1. This is a husband's appeal against the order of the trial Court dismissing his divorce petition against the wife under Section 13 of the on the ground of adultery. The intruding male had been impleaded as a co-respondent in the case.
2. The co-respondent Shri Madan Lal, Assistant Sub-Inspector in Delhi Police has died during the pendency of this appeal, filed in 1967. The counsel for the parties have not been able to give me the exact date of his death though it is conceded that it had taken place more than three months ago and that no steps have been taken within the time allowed by law for bringing his legal representatives on record. The trial Court had found that the respondents had been living in adultery as alleged by the husband but that the latter had condoned these acts of adultery and had thereby disentitled himself to any relief. The co-respondent Shri Madan Lal A. S. I. had put in appearance in the Court below and had filed a written statement contesting the allegations of adultery made against him. He had in fact claimed special costs under Section 35A of the Code of Civil Procedure pleading that the allegations were frivolous and vexatious and had been made to harass him. He had put in appearance through a counsel in this Court as well but the counsel had not been appearing for the last two hearings.
3. As there was an attack on A. S. I. Madan Lal's character and the learned trial Court had not found his conduct completely blameless. I was wondering whether his legal representatives could be interested in having the adverse findings against the deceased set aside and whether they were necessary parties. The co-respondent if alive and known to the petitioner, has ordinarily to be impleaded as a necessary party in the husband's divorce petition on the ground of adultery in view of Rule 10 of the Hindu Marriage (Punjab) Rules, 1956, framed by the High Court under Section 21 of the Hindu Marriage Act, 1955. The rule, however, makes an exception where the alleged adulterer is dead. Shri Madan Lal's death therefore, absolved the petitioner of the obligation of impleading the deceased or his legal representatives and no abatements of the appeal may appear to have taken place because of the appellant's failure to implead Shri Madan Lal's legal representatives within the time allowed by law. Shri Chawla, the learned counsel for the petitioner; has cited before me a Single Bench decision of this Court in Smt. Sarla Sharma v. Smt. Shakuntala, AIR 1966 Punj 337 (Delhi Bench) in this connection. As that was a case relating to a wife's petition for divorce on the ground of the husband's adultery, there was no obligation cast on the petitioner by any statutory provision to implead the female co-respondent. The case cited does not, therefore, appear strictly applicable to the case now before us. In any case, exception (c) to Rule 10 may seem to give the Court a discretion to dispense with the impleading of the deceased adulterer or his legal representatives. I have, therefore, no hesitation in setting aside the abatement, even if any had taken place.
4. As regards the merits of the case, the learned Court of first instance had found, on the basis of reliable documentary and other evidence, that respondent No. 1 had been guilty of committing some acts of adultery with the co-respondent before October, 1963, and that the petitioner had been living amicably with respondent No. 1 for a period of about two or three years after that he had therefore knowingly condoned there acts of adultery on his wife's part. S. 23(1)(b) was, therefore, found to be a bar to the granting of any decree for divorce. Shri Chawla, the learned counsel for the appellant, is aggrieved by the finding that his client had condoned his wife's act of adultery or the adulterous living together with the co-respondent. He argued that the appellant was in any case entitled to a decree for judicial separation even if there was no continuous living together of the respondents in adultery. According to him, a decree for judicial separation should have been passed as respondent No. 1 had been found to be guilty of a few stray acts of adultery with the respondent. The bar created by Section 23(1)(b) of the Hindu Marriage Act would, however, apply even if the relief claimed by the petitioner had been for judicial separation under Section 10 of the said Act. Section 23(1)(b) runs as follows:--
'23. Decree in proceedings.--(1) In any proceeding under this Act, whether defended or not, if the Court is satisfied that:--
xx xx xx x (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 or where the 'ground of petition is cruelty the petitioner has not in any manner condoned the cruelty, and xx xx xx x 'then, and in such a case, but not otherwise, the Court shall decree such relief accordingly.'
5. I have no reasons to disturb the finding of the learned trial Court that the appellant has condoned the acts of adultery of his wife. The marriage between the appellant and the respondent No. 1 was solemnised in the house of the latter's parents in Delhi on 8-2-1962 and they had started living together as husband and wife immediately after the marriage at Yamuna Nagar where the appellant was employed in those days. A few months after that, Pushpa Rani had written the letter. Exhibit P. X. dated 1-11-1962, to her co-respondent at the address of Police Training School, Phillaur. The letter had been returned by the postal authorities as A. S. I. Madan Lal had left Phillaur after completing the training. The letter had fallen into the hands of the appellant. The contents of this letter may seem to corroborate the averment in the written statement filed by A. S. I. Madan Lal co-respondent that he had recovered Pushpa Rani from a house of ill-repute in a raid carried out before Pushpa Rani's marriage. The husband of the lady who was running that establishment was described to have falsely involved A. S. I. Madan Lal in the present case. The contents of the letter. Exhibit P. X. shows that the raid had led to an intimacy between the respondents. There is nothing to show that the appellant knew about this incident when he married Pushpa Rani in February 1962.
6. Exhibit P.1 is then a writing dated 18-10-1963 admittedly in Pushpa Rani's hand in which she confessed that she had been guilty of act of adultery with one Dev Dutt and that she was tendering her apology to the appellant. The conflicting explanations given by Pushpa Rani as to the circumstances under which she was compelled to write this letter had rightly failed to satisfy the learned trial Court. Pushpa Rani had herself produced another writing. Exhibit R. W. 2/1, dated 13-2-1966 which confirmed the fact that the apology tendered by her a few years earlier was a genuine document. Pushpa Rani had produced Exhibit R. W. 2/1 to prove that in spite of the appellant's knowledge that she had been guilty of certain acts of adultery, the spouses had been living together amicably for a period of about three or four years and that these acts or the adulterous living together of the respondents prior to 1963 had been fully condoned by 1966. The appellant's own case was that on one occasion, he felt so sick of the co-respondent's repeated visits to his house that he had asked his wife to accompany her paramour and had allowed her to leave his house with her clothes. The respondents were said to have availed of the offer but the wife came back the same evening and was taken under his protection by the husband. The learned Court has disbelieved this part of the appellant's case but it would in any case show that the appellant had been conniving at or condoning some of the acts of adultery of his wife with full knowledge about the type of the life she was leading. Under the circumstances, the divorce petition may appear to have been rightly dismissed in view of the provisions of S. 23(1)(b) of the Hindu Marriage Act. This provision would also be a bar to my granting the appellant a decree for judicial separation under Section 10(1)(f) of the Act.
7. The appeal fails and is dismissed. Civil Miscellaneous Application No. 4203 of 1972 filed by respondent No. 1 for interim maintenance under Section 24 of the Hindu Marriage Act is also dismissed as it has become infructuous, Parties are left to bear their own costs.
8. Appeal dismissed.