SRI PRAFULLA KACHOUA vs SMTI PARVATI KACHOUA and ANR

P.K. Deka, J

Heard Mr. A.K. Gupta, learned counsel for the appellant and Ms. N. Hussain, learned counsel for the respondents.

The present appellant is the husband of the respondent No.1 who preferred Title Suit (D) No.48/2007 in the Court of the learned District Judge,

Sonitpur at Tezpur against the respondent No.1 under Section 13 (1) (i) of the Hindu Marriage Act, 1955 implicating the respondent No.2 alleging that

the respondent No.1 had illicit relation with him and later on they were married. Shredding of the unnecessary pleadings it is the case of the

petitioner/appellant that he married the wife/respondent No.1 on 14.12.1998, as per Hindu rites and customs. Out of the wedlock, a female child was

born on 08.02.2000. After the marriage the conjugal life started residing at the residence of the petitioner/appellant. Since the year 2005, the

respondent No.1/wife started avoiding the company of the petitioner/appellant and maintained relationship with the respondent No.2. The respondent

No.1 started to live at her paternal place since 29.04.2005 leaving away the female child with the petitioner/appellant who is in his care and custody.

Though the petitioner/appellant tried the respondent No.1 to bring back to his company, refusing such request the said respondent No.1 continued with

her relationship with the respondent No.2 which is extra marital in nature. On 04.11.2007, the respondent No.1 solemnized her second marriage with

the respondent No.2 in presence of the people of the locality and since then she has been residing with the respondent No.2 at his residence as

husband and wife. The respondent No.1 is involved in sexual intercourse with the respondent No.2 and there is no possibility of the respondent No.1

coming back to the company of the petitioner/appellant by leaving the illicit relationship with the respondent No.2 and as such he sought for dissolution

of their marriage on the ground under Section 13 (1) (i) of the Hindu Marriage Act, 1955.

The respondent No.1 filed her written statement admitting her marriage with the petitioner/appellant and their conjugal life thereafter residing in the

residence of the petitioner/appellant. Denying the allegation of avoidance of the company of the petitioner/appellant, the respondent No.1 pleaded that

the petitioner/appellant avoided her company, started residing in a rented house at Rangapara from the month of August, 2005. Though on various

occasions the respondent No.1 tried to meet the petitioner/appellant in the rented premises but owing to physical torture and cruelty, she had to take

assistance from the Rangapara Mahila Samiti and had to file an FIR in the Rangapara Police Station against the petitioner/appellant. On the assurance

of the petitioner/appellant, she withdrew the FIR on the promise that the petitioner/appellant would treat her as his legally married wife and also

promised that she would not be restrained from meeting her daughter and to that effect, a compromise deed dated 07.05.2006 was executed between

the parties in presence of witnesses. Refuting the allegation of extra marital activities and the sexual intercourse with the respondent No.2, the

respondent No.1 pleaded that the petitioner/appellant on 04.11.2007 sent some persons to the house of respondent No.2 and forcefully took the

signatures of respondent Nos.1 and 2 on a blank stamp paper with a view to implicate them as husband and wife and get rid from her. It is also

pleaded that the father of the respondent No.2 gave her shelter so as to protect her from the harassment of the petitioner/appellant. The allegation of

having sexual intercourse with the respondent No.2 was specifically denied by the respondent No.1 and further brought on record that the respondent

No.1 had filed an application under Section 125 of the Cr.P.C. praying for maintenance from the petitioner/appellant pending trial before the learned

Sub-Divisional Judicial Magistrate, Sonitput, Tezpur.

The respondent No.2 also filed his separate written statement. There is specific denial of the extra marital relation with the respondent No.1

including the alleged sexual relationship and admitted that the parents of the respondent No.2 provided shelter to the respondent No.1 owing to the

harassment and torture caused to the respondent No.1 by the petitioner/husband.

On the basis of the pleadings, the learned court below framed the following issues:-

Whether the respondent No.1, i.e., Smti. Parvati Kachoua has after solemnization of her marriage with the petitioner i.e. Sri Prafulla Kachoua had

voluntary sexual intercourse with any person other than her spouse, in this case, with the respondent No.2, Sri Gobinda Kachoua?

Whether on 04.11.2007, the respondent No.1 solemnized her second marriage with the respondent No.2 according to social rites and customs in

presence of people of locality and since then she has been living with the respondent No.2 as wife and husband, in his residence?

The petitioner/appellant examined five witnesses and the respondents examined three witnesses including the respondent No.1 as DW1, respondent

No.2 as DW2 and the father of the respondent No.2 as DW3. The learned court below vide its judgment and decree dated 10.07.2015 dismissed the

suit where after the petitioner/appellant has preferred this appeal under Section 28 of the Hindu Marriage Act, 1955.

Mr. Gupta submits that the fact of marriage between the respondent Nos.1 and 2 and the reasons behind such marriage have been duly recorded in

Exhibit-1 which as per him is the resolution passed in a public meeting and the said resolution recorded that as it came to the notice of the members of

the public the act of illicit sexual relation between the respondent No.1 and respondent No.2, as such the members present therein the meeting decided

to get them married and accordingly the said marriage took place at the initiative of the members of the public. Admitting that the said marriage is

void, Mr. Gupta wants to project that particular Exhibit-1 as the material piece of evidence in order to bring the preponderance of probability so far the

act of voluntary sexual intercourse between the respondent No.1 and respondent No.2 is concerned admittedly during the sustenance of the marriage

of the respondent No.1 with the petitioner/appellant. Further it was submitted that the respondent No.1 in her cross-examination admitted the fact of

marriage with the respondent No.2 wherein about 40 (forty) villagers were present at the wedding ceremony. It is also pointed out that the respondent

No.1 had admitted that she was living separately from the year 2005. Further it is stated by the DW3, the father of the respondent No.2 that the

respondent No.1 stayed in his house for about one year. On the face of such overwhelming evidence supporting the fact leading to voluntary sexual

intercourse with a person other than the petitioner/appellant, the learned court below had wrongly decided the issues and as such interference by this

Court is required as per submission of Mr. Gupta.

Ms. Hussain, on the other hand submits that the petitioner/appellant completely failed to prove his case and the allegation against the respondent

No.1. The learned court below appreciated the evidence on record in the proper perspective and there is no point in further interference by this Court

in the findings arrived at by the learned court below.

Considered the submissions of the learned counsel. The petitioner/appellant has sought for the decree of divorce under Section 13 (1) (i) of the

Hindu Marriage Act, 1955 which refers voluntary sexual intercourse with any person other than his or her spouse after solemnization of the marriage.

Such an allegation if proved the same would remain as a stigma over the moral character of either of the spouses and accordingly the person who

alleges such allegation against his or her spouse, the same requires to be proved beyond any reasonable doubt.

From the perusal of the evidence of the petitioner/appellant’s side and keeping in view the submissions of the learned counsel appearing on

behalf of the petitioner/appellant it is the Exhibit-1, i.e., the resolution of a public meeting which has been relied heavily by the petitioner/appellant in

order to discharge the burden of the petitioner/appellant in proving the ingredients required under Section 13 (1) (i) of the Hindu Marriage Act, 1955.

There is no eye witness where from the petitioner/appellant could prove that the respondent Nos.1 and 2 were seen in some compromise position in

order to bring home the said allegation of voluntary sexual relationship coupled with the resolution, i.e., Exhibit-1 of the public meeting. Admittedly the

respondent No.1, the wife of the petitioner/appellant took shelter in the house of the respondent No.2 in order to save herself from the harassment

meted to her by the petitioner/appellant. That cannot be a sufficient piece of evidence to presume that the respondent Nos.1 and 2 were involved in

extra marital affairs including voluntary sexual intercourse on the part of the respondent No.1 with respondent No.2. The learned court below while

appreciating the Exhibit-1 rightly came to the findings that there is nothing on record as to how the members holding the meeting came to know that

there is illicit physical relationship between the respondents. The petitioner/appellant ought to have proved that prior to the said meeting there was

direct evidence of respondent No.1 having voluntary sexual intercourse with the respondent No.2. The learned court below further rightly held that the

tenor of Exhibit-1 shows that the so-called marriage between the respondents was imposed on the parties and rightly discarded the photograph,

Exhibit-4. There is a specific issue framed required to pass a decree in terms of Section 13 (1) (i) of the Hindu Marriage Act, 1955. The

petitioner/appellant failed to discharge his burden in order to get the Issue No.1 decided in his favour which the learned court below has rightly decided

against the petitioner/appellant. The other piece of evidence on record as submitted by Mr. Gupta cannot be held to be sufficient piece of evidence in

order to decide the issues, more specifically the Issue No.1 in favour of the petitioner/appellant. There is specific denial by the respondent No.1 as

DW1 that she maintained extra marital relation with DW2, i.e., the respondent No.2. On the face of such denial both in the pleadings and the evidence

of respondent No.1, in our opinion, the appellant/petitioner failed to discharge his burden of proof and put the onus on the respondent No.1 to disprove

the allegation of having voluntary sexual intercourse with respondent No.2.

Accordingly, we do not find any merit in this appeal and the same is dismissed. No cost.

Send back the LCR.