Divorce : False allegation of adultery against husband is cruelty


Bench: JUSTICE D.M. Dharmadhikari

Pushpa Datt Mishra
Smt. Archana Mishra alias Premvati Choubey On 08 May 1991

CASE NO.F.A. No. 15 of 1990


This appeal is by the husband under Section 28 of the Hindu Marriage Act, 1955 (the Act) against the judgment dt. 22-12-1989 of the Court of I Additional Judge to the Court of District Judge, Durg, whereby although on merits, the husband was held entitled to a decree of divorce on the ground of alleged cruelty on the part of the wife, but the relief has been refused on the ground that Court at Durg had no jurisdiction to entertain the petition. The Court, on the above conclusion, returned the petition to the husband for presentation before the proper Court.

Both husband and wife are employed in Govt. service and at the time of marriage and also on the date of petition were posted at two different places. It is also admitted that the marriage between the parties took place at village Chandok in Sagar District. The husband’s parental house is at village Buxwaha in Chhatarpur District. On the date of the petition filed in the trial Court seek ing the decree of divorce, the wife was posted at Sagar and the husband was posted at Durg. The husband filed the petition for divorce in the court at Durg pleading that the parties last resided together at Balod, within the jurisdiction of the Court. The only pleading with regard to the place of jurisdiction of the Court is that the parties last resided together in Aug., 1982 at Balod in District Durg. The husband claimed a decree of divorce on the ground that the wife was sexually impotent . The trial Court did not accept the ground urged by the husband of impotency , because no medical evidence in support thereof was led and the other oral evidence led was not found sufficient in proof of the alleged ground. The trial Court, however, recorded a finding that the husband was entitled to a decree of divorce because the wife, in reply to the petition of divorce, took a reckless plea of the husband being leading an adulterous life, which she was unable to substantiate by cogent and reliable evidence. The trial Court placed reliance on decisions of several Courts contained in para 14 of its judgment to hold that such an irresponsible and false accusation by the wife against the husband is included within the matrimonial offence of “cruelty” within the meaning of Section 13(l)(ia) of the Act, entitling the husband to a decree of divorce on that ground. As has been stated above, the trial Court returned the petition to the husband on the ground of lack of jurisdiction in it.

The first question, therefore, needs to be decided is whether the Court at Durg had jurisdiction to entertain the petition? The wife in her written statement denied to have ever gone to stay with the husband at Balod in District Durg, where he was admittedly at the relevant time posted. Her case was that they last resided together in Nov., 1985 in Buxwaha, District Chhatarpur, which is the parental house of the husband and where they used to meet as and when they had opportunities of meeting. The husband in his statement before the Court in para 17 gave a detailed version with regard to their stay at Balod. According to him, he was at Balod since July, 1981 and he wrote a letter to the brother of the wife to bring her to Balod. On the basis of the above letter, according to the husband, the wife came to Balod on 20th July, 1982 and lived with him for a period of 20 days. She left Balod after quarrelling with him, because he was insisting that she should get herself transferred to Durg District. According to the husband, they thereafter never resided together.

The wife in her deposition as N AW-2 in para 5 denied that she ever lived with her husband at Balod. According to her, they last met in Nov., 1985 at the parental house of the husband at Buxwaha, District Chhatarpur. In the state of above evidence, the learned lower Court in para 8 of its judgment held that even if the case of the husband is accepted that they lived together in Aug., 1982 at Balod, that cannot be said to be the place where they “last resided together”, because, they again met and lived together in village Buxwaha in Chhatarpur District. Latter would be the place-where they had last resided together for conferring jurisdiction in the Court at Chhatarpur and the Court at Durg will have no jurisdiction.

The question of jurisdiction has to be decided on the basis of the provisions contained in Section 19 of the Act, which reads as under:–

“Section 19:

Every petition under this Act shall be presented to the District Court within the local limits of whose ordinary original civil jurisdiction-

(i) the marriage was solemnized, or

(ii) the respondent, at the time of the presentation of the petition, resides, or

(iii) the parties to the marriage last resided together, or

(iv) the petitioner is residing at the time of the presentation of the petition, in a case where the respondent is, at that time, residing outside the territories to which this Act extends, or has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of him, if he were alive.”

In the commentaries of Mulla on Hindu Law, 16th Edition at pages 699 and 700, the expression ‘last resided together as construed by several Courts has been discussed. According to the learned commentator, in case of persons who do not have any fixed home or settled abode at any particular place after their marriage, the question whether they can be said to have resided together where they last lived together has to be understood in a broad and some what elastic sense, but even in this broad sense assigned to the expressions “last resided together”, there must be some element of a home or abode, because the residence of a person is by implication a home of that person. Mere casual or temporary visit to a place or temporary sojourn in a place would not satisfy the requirement of the section. There must be an element of continuance though the degree of continuance is not capable of precise definition.

Understanding the words “last resided together”, in the context of marriage relationship, one has to keep in mind that a Hindu wife, after the marriage, is expected to live with the husband at the place of the husband. The traditional concept of a Hindu wife is ^^vuqxkfefu**. The literal meaning is that she has always to be in company of the husband and to follow him wherever he goes. In the modern society, however, husband and wife both may seek service, gain employment and work at different places away from each other, but even in such cases, the marital home would be the place where the husband lives. The place where the wife is posted in service cannot be said to be her marital home. The place where the husband is posted can be, in my opinion, taken to be the marital home of the parties and a visit of the wife to that place can be taken to be the place of their residence. It is true that in this case, the wife is stated to have lived with the husband at Balod, when he was posted there for a brief period of 20 days. But, it is not the question of duration of that stay. The question is whether the place where the husband lives, can be said to be the place where they are expected to live together? If that is the place where they last resided together, that would be sufficient to confer jurisdiction on the Court of that place. The place where the parents of the husband live or the place from which the husband hails cannot be said to be their matrimonial home or their place of residence. Even if the version of the wife is accepted that both of them lived together last at Buxwaha in the parental house of the husband in Nov., 1985, it cannot be the place where they can be said to have, in law, last resided, within the meaning of Section 19(iii) of the Act. The Court has not totally disbelieved the husband that the wife had lived with him in July, 1982 at Balod. But the lower Court has treated the spouses to have last resided together in the parental home at Buxwaha in Chhatarpur District. I also do not find any justification to take a contrary view and disbelieve the husband that the wife had come to live with him when he was posted at Balod in Aug., 1982.

In this appeal, an application under Order 41 Rule 27 C.P.C. has also been filed by the husband in which permission is sought to take on record two letters. In one of them D/ – 5-9-1982 written by the wife to the husband, she has made a mention of her visit to Balod in the year 1982. There is another letter written by-one of the relations of the wife, namely, Kusum Naik to the husband and wife jointly D/-8-11-1982 in which there is a reference to the visit of wife to Balod in recent past in the year 1982. These letters are relied upon in support of the version of the husband of the wife’s visit to Balod in 1982. The application has been opposed on behalf of the wife on the ground that these letters could have been produced in the Court below and permitting their production in appeal would necessitate a remand and retrial on the basis thereof. On the basis of the objection, I reject the application to take the above documents on record of appeal so as to avoid remand of the case. Even excluding these additional documents filed in this Court, I am not prepared to accept the version of the wife that she never visited and lived with the husband, while his posting at Balod. The lower Court has also not found her wholly truthful witness because she was found to have made reckless allegation against the husband of adultery. Therefore, the version of the wife and her denial of her joint living with the husband at Balod are disbelieved. The result of the above discussion on evidence is that the husband and wife last resided together within the meaning of Section 19(iii) of the Act at Balod and the Court at Durg had the jurisdiction to entertain the petition.

The next question is whether the husband is entitled to a decree of divorce? It could not be argued with any force by the counsel for the husband that any case of divorce based on alleged sexual impotency of the wife is proved in the case. The trial Court, however, according to me, committed no error in holding that the reckless allegation of the wife in her pleadings and in her testimony before the Court alleging adultery against the husband furnishes a ground to grant a decree of divorce in favour of the husband on the ground of cruelty. The learned lower Court has placed reliance on several decisions of Courts mentioned in para 14 of its judgment, which justify grant of such a decree of divorce and I maintain the same.

A cross-objection has been filed under Order 41, Rule 22, C.P.C. by the wife challenging the findings reached by the trial Court against her on the alleged ground of adultery taken by her. It was sought to be argued that she was posted at a place away from the husband and whatever best evidence was available was put forth in proof of adultery. In my considered opinion, impossibility of procuring evidence is no excuse. The plea of adultery was taken by the wife and the burden lay on her to discharge the same by preponderance of probability that the husband was leading an adulterous life.

The last submission, which is in fact of a preliminary nature, needs only a mention. The learned counsel appearing for the wife submitted that the judgment of the trial Court returning the petition for presentation to proper Court cannot be deemed to be a decree and was not as such appealable under S. 28 of the Act. According to him, against the impugned order returning the petition for representation, the remedy of the husband was only to file a miscellaneous appeal under the provisions of Order 43, Rule 1, C.P.C. or a revision under Section 115 of the Code. In my opinion, a view is possible to take that a petition disposed of for whatever reason, refusing to grant a decree of divorce should constitute a decree within the meaning of Section 88 of the Act so as to give a right to the aggrieved party to appeal against the same. The provisions of Civil P. C. are not wholly applicable and are applicable only to the extent possible for regulating the procedure and subject to other provisions contained in the Act and the Rules made by the High Court. Assuming for the sake of argument that the impugned judgment was not a decree appeal able under Section 28 of the Act, a miscellaneous appeal or a revision would also He before a single Judge of this Court and, therefore, the preliminary objection has no material effect on the question of tenability of the appeal.

Consequently, the appeal succeeds and is allowed. A decree of divorce is granted in favour of the husband and against the wife. The appellant shall also get costs of the appeal. Counsel’s fee, Rs. 500/-, if certified.

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