P. Dinesh Kumar, E.G.Dist. v. P.P., Hyd And Ano

THE HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY CRIMINAL PETITION No.1099 of 2015

ORDER

This petition under Section 482 Cr.P.C., is filed to quash the proceedings in C.C.No.415 of 2013 on the file of 1st Additional Chief Metropolitan Magistrate, Visakhapatnam, registered for the offences punishable under Section 497 read with Section 34 IPC. The defacto complainant is the husband of Kotla Sailaja. He filed private complaint before the Magistrate alleging that his wife Kotla Sailaja and the petitioner developed illicit contact during subsistence of his marriage with the 2nd respondent and thus petitioner is guilty of the offences punishable under Section 497 I.P.C i.e., Adultery.

Initially K.Sailaja was arrayed as 1st accused but against Sailaja, Calendar Case was dismissed.

The main contention before this Court is that 2nd respondent himself admitted about illicit contact or adultery and condoning the same, restored family ties. Later, lived together and he filed FCOP.No.1181 of 2012 and obtained a decree of divorce on the ground of cruelty and adultery.

The 2nd accused/petitioner herein had sexual intercourse with K.Sailaja knowing that she is the wife of the 2nd respondent and the said Sailaja abetted the 2nd accused/petitioner for sexual intercourse with her and in turn the Sailaja also committed the offence of abetment and the petitioner/accused committed an offence of adultery and therefore the 2nd respondent filed the complaint.

The main contention of the counsel for petitioner before this Court is that when 2nd respondent condoned the illicit contact of his wife Sailaja, he is not entitled to prosecute the petitioner herein for the offences punishable under Section 497 I.P.C and he placed reliance on several judgments of Apex Court and Delhi High Court contending that the complaint is not maintainable in view of the connivance between Sailaja and the 2nd respondent herein. In support of his contention, he has drawn the attention of this Court to the judgments in Sandwip Roy vs. Sudarshan Chakraborty1 , W.Kalyani vs. State Tr. Inspector of Police and Anr2 and Smt. Chandra Mohini Srivastava vs. shri Avinash Prasad Srivastava and another3.

On the strength of the law declared by the above three judgments, requested this Court to quash the proceedings in view of the connivance between 2nd respondent and K.Sailaja. The offence of 'Adultery' is punishable under Section 497 IPC. In case of Adultery, direct proof is difficult to get and one has to rely on the circumstantial evidence and if the same is sufficiently proved, from which Adultery may be inferred. To prove the charge of adultery, the standard of proof required in a criminal case cannot be applied for the proceedings under the Divorce Act. Person alleging adultery is only required to prove the allegations by preponderance of probabilities and the degree of probability depends on the gravity of the offence. It is well established that application for divorce is a civil proceeding and analogies of criminal law cannot be applied to it. It is equally 1 2007 Law Suit (Del) 2605 2 AIR 2012 SC 497 3 AIR 1967 SC 581

true that the petition for divorce on the charge of adultery cannot be allowed merely on suspicion and doubts expressed by the party approaching the court. The view of proving the matrimonial offence beyond reasonable doubt has undergone a sea change and in the modified form, the 2nd respondent is only required to prove his case by preponderance of probabilities and the degree of probability depends upon the gravity of the offence. It is not necessary to prove adultery by direct evidence. Such evidence cannot be given credit even if produced. Adultery has to be inferred from circumstances which exclude any presumption of innocence in favour of the person against whom it is alleged. In matrimonial proceedings, the Court has to be vigilant that the burden of proof is satisfactorily established and properly discharged.

Adultery, from its nature, is a secret act. The Court must have due regard to the social conditions and the manner in which the parties are accustomed to live. Adultery can generally be proved by presumptive proof passed upon circumstantial evidence such as non-access and the birth of the children. In the present case, it is the 2nd respondent who contended that petitioner developed illicit contact with his wife, Sailaja, and to prove the same, it is a difficult task for him. Adultery as a general rule is proved based on circumstantial evidence. In the present facts of the case, there is lot of material on record, more particularly copy of petition in O.P.No.1181 of 2012 on the file of Additional District Judge, Family Court at Visakhapatnam.

(1) & (1a) of Hindu Marriage Act, 1955 where an allegation is made that wife of the 2nd respondent i.e. Sailaja while learning Internet

and job typing work for self employment in DTP centre, developed illegal intimacy with a person by name Gopi who is working in the said centre. Thereafter, said Sailaja completely maintained distance from 2nd respondent physically and started avoiding him. By observing the said attitude, the 2nd respondent permanently closed the mobile workshop at Rajahmundry and started to spend more time with Sailaja, but she used to threaten the 2nd respondent that if he tried to cohabitate with her she will commit suicide and throw the blame on 2nd respondent. However, in the month of November, 2002, the said Sailaja took her clothes and ornaments and left the matrimonial place without intimating anybody.

The 2nd respondent got worried and started searching for her and when he could not find her, he immediately informed the parents of Sailaja about the said incident. In spite of the said incident, developing illicit contact with said Gopi, the 2nd respondent out of love and affection allowed her back into his life with a hope that first respondent would mend her attitude. But she did not change her attitude and filed a divorce petition. Thus the specific allegation made in O.P.No.1181 of 2012 is suffice that 2nd respondent condoned the earlier act of Adultery, i.e., developing illicit contact with one Gopi while learning computer, typing etc.

The meaning of word 'connivance' in dictionary of Cambridge is "act of conniving, especially by knowing that something bad is happening and allowing it to continue." According to Oxford dictionary, connivance is "as willingness to allow or be secretly involved in an immoral or illegal act."

Despite serious allegation of developing illicit contact with one Gopi, 2nd respondent restored family ties and permitted his wife to live with him and such an act would amount to connivance. An identical question came up before Delhi High Court in Sandwip Roy (1 supra) in identical situation including filing of divorce OP, where husband restored family ties. Delhi High Court held that it would not attract offences punishable under Section 497 IPC.

Learned counsel for the petitioner relying on the judgment referred above and on tracing the history of the case, contended that when there is connivance between the complaint and his wife and thereafter restoring the family ties, and filing of a complaint by the 2nd respondent against the petitioner would amount to abuse of process of Court and prayed to quash the proceedings. The facts of the above judgments and also a divorce petition filed on the ground of Adultery, it is held that the husband is disqualified from seeking divorce in case he condones the act of adultery committed by his wife.

Section 497 IPC, however, does not talk of condensation but only connivance. Thus, where the husband of the wife, connived with the wife who is guilty of sexual intercourse, he cannot prosecute that man i.e., paramour. Whereas, connivance would mean the involvement of the husband when the sexual intercourse was performed by another man with his wife, the condensation implies pardoning, remission or forgiveness of the adulterer after the act which has the effect of releasing the injury. In that sense the condensation differs from connivance. However, in many cases the two are scarcely distinguishable since a person condones what

the compromises an compromise implies condensation.

Thereafter, referred to another two judgments of Supreme Court, in identical situation quashed the proceedings against Adulterer. In the present case also, the 2nd respondent condone the illicit contact of his wife with one Gopi which amount to connivance. Since he restored family ties after earlier incident i.e, developing illicit contact with one Gopi.

Therefore, persuaded by judgments of Delhi high Court, I am of the considered view that the prosecution of petitioner, who is the paramour of 2nd respondent's wife, Sailaja is with his connivance, though not by consent and it would not fall within the offence of Adultery. The 2nd respondent having connived with his wife filed a private complaint as a person aggrieved under Section 198 of Cr.P.C, which is nothing but abuse of process of Court. Therefore, I find that it is a fit case to quash the proceedings against the petitioner since the Court can exercise power under Section 482 Cr.P.C to prevent abuse of process of Court. In the result, criminal petition is allowed quashing the proceedings against the petitioner in C.C.No.415 of 2013 pending on the file of 1st Additional Chief Metropolitan Magistrate, Visakhapatnam, registered for the offences punishable under Section 497 read with Section 34 IPC.

Consequently, miscellaneous petitions pending if any, shall stand closed. No costs.

_________________________________________ JUSTICE M. SATYANARAYANA MURTHY Dated:26.12.2017 dv