Dismissed

D. Radhakrishnan Nair v. Raji R.K.

Kerala HC18 Oct 2019Mat.Appeal/757/2014

Case brief

AI extract

What is this about?

This matrimonial appeal challenged the Family Court's dismissal of a divorce petition citing sexual infidelity. The High Court upheld the dismissal, finding the appellant failed to prove adultery due to lack of cogent evidence, witness hearsay, and inordinate delay.

What did the court decide?

The appeal was dismissed as the appellant miserably failed to prove the act of adultery alleged against the respondent.

D. Radhakrishnan Nair Vs Raji R.K. — Matrimonial and Divorce | Kerala HC (2019)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE K.HARILAL

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THE HONOURABLE MRS. JUSTICE ANNIE JOHN

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FRIDAY, THE 18TH DAY OF OCTOBER 2019 / 26TH ASWINA, 1941

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Mat.Appeal.No.757 OF 2014

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AGAINST THE JUDGMENT DATED 24.03.2014 IN OP 167/2008 OF FAMILY COURT, TRIVANDRUM

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APPELLANT/ PETITIONER :

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D. RADHAKRISHNAN NAIR, S/O.DAMODARAN PILLAI, AGED 50 YEARS, THEKKEVEEDU, VRINDAVANAM, THONNAKKAL P.O., THIRUVANANTHAPURAM, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER DAMODARAN PILLAI, -DO- -DO- -DO-

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BY ADV. SRI.LATHEESH SEBASTIAN

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RESPONDENT/ RESPONDENT :

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RAJI R.K., D/O.KARUNAKARAN, AGED 38 YEARS, AKKULATH MELE PUTHEN VEEDU, THIRUVICKAL P.O., PULAYANARKOTTA, THIRUVANANTHAPURAM - 695 573.

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R1 BY ADVS. SRI.K.SATHEESH KUMAR

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SRI.T.A.UNNIKRISHNAN

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THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 18-10-2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING :

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Mat. Appeal No. 757/2014 : 2 :

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JUDGMENT

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K.Harilal, J.

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The appellant herein is the petitioner in

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OP.No.167/2008 of the Family Court, Thiruvananthapuram and the said OP was filed against his wife, the respondent herein seeking a decree for dissolution of marriage, under Section 13(1)(i) of the Hindu Marriage Act. According to the appellant, the respondent had voluntary sexual intercourse with her friend one Venogopal on 23.02.2005 and thereby he is entitled to get a decree of divorce. The respondent denied the said allegation and both parties adduced evidence in support of their rival pleas.

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After considering the said evidence on record, the Family Court dismissed the said Original Petition on a finding that the appellant herein miserably failed to prove the act of adultery, alleged against his wife and the adulterer is not made a party in the original petition. The legality and correctness of the reasonings whereby the Family Court dismissed the original petition are challenged in this appeal. The facts necessary for determination of this appeal can be summarized as follows :-

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Mat. Appeal No. 757/2014

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: 3 :

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According to the averments in the original petition, the marriage between the appellant and the respondent was solemnized on 10.02.1993 and two daughters, now aged 14 and 11 years are born to them. The appellant was working in Oman and he left Oman on 07.08.2001. Thereafter, he got reliable information from his friends, relatives and well wishers that the respondent is leading a wayward life and she is keeping company with one Venugopal and spending all her times along with him in hotels and cinema theaters. So also, she is spending more time for talking with Venugoal over phone for a long time. He noticed change in the behaviour and attitude of the respondent. On 23.02.2005, Venugopal visited the appellant's residence around 10.00 p.m. in night. He had his dinner with the appellant. The respondent brought a liquor bottle. On seeing this, the appellant was surprised and enquired about the source. She told that it was bought by Venugopal. After dinner, it is learnt that he came there as invited by the respondent and he used to take liquor in the absence of the appellant in station. After the dinner, he did not leave the house. The appellant believed that he left the house. But, later it was found that the respondent and

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Mat. Appeal No. 757/2014 : 4 :

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Venugopal were in a compromising position in the toilet standing outside and they were caught red handed. On the

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next day, as instructed by her, Venugopal came to the appellant's house in the morning and evening and asked him to have some liquor for which he will pay. However, the matter was informed to her parents and she left his company with her parents after taking all her valuable articles.

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The respondent filed counter statement denying all the

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aforesaid averments and contended that the allegation that she had sexual intercourse with one Venugopal on 23.02.2005 is absolutely false. According to the respondent, whenever the appellant is on leave, he used to invite several friends to consume liquor with him. In spite of strict resistance from the part of the respondent, he continued to receive his friends to their house. He often pick up quarrels, when she objected the unholy company of the appellant with his friends in the house. Several times, the appellant attacked her physically as well as mentally. Thereafter, he is not maintaining the wife and children. According to her, all the averments in the original petition are utter, falsehood and no decree can be passed, on the basis of this allegations in the OP.

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Mat. Appeal No. 757/2014

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: 5 :

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The appellant was examined as PW1 and two witnesses, his parents were examined as PW2 and PW3. The respondent was examined as DW1.

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Heard the learned counsel for the appellant.

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In view of the arguments a the bar, the question to be considered is whether the Family Court is justified in finding that the appellant had failed to prove the allegations of adultery as alleged against the respondent.

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Admittedly, the marriage was solemnized on 10.02.1993 and two children were born out of the wedlock. At the time of filing of the Original Petition, they were aged 14 and 11 years respectively. The appellant, his parents, wife and children were living in the same house till 24.02.2005. According to the appellant, the alleged incident of adultery occurred on 23.02.2005, in his house, when the appellant, his parents and children were in the house. This Original Petition is seen filed on 11.02.2008 ie., after a long lapse of more than 3 years and 9 months after the alleged incident. It is needless to say, there is an inordinate delay in filing the Original Petition and the same is fatal to the genuineness of the allegations

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Mat. Appeal No. 757/2014 : 6 :

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raised against respondent.

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According to the appellant, on 23.02.2005, when Venugopal visited his house at 10 p.m., he invited him for dinner and he had dinner with the appellant. Venugopal brought a bottle of liquor. After dinner, the said Venugopal did not leave the house. The appellant believed that he left the house; but later, it was found that the respondent and Venugopal were in compromising position in the toilet outside the house and they were caught red-handed. Admittedly, during the course of dinner, the appellant, parents and children were in the house. We are of the view that unless there is cogent and convincing evidence, proving the allegations of adultery, no ordinary prudent man would believe such an act of adultery at that place at that time under the aforesaid circumstances. Adultery is an illicit act which will happen in secrecy, in the absence of others and no ordinary prudent man would choose such a time and place, in the presence of all other family members in the house, to commit it.

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Coming to the evidence, the petitioner was examined as PW1. He has repeated the averments in his proof affidavit.

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But, in cross examination, he could not withstand, by the

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Mat. Appeal No. 757/2014

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: 7 :

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allegations spoken to by him in the chief affidavit. According to him, no other evidence was adduced to prove the act of adultery, except the oral assertion of the appellant himself. Though his parents were examined as PWs 2 and 3 and they also have not seen the respondent and Venugopal in a compromising position, as alleged by the appellant. They also could not withstand the cross examination. They came to know about the adultery, when the appellant told them only. Therefore, as regards the allegations of adultery, they have only hearsay knowledge only, even though their evidence is admitted at its entirety. On a meticulous analysis of the evidence of PWs 1 to 3, in respect of the alleged act of adultery, we are of the opinion that no reliance can be placed on their evidence.

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That apart, the appellant had alleged that he left Oman on 07.08.2001 and thereafter, he got reliable information from his friends, relatives as well as the well wishers that the respondent is leading a way-ward life and she is getting company with Venugopal and spending all time along with him in hotels and for watching movies. So also, she was spending more time for talking with Venugopal over phone. It

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Mat. Appeal No. 757/2014 : 8 :

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is pertinent to note that he got the aforesaid information from his friends when he is in station. But, nobody among them

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was examined in evidence to substantiate the aforesaid contentions, in order to give rise to the inference that the alleged adultery is probable. When those instances were happened in public, certainly the appellant could have adduced independent corroborative evidence to support the same. He could have produced the documentary evidence to prove the alleged frequent contact of the respondent with Venugopal over phone. The absence of any kind of evidence in support of the aforesaid allegations made, in addition to the act of adultery, are also fatal to the appellant's case.

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In the above view, we also find that the appellant miserably failed to prove the act of adultery on a particular day, alleged against the respondent. This appeal lacks merit and the same is dismissed accordingly.

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sd/- K. HARILAL, JUDGE.

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sd/- ANNIE JOHN, JUDGE.

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Rkm/Rv

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Mat. Appeal No. 757/2014 : 9 :

D. Radhakrishnan Nair v. Raji R.K.

Case brief

What is this about?

What did the court decide?

D. Radhakrishnan Nair v. Raji R.K.

Case brief

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