Sunday, 15 January 2017

How to appreciate evidence if there is allegation that wife has committed adultery?

It is clear from the pleadings and evidence of the parties that
Sushil had no personal knowledge about the illicit relationship between
Sangeeta and Kamlesh and he had merely witnessed Sangeeta on the
two wheeler with Kamlesh in the month of May 2010 on 3­4 occasions.
Thus, Sushil does not have any personal knowledge about the illicit
relationship between Sangeeta and Kamlesh. Apart from not witnessing
any act of illicit relationship between Sangeeta and Kamlesh, Sushil has
also not heard any conversation between Sangeeta and Kamlesh that
would disclose about an illicit relationship. All that Sushil has witnessed
is that Sangeeta was sitting on the two wheeler of Kamlesh on few

occasions as a pillion rider.  Though Sushil had witnessed that Sangeeta
was roaming with Kamlesh on his two wheeler in May 2010 and he had
complained about the same to the father of Kamlesh and to the parents
of Sangeeta, it is surprising that he did not plead the said fact in the
written statement filed by him on 13/10/2011, in the proceedings filed
by Sangeeta for a decree of divorce on the ground of cruelty.  Nothing
is pleaded in the written statement filed by Sushil, in the proceedings
filed by Sangeeta, about the illicit relationship between Kamlesh and
Sangeeta. The entire pleadings in the petition filed by Sushil, narrate
the facts, which came to his knowledge from the information supplied
to him by Priyanka, the wife of the brother of Sangeeta and by Prashant
Bhoskar.     Priyanka   was   not   living   with   Jitendra,   the   brother   of
Sangeeta,   at   the   relevant   time   when   Sushil   allegedly   secured   the
information   from   her.  In   fact,  it   is  Sushil's   case   that   Priyanka   was
interested in telling him about the illicit relationship between Sangeeta
and Kamlesh and Khusboo, Priyanka's sister, informed him about the
eagerness of Priyanka to do so. According to Sushil, Priyanka had stated
the facts about the illicit relationship on affidavit and handed over the
affidavit to Sushil. It is surprising that the stamp paper for preparing the
affidavit is purchased in the name of Sushil.   It is also necessary to note
that the said affidavit was allegedly handed over by Priyanka to Sushil
only   during   the   time   when   she   was   separated   from   her   husband

Jitendra.   Priyanka started residing with Jitendra when evidence was
being tendered in this case.  The Family Court has, therefore,  held that
Priyanka could not have attended the Court to tender evidence as she
was happily residing with her husband Jitendra and a child was born
from   the   marital   relationship.   Though   Priyanka   did   not   enter   the
witness box and did not tender any oral evidence, the Family Court has
relied on the affidavit of Priyanka at Exh. 42.   The Family Court has
relied on the provisions of Section 14 of the Family Courts Act, 1984 for
accepting the affidavit of Priyanka as admissible evidence.  Sushil has
secured   the   knowledge   in   respect   of   illicit   relationship   only   from
Priyanka and Prashant Bhoskar.  One of them, namely, Priyanka is not
examined.  Prashant Bhoskar has entered the witness box, but from the
cross­examination of Prashant, it is clear that the relationship between
Prashant   and   Kamlesh   was   extremely   strained   when   he   allegedly
informed   Sushil   about   the   illicit   relationship   between   Kamlesh   and
Sangeeta and both of them had filed complaints against each other and
Prashant had also received a legal notice from Kalmesh for refund of
the amount of Rs.1,78,528/­ that was liable to be paid by him.  Sushil
has admitted in his cross­examination not once, but several times that
he had not witnessed anything that is pleaded by him in respect of the
illicit relationship between Sangeeta and Kamlesh. He has admitted that
all the facts concerning the illicit relationship are informed to him only

by Priyanka and Prashant. We find that the Hindu Marriage Petition is
filed  by Sushil  solely  on  the  basis  of  the  facts  heard  by him  from
Prashant and Priyanka.  Since Priyanka has not entered into the witness
box, in the case like the one in hand, where serious allegations in
respect of voluntary sexual intercourse with Kamlesh are made against
Sangeeta, we are not inclined to consider the affidavit of Priyanka at
Exh. 42 in the absence of her oral evidence.
20. The charge of extra marital relationship is a serious charge
that casts aspersions on the character of a spouse and hence, the charge
needs to be proved by such evidence that would lead to an irresistible
conclusion that the spouse had voluntary sexual intercourse with a
person of the opposite sex, other than his/her spouse. In the instant
case, the Family Court has relied only on the affidavit of Priyanka, the
evidence of Prashant Bhoskar, the evidence of Managers of Bhakt Niwas
and Durvankar Lodge though they have not stated anything in respect
of stay of Kamlesh and Sangeeta in one room and the evidence in the
form of CDRs.   We are not inclined to accept the affidavit of Priyanka
at Exh. 42 as admissible evidence.  The observation of the Family Court
that if Priyanka had not entered into the witness box and Sushil could
not secure her presence, Sangeeta should have secured her presence to
prove her innocence is clearly against the settled principles of law,

specially the principles relating to burden of proof. In our view, from
the commencement of the proceedings till the conclusion in this case,
the   burden   would   lie   only   on   Sushil   to   prove   that   Sangeeta   had
voluntary   sexual   intercourse   with   Kamlesh.   In   the   absence   of
examination   of   Priyanka,   the   entire   pleadings   in   regard   to   illicit
relationship   between   Kamlesh   and   Sangeeta   at   Yavatmal,   at
Trimbkeshwar   on   13/01/2011  and   in   the   house   of  Rekha   at   Prem
Nagar should fall to the ground.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
FAMILY COURT APPEAL  NO. 58    OF    2015
Sangeeta Sushil.

­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­
 CORAM : SMT. VASANTI    A    NAIK & 
        KUM. INDIRA JAIN,   JJ.
                DATED  : 29.08.2016
Citation: 2016(6) MHLJ 842

Since the issues involved in these family court appeals are
identical and since the parties to the appeals are the same, they are
heard together and are decided by this common judgment.  
2. Sangeeta, the appellant in Family Court Appeal No.58 of
2015   is   the   original   respondent   No.1   in   Hindu   Marriage   Petition
No.A­839   of   2012,   that   was   filed   by   her   husband   Sushil.   So   also,
Kamlesh, the appellant in Family Court Appeal No.67 of 2015 is the
respondent No.2 to Hindu Marriage Petition, bearing No.A­839 of 2012,
filed by Sushil for a decree of divorce against Sangeeta on the ground
that   Sangeeta   had   voluntary   sexual   intercourse   with   Kamlesh   and
hence, the marriage between Sushil and Sangeeta may be dissolved by a
decree of divorce under Section 13(1)(i) of the Hindu Marriage Act.
3. Few facts giving rise to these family court  appeals are
stated thus –
Sushil   and   Sangeeta   were   married   at   Nagpur   on
25/04/1999 according to Hindu rites and customs. A girl child named
Anushree and a boy named Gaurav were born from the said wedlock.
On 03/03/2010, Sangeeta was admitted to the Hospital of Dr.Gaikwad
for   consuming   poison   and   after   she   was   discharged   from   the   said

Hospital, she did not join the company of Sushil and went to reside in
the   house   of   her   parents.   Immediately   thereafter,   Sangeeta   filed   a
petition for a decree of divorce against Sushil, bearing Petition No.A­
260 of 2010 on 31/03/2010. A written statement was filed by Sushil in
the said petition on 13/12/2010. Along with the written statement, a
counter claim for a decree of restitution of conjugal rights was made by
Sushil.  During the pendency of Hindu Marriage Petition bearing No.A­
260 of 2010, Sushil filed an amendment application seeking permission
to file a counter claim for a decree of divorce on the ground that
Sangeeta had voluntary sexual intercourse with Kamlesh. The Family
Court did not permit the filing of the aforesaid counter claim in the
petition filed by Sangeeta for a decree of divorce, however, liberty was
granted to Sushil to file appropriate proceedings.  Sushil, then filed the
present  petition  bearing  Petition   No.A­839   of  2012  for  a  decree  of
divorce under Section 13(1)(i), (i­a) and (i­b) of the Act on the ground
that Sangeeta had deserted him, had treated him with cruelty and she
had voluntary sexual intercourse with Kamlesh. 
We are not concerned with the petition filed by Sangeeta
for a decree of divorce, as these family court appeals arise from the
judgment of the Family Court granting a decree of divorce in favour of
Sushil after recording a finding that Sangeeta had voluntary sexual
intercourse with Kamlesh and that she had treated Sushil with cruelty.

In the petition filed by Sushil, it was pleaded by Sushil that after the
marriage, Sushil and Sangeeta happily lived together for nine years.  It
is pleaded that in the year 2008, the cousin sister of Kamlesh, namely
Lata came to reside in the house of Kamlesh and frequently started
visiting the house of Sushil and Sangeeta. It is pleaded that Sangeeta
also started visiting the house of Kamlesh when Sushil went for his
duties. During the relevant time, Sushil was posted as a Head Constable
in Nagpur and Kamlesh was serving in Symbiosis Company as a Sales
Executive.   It   is   pleaded   that   after   Sangeeta   came   in   contact   with
Kamlesh, her behaviour and approach towards Sushil started changing
and Sangeeta started fighting with Sushil on trifle matters. It is pleaded
that the father of Sushil had told Sangeeta that it was not proper for
Kamlesh to visit the house of Sushil and Sangeeta frequently. It  is
pleaded that Shilpa, the daughter of the elder sister of Sangeeta by
name Rekha used to visit the house of Sangeeta and Sushil. It is pleaded
that Shilpa was in love with Dinesh, the brother of Kamlesh.   It is
pleaded   that   Sangeeta   and   Kamlesh   started   developing   an   illicit
relationship,   as   Sangeeta  was   greatly  influenced   by  Kamlesh.     It   is
pleaded that Sangeeta picked up quarrel with Sushil on 03/03/2010
and made a show that she had consumed poison, as a result of which
Sushil admitted her in the Hospital of Dr. Gaikwad. It is pleaded that
even  before  the  incident, dated 03/03/2010, Sangeeta  had stopped

cooperating with Sushil and had prevented him from sleeping near her.
It is pleaded that in the Hospital also, Sangeeta did not permit Sushil or
his   family   members   to   meet   her   and   only   Kamlesh   and   his   family
members could see her.  It is pleaded that after the discharge from the
Hospital,   Sangeeta   went   to   her   parental   home.   It   is   pleaded   that
Kamlesh   started   visiting   the   parental   home   of   Sangeeta,   after   she
started  residing   there.   It  is   pleaded   that   as   per   a   plan   hatched   by
Sangeeta   and   Kamlesh   at   Ujjain,   Sangeeta   filed   a   divorce   petition
against Sushil, on 31/03/2010.  It is pleaded that in the said petition
Sushil filed a written statement and made a counter claim for restitution
of conjugal rights.
It is pleaded that in October, 2011 Sushil came in contact
with Priyanka's sister Khushbu, who informed Sushil that Priyanka is
desperate to meet him and wishes to tell him some important facts
relating   to   the   relationship   between   Sangeeta   and   Kamlesh.   It   is
pleaded   that   Priyanka   being   the   wife   of   Jitendera,   the   brother   of
Sangeeta was in the know of things and she made certain startling
revelation. It is pleaded that Sushil asked Priyanka whether she could
state the facts on affidavit and she readily agreed and narrated the facts
about the illicit relationship between Kamlesh and Sangeeta. According
to Sushil, Priyanka narrated the following facts to Sushil :­ 

“From 17/05/2010 Sangeeta started residing at Prem Nagar
in the house of her sister Rekha and Kamlesh started visiting
her   in   the   said   house.   That   Sangeeta   and   Kamlesh   were
involved in physical relationship in the house of Rekha in
Prem Nagar. That Jitendra did not have a job and hence in
January,  2010,  Kamlesh   secured   a   job   for   Jitendra   in   his
company.   That   Priyanka   and   Jitendra   started   residing   at
Yavatmal and Kamlesh brought Jitendra, Priyanka and the
mother of Sangeeta to Yavatmal, on 20/09/2010.  That ten
days later, Kamlesh brought Sangeeta to Yavatmal in his car
and Kamlesh started visiting Jitendra and Priyanka's house in
Yavatmal twice a week.  That there were only two rooms in
the house and that Kamlesh and Sangeeta used to sleep in the
front room and Jitendra and Priyanka used to sleep in the
kitchen.   That   the   two   rooms   were   partitioned   only   by   a
curtain and once when Priyanka awoke in the night, she saw
Kamlesh and Sangeeta in a compromising position and they
were   involved   in   physical  intercourse   two   or   three   times.
That Priyanka was shocked, but she did not disclose this fact
to anybody.  That Kamlesh gifted a mobile phone to Sangeeta
bearing No.9422141139 at Yavatmal and Sangeeta used to
talk to Kamlesh from the said mobile. That Sangeeta was
using   a   different   mobile   bearing   No.9579335665   and   she
talked   with   Kamlesh   from   that   mobile   also.   That   when
Sangeeta   was   residing   with   Jitendra   and   Priyanka   at
Yavatmal, on 10/01/2011 Kamlesh came to Yavatmal along
with Rekha Bagal, (elder sister of Sangeeta), her husband
Baba Bagal and her daughter Shilpa Bagal in his car and all of
them   proceeded   for   Nashik   by   car.   That   Kamlesh   and

Sangeeta were sitting on the front seats and all the rest were
sitting on the back seat. That in Trambakeshwar, Kamlesh
and Sangeeta stayed in one lodge whereas all others stayed in
another lodge. That at that time Sangeeta was using mobile
phone   bearing   No.9579335664   that   was   registered   in   the
name of Amol Bagal, the son of Rekha.” 
It is pleaded in the Hindu Marriage Petition that Sushil came
across   Prashant   Bhoskar   in   December   2011   and   Prashant   revealed
certain   facts   to   Sushil   pertaining   to   the   illicit   relations   between
Sangeeta and Kamlesh.  It is pleaded that Sushil asked Prashant to state
the facts on affidavit and Prashant narrated the facts on affidavit and
handed  over  the  affidavit  to  Sushil.   According  to Sushil,  Prashant
revealed the following facts to him :
“That in December 2010, Prashant and his wife had decided to
go to Chikhaldara.  That Kamlesh, Prashant and his wife came
to   Yavatmal   in   the   car   of   Kamlesh.   That   Kamlesh   brought
Sangeeta, her niece Shilpa and Kamlesh's younger sister Neha
in   the   car   and   then   they   went   to   Amravati.   In   Amravati,
Prashant and his wife slept in one room and Kamlesh, Sangeeta,
Shilpa and Neha slept in another room. That in Chikhaldara, for
the stay of Prashant, his wife, Kamlesh, Sangeeta, Shilpa and
Neha   for   two   nights   and   three   days,   three   cottages   were
booked.  That Prashant and his wife slept in one cottage, Shilpa
and Neha slept in another cottage and Kamlesh and Sangeeta
slept in the third cottage. That Kamlesh took the photographs of
Sangeeta and himself in his mobile, but when the battery of his
mobile was down, he asked Prashant to take their photographs.

Prashant took their photographs and stored the images in the
computer. According to Prashant, Kamlesh and Sangeeta lived
like   husband   and   wife   during   their   stay   at   Chikhaldara   in
December 2010.” 
It is pleaded by Sushil in his petition that after securing the
aforesaid information from Priyanka and Prashant, a complaint was
filed by him against Kamlesh for an offence punishable under Section
497 of the Indian Penal Code.  It is pleaded that the criminal complaint
was   registered   as   Criminal   Complaint   Case   No.2611   of   2011.   It   is
pleaded   that   during   investigation   under   Section   202   of   Criminal
Procedure   Code,   the   Investigating   Officer   collected   CDR   from   the
respective cellular companies. It is pleaded that it is clear from the
information supplied to Sushil by Priyanka and Prashant that Sangeeta
had voluntary sexual intercourse with Kamlesh in the house of her elder
sister Rekha at Prem Nagar, her brother Jitendra at Yavatmal, in the
rest house in Trimbkeshwar in January 2011 and in the guest house at
Chikhaldara   in   December   2010.   Since   Sangeeta   and   Sushil   were
residing separately from 03/03/2010, after Sangeeta was admitted to
Gaikwad Hospital, Sushil sought a decree of divorce on the ground of
desertion.  Apart from seeking a decree of divorce on the ground that
Sangeeta had voluntary sexual intercourse with Kamlesh, Sushil also
sought a decree of divorce on the ground of cruelty. 

Sangeeta filed her written statement and denied the claim of
Sushil.  Apart from denying all the adverse charges and allegations that
were   levelled   against   her,   she   denied   that   she   and   Sushil   happily
resided in the matrimonial house for nine years.  Sangeeta denied that
Sushil was a good, loving and caring husband and was providing her
with   all   the   comforts   of   life.   After   denying   the   allegations   levelled
against her in totality, Sangeeta pleaded that Sushil was of extremely
suspicious nature and due to the said nature, Sushil used to torture her.
It is pleaded that she was harassed, beaten up and threatened by Sushil
in a very cruel manner.  It is pleaded that she was sometimes beaten by
a   belt   on   a   wrongful   assumption   that   in   the   absence   of   Sushil,
somebody had visited their bed room as the toilet was stinking.  It is
pleaded that Sushil used to beat her under the influence of liquor.  It is
pleaded that Sushil did not permit her to talk to any man and he used
to spend time on spying.   It is pleaded that under the influence of
liquor,  Sushil not only gave beating to her on several occasions, but he
used to go to backyard to ensure whether there was any male in the
backyard   with   whom   she   had   a   relationship.   It   is   pleaded   that
sometimes under the influence of liquor, Sushil passed urine in any
corner of the room.   It is   also pleaded that Sushil has made wild
allegations against her character and she would be entitled to a decree
of divorce, in the absence of proof of the same.  It is further pleaded by

Sangeeta in her written statement that she is ready for a decree of
divorce,   but   not   on   the   ground   that   she   had   voluntary   sexual
intercourse  with Kamlesh. Sangeeta sought  for the dismissal  of the
Hindu Marriage Petition filed by Sushil. 
Kamlesh also filed a written statement and denied the claim
of Sushil. Nothing much was stated by Kamlesh in his written statement
except   the   fact   that   he   did   not   have   any   illicit   relationship   with
Sangeeta as pleaded by Sushil. It is pleaded that he had approached
Sushil for an insurance policy and that is how,  the parties had met. 
4. On the aforesaid pleadings of the parties, the Family Court
framed   the   issues   and   Sushil,   Sangeeta   and   Kamlesh   examined
themselves. Sushil and Sangeeta also examined some witnesses.  Sushil
examined   as   many   as   seven   witnesses   including   himself.   Sushil
examined Prashant Bhoskar, who had tendered the affidavit in which
the fact about the stay of Sangeeta with Kamlesh in one cottage in
Chikhaldara   was   narrated.   Sushil   examined   Yogita   Chafale,   the
Investigating Officer, in the enquiry in the proceedings filed by Sushil
under Section 497 of the Indian Penal Code. Sushil also examined
Sanjay Wagh, the Manager of Bhakt Niwas, Trimbkeshwar and Govind
Dore,   the   Manager   of   Durvankar   Lodge,   Trimbkeshwar.   Sushil
examined Dr. Vijay Ponkshe to prove that poison traces were not found

in the blood and urine samples of Sangeeta after she was admitted to
Gaikwad   Hospital   on   03/03/2010.   Vidya   Gaidhane,   the   Warden   in
Savitribai Fule Mahila Karmachari Vasti Gruha was examined to show
that Sangeeta was living in the Vasti Gruha after he filed the petition
for a decree of divorce. Sangeeta examined herself and also examined
her  mother  Pushpamala. Kamlesh  examined   himself   and   closed  the
evidence on his side. 
5. On an appreciation of the material on record, the Family
Court by the judgment  and order dated 26/05/2015, dissolved the
marriage between Sangeeta and Sushil under Section 13(1)(i) and (ia)
of the Hindu Marriage Act, 1955 by recording a finding that after the
solemnization   of   her   marriage   with   Sushil,  Sangeeta   had   voluntary
sexual   intercourse   with   Kamlesh   and   she   had   treated   Sushil   with
cruelty.  The judgment of the Family Court is challenged by Sangeeta in
Family   Court   Appeal   No.58/2015   and   by  Kamlesh   in   Family   Court
Appeal No.67/2015. 
6. Mrs. Chandekar, the learned Counsel for Sangeeta, submits
that the Family Court was not justified in holding that Sangeeta had
voluntary   sexual   intercourse   with   Kamlesh   and   hence,   Sushil     was
entitled to a decree of divorce under Section 13(1)(i) of the Hindu

Marriage Act, 1955. It is stated that before Sushil filed the petition for
divorce   on   the   aforesaid   ground,   Sangeeta   had   filed   a   petition   for
divorce on 31/03/2010, that was registered as Petition No.A­260/2010.
It is submitted that in the said petition, though Sushil had filed the
written   statement   on  13/12/2010,  it   was   not   pleaded  by  him   that
Sangeeta had illicit relationship with Kamlesh. It is stated that there is
no pleading about any relationship, much less an illicit relationship
between Sangeeta and Kamlesh in the written statement filed by Sushil
on 13/12/2010. It is further stated that not only is the relationship
between Sangeeta and Kamlesh not mentioned in the written statement
filed   by   Sushil   on   13/10/2010,   but   not   a   word   about   the   said
relationship also finds place in the evidence of Sushil in Hindu Marriage
Petition No. A­260/2010, filed by Sangeeta though the evidence was
recorded   in   the   year   2012.   It   is   stated   that   after   the   amendment
application moved by Sushil in the petition filed by Sangeeta for a
decree of divorce was rejected and he was not permitted to file the
counter claim for seeking a decree of divorce under Section 13(1)(i) of
the Hindu Marriage Act, 1955, he has filed the instant petition for a
decree of divorce on the ground that Sangeeta had voluntary sexual
intercourse with Kamlesh.  It is stated that the allegations levelled by
Sushil against Sangeeta are not based on his personal knowledge, but
are   solely   based   on   the   information   allegedly   supplied   to   him   by

Priyanka, the wife of Sangeeta's brother Jitendra, who was separated
from Jitendra at the relevant time and Prashant Bhoskar, who was on
inimical terms with Kamlesh.   It is stated that since Priyanka has not
tendered oral evidence, her affidavit could not have been considered by
the   Family   Court   for   holding   that   Sangeeta   had   voluntary   sexual
intercourse with Kamlesh. It is submitted that the evidence of Prashant
is liable to be discarded as he has admitted in his cross­examination
that he had received a legal notice from Kamlesh for returning an
amount   of   Rs.1,78,528/­,   which   Prashant   was   required   to   pay   to
Mohit   Agro   Agency.     It   is   stated   that   the   fact   that   Prashant   and
Kamlesh were on cross terms could be substantiated from the admission
of   Prashant   in   his   cross­examination   that   both   of   them   had   filed
complaints against each other in the month of May 2012 and  the Police
had   registered   the   case   as   non­cognizable.     It   is   stated   that   it   is
apparent   from   the   admissions   of   Prashant   in   his   cross­examination
that   he   was   on   extremely   bad   terms   with   Kamlesh   and,   therefore,
had   an   axe   to   grind   against   him.     It   is   stated   that   the   Family
Court had erroneously held that though Prashant was not on good
terms   with   Kamlesh   and   there   was   a   reason   for   him   to   implicate
Kamlesh,     there   was   no   reason   for   Prashant   to   involve   Sangeeta
in   the   matter   and   make   allegations   against   her.     It   is   stated
that   the   CDR   placed   by   Sushil   on   record   is   not   proved.     It   is

stated that Sushil has neither examined any responsible person from
the Cellular Companies nor is it proved by Sushil that Kamlesh and
Sangeeta were talking to each other from the mobile phones that are
mentioned in the CDRs. It is stated that the identity of the persons –
owners and possessors of cell phones is not proved nor is it proved as to
who were actually using the cell phones with the particular numbers.  It
is further stated that the Family Court committed a serious error in
holding that it was necessary for Sangeeta to have examined Priyanka
and also her niece Shilpa, if she wanted to disprove the allegations
levelled by Sushil against her.  It is submitted that the burden of proof
would lie only on Sushil and the burden would not have shifted in the
case like the one in hand on the party against whom allegations of illicit
relationship are made. It is submitted that the burden could not have
been cast upon Sangeeta to prove a negative fact as is done by the
Family Court.  It is stated that the judgment of the Family Court is liable
to be set aside as the Family Court has erroneously placed the burden
on Sangeeta to disprove the allegations made against her.  It is stated
that the witnesses examined on behalf of Sushil, namely, Govind Dore
and Sanjay Wagh, the Managers of Durvankar Lodge and Bhakt Niwas
respectively, do not prove that Sangeeta was staying with Kamlesh in
one   room   in   Trimbkeshwar   on   12/01/2013   and   13/01/2013.   It   is
stated that there is no evidence whatsoever, tendered by Govind Dore

and Sanjay Wagh that Sangeeta was staying with Kamlesh in one room
in Bhakt Niwas. It is stated that the allegations made by Sushil against
Sangeeta are false, baseless and imaginary.  It is submitted that there is
no   material   on   record   except   the   bare   words   of   Prashant,   whose
evidence is liable to be discarded, that Sangeeta was staying in one
room in the Lodge at Chikhaldara with Kamlesh in December 2010.  It
is stated that without any pleadings to the effect that Sangeeta had
been to Chikhaldara with Kamlesh in July 2011, the Family Court,
solely   on   the   basis   of   CDRs,   has   recorded   a   finding   that   Sangeeta
stayed with Kamlesh in Chikhaldara for three days in July 2011 and she
had voluntary sexual intercourse with Kamlesh during that period.  It is
stated that in the absence of any pleadings to that effect, the Family
Court could not have recorded such  a finding.  It is submitted that the
Family Court has not considered the provisions of Section 14 of the
Family Courts Act, 1984 in the right perspective while accepting the
affidavit allegedly tendered by Priyanka to Sushil and also her evidence
in the criminal proceedings.  It is stated that the Family Court was not
justified in observing that Priyanka could not have attended the Court
to   tender   evidence   against   Sangeeta   as   during   the  relevant   period,
Priyanka had again started residing with Sangeeta's brother Jitendra
and a child was born to them.

9. Shri   Deopujari,   the   learned   Counsel   for   Kamlesh,   made
submissions on similar lines and sought for the reversal of the judgment
and decree passed by the Family Court.   It is stated that in the absence
of concrete and cogent evidence, a finding is recorded against Kamlesh
that he had sexual intercourse with Sangeeta and this has spoiled his
career and reputation.  
8. Shri Mourya, the learned Counsel for Sushil, supported the
judgment   of   the   Family   Court.   It   is   submitted   that   most   of   the
allegations pertaining to the illicit relationship between Sangeeta and
Kamlesh  were  duly proved  by  Sushil  by  tendering  the affidavits  of
Priyanka and Prashant and examining Prashant and the Managers of
Durvankar Lodge and Bhakt Niwas of Trimbkeshwar.   It is submitted
that when Sushil filed his written statement in Petition No. A­260/2010
filed by Sangeeta, for a decree of divorce, on 13/12/2010, he knew
nothing about the relationship between Sangeeta and Kamlesh. It is
stated that in the absence of knowledge about the illicit relationship
between   Kamlesh   and   Sangeeta,   Sushil   could   not   have   levelled
allegations in respect of illicit relationship against them.   It is submitted
that   after   Prashant   and   Priyanka   informed   Sushil   about   the   illicit
relationship between Sangeeta and Kamlesh sometime in the month of
November/December 2011, he became aware of the illicit relationship.

It is stated that though Sushil does not have any personal knowledge
about the illicit relationship between Sangeeta and Kamlesh, the said
relationship is clearly proved by the oral evidence of the witnesses
examined on behalf of Sushil, the affidavit of Priyanka and the copies of
the CDRs.  It is stated that the Family Court has rightly held that the
affidavit filed by Priyanka could be looked into by taking recourse to the
provisions of Section 14 of the Family Courts Act, 1984.  It is submitted
that in view of the said provisions, the principles of admissibility of
evidence, as required under the provisions of Evidence Act, need not be
applied in matrimonial matters. It is stated that it is clear from the
CDRs that Sangeeta and Kamlesh were talking to each other for hours
together on the phone and there was illicit relationship between them.
It is submitted that it is apparent from the evidence of Prashant and the
affidavit of Priyanka that Kamlesh and Sangeeta slept in one room in
Trimbkeshwar and Chikhaldara during their visit to the said places in
January 2011 and December 2010 respectively.   It is stated that it is
amply proved by Sushil that Sangeeta had voluntary sexual intercourse
with Kamlesh and, hence, Sushil was entitled to a decree of divorce
under Section 13(1)(i) of the Hindu Marriage Act, 1955.  The learned
Counsel sought for the dismissal of the Family Court Appeals filed by
Sangeeta and Kamlesh. 

9. On hearing the learned Counsel for the parties and on a
perusal   of  the   original   record  and   proceedings,   it   appears   that   the
following points arise for determination in these appeals :
I) Whether   Sushil   has   proved   that   Sangeeta   had
voluntary sexual intercourse with Kamlesh and whether he is
entitled to a decree of divorce under Section 13(1)(i) of the
Hindu Marriage Act, 1955  ?
II) Whether Sangeeta has treated Sushil with cruelty and
whether   Sushil   is   entitled   to   a   decree   of   divorce   under
Section 13(1)(i­a) of the Hindu Marriage Act, 1955 ?
III) What order ?
10. To answer the aforesaid points for determination, it would
be necessary to consider the pleadings of the parties.  We have already
narrated the pleadings in the petition filed by Sushil in the earlier part
of this judgment.  We have also narrated the facts pleaded by Sangeeta
in her written statement, specially the ones pertaining to the conduct
and behaviour of Sushil, after denying the serious allegations levelled
by Sushil against her.   Since we are aware of the pleadings of   the
parties,  it would be necessary to consider the evidence of the parties.  
11. As  already mentioned  herein  above,  Sushil  has  examined
himself and reiterated the facts pleaded by him in the Hindu Marriage

Petition   in   his   evidence   on   affidavit.   Sushil   was   cross­examined   at
length.  Sushil admitted in the cross­examination that he did not plead
about  the  illicit  relationship   between  Sangeeta   and  Kamlesh  in  the
written statement filed in the proceedings filed by Sangeeta, bearing
No.A­260/2010.   Sushil admitted that Sangeeta had gone to her son
Gaurav's School to meet him, but denied that he had objected for the
meeting   and   hence,   she   was   not   allowed   to   meet   Gaurav.   Sushil
admitted that during their trip to Ujjain, Sushil, Sangeeta, their son
Gaurav, Kamlesh, his parents, his cousin Lata, her cousin Mohit and
uncle and aunt of Kamlesh were present. Sushil admitted that Shilpa,
the daughter of Rekha, the elder sister of Sangeeta, was married to
Parag Bhandarwar in 2011. Sushil admitted that though he had seen
Sangeeta on the two wheeler of Kamlesh in May 2010, he did not make
a mention of the said fact in the written statement filed by him in the
petition filed by Sangeeta.  Sushil also admitted that all the incidents
mentioned by him in paragraphs 21 to 29 of the petition were told to
him by others.  Sushil admitted that he did not know about the affair
between   Shilpa,   the   niece   of   Sangeeta   and   Dinesh,   the   brother   of
Kamlesh and hence, he did not complain about the same to Shilpa's
mother. Sushil admitted that he had no knowledge whether Dinesh was
taking education in Pune from 2008 to 2012.  He further admitted that
he   had   no   proof   about   the   affair   between   Shilpa   and   Dinesh.   He

admitted that he was not aware of the incidents pleaded in paragraphs
14 and 16 of the petition and, hence, they were not pleaded in his
written statement filed in the petition No.A­260/2010.  Sushil admitted
that he had not witnessed any illicit relationship between Kamlesh and
Sangeeta.   He   further   admitted   that   the   incidents   at   Yavatmal,
Chikhaldara, Trimbkeshwar and Rekha's house at Prem Nagar did not
occur   in   his   presence.   He   also   admitted   that   though   Sangeeta   and
Kamlesh started roaming openly on two wheeler from 05/05/2010, he
did not plead the said fact in his written statement filed on 13/10/2010
in petition No.A­260/2010. He admitted that he had complained about
the fact of Sangeeta and Kamlesh roaming openly to Sangeeta's brother.
12. Sushil examined Prashant Bhoskar, who claimed that he was
a friend of Kamlesh in the High School.  He stated in his evidence that
he and Kamlesh had joined Symbiosis Agro Management Company and
had worked together for about two years.  He admitted that Kamlesh
was his superior in the said Company.  He stated that in March 2010,
Kamlesh   asked   him   to   visit   Gaikwad   Hospital   where   Sangeeta   was
admitted and give Rs.10,000/­ to Sangeeta when she was residing with
her parents  after she was discharged from Gaikwad Hospital.  Prashant
further stated in his evidence that in November 2010,  when Prashant,
his wife, Kamlesh, Sangeeta, Shilpa and Neha had gone to Chikhaldara,

three cottages were booked and Kamlesh and Sangeeta stayed in one
cottage, Prashant and his wife stayed in other cottage and Shilpa and
Neha stayed in the third cottage.  Prashant stated that Kamlesh started
harassing him as he was not doing the personal work of Kamlesh. It is
stated  that  he  had  to  leave   the  job  in  March  2011  when  Kamlesh
complained about him to the Marketing Manager Shri Ramanarao.  It is
stated   that   after   leaving   the   job,   he   started   his   own   business   and
Kamlesh started harassing him.  He stated that he told about the illicit
relationship between Sangeeta and Kamlesh to Sushil in the last week
of November 2011 and also gave an affidavit and some photographs to
Sushil.   It is stated in the evidence on affidavit that Kamlesh and his
friend   Sandeep   attempted  to  beat  him   and, therefore, he  lodged  a
complaint in the Police Station at Hudkeshwar.   
13. Prashant was cross­examined on behalf of Sangeeta and he
admitted   in   his   cross­examination   that   Adv.   Itankar,   who   was   the
Advocate of Sushil, had prepared his affidavit that was tendered to
Sushil in November/December 2011.   Prashant admitted in his crossexamination
 that  he  does  not  understand   English  properly  and  the
affidavit, which is in English language, was not read over to him or
translated to him in Marathi language.   He admitted that he was called
to the Police Station after the father of Priya, his wife, had lodged a

complaint against him. It is admitted by Prashant that both he and Priya
were referred for medical examination and the case was tried in the
Court.  Prashant admitted that Kamlesh had sent a legal notice to him
as he did not pay a sum of Rs.1,78,528/­ to Mohit Agro Agency. It is
admitted   that   the   said   amount   was   claimed   by   Kamlesh.   Prashant
admitted that Kamlesh had filed a complaint against him on 25/05/2012
and in the complaints filed by Prashant and Kamlesh against each other,
the Police had registered the case as non­cognizable.  Prashant admitted
in   his   cross­examination   that   he   did   not   see   Kamlesh   in   Gaikwad
Hospital at 12.30 a.m. though he had stated so in his evidence on
affidavit. Lastly he stated in his cross­examination that according to
him, illicit relations would mean the relations that are not legal. 
14. After   examining   Prashant,   as   a   witness,   Sushil   examined
Yogita   Chafale, the Investigating Officer. She stated in her evidence
that when the case came to her for enquiry under Section 202 of the
Code of Criminal Procedure, she had collected call records of certain
selected phone numbers as per the order of the Police Inspector.  The
letter   bearing   the   signature   of   Police   Inspector   was   exhibited   as
Exh.151.  She, however, admitted in the cross­examination that she had
not personally filed Exh.151 and the hard copy of the CDR in the Court.
She stated that she did not know how the document came on record.

15. The   oral   evidence   of   the   Managers   of   Bhakt   Niwas   and
Durvankar Lodge was recorded.  Sanjay Wagh, the Manager of Bhakt
Niwas stated in his evidence that one room in Bhakt Niwas was booked
by Kamlesh Zode and in that room, there were three beds.  The witness,
however, did not state as to who was accompanying Kamlesh in the
room in Bhakt Niwas at Trimbkeshwar. The other part of the evidence
of Sanjay Wagh is not relevant for the purpose of deciding the points
involved in these Family Court Appeals as he was merely examined to
prove that Kamlesh had booked a room in Bhakt Niwas. It is, however,
not stated by Sanjay Wagh in his evidence that Kamlesh was residing
with Sangeeta in Bhakt Niwas.  In fact, in his cross­examination, he has
admitted   that   he   cannot   identify  the  persons,  who   reside   in   Bhakt
Niwas. Similarly, Govind Dore, the Manager of Durvankar Lodge, was
examined   and   he   stated   in   his   evidence   that   Babarao   Bagal,   the
husband of the elder sister of Sangeeta, namely, Rekha, had booked a
room in Durvankar Lodge and the same was for five people.   
16. Sushil   examined   Dr.  Vijay   Ponkshe   only  for   proving   that
there   were   no   traces   of   poison   in  the   blood  and   urine   samples   of
Sangeeta after she was admitted in Gaikwad Hospital on 03/03/2010
and the allegation of Sangeeta that he had tried to administer poison to

her is false.  Smt.Vidya Gaidhane, the Warden of Savitribai Fule Mahila
Karmachari Vasti Gruha was examined  to point out that Sangeeta was
living in the said Vasti Gruh  after she left the house of her sister Rekha.
17. Sangeeta examined herself and her mother Pushpamala.  It
would, however, be not  necessary to consider the evidence of Sangeeta
and her mother in their examination­in­chief on affidavit as, in our
view, the burden would lie only on Sushil to prove that Sangeeta had
voluntary sexual intercourse with Kamlesh and the burden cannot be
placed on Sangeeta to prove the negative fact. In her cross­examination,
Sangeeta denied that she had talked for hours together with Kamlesh
from   her   mobile   No.9422129412.   She   denied   that   there   was
conversation   between   herself   and   Kamlesh   from   her   mobile
No.9579335664.  She denied that she and Kamlesh talked to each other
from   his   mobile   No.9021422810.   She   denied   the   suggestion   that
Kamlesh used to talk to her from other cell numbers and he had talked
to   her   several   times   from   the   cell   of   Dahivalkar,   bearing
No.9763523380. She denied the suggestion that Kamlesh used to talk
to her from the cell of Sandeep Shahane, bearing No.9823829547.  She
further denied that Kamlesh talked to her from his cousin Lata's phone,
bearing No.9923136006. She also denied that Kamlesh spoke to her
from   mobile   No.9404342155   registered   in   the   name   of   his   father

Kamlakar.   Sangeeta denied in her cross­examination that she stayed
with Kamlesh in one room in Bhakt Niwas at Trimbkeshwar, in her
brother's   house   at   Yavatmal   and   in   a   cottage   in   Chikhaldara   in
Decmeber 2010/January 2011.  
18. The evidence of Pushpamala does not throw any light on the
controversy. Her evidence is considered by the Family Court only to
hold   that   she   had   refused   to   accept   the   Bailiff's   summons   for
summoning   Priyanka   to   tender   evidence,   as   Jitendra,   her   son   and
Priyanka, her daughter­in­law were not residing with her at the relevant
time. 
19. It is clear from the pleadings and evidence of the parties that
Sushil had no personal knowledge about the illicit relationship between
Sangeeta and Kamlesh and he had merely witnessed Sangeeta on the
two wheeler with Kamlesh in the month of May 2010 on 3­4 occasions.
Thus, Sushil does not have any personal knowledge about the illicit
relationship between Sangeeta and Kamlesh. Apart from not witnessing
any act of illicit relationship between Sangeeta and Kamlesh, Sushil has
also not heard any conversation between Sangeeta and Kamlesh that
would disclose about an illicit relationship. All that Sushil has witnessed
is that Sangeeta was sitting on the two wheeler of Kamlesh on few

occasions as a pillion rider.  Though Sushil had witnessed that Sangeeta
was roaming with Kamlesh on his two wheeler in May 2010 and he had
complained about the same to the father of Kamlesh and to the parents
of Sangeeta, it is surprising that he did not plead the said fact in the
written statement filed by him on 13/10/2011, in the proceedings filed
by Sangeeta for a decree of divorce on the ground of cruelty.  Nothing
is pleaded in the written statement filed by Sushil, in the proceedings
filed by Sangeeta, about the illicit relationship between Kamlesh and
Sangeeta. The entire pleadings in the petition filed by Sushil, narrate
the facts, which came to his knowledge from the information supplied
to him by Priyanka, the wife of the brother of Sangeeta and by Prashant
Bhoskar.     Priyanka   was   not   living   with   Jitendra,   the   brother   of
Sangeeta,   at   the   relevant   time   when   Sushil   allegedly   secured   the
information   from   her.  In   fact,  it   is  Sushil's   case   that   Priyanka   was
interested in telling him about the illicit relationship between Sangeeta
and Kamlesh and Khusboo, Priyanka's sister, informed him about the
eagerness of Priyanka to do so. According to Sushil, Priyanka had stated
the facts about the illicit relationship on affidavit and handed over the
affidavit to Sushil. It is surprising that the stamp paper for preparing the
affidavit is purchased in the name of Sushil.   It is also necessary to note
that the said affidavit was allegedly handed over by Priyanka to Sushil
only   during   the   time   when   she   was   separated   from   her   husband

Jitendra.   Priyanka started residing with Jitendra when evidence was
being tendered in this case.  The Family Court has, therefore,  held that
Priyanka could not have attended the Court to tender evidence as she
was happily residing with her husband Jitendra and a child was born
from   the   marital   relationship.   Though   Priyanka   did   not   enter   the
witness box and did not tender any oral evidence, the Family Court has
relied on the affidavit of Priyanka at Exh. 42.   The Family Court has
relied on the provisions of Section 14 of the Family Courts Act, 1984 for
accepting the affidavit of Priyanka as admissible evidence.  Sushil has
secured   the   knowledge   in   respect   of   illicit   relationship   only   from
Priyanka and Prashant Bhoskar.  One of them, namely, Priyanka is not
examined.  Prashant Bhoskar has entered the witness box, but from the
cross­examination of Prashant, it is clear that the relationship between
Prashant   and   Kamlesh   was   extremely   strained   when   he   allegedly
informed   Sushil   about   the   illicit   relationship   between   Kamlesh   and
Sangeeta and both of them had filed complaints against each other and
Prashant had also received a legal notice from Kalmesh for refund of
the amount of Rs.1,78,528/­ that was liable to be paid by him.  Sushil
has admitted in his cross­examination not once, but several times that
he had not witnessed anything that is pleaded by him in respect of the
illicit relationship between Sangeeta and Kamlesh. He has admitted that
all the facts concerning the illicit relationship are informed to him only

by Priyanka and Prashant. We find that the Hindu Marriage Petition is
filed  by Sushil  solely  on  the  basis  of  the  facts  heard  by him  from
Prashant and Priyanka.  Since Priyanka has not entered into the witness
box, in the case like the one in hand, where serious allegations in
respect of voluntary sexual intercourse with Kamlesh are made against
Sangeeta, we are not inclined to consider the affidavit of Priyanka at
Exh. 42 in the absence of her oral evidence.
20. The charge of extra marital relationship is a serious charge
that casts aspersions on the character of a spouse and hence, the charge
needs to be proved by such evidence that would lead to an irresistible
conclusion that the spouse had voluntary sexual intercourse with a
person of the opposite sex, other than his/her spouse. In the instant
case, the Family Court has relied only on the affidavit of Priyanka, the
evidence of Prashant Bhoskar, the evidence of Managers of Bhakt Niwas
and Durvankar Lodge though they have not stated anything in respect
of stay of Kamlesh and Sangeeta in one room and the evidence in the
form of CDRs.   We are not inclined to accept the affidavit of Priyanka
at Exh. 42 as admissible evidence.  The observation of the Family Court
that if Priyanka had not entered into the witness box and Sushil could
not secure her presence, Sangeeta should have secured her presence to
prove her innocence is clearly against the settled principles of law,

specially the principles relating to burden of proof. In our view, from
the commencement of the proceedings till the conclusion in this case,
the   burden   would   lie   only   on   Sushil   to   prove   that   Sangeeta   had
voluntary   sexual   intercourse   with   Kamlesh.   In   the   absence   of
examination   of   Priyanka,   the   entire   pleadings   in   regard   to   illicit
relationship   between   Kamlesh   and   Sangeeta   at   Yavatmal,   at
Trimbkeshwar   on   13/01/2011  and   in   the   house   of  Rekha   at   Prem
Nagar should fall to the ground.    
21. Prashant stated in his evidence that he was asked by Kamlesh
to   attend   Gaikwad   Hospital.    He   has   stated   that   he   was   asked  by
Kamlesh to give a sum of Rs.10,000/­ to Sangeeta in her parents'  house
where she was residing after her discharge from Gaikwad Hospital.
Both the aforesaid facts have nothing to do with the illicit relationship.
It is then stated by Prashant that when he, his wife, Kamlesh, Sangeeta,
Shilpa and Neha had been to Chikhaldara in Decemeber 2010, Sangeeta
and Kamlesh were staying in one room.  We are inclined to discard the
evidence of Prashant in view of his admissions in the cross­examination.
A serious charge of adultery or sexual intercourse with the person other
than the spouse needs to be proved either by direct evidence or by the
evidence of independent witnesses or documents.  We do not find that
Prashant   is   an   independent   witness.   Even   the   Family   Court   has

observed that there is enmity between Prashant and Kamlesh.  Prashant
has admitted in his cross­examination that Prashant and Kamlesh have
registered   criminal   complaints   against   each   other.     Prashant   has
admitted that he is not on good terms with Kamlesh and that Kamlesh
had   issued   a   legal   notice   to   him   for   returning   the   amount   of
Rs.1,78,528/­.   It is apparent from the cross­examination of Prashant
that he is on cross terms with Kamlesh.  The evidence of Prashant is not
the   evidence   of   an   independent   witness.   The   evidence   of   Prashant
would not be reliable and it would not be possible to hold on the basis
of his evidence that Kamlesh and Sangeeta were staying in one cottage
in Chikhaldara in December 2010.   It is also surprising that though
Sushil, who is in the Police Department, has examined the Managers of
Durvankar Lodge and Bhakt Niwas of Trimbkeshwar to prove that two
separate rooms were booked in two separate Lodges at Trimbkeshwar
at the relevant time, the Manager of the Lodge in Chikhaldara is not
examined to prove whether three cottages were booked at Chikhaldara
in December 2010 and whether Kamlesh and Sangeeta were staying in
one of the cottages. Though the evidence of the Managers of the Lodges
at Trimbkeshwar is not helpful to us for deciding the points involved in
these Family Court Appeals, in our view, the non­examination of the
concerned persons from the Lodge at Chikhaldara in respect of the stay
of Kamlesh and Sangeeta in one room would necessitate the drawing of

an adverse inference against Sushil. It would be necessary to hold that
had   Sushil   examined   the   concerned   person   from   the   Lodge   at
Chikhaldara, in respect of the stay of Sushil and Sangeeta in one room
in December 2010, the case of Sushil would have been falsified.  We are
making   these   observations   only   in   view   of   the   examination   of   the
Managers of the two Lodges at Trimbkeshwar by Sushil as his witnesses
in contra­distinction with his failure to examine the concerned person
from the Lodge at Chikhaldara.  
22. The evidence of the Managers of Durvankar Lodge and Bhakt
Niwas can only prove that one room in one of the Lodges was booked
by Kamlesh and the other room in the other lodge was booked by
Babarao Bagal, the husband of the sister of Sangeeta.  The evidence of
the Managers of the two Lodges, however, does not prove that Sangeeta
and Kamlesh were staying in one Lodge and the other persons were
staying in the other. There is nothing in the evidence of the Managers of
the two Lodges to show that Kamlesh and Sangeeta were staying in one
room  and all  other  members in  the  other.    In  the  absence  of any
evidence   to   the   aforesaid   effect,   the   evidence   of   the   Managers   of
Durvankar Lodge and Bhakt Niwas would not be helpful to Sushil for
proving his case in respect of illicit relationship between Sangeeta and
Kamlesh.  

23. We find on a reading of the evidence that the facts pleaded
by Sushil are not proved.   Priyanka did not enter the witness box to
support the case of Sushil.   The Managers of Durvankar Lodge and
Bhakt Niwas did not advance the case of Sushil in respect of the illicit
relationship. The evidence of Prashant is liable to be discarded and
hence, the same would also not be helpful to prove the stay of Sangeeta
and Kamlesh in one cottage in December 2010.  It is also surprising that
though Prashant has stated about the stay of Kamlesh and Sangeeta in
one cottage in 2010, he disclosed about the said fact to Sushil a year
later   in   November/December   2011.   There   is   no   proof   that   three
cottages were booked in a Lodge at Chikhaldara as stated by Prashant
and that Sangeeta and Kamlesh stayed in one of the cottages.  In any
case, we are not inclined to accept the evidence of Prashant, who had
an axe to grind against Kamlesh.  The observation of the Family Court
that though there is  enough material to show that Prashant had an axe
to grind against Kamlesh, there was no reason for him to implicate
Sangeeta in the relationship is not worthy of acceptance.  
24. Apart   from   the   aforesaid   evidence,   Sushil   as   well   as   the
Family Court have relied upon the copies of CDRs to hold that Sangeeta
was   continuously   talking   to   Kamlesh   on   the   cell   phones.   We   are

surprised as to how the CDRs could be considered as admissible piece of
evidence in the case like the one in hand. The copies of CDRs are not
compared.  The concerned Officer or any responsible person from the
Cellular Companies has not been examined by Sushil.  Before relying on
the evidence in the form of CDRs, it was necessary for Sushil to have
examined some responsible persons from the Cellular Companies for
proving   that   the   CDRs   were   supplied   by  them   to   the   Investigating
Agency and the copies of the CDRs that were tendered by Sushil in the
Court   reflect   the   true   and   correct   record   in   respect   of   the   mobile
numbers. In the cross­examination, Yogita Chafale, the Investigating
Officer has admitted that she has not filed Exh.151 and copy of CDR
and she does not know as to how the document has come on record.  In
the   absence   of   examination   of   some   responsible   persons   from   the
Cellular   Companies,  it   cannot   be  said   that   the   copies   of  CDRs   are
admissible and reliable pieces of evidence. It is also not proved that
Sangeeta   is   the   registered   owner   of   Cell   Nos.9422129412   and
9579335664. We do not find any convincing evidence on record to
show that either Sangeeta was a registered owner of the aforesaid
mobile numbers or she was actually using them.  In fact, it is the case of
Sushil that one of the mobile numbers that Sangeeta was using is the
mobile number of Amol Bagal, her sister's son.  We are surprised with
the   suggestions   given   to   Sangeeta   in   her   cross­examination.   It   is

suggested to Sangeeta that she was talking from her cell with Kamlesh
on   several   cell   phones,   bearing   Nos.7304353522,   9021422810,   cell
phone of   Dahivakar, bearing No.9763523380, on Sandeep Shahane's
cell,   bearing   No.9823829547   and   Lata's   and   Kalmesh's   father's   cell
phones, bearing Nos.9923136006 and 9404342155.  It is suggested to
Sangeeta   that   apart   from   the   aforesaid   five   cell   numbers,   she   was
talking to Kamlesh on several other unknown numbers.  It is surprising
that with every person to whom Sangeeta had allegedly talked from
various cell numbers, it is stated that Sangeeta was talking to Kamlesh
on those cell numbers. We find that the CDR is not proved though the
letter of the Investigating Officer at Exh. 151 is proved.  We find that
the Family Court was aware that the CDR was not proved and hence,
instead of marking it as exhibit, the Family Court has marked it as
Article `D'.   In any case, in the aforesaid circumstances, we are not
inclined to accept the evidence in the form of CDRs for the purpose of
proving that Sangeeta had voluntary sexual intercourse with Kamlesh.
25. It is very surprising that the Family Court, in the absence of
any pleadings that Kamlesh and Sangeeta were staying together in one
cottage in July 2011, has recorded a finding on the basis of CDRs that
the parties were residing together at Chikhaldara for more than two
days as there was no contact between Kamlesh and Sangeeta on cell

phones on those two days.  We are really surprised with the approach
of the Family Court in deciding the matter.  Only on the basis of CDRs,
which we find, are not worthy of acceptance in evidence, it was held in
the absence of pleadings that Kamlesh and Sangeeta were staying at
Chikhaldara for more than two days in July 2011.  Such is not the case
of either Sushil or his witness Prashant.   If that be so, the Family Court
could not have recorded the finding on the basis of CDRs, which are not
liable   to   be   accepted   in   evidence,   that   Kamlesh   and   Sangeeta   had
voluntary sexual intercourse at Cbikhaldara in July 2011.  The approach
of the Family Court in deciding the matter is not proper.  The Family
Court has unduly placed the burden on Sangeeta to prove a negative
fact.  In paragraph 71 of the judgment, the Family Court has observed
that if Sushil could not secure the presence of Priyanka, Sangeeta could
have secured her presence to prove that the affidavit of Priyanka at
Exh.42   was   false.   As   already   stated   herein   above,   right   from   the
commencement of the proceedings till its culmination, the burden was
on Sushil to prove that Sangeeta had voluntary sexual intercourse with
Kamlesh.   In   paragraph   82   of   the   judgment,   the   Family   Court   has
observed   that   it   was   easy   for   Sangeeta   to   disprove   the   serious
allegations that were made against her by Sushil by examining Priya
and Shilpa, the daughters of her sister Rekha.  We find that in several
paragraphs of the judgment, the Family Court has placed the burden on

Sangeeta to prove her innocence.  It is well settled that when a spouse
alleges  adultery  against  the   other   by  claiming  that   the  spouse   had
sexual intercourse with a man or woman other than the husband or
wife, the burden would lie only on the party pleading so. Rather than
placing the burden on Sangeeta to prove a negative fact by examining
Priyanka, Priya or Shilpa or any other family member, the Family Court
should have held that it was necessary for Sushil to examine the Notary
before whom Priyanka had sworn the affidavit and also Khusboo, the
sister   of   Priyanka,   who   informed   him   that   Priyanka   was   eager   to
disclose some startling facts to Sushil. 
26. On an appreciation of the evidence on record, we find that
since Priyanka was on cross terms with Jitendra and Sangeeta and since
Prashant was on cross terms with Kamlesh, Sushil has taken advantage
of   the   strained   relationships   between   them   and   has   secured   the
affidavits   from   Priyanka   and   Prashant,   if   at   all   they   were   really
tendered by them, to Sushil.   We find from the evidence of Prashant
that Prashant was removed from his job in Symbiosis in view of the
complaint made by Kamlesh to their superior Shri Ramanarao and,
hence, the relationship between Kamlesh and Prashant was strained
and they had even lodged criminal complaints against each other. The
observation of the Family Court that since Priyanka had decided not to

come to the Court, the Family Court had no other alternative, but to
believe her affidavit before the Notary under Section 14 of the Family
Courts Act, 1984  is erroneous.  The observation of the Family Court in
paragraph 111 of the judgment that there is ample evidence to hold
that Kamlesh and Sangeeta had physical relationship in Trimbkeshwar,
Yavatmal and Chikhaldara is not supported by the evidence on record.
The finding recorded by the Family Court in paragraph 111 of the
judgment that there is proof that  Kamlesh and Sangeeta had voluntary
sexual intercourse in the house of Sangeeta's sister Rekha, is not only
erroneous, but perverse. The allegation in respect of voluntary sexual
intercourse is required to be proved by cogent and convincing evidence.
We have already recorded herein above that the charge casts aspersions
on   the   character   of   the   spouse.   The   allegation   of   voluntary   sexual
intercourse  should  be  proved  from  the  circumstantial  evidence  that
excludes the presumption of innocence in favour of the person against
whom   it   is   alleged.     There   could   be   a   proof   of   voluntary   sexual
intercourse only if no other inference is possible from the material
evidence on record.  In our view, the evidence on record cannot prove
the act of voluntary sexual intercourse between Sangeeta and Kamlesh.
While holding that the said charge is proved, the Family Court has
erroneously placed the burden on Sangeeta to prove a negative fact that
she   did   not   have   voluntary   sexual   intercourse   with   Kamlesh.   The

evidence   on   record,   in   our   considered   view,   does   not   lead   to   a
conclusion,   much   less   an   irresistible   conclusion   that   Sangeeta   had
voluntary sexual intercourse with Kamlesh and that Sushil was entitled
for a decree of divorce under Section 13(3)(i) of the Hindu Marriage
Act, 1955.  We do not find that Sushil has on the basis of the evidence
available on record either proved that Sangeeta had voluntary sexual
intercourse with Kamlesh or that she had treated him with cruelty.  On
the other hand, levelling serious allegation that Sangeeta had voluntary
sexual intercourse with Kamlesh and failing to prove the same, would
tantamount to cruelty on Sangeeta.  Even if we accept the evidence of
Sushil on its face value that Sangeeta was roaming on a two wheeler
with Kamlesh, the said evidence cannot be helpful to Sushil to prove
that Sangeeta had voluntary sexual intercourse with Kamlesh.   The
judgment of the Hon'ble Supreme Court in  Earnest John White vs.
Mrs. Kathleen Olive White (Nee Meade) and others  (AIR 1958 SC
441) and relied on by the learned Counsel for Sushil cannot be made
applicable to the facts of this case. In the case before Hon'ble Supreme
Court, there was clinching evidence, including the evidence of the hotel
boy, who had identified the wife and had stated that she was living in a
suite in the hotel for more than two days with a man with the fake
name,   Charles   Chaplain.   Similarly,   the   judgment   of   the   Hon'ble
Supreme Court in Shiv Shakti Cooperative Housing Society, Nagpur

vs.   Swaraj   Developers   and   others  {(2003)   6   SCC   659)}   has   no
applicability to the case in hand.    
27. Hence, for the reasons aforesaid, the Family Court Appeals
are   allowed.   The   judgment   of   the   Family   Court,   Nagpur,   dated
26/05/2015 in Petition No.A­839/2012 is quashed and set aside. The
Hindu Marriage Petition filed by Sushil stands dismissed with costs.

Print Page

No comments:

Post a Comment