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Sushma Kumari Vs. Ramesh Chand and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtDelhi High Court
Decided On
Case NumberFirst Appeal No. 343 of 1980
Judge
Reported inILR1982Delhi729
ActsHindu Marriage Act, 1955 - Sections 13(1)
AppellantSushma Kumari
RespondentRamesh Chand and anr.
Advocates: C.L. Sachdev,; M.L. Rawal and; Sunil Agrawal, Advs
Cases ReferredKamta Prasad v. Smt. Om Wati
Excerpt:
.....had attended 'thaka' as well as the marriage ceremony of the parties. the witness stated that the husband's sister was a very good friend others. the reference is to the visit of june 10, 1976. averment of the wife that krishan lal is a family friend cannot be accepted as no reliable evidence has been led in support of this averment......is that krishan lal was actually a very close friend of her husband. romesh chand used to call the wife of krishan lal as bhabi and the appellant used to call krishan lal as bhai sahib. she contends that these photographs were taken on their first marriage anniversary when both the couples had gone to qutab on picnic. her case was that: krishan lal's wife had lighted the cigarette of her husband and she was asked by her husband (romesh chand) in turn to light the cigarette of krishan lal. in the pleadings it was the case of the appellant that only group photographs of all of them were taken but by a photographic trick, the negatives have been manipulated in such a manner that only she and krishan lal were shown in the photographs. in para 3 of the written statement, inter alia, her case.....
Judgment:

Charanjit Talwar, J.

(1) Smt. Sushma Kumari the appellant herein, has challenged the decree of divorce passed on 21st July, 1980 under Section 13(1)(i) of the Hindu Marriage Act (herein called 'the Act') by Shri R. L. Gupta, an Additional District Judge, Delhi, whereby appellant has been found to have committed adultery with Krishan Lal co-respondent. She has also challenged the judgment rejecting her application under section 27 of the Act for return of goods.

(2) The parties were married in accordance with Hindu rites on the night intervening 25,26th February, 1975, at Karol Bagh, Delhi. They firstly resided and co-habited in the family house of the husband's father but with effect from 8th January, 1976 shifted to a one-room tenement in Pahar Ganj, Delhi. The case of Ramesh Chand respondent herein, was that he had shifted from the joint family house to House No. 5511 Shora Kothi, Pahar Ganj, Delhi, as his wife had been pressing him to live separately. His further case was that in the month of June, 1976 he had been told by neighbours that in his absence a man was visiting his wife. This aroused suspicion in his mind, and, thereforee, on 5th June, 1976, he came back to the house early at 5.30 p.m. from the shop of his father where he works, usually he returned to his house at about 8.00 p.m. He found the door of the room closed. On his knocking, his wife opened the door. He found a person, whose name he later on came to know as Krishan Lal, inside. On being questioned his wife told him that that person washer cousin and was a resident of Bombay. Ramesh Chand rebuked her as he did not consider it proper that her male cousin should visit their house in his absence. His wife did not like it; and started quarrelling. That, person, however, in the mean-time left the room. On 10th June, 1976, the husband once again returned home early from his work at about 6.00 p.m. This time he found that the door was bolted from inside. On his repeatedly knocking for about five minutes, it was opened. He found that that very person was present inside with his wife. According to him, his wife and Krishan Lal were prespiring and seemed to be 'agitated'. A quarrel ensued between the parties. The co-respondent, however, pushed the husband aside and left the house.

(3) Pw 1 Chaman Lal a rehriwala who lives in that very area supports the version of the husband about his repeatedly knocking at the door of his room for about five minutes. He corroborates the fact that there was a quarrel between the parties on that very day and further that the man whom ht identified from the photographs, after pushing aside Ramesh Chand had gone away. Vir Karan Kohli PW2 who also lives in that very area about 40 to 50 paces from the house of the parties averred that about two years prior to the recording of his statement in Court he had gone to the Milk Dairy situated near the house in question and had seen the petitioner knocking at the door of his house for about 3 to 4 minutes. He also supports the version of the husband that the co-respondent who was inside had come out of the room and after pushing aside the petitioner left that place.

(4) Further case of the husband was that he forebade his wife from entertaining that man thereafter. She, however, insisted that being a relation he was welcome to that house. On his return home, at about 8.30 p.m. on the next day he found the room locked from outside. As he had a duplicate key he open it and found that the respondent had gone away carrying valuables, clothes, ornaments etc. valuing about Rs. 4000]-. He went to his in-laws house and found his wife there. She did not return with him. Since that day the parties are living separately.

(5) On the next day while cleaning the room he found an envelope concealed beneath a trunk. In that envelope he found five photographs Exhibits Public Witness 3[l to 315 and a cash memo issued by one photographer J.P. Gupta. That photographer has been produced as Public Witness 3.

(6) The findings of the trial Court are mainly based on these photographs of the appellant with the co-respondent, Krishan Lal. These photographs indicate that they were very close friends. Exhibit Public Witness 3; I shows happy expression en their faces while walking, rather close to each other. In Exhibit Public Witness 3/2 the man is reclining, he has a cigarette in his lips and Sushma, appellant herein, is lighting it. In Exhibit Public Witness 313 they both are sitting facing each other, and appear to be sharing food. In Exhibit Public Witness 314 they are standing, Sushma is shown holding the upper end of her Sari probably trying to adjust it. From the expression on their faces they appear to be enjoying some joke. In the last photograph Exhibit Public Witness 315 the man is half reclining and Sushma is sitting by his side. They appear to be in a happy mood.

(7) The photographs do prove that the man and the woman are not only well known to each other but also appear to be fond of each other.

(8) It is from the evidence revealed from the photographs coupled with the two visits of that man to the house of the parties in Pahar Ganj that the trial Court has found that appellant was having illicit relations with Krishan Lal, co-respondent. It may be mentioned here that in the trial Court in spite of service of notice of the petition filed by Romesh Chand, Krishan Lal did not appear. In this Court also he has failed to appear although served.

(9) The version of the appellant, however, is that Krishan Lal was actually a very close friend of her husband. Romesh Chand used to call the wife of Krishan Lal as Bhabi and the appellant used to call Krishan Lal as Bhai Sahib. She contends that these photographs were taken on their first marriage anniversary when both the couples had gone to Qutab on picnic. Her case was that: Krishan Lal's wife had lighted the cigarette of her husband and she was asked by her husband (Romesh Chand) in turn to light the cigarette of Krishan Lal. In the pleadings it was the case of the appellant that only group photographs of all of them were taken but by a photographic trick, the negatives have been manipulated in such a manner that only she and Krishan Lal were shown in the photographs. In para 3 of the written statement, inter alia, her case was 'similarly, number of other photos were joinly taken between all the four and from those photos, the petitioner and respondent No. 2's wife have been cut off and only respondent No. I and No. 2 have been kept to make out a false case for dissolution of marriage'. In her testimony, however, she did not allege that any photographic trick had been practiced. She complained that there were a number of other group photographs which have been withheld purposely. According to her it was her husband who, in accordance with his plan to get rid of her, had created evidence with the help of the photographer. The plea of the wife has, however, not found favor with the learned trial Court.

(10) As noticed above, the photographs show that Krishan Lal and Sushma if not intimate are certainly very friendly. In case the appellant is to be believed that Krishan Lal and his wife were close family friends it would not have been difficult for her to prove so. On the contrary in crossexamination when asked about the name of Krishan Lal's wife she was unable to give it. The fact that she even did not know the name of the wife of Krishan Lal negatives her contention that Krishan Lal and his wife were family friends and that they were on frequent visiting terms. In support of her contention that Krishan Lal was a good friend of her husband, she has led no reliable evidence except for the bald statement of her father according to whom Krishan Lal had attended 'Thaka' as well as the marriage ceremony of the parties. The father of the appellant has obviously tried to support the version of his daughter.

(11) The testimony of Reshma Rani Rw 2 to the effect that respondent No. 2 Krishan Lal was on visiting terms with the petitioner is also of no help to the appellant. According to this witness she lived near the house of the parties. She knew the husband prior to his marriage. She had seen Krishan Lal coming to the house of the husband even prior to the marriage. According to her the husband treated Krishan Lal as his brother. The reasons for strained relations between the parties, according to this witness, were that the husband had started demanding television. Scooter, refrigerator by way of additional dowry. This witness, however, could not withstand the cross-examination. According to her the husband was residing at the time of marriage in house No. 355, Gali Chandiwali, Paharganj, Delhi and continued to reside there after the marriage. The admitted fact, however, is that after some time as noticed above the couple had shifted to house No. 5511, Sohra Kothi Paharganj. The witness stated that the husband's sister was a very good friend others. She had come to know her about 12 to 15 years prior to her statement being recorded in Court. In her own words 'when she became my friend, she had already been married. I do not know where she is married or where she had been residing with her husband, nor I ever went to see her at the house of her husband. She was married about 16/17 years back'.

(12) The witness admitted that she had been accused of adultery and her husband has obtained a decree of divorce on that ground. At the time of her statement she gave her age as 28 years. She states that she got friendly with the sister of the petitioner (respondent herein) 12/14 years back. She also states that this friendship developed when the sister of the petitioner was already married, meaning thereby that at that time she was hardly 14/15 years of age. It is unbelievable that a girl of 14 years of age would develop friendship with a married woman much older in age. She further states that petitioner's sister used to visit her house but she did not know the names of her children. Her testimony does not inspire confidence. The learned Additional District Judge was right in not placing any reliance on her statement. The husband's testimony that he had found Krishan Lal inside the room on two occasions, as noticed earlier, is supported by two witnesses of the Mohalla. Mr. C. L. Sachdeva, learned counsel for the appellant, criticised this evidence of the husband and the two witnesses as 'cooked up'. It is not possible to agree with this submission. The testimony of these witnesses could not be demolished in their cross-examination on behalf of the wife. It cannot be assumed that Mohallawalas were out to favor the husband. In any case all that they say is that on one occasion the husband had repeatedly knocked at the door which was bolted from inside and when it was opened, Krishan Lal went away pushing aside the husband. The reference is to the visit of June 10, 1976. Averment of the wife that Krishan Lal is a family friend cannot be accepted as no reliable evidence has been led in support of this averment. The finding of the trial Court that he was not known to the husband has, thereforee, to be upheld.

(13) Having come to the above finding, the photographs assume great significance. The case put up in the pleadings of the wife that these five photographs had been created by aphotographic trick, was abandoned when the wife appeared in the witness box. The photographs then were accepted as genuine. Her defense that there were a number of photographs showing the two couples in holiday mood which have been withheld by the husband, cannot be accepted as Krishan Lal was not known to the husband at all. These photographs establish conclusively that Sushma even after her marirage was not only ready to be photographed with a male friend but was willing to be portrayed with him in a very romantic mood. Her conduct also proves that she had kept this fact of friendship with Krishan Lal a close secret from her husband. When found out she told a lie to her husband inasmuch as she wanted him to believe that Krishan Lal was her cousin and as such his visits to the house in the absence of the husband were innocent.

(14) Now what is the inference to be drawn from the facts so proved on the record. Can it be believed that Sushma had illicit sexual relations with the co-respondent Krishan Lal On 10th June, 1976, the second occasion on which the husband had found Krishan Lal present in house, the room was bolted from inside. On the earlier occasion the door was just closed. The facts (1) a young married woman is found at 6.00 p.m. in the company of a young man in a closed room bolted from inside, (2) they are not related to each other and are extremely fond of one another as is evident from the photos discussed above, (3) she was under the belief that she was not going to be detected as her husband worked late in a shop and would usually come at 8.30 p.m., lead to an irresistible inference that she was having illicit relations with that man particularly so when she does not render a cogent or plausible Explanationn for the presence of that man with her behind closed door. In any case, when no Explanationn is forthcoming or when the Explanationn, if any, is found to be totally unacceptable then on preponderance of probabilities it has to be held that she was having illicit sexual relations with that man. In the facts and circumstances of this case the learned Additional District Judge was right in his conclusion on issue No. 1, I have no reason to differ. Decree for divorce is, thereforee, affirmed.

(15) The next question is whether the finding of Additional District Judge that the application of the wife under section 27 of the Act was not maintainable, is sustainable

(16) The issue framed on this application is as follows : (1-a) Whether the articles of dowry of respondent No. 1 are with the petitioner and whether the respondent is entitled to claim them back under section 27 of the Hindu Marriage Act OPR. (This issue was framed as an Additional issue).

(17) In the application under section 27 of the Act the wife's case was that she used to be treated cruelly and was turned out by the husband on 11th June, 1976 with only the clothes which she was wearing. While giving the list of articles of the dowry she stated in paragraph 3 as follows :

'3.That the petitioner was turned out from the house by the respondent with 3 bare clothes which she was wearing at that time and all the articles of dowry and presents given to the respondents at the time of the marriage had been kept by the respondent. The following are the articles of dowry and presents given to the respondent at the time of marriage between the partis'.

Thereafter, a list of 44 articles of the total value of Rs. 37,568.00 has been given.

(18) Admittedly, it has not been averred in the application that the property mentioned in that list belonged jointly to both the husband and the wife. The stand of the wife in the evidence recorded on this issue was not that the said articles were joint property of both of them. Her case appears to be that the articles given in the list were given to her in dowry and she was entitled to the possession of the same as those belonged to her.

(19) This Court in Smt. Shukla vs. Brij Bhushan Makkar, (FAO No. 414 of 1980) (1) decided on 15th October, 1981, has settled that such an application is not maintainable under section 27 of the Act. The view taken by The Allahabad High Court to the effect that a decree can be passed under section 27 of the Act with regard to the property exclusively belonging either to the husband or the wife in Kamta Prasad v. Smt. Om Wati, : AIR1972All153 , which was relied upon by the learned counsel for. the appellant herein, has not been followed by this Court, in the above-cited case.

(20) I agree with the ratio in Smt. Shukla's case (supra) that under section 27 of the Act a decree with regard to the property exclusively belonging either to the husband or the wife cannot be passed.

(21) Accordingly, I uphold the finding of the learned trial court that the application under Section 27 of the Act is not maintainable.

(22) The appeal, thereforee, fails and is hereby dismissed but with no order as to costs.


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