J.C. SHAH, J.
1. The parties to this appeal Dr Vira Reddy and Kistamma were married in June, 1943, according to Hindu rites and ceremonies. The marriage was unhappy. On December 23, 1958, Kistamma gave birth to a female child. On May 28, 1959, Dr Reddy by a lawyer's notice informed Kistamma that he desired to institute a proceeding to divorce her. In February, 1960, Dr Reddy instituted a petition in the City Civil Court, Madras, under Section 13(1) of the Hindu Marriage Act 25 of 1955, for a decree for divorce on the allegations that Kistamma “had subjected him to unspeakable acts of cruelty” and “had made his life miserable”, that she left his protection on November 17, 1957; that she had since then been “openly living in adultery”; and that she had “given birth to an illegitimate child on December 23, 1958”. The petition was resisted by Kistamma. She denied that she was guilty of cruelty to the petitioner; she also denied that she was living in adultery and assorted that the child born to her was the child of Dr Reddy. She claimed that she had not deserted her husband and that she went to her “father's house for delivery” in August, 1958.
2. At the trial Dr Reddy admitted that he was unable to establish that Kistamma was living in adultery. But relying solely upon the ground that Kistamma had given birth to a child in December, 1958, he claimed an order of judicial separation under Section 10(1)(f) of the Hindu Marriage Act. The trial Judge held that it was not proved that Kistamma left the matrimonial home on November 17, 1957, or that her child was an illegitimate child. The petition was accordingly dismissed. The order was confirmed in appeal to the High Court of Madras. Jagadisan, J., agreed with the decision of the trial court. But in an appeal under the Letters Patent, a Division Bench of the High Court set aside the decree, holding that Kistamma left the matrimonial home on November 17, 1957, and since it was common ground that after Kistamma left the matrimonial home Dr Reddy had no access to her, the child born in December 1958, was the result of adulterous intercourse. Against the decree granting judicial separation Kistamma has appealed to this Court with special leave.
3. Normally in an appeal with special leave, this Court does not enter upon a reappraisal of the evidence. But, in our judgment, this is one of those exceptional cases in which departure from the normal practice is called for. The High Court was of the view that the trial Court and Jagdisan, J., had misread the evidence and had on that account reached an erroneous conclusion. Counsel for Kistamma contends that the High Court had misread the evidence and has relied upon several matters of importance which were never deposed to by the witnesses.
4. The crucial question for decision is whether Kistamma left the matrimonial home on November 17, 1957 as alleged by Dr Reddy. If Dr Reddy establishes that part of his case, the claim for judicial separation must be upheld. In support of his case Dr Reddy examined himself and three other witnesses, PW 3 Shivarama Reddy, PW 4 K. Rani Reddy and PW 5 G. Veeraraghavan. The trial court disbelieved the testimony of these witnesses and with that view Jagadisan, J., agreed.
5. PW 3, Shivarama Reddy deposed that in 1957 he was living next door to Dr Reddy's house; that he had known Dr Reddy for about ten years prior to that date; that in November 1957, he was preparing for the Chartered Accountants' Final Examination to be held in November, 1957, and that on a Sunday before his Examination Kistamma accompanied by her brother and her brother's wife had come to his house and she had told him that she was leaving the house of Dr Reddy. In cross-examination the witness admitted that he did not remember the month or the dates of previous departures of Kistamma from Dr Reddy's house. He also stated that his examination commenced on November 12, 1957. If the examination was to commence on November 12, 1957, and according to him Kistamma had seen him before she left the house on a Sunday preceding that date, it would be obvious that she left the matrimonial home before November 17, 1957. The High Court observed that Jagadisan, J., had disposed of the evidence of the witness in a “summary manner” and “had not properly appreciated the evidence”. They then observed that the witness was referring to his College Examination and not the Chartered Accountants' Final examination, and that the College Examination was held on November 12, 1957 and the Chartered Accountants' Examination was held on November, 1957. They further observed that if the answers given in the examination-in-chief, chief and cross-examination are taken together there was no doubt about the “purport of the evidence” given by this witness. Counsel for Dr Reddy has conceded that the witness only spoke about one examination i.e. the Chartered Accountants' Final Examination held on November 19, 1957, and there is no evidence on the record that the College Examination was held on November 12, 1957, or that the witness was referring to that examination. The testimony of the witness does not support the case of Dr Reddy. Even apart from this infirmity, on a perusal of the record of the evidence, we see no reason why the view taken by the trial court and confirmed by Jagadisan, J., should be discarded. A court of Appeal does not normally discard the view of the trial Judge who has seen the witness as to the reliability of oral evidence. The witness deposed to matters which took place nearly three years before the date of his examination in court and it is difficult to believe that he could have remembered either the occasion or the conversation which he had with Kistamma. No reason was suggested as to why Kistamma should go in the company of her brother and her brother's wife and proclaim that she was leaving her husband's house. We agree with the trial court that the testimony of the witness is unreliable.
6. PW 4, K. Rami Reddy is a “landlord and businessman” residing at Putur. The witness stated that he used to go to Madras once “a month or two months” and since he was a friend of Dr Reddy and also his patient, he used to visit Dr Reddy. He then stated that in the middle of November 1957 on a Sunday when he went to Dr Reddy's house at 8.00 a.m. he heard “exchange of heated words” and after a few minutes he saw “Kistamma, her brother and her brother's wife coming down and thereafter Kistamma was murmuring and she went away with her brother”. In cross-examination the witness stated that Dr Reddy had told him that Kistamma had quarrelled with him and left him in November 1957, when he went to him and hence he remembered that occasion. The testimony of this witness, even if it be accepted, does not prove that Kistamma had left the matrimonial home in November 1957. There is no statement of the witness that she had any travelling kit with her or that she took any conveyance for going to the Railway Station. The words “went away” with her brother cannot justify an inference that she abandoned the matrimonial home as alleged by Dr Reddy. The statement made in cross-examination about what Dr Reddy had told him is hearsay. The High Court was of the view that the comment made by Jagadisan, J., “is hardly fair to this witness”. They observed that if the evidence is “properly read and not misquoted or misread” it is clear that the witness stated in cross-examination that in November 1957, Dr Reddy had told him that Kistamma quarrelled with him, (Dr Reddy), and had left his house. We have carefully gone through the evidence and we are unable to hold that the view taken by Jagadisan, J., was not correct.
7. PW 5, G. Veeraraghavan is a “ward-boy” under Dr Reddy since May, 1957. He stated that six months after he entered the service Kistamma left the matrimonial home. According to the witness this took place on a Sunday morning and that Kistamma's brother accompanied her. In cross-examination he stated that: “I deny the suggestion that Respondent (Kistamma) did not leave her husband house in 1957. Respondent left only in 1958”. The statement is somewhat obscure and the obscurity must have been apparent to the Judge and the lawyer, but the lawyer for Dr Reddy did not attempt to clarify this answer given in answer to a question put in cross-examination, nor did the learned Judge attempt to do so. The judgment of the trial court was delivered by Mr P. Lakshmanan, Additional Judge, who had heard the evidence of this witness, and he understood the statement of the witness to mean that Kistamma had left the matrimonial home in 1958. He also made no attempt to seek a clarification of the statement. Apparently, Jagadisan, J., also read the statement of the witness in the manner in which it was understood by the Trial Judge. The High Court tried to reconstruct the form of the question and the answer given by the witness and observed that it was “hardly fair to read from the admission made by the witness that Kistamma had left the house in 1958”. The testimony of this witness has not been recorded in the form of questions and answers. It is impossible to reconstruct from the record the form of the question and answer given by the witness. Failure on the part of the presiding Judge and the lawyer for Dr Reddy to obtain a clarification is of some importance. We have carefully read the record of the evidence and we are of the view that the evidence of this witness is vague and unsatisfactory, and apart from the statement made by him in cross-examination the testimony itself is such that no reliance can be placed upon it.
8. PWs 3, 4 and 5 are the only independent witnesses whose testimony was accepted by the High Court as corroborating the case of Dr Reddy. In our view their testimony cannot be used to support the case of Dr Reddy.
9. Dr Reddy deposed that on November 17, 1957, Kistamma left the matrimonial home and never returned thereafter. But Dr Reddy is highly interested in the result of the litigation. It would be difficult to rely upon his bare testimony unsupported by strong corroborative evidence.
10. There are certain circumstances which clearly support the contention of Kistamma that Dr Reddy's case is not true. In the “notice” served on May 28, 1959, through a lawyer there was no reference to the claim that the child born of Kistamma in December, 1958, was illegitimate. It was stated in the “notice” that Kistamma was “guilty of acts of antagonism and violence deliberately intended to cause annoyance and misery so as to render Dr Reddy's life one of abject misery” It was further stated in the “notice” that while Dr Reddy was considering the question of getting a judicial separation from Kistamma on grounds of cruelty, Kistamma “suddenly walked out of his house in November, 1957, after creating a regrettable scene before some very respectable members of the public, other patients and members of his staff, with bag and baggage” swearing never to see him alive or return to him and “had not bothered to have any manner of contact with him till that date”. It is difficult to believe that if it was the case of Dr Reddy at that stage that the child born of Kistamma in December, 1958, was not his child, he would have, when he was seeking to give intimation of a proposed proceeding for divorce, failed to mention prominently the only ground available to him on which he could apply for dissolution of marriage under Section 13 of the Hindu Marriage Act.
11. Mr Gokhale on behalf of Dr Reddy submitted that there were certain other circumstances which supported the case of Dr Reddy. Counsel relied upon the circumstances that there was no correspondence between the spouses after they separated; that no interest was taken by Dr Reddy or other members of his family in the child born of Kistamma; that Dr Reddy was informed of the birth of the child three days after the birth; that no information was given to the father of Dr Reddy who was residing only at a distance of 18 miles from Bellary where the child was born; that no invitations were sent for the namakaran ceremony and other ceremonies of the child; and that when Kistamma left the matrimonial home Dr Reddy did not accompany her to the Railway Station nor did he make any arrangements for providing a conveyance to her for going to the Railway Station. It is however accepted that there was correspondence between the husband and wife, but the correspondence has not been produced. In any case the relations between the husband and wife, were even on the case of Dr Reddy, severely strained, and absence of correspondence cannot support the case that Kistamma must have left the matrimonial home on November 17, 1957, and not in August, 1958. It is true that there is a delay of about three days in giving telegraphic information to Dr Reddy about the birth of the child. Having regard to the strained relations between the husband and wife no inference may be drawn from that circumstance. Some reliance was sought to be placed upon the form of the telegram, but unless it be shown that the telegram was drafted by the sender, reference to Kistamma in the telegram “as your wife” will not, in our judgment, justify any adverse inference. The conduct of Dr Reddy in not taking any interest in the child and not accompanying his wife to the Railway Station is also attributable to the strained relations between the husband and wife. Again it may be noticed that it was the case of Dr Reddy that Kistamma was accompanied by her brother and his wife. There is no clear evidence on the record that any formal namakaran ceremony or other ceremonies took place. We do not think that these circumstances by themselves are sufficient to establish the case of Dr Reddy that Kistamma left the matrimonial home on November 17, 1957, as alleged. We are of the view that no case was made out for the High Court to interfere with the conclusion of the trial court as confirmed by Jagadisan, J.
12. Counsel contended that in any case Dr Reddy was entitled to a decree for judicial separation under Section 10(1)(a) of the Hindu Marriage Act. But no case was made out in the courts below that Kistamma had deserted Dr Reddy for a continuous period of not less than two years immediately preceding the presentation of the petition. Dr Reddy went to trial only on a case arising under Section 10(1)(f) of the Act. Again, if it be accepted that Kistamma left the matrimonial home in August, 1958, the petition was clearly filed within two years of the date of departure of Kistamma, and the petition was not maintainable under Section 10(1)(a) of the Act. We may observe that in so stating we are not, in any manner, accepting the suggestion made by counsel for Dr Reddy that Kistamma had deserted her husband when she left the matrimonial home.
13. The appeal must therefore be allowed and the order passed by Jagadisan, J., restored. Dr Reddy will pay the costs of the appellant Kistamma in all the courts.