(1.) THIS is an appeal under section 28 of the Hindu Marriage Act, 1955 (in short the), challenging the judgment and decree dated 24-11 -2006, allowing the petition of the respondent under Section 13 of the act, and granting him a decree for divorce against the appellant-wife.

(2.) UNDISPUTEDLY the appellant was married to the respondent-husband on 22-4-2004 in accordance with Hindu rites at village Dhaba Goutman Tola of District Rewa. After marriage she had gone to her in-laws place and stayed with them for a period of 8-10 days and thereafter she came to her parents place at village Dhaba Goutman tola. According to respondent, after marriage though he lived with his wife, but he had no physical relation with his wife. The appellant-Neeelam was having illicit relations with Anurag Mishra and when she was residing at her parents place, she with her consent had gone to Surat with Anurag mishra on 12-9-2005 and she stayed with him for a period of more than one month at surat in one room and during this period she had physical relations with him. Thus she had extramarital relations with one anurag Mishra to whom she knew prior to her marriage and, therefore, it is practically impossible for him to live with his wife and, therefore, he prayed that a decree for divorce be granted under Section 13 (1) (i)and 13 (1) (i-a) of the act).

(3.) THE appellant/non-applicant filed her written statement in which she admitted her marriage with the respondent on 22-4-2004 but she denied that after marriage she had gone to her in-laws place and stayed there for 8-10 days with her husband. She also denied that due to her resistance, respondent had no physical relation with her. It is contended that she was abducted by one anurag Mishra on 12-9-2005 and when her uncle Shivanand Tiwari and police personnel of police station Hanumana came to surat she was taken to her parents place at district Rewa. She lodged FIR against anurag Mishra. After investigation challan has been filed and a criminal case under sections 368, 498 and 347 of IPC had been registered against the applicant. She denied that she had extramarital relation with anurag Mishra and contended that on 12-9-2005 she was coming from Hanumana college she was abducted by said Anurag mishra and was at Surat for a period of more than one month. The appellant-wife therefore prayed that petition for divorce be dismissed.

(4.) THE trial Court after appreciating the statement of respondent, Sunil Kumar (P. W. 1), Brijbhan Prasad Tiwari (P. W. 2), abhimanu (P. W. 3), Chhotelal Dubey (P. W. 4), appellant Neelam (NAW-1), father of the appellant Daya Shanker Dwivedi (NAW-2)and Buddhsen Sen (NAW-3) came to the conclusion that the appellant had voluntarily sexual intercourse with Anurag Mishra other than her spouse. The respondent by adducing cogent evidence sufficiently proved the ground of adultery and granted a decree for divorce against the appellant by the impugned judgment and decree dated 24-11-2006.

(5.) SHRI Mrigendra Singh, learned counsel for the appellant has submitted that allegation against present appellant was that she is living in adultery with one Anurag mishra but he was not impleaded as co-respondent in the petition which is mandatory. In support of the said contention, he drew my attention to the Division Bench decision of Kerala High Court M. K. Kunhiraman v. Santha alias Devaki, AIR 1998 Kerala 189 in which High Court of kerala in exercise of the powers conferred under Sections 14 and 21 of the Hindu Marriage Act, 1955 and Article 227 of the Constitution of India framed the rules with the previous approval of the Governor to regular proceedings under the said Act. Rule 7 (4)of the said Rule states that in every petition presented by a husband for divorce on the ground that his wife is living in adultery with any person or persons, the petitioner shall implead the person or persons as co-respondent in the petition by stating the name, occupation and place of residence of such person or persons so far as they can be ascertained. Here in the present case, there is no such provision in the or Rules framed therein by this Court and, therefore, the decision cited by the learned counsel for the appellant in the case of M. K. Kunhiraman (supra) will not be applicable in the present facts and circumstances of the case nor on that ground the impugned judgment can be set aside. Similar is the view of the Division bench decision of Andhra Pradesh High court in the case of Mirapala Venkata ramana v. Mirapala Peddiraju, AIR 2000 AP 328 [LQ/TelHC/2000/78] wherein the alleged adulterer was not impleaded as party and, therefore, the Division Bench of Andhra Pradesh High Court set aside the order granting divorce on the ground of adultery.

(6.) THE next submission of learned counsel for the appellant that as per FIR dated 2-11-2005 (Ex. P/1), statement of appellant-Neelam (Ex. P/6) and order dated 26-10-2005 (Ex. P/5) it has not been proved that appellant with her consent had gone to Surat along with Anurag Mishra nor there is any evidence to prove that she had sexual intercourse with Anurag Mishra or they stayed in one room for a period more than one month. The learned Trial Court committed error in holding that respondent by cogent evidence proved the ground of adultery against the appellant. He submitted that appellant was abducted by one Anurag mishra and was detained at Surat from where she was rescued by the policy party and her family members. The said accused is facing criminal proceeding in relation to the offence registered against him under sections 368, 498 and 347 of IPC, the Trial court committed legal error in not relying on the averments made in the FIR as well as the order dated 26-10-2005 and statement of Neelam recorded in the criminal court vide Ex. P/6. He further submitted that the trial Court on the basis of presumption granted a decree against the appellant whereas she did not have any sexual intercourse with any other person outside the marriage forcefully or voluntarily and the finding on this count is perverse and contrary to the law.

(7.) I have heard learned counsel for the appellant and perused the record of the case.

(8.) THE sole contention for consideration in this appeal is whether there is any evidence to indicate that the appellant after the solemnization of her marriage had voluntary sexual intercourse with any other person than her husband the respondent

(9.) IT is settled law that the marriage bond shall not be set aside lightly or without strict enquiry. The general standard and degree of proof required in such cases need not reach certainty, but it must carry a high degree of probability, because of the gravity of issue. In the case of Dr. N. G. Dastane v. Mrs. S. Dastane, AIR 1975 SC 1534 [LQ/SC/1975/129] , it was pointed out that as the proceedings under the Hindu Marriage Act, 1955, are of civil nature, the test of criminal proceedings need not be applied and it is not necessary to prove the allegations beyond all reasonable doubt, the reason being that a criminal trial involves the liberty of the subject which may not be taken away on a mere preponderance of probabilities and it would be wrong to input such a consideration into trial of civil nature. The word satisfied in Section 23 of the act must mean satisfied on preponderance of probabilities and not satisfaction beyond reasonable doubt; which requires proof of higher standard in criminal or quasi-criminal trials. Proof beyond reasonable doubt is not postulated where human relationship is involved and eye-witnesses are difficult to obtain. Similar proposition was laid down in Shobha Rani v. Madhukar Reddi, AIR 1988 SC 121 [LQ/SC/1987/761] .

(10.) COMING to the evidence in the instant case, the respondent-applicant Sunil kumar Tiwari (A. W. 1) has stated that he was married on 22-4-2004 with the appellant-Neelam at the house of father of the appellant. Thereafter, appellant had stayed with him for a period of 5-6 days at her inlaws house at village Delhai. She was not happy with the marriage and, therefore, she had gone to her parents place and from where she refused to come to her in-laws place. She on 22-9-2005 with her consent had left her parents place along with Anurag mishra and stayed with her at Surat. Ex. P/1 is FIR lodged by Daya Shanker Dwivedi on 2-11-2005 against Anurag Mishra at Police station Hanumana. Vide Criminal No. 151/ 2005 a case under Sections 368, 498 and 347 of IPC was registered against him. Ex. P/2 is the final report under Section 173 of cr. P. C. Ex. P/3 is Rojnmamcha dated 20th september, 2q05. On 24-10-2005 she was recovered at Surat and he came to her parents place along with police party and her uncle. On 27-10-2005 her statement was recorded in Missing Case No. 11 /05. As per her statement, her date of birth is 1-1-1985. She in her statement has deposed that she is ready to go with her husband-respondent. It is well settled that FIR is not a substantive piece of evidence.

(11.) APPELLANT Neelam (NAW-1) in para 2 of her statement has deposed that she was prosecuting her. studies at Hanumana degree college. On 12-9-2005, when she was coming back from her college along with her friend Savita, on the way her friend had gone to her house along with her brother and she was alone and when she reached taxi stand, at that time she met Anurag Mishra, he requested her to have tea and sweets at hotel then she had gone along with him and had sweets. After eating the sweets, she became unconscious for a period of 3-4 days and when she became conscious, she found herself at Surat where she was confined by anurag Mishra in one room. She in para 4 of her statement has admitted that brother-in-law of her uncle is staying at Surat. She had telephone number and she intimated him that she is at Surat. She in para 5 of her cross-examination has deposed that anurag Mishra is residing at village Rajadho and distance between Rajadho and Dhaba goutman is 10-15 kms. She also admitted that Anurag Mishra is distantly related with her and due to the said relations she had gone to his place at village Rajadho and he also visited at her place from time to time. Thus, she in her cross-examination admitted that she met number of times with anurag Mishra. In view of above, it cannot be said that she for the first time met him on 12-9-2005 or before 12-9-2005 she never met him. In para 5 she has deposed that though she regularly goes to attend college at Hanumana but she does not know the name of hotel where she had snacks with anurag Mishra. She also denied the suggestion made by the respondents counsel that after marriage she had stayed at her in-laws place for 5-6 days. She in para 7 of her cross-examination has admitted that on 12-9-2005 she had gone to collage at about 10. 00 a. m. and she had returned from the college at 4. 00 p. m. in the afternoon but she admitted that her attendance was not recorded in the college attendance register on 12-9-2005. She also admitted regarding the certificate of her attendance issued by the Principal, to the police authorities and as per said certificate in the month of September, 2005 she was absent from 5th onwards. She also admitted that she had stayed at Surat for a period of more than one month. In para 8 she has deposed that she was unconscious up to 19-9-2005. It cannot be believed that she was unconsicous for a period from 12-9-2005 to 19-9-2005. The statement of the appellant is unnatural. It is unbelievable that she was unconscious for a period of 5 days and during that period on 12-9-2005 she had gone to Surat from Hanumana. In para 9 she admitted that she had given clothes for stitching her salwar suit to Gopal tailor at Hanumana and Anurag Mishra knows this fact very well and it is Anurag mishra who had taken delivery of stitched salwar suit of appellant from the said tailor. She is para 9 also admitted that she received her salwar suit at Surat. In para 11 she also admitted that it is Anurag Mishra who had paid the stitching charges to her tailor. In para 12 she also admitted that she and anurag Mishtra were residing together at surat. She in this para also admitted that when police personnel asked for her medical treatment, she refused for her medical treatment. From the above evidence, it is very clear that she had gone to Surat along with Anurag Mishra with her consent and stayed along with Anurag Mishra at Surat. This shows that she had relations with anurag Mishra and they stayed at Surat and knowingly refused for her medical treatment because she was married. NAW-1 in para 14 of her cross-examination has admitted that she phoned to her parents from STD booth at Surat. She with her free consent had gone to STD booth to phone her parents. From the above, the statement of the appellant that she was confined in one room by Anurag Mishra is incorrect and unacceptable. From her cross-examination in, it is clear that she knew Anurag Mishra much prior to the date of her marriage and she stayed with him for a period of more than one month till her parents and police personnel came to Surat. From the above evidence, it is also clear that she stayed in one room with Anurag Mishra. Thus from her evidence, it is very clear and specific that she had illicit relations with Anurag Mishra.

(12.) DAYASHANKER (NAW-2), father of the appellant-Neelam in his statement has deposed that on 12-9-2005 when her daughter did not return from Hanumana College, he did not lodge any complaint for a period of 7-8 days. He also in para 9 of his cross-examination has admitted that no medical test on her daughter was conducted. Thus, it cannot be said that Anurag Mishra gave her some medicine and she had gone along with Anurag Mishra without her consent.

(13.) THUS, there is overwhelming evidence on record to support the finding of the trial court that appellant had illicit relation with another man and she was leading an adulterous life.

(14.) FROM the evidence on record, it is amply established that appellant Neelam had illicit sexual relations with Anurag mishra.

(15.) IN Banchhanidhi Das v. Kamla Devi, air 1980 Orissa 171, it has been observed that : -

"while it is true that evidence of adultery has to be clear and definite and the allegation has to be proved beyond reasonable doubt, it would be difficult to get direct evidence of acts of adultery. living in adultery" is suggestive of the fact that a single instance of adultery may not be adequate. In the instant case, the letters refer to a course of adulterous conduct and, therefore, the requirement of Section 13 of thehas been satisfied. As has been pointed out in raden on Divorce it is not necessary that there should be direct evidence of adultery as it is not easily available. It has been also stated that rarely the parties would be caught in acts of adultery. Circumstantial evidence must, however, be sufficiently strong and conclusive.

(16.) HOWEVER, the law as it now stands, there is no necessity to prove that the offending spouse is living in adultery and any single set of sexual intercourse with any person other than the spouse is not sufficient for the aggrieved spouse to obtain a divorce under clause (i) (1) of Section 13 of the. Here, in the present case it is found that the appellant-wife had gone to Surat with a person other than husband and both of them stayed together in one room for a period of more than one month and both of them had opportunity to commit sexual intercourse in natural course of thing then it must be presumed that she had committed voluntary sexual intercourse with that person especially she was missing after marriage and was recovered from the house of anurag Mishra at Surat.

(17.) IN the instant case, there is satisfactory and convincing circumstantial evidence that the appellant-Neelam was having extra-marital relations with Aurag Mishra and indulged in illicit sexual relationship with him and she with her consent had gone to surat along with Aurag Mishra and they stayed together in one room at Surat for a period of more than one month. Hence the degree for divorce under Section 13 (1) (i) of the act was justifiably granted by the trial court in favour of the respondent-husband.

(18.) IN view of above discussion, clearly the decree of divorce granted by the learned trial Court under Section 13 (1) (i) and 13 (1) (i-a) of the act is fully justified. It does not call for any interference nor it can be said that the respondent has failed to prove the ground of adultery. The appeal filed by the appellant-wife has no merit and is hereby dismissed. Parties shall however, bear their own costs of this appeal. Appeal dismissed.