Allegations Of Adultery Not Proved With Cogent & Reliable Evidence: Patna High Court Upholds Dismissal Of Divorce Petition

The High Court was considering an appeal filed under Section 19(1) of the Family Court Act, 1984, impugning the judgment and decree whereby the matrimonial suit, preferred by the appellant, for a decree of divorce, on dissolution of marriage, had been dismissed.

The Division Bench of Justice P. B. Bajanthri and Justice S. B. Pd. Singh said, “The appellant has also not filed petition under Section 9 of the Hindu Marriage Act for restitution of conjugal rights which would reflect that he was interested to resume conjugal life with the respondent No. 1. The appellant alleges that respondent No. 1 and respondent No. 2 are living in adultery but he has not proved this fact with any cogent and reliable material evidence which clearly suggests that only in order to make a legal ground in the divorce case, these baseless allegations have been levelled by the appellant.”

Advocate Anil Kumar represented the Appellant.

Factual Background

The marriage of the appellant was solemnized with the first respondent, and out of wedlock, one male child was born. After marriage and the birth of the child, the appellant went to the State of Madhya Pradesh for his livelihood. The appellant alleged that in his absence, his neighbour, the second respondent, developed an illicit physical relationship with his wife (first respondent), which was protested by his mother. It was alleged that the second respondent came along with some anti-social elements and took his wife and minor children away with him. thereafter, she did not return to her matrimonial house.

It was alleged that the respondents have been living together. The appellant prayed that the marriage between the appellant and his wife be declared dissolved and a decree of divorce be passed in his favor. The Family Court held that the appellant had not proved desertion and adultery as against the wife and dismissed the suit. Aggrieved thereby, the appellant approached the High Court.

Reasoning

The Bench, at the outset, explained, “...adultery may be defined as the act of a married person having sexual intercourse with a person of the opposite gender other than the wife or husband of the person. Personal laws all around the world condemn adultery, and it is considered as a ground for divorce or separation. Under the present Indian personal laws, adultery is laid down as one of the grounds for divorce or judicial separation.”

The Bench further noted that the essential ingredients in an offence of adultery are that there should be an act of sexual intercourse outside marriage, and such intercourse should be voluntary. As per the Bench, the appellant had not brought on record any proof to show that the first respondent was having an illicit relationship with the second respondent, nor had he proved that they were living in adultery. “..only in order to make a valid ground in the divorce petition, these allegations were levelled against the respondent No. 1 without any supporting material evidence”, it said.

The Bench found that the prosecution witnesses were family members of the appellant; hence, they were interested witnesses. They alleged that the respondent's wife fled away with the second respondent, but they had no knowledge regarding the whereabouts of the respondents. No independent witness had come forward in this case to support the factum of the illicit relationship of the respondents. No witness had come forward having seen the alleged abduction of the woman and her minor child at the hands of the second respondent.

“The appellant has also not brought on record any proof regarding illicit relationship of respondent No. 1 with respondent No. 2. The appellant has also not brought on record any cogent and reliable evidence which could show that respondent No. 1 and respondent No. 2 are living in adultery”, it said.

Thus, finding no merit in the present appeal, the Bench dismissed the same.

Cause Title: A v. B (Neutral Citation: Miscellaneous Appeal No.104 of 2023)

Appearance

Appellant: Advocate Anil Kumar

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