1. This appeal under Section 28 of the Hindu Marriage Act, 1955 (to be hereinafter referred to as the Act) is by the husband against the order passed by the Civil Judge. Chitradurga in H. Misc. No. 64 of 1965, dismissing his petition under Section 13(1)(i) of the Act for a decree of divorce dissolving his marriage with the respondent.
2. The appellant's case is:
The respondent is his legally wedded wife. Their marriage was solemnised about 12 years ago. A daughter aged about 8 years and a son aged about 8 years were born out of the wedlock. His allegations against her are briefly as follows : She is a woman of loose character. She had eloped with one Rangappa, a carpenter from his (the appellant's) village about 5 years prior to the date of the petition. She was brought back by her father from Channagiri, and since then she has been living with him. She had developed illicit intimacy with one Dasa Bovi who had been engaged bv her father to construct his house. She went to her sister's house at Jogammanahalli and there she was found sleeping with Dasa Bovi in the front room of the house of one barber. The villagers locked that room and subsequently chastised Dasa Bovi. A petition was also given to the police of Hosadurga by the villagers. A panchayat was convened in Hosadurga town and the respondent was advised to lead a virtuous life, but she did not heed to the advice of the elders and has been living in adultery since five years and has abandoned the appellant.
3. The respondent has denied the allegations of her having lived in adultery with Rangappa at Channigiri or with Dasa Bovi at Jogammanahalli. Her case is that she has been a dutiful and chaste wife and that the appellant being instigated by his uncle, aunt, and cousins, has filed the petition making false allegations against her. She has stated that she was ready and willing to get back to the matrimonial home and live with the appellant. According to her, there are therefore no grounds to dissolve the marriage.
4. The appellant examined seven witnesses including himself to prove the allegations that the respondent has been living in adultery. The respondent examined three witnesses including herself in support of her case.
5. After a consideration of the evidence adduced on behalf of the parties and all material facts and circumstances in the case, the learned Civil Judge reached the conclusion that the appellant has failed to prove that the respondent had been living in adultery within the meaning of Section 13(1)(i) of the Act. In that view of the matter the learned Civil Judge has declined to grant the relief sought for by the appellant and dismissed the petition.
6. The short question for decision is, whether the appellant has proved that the respondent has been living in adultery.
7. It is generally difficult to adduce direct evidence of adultery and adultery can be proved by circumstantial evidence.
8. Mr. Shivananjundappa, learned Advocate for the appellant took us through the evidence of the appellant's and the respondent's witnesses and made his comments on the judgment of the trial court.
9. Before discussing the evidence, we shall consider a legal contention raised by Mr. T. R. Subbanna, learned counsel for the respondent, regarding the unnecessary and improper delay on the part of the appellant in instituting the proceedings. Mr. Subbanna invited our attention to the provisions of Section 23(1)(d) of the Act, which read:
'23 (1) (d):-- In any proceeding under this Act, whether defended or not, if the court is satisfied that-
(d) there has not been any unnecessary or improper delay in instituting the proceeding, and then, in such a case but not otherwise the court shall decree such relief accordingly.'
Mr. Subbanna pointed out that even according to the appellant's own averment in his petition, the respondent left his house about 5 years prior to the petition, to live in adultery with carpenter Rangappa. Mr. Subbanna submitted that the petition for divorce was presented five years after the respondent is alleged to have begun to live in adultery.
10. As regards the respondent's affair with Dasa Bovi, the allegation in the petition is that sometime prior to the date of filing the petition the respondent was living in adultery with Dasa Bovi. But in his evidence, the appellant has stated that about 2 or 3 months subsequent to her eloping with carpenter Rangappa, she was found sleeping with P. W. 5 Dasappa of Joggammanahalli. P. W. 6 Narayanappa has also stated in his evidence that her sleeping with P. W. 5 Dasappa was about 3 or 4 months after her employment with carpenter Rangappa. Thus, on the showing of the appellant himself, the alleged adulterous affair at Joggammanahalli also took place about 4 or 5 years before filing the petition.
11. The contention of Mr. Subbanna is that there is unnecessary and improper delay on the part of the appellant in instituting the proceedings for a decree of divorce against the respondent. He further urged that there is no explanation offered by the appellant for such inordinate delay in instituting the proceedings. He contended that on this ground alone, the Court should decline to grant any relief to him. He relied upon the following passage in Mulla's Hindu Law, 13th Edition. P-726 :
'Where the ground of the petition for judicial separation for improper delay or when it appears to the court that there has been undue delay in instituting the proceedings, there are two questions in such case which first require to be considered, namely, when did the petitioner first know or have reason to believe that the respondent had committed adultery and when did the petitioner first take action in order to obtain the relief? A further question to be considered is Whether there is some reasonable explanation for the delay and if there is some explanation which is satisfactory the delay cannot be said to be unnecessary or improper'.
It is clear from the above that while deciding the question of unnecessary and improper delay, the court has to find out as to when the appellant first came to know that the respondent had committed adultery and also when he instituted proceedings to obtain the relief. It is also necessary to find out whether he has given any reasonable explanation for the delay. The petition allegations coupled with the evidence of P. Ws. 1 to 4. 6 and 7, indicate that the appellant first came to know that the respondent had committed adultery 4 or 5 years prior to the filing of the petition. In spite of such knowledge, he approached the court for relief after a long lapse of 4 to 5 years. He has not explained the inordinate delay in filing the petition for relief. We are satisfied that in the instant case, as contended by Mr. Subbanna, there has been unnecessary and improper delay in instituting the proceedings. Therefore, on this ground alone, a decree for divorce can be refused.
12. However, we will not rest our decision entirely on that ground. But we shall examine the appellant's case on merits also.
13. Mr. Shivananjundappa commended the evidence of P. Ws. 1 to 7 for acceptance and urged that the appellant has satisfactorily established that the respondent has been living in adultery.
14. On the other hand, Mr. Subbanna contended that the evidence adduced by the appellant to prove that the respondent has been living in adultery, is highly inconsistent and discrepant in all material particulars and it is also unworthy of acceptance.
15. The evidence given by P. Ws. 1 to 4 and 7 about the respondent's employment with Rangappa, is delightfully vague and suffers from want of necessary particulars. The evidence of P. W. 1 Byrappa is briefly as follows: The character of respondent is not good. About 6 years ago. she had gone with one Naikar for a month towards Bhadravati side. Thereafter, her father brought her and kept her in his house. She has been in her father's house from that time.
16. In the course of his cross-examination P. W. 1 said that the respondent wont with a person belonging to Naikar community 15 days before Mahanavami. In the next breath, he said that he did not see this personally. He volunteered to say that he went and searched for her. He also asserted that he was present when she was brought back by her father. He is a native of Hussekatti whereas the father of the respondent is a resident of Kochawar. He has not stated from which place her father brought her. But. according to P. W. 4 who is another witness who speaks about the employment, the respondent went away with a person of Naik community during summer season. As regards the season in which she eloped with the person of Naik community, there is material discrepancy which renders their evidence unworthy of acceptance.
17. Evidence of P. Ws. 1, 2. 3 and 4 does not disclose the identity of the person with whom the respondent went out of the house and was found moving about.
18. P. W. 2 Ramappa has given evidence that the respondent had gone with a Naikar about six years ago for one month and that afterwards her father brought her and kept her with him. In his cross-examination, he said that he had gone to the appellant's house for coolie work and stayed there, that he saw the respondent going away with a Naikar person, that he alone saw her going with the Naikar from the door of the house of the appellant and that though there were 5 or 6 members in the appellant's house, he did not inform them. In our opinion, his evidence is artificial and highly improbable. It is too much to expect the respondent to invite her paramour to come to her house on that night in order to take her away in the night at about 8 or 9 p. m. His evidence is, therefore, not worthy of acceptance.
19. P. W. 3 Chikkanna has given evidence as follows : He was working as a gangman in Hosadurga Road Railway Station. About 3 years prior to his examination before the court, the respondent Came with a person belonging to Naik community to Hosadurga Road by about 9.30 p. m. and he took them to his house, asked them to sleep in his house and Went away to attend to his duty. When he returned home from duty at 2 a. m. he did not find them in his house. About 5 or 6 days later, the respondent again came to his house and her father took her back.
20. In the course of his cross-examination, P. W. 3 Chikkanna said that he saw the person of Naik community for the first time on that day and that he was unable to identify him. He admitted that about 15 years ago, he and his brothers were tending sheep in the house of the appellant's father.
21. P. W. 3 in our opinion is an Interested witness got up for the purpose of this case. It is not possible to believe him when he says that he allowed a stranger and the respondent who happened to be the wife of the appellant to sleep In his house without knowing from them as to why they had come at that house to Hosadurga Road. His evidence that within 5 or 6 days the respondent again came to his house and her father took her back, is inconsistent with the appellant's (P. W. 7's) evidence that about one month later her father took her back to his house. His evidence does not inspire confidence and, therefore, we are not inclined to accept this testimony.
22. Thimmappa P. W. 7 the appellant has given evidence thus : About 4 or 5 years ago the respondent eloped with carpenter Rangappa leaving her child which was about one year old. About one month later, her father found her and took her to his house. About 2 or 3 months later, she went to her sister's house at Jogammanahalli. There she was found sleeping with P. W. 5 in the house of the brother of P. W. 6. The villagers locked that door, and on the next day morning held a panchayat and chastised P. W. 5 by thrashing him. The respondent is living in adultery and that there has been no cohabitation with her for over 4-5 years.
23. In the course of his cross-examination the appellant admitted that he Was in his house when the respondent and Rangappa went together from his house and that he also came to know about this fact from P. W. 1 and informed his father about the employment. But P. W. 1 has not stated in his evidence that he informed the appellant about the employment. As stated earlier, P. W. 1 has no personal knowledge about the respondent going away with the person belonging to Naik community. The appellant does not even speak about the presence of P. W. 2 in his (the appellant's) house on that night. Thus the evidence of P. Ws. 1 and 2 which is shown to be not trustworthy, does not afford any corroboration to the interested testimony of the appellant.
As already pointed out, the appellant's evidence that the respondent went away with Ransappa about 4 or 5 years prior to the date of his giving evidence, is inconsistent with his averment in paragraph 3 of the petition that she went away with Rangappa 4 or 5 years before the petition was filed. Further, his evidence that 2 or 3 months after she was brought back by her father, she went to Jogammanahalli in the company of P. W. 5 and slept in a room of the house of the brother of P. W. 6 is also inconsistent with what he has stated in his petition. He has averred in his petition that the villagers of Jogammanahalli had filed a complaint before the police with regard to her affair with Dasa Bovi. But the appellant has not summoned and produced the complaint nor has he examined anyone of those villagers who locked the door of the room of P. W. 6's brother's house on the night of the affair.
Strangely enough he has examined P. W. 6 who has no personal knowledge about that incident. P. W. 6's evidence on this point is hearsay and is inadmissible. It was only in the morning that hp claims to have intervened when the villagers were thrashing P. W. 5. Therefore the evidence of P. W. 6 regarding the incident in the night is of no avail in this case. When P. W. 5 was in the witness box, not even a suggestion was put to him about the affair at Jogammanahalli, though, of course, he might have denied any such suggestion. The appellant did not say as to how he came to know about the occurrence that took place in Jogammanahalli. It is not his case that he learnt it from P. W. 6. Thus the evidence of P. Ws. 6 and 7 is a make-believe story. It is artificial, unreliable and unworthy of acceptance.
24. The respondent has been examined as D. W. 1. In her evidence, she has denied her living in adultery, her having eloped with carpenter Rangappa and her father bringing her back from Channagiri. She has also denied her having illicit connection with P. W. 5 and the alleged affair at Jogammanahalli. She has stated thus in her evidence : The appellant's uncle and the women folk in the house of the appellant were treating her with cruelty. She sent word to her father who came and asked them to send her but they were not willing to send her with his father. But she went away with her father in spite of their protest. Three months later, her father, brought her back to the house of the appellant who did not admit her into the house. Hence she went back to her father's house. Her evidence that she was treated cruelly by the uncle and other women folk of the house of the appellant has not been challenged in her cross-examination. No doubt, she admitted that she had no ill-will against P, Ws. 2. 4 and 5.
25. Govindappa, the father of the respondent who has been examined as D. W. 2 has corroborated the evidence of the respondent and has denied as false that the respondent had eloped with Rangappa to Channagiri side and that he brought her back. His evidence also remains unchallenged in his cross-examination. A suggestion was made on behalf of the appellant that D. W. 3 Mallappa had also illicit connection with the respondent. But he has stated that the respondent was of good character and that she was in the position of a daughter-in-law to him.
26. Mr. Shivananjundappa attacked the evidence adduced on behalf of the respondent as unworthy of acceptance and urged that the reason given by her in her evidence for leaving the house of the husband, is contrary to what she had stated in her written statement. The respondent in her objection statement stated that at the instigation of his uncle and brothers who wanted to take away the property belonging to her husband, he has filed this vexatious petition. The respondent has merely met in her objection statement the allegations made in the petition filed by the appellant. But in the course of her evidence before the court, she has given reason for her going away from her husband's house. Therefore it cannot be said, as contended by Mr. Shivananiundappa, that her evidence is contrary to her statement in the objection petition.
27. We have no doubt in our mind as to the legal proposition that if a husband proves beyond reasonable doubt that his wife has been seen absenting herself from his house for a long time and has been seen in the company of a total stranger to his family and that no reasonable explanation is given by her or that she has given a false explanation for her having been seen in the company of that stranger at different places or in a room will give rise to a reasonable inference that she has contacted illicit connection with that man and has been living in adultery. The standard of proof required in such a case is similar to the one in a criminal case. The evidence must be independent, disinterested, cogent, reliable and worthy of credit, The evidence adduced by the appellant which is discussed above, falls short of the required standard, besides being unsatisfactory and insufficient to prove that the respondent went in the company of Rangappa or that she was found sleeping with P. W. 5 Pasa Bovi in a room in Jogammanahalli. Mr. Shivananiundappa relied on a number of decisions in support of his ease. The principle of law laid down in those decisions, in our opinion, does not bear on the facts of this case.
28. The learned Civil Judge has no misapprehension as to the mode of proof of adultery and has elaborately discussed the evidence adduced by the appellant and also by the respondent, and has rightly reached the conclusion that the appellant has failed to prove that the respondent was living in adultery within the meaning of Section 13(1)(i) of the Act. Thus, even on merits, the appellant has no case. The order of the trial Court does not call for interference,
29. For the reasons stated above, the appeal fails and the same is dismissed with costs. Advocate's fee Rs. 50/-.