SHARMA, J. - (1.) BY a decree of divorce dated January 8, 1999 learned Family Court No. 1, Jaipur City snapped the marital ties between the appellant wife (Madhu) and respondent husband (Mukesh ). Against this decree that the present action for filing the appeal has been resorted to by Madhu.
(2.) MADHU and Mukesh got married according to Hindu rites on August 8, 1972. Two daughters and one son viz. Meenakshi, Nidhi and Atul were born out of the wedlock. On March 18, 1997 i. e. after 24 years and 7 months, Mukesh filed petition seeking divorce from MADHU under section 13 of the Hindu Marriage Act,1955 (for short `the Act') on the grounds of adultery and cruelty. At that point of time age of Meenakshi was 23 years, whereas age of Atul and Nidhi was 20 and 18 years respectively. Mukesh impleaded in the petition Shiv Kumar Verma of Amritsar (Punjab) and Baldev Sagar Beri of New Delhi as co-respondents. In para 10 of the petition Mukesh pleaded that in the month of July,1996 Shiv Kumar Verma came to Jaipur and stayed in his house. Illicit relationship of MADHU and Shiv Kumar Verma came to the light when Mukesh himself saw them sharing bed and committing sexual intercourse. Again in para 12 of the petition Mukesh averred that in July,1996 when he woke up in the night he found MADHU in the room of Baldev Sagar Beri and they were committing sexual intercourse. Since MADHU treated Mukesh cruelly he became disturbed and filed petition seeking divorce from MADHU. Madhu, gave a detailed reply denying all the allegations and expressed her desire to continue the marriage. It was stated by her that she never indulged in the alleged activities and Shiv Kumar Verma was her sacrosanct Guru whereas Baldev Sagar Beri was her brother in law (Jija ). She never had illicit relationship with them and Mukesh had levelled false allegations against her. She also pleaded that it was Mukesh and his family members who harassed her for the demand of dowry and she never behaved cruelly with Mukesh. She described in extenso how she brought a sum of Rs. 10,000/- at the time of birth of child and thereafter a sum of Rs. 1 lac for raising construction of upper story of the house and Rs. 20,000/- for her treatment. She also averred that she was harassed, tortured and beaten by Mukesh. Learned Family Court framed as many as four issues out of the pleadings of the parties thus:- (1) Whether after the marriage the behaviour of wife was cruel as per the facts stated in the petition? (2) Whether the wife developed relationship with B. S. Beri and Shiv Kumar Verma? (3) Whether the husband and his family members harassed the wife for demand of dowry as mentioned in the reply to petition? (4) Relief? Mukesh examined himself as Pw. 1 and in support of his testimony produced Raj Kumar Naiyar (Pw. 2), Tej Bahadur Singh (Pw. 3), Smt. Simmi (Pw. 4), Smt. Beena (Pw. 5), Jitendra Kumar Sharma (Pw. 6) and O. P. Naiyar (Pw. 7 ). Madhu on the other hand appeared as Dw. 1 and examined Sohan Lal Karir (Dw. 2), Veena Beri (Dw. 3), Om Prakash Gandhi (Dw. 4) and Rajesh Kumar (Dw. 5) to corroborate her contentions. Learned Family Court decided all the issues against Madhu and granted decree of divorce in favour of Mukesh as indicated above.
(3.) WE have heard learned counsel for the parties and scanned the material on record. WE shall take up issue of adultery first. Sub clause (i) was inserted in Section 13 (1) of the Act w. e. f. May 27, 1976. After incorporation of this sub clause no decree for divorce on the ground of adultery as mentioned in Section 13 (1) (i) could be granted in favour of respondent in the absence of any material on record to show that the appellant had voluntary sexual intercourse with a stranger to the marriage. It is well settled that the charge of adultery or illicit connection made against the spouse is a serious matter and it must rest on evidence of unimpeachable character. In Pushpa Devi Vs. Radhey Shyam (AIR 1972 Raj. 260) this Court had occasion to scan Mulla's Hindu Law (13th Edition pages 671 and 672) and it was indicated that direct evidence is not required to prove the fact of adultery. It would be unreasonable to expect direct evidence and such evidence, if produced, would be normally suspect and is likely to be discarded. Normally the matrimonial offence of adultery is expected to be established by circumstantial evidence, but in that event the circumstances must be such as lead to the necessary conclusion that adultery was committed by the spouse concerned. The only general rule upon the subject is that the circumstances must be such as would lead to a guarded judgment of a reasonable and just man to the conclusion. Proof beyond reasonable doubt mean such proof as it precludes every reasonable hypothesis except that which it tends to support. It need not reach certainty, but must carry a high degree of probability. The court would not as a general rule infer adultery from evidence of opportunity alone, but would require some more satisfactory proof. ;