GIRISH GOPINATH RALLAPALI Vs. KALAVATI GIRISH RALLAPALI

JUDGEMENT

(1.) THIS Appeal takes exception to the Judgment and decree passed by the IVth Family Court, Mumbai at Bandra dated September 25, 2002 in MJ Petition A-1697/1996 to the extent it rejects the counter claim Petition filed by the Appellant-husband for decree of divorce on the ground that Respondent-wife treated him with cruelty and also because the Respondent-wife had adulterous relations with the co-respondent after the solemnization of marriage with the Appellant.

(2.) THE Respondent filed Petition for restitution of conjugal rights being MJ Petition A-1697/96 against the Appellant. In the said proceedings the Appellant filed counter claim Petition for divorce on 20th January, 1997. The Respondent filed reply to the said counter claim Petition and denied the allegations made therein. The matter went for trial. During the trial the Respondent examined herself as PW1. The Appellant not only examined himself as DW1 but also examined witness Ashok Talpade as DW2 in support of his plea that the Respondent had admitted her misdeeds in the meeting held at the residence of the said witness after the incident in question. Notably, the co-respondent Palep Lingana did not appear in the proceedings. In other words, he has neither countered the allegations made in the Petition against him nor chosen to appear before the Court and deposed on relevant matters to explain his position. The trial Court analyzed the evidence which has come on record and chose to discard the evidence produced by the Appellant. On that basis the trial Court concluded that the Appellant failed to establish both the grounds of cruelty as well as adultery against the Respondent and, therefore, dismissed the counter claim Petition filed by the Appellant. This decision is the subject matter of challenge in the present appeal. In so far as relief of custody of the minor child is concerned, that has become infructuous due to distance of time. It is fairly conceded that the son Sankarsh has attained majority on 19th March, 2010. In that sense, this relief cannot be considered.

(3.) AS aforesaid, in this Appeal we are only concerned with the issue as to whether the Appellant is entitled for decree of divorce on the ground of cruelty and/or adultery. We find that the trial Court has reproduced the oral evidence given by the respective witnesses in detail. We would, therefore, proceed to analyze the Judgment of the trial Court in the first instance. The trial Court has discarded the evidence of the Appellant (DW1) essentially on the ground that the conduct of the Appellant even after witnessing the incidents referred to in the Petition which indicated that the Respondent was having adulterous relationship with the co-respondent, he did not react in a normal manner but was content with merely questioning the Respondent and doing nothing more. This is the basis on which the evidence of DW1 has been discarded as unbelievable or untrustworthy version with regard to the facts deposed to by him in relation to the relevant events. In so far as the evidence of DW2 Ashok Talpade is concerned, the same has been discarded on the finding that he was an interested witness. The Court has noticed that he was the landlord in respect of the premises where the Appellant resided alongwith the Respondent. The Court then found that there was no good or tangible reason as to why the Respondent and co-respondent would make disclosure before him about their relationship or the fact that the Respondent had voluntary sexual intercourse with the co-respondent after the solemnization of marriage with the Appellant. After discarding the oral evidence of DW1 and DW2, the trial Court concluded that there was no legal evidence to accept the case made out by the Appellant for grant of decree of divorce. The Court concluded that the entire evidence of Appellant-DW1 was on the basis of suspicion. Further, the Appellant took support from the evidence of DW2 Ashok Talpade to substantiate his suspicion. It proceeded to hold that there was no legal evidence to establish the fact about the illicit relations between the Respondent and the co-respondent. The Court also opined that non-examination of other witnesses by the Appellant in particular Madhu Shastri, his brother-in-law who was present at one of the meetings was also fatal. Accordingly, the Court rejected the allegation regarding voluntary sexual intercourse by Respondent with the co-respondent as alleged.