Jairam vs Gayatri Bai

Goutam Bhaduri, J

Challenge in this appeal is to the judgment & decree dated 2-11-2019 passed by the First Additional Principal Judge, Family Court, Durg, in civil suit No.30-A/17 whereby the suit filed by the appellant/husband under Section 13(1)(i) and 13(1)(ia) of the Hindu Marriage Act, 1955 (for short ‘the Act, 1955’) seeking decree of divorce was rejected.

The indisputable facts, in brief, are that on 20-4-2006 the marriage took place between the parties and out of the wedlock three daughters were born and one daughter died immediately after birth. It was alleged by the appellant/husband that the respondent/wife was having an illicit relation with a person outside the marriage. While she was talking to that person over mobile, the said conversation was recorded, which got transcripted into a CD (Compact Disc). The husband also stated that when he asked the wife to hear the voice recorded in mobile, she broke it into pieces. According to the husband, the chip of the mobile, however, was kept by him. It was pleaded thus, it is evident that the wife was having an illicit relation with other person outside the marriage. The husband also pleaded that the wife has refused to have physical sexaul relation with him as such it also amounts to cruelty within the ambit of Section 13(1)(i) and 13(1)(ia) of the Act, 1955.

The respondent/wife denied the entire allegations and instead it was stated that since three daughters were born (one died immediately after birth) she was being treated with cruelty. It was further stated that under those circumstances the wife was made to leave the house of the husband by force.

Learned counsel appearing for the appellant/husband would submit that the evidence on record would show that the husband has categorically stated that he caught the wife while she was talking with other person outside marriage and the conversation was recorded in mobile. The said conversation recorded in mobile was further transcripted in a CD, which was produced as Article A/1. The trial Court should have, therefore, examined that CD by playing the same. He would next submit that though the sufficient evidence was produced, it was ignored. He would lastly submit that from the statement of husband it is evident that the wife refused to have sexual relation with him, which would result into cruelty to the husband. Thus, the husband is entitled for decree of divorce.

Learned counsel appearing for the respondent/wife, per contra, would submit that only bald allegations have been levelled by the husband. The averments which have been made in the plaint should have been proved by acceptable evidence. He would further submit that only by production of CD it cannot be presumed or assumed what was recorded in it and, as such, the statement of the appellant cannot be accepted. As far as the allegation levelled by the husband with regard to refusal of physical relation with him is concerned, the wife never refused the same. According to the respondent, the finding of the trial Court on this count too was legal and the impugned judgment and decree do not require any interference.

We have heard learned counsel appearing for the parties and perused the record.

The Family Court framed the issues for adjudication i.e. (1) (a) whether the respondent wife has illicit relation with other person; 2(b) whether the wife had an sexual intercourse with a person other than the husband after the marriage; and (3) whether the wife refused to have a sexual relation with the husband.

To appreciate the facts, we have gone through the pleadings and evidence. The husband stated in his evidence that on 29-1-2016 while wife was taking with other person the voice was recorded in the mobile, as the mobile contains auto recording feature. He further stated that when she was confronted with this fact, the wife admitted that she is having an affair with other person since last two years. Thereafter, those facts were informed to the father of the respondent namely; Sukhuram Patel. The evidence of the husband would show that the CD was marked as Article A/1. The CD was said to be of conversation over mobile in between wife and the other person to whom she was talking on 29-1-2016. Though it is stated that the mobile was broken by the wife when she was confronted, the husband kept chip of the mobile and got the conversation converted into a CD, no evidence has been placed on record to establish that by whom the said voice transcription was converted and recorded into CD. The original mobile chip was also not produced before the Court. Even the certificate as required under the provisions of Section 65-B of the Evidence Act is also not attached to the CD. The submission of the counsel for the appellant if accepted that the Court should have heard the CD also would have been no use as to whose voice was recorded in the CD cannot be affirmed even by playing the CD or examination of the same by the Family Court. The appellant has averred that the person with whom the wife was talking was Toran Patel, who was a neighbour. In cross-examination at para 16 he stated that he has not informed about the illicit relation of his wife to the society. Toran Patel was not arrayed as a party.

Section 13(1)(i) of the Act, 1955 purports that the decree of divorce can be passed on the ground that the other party has after the soleminisation of marriage had voluntarily sexual intercourse with any other person other than his or her spouse. The statement in this regard of the husband is only confined to that he found his wife to have a conversation with the person outside the marriage, therefore, the evidence which are placed on record by the husband is not sufficient to envelope grounds as enumerated under Section 13(1)(i) and 13(1)(ia) of the Act. 1955. The appellant appears to have miserably failed to prove the fact to get decree of divorce.

The other ground which is raised is about the fact that the wife refused to have sexual relation with the husband.

The Hon’ble Supreme Court in the matter of N.G. Dastane (Dr.) v S. Dastane reported in AIR 1975 SC 1534 observed that sex plays an important role in marital life and cannot be separated from other factors which lend to matrimony a sense of fruition and fulfillment, but in order to get a decree of divorce to convert into as cruelty it is to be proved by an evidence, which is beyond reasonable doubt and acceptable fact. The husband in his pleading and evidence stated that without any reason the wife refused to have sexual relation. Dinesh Patel (PW-2), brother of the appellant, has also supported the contention of the appellant that he disclosed that the wife refused to have sexual relation. On the other hand, in her statement the wife completely disowned those facts and stated that she never refused to have sexual relation, but instead she alleged that on account of birth of three daughters (one died immediately after her birth) she was subjected to torture by the husband and his family members and eventually she was forced to leave the house on 30-1-2016. She further stated that the reason for the hidden object on the part of the husband was to have perform second marriage.

From the fact that three daughters were born during continuation of husband and wife were being together, the presumption may be otherwise. Except the bald statement that the wife refused to have sexual relation it cannot be conclusively proved that they are not supported with ancillary facts and circumstances. The statement of the husband cannot be accepted to be conclusive.

Under the circumstances the finding recorded by the trial Court that the husband failed to prove the fact that the wife refused to have sexual relation with him appears to be correct. The impugned judgment and decree passed by the Court below is just and proper warranting no interference of this Court.

In the result, the appeal sans merit is liable to be and is dismissed, leaving the parties to bear their own cost(s).

A decree be drawn accordingly.