Radhika v. Thulaseedas

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE AMIT RAWAL** ## **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA TUESDAY, THE 21[ST] DAY OF NOVEMBER 2023 / 30TH KARTHIKA,** ## **1945** **MAT.APPEAL NO. 712 OF 2023** **AGAINST THE ORDER DATED 30/11/2018 IN O.P.NO.1898/2015 ON THE FILE OF THE FAMILY COURT, THRISSUR** **APPELLANT/RESPONDENT:** RADHIKA, AGED 44 YEARS, D/O BALAKRISHNAN, KONDOTH HOUSE, VARADIYAM DESOM, AVANOOR VILLAGE, THRISSUR TALUK, THRISSUR DISTRICT, PIN – 680 541. BY ADVS. RAJIT RAJITHA NAIR M. DHILSHA HABEEB ## **RESPONDENT/PETITIONER:** THULASEEDAS, AGED 49 YEARS, S/O GOPALAKRISHNAN, KRISHNALEELA NIVAS, KOTTAPADI DESOM, POOKKOD VILLAGE, CHAVAKKAD TALUK , THRISSUR, PIN – 680 505. **THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 15.11.2023, THE COURT ON 21.11.2023 DELIVERED THE FOLLOWING:** **Mat Appeal No.712 of 2023** 2 ## **AMIT RAWAL & C.S.SUDHA, JJ.** ## **------------------------------------------------------Mat Appeal No.712 of 2023** **---------------------------------------------------Dated this the 21[st] day of November, 2023** ## **J U D G M E N T** ## **C.S.Sudha, J.** This appeal under Section 19(1) of the Family Court Act, 1984 has been filed by the petitioner/wife against the order dated 30/11/2018 in O.P.No.1898/2015 on the file of the Family Court, Thrissur. The respondent herein/husband is the respondent in the O.P. The parties in this appeal will be referred to as described in the O.P. 2. O.P.No.1898/2015 was filed by the petitioner/wife alleging thus:The marriage of the petitioner and the respondent was solemnized on 11/09/1999 as per the rites and customs of the community to which they belong. A boy child has been born in the wedlock. After the marriage, the respondent and his family harassed the petitioner both physically and mentally. Hence fed up with the acts of cruelty of the respondent and his **Mat Appeal No.712 of 2023** 3 family, the petitioner was forced to leave her matrimonial home. The respondent has no intention of continuing the marital relationship. Hence the petitioner sought divorce on the ground of cruelty. 3. The respondent/husband filed counter denying the allegations of the petitioner. However, he moved a counter claim for divorce on the ground that the petitioner during the subsistence of the marriage, has married the second respondent in the counter claim and hence voluntarily had sexual intercourse with another man during the subsistence of the marriage. Therefore, on the said ground, the respondent/husband sought divorce. 4. On completion of the pleadings, the parties went to trial. PWs.1 to 3 were examined and Exts. A1 to A16 were marked on the side of the petitioner. Rws.1 to 4 were examined and Exts. B1 to B10 and Exts. X1 to X3 series were marked on the side of the respondent. The trial court on a consideration of the oral and documentary evidence and after hearing both sides, dismissed the claim for divorce filed by the petitioner/wife. However, the counter claim filed by the respondent has been allowed and a decree of divorce granted. Aggrieved, the petitioner/wife has come up in appeal. **Mat Appeal No.712 of 2023** 4 5. The only point that arises for consideration in the appeal is whether there is any infirmity in the findings of the trial court calling for an interference by this Court. 6. Heard both sides. 7. The petitioner had claimed divorce on the ground of cruelty. Her claim was dismissed as she was unable to substantiate her case of cruelty. We are unable to find any infirmity or perversity in the finding and conclusion of the trial court that the petitioner/wife had been unable to substantiate her claim for divorce on the ground of cruelty. The main challenge of the petitioner/wife in this appeal is regarding the finding of the trial court that she has entered into a second marriage with the second respondent in the counter claim and finding so granted divorce under Section 13(1)(i) of the Hindu Marriage Act, 1955. According to the respondent/husband the petitioner married the second respondent in the counter claim during the subsistence of his marriage with the petitioner. To establish the same, he relies on the testimony of RW3 as well as Exts. X1 to X3. Though RW2 was also examined to substantiate the said contention of the respondent, the trial court disbelieved his testimony. Though RW2 was disbelieved there was other evidence to substantiate the case of the **Mat Appeal No.712 of 2023** 5 respondent. The trial court noticed that the petitioner/wife was careful enough not to produce any original documents which contained her signature to prevent comparison of her signature with the signature found in Ext.X2 marriage register. Along with the present O.P., O.P.No.13/2017 was also filed by the petitioner/wife for getting a declaration, that Ext.A1 document no.1878/2013 executed by her in favour of the respondent was executed under vitiating circumstances and therefore to cancel the same. Though the prayer was to cancel the document, quite curiously she never produced the original of the said document which would certainly contained her signature. The trial court noticed that though the petitioner is an educated lady she had affixed her thumb impression in her deposition. It was submitted during the course of arguments that it was because the petitioner's thumb had been injured, she was unable to affix her signature and so had affixed her thumb impression in her deposition. This fact is not seen recorded by the court in the impugned judgment. The petitioner was examined through an advocate commissioner. On going through her deposition, we find that the advocate commissioner has recorded that the petitioner had an injury on her thumb and hence she was unable to affix her signature. However, she has no explanation for not producing the original of **Mat Appeal No.712 of 2023** 6 Ext.A1 though her plea was for setting aside the document. 8. The respondent relies on Exts.X1 to X3 documents. To prove the second marriage of the petitioner summons was issued to the Managing Trustee of the Thiruvanikavu Bagavathy Temple to produce the documents pertaining to the marriage solemnized on 16/06/2016 between the petitioner and the second respondent in the counter claim. Ext.X2 is the marriage register maintained in the temple. Ext.X2 revealed that on 16.06.2016 the marriage had in fact been solemnized. It was noticed by the trial court that the details of the marriage had been entered in one of the pages of Ext.X2, thereafter, the same was scored off. Ext.X3 is the register relating to the receipt issued by the temple reflecting collection of fees for conducting the marriage in the temple. The receipt is dated 16/06/2016. The trial court also noticed that both the petitioner as well as the second respondent in the counter claim had signed in the aforesaid register. The court compared the admitted signatures of the petitioner with the alleged signature of the petitioner seen in Ext.X2 register. It was found that they were quite similar and hence the trial court concluded that it was in fact the signature of the petitioner seen in Ext.X2 register. **Mat Appeal No.712 of 2023** 7 9. In the appeal memorandum, the petitioner contends that the signature seen in Ext.X2 register produced by the respondent is not her signature and that no steps had been taken to ascertain the same by sending it to a handwriting expert. On the other hand, the trial court had relied on presumptions and surmises to decree the case in favour of the respondent. If the petitioner had a case that the signature seen in Ext.X2 register was not her signature, then she ought to have taken steps to send the same for examination by an expert, which course has not been adopted by the petitioner. Therefore, the trial court was right in comparing the signatures, which the Court was empowered to do and arrive at a conclusion. 10. Further, it was submitted that the petitioner does not have any objection in a decree of divorce being granted in favour of the respondent. But the finding of the trial court that the petitioner had in fact married the second respondent in the counter claim during the subsistence of her marriage with the respondent/husband would be used by the latter in the criminal trial initiated for the offence of bigamy under Section 494 IPC. We cannot agree to this argument in the light of the following decisions. The Constitution Bench judgment in **Iqbal Singh Marwah v. Meenakshi Marwah, (2005) 4 SCC 370** held that there is neither any statutory **Mat Appeal No.712 of 2023** 8 provision nor any legal principle that the findings recorded in one proceeding may be treated as final or binding in the other, as both the cases have to be decided on the basis of the evidence adduced therein. The court dealing with the contention that conflict of findings between the civil and criminal courts must be avoided held that, it is necessary to bear in mind that the standard of proof required in the two proceedings are entirely different. Civil cases are decided on the basis of preponderance of evidence while in a criminal case the entire burden lies on the prosecution and proof beyond reasonable doubt has to be given. There is neither any statutory provision nor any legal principle that the findings recorded in one proceeding may be treated as final or binding in the other, as both the cases have to be decided on the basis of the evidence adduced therein.(See also **Satish Chander Ahuja v. Sneha Ahuja, 2020 (6) KLT 208** ). 10.1. In **Kishan Singh v. Gurpal Singh, (2010) 8 SCC 775** the Apex Court after noticing several earlier judgments, concluded that finding of fact recorded by a civil court do not have any bearing so far as a criminal case is concerned and vice versa. It has been held that the law on the issue stands crystallised to the effect that the findings of fact recorded by the civil court do not have any bearing so far as the criminal case is concerned **Mat Appeal No.712 of 2023** 9 and vice versa. Standard of proof is different in civil and criminal cases. In civil cases it is preponderance of probabilities while in criminal cases it is proof beyond reasonable doubt. There is neither any statutory nor any legal principle that findings recorded by the court either in civil or criminal proceedings shall be binding between the same parties while dealing with the same subject-matter and both the cases have to be decided on the basis of the evidence adduced therein. We find no infirmity in the impugned judgment calling for an interference by this Court. In the result the appeal is dismissed. Interlocutory applications, if any pending, shall stand closed. **Sd/-** **AMIT RAWAL JUDGE** **Sd/-** **C.S.SUDHA JUDGE** ak