1. This appeal has been filed by Smt. Kamlesh Kumari against her husband, Captain Balbir Singh respondent No. 1 and Gurbax Singh respondent No. 2. It is directed against the judgment of Shri J. C. Aggarwal, Sub Judge 1st class, Pathankot dated December 22, 1970 decreeing the petition filed by the husband against the wife for dissolution of marriage under section 13 of the Hindu Marriage Act. 1955, hereinafter called the Act.
2. The parties were married on December 14, 1967 at the residence of the parents of the wife at Delhi. After marriage, they lived together for one month at Pathankot, the place of residence of husband. On September 30, 1968, the husband was on leave at Pathankot, when he along with his friend J. P. Gupta came to his house, they saw through the chinks of the shutters of one of the rooms, respondent no. 2 and the wife together in a compromising position. They knocked at the door of the room. The wife and respondent No. 2 came out. She was reprimanded for her immoral and unchaste conduct. She then left the house along with respondent No. 2 telling the husband that she would no longer stay with him.
3. On a petition filed by the wife against the husband on October 11,1968 in the Court of District Judge at Ambala, there was passed an ex parte decree for judicial separation on December 12, 1968. On September 20, 1969 the wife gave birth to a daughter.
4. On October 7, 1970. petition under section 13 of the Act was filed at Pathankot by the husband against the wife and respondent No. 2 for dissolution of marriage. Inter alia, the husband pleaded in the petition that the wife was living adultery and was carrying on with respondent No. 2. Notice of the petition was issued in postal registered cover to respondent No. 2. apart from the one issued to the wife. Respondent No. 2 was sought to be served at the address of A1/3. Rana Partap Bagh New Delhi. Acknowledgment due card returned bearing the signature of respondent No. 2 in token of his having received the registered cover.
5. In spite of service, neither the wife nor respondent No. 2 appeared on November 25, 1970, the date fixed for hearing. They were ordered to be proceeded against ex-parte. Ex-parte evidence adduced on behalf of the husband was, after a couple of adjournments, recorded on December 10, 1970. The husband himself went into the witness box and also produced J. P. Gupta in support of his allegations. They stated that the husband and wife last resided at Pathankot, that she was leading adulterous life and that respondent No. 2 was seen on September 30, 1968 in the house of the husband committing adultery with the wife. Letters Exhibit P-1 to P-3 said to have been written and signed by respondent No. 2 were also proved by the husband to show that she had illicit relations with respondent No. 2. On the basis of the ex parte evidence adduced on behalf of the husband, the trial Court granted decree for dissolution of the marriage. The wife, however, did not move the trial Court for order of ex parte proceedings being set aside. She has chosen to file the present appeal in this Court. As respondent No. 2 could not personally be served in the appeal, substituted service by insertion of notice in 'Indian Express' had to be resorted to.
6. Shri R. P. Bali appearing on behalf of the wife has raised the following points:--
(1) There does not exist any person of the name of respondent No. 2 and he is fictional figure.
(2) Single act of sexual intercourse by wife with a person other than her husband does not constitute the ground of the wife living in adultery.
(3) Civil Court at Pathankot has no jurisdiction to entertain petition filed by the husband under section 13 of the Act. Point No. 1
7. The argument raised was that there does not exist in this world any one of the name of Gurbax Singh respondent No. 2. The petitioner in the petition filed under section 13 of the Act impleaded him as respondent No. 2. In the heading of the petition, he gave his address as follows:--
'Gurbax Singh, Contractor.
resident of A-1/3
Rana Partap Bagh, New Delhi.'
8. The above address refers to the name and profession of respondent No. 2 and the specific place, where he resides in New Delhi. Petition was filed in the Court of the Sub Judge at Pathankot. The Court directed that notice of the petition be issued to respondent No. 2 for November 25, 1970. It is upon that address that for his service in that petition postal registered cover acknowledgment due containing the notice accompanied by copy of the petition was delivered by the postman, in whose beat that address of the respondent fell. After the cover having been delivered to the addressee-respondent, postal acknowledgment due card returned to the trial Court bearing the signature of Gurbax Singh and the date of November 20, 1970, both appearing to be in the handwriting of one and the same person. Service of respondent No. 2 on that address and on the basis of the signature appended by the addressee was accepted by the Court to be correct. This goes a long way to show that respondent No. 2 does exist and he has been served on that address.
9. In course of ex parte proceedings of the petition, the petitioner himself went into the witness box apart from producing J. P. Gupta. Both these witnesses have made statements on oath that on September 30, 1968 in the house of the petitioner at Pathankot, respondent No. 2 was seen in a room of the house in the company of the wife. Both of them saw him and on coming out of the room, the wife left with him. Thus, there is ample evidence to show that respondent No. 2 does not exist and the suggestion that he is either an imaginary figure or mythical person has no legs to stand.
Point No. 2
10. It is stated by the husband that he came on leave to pathankot and stayed with his parents. His wife was also staying there. He states that on September 20, 1968, he went out of the house, that on return in the company of J. P. Gupta resident of Pathankot, he on peeping through a chink of the shutters of a room found the wife and respondent No. 2 on bed in a compromising position, that on knocking at the shutters both of them came out and that on the wife being reprimanded, she replied that she had nothing to do with him and left the house in the company of respondent No. 2. The evidence of these two witnesses admits of no doubt that respondent No. 2 was seen committing adultery with the wife. The next question that arises is that apart from this evidence is there any further evidence in the form of conduct of the respondent or otherwise to show that she could be held to have been living in adultery prior t the date of filing the petition under section 13 of the Act?
11. Soon after the wife and respondent No. 2 came out of the room, the husband severely chided his wife for her immoral behaviour. Instead of expressing regret or repentance, she made an audacious retort and flouted the authority of the husband to reprimand her and to condemn her conduct by saying that she would not stay thereafter with him as his wife. Having said so, she whisked away in the company of respondent No. 2. This type of conduct on the part of the wife, not only as regards her having committed act of adultery in the house of the husband when he himself visited his house at Pathankot after having taken leave but also her bidding good-bye to the heart and home of her husband by saying openly that she was leaving him and would not stay there with him as his wife and then disappearing in the company of respondent No. 2, who had just prior thereto committed adultery with her persuade the Court to come to the conclusion that she did not want to be the wife of her husband but to be in the company of respondent No. 2 and to enjoy with him as if she was wife of respondent No. 2. She did not care a tuppence for the displeasure of the husband over commission of adultery with respondent No. 2 in the house of her husband like a dare-devil. Defiant attitude towards the husband when pulled up for that outrageous misconduct and the creation of scene of vanishing in the company of respondent No. 2, under his very nose and eyes show that she was meant for respondent No. 2 and not for the husband. There is nothing unlikely to her having after that incident, continued in the company of respondent No. 2 and having led adulterous life with him. The husband has stated that some time after the marriage respondent No. 2 visited his house and he grew suspicious about the character of his wife and that he expressed his feelings to her. It is stated that she expressed regret and felt repentant. At the end of his statement, the husband has stated that even after the wife had left him, she had been living in adultery and that unchase and characterless conduct of her had humiliated him amongst his friends and colleagues in particular and public in general.
12. As deposed to by the husband in his statement, the wife did not return to the house of the husband after having left him on the date of that ugly and scenic incident. They never lived together thereafter. Soon after having left the house of her husband on September 30, 1968, she filed a petition on October 11, 1968 for judicial separation against her husband in the Court of the District Judge at Ambala. As the husband failed to appear in the proceedings of that petition. ex parte decree for judicial separation was granted to her on December 12, 1968. The petition for judicial separation was filed within eleven days of the date she was caught red handed in the company of respondent No. 2 and the husband was still heavy at heart over her distressing and agonising misconduct on her having committed adultery with respondent No. 2 in his own house and the nefarious and curt reply in the presence of respondent No. 2, which she gave by telling him that thereafter she would have nothing to do with him. Soon after her unpardonable act of adultery, she lost no time in having resort to Court to obtain decree for judicial separation. This shows that she was determined not to live with the husband and had decided to sever connections for the future with him presumably for the same of respondent No. 2.
13. On September 20, 1969, there was born a daughter to the wife. She left him on September 30, 1968. The child was born 11 months and 20 days after she parted company from her husband. Considering this period of time between the date she ceased to live and cohabit with the husband and the date, on which the child was born, the child is obviously an illegitimate one and not born as a result of wedlock or cohabitation between the husband and the wife. The birth of this child goes a long way to show that she must have committed adultery with a person other than her husband.
14. Letter P-1 was addressed to the husband and letter P-2 and P-3 were addressed to the wife. The husband had stated that the two letters addressed to the wife had been recovered from the possession of the wife. The contents of the letters proved on behalf of the husband amply show that the wife had prior to the marriage as well as after the marriage been carrying on with respondent No. 2 and seems to have been leading adulterous life with him. Letter. Exhibit P-1 is addressed by Gurbax Singh to the husband. It is dated December 14, 1967. The date of the letter is the same as in the date on which the marriage between the husband and the wife took place at Delhi. This letter has been addressed by respondent No. 2 from New Delhi. In that letter, respondent No. 2 states that his beloved Kamlesh had been married with the husband against her wishes, that the husband was responsible for disturbing the mental peace and life of respondent No. 2, that he would not allow him to live peacefully, that she was his and that she would never love the husband and that it would be better if he released her so that she and respondent No. 2 could reunite.
15. The next letter is Exhibit P-3. This also bears the date of December 14, 1967. It is addressed by respondent No. 2 to the wife. In that letter, he acknowledges the receipt of her letter described as loving letter and states that by the time that letter is in her hands she would have married, that she deserved much more love than respondent No. 2 had been showing to her, that he would have a heavy heart, that he placed her on high pedestal and that considering the extent to which he loved her, he was sure that she would come back.
16. The next letter is dated September 19, 1968. It is Exhibit P-2. This is also addressed to the wife as 'Dear loving darling'. This letter too acknowledges the receipt of a love letter received from her by respondent No. 2. As the contents of that letter show, she had complained to respondent No. 2 that the husband was getting suspicious about her relations with respondent No. 2. In that letter, he assures the wife that he would move earth and heaven to provide a happy home for her and their children. At the end, he thanks her for her loving gifts which she sent to him in the letter addressed by her to respondent No. 2. The contents of these letters admit of no doubt that the wife had been leading an unchaste and adulterous life in the company of respondent No. 2 even after the date of the marriage.
17. Before I part with the discussion of this point, I must refer to the objection urged by the counsel for the wife about the contents of these letters including the signatures having not been proved to be in the handwriting of respondent No. 2. The objection is to the effect that the husband never stated that he had been seeing respondent No. 2 writing or signing and hence his evidence that these three letter were written and signed by respondent No. 2 is of no avail to him. It is correct that he has not so stated and there is nothing to show that he was in a position to see respondent No. 2 write and sign.
18. All the three letters have been specifically relied on by the husband in his petition under section 13 of the Act. These letter have been referred to therein support of the ground of the wife having been living in adultery prior to the filing of petition.
19. As alluded to above, respondent No. 2 had been served with a notice of the petition. Under the provisions of Order 5, Rule 2 of the code of Civil Procedure read in conjunction with section 21 of the Act, the notice served upon the respondent had to be and was presumably accompanied by copy of the petition. Under the former provision summons sought to be served on a defendant has to be accompanied by a copy of the plaint. That provision has, by virtue of Section 21 of the Act been made applicable to proceedings of a petition under Section 13 of the Act. Hence, I presume that notice served on respondent No. 2 was accompanied by a copy of the petition. The respondent must have come to know from the copy of the petition served on him and also from the wife, in whose company he left after having committed adultery with her on September 30, 1968 and with whom he was hand in glove, about the allegations made in the petition showing that he had been involved with her. These letters find mention in the petition in support of the ground of the wife living in adultery. If the facts stated in the petition were not true and correct he would have grown rebellious against those allegations as they impeached his character. He would not have felt hesitant to contest those allegations and cleared himself of the serious charges brought against him on the basis of the relations between the wife and him. And yet respondent No. 2 kept mum and chose not to contest the correctness of those allegations. He has chosen not to deny the fact that these letters had been addressed by him both to the husband and the wife, although he was party to the proceedings, Respondent No. 2 has allowed and so has done the wife to go unchallenged the fact of existence of these letters and the correctness of their contents including the fact of their having been written by respondent No. 2.
20. I have referred to in the earlier part of the judgment that postal acknowledgment due card come back after delivery of the postal registered cover containing notice of the petition accompanied by its copy. Its addressee, respondent No. 2 appended his signature to that card in token of its delivery at the address given in the petition by the husband. The registered cover containing these two documents was delivered by the postman concerned to the address, respondent No. 2 in regular course of postal transit. The acknowledgment due card which came back to the trial Court after delivery of the postal cover to the addressee, purports to have been signed by respondent No. 2. The Court presumed that the signature borne on the acknowledgment due card was of respondent No. 2 and he had been served. When the trial Court received back the acknowledgment due card bearing the signature of the addressee of the postal cover it regarded by virtue of that presumption as proved, the facts of the postal cover having been delivered to the addressee and the addressee having himself appended his signature acknowledging that delivery. Thus, the trial Court felt satisfied that acknowledgment due card bore the signature of respondent No. 2. By virtue of Section 73 of the Indian Evidence Act, 1872, the trial Court was entitled to compare the signatures on letters Exhibits P-1 to P-3 with the signature on postal card, which was regarded by the trial Court to be the signature of respondent No. 2 and hence treated as proved. On comparison it came to the conclusion that the three letters had been signed by respondent No. 2.
21. I have compared the signature of respondent No. 2 borne on that postal card with the signatures on these three letters. Taking into consideration the characteristics of the signatures on these three letters vis-a-vis the signature on the card. I have no doubt, that these three signatures on the letters are of the same person, who signed the card. I thus hold that the trial Court has taken correct view in coming to the conclusion that the signature of respondent No. 2 borne on postal car tallies with those on the letters said to have been addressed by respondent No. 2.
22. On the basis of the above evidence. I hold that letter, Exhibit P-1 addressed to the husband and letters Exhibits P-2 and P-3 addressed to the wife have been signed and addressed by respondent No. 2. Even if for the sake of argument, these three letters are taken out of consideration, the rest of the evidence is sufficient to enable the Court to confidently draw the inference that the wife had prior to the filing of the petition been living in adultery.
23. Before I conclude the discussion on this point, I may mention that the wife did not make any application to the trial Court to set aside the ex parte decree passed against her and has not challenged the correctness of her own service of notice in the petition. Having chosen not to contest the petition and having allowed an ex parte decree being granted against her, the scope of attack against the evidence on merits has to be limited to the justification of the passing of the decree on the basis of ex parte evidence led in the case. In other words the Court of appeal has to consider whether in the absence of any evidence led on behalf of the wife and on the basis of the evidence, meagre or scanty as it may be, led by the husband the ex parte decree being granted on the ground that she was living in adultery is called for, On scrutiny of the evidence with that approach, I hold that the husband has succeeded in showing that the wife was living in adultery.
Point No. 3.
24. Petition was filed in the Court of Sub Judge 1st class at Pathankot. In para 1 of the petition, it is stated that the marriage between the parties took place at Delhi and that after marriage they lived together at Pathankot, the permanent place of residence of the parents of the husband and the husband. In para 16 of the petition it is stated that both the husband and the wife resided together last at Pathankot. In that petition, the husband gave his address at Pathankot. As discussed earlier, he said in his statement that he was on leave in his house at Pathankot on September 30, 1968, where his wife was also residing and that he saw the wife cohabiting with respondent No. 2. He has said in his evidence that on or before September 30, 1968, they had been living together in his house at Pathankot and it was on that date that she left the house and the husband for good and never returned to him or stayed with him after that date. The facts stated in the petition were repeated by him in the statement as a witness on oath. Thus, on the basis of the evidence led on behalf of the husband, it stands proved that he and his wife last resided together at Pathankot. Thus the Court at Pathankot has jurisdiction to entertain the petition.
25. For the foregoing reasons. I disallow the appeal with no order as to costs.
26. Appeal dismissed.