple remain together.” Walter Wadlington &
Raymond C. O’Brien, Family Law in Perspective
73 (2001).
We may usefully refer to the word ‘mental cruelty’ ‘mental anguish’ and ‘legal
cruelty’, as defined in the said edition of Black’s Law Dictionary:-9
“mental Cruelty - As a ground for divorce, one spouse’s
course of conduct (not involving actual violence) that creates
such anguish that it endangers the life, physical health, or
mental health of the other spouse.”
“mental anguish – See Emotional Distress.
emotional distress. A highly unpleasant mental reaction
(such as anguish, grief, fright, humiliation, or fury) that
results from another person’s conduct; emotional pain or
suffering. Emotional distress, when severe enough, can form
a basis for the recovery of tort damages. -- Also termed
emotional harm; mental anguish; mental distress; mental
suffering. See INTENTIONAL INFLICTION OF
EMOTIONAL DISTRESS; NEGLIGENT INFLICTION OF
EMOTIONAL DISTRESS. Cf. Mental cruelty under
CRUELTY. {Cases: Damages 48-56.20.C.J.S. Damages $$
94-104; Parent and $ Child 344; $$ Torts 66-83}
“Emotional distress passes under various names, such
as mental suffering, mental anguish, mental or
nervous shock, or the like. It includes all highly
unpleasant mental reactions, such as fright, horror,
grief, shame, humiliation, embarrassment, anger,
chagrin, disappointment, worry and nausea. It is
only where it is extreme that the liability arises.
Complete emotional tranquility is seldom attainable in
this world, and some degree of transient and trivial
emotional distress is a part of the price of living
among people. The law intervenes only where the
distress inflicted is so severe that no reasonable man
could be expected to endure it. The intensity and the
duration of the distress are factors to be considered
in determining its severity. Severe distress must be
proved; but in many cases the extreme and outrageous
character of the defendant’s conduct is in itself
important evidence that the distress has
existed.” (Restatement (Second) of Torts $ 46 cmt. J
(1965).10
“legal cruelty – Cruelty that will justify granting a divorce to
the injured party; specific., conduct by one spouse that
endangers the life, person, or health of the other spouse, or
creates a reasonable apprehension of bodily or mental harm.
{Cases: Divorce 27.C.J.S. Divorce 22}.”
7. The question is whether the inability of the Respondent in discharging her matrimonial duties properly by itself can be ground to issue decree of divorce. Indubitably, something more is required than mere inability of the spouse to discharge his/her matrimonial duties. Besides the reasons recorded by the Lower Court, we may further add that admittedly the Appellant and Respondent were married at Mumbai according to Hindu Vedic Rites on 2nd June, 1991. Son Sankarsh was born out of the said wedlock on 19th March, 1992. The Appellant continued to cohabit with the Respondent notwithstanding the drawback of the Respondent in discharging her matrimonial duties properly until June 1996.The fact that the Respondent was unable to cook proper food or that she was unable to bathe the minor son and because of which the Appellant was forced to undertake the said work in addition to his other routine work and official duties. As aforesaid, the Appellant inspite of these deficiencies of the Respondent,cohabited with her from June 1991 till July 1996. If the Appellant was so frustrated because of the inefficiency and inability of the Respondent to discharge her matrimonial duties properly, there is nothing in the Petition as filed by the Appellant to indicate as to why he continued to cohabit with the Respondent until July 1996. In our opinion, the Appellant has in that sense condoned the acts of commission or omission and the deficiencies and inability of the Respondent and continued to cohabit with her until July 1996. It is only in May 1996 and thereafter the Appellant started suspecting the behaviour of the Respondent, which is the main cause of separation between the two and institution of proceedings before the Family Court. Considering the matter even from this perspective, we find no reason to overturn the conclusion of the Lower Court in rejecting the ground of cruelty pressed into service by the Appellant.
8. That takes us to the other ground on which the Appellant prayed for decree of divorce. That is in the context of provisions of Section 13(1)(i) of the Hindu Marriage Act. In so far as this ground is concerned, the Appellant has relied on his evidence as well as examined Ashok Talpade– DW2. We have already indicated as to on what basis the Lower Court has negatived the claim of the Appellant in relation to this ground as well.
9. The question is: whether the view taken by the Lower Court in relation to this ground can be said to be correct, legal and proper, considering the pleadings and evidence on record. For that we shall straightway advert to the counter claim Petition filed by the Appellant. In that counter claim Petition, Appellant has prayed leave to rely on the assertions made in the written-statement filed to oppose the Petition for restitution of conjugal rights filed by the Respondent .We shall not burden this Judgment with other details mentioned by the appellant in his written statement. In so far as ground under consideration, the Appellant has asserted that in May 1996 he had to go to Karim Nagar, A.P. to attend the wedding of his relative. While leaving for Karim Nagar, the Appellant requested the co-respondent Palep Lingana to perform various poojas on his behalf which the Appellant was performing at the residence of his Yajmans on regular basis. The said co-respondent Palep Lingana as per the said request performed the poojas at the residence of various yajmans of the Appellant during the said period. However, when the Appellant returned from Karim Nagar, he suspected illicit relationship between the Respondent and the said Palep. In the end of May 1996, when he was unwell due to viral fever, in the night when he was feeling uncomfortable, he got up at about 2.00 a.m. and proceeded to toilet. When he got up, he was surprised to see that the Respondent was not in her bed. Instead, when he went to the hall, he found that the Respondent and said Palep Lingana were together. The Respondent was seen half undressed and was putting on her clothes. The Respondent on seeing the Appellant pretended as if she had come to the hall to take supari from the Palep’s bag. The Appellant,however, noticed that the buttons of her blouse were open and could not say anything because of the shock. Next morning when the Appellant got up, Palep who was staying in the same premises had already left. When Appellant confronted the Respondent, she gave evasive replies and denied that she had any adulterous relationship with co-Respondent Palep Lingana. The Appellant warned the Respondent not to allow the said Palep to enter their residence.Inspite of those instructions, when the Appellant came home from his work at 1.00 p.m., he found smell of tobacco all over the room. The Appellant suspected that Palep Lingana who is habituated to eating tobacco must have come during his absence. The Appellant questioned the Respondent about the presence of tobacco in the house to which the Respondent did not give any proper reply. These are the instances mentioned in the Petition. The Appellant has then asserted that later on four days after the earlier incident, when the Appellant came home in the afternoon, he found co-respondent Palep Lingana was cooking food. It is the case of the Appellant that the co-respondent used to visit during his absence when the Appellant was away to perform his daily pujas which timing was known to the co-respondent . The Appellant has given these instances to indicate the behaviour of the Respondent . It is his case that the Respondent on being questioned was not in a position to offer any convincing reply. Later on, the co-respondent Palep left for his native place. It is then stated that on 16th July, 1996 when the parents of the Respondent came to his residence, he disclosed the adulterous relationship between the Respondent and said co-respondent Palep Lingana. The parents of the Respondent questioned her in presence of the Appellant. Initially, the Respondent denied that she had adulterous relationship with Palep, however, when her mother got angry and gave 2-3 slaps on her face, the Respondent told her parents and the Appellant that on 9th May, 1996 when the Appellant had gone to Karim Nagar, the said Palep had raped her. She further stated that she did not disclose that fact to the Appellant or her parents out of fear. On that the Respondent’s parents told the Appellant to take action in the matter. The Appellant then consulted a social worker who in turn advised that the Appellant should not lodge a complaint at the khar police station but instead can tell the police officer to record Respondent ’s statement. This suggestion was made as the Appellant used to perform pujas at Khar police station as poojari. When the Appellant made that arrangement, the Respondent refused to give any statement. The Respondent then disclosed that said Palep after raping her, on the next morning he removed her mangalsutra and told her that she had sinned. Thereafter, he purified her mangalsutra with Tulsi water and recited some mantras and tied the same mangalsutra around the Respondent’s neck and told her that in presence of the Appellant they will behave like uncle and niece but when they are alone, they would behave like husband and wife. The Respondent further disclosed that she continued to have adulterous relations with the said Palep and he assured that the Appellant will never come to know of the same. It is the case of the Appellant that the Respondent also disclosed that she was pregnant with the Palep’s child and gave medical report of Nair hospital which mentions that she was pregnant. She stated that she later on underwent abortion. Hearing this statement of the Respondent, the Appellant was shocked and shattered and told the Respondent to leave his home as he could not live with her any more. It is the case of the Appellant that Respondent then phoned her parents and they came at about 11.00 p.m. alongwith Palep and some family friends. In order to impress the said friends, the Respondent’s parents started denying their daughter’s adulterous relations with said Palep. They then took the Respondent and the minor son alongwith them. They went to the residence of Shri Ashok Talpade (DW2) who was the Appellant’s landlord and a social worker. The written statement then refers to the meeting with Ashok Talpade who in turn asked them to come the next morning. In the meeting on the next morning the Respondent alongwith her parents and Palep were present at the house of Ashok Talpade. On questioning the Respondent admitted in the presence of Ashok Talpade that she was living in adultery with the said Palep. She commented that even the Petitioner must have indulged in same way when he was studying in College. It is the case of the Appellant that thereafter Ashok Talpade questioned the co-respondent Palep who was also present. He admitted the entire episode including the purification of mangalsutra disclosed by the Respondent. The written-statement then refers to the other incidents of 13th August, 1996 and 15th August, 1996 when Shamsunder with all the relatives of the Appellant had come to his house and stayed with him and thereafter left alongwith the Respondent. This version has been reiterated in the counter claim Petition dated 20th January, 1997 and on that basis it is prayed by the Appellant that decree of divorce in favour of the Appellant be passed and against the Respondent dissolving their marriage performed between them on 2nd June, 1991. Further relief of custody of minor son was also claimed in the counter claim Petition.
10. The allegations made in the counter claim Petition came to be refuted by the Respondent-wife by filing reply. The Respondent-wife has denied each of the allegations contained in the counter claim Petition. In so far as the co-respondent is concerned, in the reply although the Respondent has denied that the co-respondent is a distant cousin of her father but at the sametime it is admitted that he was virtually a family member of the Appellant. The Respondent has given justification for the said assertion. She has stated that the profession of the Appellant and the co-respondent was of pujari and priest and they were from common Telugu Yajurvedi Brahmans. She has further stated that since the co-respondent being cousin of her husband, it was but natural that she would treat the co-respondent properly whenever he used to visit their house and that the co-respondent in turn treated her with affectionate behaviour just like any other family member towards both the Appellant and the Respondent. The Respondent has asserted that mere fact of having found in the company of co-respondent is not sufficient to infer an act of adultery or sexual intercourse. As aforesaid, other allegations have been denied by the Respondent.
11. When the matter went for trial, the Respondent examined herself. No other witness in support of her claim was examined. The co-respondent Palep allowed the proceedings to go exparte against him and did not bother even to counter the allegations made by the Appellant nor made himself available to depose the truth with regard to the incidents referred to by the Appellant. During the cross-examination of the Respondent, the Appellant has given all suggestions consistent with the case pleaded by the Appellant. Indeed, the Respondent has denied each of those suggestions. What is significant to notice is the fact that during the cross-examination when the Respondent was called upon to explain the relationship with co-respondent Palep Lingana, she flatly refused to recognize him. In her evidence she has said that she does not know Palep Lingana. She has further denied the suggestion that the said Palep Lingana is cousin brother of her father and he was residing with her even prior to marriage. She has also denied the suggestion that after marriage, said Palep was accompanying her whenever she used to go out. In other words, the Respondent has gone to the extent of even denying the fact that she knows the said Palep Lingana. This theory propounded during the cross-examination is certainly inconsistent with the case made out in the reply filed to oppose the counter claim Petition by her. On the other hand, it runs contrary to the said version. As aforesaid, in the reply to the counter claim Petition, she has asserted that the co-respondent was virtually a family member of the Appellant and was a regular visitor to their house. In other words, the stand taken by the Respondent in her cross-examination is contrary to the assertion made in the reply filed by her, which is inexplicable. We shall revert to this aspect a little later.
12. Reverting back to the evidence adduced by the Appellant in support of the ground of adultery, the Appellant has not only examined himself as DW1 but has also examined Ashok Talpade as DW2. In so far as Appellant is concerned, he has reiterated the facts pleaded in the counter claim Petition and has given all
the details about the same in his evidence. The cross-examination of this witness however proceeds only to deny the claim of the Appellant. The evidence of Ashok Talpade DW2 corroborates the version deposed by the Appellant. He has specifically referred to the meeting at his residence in which the Respondent made disclosures about her illicit relationship with co-respondent Palep Lingana. He has deposed about the two meetings on 16th June, 1996 and 14th August, 1996. The fact that such meetings were held is admitted by the Respondent not only in her evidence but there is no challenge thereto during the cross-examination of Appellant’s witness. The evidence of DW2, therefore, corroborates the version given by the Appellant regarding the disclosure made by the Respondent to him to the effect that the Respondent had indulged in voluntary sexual intercourse with the co-respondent Palep even after marriage with the Appellant. In so far the said disclosures are concerned, except the denials, the cross-examination does not take the matter any further. The trial Court has discarded the evidence of DW1 and DW2 for the reasons which we have already alluded to. In so far as the reason to discard the evidence of DW1, the fact that the Appellant did not react aggressively or took any stern action by itself does not affect the truthfulness of his evidence. The
fact that the incident had occurred is corroborated by the admission given by the Respondent as well as the co-respondent before Ashok Talpade-DW2. The evidence of Ashok Talpade, therefore, corroborates the version of the Appellant. In so far as Ashok Talpade is concerned, the Lower Court has discarded his evidence merely because he was the landlord of the Appellant. The Lower Court has completely discarded the evidence of both the Appellant as well as DW2 on grounds which cannot be countenanced. In so far as the evidence of DW2 is concerned, he has stated that he was knowing Appellant from his birth as the father of the Appellant was in the premises owned by his mother. Their old association does not mean that the witness can be discarded in toto as interested witness or is deposing false. At best his evidence will have to be scrutinized with circumspection. The only other reason to discard the evidence of this witness is that there was no tangible reason as to why the Respondent and co-respondent would give admission before him. The fact remains that the DW2 is a social worker. The fact that the Appellant had close association with DW2 and the status of DW2 would naturally be the basis for the parties as well as parents of the Respondents to approach him for resolution of the dispute as it is obvious that the Appellant wanted him to intervene to resolve their problem.
13. The Lower Court ought to have taken into account the totality of the circumstances to answer the point in issue. It has rejected the claim of the Appellant also on the ground that the Appellant has not examined other witnesses who were present during the meeting. In the first place, the said Madhu Shastri was not present in the first meeting when the Respondent is stated to have made disclosures to DW2. Further, that reason would apply on all fours even against the Respondent who claims that her parents and her relatives were present during the meeting with Ashok Talpade. Non- examination of other relatives and parents by the Respondent was equally fatal. This aspect has been completely glossed over by the Lower Court.
14. As aforesaid, the Lower Court should have taken into account the totality of the evidence on record. Inasmuch as, the co-respondent has allowed the matter to proceed exparte against him. Allegations made against him have remained uncontroverted. He did not offer himself for ascertaining the truth. The Respondent, on the other hand, in the reply filed to oppose the counter claim Petition has mentioned facts which would indicate that she knew the co-respondent and the co-respondent was a regular visitor to their house. However, during the cross-examination she has flatly refused to recognize the co-respondent. She has stated that she does not know the co-respondent at all. This was the easiest manner in which she has successfully avoided any further questions which could confront her about her adulterous relationship.Whereas, the Appellant has not only examined himself but also Ashok Talpade- DW2. Ashok Talpade is a third party and cannot be dubbed as an interested witness merely because he happened to be the landlord of the Appellant. Ashok Talpade has stood the cross-examination. In the cross-examination only suggestions were put forth to the said witness which have been denied. The reasons recorded by the Lower Court to discard the version of the Appellant- DW1, in our opinion, cannot be countenanced. Merely because the Appellant did not react provocatively or aggressively after the incident, that does not mean that the incident had not taken place. If the incident had not taken place, there was no reason why the Appellant would have refused to cohabit with the Respondent. Moreover, there was no reason why meeting with Ashok Talpade was arranged on two different dates. The fact that such meetings were held has been admitted by the Respondent in the reply as well as her oral evidence. It is a different matter that the Respondent has asserted that nothing happened in the said meeting and has denied that she has given admission to Ashok Talpade. But that version of the Respondent cannot be accepted as there is nothing to indicate as to why Ashok Talpade-DW2 would depose against the Respondent and that too on matters which were in relation to illicit relationship between the Respondent and the co-respondent. Moreover, the Respondent has not examined any other witness in support of her claim or to deny the claim of the Appellant. Suffice it to observe that the allegations made by the Appellant regarding the illicit relationship of Respondent with the co-respondent have been substantiated from the material on record.
15. We accordingly partly allow this Appeal. The impugned Judgment and decree is set aside. Instead, we grant decree of divorce as prayed by the Appellant, on the ground that the Respondent had voluntary sexual intercourse with the co-respondent after the solemnization of the marriage with the Appellant, in terms of Section 13(1)(i) of the Hindu Marriage Act. The marriage between the Appellant and the Respondent dated 2nd June, 1991 stands dissolved in terms of this decree.
No order as to costs.
(A.A.SAYED, J) (A.M.KHANWILKAR, J)
http://bombayhighcourt.nic.in/data/judgements/2010/CFCA4701802.pdf
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