Skip to content


Rajani Prabhakar Lokur Vs. Prabhakar Raghavendra Lokur and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai High Court
Decided On
Case NumberAppeal No. 585 of 1956
Judge
Reported inAIR1958Bom264; (1957)59BOMLR1169; ILR1958Bom577
ActsHindu Marriage Act, 1955 - Sections 10(1), 13(1), 23 and 23(1); Divorce Act, 1869 - Sections 10 and 22
AppellantRajani Prabhakar Lokur
RespondentPrabhakar Raghavendra Lokur and anr.
Appellant AdvocateG.R. Madbhavi, Adv.
Respondent AdvocateY.V. Chandrachud, Adv.
Excerpt:
hindu marriage act (xxv of 1955), sections 13(1)(i), 10(1)(f), 23(1)(b) - meaning of expression 'is living in adultery' in section 13(1)(i)--whether necessary to prove in petition for divorce under section 13(1)(i) that other party was living in adultery at date of petition--applicability of section 13(1)(i)--construction.;for invoking the application of section 13(1)(i) of the hindu marriage act, 1955, it must be shown that the period during which the spouse was living an adulterous life was so related, from the point of proximity of time, to the filing of the petition that it could be reasonably inferred that the petitioner had a fair ground to believe that when the petition was filed, his spouse was living in adultery. - - the petitioner's contention is that she refused to accompany.....vyas, j.1. this appeal raises a question under the hindu marriage act, 1955, and the question is one of construction of clause (i) of sub-section (1) of section 23 of the act. this question arises upon the following facts. 2. the appellant in this appeal is the wife of the respondent no. 1 and she has filed this appeal from a decree passed by the learned civil judge, senior division, thana, in petition no. 12 of 1955 made by the husband under the hindu marriage act, 1955. by the decree passed by the learned judge, the marriage between the appellant and respondent no. 1, prabhakar raghavendra lokur has been dissolved. in other words, it is a divorce decree. it has been further ordered by the decree that respondent no. 1 husband shall recover costs of the petition from respondent no. 2 who.....
Judgment:

Vyas, J.

1. This appeal raises a question under the Hindu Marriage Act, 1955, and the question is one of construction of Clause (i) of Sub-section (1) of Section 23 of the Act. This question arises upon the following facts.

2. The appellant in this appeal is the wife of the respondent No. 1 and she has filed this appeal from a decree passed by the learned Civil Judge, Senior Division, Thana, in Petition No. 12 of 1955 made by the husband under the Hindu Marriage Act, 1955. By the decree passed by the learned Judge, the marriage between the appellant and respondent No. 1, Prabhakar Raghavendra Lokur has been dissolved. In other words, it is a divorce decree. It has been further ordered by the decree that respondent No. 1 husband shall recover costs of the petition from respondent No. 2 who is the co-respondent in this case. The wife and the co-respondent have been ordered to bear their own costs. It is from this decree that the wife has filed the present appeal.

3. A few facts leading up to the filing of petition No. 12 of 1955, by the husband under the Hindu Marriage Act, 1955, may now shortly be stated. It is a petition for divorce or in the Alternative for a judicial separation under the Hindu Marriage Act, 1955. As I have stated above, respondent No. 1 in this appeal is the husband of the appellant Rajani. Respondent No. 2 Madhu Shankar Kulkarni has been impleaded as co-respondent. In the course of this judgment, I shall refer to the husband as the petitioner. The petitioner's case is that he was married to the appellant on 16-5-1952, at Kallhali, a village near Jamkhandi in the district of Bijapur. On the next day, i. e., 17-5-1952, the petitioner and his family returned to their home town at Kurundwad. The petitioner's wife, on some pretext or another, did not accompany her husband and his family to Kurundwad. The petitioner's contention is that she refused to accompany him to Kurundwad, because she did not like her marriage with him. On 11-8-1952, the wife went to live with the petitioner's family at Kurundwad. She lived there till 15-10-1952. On 15-10-1952 she returned to her parents' place in Jamkhandi. During the abovementioned period from 11-8-1952 to 15-10-1952, the petitioner was serving in Bombay. He was working as a junior assistant in one of the departments of the Secretariat in Bombay. During the aforesaid period of nearly two months from 11-8-1952 to 15-10-1952, the petitioner Went to Kurundwad on a week's casual leave. There he met his wife, but she refused to co-habit with him. The days passed on and in February 1938 the petitioner secured residential accommodation in Dombivli. Thereafter the petitioner's father wrote to the petitioner's wife's father asking the latter to send the petitioner's wife to reside with the petitioner. The petitioner's wife's father sent a delayed reply to this letter and the reply was to the effect that as the petitioner wife had to attend a marriage of the daughter of Dr. Kulkarni in Ramdurg on or about the 19th or 20th April 1953, her going to reside with her husband, the petitioner, might be postponed till after the above said marriage. The petitioner's wife thereafter went to Ramdurg on 13-4-1953 and lived in Ramdurg with the family of Dr. Kulkarni for about three weeks till 6-5-1953. on 6-5-1953, she returned to her own father's place at Jamkhandi. It may be noted at this juncture that Dr. Kulkarni's son is the co-respondent in this petition, and it is the contention of the petitioner that, while his wife was living in Ramdurg during the abovementioned period of three weeks in the house of Dr. Kulkarni from 13-4-1953 to 6-5-1953, she was living in adultery with Dr. Kulkarni's son. On or about 2-6-1953, the petitioner's wife went to Dombivli to live with her husband. But, while living in the house of the petitioner, she did not permit the petitioner to have access to her. The petitioner has two brothers Manohar and Parasharam. When the petitioner's wife went to live with the petitioner in Dombivli on 2-6-1953, the petitioner's brother were living with him. The petitioner's wife used to quarrel with them and she used to say frequently to them that she had never liked the petitioner nor had she approved her 'marriage with him. As I have mentioned above, she resolutely declined to have sexual connection with her husband, the petitioner. Prom 2-6-1953 to 11-8-1953, the wife stayed in the house of the petitioner at Dombivli. But even during that period when she lived with the petitioner, she used to go to Bombay occasionally for a period of two days at a stretch, and it is the contention of the petitioner that during those visits to Bombay, she used to meet the co-respondent, As a result of the wife's behaviour in the house of her husband, the petitioner, the latter's brother had to leave the house. The petitioner was greatly Inconvenienced by reason of his wife's behaviour. He could not have his meals properly cooked or cooked in time and had often to go our for taking his meals. The matters reached such a pitch that the petitioner's father went down to Dombivli and admonished the petitioner's wife. But the admonition had no effect upon the wife. Ultimately on 26-6-1953 the petitioner's father wrote a letter to the father of the petitioner's wife and asked him and his wife to proceed immediately to Dombivli to see things for themselves. On 25-7-1953, the wife's parents went to Dombivli. They also reprimanded the petitioner's wife for her behaviour. Even this had no effect upon the petitioner's wife. In fact, she told her parents that she would not live with the petitioner. Ultimately, on 11-8-1953 the petitioner's wife's parents left Dombivli taking the petitioner's wife with themselves. Thereafter, says the petitioner, his wife never returned to his house to live with him as his wife. It is the petitioner's contention that after his wife left him on 11-8-1953, he and his father discovered a couple of letters which were addressed to her (petitioner's wife) by the co-respondent. These letters were found from a trunk which the petitioner's wife had left behind her at Kurundwad while returning to Jamkhandi to her parents' place on 15-10-1952. These letters which are exhibited at Exhibits 20 and 21 would show that the relations between the co-respondent and the petitioner's wife were intimate and that there had been sexual connection between them on occasions more than one. It is the petitioner's case that as a result of the further enquiries made by him and his father, it was discovered that since the marriage of the petitioner's wife with the petitioner, she had been living in adultery with the co-respondent. According to the petitioner, his wife committed acts of adultery with the co-respondent during the period 16-5-1952 to 11-8-1952 & on diverse occasions between 13-4-1953 to 11-8-1953. It may be noted at this juncture, and I shall refer to this point a little later, that it is not shown by the petitioner-husband that at any time after 11-8-1953 his wife had committed an act of adultery with the corespondent. The petitioner contends that for more than two years prior to the date of the petition, he had been deserted by his wife without any reasonable cause. He puts the date of desertion as 11-8-1953. Upon the above contentions, the petitioner prays that his marriage with his wife be dissolved and a decree for divorce or in the alternative a decree for judicial separation be passed in his favour.

4. The petition is resisted both by the wife and the co-respondent. The wife has filed a written statement at Exhibit 11. The co-respondent has also filed a purshis ab Exhibit 12 by which he has adopted the written statement filed by the petitioner's wife. It may be noted that, although during the hearing of the petition neither the petitioner's wife nor the co-respondent put in an appearance in the Court, the wife did file a written statement, as I have just said, and the co-respondent adopted that written statement by a purshis. Turning to the written statement filed by the wife, it would appear that she denied the allegation of the petitioner that she was living in adultery with the co-respondent. According to her, the co-respondent is a distant relative of her and it is incredible that she would have committed acts of adultery with him. It is the contention of the petitioner's wife in her written statement that the allegations, which the petitioner has made against her, are founded entirely upon the inferences drawn by him from the letters written by the co-respondent to her and vice versa. The wife has contended in her written statement that unless the petitioner proves the fact of her alleged living in adultery with the co-respondent, he would not be entitled to succeed in the petition. Then she has contended that there is no direct evidence to show that she was living in adultery with the co-respondent.

5. The petitioner's wife has next stated in her written statement that she is still willing to reside with the petitioner. According to her there is a temperamental disparity between herself and the petitioner and as a result of that disparity she could not live peacefully and smoothly with the petitioner. She has then stated that it was the petitioner himself who had sent her away to her parents' place in the hope that a temporary separation between the two might bring about an improvement in the situation. She has denied having gone to her parents' place of her own accord. She has also contended that the Court which heard the petition had no jurisdiction to entertain the petition. She has finally prayed that in case a relief for Judicial separation is granted to the petitioner, she should be awarded permanent monthly alimony of Rs. 50. These are the important contentions raised by the petitioner's wife in her written statement. As I have mentioned above, this written statement of the wife is adopted by the co-respondent. From this it would appear that the averments made by the petitioner's wife in her written statement that she used to receive letters from the co-respondent and write letters to him is accepted and adopted by the co-respondent.

6. The learned Judge, who heard the petition, came to the conclusion that it was proved by the petitioner-husband that his wife was living in adultery with the co-respondent. He also held that the Court had jurisdiction to hear and decide the petition. In his view, the petitioner was entitled to have his marriage with his wife dissolved and to have a decree for divorce passed in his favour. Accordingly he decreed the petition, granted a divorce to the petitioner-husband and ordered that the petitioner's marriage with his wife do stand dissolved. It is from this decree dissolving the petitioner's marriage with his wife that the wife has come in appeal.

7. Mr. Madbhavi for the appellant-wife challenges the decree for divorce upon the ground that the petitioner-husband has failed to prove that at the date of the filing of the petition, his wife was living in adultery. Mr. Madbhavi has drawn a distinction between the language of Clause (1) of Sub-section (1) of Section 13 and that of Clause (f) of Sub-section (1) of Section 10 of the Act. Whereas the material words in Clause (f) of Sub-section (1) of Section 10 are 'has had sexual intercourse with any person other than his or her spouse', the expression used In Clause (i) of Sub-section (1) of Section 13 is 'is living in adultery.' upon this difference in language, Mr. Madbhavi contends that, whereas a single lapse from virtue on the part of a spouse, if proved, would entitle the other party to a decree for judicial separation, no decree for divorce could be passed unless it was established that at the date of the filing of the proceedings under the Act, the other party was living a continuous course of adulterous life. Mr. Madbhavi says that before a husband or wife could be granted a decree for divorce two things must be established: (1) that she or he was living a continuous life of adultery and (2) that such life was being lived at the date of the petition. Now, there is no controversy in this case as to the meaning of the words 'living in adultery'. It is settled upon judicial authority In re, Pulchand Maganlal 30 Bom LR 79: AIR 1928 Bom 59 Patala Atchamma v. Patala Mahalakshmi ILR 30 Mad 332 and Kista Pillai v. Amirthammal ILR 1938 Mad 1100: AIR 1938 Mad 833 and indeed this position is not disputed, that 'living in adultery' means a continuous course of adulterous life as distinguished from one or two lapses from virtue. The contest centres round the construction of the words 'is living' in Clause (i) of Sub-section (1) of Section 13. Mr. Madbhavi says that when the Legislature used the word 'is', it used it with a purpose and the purpose was that before a husband or wife could succeed in a petition for divorce,' he or she must satisfy the Court that the other party was living in adultery at the date of the petition. This construction of the expression 'is living' is challenged by Mr. Chandrachud for the husband and Mr. Chandrachud says that the provisions of Clause (i) of Sub-section (1) of Section 13 can be successfully invoked if the husband or the wife, as the case may be, can show that the other spouse was living in adultery before a recourse was had to the proceedings under the Act. In our opinion, although grammatically the words 'is living' cannot mean 'was Jiving', the Legislature intended that a reasonable construction as distinguished from a construction too narrow or too loose must be put upon them. Unless the Legislature intended so, a cunning or watchful spouse, living a continuous life in adultery, might, on sensing the intention of the other party to file a petition under the Act, discontinue the adulterous life temporarily and thus frustrate the object of the Act. The Legislature could not have been, unaware of the likelihood of such a thing happening and could not have intended to let it happen. In enacting Clause (i) of Sub-section (1) of Section 13, the intention of the Legislature was to relieve a spouse from being tied down to an abject and agonising life with a partner who was living in adultery with another person and there could be no doubt that this intention, which in our view underlies Clause (i) of Sub-section (1) of Section 13, could be defeated if a spouse, proved to have been living in, adultery about the time the petition was filed, could successfully plead her temporary cessation from such life immediately prior to the petition as a ground for refusing a decree for divorce. It is a canon of construction that the words of a statute should be so construed as to further the object Of the Act and not render impossible the relief intended to be conferred by the statute. That being so, we are of the view I that it would not be in consonance with the intention of the Legislature to put too narrow and too circumscribed a construction upon the words 'is living' in Clause (i) of Sub-section (1) of Section 13. On the other hand, it is clear that too loose a construction must also not be put on these words. For attracting the operation of these words, it would not be enough if the spouse was living in adultery sometime in the past, but had seceded from such life for an appreciable duration extending to the filing of the petition, it would not be possible to lay down a hard and fast rule about it since the decision of each case must depend upon its own merits and turn upon its own circumstances. But it is clear, in our view, that for invoking the application of Clause (i) of Sub-section (1) of Section 13, it must be shown that the period during which the spouse was living an adulterous life was so related, from the point of proximity of time, to the filing of the petition that it could be reasonably inferred that the petitioner had a fair ground to believe that when the petition was filed, she was living in adultery.

8. There is inherent evidence in the Act it-self which fortifies us in the construction which we have put upon the words 'is living in adultery' in Clause (i) of Sub-section (1) of Section 13, and that evidence is to be found in the provisions of Section 23, Sub-section (1), Clause (b). Now, Clause (b) of Sub-section (1) of Section 23 provides that where the ground of the petition is the ground specified in Clause (1) of Sub-section (1) of Section 13, theCourt shall pass a decree for divorce if it is satisfied that the petitioner has not in any manner condoned the act or acts complained of. Now, if thewords 'is living in adultery' are to be so construed as to relate, in point of time, to the date ofthe filing of the petition, no question could arise atall of any condonation, by the petitioner, of such'living' by the other spouse. It is implicit inthe word 'condonation' that the act condonedwas temporarily suspended. A husband condonesthe wife's living in adultery with another personif he co-habits, or resumes co-habitation, withher even after knowing about it. A mere delayby the husband in filing the petition is not condonation by him of his wife's living in adultery.Clause (b) refers both to condonation and delayand, therefore, the two words must have differentconnotations. Accordingly, condonation, by thehusband, of his wife's living in adultery must, inthe context of Clause (b) of Sub-section (1) ofSection 23, mean co-habitation or resumption of cohabitation by him with his wife even after coming to know that she was living in adultery. Inour view, therefore, the condonation, by the petitioner, of the act or acts complained of by him,which is referred to in Clause (b) of Sub-section(1) of Section 23, is conclusively indicative of the intention of the Legislature that when they usedthe words 'is living in adultery' in Clause (i) ofSub-section (1) of Section 13, they did not intend tomake such 'living' co-extensive with the filingof the petition.

9. Now, in this case, although it is clearly established that the wife was living in adultery between May 1952 to August 1953, the evidence falls short of showing that she continued, such life after August 1953. The petition was filed by the husband in December 1955. Thus, as against a period of about 15 months during which she is shown to have lived in adultery, there was a period of over two years about which there is absence of evidence to show that she lived in adultery during that time. That she lived in adultery between May 1952 to August 1953 is proved by the letters Exhibits 20 and 21, the former dated 16-6-1952 and the latter dated 5-9-1952. These are letters which were written by the correspondent to the petitioner's wife. In her written statement, the wife admits that these letters were written to her by the co-respondent and the co-respondent has adopted the written statement of the petitioner's wife as his own. In his letter dated 16-6-1952, the co-respondent wrote to the petitioner's wife that he was greatly delighted at the very sight of her letter to him and that he left it to her to imagine for herself how much greater was his joy when he rend the contents of the said letter. Then he wrote to her that the days of his happiness which he had spent with her were over and that he was pining for the return of those happy days. Then in this letter dated 16-6-1952 the co-respondent wrote to the petitioner's wife, saying how anxious he was that they should meet again and then he referred to the happy time, the duration of enjoyment which he and she together had during the period of two months. The pertinent recitals in this context in the abovenamed letter which the co-respondent wrote to the petitioner's wife are:

^^ vkEgk nksu efgus wi etk dyh] ukgh ** It may be noted that this letter was written by the co-respondent to the petitioner's wife a month after her marriage with the petitioner and it would show that for a month before her marriage with the petitioner and a month thereafter, the petitioner's wife lived in adultery with the co-respondent. Then in the next letter which the correspondent wrote to her on 5-9-1952, he wrote: 'Now, I strongly wish to accompany you and to enjoy the full to the last. You do not think that I love you temporarily for the sake of momentary pleasure. But I love you very much because you have sacrified your nsg (meaning thereby body) for the sake of this yQxa (roguish) brother. I am of the firm opinion that I will not find even any sister all over the world who sacrificed her holy life for the sake of brother, that too for the sake of momentary pleasure.'

Then, in this letter, the co-respondent wrote to the petitioner's wife that in her absence, he was feeling thoroughly 'hopeless' and that a desire was surging in his mind over and over again that he should run to the place where she was living; and then he added that if God had given him wings of a bird, he would surely have resided in her proximity; but then it was not to be since his fate had proved treacherous to him. ^ ek>sa u'khc QqVd vkgs * It is important to remember that when the co-respondent wrote this letter dated 5-9-1952 to the petitioner's wife, she was living in Kurundwad with the petitioner's parents. There could be no doubt upon a perusal of this letter that during the time that she did not go to the petitioner's house after her marriage with him, the petitioner's wife had lived in adultery with the co-respondent. During that period, she had had numerous acts of sexual intercourse with the co-respondent. In the above-mentioned letter (Exhibit 21) dated 5-9-1952, the co-respondent wrote to the petitioner's wife that he was pining to go to the place where she was living. He was anxiously awaiting the return of what he called 'the happy days of the past'. It would appear from the evidence of the petitioner that his father wrote to the father of his (petitioner's) wife on 8-3-1953 for sending her to live with the petitioner in Dombivli, but the petitioner's wife's father replied that as she had to go to Ramdurg to attend a marriage of Dr. Kulkarni's daughter, her going to live with the petitioner might be postponed and it is not seriously disputed that the petitioner's wife lived in Dr. Kulkarni's house in Ramdurg for three weeks from 13-4-1953 to 6-5-1953. The co-respondent is the son of Dr. Kulkarni. With the background of the passionate love letters which the co-respondent wrote to the petitioner's wife in June and September 1952, especially the letter Exhibit 21 in which he wrote that he was pining for the return of the happy days, it would be futile to contend that the petitioner's wife did not live in adultery with the co-respondent in his house between 13th April 1953 to 6th May 1953 in Ramdurg. Then, even when the petitioner's wife was living with the petitioner in Dombivii between 2nd June 1953 and 11th August 1953, the evidence of the petitioner would show that she used frequently to go away to Bombay where the co-respondent was living, and it would not be a violent inference, but would only be a reasonable inference, that she must have been doing so to resume her adulterous contacts with the co-respondent. Then there is a certain amount of oral evidence led by the petitioner in this case. He has examined himself as a witness and has also led the evidence of witnesses Prabhakar, Tatya and Nilkanth. In his own evidence the petitioner has deposed that when he and his family returned to Kurundwad after his marriage with the appellant on 17-5-1952, the appellant did not go with them. She went to Kurundwad to live with his parents to August 1952 and she lived with them till 15-10- 1952. During the abovementioned period from August 1952 to 15-10-1952, the petitioner says that he had taken casual leave of about a week and gone to Kurundwad. That was from about the 26th September 1952. During that week, says the petitioner in his evidence, his wife refused permission to him to co-habit with her. Then the petitioner says that he secured residential accommodation at Dombivii in about March 1953. Thereafter his father wrote to his wife's father to the effect that he should send the petitioner's wife to live with the petitioner. To this letter his father-in-law replied saying that as Dr. Kulkarni's daughter's marriage was to take place at Ramdurg on the 19th or 20th April 1953, the petitioner's wife's going to reside with the petitioner might be postponed. Then the petitioner has deposed that his wife went to Ramdurg and lived there in the house of Dr. Kulkarni from 13-4-1953 to 6-5-1953. Thereafter she went to Dombivii, where the petitioner was residing, on 2-6-1953. At that time the petitioner's brothers Manohar and Parsharam were living with the petitioner. The petitioner's wife used to abuse the petitioner and used to tell him that she had been married to him against her wish. The petitioner has stated in terms in his evidence that she used to tell him that she was in love with the co-respondent. The petitioner's wife lived with him, in the sense that she lived in his house, at Dombivli till 11th August 1953 and thereafter she never went to his house. Even during the time that she was living in the petitioner's house at Dombivii from 2nd June 1953 to 11th August 1953, she used frequently to go to Bombay and stay there for a day or two and during those visits of hers to Bombay, she used to visit the co-respondent. This information was given to the petitioner by his friend Abhyankar. It was Abhyankar who used to inform the petitioner that his wife used to be seen with the co-respondent in Bombay. According to the information given by Abhyankar to the petitioner, the behaviour of' the petitioner's wife towards the co-respondent was 'over-free.' Then there is the evidence of witness Prabhakar as Exhibit 41 and he has stated that the petitioner's father had asked him to take the petitioner's wife and others to Jamkhandi. This presumably must have happened in August 1953. The witness has said that on that occasion he had seen the petitioner's wife sitting on the lap of the co-respondent. We do not consider this conduct of the petitioner's wife improbable conduct, having regard to the background evidenced by the two letters Exhibits 20 and 21 written by the co-respondent to her in June 1952 and September 1952. Then there is the evidence of Tatya and this witness has deposed at Exhibit 43 that he was told by the petitioner's wife that she loved her aunt's son, i.e., the co-respondent and that she had been married to the petitioner against her wish and it was, therefore, that although she was living in the house of the petitioner, she was sleeping outside. The witness says that he had persuaded her on one occasion to go inside the house and had even chained the door from out-side. But, even so, no sooner the witness unchained the door, the petitioner's wife went out and slept outside. According to the evidence of this witness, he was told by the petitioner's wife that she had had Illicit relationship with the co-respondent and that she was not willing to live with the petitioner as his wife. Then there is also the evidence of Nilkanth at Exhibit 44 and this witness too has deposed that the petitioner's wife had told him that she loved the co-respondent and had had illicit relationship with him. All this oral evidence appears to us to be true evidence in view of the fact that there was undoubtedly in existence an illicit sexual relationship between the petitioner's wife and the co-respondent as evidenced by the two letters Exhibits 20 and 21 written by the co-respondent to her. It is thus established that the petitioner's wife, the appellant before us, was living in adultery between May 1952 and August 1953. But, so far as the period thereafter is concerned, i.e., the period between August 1953 and December 1955 when this petition was filed, there is no evidence as to the relations between the petitioner's wife and the co-respondent. For instance, there is no evidence to show that during that period of two years and more, the petitioner's wife was seen living in the co-respondent's house or was seen visiting, his house. There is also no evidence to show that during that period the co-respondent was visiting the place where she might be staying. There is also no evidence about the co-respondent and the petitioner's wife moving together during the said period from August 1953 to December 1955. There is no evidence of their being seen together during that period in compromising or guilty positions. In these circumstances, having regard to the construction which we have put upon the words is living in adultery', it would be difficult to hold that the petitioner's wife's conduct would fall within the purview of Clause (i) of Sub-section (1) of Section 13 so as to entitle the petitioner to a decree for divorce against her.

10. Although, therefore, on the evidence on record the decree for divorce cannot be sustained, the petitioner has made out a case for judicial separation. It is clear that before her marriage with the petitioner and even after her marriage with him, his wife had had sexual intercourse with the co-respondent on a number of occasions. I have already dealt with this aspect of the matter in the earlier part of the judgment. Suffice it to say at this juncture that in the letter which the co-respondent wrote to the petitioner's wife on 16th June 1952 he in terms referred to a period of two months during which they (the co-respondent and the petitioner's wife) together had had plenty of good time and enjoyment. When the co-respondent's letter dated 16th June 1952 is read in conjunction with his subsequent letter dated 5th September 1952, to the petitioner's wife, there could be no doubt whatever that when the co-respondent, in his letter dated 16th June 1952, referred to the good time and enjoyment which he and the petitioner's wife together had during the period of two months, the reference was clearly to a series of acts of sexual intercourse which the two of them had with each other. In his letter dated the 5th September 1952, the co-respondent in terms wrote to the petitioner's wife that she had surrendered her ^^ nsg **

10

11. Before parting with this case, we must refer to Section 23 of the Act and Section 23 lays down:

'(1) In any proceeding under this Act, whether defended or not, if the Court is satisfied that -- (a) any of the grounds for granting relief exists and the petitioner is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief, and (b) where the ground of the petition is the ground specified in Clause (f) of Sub-section (1) of Section 10, or in Clause (i) of Sub-section (1) of Section 13, the petitioner has not in any manner been accessory to or connived at or condoned the act or acts complained of ............. (c) ............ (d) there has not been any unnecessary or improper delay in instituting the proceeding ............... (e) ................. the Court shall decree such relief accordingly.'

Now, in this case, there is no evidence to suggest that the petitioner was in any manner accessory to or had connived at or had condoned the series of acts of sexual intercourse which his wife had with the co-respondent. There is also no evidence to show that he has been guilty of unnecessary or improper delay in filing the present petition. There is also nothing to show that the petitioner has taken any advantage of the acts of sexual intercourse which his wife had with the co-respondent. It would appear from the evidence in the case, and we accept that evidence, that the petitioner became for the first time aware of the adulterous relationship of his wife with the co-respondent when the letters Exhibits 20 and 21 written by the co-respondent to her were discovered from her trunk which was left behind by her in the house of the petitioner's parents when she left that house on the 15th October, 1952. When exactly the discovery of the letters was made by the petitioner we do not know. But in our opinion the fact that the co-respondent had written these letters to the petitioner's wife was not known to the petitioner when he sent for her to live with him in Dombivli and when she went to his house on 2nd June 1953. Had the existence of these letters been known earlier to the petitioner, there is no doubt, in our view, that he would have brought this fact to the notice of his father, in which case we cannot believe that the petitioner's father would have written a letter to the father of the petitioner's wife to send her to live with the petitioner. We must, therefore, accept the contention of the petitioner that there was no condonation on his part and no unnecessary delay on his part, after the discovery of the above mentioned two letters, in having recourse to the proceedings under this Act. Then, again, it is to be noted that the Hindu Marriage Act, 1955, under which the petitioner has sought relief, came into force on 18th May 1955. Before the said date, 18th May 1955, no remedy such as the one which the petitioner has sought in this petition was available to him, and after the Act came into force, there was no unnecessary or improper delay on his part in instituting the present proceedings. That being so, after a due consideration of the provisions of Section 23 of the Act, we are satisfied that this is a case in which the petitioner is entitled to a decree for judicial separation under Clause (f) of Sub-section (1) of Section 10.

12. There does not arise any question of alimony to be granted to the petitioner's wife in view of the fact of her unchastity clearly established upon the evidence in this case.

13. For the reasons stated above, the decreefor divorce passed by the learned Judge in favourof the petitioner dissolving his marriage with hiswife is set aside and in its place a decree forjudicial separation under Section 10 of the Act issubstituted. The petitioner shall get his coststhroughout from the co-respondent who will alsobear his own.

14. Order accordingly.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //