Adultery can be Proved through Circumstantial Evidences Alone

Punjab & Haryana High Court

JUSTICES S.S. Saron & Navita Singh

Shikha Vs. Jasvinder Singh & Anr. On 8 July 2014

Law Point:
The charge can be established by circumstantial evidence — It is not always possible that witnesses would see one of the spouses with paramour in objectionable posture to prove charge of adultery.

JUDGEMENT

The Trial Court record has been received. Learned Counsel for the appellant has been heard.

1 This is an appeal filed against the judgment and decree dated 18.1.2014 passed by the learned Additional District Judge, Kurukshetra, vide which the petition filed by respondent No. 1 (husband) under Section 13 of the Hindu Marriage Act, 1955 (Act for short) was allowed. The appellant-wife came up in appeal assailing the judgment on the ground that respondent No. 1 had deserted her and even neglected to maintain her. The Trial Court did not properly apply its mind and gave undue weightage to the evidence led by respondent No. 1.

2. The petition was brought by respondent No. 1 stating that the marriage between the parties was solemnized at village Khanpur, Tehsil Indri, District Karnal, according to Hindu rites and ceremonies on 30.4.2006 and one female and one male child were born from the wedlock. Respondent No. 1 was a soldier in the Boarder Security Force and mostly remained posted at non-family stations. He used to come home on annual leave. In his absence, the appellant developed illicit relations with Sahab Singh – respondent No. 2 (impleaded by the appellant as proforma respondent) and she started living with him. When respondent No. 1 came home on leave in January, 2010, he came to know about the adulterous relations of his wife with said Sahab Singh. The parents of respondent No. 1 and he himself tried to persuade the appellant to give up her relationship with Sahab Singh and come back to the matrimonial home. However, she did not listen and rather moved a false complaint against respondent No. 1 and his family members in police station at Thanesar. During investigation, the appellant made a statement that she did not want to live with her husband and a compromise was arrived at between the parties with the intervention of close relatives. The appellant stated that she was capable of making her own decisions and did not want to live with her husband and his family. Though the parents of the appellant were extremely ashamed of the conduct of their daughter yet to save the family from any kind of embarrassment, the parents of the appellant executed two separate affidavits in favour of respondent No. 1 stating that their daughter had left the matrimonial home out of her own volition and that their son-in-law, i.e. present respondent No. 1, was not at fault. Due to execution of such affidavits by her parents, the appellant was infuriated and she filed a suit for declaration against her father claiming her share in the property. During the investigation of the criminal case, the appellant hurled filthy abuses on her husband and his family due to which respondent No. 1 suffered great mental agony. He was even physically beaten by the appellant.

3. It was further pleaded in the petition that the appellant had filed a petition under Section 125 of the Code of Criminal Procedure (Cr.P.C. for short) where she filed an application for interim maintenance, which was dismissed on 2.11.2010 holding that she was not entitled to any such relief. Respondent No. 1 sought divorce on the ground of cruelty and desertion.

4. The appellant contested the case of her husband on the ground that he had set up a false case. She denied all the allegations of adultery and cruelty as also desertion made against her. It was denied that she had subjected respondent No. 1 and his family to any kind of mental agony or humiliation. She, inter alia, pleaded that she was ready to live with her husband.

5. The matter was heard ex parte against Sahab Singh-respondent No. 2.

The Trial Court framed the following issues:

1. Whether respondent (now appellant) developed sexual relations with one Sahab Singh and the petitioner (now respondent No. 1) was harassed, humiliated, insulted and subjected to cruelty by the respondent (now appellant) and the petitioner (now respondent No. 1) is entitled for a decree of divorce on the ground of cruelty?

—OPP

2. Whether the petition is not maintainable?

—OPR

3. Whether the petitioner (now respondent No. 1) is estopped from filing the present petition by his own act and conduct?

—OPR

4. Relief.

6. Learned Counsel for the appellant argued that the Trial Court wrongly held that the appellant was living in adultery with Sahab Singh because it was a serious allegation made by respondent No. 1 against the appellant and it was to be proved by leading proper evidence. No cogent evidence was led by respondent No. 1 in that regard. He contended that the Court below placed reliance on the testimony of Kiran Bala (PW2) in whose house the appellant had lived as a tenant for some time. Said Kiran Bala deposed against the appellant regarding her relationship with Sahab Singh because she was not having good relations with the appellant and wanted to get the house vacated. He further argued that the affidavits relied upon by respondent No. 1 being the affidavits of the parents of the appellant were not genuine documents. He vehemently argued that the appellant had not resorted to infidelity and she did not cause any physical or mental torture to her husband and/or his family.

7. The arguments advanced by learned Counsel for the appellant are not convincing because a perusal of the judgment of the Trial Court shows that the evidence was properly scrutinized and appreciated and each aspect was dealt with rightly. Simply by saying that the affidavits Ex. P5 and Ex. P6 of the father and mother of the appellant were not genuine documents, the documents would not become inadmissible or unbelievable.

8. Respondent No. 1 examined Mr. Rajesh Saini, Advocate, as PW5 and Mr. Shashi Kant Dutta, Advocate as PW6. PW5 Mr, Rajesh Saini, Advocate, deposed after seeing the original affidavits Ex. P5 and Ex. P6 that those were sworn by Dharam Singh son of Rati Ram and Kamlesh wife of Dharam Singh respectively and that he had identified the deponents as they were known to him and they had signed/put thumb impressions in his presence. PW6 Mr. Shashi Kant Dutta, Advocate, who was Notary Public at the relevant time, stated that he had attested the affidavits of Dharam Singh and Kamlesh and further that before attestation he had read over and explained the documents to the deponents. He also stated that Mr. Rajesh Saini, Advocate, had identified the deponents in his presence.

9. Respondent No. 1 himself appeared as PW3 and corroborated the allegations made by him in his petition. There is nothing in his cross-examination regarding the relationship of appellant with Sahab Singh. Interestingly enough, it was not even suggested to him that the appellant had no relation with Sahab Singh and that the allegation of adultery made against her was false. It was not put to him that the appellant was not living with said Sahab Singh – respondent No. 2. There is no cross-examination on the other aspects relating to cruelty and desertion deposed by the husband. It was only put to him as to whether he had seen Sahab Singh and the appellant together to which he replied in the negative. It was suggested to him that he had not tried to commit suicide and that an application had been moved against him to the police in that regard in order to involve the appellant in a false case under Section 306 of the Indian Penal Code. Both the suggestions were denied by him. It was also put to him that the police favoured him because he was an employee of the Boarder Security Force, which was also denied. He was asked about the affidavits sworn by the parents of the appellant, to which he replied that it was correct that such affidavits were sworn. But all the same, it was suggested to him that thumb impressions of the parents of the appellants were taken by him on blank papers to which he replied that it was incorrect that he did any such thing and added that they had sworn the affidavits out of their own will. Thus, from the cross-examination, it is clear that all the allegations made by respondent No. 1 regarding cruelty, desertion and adultery are admitted by the appellant because no cross-examination was conducted on those points.

10. Learned Counsel for the appellant argued that it has come in the cross-examination of respondent No. 1 that he never saw the appellant and respondent No. 2 Sahab Singh together and, therefore, it was not proved that they had any such relationship, as alleged. This argument is quite far fetched because the Court below rightly held that in most of such cases there is no direct evidence regarding adultery and it can be established by circumstantial evidence. It is not always possible that the witnesses would see one of the spouses with the paramour in objectionable posture or position so as to prove the charge of adultery.

11. In the instant case, we have the statement of Kiran Bala (PW2) in whose house the appellant remained as a tenant from August, 2009 to January, 2010 and according to the said witness, Sahab Singh used to come to that house to meet the appellant and the witness had also heard the appellant talking on her mobile phone with Sahab Singh-respondent No. 2. She had enquired from the appellant about her relationship with Sahab Singh to which the former had replied that he was her childhood friend and she had love affair with him. The witness asked the appellant as to why she did not marry Sahab Singh to which she replied that her parents did not agree for the marriage and forcibly got her married with respondent No. 1 Jasvinder Singh. Nothing was put to the witness in the cross-examination that Sahab Singh had not been visiting the house or that the appellant had not told her about the relationship with said Sahab Singh. The account ofthe witness to that extent also stood admitted.

12. Dharam Singh, father of the appellant, though tried to say that the affidavits which respondent No. 1 alleged to have been sworn by this witness and his wife Kamlesh were false, yet he could not give any reason or circumstance as to how his signatures and thumb impressions of his wife came to exist on the documents, which were duly proved to have been executed by him and Kamlesh, by PW5 Mr. Rajesh Saini, Advocate, and PW6 Mr. Shashi Kant Dutta, Advocate. He tried to support his daughter but he could not withstand the cross-examination. He admitted that the appellant had filed a civil suit against him for claiming property and that she had also involved her husband and his family in a criminal case. He said that he knew Sahab Singh son of Rameshwar, resident of Khanpur, but he did not have any concern with him. In his affidavit Ex. RW2/A (his examination-in-chief) he deposed that his daughter did not know any person by the name of Sahab Singh. He, however, admitted that he had sworn affidavit Ex. P9 vide which he had disowned his daughter and had also advertised about it in the newspaper, the cutting of which was Ex. P10.

13. The document Ex. P9 contains deposition of Dharam Singh to the effect that he and his other family members were fed up with the conduct of his daughter Sikha, i.e. the appellant, and that she was not under his control. He had deprived her of his property and had disowned her and stated that anybody who had any financial dealing with the appellant would do at his/her own risk. It is, therefore, evident from the conduct of Dharam Singh, father of the appellant, that he knew about the misdeeds of his daughter and deposed the affidavits Ex. P5 and Ex. P9, but later on stood by the appellant being her father and tried to show that he had sworn the affidavit Ex. P9, but not Ex, P5. The signatures on Ex. P9 and Ex. P5 are identical and it is, therefore, obvious that he intentionally stated that the affidavit Ex. P5 was a fake document. He simply mentioned in his affidavit Ex. RW2/A, which was tendered as examination-in-chief, that the alleged affidavits etc. propounded by respondent No. 1 and other documents were all false, fake and forged and result of fraud, forgery and cheating. He did not make any specific averment regarding Ex. P5 having not been sworn by him and being a false or fake document. He could not explain as to how his signatures came to exist on the said documents. Making a general allegation that the affidavits and all other documents were fake, false and forged would not be sufficient to prove the falsity of the documents.

14. It may also be noted that Dharam Singh, father of the appellant, categorically stated that his daughter did not know Sahab Singh son of Rameshwar, resident of Khanpur, though he himself knew the man but had no relations with him. However, the appellant, in her cross-examination, said that she knew Sahab Singh son of Rameshwar, resident of Khanpur, for the last 14-15 years. The father and daughter were not thus sure as to what stand they wanted to take. The appellant also admitted her signatures on the statement Ex. P2 made before the police though she said that the police had not recorded any such statement and she also admitted her signatures on the Panchayati Faisla Ex. P4. In Ex. P4, she had stated that she was responsible for her conduct and she was the master of her own wish. She, however, stated that a compromise had taken place in the complaint she made before the police. In her statement Ex. P2, she stated that she was living separately with her children in a rented accommodation and she did not want to live in her matrimonial home. Appellant’s father Dharam Singh made a statement Ex. P3 in which he too stated that his daughter was living separately in a rented accommodation and that she was not in control of her husband and she did not listen to him and rather she did not listen to anybody and she will be responsible for her conduct.

15. Another aspect worth mentioning is that the appellant had filed a petition under Section 125, Cr.P.C. claiming maintenance for herself and her son. In that petition as well, the husband, i.e. respondent No. 1, mentioned about the adulterous life of the appellant and the Court came to the conclusion from the evidence led by the parties that it was the appellant who had wilfully deserted her husband and, therefore, she had no right to claim maintenance. Relief of interim maintenance was declined vide order Ex. P8. It is admitted by the learned Counsel for the appellant that the petition under Section 125, Cr.P.C. has been dismissed.

16. From the detailed discussion, it is clear that there is no infirmity in the order passed by the learned Additional District Judge, Kurukshetra, and there is no merit in the present appeal.

The appeal is dismissed.

Appeal dismissed.

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