Wednesday 30 January 2013

Whether it is mandatory to add adulterer as a party to divorce petition on the ground of adultery?

 I follow the principles laid down in the case of D. Thomas v. Tara, AIR 1978 Mad 415 (FB), where the Court held that a suit for adultery is not maintainable where the adulterer though known to the plaintiff, is not made a party. The dissolution of marriage on the said ground is not at all maintainable. It is true that the said case was dealing with Section 11(i) of the Divorce Act, 1869 and the said section itself provided for impleading the adulterer as a co-respondent. In my opinion, it makes no difference whether the said constraint is provided either by the Act or by the Rules.

Patna High Court
Rabindra Prasad vs Sita Devi on 12 February, 1985
Equivalent citations: AIR 1986 Pat 128

1. This appeal arises out of a suit for divorce under Section 13 of the Hindu Marriage Act, 1955 (hereinafter to be referred to as 'the Act'). The divorce is at the instance of the husband. Divorce has been refused. Hence this appeal has been preferred under Section 28 of the said Act. The marriage admittedly was solemnised on 27-4-1977.
2. Four grounds were taken in support of suit for dissolution of marriage, namely, (a) on the date of the marriage the bridegroom did not complete the age of 18 years. He was only 17 years 5 months. The marriage, therefore, was solemnised in contravention of Section 5(iii) of the Act. (b) on 3rd of May, 1977 the marriage was dissolved by mutual consent, (c) The consent of the bridegroom and/or of the guardian was obtained by practising fraud; hence vitiated under Section 12(1)(c) of the Act. The fact that the bride was suffering from physical infirmity i.e. she had no right breast was suppressed, (d) the bride was leading an adulterous life and, therefore, the marriage be dissolved under Section 13(1) of the Act.
3. It may be stated at the outset that the paramours with whom the bride is stated to have immoral connections have not been impleaded as co-respondents in the suit.
4. The trial Court held that the appellant was not less than 18 years of age at the time of marriage. It further held that no fraud and deception have been practised in obtaining consent prior to the marriage. There has been no dissolution of marriage as alleged on the 3rd May, 1977. It also held that the marriage was consummated during the period from 28-4-1977 to 3-5-1977. The story of unchastity and adultery, as alleged, was completely disbelieved.
5. So far as the question of minority is concerned, apart from the finding recorded by the trial Court that the bridegroom was not below the age of 18 years, the question that arises is, even assuming that he was minor, whether the marriage is void on that score. Section 11 of the Act deals with the void marriages. It envisages that the marriage solemnised in contravention of any of the conditions specified in Clauses (i), (iv) and (v) of Section 5 after the commencement of the Act shall be null and void. But Section 11 of the Act does, not refer to Clause 5(iii). Similarly Section 12, which deals with voidable marriages, also does not refer to Section 5(iii). Section 18 speaks about consequences of a marriage held in violation of Section 5(iii). The consequence envisaged is only a criminal prosecution.'
It is, therefore, manifest that the marriage solemnised in violation of Section 5(iii) remaings unaffected. Neither the marriage is void nor voidable. The appellant, therefore, cannot obtain disengagement on this score. The point fails.
6. It has next been contended that the marriage was dissolved by mutual consent on 3-5-1977. Admittedly no petition has been filed by the bridegroom and the bride that they have mutually agreed that the marriage should be dissolved. It is said that there was a panchaiti in the village and in the said panchaiti both parties agreed to dissolve their marriage. In the instant suit, the bride disputes the panchaiti and contends that there had never been a mutual agreement to dissolve the marriage. The appellant, however, submits that the panchaiti was given effect to and that they have been staying and living separately from each other for a period of one year or more.
7. The Act has provided for dissolution of marriage by mutual consent under the Marriage Laws Amendment Act, 1976. The only method of dissolution of marriage by mutual agreement should be within the four corners of Section 13(b) of the Act and not otherwise. There has been no compliance of the said section. Admittedly the parties have not filed a petition jointly and/or the bride has not agreed in the suit to the dissolution sought for by the husband. No decree for divorce, therefore, can follow by mutual consent. This point, therefore, also fails. The appellant is not entitled to a decree of divorce by mutual consent.
8. The next question is whether the marriage should be avoided because of the fact that the bride had no right breast and this fact was suppressed from the bridegroom and/or his guardian. This is said to be a physical deformity and disability to consummate marriage and to rear children born out of the wedlock. According to the learned counsel for the appellant, it is a deformity of a material character and a very material fact concerning the respondent bride. My attention has been drawn to various decisions, that such a nature of defect ought to have been disclosed during the course of negotiation and failure to do so, amounts to obtaining consent of the bridegroom and/or his guardian by practising fraud. (See AIR 1984 Punj & Har 417, AIR 1984 Delhi 139, AIR 1968 Pat 190, AIR 1984 Andh Pra 225 and AIR 1982 Bom 400). It is said that Bakhori Sah, the uncle of the bride, was negotiating the marriage on behalf of the respondent with the father of the bridegroom. The father of the appellant has not come forward to say that this fact was suppressed from him. The bridegroom, in his evidence, states that he was never told about it nor his father was communicated about this defect. This fact was not disclosed either by the mother of the bride or by her uncle Bakhori Sah. It is submitted that during the negotiation the bride was seen both by the bridegroom and his father. Mr. D.K. Sinha, learned counsel for the appellant, contends that from the outward appearance nobody could know the physical handicap of the bride, as she must have been adorned in Sari; and it is nobody's case that her body was shown to the father of the bridegroom and/or to the bridegroom. I think, Mr. Sinha is quite justified in so contending. The bride has admitted, in her evidence, that she has no right breast and it was burnt in her childhood. Therefore, the fact remains that the bride suffers from the aforesaid physical handicap.
9. It has been stated, in para 3 of the plaint, that after the marriage ceremony it was discovered at the appellant's house on 28-4-1977 that the respondent had no right side breast and the right breast zone was having a burnt like appearance. This physical defect raised great alarm to the guardian of the appellant and the appellant's mother and other members of the family. It is, therefore, manifest that the physical defect was discovered on 28-4-1977, a day after the marriage. Mr. J.P. Singh, learned counsel appearing on behalf of the respondent, contended that even if the averment to the effect that this fact was not disclosed to the guardian or to the bridegroom prior to the marriage and, therefore, his consent was obtained by fraud, the suit filed on 19-11-1979 on this ground is not maintainable. According to respondent's learned counsel, the suit should have been brought within one year of the detection of fraud.
10. Section 12(1)(c) deals with fraud. Section 12(3) envisages that no petition for annulling a marriage for violation of Sub-section (1)(c) shall be entertained, if a petition is presented more than one year the fraud had been discovered. This section, in my opinion, creates statutory bar for entertaining of a petition for annulling a marriage on the ground of obtaining consent by fraud. This is not a bar prescribed by way of limitation but a bar imposed for maintaining a petition on this ground. Section 29(3) of the Limitation Act has made the law of limitation inapplicable with respect to marriage and divorce. In the case of Savlaram v. Yeshodabai, AIR 1962 Bom 190 it was held that this provision is in terms mandatory and prohibitory and provides that the Court shall not entertain the petition if the conditions laid down therein are not satisfied. These conditions are in absolute terms and they cannot be relaxed. It further held that even Section 10 of the General Clauses Act has no application. To the same effect is the decision in the case of Nanikaram v. Drupadiben, AIR 1974 Guj 111 where it was observed that this section does not prescribe a period of limitation but creates a statutory bar for entertainment of a petition. In the case of Pranab Biswas v. Mrinmayee Dassi, AIR 1976 Cal 156 a Division Bench of Calcutta High Court observed that even Section 23(1)(d) of the Act will not come to the rescue of the appellant. Section 23(1)(d), according to the learned Judges, enables the Court to refuse relief to the suitor even when the suitor is under no bar of limitation and is otherwise entitled but has instituted the proceedings after an unnecessary and improper delay. I am also of the view that Section 23(1) casts an obligation on the suitor to institute a proceeding without unnecessary and improper delay even if cases falling under other sections. where there is no outward time limit prescribed for presenting a petition. Learned counsel for the appellant has not been able to draw my attention to any contrary decision except the case of Babui Panmato v. Ram Agya Singh, AIR 1968 Pat 190. This case, however, does not decide the question as to the statutory bar in presenting a petition for dissolution of a marriage on the ground of fraud. The question was neither canvassed nor considered. It only held that any misrepresentation as to the age of bridegroom made to the mother, who acted as an agent of the daughter consenting to marriage, having believed the representation to be true, such consent is vitiated by fraud. 1 do not think that Babui Panmato's case (supra) is of any help to the learned counsel for the appellant.
11. I am therefore, of the firm opinion that the suit on the ground of Section 12(1)(c) is not maintainable in view of Section 12(3)(i) inasmuch as, even though the fraud admittedly was detected on 28-4-1977. the suit was filed far beyond one year, i.e. 19-11-1979. This sub-section is mandatory and prohibitory in nature and not by way of limitation. The condition envisaged is neither relaxable nor condonable. I need not go into the other questions whether there was any actual practice of fraud or the fraud was condoned by cohabitation.
12. The last attempt for dissolution of marriage, as stated earlier, is the respondent's leading an adulterous life. In support of this plea the appellant has examined himself as A.W. 1, one Md. Hakim as A.W. 4, one Ganga Bishun as A.W. 6 and one Naresh Kumar Sao as A.W. 7. A.W. 1 has stated that after dissolution of the marriage some time in 1977 he saw his wife witnessing a picture in Ashok Cinema along with one Kapil Kumar. He has further stated that this fact was witnessed by Md. Hakim (A.W. 4), who was with him. It is stated that he was sitting behind them. It has further been averred that on 10-8-1977 near Mangal Talao he found the respondent moving in the same rickshaw along with Kapil Kumar and Ashok Kumar and they were cutting jokes. On 4-4-1978 he saw the respondent along with her mother dining at Rajasthan Hotel. It is further said that after they finished their lunch the respondent along with Kapil Kumar went up-stairs in one of the rooms of the hotel for about an hour. Similarly on 14-5-1978 he found the respondent round about 5 p.m. going along with Kapil and Ashok to Sangat Dharmashala. He has named many persons who had witnessed the aforesaid affairs but chose to examine three witnesses in support of his allegations.
13. A. W. 4 is a tailor at Sultanganj. He has stated that he has only once seen one Kapil in the cinema house along with Sita Devi some time on 5-5-77. He has not seen them again together. He has expressed his ignorance about the residence of Kapil and his father's name. He has further stated that Kapil was identified by the appellant. A.W. 6 stated that on 14-5-1978 for the first time he met the appellant. He has stated that he has seen the respondent in the company of Kapil Kumar and Ashok Kumar on 14-5-78. He says that he is a friend of the appellant. A.W. 7, who sells monkey-nuts, stated that to his knowledge the respondent had bad relationship with Kapil Kumar and Asok Kumar. He is a witness of seeing Kapil Kumar and Asok Kumar going along with Sita Devi on the same rickshaw on 10-8-77. The respondent examined herself as D.W. 1. She has stated in her evidence that she is unaware of the existence of Anil Kumar or Kapil Kumar. She does not know them nor their whereabouts. She has completely denied of her having any connection much less with Asok Kumar or Kapil Kumar.
14. As I have said earlier, Kapil Kumar and Asok Kumar have not been made correspondents in this petition even though it appears that the appellant was aware of their whereabouts. The Patna High Court has framed Rules in the exercise of the powers, conferred under Ss. 14 and 21 of the Hindu Marriage Act, 1955. These Rules are known as Hindu Marriage Act Rules, 1956. Rule 16 of the Rules requires that in any petition presented by a husband for divorce on the ground that the wife is living in adultery, the petitioner shall make the adulterer, if alive, a co-respondent in the said petition. The Court, however, may excuse from the requirement of the said rule such petitioner who by filing of an affidavit states that the respondent is leading the life of a prostitute and, therefore, it is not possible to state about the persons with whom the adultery has been committed; the name of the alleged adulterer is not known even though he made efforts to discover him; the alleged adulterer is dead or for any other sufficient reason as the Court may deem fit to consider. In this case no such petition had been filed in the court below nor any such grounds pleaded on affidavit for the appellant's inability to implead the known adulterers. Adultery is a matrimonial offence. The burden of proving adultery is always on the person alleging adultery, there being a presumption of innocence. Adultery being a serious matrimonial offence, a high standard of proof is required in order to satisfy the Court that the offence has been committed. It is true that normally the matrimonial offence of adultery is expected to be established by circumstantial evidence because direct fact of adultery may be difficult to be proved except in very few cases. Denning, L. J., once remarked on the degree of proof required in the case of matrimonial offences by reiterating the view of Best, C.J., "in proportion as the crime is enormous, so ought the proof to be clear". This principle was applied in the case of Bastable v. Bastable reported in (1968) 3 All ER
701. The question as to the standard of proof required in such matters came to be considered by the Supreme Court in the case Earnist John White v. Mrs. Kathleen Olive White, AIR 1958 SC 441. It was observed while interpreting Section 14 of the Divorce Act that it is the duty of Court to pronounce a decree in respect of matrimonial offence if the guilt is proved beyond reasonable doubt. It was also observed that it is not necessary to prove the issue by any direct evidence for in very few cases can such proof be obtainable. I am of the opinion that though it is true that direct evidence is not always forthcoming in such matters but the circumstances must be such as to lead to the necessary conclusion that adultery was committed by the spouse concerned. It is not possible to lay down a rule of thumb as to what circumstances would be sufficient to establish adultery. But the circumstances certainly should be such as to lead to a guarded judgment of a reasonable and just man to the conclusion. Merely going to picture, dining in a hotel along with the mother without any evidence of affectionate behaviour between the respondent and the persons named would not necessarily lead to the guilt of adultery. In the instant case nobody has caught the respondent and the named person in any compromising situation beyond the statement that in presence of the mother the girl went up-stairs in a hotel room and stayed with Kapil Kumar for about one hour. Neither the owner of the hotel has been examined nor the reservation of any room on that day by Kapil or Asok has been proved. A.W. 4 happens to be a chance witness who saw the respondent in a picture house along with Kapil Kumar. His evidence does not advance the case of the appellant A.W. 7 is merely a hawker of monkey-nuts and a person who cannot be given too much of credence. A. W. 6 happens to be a friend of the appellant and his evidence is also not convincing.
15. I am, therefore, in complete agreement with the finding of the court below that the appellant has failed to discharge the onus cast upon him to prove that the respondent after the solemnization of the marriage, had voluntary sexual intercourse with Asok Kumar and Kapil Kumar. The requirement under Section 13(1)(i) is that a dissolution by a decree of divorce can be obtained if the other party has after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse.
16. There is another difficulty in granting relief so far as this point is concerned for non-compliance with the provisions of Rule 16 of the Hindu Marriage Act Rules, 1956. Mr. D.K. Sinha, learned counsel for the appellant, contended that this Court should remit the case back to the court below for impleading the adulterers as co-respondents and direct the court below to frame issue afresh in their presence and allow the parties to lead evidence in support of their respective pleas. He drew my attention to the case of Udai Narain Bajpai v. Smt. Kusum Bajpai reported in AIR 1975 All 94, where it was held that till the co-respondents were impleaded it was not open to the court either to frame issues in the petition or admit evidence on this issue and, therefore, the framing of the issue by the trial court as well as the findings rendered on this issue are without jurisdiction. It is true that in an appropriate case the Court has power to entertain petition for amendment even at the appellate stage and permit an amendment of the petition under Section 13 of the Act and allow the alleged adulterers to be added as co-respondents. But no such attempt has been made even in this Court beyond making an oral submission that an opportunity should be afforded to implead the adulterers a party to the proceeding and the issue be re-decided.
17. From the evidence referred to above, I am unable to agree with the submission of the learned counsel for the appellant that the appellant has even been able to prima facie establish bad conduct on the part of the respondent requiring an opportunity to be given to the appellant to make an application for excusing him from making the adulterers a party and of establishing his case. The allegations, to my mind, are too vague for adopting the said course. It would not be a proper course to adopt to advance the cause of justice. It is true that the said course was adopted in the case of Idicula Jacob v. Mariyama, AIR 1976 Ker 89 (FB) but the Court in the said case held that "the weight of evidence already on record indicates prima facie very bad conduct on the part of the respondent" and in the interest of justice opportunity to do so was provided. I am not in agreement with the view expressed in the case of Udai Narain Bajpai (AIR 1975 All 94) (supra), which is a single Judge decision of the Allahabad High Court, to the effect that the Court has no jurisdiction to try the issue and, therefore, the finding is without jurisdiction requiring the High Court to remit the case back for reconsideration of the said issue after giving an opportunity to the respondent to implead the adulterers a party to the proceeding. On the contrary, I follow the principles laid down in the case of D. Thomas v. Tara, AIR 1978 Mad 415 (FB), where the Court held that a suit for adultery is not maintainable where the adulterer though known to the plaintiff, is not made a party. The dissolution of marriage on the said ground is not at all maintainable. It is true that the said case was dealing with Section 11(i) of the Divorce Act, 1869 and the said section itself provided for impleading the adulterer as a co-respondent. In my opinion, it makes no difference whether the said constraint is provided either by the Act or by the Rules.
This point of Mr. Sinha, therefore, also fails.
18. I may state here that some affidavits were filed by both the parties after the judgment was reserved. I have not attached any importance to those affidavits.
19. In the result, the appeal fails and is dismissed with costs. Hearing fee is assessed at Rs. 250/-.
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