Madhu Sharma vs Subhash Chander Sharma

Dr. Sarojnei Saksena, J.

This is wife''s appeal against divorce decree granted by Mr. R.S. Madan, Additional District Judge, Chandigarh, on the ground of cruelty and adultery in favour of husbandrespondent Subhash Chander Sharma.

Uncontroverted facts are that Subhash Chander respondent was married to Madhu Sharma on November 23, 1976. Thereafter they lived in Chandigarh in various houses in different Sectors. In this wedlock Madhu Sharma gave birth to a daughter on December 1, 1979, and another daughter was born to her on January 29, 1981. For the last few years they are living separately.

On June 16, 1990, respondenthusband filed divorce petition against Madhu Sharma impleading Jagjit Singh Mankotia as respondent No. 2 on the ground that with him his wife is having illicit relations. According to him, his wife was having illicit relations with Jagjit Singh Mankotia since 1980. In his absence Jagjit Singh Mankotia used to visit his house and meet his wife. Neighbours made a complaint to him about this. In April, 1987 his brother Romesh Chander came to his house during the day, knocked the door, and when after 15 minutes Madhu Sharma opened the door, Romesh Chander found Jagjit Singh Mankotia also in the house. Madhu Sharma and Jagjit Singh Mankotia were not properly dressed and they became perplexed because of his visit. Jagjit Singh Mankotia immediately left his house. Romesh Chander disclosed this fact to Subhash Chander respondent. Madhu Sharma could not explain the presence of Jagjit Singh Mankotia in his house during his absence, but she admitted her fault and beseeched pardon. Despite that Jagjit Singh Mankotia continued his visits to his house in his absence. Rattan Lal Joshi also informed him that Jagjit Singh Mankotia comes to his house in his absence. On November 21, 1988, Subhash Chander and Madhu Sharma shifted to House No. 1507, Sector 22A, Chandigarh. Jagjit Singh Mankotia started visiting his house on the pretext of delivering newspaper. In December, 1988 Subhash Chander himself saw Madhu Sharma and Jagjit Singh in a composite mood. He scolded both of them. On October 15, 1989, Subhash Chander along with his brother came to his house at about 7 P.M. Madhu Sharma opened the door, but on seeing them she became perplexed. They found Jagjit Singh Mankotia lying on a Dewan inside the house. Again there was hot altercation between the parties. Madhu Sharma threatened to commit suicide. Subhash Chander respondent called her brother Sudesh Sharma telegraphically, who came on October 17, 1989. He was also conveyed about her misconduct and illicit relations with Jagjit Singh Mankotia. Sudesh Sharma again came on October 31, 1989 and advised Madhu Sharma to behave properly. At that time Subhash Sharma gave Rs. 3,500/ to Madhu Sharma. On October 24, 1989, Madhu Sharma again went to the house of Jagjit Singh Mankotia. On December 7, 1989, Madhu Sharma''s brother came to his house and before him it was settled that she would have no relation with Mankotia. The keys of the locker would be given to her and she would tender apology for her conduct. Subhash Sharma handed over keys of the locker to her. On January 21, 1990, Madhu Sharma quarreled with the petitionerrespondent Subhash Chander and left the matrimonial home. She went to jagjit Singh''s house and lived there for about eight days. On January 24, 1990, Subhash Chander filed a petition before Mohalla Sudhar Samiti, which held its deliberations on January 28, 1990. It was decided that wife of Jagjit Singh and their children could visit Subhash Chander''s house for about one month and Madhu Sharma would come back to petitioner''s house. But on that day she declined to come. She came back on the following day. On February 18, 1990, Mohalla Sudhar Samiti took a decision. Its copy is produced at Exhibit P3. Samiti again held its meeting in the presence of relations of Madhu Sharma. It was decided that Madhu Sharma should go to her brother''s place for some time, but she spent one night at her sister''s house at Chandigarh and after breaking open the lock of the petitioner''s house went inside. He also alleged that Jagjit Singh Mankotia threatened to implicate him in some false case. He lodged a complaint with the police on 5.2.1990. Madhu Sharma lodged a false complaint against him on March 5, 1990. The petitioner alleged that for the last 2/3 years Madhu Sharma is living in adultery. By her conduct she has caused mental and physical torture to him and has thus treated him with cruelty. Hence on both these grounds he prayed for a decree of divorce.

Madhu Sharma respondentappellant in her reply denied all the allegations made in the petition.

Petitionerrespondent Subhash Chander filed replication and reiterated his stand taken in the petition.

Issues were framed. Parties adduced ocular as well as documentary evidence.

On scanning the evidence, the trial Court came to the conclusion that petitionerrespondent Subhash Chander has proved that Madhu Sharma appellant wife is living in adultery. She is having illicit relations with Jagjit Singh Mankotia, Despite many attempts made by the husband she had failed to follow the path of virtue. Thus, by her conduct she has treated him with cruelty. Hence on both the grounds decree of divorce was granted in favour of husband Subhash Chander.

The appellants'' learned counsel vehemently argued that the trial Court has not scanned the evidence on record minutely. It has based its findings relying on the statement of Romesh Chander PW1, without taking this fact into consideration that Romesh Chander was never produced for cross examination. Therefore, his statement should not have been read in evidence. He valiantly contended that so far as the other evidence about the alleged adultery is concerned, there is not even a scintilla of evidence on record to prove that anybody saw the appellantwife Madhu Bala having sexual intercourse with Jagjit Singh Mankotia. The only evidence that has been produced by Subhash Chander husband is based on the suspicion that he nursed against his wife. According to him, the appellantwife has not only stated on oath in Court, but even before the Mohalla Sudhar Samiti and the police she denied that she is having illicit relations with Jagjit Singh Mankotia. She clearly stated that wife of Jagjit Singh Mankotia is her Dharam sister. Therefore, she is maintaining relations with Jagjit Singh Mankotia and his wife for the last so many years. She also made a complaint before the authorities that her husband Subhash Chander is illtreating her and he beats her off and on. Many a time thereafter she was admitted in the hospital. Therefore, she expressed clearly that she wants to live away from Subhash Chander. Both the daughters are also residing with her. He assiduously argued that despite mutual agreement recorded in Exhibit R1 dated January 15, 1990, which is signed by Madhu Sharma as well as Subhash Chander. Petitioner Subhash Chander has not paid anything to her and has not yet transferred his plot in the names of his two daughters. Referring to the documents produced by the petitionerSubhash Chander, he contended that from these documents also it is evident that she was being tortured by her husband. She was not even given financial assistance to run the household or for her personal expenses. Rather the husband stressed that she should leave her job. By resolution dated February 18, 1990, Exhibit P3, the Samiti decided that the husband would keep her properly in the matrimonial home and would give her Rs. 1,500/ per month for running the household and would also pay her Rs. 100/ as pocket money. Though she declined to abide by these terms, but the fact remains that the husband also did not comply with these terms of settlement. Referring to petitionerhusband''s complaint Exhibit P1 dated January 24, 1990, he submitted that till this date husbandSubhash Chander never made an allegation that Madhu Sharma is having illicit relations with Jagjit Singh Mankotia. In this complaint he has mentioned that his wife is not cooperating in family life for the last 3/4 months and Jagjit Singh Mankotia is misguiding her. According to him, dispute between the parties arose after Exhibit R1, which is dated January 15, 1990. Before that, as is evident from Exhibit P1 dated January 24, 1990, the husband Subash Chander never made any allegation against her that she is having illicit relations with Jagjit Singh Mankotia. In this connection, he also contended that husbandSubhash Chander as PW2 has admitted in unequivocal terms in his crossexamination dated January 16, 1993, that he was cohabiting with his wife till the filing of the petition. The learned counsel stressed that if the husband was really doubting the chastity of his wife, his conduct would have been otherwise and he would not have willingly cohabited with his wife till the filing of the petition i.e. June 11, 1990. On the basis of this statement of the husband, learned counsel further submitted that thus it is obvious that if at all there were any moral lapses in the behaviour of the wife, the husband condoned them. According to him, the intention of filing this petition is obvious from documents Exhibits P6 and R1. Exhibit P6 is dated December 9, 1989, whereby Madhu Sharma appellant has given consent for his second marriage. She has also expressed that she will keep her daughters in her custody and will live all alone. In continuation of it on January 15, 1990, the parties agreed to live separately. He also relied on various authorities.

The husbandrespondent''s learned counsel argued that no direct evidence can be adduced about illicit relationship of two persons. Only circumstances can be proved wherefrom inference is to be drawn that those two persons must be having illicit relations. Husbandrespondent has proved all those circumstances. He not only filed complaint before the Mohalla Sudhar Samiti and Punjab Istri Sabha but also before the police authorities complaining about the illicit relationship that his wife is maintaining with Jagjit Singh Mankotia. Even other witnesses have also corroborated his testimony on this point. Husband has produced documents Exhibits P1 to PW8/A, B, C to prove that he made efforts to bring her round to see the path of virtue, but she always declined. Even the members of Mohalla Sudhar Samiti persuaded her by passing resolution dated March 4, 1990 Exhibit P2, whereby she was directed not to have relations with Jagjit Singh Mankotia, but she declined to sign the proceedings. On his complaint dated January 24, 1990, Exhibit P1, Mohalla Sudhar Samiti initiated proceedings and first meeting was called on January 28, 1990. In that meeting husbandSubhash Chander told the Samiti members that Madhu Sharma has left his house on January 21, 1990. In that meeting Shri D.K. Watts told the Samiti that Madhu Sharma was in his house for one day and thereafter she had gone to Mankotia''s house. On January 28, 1990, she was called before the Committee and she clearly disclosed that she does not want to reside with her husband. She reiterated that she wants to live all alone with her children and her husband be made to pay her maintenance. Thereafter the Committee decided that she will not go to Mankotia''s place nor Mankotia will visit her place though Mankotia''s wife and children can meet Madhu Sharma for about one month. On January 29, 1990, she was brought from the house of Mankotia. The Committee observed that she was allowed by the Committee to live there in his house for two days as she was not keeping fit and was admitted in the hospital. He also referred to the proceedings of the Committee dated February 18, 1990, whereby again she was asked not to have any relations with Mankotia but again she declined to agree to this decision of the Committee.

Husbandrespondent''s learned counsel referred to documents Exhibits P5, PW6/A PW6/B/C and Exhibits PW8/A, PW8/B and PW8/C. He argued that these documents are duly proved by the witnesses. PW8 has proved documents Exhibits PW8/A, PW8/B and PW8/C. From the document Exhibit PW8/A it is evident that on April 5, 1990, on the complaint of husbandSubhash Chander Jagjit Singh Mankotia was called at the police station, wherein Jagjit Singh Mankotia undertook that he would not meet Madhu Sharma, wife of Subhash Chander, in future either secretly or openly and if he ever committed a default with regard to this undertaking, legal action be taken against him. He also bound himself to stop Madhu Sharma from coming to his place and if she would come, he would send a message to Subhash Chander. Referring to Exhibit PW8/C he contended that on June 17, 1990, on the complaint of husbandSubhash Chander police raided the house of Jagjit Singh Mankotia and found Madhu Sharma therein after sunset. According to him, he and his witnesses Vinod PW4 and J.D. Chawla PW3 proved that in the company of police when they entered the house of Jagjit Singh Mankotia they not only found Madhu Sharma there but also noticed that glasses containing liquor were placed on the table where they were sitting.

Husbandrespondent''s learned counsel referred to the statement of Romesh Chander PW1 and argued that this witness was examined on March 4, 1991, when appellants'' counsel declined to crossexamine him on this date and requested that first of all husband should be examined. Thereafter no such prayer was made that Romesh Chander be kept present for crossexamination. Therefore the statement of Romesh Chander PW1 cannot be omitted from consideration. Referring to the statement of Romesh Chander, he argued that from his statement as well as from the statement of Subhash Chander it is evident that on many occasions i.e. in April 1987, on October 15, 1988 and in December 1988, husbandSubhash Chander and his brother saw Madhu Sharma and Jagjit Singh Mankotia in an objectionable compromising position.

Referring to the statement of husbandSubhash Chander that till the petition was filed he was cohabiting with his wife, he contended that this cannot amount to condonation because condonation is always subject to this implied condition that the offending spouse will not commit a fresh matrimonial offence. No matrimonial offence is ever efaced by condonation. It is only obscured but not obliterated. From the statement of Madhu Sharma PW1, Jagjit Singh Mankotia PW2 and Raj Kumari PW3 it is evident that despite filing of the petition Madhu Sharma is continuously maintaining illicit relations with Jagjit Singh Mankotia. She has not come back to the matrimonial fold and has not expressed her remorse for her past conduct. Therefore, on the basis of that statement of the husband, it cannot be deduced that he has condoned the matrimonial offence committed by Madhu Sharma. He also referred to various authorities.

Adultery is one of the grounds for a spouse to seek dissolution of marriage under section 13 of the Hindu Marriage Act, 1955 (in short, the Act). Its subsection (1) provides that any marriage solemnized before or after the commencement of the said Act, may, on a petition filed either by husband or wife, may be dissolved by a decree of divorce, on the ground that the other party has, after the solemnisation of the marriage, had voluntary sexual intercourse with any person other than his or her spouse. Therefore, what is required to be proved in this case is that after November 23, 1976, Madhu Sharma had voluntary sexual intercourse with Jagjit Singh Mankotia to establish the aforementioned ground. The original clause ``is living in adultery'''' is substituted by the present clause referred to above, which is a verbatim reproduction of the original section 10(1)(f) before its deletion in 1976. After the amendment made in 1976, under the present provision it is sufficient to prove that the respondent had voluntary sexual intercourse with any other person other than the spouse. It need not be proved that the respondent has been living in adultery. A comparison of the provisions prior to amendment and subsequent to amendment would indicate that the rigour of establishing ``living in adultery'''' has been lessened by requiring to prove that the spouse had voluntary sexual intercourse with any person other than his or her spouse.

In such matters public interest requires that marriage bonds shall not be set aside lightly or without strict enquiry. The Supreme Court in Dr. N.C. Dastane v. Mrs. S. Dastane, AIR 1975 SC 1534 observed that in the case of a matrimonial offence, it is not necessary and it is really not possible to prove it by any direct evidence in all cases and the question has to be decided on a preponderance of probabilities.

An act of adultery is in its nature a very secret act. Direct proof could not be available in all cases. It is extremely difficult to get direct evidence and if the Courts insist on direct evidence in proof of adultery it will amount to a denial of the legitimate protection of marital rights. Therefore, proof of actual adultery is not necessary and circumstantial evidence which lands to an inference of adultery is sufficient. The degree of proof need not reach certainty but it must carry a high degree of probability. Appreciation of evidence in such cases must be careful and proper. It is only when the evidence is cogent, consistent and irrefragable, the finding of adultery could be recorded.

Circumstantial evidence is normal test in proof of the charge of adultery, but the circumstances must be such as to lead to it by fair inference as a necessary conclusion. Proof required to prove adultery need not necessarily be what is at times said proof beyond a shadow of doubt. At the same time, the Court does not, as a general rule, infer adultery from evidence of opportunity alone but would require some satisfactory proof.

If from the circumstances which are proved by the petitioner only this much is proved that there were opportunities for committing adultery, that evidence is nothing; there must be circumstances amounting to proof that opportunities could be used, such as, the association of the parties was so intimate and their mutual passion so clear that adultery might reasonably be assumed as a result of an opportunity for its occurrence.

Keeping these principles in view the evidence produced by the parties is to be scanned very minutely to arrive at a conclusion whether the husband respondent has proved by cogent, reliable and unimpeachable evidence that Madhu Sharma had illicit relations with Jagjit Singh Mankotia.

So far as the documentary evidence is concerned, in the complaint Exhibit P1 dated January 24, 1990, there is not even a whisper of this allegation against the wife and the alleged paramour. The husband has only complained that the wife is not cooperating with him in family life for the last 3/4 months and Jagjit Singh Mankotia is misguiding her. In the background of this, document, it is evident that the statement of Subhash Chander PW2 and Romesh Chander PW1 is unreliable that in 1981, in 1987 or in 1988 or even in the early months of 1989 Madhu Sharma was having any illicit relations with Jagjit Singh Mankotia. Till 3/4 months before January 24, 1990, the husband had no complaint against his wife on this count. On the presentation of this complaint, proceedings were held by Mohalla Sudhar Samiti. Its proceedings are produced at Exhibit P3. From a plain perusal of these proceedings, it is evident that the husband also made a complaint that on January 21, 1990, Madhu Sharma has left his house and she has gone somewhere. Then Shri K.D. Watts submitted that Madhu Sharma lived in his house for one day and then she left for the house of Mankotia. An attempt was made to call both the parties before the Committee on January 28, 1990. When they appeared, they were asked to explain their position. Madhu Sharma stated before the committee that Subhash Sharma''s behaviour towards her is not good; he beats her; therefore, she does not want to live with him. She asked the Committee people to decide her dispute, so that she may live with her children separately and honourably, and the husband should be made to pay her maintenance. She also disclosed that wife of Jagjit Singh Mankotia is her Dharam sister. She cannot sever her relations with her because of her past obligations. At that time Subhash Sharma could not say a word in rebuttal and only relied on his complaint. Thereafter the Committee decided that a month''s time be given to both the parties to improve their relations. Madhu Sharma, who was residing for the last one week in the house of Mankotia, was ordered to come back to the matrimonial home. Some persons were sent to bring her back, but she declined saying that she would come back on the following day. The Committee decided that for one month, wife and children of Mankotia can meet Madhu Sharma, but neither Madhu Sharma will go to Mankotia''s house nor Mankotia would come to Madhu Sharma''s house. The Committee also observed that Madhu Sharma was ill and was admitted in the hospital. Therefore, the Committee permitted her to reside in Mankotia''s house for two days.

The other proceedings of this Committee are dated February 18, 1990, wherein four proposals were made, namely, the husband was directed to live in harmony with his wife in the matrimonial home; to pay Rs. 1,500/ per month for household expenses and Rs. 100/ as her pocket money; Madhu Sharma will leave her temporary job; both of them will live together and Madhu Sharma will not have any relations with Mankotia. But Madhu Sharma declined to agree to these proposals.

On March 4, 1990, the Committee again resolved that there was some misunderstanding between husband and wife but now they would live in harmony and would not repeat their previous mistakes, Madhu Sharma would not have any relation with Mankotia or with his family, which was the cause of tension between the husband and wife; Madhu Sharma would leave her temporary job; Subhash Sharma would give Rs. 200/ per month as pocket money to Madhu Sharma and she would not be asked by him to account for it and thenceforward if either of them wanted to go to any of their relations or they were required to go out due to some work, one spouse would disclose the socalled visit to the other spouse. Even these proposals were not accepted by Madhu Sharma and she declined to sign, though these minutes were signed by many persons.

The husbandSubhash Chander has also filedexhibit P4, a document alleged to be a complaint made by people of the vicinity to President, Mohalla Sudhar Samiti, wherein these people have made an allegation that Madhu Sharma is having illicit relations with Jagjit Singh Mankotia. They remain locked in the house mentioned therein for hours together and thereby they are causing nuisance for the people living there, but as no signatory of this document is produced, hence in my considered view, this document is not proved.

Exhibit P5 is the order passed by the SubDivisional Magistrate, Chandigarh, on January 23, 1992. The police registered a case under sections 107/151 Cr.P.C. on which proceedings were held before the S.D.M. He has mentioned in this order that the crux of the story is that respondent Jagjit Singh has developed illicit relations with wife of Subhash Sharma and he frequently visits house of Subhash Sharma to see his wife Madhu Sharma. The President of Mohalla Sudhar Samiti Sector 22 also confirmed this allegation. From these facts he held that there is likelihood of breach of peace and made both the parties to submit surety bonds in the sum of Rs. 20,000/. In the end he observed that SI Jagir Singh is also directed to proceed against Madhu Sharma for moral turpitude if the circumstances so warrant. This order does not carry any legal weight. How can the police proceed against any citizen for any such moral lapse.

Exhibit P6 is a writing given by Madhu Sharma on December 9, 1989, permitting her husband to enter into another matrimonial alliance, but declaring emphatically that she will not give custody of her daughters to him and will live all alone. Exhibit P7 is outdoor ticket of Madhu Sharma. Exhibits PW6/A and B are notices sent by Punjab Istri Sabha to Jagjit Singh Mankotia and Madhu Sharma. Exhibit PW6/C is a certificate given by Janki Vijay Singh PW6, Secretary, Punjab Istri Sabha. She has stated that on the complaint made by Subhash Sharma against his wife and Jagjit Singh Mankotia initially Jagjit Singh Mankotia and Madhu Sharma were summoned by the Sabha by sending notices Exhibits PW6/A and B, but they declined to appear. Thereafter the matter was entrusted to her to resolve the dispute between the parties, but she could not succeed and submitted her report Exhibit P6.

HC Trilochan Singh PW8 has proved documents Exhibits PW8/A, B and C. Exhibit PW8/A is DDR No. 27 dated April 5, 1990, wherein it is recorded that on the complaint of Subhash Sharma, Jagjit Singh Mankotia was called at the police station, who undertook that he would not meet Madhu Sharma in future either secretly or openly and if he committed default, legal action be taken against him. He also bound himself that if Madhu Sharma comes to his house, he would stop her from coming and would also inform Subhash Sharma. Exhibit PW8/B is copy of DDR No. 21 dated April 8, 1990, which also records the same statement given by Jagjit Singh Mankotia to the police officials. Exhibit PW8/C is copy of DDR No. 25 dated June 17, 1990, wherein it is recorded that on this date police visited the house of Jagjit Singh Mankotia and found Madhu Sharma present there. On being interrogated, Madhu Sharma told ASI that Mrs. Mankotia is her Dharam sister; for the last so many years she used to visit them often on her own free will along with her children and on that account she was having altercations with her husband Subhash Sharma. She also disclosed that she had filed a petition under Section 125 Cr.P.C. and had also claimed maintenance from her husband. She further made a complaint that her husband has defamed her alleging that she is having illicit relations with Jagjit Singh Mankotia, though she is not having any such relation with him. The police could not take any action on these facts.

So far as oral evidence adduced by the petitionerhusband is concerned, statement of Romesh Chander PW1 cannot be taken into consideration as he was never subjected to crossexamination. Further, in view of the complaint of Subhash Sharma Exhibit P1 dated January 24, 1990, statement of Romesh Chander loses all its credibility. Subhash Sharma has pleaded that Romesh Chander disclosed what he saw in April 1987 in his house, but on oath Romesh Chander has stated that he disclosed these facts to his elder brother Jagdish Sharma, who further narrated this incident to Subhash Sharma. Subhash Sharma PW2 has testified that when he was living in Sector 24 twice he saw Madhu Sharma serving tea to Jagjit Singh Mankotia. On being enquired, she kept mum. He has also stated that his neighbours also made a complaint about the immoral alliance of Madhu Sharma and Jagjit Singh Mankotia. But no neighbour has been examined by him to prove such allegations. He has further deposed that in December 1988 while he was living in Sector 22, Chandigarh, when he came back to his house he found Madhu Sharma and Jagjit Singh Mankotia in his house. On receiving a call bell, she opened the door. He found Jagjit Singh Mankotia lying on a wooden Dewan. When in the presence of brother of Subhash Chander, Jagjit Singh Mankotia was interrogated about his behaviour, she retorted that Jagjit Singh Mankotia is her brotherinlaw and would definitely come to her house. Subhash Sharma has also stated about the incident that took place on October 15, 1989, when he and his brothers came to his house and found the door closed. When call bell was given, Madhu Sharma opened the door and they found Jagjit Singh Mankotia sitting on a wooden cot. Then her brother Sudesh Sharma was called. He came on October 17, 1989. After making enquiry he also tried to persuade Madhu Sharma to behave properly. But Sudesh Sharma is not examined by either party.

Subhash Sharma PW2 has also stated that on December 7, 1989, a meeting was held in his house, which was attended by Sudesh Sharma, his wife and his own brothers. They all decided that Madhu Sharma would have no association with Jagjit Singh Mankotia and Subhash Sharma would give key of the locker to Madhu Sharma. But thereafter, according to Subhash Sharma, on January 21, 1990, she left his house after an altercation and went to the house of Jagjit Singh Mankotia. As I have discussed above, the circumstances under which she left the matrimonial home and went to the house of Jagjit Singh Mankotia are recorded in the proceedings of Mohalla Sudhar Committee dated January 28, 1990, Exhibit P3. Thereafter on January 24, 1990 he lodged complaint before the said Committee, which is at Exhibit P1. The husband has also stated that on March 4, 1990, Istri Sabha called a meeting. This evidence is also referred to above. Lastly, Subhash Sharma has stated about the incident of June 16, 1990. J.D. Chawla PW3 and Parmod Kumar PW4 have also corroborated him so far as the incident dated June 16, 1990 is concerned. All these three witnesses have stated that they, went to the house of Jagjit Singh Mankotia at about 11.15 P.M. in the company of police officials. Madhu Sharma was present in his house. These witnesses have testified that where they were sitting, glasses of liquor were lying and they were smelling of liquor, but no such fact is recorded in DDR Exhibit PW8/C. Further, the divorce petition was filed on June 11, 1990. Therefore, this evidence cannot be considered. For holding this view, I take support from Smt. Archana Sharma v. Suresh Kumar Sharma, 1994(2) RRR 52 (P&H) : 1994(3) ILR 702.

Balwant Singh Negi PW5 being Secretary of Mohalla Sudhar Samiti has proved Exhibits P2 and P3, which are considered above. PW7 Chander Kumar Jain is President of Mohalla Sudhar Samiti. He has only proved that when Subhash Sharma made a complaint before the Samiti, he forwarded his complaint to the police. He has also stated that on that complaint the police reached the house of Jagjit Singh Mankotia where Madhu Sharma was found in the late hours of the night. This evidence is also considered above.

In rebuttal, Madhu Sharma examined herself and deposed that Veena alias Raj Kumari RW8 is the wife of Jagjit Singh Mankotia. She knows her for the last 14 years and is her Dharam sister. She has further stated that after the marriage, Subhash Sharma started maltreating her and he used to beat her on trifles. Because of her old association with Raj Kumari she used to visit the house of Jagjit Singh Mankotia. They also used to come to her house. According to her, Subhash Sharma deserted her in November or December 1989 on the pretext that he wants to live separately and cannot live with her. At that time Exhibit R1 was executed by both of them. He agreed to pay her maintenance at the rate of Rs. 1,300/ per month and also agreed to transfer his plot at Panchkula in the names of the daughters, but as thereafter he did not do anything, she filed a petition claiming maintenance for herself and her children. The Court has awarded Rs. 900/ per month to her. She has also stated that her husband filed an injunction suit against her to evict her from house No. 507, Sector 22A, Chandigarh, the matrimonial home. That suit was dismissed. After her filing the maintenance petition, the husband has filed this divorce petition. She has also testified that her husband beat her for the first time in October 1989. Thereafter she was admitted in Sector16 hospital. Her discharge slips are at Exhibit R2 and OPD prescription is at Exhibit R3. She has also admitted that she was summoned by Mohalla Sudhar Samiti. She denied that her husband ever had any panchayat with her brother and with his brothers at Jalandhar. According to her, after the execution of the document Exhibit R1 dated January 15, 1990, husband started objecting to her going a Mankotia''s place. She has admitted in unequivocal terms that she is still visiting the house of Mr. and Mrs. Mankotia because Mrs. Mankotia is her Dharam sister. She has admitted execution of writing Exhibit P6 and has clarified that after beating her got this writing from her. She has also admitted her signature on Exhibit P3, proceedings before the Mohalla Sudhar Samiti. She has also admitted that she has not visited the house of the petitioner bearing No. 1211, Sector 23, Chandigarh, where he is living with his brothers for the last three years.

Jagjit Singh Mankotia is examined as RW2. Corroborating Madhu Sharma''s statement, he and his wife Raj Kumari RW3 have testified that Raj Kumari and Madhu Sharma are Dharam sisters. Therefore, they are maintaining this relationship by visiting each other''s house. Jagjit Singh Mankotia has also denied having any illicit relations with Madhu Sharma. According to him also, Subhash Sharma used to beat Madhu Sharma. He has testified that in 1990 Subhash Sharma left Madhu Sharma in House No. 503, Sector 22, Chandigarh. Then he and his wife gave financial assistance to Madhu Sharma in the absence of the petitioner. According to him, Subhash Sharma deserted Madhu Sharma in January 1990 and thereafter has not come back to the said house. He has denied that on June 16, 1990, his house was raided by the police and Madhu Sharma was found in his house at 11 P.M. He has admitted that in the proceedings under sections 107/151 Cr.P.C., the police had apprehended him.

Raj Kumari RW3 is the wife of Jagjit Singh Mankotia. She has also stated that her husband is not having any illicit relations with Madhu Sharma. She is categoric that upto November, 1989 Subhash Sharma never objected to her husband''s visit to his house and they are still on visiting terms. She has also denied that on June 16, 1990, her house was raided by the police.

From the evidence adduced by the parties, it is evident that Madhu Sharma and Subhash Sharma were not living in harmony since 1989. Subhash Sharma left her alone in House No. 507, Sector 22A, Chandigarh. He also filed an injunction suit against her, which was dismissed. He entered into a compromise with his wife that they will live separately; he will give her maintenance at the rate of Rs. 1,300/ per month and will transfer his plot in the names of the daughters. But when he declined to do anything, the wife filed maintenance petition against the husband. Thereafter a row of allegations and counterallegations began. His first complaint is Exhibit P1 dated January 24, 1990. Had it been true that he was convinced that Madhu Sharma is having illicit relations with Jagjit Singh Mankotia, he would have clearly mentioned so in his complaint Exhibit P1. But allegations made in this complaint corroborate the wife''s statement that as they were not having cordial relations and Jagjit Singh Mankotia was helping her, he started suspecting their relationship and thereafter as he wanted to get rid of her, he approached Mohalla Sudhar Samiti, again approached Punjab Istri Sabha as well as Punjab Police, but could not get any redress. As I have discussed above, from the proceedings of Mohalla Sudhar Samiti it becomes obvious that she was maltreated by the husband and as she was on visiting terms to the house of Jagjit Singh Mankotia, since Raj Kumari Mankotia is her Dharam sister and they are friends for the last 14 years, he started defaming her, levelling allegations against her that she is having illicit relations with Jagjit Singh Mankotia. Had it been so, at least Raj Kumari Mankotia would not have made the statement on oath before the Court against the said allegation. She would have been the first person to join hands with Subhash Sharma to depose that her husband is having illicit relations with Madhu Sharma. Secondly, it is pertinent to note that there is cogent evidence that Madhu Sharma used to go to Jagjit Singh Mankotia''s house along with her daughters and Jagjit Singh Mankotia used to come to Subhash Sharma''s place with his wife and children. So far as the petitionerhusband''s evidence that once or twice he or his brothers saw Jagjit Singh Mankotia alone in his house in the company of Madhu Sharma is concerned, that evidence is not reliable at all. Subhash Sharma is having that suspicion that Madhu Sharma is having illicit relations with Jagjit Singh Mankotia and under that suspicion he has filed this divorce petition. The trial Court has utterly failed to scan the evidence very minutely. Such allegations are very easy to level against any spouse but before accepting such allegations as truth, the Court is required to scan each and every piece of evidence adduced to prove such allegation to arrive at a conclusion whether by the proved circumstances the petitioner has been able to prove that allegation to the satisfaction of the Court. These allegations are also required to be considered keeping in view the status of life, standard and way of living of the parties. Because the husband illtreated the wife, beat her, forsook her and levelled this false allegation against her, now she is not willing to come back to the matrimonial fold. They are living apart for the last so many years. The daughters are also living with Madhu Sharma. If really the husband was convinced that Madhu Sharma is having illicit relations with Jagjit Singh Mankotia, which is going to have an adverse effect on the moral development of his daughters, he would have filed a petition before the competent Court seeking custody of his children, but till today no such step is being taken by him. This further reflects on the hollowness of his alleged allegation of adultery. Further, it is also to be noted that the husband has categorically admitted that till the filing of divorce petition on June 11, 1990, he was having cohabitation with his wife, though he has stated that since April, 1987 she was having illicit relations with Jagjit Singh Mankotia. This further proves that his above allegation is untrue. It is human nature that a husband who nursed such a suspicion against his wife, suspects her chastity, would be the last person to cohabit with his such wife. If he was cohabiting with his wife till June 11, 1990, that also indicates that he is falsely defaming his wife alleging that she is having illicit relations with Jagjit Singh Mankotia. From the other angle, if this statement is judged, it amounts to condonation of the alleged moral lapse on the part of Madhu Sharma. For holding this view, I take support from Maganlal Budhaiah Patel v. Bal Dehi, AIR 1971 Gujarat 33 and Smt. Kamaljit Bhullar v. Simrat Preet Singh Bhullar, 1991(1) HLR 231. Thus, in my considered view, the husband has utterly failed to prove that the wifeMadhu Sharma is having illicit relations with Jagjit Singh Mankotia.

The ground of cruelty is based on the ground of adultery. No other fact or circumstance is alleged to prove the said ground of cruelty. Thus, in my considered view, even the ground of cruelty falls to the ground along with the ground of adultery. By the (sic) that Subhash Sharma has treated Madhu Sharma with cruelty.

From the evidence discussed above, it is evident that both the parties have lost that tender lovable emotion for each other. She wants to live separately for her own reasons. He is suspecting her fidelity. Thus, obviously he is also living separate from her since 1989. Their marriage is irretrievably broken emotionally, factually and actually. If they are not allowed to live apart under a decree of divorce, that would be thrusting them to live further in disharmony, mental stress and strain, thus, in my considered view, divorce is to be granted to the parties on this ground alone that the marriage has irretrievably been broken.

Accordingly, a decree of divorce is hereby granted on the above ground and the findings recorded by the trial Court with regard to issues 1 and 2 are set aside. Copy of the decreesheet be given to both the parties free of costs. The appeal is disposed of accordingly.