GOKUL PRASAD KURE Vs. DHANBAI

JUDGEMENT

(1.) The appellant could not succeed before the Lower Court in obtaining dissolution of the marriage against the respondent, his wife. He, therefore, has come up in appeal under Sec. 28 of the Hindu Marriage Act, 1955, against the judgment dismissing his suit.

(2.) Dissolution of marriage was claimed on an allegation that the respondent committed adultery. In the petition filed before the lower Court, it was alleged that respondent was a lady of doubtful character. In paragraph 6(b) of the petition, one instance of adultery was mentioned and it was stated that with the help of her father, she got married in Churi form to a person by name Prem in the village Rewa Diha. It was also stated that the respondent is leading an adulterous life. These allegations were denied by the respondent who counter-charged the appellant of having married in Churi form a woman by name Kari. It may be mentioned that the parties have a daughter by name Tcharin who is now living with the respondent. At the stage of trial, the appellant adduced evidence to show that the respondent had illicit connection with Raghuvir alias Raghunath then with his brother-in-law Ramprasad, then married Prem in Churi form and again married Ghasiram in the same fashion. The lower Court accepted this evidence and has returned a finding that the respondent committed adultery. The suit, however, has been dismissed on the ground that the adultery so proved has been condoned by the appellant. The basis of this finding is that even after the commission of said adultery the parties cohabited as a result of which a daughter Tcharinbai was born to the respondent. The period of respondent's committing adultery has been found to be between 1968-69 and 1970. The petition was filed in Dec., 1977. The delay in filing the petition has also influenced the mind of the lower Court and it has been held that the appellant could not reasonably explain the delay. The appellant's counsel had been very critical regarding the adverse finding of the condonation and undue delay while the respondent's counsel had been equally severe in criticising the finding that the respondent committed adultery. The entire matter, therefore, has to be re-considered in this appeal.

(3.) 'Adultery' for matrimonial cases means sexual intercourse by one spouse with some person of the opposite sex other than his/her spouse during the subsistence of the marriage. Direct evidence of adultery is rarely possible and has, therefore, been always viewed with suspicion. Adultery can be proved only by circumstances. Inclination and opportunity have been considered to be very relevant factors. The proceedings under the Hindu Marriage Act are definitely of civil nature. Proof beyond reasonable doubt as is required in criminal trial is, therefore, not necessary as a criminal trial involves the liberty of the subject which may not be taken away on a mere preponderance of probabilities. In a trial of purely civil nature such considerations need not be imported. All the same, looking to the serious nature of the charge of adultery, it is always desirable to see for a more cogent and convincing evidence than the one which is only sufficient to create a doubt. When tested in the light of the above position of law, I am satisfied that the lower Court has reached a correct finding that the respondent is guilty of committing adultery. Sec. 13(l) (i) of the Hindu Marriage Act, 1955, after the amendment, stands thus :