VASANTI A.NAIK,J. - (1.) Since the issues involved in these family court appeals are identical and since the parties to the appeals are the same, they are heard together and are decided by this common judgment.
(2.) Sangeeta, the appellant in Family Court Appeal No. 58 of 2015 is the original respondent No. 1 in Hindu Marriage Petition No. A839 of 2012, that was filed by her husband Sushil. So also, Kamlesh, the appellant in Family Court Appeal No. 67 of 2015 is the respondent No. 2 to Hindu Marriage Petition, bearing No. A839 of 2012, filed by Sushil for a decree of divorce against Sangeeta on the ground that Sangeeta had voluntary sexual intercourse with Kamlesh and hence, the marriage between Sushil and Sangeeta may be dissolved by a decree of divorce under Section 13(1)(i) of the Hindu Marriage Act.
(3.) Few facts giving rise to these family court appeals are stated thus - Sushil and Sangeeta were married at Nagpur on 25/04/1999 according to Hindu rites and customs. A girl child named Anushree and a boy named Gaurav were born from the said wedlock. On 03/03/2010, Sangeeta was admitted to the Hospital of Dr. Gaikwad for consuming poison and after she was discharged from the said Hospital, she did join the company of Sushil and went to reside in the house of her parents. Immediately thereafter, Sangeeta filed a petition for a decree of divorce against Sushil, bearing Petition No. A260 of 2010 on 31/03/2010. A written statement was filed by Sushil in the said petition on 13/12/2010. Along with the written statement, a counter claim for a decree of restitution of conjugal rights was made by Sushil. During the pendency of Hindu Marriage Petition bearing No. A260 of 2010, Sushil filed an amendment application seeking permission to file a counter claim for a decree of divorce on the ground that Sangeeta had voluntary sexual intercourse with Kamlesh. The Family Court did permit the filing of the aforesaid counter claim in the petition filed by Sangeeta for a decree of divorce, however, liberty was granted to Sushil to file appropriate proceedings. Sushil, then filed the present petition bearing Petition No. A839 of 2012 for a decree of divorce under Section 13(1)(i), (ia) and (ib) of the Act on the ground that Sangeeta had deserted him, had treated him with cruelty and she had voluntary sexual intercourse with Kamlesh. We are concerned with the petition filed by Sangeeta for a decree of divorce, as these family court appeals arise from the judgment of the Family Court granting a decree of divorce in favour of Sushil after recording a finding that Sangeeta had voluntary sexual intercourse with Kamlesh and that she had treated Sushil with cruelty. In the petition filed by Sushil, it was pleaded by Sushil that after the marriage, Sushil and Sangeeta happily lived together for nine years. It is pleaded that in the year 2008, the cousin sister of Kamlesh, namely Lata came to reside in the house of Kamlesh and frequently started visiting the house of Sushil and Sangeeta. It is pleaded that Sangeeta also started visiting the house of Kamlesh when Sushil went for his duties. During the relevant time, Sushil was posted as a Head Constable in Nagpur and Kamlesh was serving in Symbiosis Company as a Sales Executive. It is pleaded that after Sangeeta came in contact with Kamlesh, her behaviour and approach towards Sushil started changing and Sangeeta started fighting with Sushil on trifle matters. It is pleaded that the father of Sushil had told Sangeeta that it was proper for Kamlesh to visit the house of Sushil and Sangeeta frequently. It is pleaded that Shilpa, the daughter of the elder sister of Sangeeta by name Rekha used to visit the house of Sangeeta and Sushil. It is pleaded that Shilpa was in love with Dinesh, the brother of Kamlesh. It is pleaded that Sangeeta and Kamlesh started developing an illicit relationship, as Sangeeta was greatly influenced by Kamlesh. It is pleaded that Sangeeta picked up quarrel with Sushil on 03/03/2010 and made a show that she had consumed poison, as a result of which Sushil admitted her in the Hospital of Dr. Gaikwad. It is pleaded that even before the incident, dated 03/03/2010, Sangeeta had stopped cooperating with Sushil and had prevented him from sleeping near her. It is pleaded that in the Hospital also, Sangeeta did permit Sushil or his family members to meet her and only Kamlesh and his family members could see her. It is pleaded that after the discharge from the Hospital, Sangeeta went to her parental home. It is pleaded that Kamlesh started visiting the parental home of Sangeeta, after she started residing there. It is pleaded that as per a plan hatched by Sangeeta and Kamlesh at Ujjain, Sangeeta filed a divorce petition against Sushil, on 31/03/2010. It is pleaded that in the said petition Sushil filed a written statement and made a counter claim for restitution of conjugal rights. It is pleaded that in October, 2011 Sushil came in contact with Priyanka's sister Khushbu, who informed Sushil that Priyanka is desperate to meet him and wishes to tell him some important facts relating to the relationship between Sangeeta and Kamlesh. It is pleaded that Priyanka being the wife of Jitendera, the brother of Sangeeta was in the know of things and she made certain startling revelation. It is pleaded that Sushil asked Priyanka whether she could state the facts on affidavit and she readily agreed and narrated the facts about the illicit relationship between Kamlesh and Sangeeta. According to Sushil, Priyanka narrated the following facts to Sushil:- "From 17/05/2010 Sangeeta started residing at Prem Nagar in the house of her sister Rekha and Kamlesh started visiting her in the said house. That Sangeeta and Kamlesh were involved in physical relationship in the house of Rekha in Prem Nagar. That Jitendra did have a job and hence in January, 2010, Kamlesh secured a job for Jitendra in his company. That Priyanka and Jitendra started residing at Yavatmal and Kamlesh brought Jitendra, Priyanka and the mother of Sangeeta to Yavatmal, on 20/09/2010. That ten days later, Kamlesh brought Sangeeta to Yavatmal in his car and Kamlesh started visiting Jitendra and Priyanka's house in Yavatmal twice a week. That there were only two rooms in the house and that Kamlesh and Sangeeta used to sleep in the front room and Jitendra and Priyanka used to sleep in the kitchen. That the two rooms were partitioned only by a curtain and once when Priyanka awoke in the night, she saw Kamlesh and Sangeeta in a compromising position and they were involved in physical intercourse two or three times. That Priyanka was shocked, but she did disclose this fact to anybody. That Kamlesh gifted a mobile phone to Sangeeta bearing No. 9422141139 at Yavatmal and Sangeeta used to talk to Kamlesh from the said mobile. That Sangeeta was using a different mobile bearing No. 9579335665 and she talked with Kamlesh from that mobile also. That when Sangeeta was residing with Jitendra and Priyanka at Yavatmal, on 10/01/2011 Kamlesh came to Yavatmal along with Rekha Bagal, (elder sister of Sangeeta), her husband Baba Bagal and her daughter Shilpa Bagal in his car and all of them proceeded for Nashik by car. That Kamlesh and Sangeeta were sitting on the front seats and all the rest were sitting on the back seat. That in Trambakeshwar, Kamlesh and Sangeeta stayed in one lodge whereas all others stayed in another lodge. That at that time Sangeeta was using mobile phone bearing No. 9579335664 that was registered in the name of Amol Bagal, the son of Rekha." It is pleaded in the Hindu Marriage Petition that Sushil came across Prashant Bhoskar in December 2011 and Prashant revealed certain facts to Sushil pertaining to the illicit relations between Sangeeta and Kamlesh. It is pleaded that Sushil asked Prashant to state the facts on affidavit and Prashant narrated the facts on affidavit and handed over the affidavit to Sushil. According to Sushil, Prashant revealed the following facts to him : "That in December 2010, Prashant and his wife had decided to go to Chikhaldara. That Kamlesh, Prashant and his wife came to Yavatmal in the car of Kamlesh. That Kamlesh brought Sangeeta, her niece Shilpa and Kamlesh's younger sister Neha in the car and then they went to Amravati. In Amravati, Prashant and his wife slept in one room and Kamlesh, Sangeeta, Shilpa and Neha slept in another room. That in Chikhaldara, for the stay of Prashant, his wife, Kamlesh, Sangeeta, Shilpa and Neha for two nights and three days, three cottages were booked. That Prashant and his wife slept in one cottage, Shilpa and Neha slept in another cottage and Kamlesh and Sangeeta slept in the third cottage. That Kamlesh took the photographs of Sangeeta and himself in his mobile, but when the battery of his mobile was down, he asked Prashant to take their photographs. Prashant took their photographs and stored the images in the computer. According to Prashant, Kamlesh and Sangeeta lived like husband and wife during their stay at Chikhaldara in December 2010." It is pleaded by Sushil in his petition that after securing the aforesaid information from Priyanka and Prashant, a complaint was filed by him against Kamlesh for an offence punishable under Section 497 of the Indian Penal Code. It is pleaded that the criminal complaint was registered as Criminal Complaint Case No. 2611 of 2011. It is pleaded that during investigation under Section 202 of Criminal Procedure Code, the Investigating Officer collected CDR from the respective cellular companies. It is pleaded that it is clear from the information supplied to Sushil by Priyanka and Prashant that Sangeeta had voluntary sexual intercourse with Kamlesh in the house of her elder sister Rekha at Prem Nagar, her brother Jitendra at Yavatmal, in the rest house in Trimbkeshwar in January 2011 and in the guest house at Chikhaldara in December 2010. Since Sangeeta and Sushil were residing separately from 03/03/2010, after Sangeeta was admitted to Gaikwad Hospital, Sushil sought a decree of divorce on the ground of desertion. Apart from seeking a decree of divorce on the ground that Sangeeta had voluntary sexual intercourse with Kamlesh, Sushil also sought a decree of divorce on the ground of cruelty. Sangeeta filed her written statement and denied the claim of Sushil. Apart from denying all the adverse charges and allegations that were levelled against her, she denied that she and Sushil happily resided in the matrimonial house for nine years. Sangeeta denied that Sushil was a good, loving and caring husband and was providing her with all the comforts of life. After denying the allegations levelled against her in totality, Sangeeta pleaded that Sushil was of extremely suspicious nature and due to the said nature, Sushil used to torture her. It is pleaded that she was harassed, beaten up and threatened by Sushil in a very cruel manner. It is pleaded that she was sometimes beaten by a belt on a wrongful assumption that in the absence of Sushil, somebody had visited their bed room as the toilet was stinking. It is pleaded that Sushil used to beat her under the influence of liquor. It is pleaded that Sushil did permit her to talk to any man and he used to spend time on spying. It is pleaded that under the influence of liquor, Sushil only gave beating to her on several occasions, but he used to go to backyard to ensure whether there was any male in the backyard with whom she had a relationship. It is pleaded that sometimes under the influence of liquor, Sushil passed urine in any corner of the room. It is also pleaded that Sushil has made wild allegations against her character and she would be entitled to a decree of divorce, in the absence of proof of the same. It is further pleaded by Sangeeta in her written statement that she is ready for a decree of divorce, but on the ground that she had voluntary sexual intercourse with Kamlesh. Sangeeta sought for the dismissal of the Hindu Marriage Petition filed by Sushil. Kamlesh also filed a written statement and denied the claim of Sushil. Nothing much was stated by Kamlesh in his written statement except the fact that he did have any illicit relationship with Sangeeta as pleaded by Sushil. It is pleaded that he had approached Sushil for an insurance policy and that is how, the parties had met.;