On 25th September 2020, the High Court of Sikkim in the case of Suk Bir Chettri v. R Jamuna Chettri & Sachin Rai comprising of a double Bench of Chief Justice Arup Kumar Goswami & Justice Meenakshi Madan Rai held that the learned Court below was justified in dismissing the petition filed by the appellant for grant of divorce under Section 13(1)(i) of the Hindu Marriage Act, 1955.
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Factual Background
In the petition under Section 13(1)(i) of the Act, it is stated that the marriage between the appellant and the respondent was solemnized in the year 1993 and they have three daughters. It is stated in the petition that at around one day, when the respondent had opened the door of her room whereupon Asha Chettri found that she was inside the bedroom along with the respondent no.2, who, thereafter, had gone away taking respondent no.1 along with him.
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A further case of the appellant in the petition is that fearing that something untoward may happen to her mother, Asha Chettri lodged an FIR before Soreng Police Station. When the appellant came to know about the said incident from his daughter, he had submitted a complaint before the Police Station requesting that both of them be called to the Police Station. The respondent no.2 was arrested by Police and he was later released on bail. The respondent no.2 had given an undertaking before the Police in presence of witnesses stating that Asha Chettri had seen him and her mother sleeping together and therefore, it was his responsibility to look after respondent no.1. It is also alleged that in the year 2016, the respondent no.2 was involved in some cases and as the respondent no.1 had given shelter to the respondent no.2, she was assaulted by the villagers.
Being aggrieved by the judgment and order dated 28.06.2019 passed by the learned Judge, Family Court, East Sikkim rejecting the petition filed by the appellant under Section 13(1)(i) of the Hindu Marriage Act, 1955 for divorce, this appeal is preferred by the appellant.
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Submissions on behalf of the Appellant
The learned Counsel for the appellant has submitted that the evidence of PW-1 and PW-2 clearly demonstrates that the appellant had been able to prove the case to the hilt. It is submitted that the learned Court failed to sift the evidence in its proper perspective and guided by a wrong notion that the appellant was the Sub-Inspector of Soreng Police Station, where respondent no.2 had given the Undertaking, did not rely on Exhibit-3, the Undertaking (Ekrarnama), holding that the respondent no.2 could have been easily pressurized to execute Exhibit-3. It is submitted that though in the written statement, the respondent no.1 had made allegations that Asha had come home drunk, there was no evidence to that effect and further when Asha was examined as PW-2, no suggestion was also given to that effect. She submits that the materials on record go to show that it is an admitted position that the respondent no.2 was with the respondent no.1 in the bedroom at 02.00 am in the night. The above fact coupled with the admission of respondent no.2 in the Undertaking establish beyond a shadow of a doubt that the respondent no.1 had committed adultery with respondent no.2, she contends. She places reliance on a judgment of this Court in the case of Smt. Mala Rai vs. Shri Bal Krishna Dhamala.
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Submissions on behalf of the respondent
The learned Counsel appearing for respondent no.1, while supporting the impugned judgment, submits that PW-2, in her deposition, did not mention the time when DW-1 and DW-2 were found to be together. He contends that there was no allegation in the FIR lodged by PW-2 or in the petition under Section 13(1)(a) of the Act that PW-2 had found respondents no.1 and 2 in a naked condition as deposed by her in her evidence and therefore, the learned Court below was justified in holding that allegations made by her is exaggerated and an after-thought. He has also submitted that the learned Court below rightly did not place any reliance on Exhibit-3 as the same was executed in the police station by respondent no.2 while being illegally detained for a day without registration of any case. He has submitted that no case is made out for interference with the impugned judgment and the appeal deserves to be dismissed.
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Court Analysis
It is in this context Exhibit-C assumes significance wherein the respondent no.2 had admitted to having slept with respondent no.1. It must not be forgotten that Exhibit-C was executed in the Police Station while the respondent no.2 was in illegal detention. While it was true that the learned Court below was not correct in holding that the appellant was also working in the Soreng Police Station, it is established on record that he is a Head Constable of another Police Station had filed a complaint (Exhibit-B) asking that both the respondents be called to Soreng Police Station. Accordingly, without there being the registration of any case, the respondent no.2 was not only called to the Police Station but was also detained for two days. Evidence of DW-2 that he was forced to execute Exhibit-C and that he was released only after execution of Exhibit-C are not even tested by way of cross-examination. Therefore, the learned Court below was justified in not placing any reliance on Exhibit-C.
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Judgment
Having regard to the evidence on record, the court was of the considered opinion that the learned Court below was justified in dismissing the petition filed by the appellant for grant of divorce. Accordingly, finding no merit, the appeal was dismissed.
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