Jayamol v. Manoj and Vikas Paswan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR WEDNESDAY, THE 7[TH] DAY OF DECEMBER 2022 / 16TH** **AGRAHAYANA, 1944** **MAT.APPEAL NO.739 OF 2022** **AGAINST THE JUDGMENT IN O.P.NO.399 OF 2020 OF FAMILY COURT, MALAPPURAM DATED 05.07.2022** ## **APPELLANT/1ST RESPONDENT:** **JAYAMOL, AGED 34 YEARS D/O.ODERAN AYYAPPAN, NAMBYARKUNNU HOUSE KUZHIMANNA AMSOM DESOM AND POST, KIZHISSERY - KUZHINJOLAM, KONDOTTY TALUK MALAPPURAM DISTRICT - 673638** **BY ADV. K.V.BHADRA KUMARI** ## **RESPONDENTS/PETITIONER & 2ND RESPONDENT:** - **1 MANOJ, AGED 41 YEARS** - **S/O.PARAMBAN NEELANDAN, CHAKKIKUZHIYIL HOUSE PALLIKKAL AMSOM DESOM POST, PALLIKKAL BAZAR KONDOTTY TALUK, MALAPPURAM DISTRICT - 673638** - **2 VIKAS PASWAN,** **22 YEARS, S/O.BOJINDRA PASWAN, KOYALAM POST, ANCHAL-THANA-KALYANPUR, WARD-13 KOILWAN, SAMASTHIPUR, BIHAR 847301.** **BY ADV.** ## **K.RAKESH** **THIS MATRIMONIAL APPEAL HAVING COME UP FOR FINAL HEARING ON 23.11.2022, THE COURT ON 07.12.2022 DELIVERED THE FOLLOWING:** 2 Mat Appeal No.739 of 2022 ## **J U D G M E N T** ## P.G.Ajithkumar, J. The 1[st] respondent in O.P No.399 of 2020 on the file of the Family Court, Malappuram is the appellant. The 1[st] respondent filed O.P.No.399 of 2020 for a decree of dissolution of marriage under Section 13(1)(i) and (ia) of the Hindu Marriage Act, 1955. That petition was allowed on 05.07.2022. The appellant assails the said judgment and decree in this appeal filed under Section 19(1) of the Family Courts Act, 1984. 2. The 1[st] respondent on behalf of whom a caveat was filed, had entered appearance. 3. Heard the learned counsel appearing for the appellant and also the learned counsel appearing for the 1[st] respondent. 4. Marriage of the appellant and the 1[st] respondent was solemnised on 06.02.2005. A girl child was born to them on 07.02.2007. Their life was happy and contending till 2015. But disharmony cropped up initially for the reason that the appellant began to desiring fashionable dresses and take a 3 Mat Appeal No.739 of 2022 deviated life pattern. She alleged to have become disinterested in the affairs of the 1[st] respondent and the child. She used to behave unruly. On 15.04.2020, the 1[st] respondent was away from home. During the night, wife of his brother who resides in an adjoining house, alerted him about finding somebody inside his house. He came back to find the 2[nd] respondent in the company of the appellant. They were in a compromising position. The next day she tried to commit suicide. The attempts of mediation in the matter initiated by the 1[st] respondent was not attended by the appellant. Alleging such facts, the 1[st] respondent filed O.P No.399 of 2020 seeking a decree of divorce. 5. The appellant filed a counter-statement denying all the allegations. The incident said to have occurred on 15.04.2020 is totally a false one. What actually happened was that the 1[st] respondent assaulted the appellant brutally following which she had to leave the matrimonial home. The next day, she, at her parental home, had attempted to commit suicide for the reasons that she could not tolerate the cruelty meted out by the 1[st] respondent and his brothers. 4 Mat Appeal No.739 of 2022 Every other allegation in the petition was categorically denied. It was further contended that the 1[st] respondent is suspicious and it was difficult for the appellant to live with him. 6. The Family Court tried O.P.No.399 2020 along with O.P No.397 of 2020 and M.C No.258 of 2020. O.P No.397 of 2020 was filed by the 1[st] respondent, seeking custody of the child and M.C.No.285 of 2022 was filed by the appellant claiming maintenance for herself and the child. In the joint trial the 1[st] respondent was examined as PW1. The appellant was examined as RW2 and the employer of the 2[nd] respondent was examined as RW3. EXts.A1 to A8, B1 to B8 and X1 were marked. 7. The Family Court after considering the evidence and submissions on both sides, found that the cruelty and adultery alleged against the appellant were proved. Accordingly, the marriage between the appellant and the 1[st] respondent was dissolved with effect from the date of the impugned judgment. 8. The learned counsel appearing for the appellant would submit that the evidence let in by the 1[st] respondent 5 Mat Appeal No.739 of 2022 was totally insufficient to prove the allegation of adultery. Although it was alleged that the wife of Sri.Asokan, who is the brother of the 1[st] respondent has informed about the presence of the 2[nd] respondent inside the house together with the appellant, neither Sri.Asokan nor his wife was examined as a witness. The oral testimony of PW1 alone is totally insufficient to prove such a grave allegation. The only other evidence relied on is Exts.A5 to A8 photographs which do not help to prove an act of illicit relationship. The learned counsel would submit that the testimony of RW1 together with Exts.B4, B5 and X1 would prove that on 15.04.2020, the 2[nd] respondent was not in Kerala. However, the Family Court without appreciating that evidence in its proper perspective jumped to the conclusion that the allegation of adultery has been proved. It is the submission of the learned counsel for the appellant that if the allegation of adultery is not established, the allegations regarding cruelty cannot have existence. Accordingly, it is contended that the impugned judgment is unsustainable either in law or on facts. 9. The learned counsel appearing for the 1[st] 6 Mat Appeal No.739 of 2022 respondent on the other hand would contend that when the 1[st] respondent, who is none other than the husband, deposed before the court that he saw the appellant and the 2[nd] respondent inside his house in such a situation, it cannot be disbelieved unless there is sufficient reason. The assertion of PW1 in that regard is sufficiently corroborated by Exts.A5 to A8 photographs. It is further pointed out that RW2, the appellant tried to distort the facts and that is evident from her oral testimony. She deposed that she attempted suicide at her parental house; whereas the evidence on record shows otherwise. As regards evidence of RW1 and Ext.X1, it is contended that when the question is whether the 2[nd] respondent reached the house of the appellant on 15.04.2020, that evidence is insufficient to prove his absence. It may be true that the 2[nd] respondent failed to report for duty in the establishment of RW1 since 20.02.2020. It may also be true that using Ext.B4 train ticket he might have travelled on 20.02.2020 to his native place in Bihar. If the evidence let in by the 1[st] respondent which is direct can be believed, the said circumstances would not have the effect of discrediting his 7 Mat Appeal No.739 of 2022 evidence. 10. In **Dr.N.G.Dastane v. Mrs.S.Dastane [AIR 1975** **SC 1534],** the three-Judge Bench of the Apex Court considered what standard of proof has to be insisted upon while appreciating the evidence in support of a plea for dissolution of marriage or a judicial separation. It was held,- “25. Proof beyond reasonable doubt is proof by a higher standard which generally governs criminal trials or trials involving inquiry into issues of a quasi-criminal nature. A criminal trial involves the liberty of the subject which may not be taken away on a mere preponderance of probabilities. If the probabilities are so nicely balanced that a reasonable, not a vacillating, mind cannot find where the preponderance lies, a doubt arises regarding the existence of the fact to be proved and the benefit of such reasonable doubt goes to the accused. It is wrong to import such considerations in trials of a purely civil nature.” 11. The Apex Court proceeded to hold that under Section 10 of the Hindu Marriage Act, which enumerated the grounds on which a petition for judicial separation may be presented or the provisions of Section 23 which governs the jurisdiction of the court to pass a decree for relief under any of the provisions of the Act does not require that the 8 Mat Appeal No.739 of 2022 petitioner must prove his case beyond a reasonable doubt. Section 23 confers on the court the power to pass a decree if it is ‘satisfied’ on matters mentioned in any of the clauses (a) to (e) of that section. The proceedings under the Act are essentially of civil nature and therefore the word 'satisfied' used in Section 23 must be understood as “satisfied on a preponderance of probabilities” and not “satisfied beyond a reasonable doubt”. The said principle is equally applicable to the proceedings under Section 13 of the Hindu Marriage Act. The Apex Court also explained when can it be said that the fact is proved by preponderance of probabilities as follows:- “The belief regarding the existence of a fact may thus be founded on a balance of probabilities. A prudent man faced with conflicting probabilities concerning a factsituation will act on the supposition that the fact exists, if on weighing the various probabilities he links that the preponderance is in favour of the existence of the particular fact. As a prudent man, so the court applies this test for finding whether a fact in issue can be said to be proved. The first step in this process is to fix the probabilities, the second to weigh them, though the two may often intermingle. The impossible is weeded out at the first stage, the improbable at the second.” 12. In **X v. Y, 2021 (6) KLT 30** this Court held as to 9 Mat Appeal No.739 of 2022 ## what shall be the mode of proof when adultery is alleged as a ground for divorce. “In a case where divorce is sought on the ground of adultery, the proof required to establish adultery need not necessarily be proof beyond a shadow of doubt. Proof by preponderance of probabilities would be sufficient. Direct proof of adultery can rarely be given. The circumstantial evidence is all that can normally be expected in proof of the charge of adultery. However, the circumstances must be such as lead to it by fair inference as a necessary conclusion. The allegation must be reasonably proved, there must be high degree of probability.” 13. In the light of the law laid down by the Apex Court, and also by this Court the consideration shall be whether on a comparative analysis of the evidence let in by the respective parties the allegation of adultery and cruelty has been established. Occurring of a few inconsistencies in the evidence by itself need not necessarily result in discarding of the whole evidence altogether unless such inconsistencies make the evidence totally improbable and unreliable. 14. PW1 deposed that he went to the house of his uncle on 15.04.2020 knowing that he fell ill. Following an alert 10 Mat Appeal No.739 of 2022 from the wife of his brother, he came back at midnight and when he together with his brother Sri. Asokan entered the house through the backside door, he saw the appellant and the 2[nd] accused together in the hall. Going by the evidence tendered by both sides, it can be seen that despite having some sort of disharmony, the marital life of the appellant and the 1[st] respondent was going on peacefully. They were living together with their minor child. In such a situation, the 1[st] respondent came forward with the allegation of infidelity on the part of his wife claiming that he had witnessed such an incident on 15.04.2020. No prudent husband ordinarily would like to attribute unchastity against his wife unless there occurred such an incident. Of course, if there is some ulterior motive one may hurl such an allegation falsely. By raising such an allegation, the husband is putting an end to his marital life which is otherwise peaceful. The evidence of PW1 can be approached only from such a perspective. 15. When the oral testimony of PW1 gets assurance from the photographs particularly, Exts.A6 and A7 in which the appellant and the 2[nd] respondent have appeared in such a 11 Mat Appeal No.739 of 2022 close proximity, it can only be held that the Family Court rightly had believed PW1. The evidence tendered by the appellant has been duly considered by the Family Court and concluded that the same is insufficient to discard proof regarding the incident on 15.04.2020. Therefore we find no reason to interfere with the findings of the Family Court that the appellant had an adulterous relationship with the 2[nd] respondent. 16. The evidence that came on record particularly, the admissions of RW2 would establish that she attributed allegations of illicit relationships against the 1[st] respondent and members of his family are false. She herself admitted during cross-examination that such allegations are incorrect. The Family Court placing reliance on the principle laid down in **Radhamony and others v. Surendran and others [2019 (2) KLT 218]** and **Xxxx and others v. Xxxx and others [2021 (5) KHC 60]** concluded that the adulterous way of life of the appellant and her making false imputations amounted to mental cruelty sufficient to grant a decree of divorce. We find no reason to interfere with that finding. The 12 Mat Appeal No.739 of 2022 aforementioned acts of the appellant amounted to mental cruelty. Therefore 1[st] respondent is entitled to get a decree of divorce on the grounds of adultery and cruelty. In the circumstances, we find no reason to interfere with the decree of the Family court granting divorce. The appeal is accordingly dismissed. No costs. **Sd/ANIL K.NARENDRAN JUDGE** **Sd/-** **P.G. AJITHKUMAR JUDGE** PV