Wife’s Alleged Affair Unproven, Karnataka HC Upholds Dismissal Of Husband’s Divorce Plea, Citing Six-Day Complaint Delay and Related Witnesses

The husband appealed the Family Court’s dismissal of his petition for divorce, which alleged cruelty and adultery by the wife.

He claimed that she had an affair with Musthakali and that he and two relatives caught them together on 22 May 2018.

The wife denied the allegations and contended that the husband and his family had subjected her to cruelty.

The Family Court dismissed the petition, finding the adultery allegation not maintainable because the alleged adulterer had not been joined and concluding that the husband had not proved his allegations.

The wife did not appear in the appeal despite service of notice.

Section 13(1)(i) of the Hindu Marriage Act, 1955 provides adultery as a ground for divorce; Section 13(1)(ia) provides cruelty as a ground.

An alleged adulterer is a proper, but not necessary, party to proceedings under Section 13(1)(i), as stated in Arunkumar Agarwal v. Radha Arun and reiterated in N. Vijaykumar v. Latha @ Sangeetha.

Under Section 112 of the Indian Evidence Act, 1872, a child born during a valid marriage is presumed legitimate; the husband must establish non-access to rebut that presumption.

The Court also referred to Chennigaiah v. Smt. Lakkamma @ Laxmamma and V. Anandappa v. V. Shivaraju.

The High Court held that the Family Court erred in treating non-joinder of the alleged adulterer as making the petition not maintainable, since he was only a proper party.

However, the adultery allegation was not proved: the husband had not witnessed the incident, the complaint was lodged six days later, and the alleged eyewitnesses were his relatives.

The criminal case arising from the complaint had ended in acquittals.

The wife’s pregnancy and the husband’s unsupported assertion that the child resulted from adultery did not rebut the presumption of legitimacy under Section 112; the husband failed to establish non-access.

The evidence also did not substantiate the pleaded cruelty.

It confirmed the Family Court’s judgment dated 21 June 2019 dismissing the divorce petition and made no order as to costs.