P. V. Dasan v. Sobha

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **WEDNESDAY, THE 31ST DAY OF MAY 2017/10TH JYAISHTA, 1939** **Mat.Appeal.No. 118 of 2007 ( ) ------------------------------OP 138/2003 of FAMILY COURT, KANNUR** **APPELLANT(S)/APPELLANT: ----------------------** **P.V.DASAN, S/O.LATE GOVINDAN, AGED 52 YEARS, RESIDING AT POOVANTAVIDA HOUSE, NEDUMBRAM AMSOM DESOM, P.O.CHOKLI, THALASSERY TALUK, KANNUR DISTRICT.** ## **BY ADV. SRI.R.SURENDRAN** **RESPONDENT(S): --------------** **1.P.SOBHA, D/O.KANARAN, AGED 37 YEARS, RESIDING AT PUNATHIL HOUSE, OLAVILAM AMSOM, PERINGADI DESOM, P.O.PERINGADI, THALASSERY TALUK, KANNUR DISTRICT.** **2.ASHOKAN ALIAS BABU, S/O.LATE C.K.BALAN, AGED 42 YEARS, RESIDING AT CHATHOMKANDY HOUSE, NEDUMBRAM AMSOM DESOM, P.O.CHOKLI, THALASSERY TALUK, KANNUR DISTRICT.** **R1 BY ADV. SRI.P.NARAYANAN** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 22.03.2017, THE COURT ON 31.05.2017 DELIVERED THE FOLLOWING:** **EL** ## **A.M. SHAFFIQUE & K.RAMAKRISHNAN, JJ.** =========================== Mat.Appeal No. 118 of 2007 ================== Dated this, the 31[st] day of May, 2017 ## **J U D G M E N T** ## _**Shaffique, J.**_ This appeal is filed by the petitioner in OP No.138/2003 of the Family Court, Kannur by which petition for divorce under the Hindu Marriage Act was dismissed by the Family Court. 2. Parties are referred to as shown in the original petition. The brief facts arising in the case are as under:- Petitioner married the 1[st] respondent as per Hindu religious custom and rites on 8/10/1986. Two children were born in their wedlock. Petitioner was employed in Saudi Arabia till 25/11/2001. Normally he used to come for leave for two months every year. During November 2001, he got secret information that his wife was having illegal relationship with the 2[nd] respondent. He came to India on 25/11/2001. He noticed a change in the character of the 1[st] respondent and she was getting frequent telephone calls Mat.Appeal No.118/07 -:2:- and was engaged in conversation for a long time. When the petitioner attempted to receive the telephone calls, it got disconnected from the other end. 1[st] respondent also did not give a convincing answer. This caused suspicion in his mind and he taped the telephone conversation by using a recorder. The telephone conversation so recorded revealed that there was illicit sexual intercourse between respondents 1 and 2 and the 1[st] respondent was living in adultery. Further, she was not willing to have any sexual relationship with the petitioner and she was illtreating the children. He further contended that on 29/11/2002, his sister Mathu saw the 1[st] and 2[nd] respondents by the side of the kitchen. On seeing the petitioner's sister, the 2[nd] respondent ran away. Petitioner knew about it when he came back on 1/2/2002. On 2/2/2002, petitioner took her to her parental house where she is living till this date but the minor children are residing with him. Therefore, alleging adultery and mental cruelty against the 1[st] respondent, the original petition was filed. 3. The 1[st] respondent filed counter statement and Mat.Appeal No.118/07 -:3:- additional counter statement. She denied the allegations. According to her, petitioner's sister had some ill will against her and she used to abuse her without any reason. She along with the petitioner's nephew were harassing the respondent. When she resisted such attempts, relatives of the petitioner started conspiring against the respondent as they feared that they would loose the financial assistance from the petitioner and therefore an evil method was adopted to destroy the family life of the respondent. It is at their instance that the above proceedings had been initiated by the petitioner. It is submitted that the petitioner was misled to a great length alleging that the respondent was a woman of loose morals. When a registered lawyer's notice was issued, respondent sent a reply denying the allegations. In the lawyer's notice there was no allegation against the 2[nd] respondent. It is further alleged that 2[nd] respondent is a paid employee of the petitioner. The allegations are demotivated and malafides. She also denied other allegations against her. In regard to the incident on 29/11/2002, she denied the said fact Mat.Appeal No.118/07 -:4:- and it was stated that it was only a concocted story. She further contended that as demanded by the petitioner through telephone calls made to her neighbor Chathoth Ummerkutty, she reached the house of her uncle on 16/2/2002. Petitioner tendered his apology and expressed his desire to join the company of the respondent. He also gave her some amount for buying clothes and to come back very soon. Again, petitioner met the respondent at her uncle's house on 26/3/2002 and they spend some time together. On 30/3/2002 also, they met at the very same house and had sex. Later, on 19/4/2002, 28/4/2002 and 9/5/2002 also they met at the very same place. It is therefore contended that the relationship between the parties is not strained and the respondent is ready and willing to join the company of the petitioner to lead a happy married life. 4. Before the Family Court, 3 witnesses were examined on the side of the petitioner as AW's 1 to 3 and Exts.A1 to A6 were marked. Respondent was examined as RW1 and Exts.C1 to C3 were marked as Court exhibits. The Family Court observed Mat.Appeal No.118/07 -:5:- that petitioner had made arrangements to get the telephone calls of the 1[st] respondent secretly recorded. The Family Court found that in Ext.A2 notice, there was no mention about the 2[nd] respondent and the incident reported on 29/1/2002 is not witnessed by the petitioner. So his information is only hearsay and there is no explanation for not mentioning anything about the name of Mathu, his sister in the lawyer's notice. Further, Mathu has not seen the respondents performing any sex. She had only seen them by the side of kitchen and saw the 2[nd] respondent running away from the spot and the dress of the 1[st] respondent were found in a disordered state. According to the Family Court, AW1 the petitioner could not give a proper answer to various questions and he was fumbling in his evidence. AW3 is Mathu who also has not seen respondents performing any sexual activity whereas she had seen 1[st] and 2[nd] respondent standing nearby, and on seeing her, 2[nd] respondent had fled from the spot. Family Court observed that AW3 was only assuming about the alleged connection between respondents. It was further found that AW3 Mat.Appeal No.118/07 -:6:- has no explanation as to why she had gone by the side of kitchen during the said time. It was therefore found that the evidence in the case was lacking to arrive at a conclusion that the 1[st] respondent was leading an adulterous life. AW2 is the son of AW1 who had given evidence based on the information given by his father. Family Court observed that there is every likelihood that he was tutored. AW2 has given evidence stating that he received letters from the 2[nd] respondent intended for his mother and only on one occasion he could not hand it over to his mother. Ext.A4 is the letter which he did not hand over and he had kept it in his possession. Family Court observed that there is nothing to show that Ext.A4 was written in the handwriting of the 2[nd] respondent. Further nothing has been mentioned regarding Ext.A2 lawyer notice and therefore the Family Court brushed aside the said evidence also. Coming to the tape recorded version, the audio cassette was produced as Ext.A5 and Ext.A6 is the telephone two way recorder. The report of the Advocate Commissioner is Ext.C1 and the audio cassette recorded in the presence of the Advocate Mat.Appeal No.118/07 -:7:- Commissioner is Ext.C2. Ext.C3 is the examination report from Central Forensic Science Lab. CW1 is examined as a court witness who is the Advocate Commissioner. The Family Court observed that the expert had opined that the admitted speech of the 1[st] respondent recorded through the means of an Advocate Commissioner resembled with the sound in the tapes produced by the petitioner before Court. However, the Family Court did not accept the same since it was found that nowhere in the report it is mentioned that the speech recorded by the Advocate Commissioner resembled with the voice of a particular person in Exts.A5 and A6 tapes. It is observed that there are sounds of several persons other than the 1[st] respondent in Exts.A5 and A6 and therefore it is not safe to rely upon the tapes recorded by the petitioner and produced before Court to come to a conclusion that there was adultery between respondents 1 and 2. Further it was observed that an incident speaking about adultery could not be traced out when Exts.A5 and A6 were played before Court. On an overall consideration of the factual aspects involved in the matter, Mat.Appeal No.118/07 -:8:- it was found that there is no evidence to prove the aforesaid fact of adultery and the documents relied upon were not sufficient to arrive at such a conclusion. 5. Learned counsel for the appellant however contended that when the entire evidence as a whole clearly indicates that the 1[st] respondent had voluntary sexual intercourse with another person without the consent of the petitioner, a case of divorce is proved. The Family Court however had sought for proof beyond reasonable doubt, whereas the appreciation of evidence ought to have been made on a preponderance of probabilities. It is therefore contended that there is sufficient evidence available to prove the aforesaid fact, which has been completely ignored by the Family Court. Learned counsel for the appellant also placed reliance on the judgment of Apex Court in _**R.M.Malkani v. State of Maharashtra**_ [(1973 1 SCC 471]. That was a case in which Apex Court had occasion to consider the applicability of tape recorded conversation. The Apex Court held that tape recorded conversation is admissible in evidence but before admitting the Mat.Appeal No.118/07 -:9:- same in evidence, it has to be ascertained whether it is genuine and free from tampering or mutilation. In the said case, Apex Court was considering the admissibility of a tape recorded conversation obtained by a police officer with the consent of the receiver of the telephone call. There cannot be any doubt regarding the proposition as laid down by the Apex Court in the aforesaid judgment. The question to be considered is whether a case of adultery has been proved or not. 6. AW1 is the petitioner. In his affidavit in lieu of chief examination, he has stated of having received certain information regarding the illegal relationship between the 1[st] respondent and the 2[nd] respondent. He also refers to the telephone calls received by her and her conversation for a long time. He submits that he secretly taped the telephone call which revealed that she was engaged in illicit sexual intercourse with the 2[nd] respondent Another incident pointed out is with reference to what happened on 29/1/2002, witnessed by his sister. Linking both these incidents, the petitioner deposes that she was leading an Mat.Appeal No.118/07 -:10:- adulterous life on account of which he has suffered great mental agony. According to him, it amounts to mental cruelty as well. In cross examination, he admits that he had not seen any relationship between respondents 1 and 2 directly and he had only hearsay information. According to him, his sister had seen the incident and he got information from her. He further deposes that when his sister had seen them, the 2[nd] respondent was lying on the ground and they were having sexual relationship. He brought Ext.A6 recorder from Gulf. He brought the equipment in order to record the conversation between respondents 1 and 2. All the telephone calls will be recorded in the equipment. The cassette was inserted in Ext.A6 on 20/1/2002 and it was taken on 1/2/2002. Suggestion was that Ext.A5 was deliberately created for the purpose of the case, which he denied. AW2 is the son of AW1 and the 1[st] respondent. In his chief examination, he submits that the 2[nd] respondent Asokan used to come to their house for talking to his mother. At that time there won't be any other person in the house. His mother, father's sister and he himself were residing in Mat.Appeal No.118/07 -:11:- the building. AW2 and his brother are studying in school. Their father's sister used to go for daily work and thereafter mother alone will be at the residence. He has seen Asokan twice. He had seen his mother and Asokan in the bed. On another occasion, he had seen them sitting together. Mother used to receive several telephone calls and when he takes the phone, the phone will be disconnected from the other end. He further deposes that Asokan had given cover to him to be handed over to his mother. Mother also had given cover to be handed over to Asokan. One cover was not delivered to him. He produced Ext.A4 which according to him is written by his mother. In cross examination, he says that he was given cover 10 to 30 times and he had not read the same. He had informed the matter to his father after mother left their home. He further deposed that in his presence, the father and mother did not quarrel. He further deposed that he does not know who wrote Ext.A4 and it was given a day before she left. At that time he was coming from the school. He further deposes that he has seen mother and Asokan together after his father had come Mat.Appeal No.118/07 -:12:- from Gulf. AW3 is the petitioner's sister. According to her, Asokan alias Babu used to come to their residence. She refers to the incident on 29/1/2002 on which date AW1 had gone to Kochi. She saw respondents 1 and 2 standing nearby outside their residence. When she saw them, Asokan ran away. 1[st] respondent's dress was in a strangled position. When she questioned her, 1[st] respondent ran away to her room. In cross examination, she stuck to her stand. She also deposed that at the time when she saw 2[nd] respondent on the said day, he was lying in the courtyard. The respondent in her evidence had denied the aforesaid allegations. The Advocate Commissioner was examined as CW1. She has taken the sound recording of respondent's voice in the presence of the concerned lawyers in a studio. According to her, the cassette was very clear. 7. A consideration of the evidence adduced in the case apparently gives an indication that the 1[st] respondent was having some relationship with a person by name Asokan. But there is no evidence to arrive at a conclusion that she was living an Mat.Appeal No.118/07 -:13:- adulterous life. First of all, there is no eye witness to any of the alleged incidents. Petitioner had recorded the telephone conversation based on information received from his relatives that she was having some illicit connection with some person. The other evidence adduced is with reference to the incident that happened on 29/1/2002 wherein also there is no direct evidence to indicate that there was a sexual relationship between the respondents. Therefore, the only factor to be considered is whether the telephonic conversation of the respondents which is recorded and proved in the case would be enough to prove the so called alleged adultery. The Family Court observed that the statement so recorded does not indicate that 1[st] respondent had any sexual relationship with another person. If so, adultery has not been proved in the case, and no decree can be granted on that basis. 8. The next question to be considered is whether the aforesaid act of the 1[st] respondent amounts to cruelty. Apparently, in the petition, petitioner submits that he had to Mat.Appeal No.118/07 -:14:- suffer severe mental agony on account of the facts aforesaid, which clearly amounts to cruelty. Cruelty is also taken as a ground for divorce. The evidence discloses that the petitioner was in Gulf for quite a long time and he received certain information that his wife is having relationship with another person. The fact that she was speaking to a stranger through telephone for quite some time is rather proved. There is no explanation for the same. Though in a case where adultery is not proved, the wife having a relationship with another person can create a situation of mental cruelty to the spouse. The incidents which have been narrated by AW2, son of the petitioner indicates that there had been correspondence between respondents 1 and 2 and one such letter is produced as Ext.A4. The respondent denies the entire aspect of the matter. But the telephone conversation reveals that she was talking to a stranger for some time for which there is no valid explanation. Further, AW3 in her evidence had narrated an incident which happened on 29/1/2002 where she is an eye witness to the fact that respondents 1 and 2 were standing Mat.Appeal No.118/07 -:15:- outside their house at night and when they saw the witness, 2[nd] respondent ran away. When AW3 questioned the 1[st] respondent, she ran back to her room. These facts would show that there was some material to indicate an extra marital relationship between the 1[st] respondent and another person, though not adultery. When a husband in the nature of the petitioner who is employed in Gulf comes to know about such situations and when the son himself deposes the said fact and is informed to the father on a later occasion, definitely such incident would become agonizing and it amounts to mental cruelty from the side of the respondent. Taking into account the aforesaid factual situation arising in the matter, we are of the view that this is a fit case in which divorce could be granted on the ground of mental cruelty. The Family Court while considering the matter had only considered the question as to whether the marriage could be dissolved on the ground of adultery. The only observation made by the Family Court was that when the case of adultery stands disproved, case of cruelty also fails. This finding we do not think that we can Mat.Appeal No.118/07 -:16:- agree. Cruelty admittedly can be mental cruelty. The question is whether from the facts pleaded in the case and from the evidence adduced, a case of mental cruelty can be discerned. As already observed, petitioner received certain information about the illicit relationship between the 1[st] respondent with the 2[nd] respondent. Their telephone conversation indicates that she is speaking to someone else. An overall consideration of the evidence also indicates that she was having some relationship with another person by name Asokan. As already indicated, the very fact of knowledge about such incidents itself amounts to mental cruelty and is agonizing as far as her husband who is the breadwinner of the family is concerned. Under such circumstances, we are of the view that this is a fit case in which divorce can be granted on the ground of cruelty. Accordingly, this matrimonial appeal is allowed as under:(i) Judgment of the Family Court in OP No.138/2003 is set aside. Mat.Appeal No.118/07 -:17:- (ii) OP No.138/2003 is allowed and the marriage between the petitioner and the 1[st] respondent shall stand dissolved by a decree of divorce. Sd/- ## **A.M. SHAFFIQUE, JUDGE** Sd/- ## **K.RAMAKRISHNAN, JUDGE** Rp //TRUE COPY// PS TO JUDGE