M.C. Jain, J.
1. This is an appeal by the husband against the judgment and decree dated 16-6-1979 passed by the District Judge, Jodhpur, whereby the husband's petition for divorce, was dismissed.
2. The appellant-petitioner Om Prakash averred in his petition that he was married with the respondent No. 1 Shakuntala on 22-11-1972. She lived with him on 23-11-72. The marriage of her brother Jay Shankar, non-petitioner No. 2, was solemnised on 30-11-1972 She continued to visit the petitioner's house in the day up to 4-12-1972. Thereafter they were living separately. The petitioner sought the decree of divorce on the grounds of desertion, illicit relations with her brother Jay Shankar Vyas, non-petitioner No. 2, & mental cruelty on account of such illicit intimacy. It was also averred by the petitioner that the marriage was never consummated. The petitioner came to know of the illicit relations of the non-petitioner No. 1 with the non petitioner No. 2 after a few weeks of his marriage, whereupon she was asked to severe such relations and to return to the house of the petitioner, but she refused to severe such relations.
3. The non-petitioners submitted their replies to the petition, in which the accusation levelled against the non-petitioners, were denied. The non-petitioner No. 1 in her reply averred that she lived with the petitioner and the marriage was consummated. The petitioner exercise his marital fights and the non-petitioner discharged all marital obligations. It was denied that the non-petitioner No. 1 did not live with the petitioner after 4-12-1972. Even after this date she lived with the petitioner and discharged her marital obligations It was further averred that her mother in-law had died long before the marriage & the petitioner's father's sister Mst. Sharda alias Mangi is living in the petitioner's house. She is a quarrelsome lady. The petitioner is under her influence. On account of her mis-conduct she has created differences between the petitioner and the non-petitioner No. 1. It was also alleged that it is learnt that she administered poison to her husband and thereafter she ran way from her 'susral'. The non-petitioner No. 1 also alleged that the petitioner is having illicit relations with his 'Bhua' Mst Sharda Because of such relations the non-petitioner No. 1 was not called by the petitioner. It was stated that the petitioner and the non-petitioner No. 1 used to study together for Secondary Examination and both of them appeared in the Secondary Examination and lived together even in 1973. The non-petitioner No. 1 gave birth to a female child as a result of cohabitation with the petitioner. The allegation regarding the illicit relations between the non-petitioners was emphatically denied. The non-petitioner No. 1, in her additional pleas, also averred that she made a complaint against the petitioner to her father-in law for cot being kept by the husband whenever he used to visit Jodhpur, but her father-in-law too had a bad eye on her. He wanted to have sexual intercourse with her for which she was not prepared She was asked by him to live with him at Ajmer where he was posted, but the non petitioner No. 1 refused to do so despite insistence by him. The non-petitioner No. 1 prayed that the petition of her husband be dismissed & in the alternative she prayed that of the grounds stated in reply to the petition, if the Court considers proper, a just decree for dissolution may be passed.
4. On the pleadings of the parties the following issues were framed:
(1) Whether non-petitioner No. 1 is Living in adultery with non-petitioner No. 2?
(2) Whether the petitioner never had any sexual intercourse with non petitioner No. 1?
(3) Whether the non-petitioner No. 1 deserted the petitioner on or about 4-12-1972 (wrongly typed as 4-271) without any reasonable cause and since then the petitioner is in desertion?
(4) Whether the non-petitioner No. 1 caused mental cruely to the petitioner?
5. In order to substantiate his case, the petitioner examined himself as P.W. 1 and produced Devilal (P.W. 2). Heerachand (P.W. 3), Ramdas Kansara (P.W. 4), Mst. Dev Kanya (P.W. 5 Lalchand Gulechha (P.W. 6), Askaran (P.W. 7), Abhaimal Mehta (P.W. 8) and Jay Shankar Shrimali (P.W. 9).
6. In rebuttal the non-petitioners examined themselves as NRW 1 & NRW 2.
7. After hearing the arguments the learned District Judge decided all the issues against the petitioner and consequently dismissed the petition & awarded maintenance to the non-petitioner No. 1 under Section 25 of the Hindu Marriage Act, 1955 (hereinafter referred to as 'the Act').
8. Dissatisfied with the decree of dismissal, the petitioner has filed this appeal.
9. I have heard Shri S.L. Mardia, learned Counsel for the appellant and Shri Mohanlal Kala, learned Counsel for the respondents.
10. Shri Mardia availed the findings on issue Nos. 1 to 4 and submitted that the learned District Judge has an correctly appreciated the evidence of the parties. He urged that from the petitioner's evidence it is amply proved that the non-petitioner No, I is leading an adulterous life with non-petitioner No. 2 and his marriage was never consumated with non-petitioner No. 1. He also urged that the non-petitioner No. 1 does not want to live with the petitioner as is evident from her statement. In the light of her statement issue relating to desertion has been wrongly decided against the petitioner. As regards the ground of mental cruelty he urged that from illicit relations between the non petitioner, mental cruelty has even caused to the petitioner aid so this issue too has been wrongly decided. He also urged that apart from the ground stated in the petition for causing mental cruelty the accusations made by the non-petitioner No. 1 in her reply against the petitioner and against the father of the petitioner definitely tend to cause mental cruelty to the petitioner. Such serious and wild allegations have been made by the non-petitioner No. 1 and on that basis the petitioner is entitled to a decree of divorce This aspect of the case was not considered by the learned District Judge In the alternative Shri Mardia also submitted that by the Marriage Laws (Amendment) Act, 1976, Section 13A was introduced, which empowers the Court, if it considers it just, in the circumstance of the case, to pass a decree for judicial separation instead of passing a decree for divorce. He urged that the facts & circumstances of the present case warrant exercise of powers under Section 13A of the Act for passing a decree her judicial separation. Shri Mardia also submitted that the non-petitioner No. 1 submitted a counter claim and prayed for a decree for divorce on the averments made by the non-petitioner No. 1 in her reply to the petition The learned District Judge ought to have framed issues on the averments made by the non-petitioner No. 1 in her reply. Even otherwise he submitted that the petitioner is entitled to a decree for divorce on the basis of the accusations and counter allegations levelled by the non-petitioner No. 1 against the petitioner.
11. Shri M.L. Kola, on the other hand, refused the contentions with regard to issue Nos. 1 to 4 and supported the judgment of the trial court on these issues. He further stated at the Bar that the non-petitioner relinquishes her prayer for decree of divorce More over that prayer was made oily in the alternative He also urged that the accusations levelled against the petitioner were not made the basis for Rental cruelty, so the petitioner is not entitled to any relief on the ground.
12. I now proceed to consider the contentions advanced before me by both the sides. I shall first of ail deal with the findings arrived at by the learned District Judge on issues Nos. 1 td 4.
13. Issues Nos. 1 and 2 have been dealt with together by the learned District Judge On this issue there is the direct testimony of Smt. Dev Kanya (P.W. 5) and further there are the statements of P.W. 2 Devilal P.W. 3 Heera Chand and P.W. 2 Abhaimal Mehta. As regard P.W. 1 Om Prakash and P.W. 9 Jay Shankar Shrimali it may be stated that they have derived knowledge about the alleged illicit relations from the witness. They do not have any personal knowledge. I have been carried through the statements of these witnesses. After perusal of the, statement, of these witnesses and the consideration made by the learned District Judge of the evidence of these witnesses. I am clearly of the opinion that the findings arrived at by the learned District Judge on these issues are in no way erroneous. The learned District Judge, on assessment & evolution of the statement of Mst. Dev Kanya, has rightly found that her statement is unnatural, improbable, so is incredible Mst. Dev Kenya has stated that she had seen her husband indulging in sexual intercourse from 21st December, 1972 to 25th of December, 1972 in the day time in an Unbolted room. Such a statement of Mst. Dev Kanya is nothing, but a complete lie. It cannot be conceived that the non petitioners would indulge in the sexual act in such a manner as stated by her, unless they are mad. The statement of Devilal is simply to this effect that he had seen both of them cutting jokes with each other. What were their gestures and actions, he cannot say. The statement of Heerachand (P.W. 3) is also quite vague. He has stated that he had seen Shankuntala at Barkana in the house of Jay Shankar and has further stated their relations were not like that of brother and sister and their relations may be reckoned as one thinks. In cross-examination he stated that because the world says so he says that their relations were not that of bro her and sister. Much emphasis has been laid by Shri Mirdia on the statement of Abhaimal, but his statement too does not carry the matter any further. In examination in chief he stated that he saw both Jay Shankar and Shakuntala living in one quarter at Bukana Their manner of living was an immoral one. There was only one bed in the room, but in cross-examination, he stated that he had no occasion to visit the quarter of Jay Shankar. He also stated that because the brother and sister were living for two months in one room and as Jay Shankar did not bring his wife and brought his sister, so from this he inferred that their relations might be illicit The non petitioners have denied the alleged intimacy. A very serious charge was levelled by the petitioner against the non petitioners, who are brother and sister. Locking to this relationship, it was all the more necessary for the petitioner to have adduced convicting evidence to prove their illicit relations, but I find that the evidence led by the petitioner is far from the satisfactory and convincing one. If the fact had come to the notice of the petitioner that his wife is having such illicit relations with her own brother within a few weeks of his marriage, he ought to have moved the Court earlier, at least, have served the wife with a notice accusing her of this charge. Even on reviewing of the evidence I do not find any ground to differ with the finding arrived at by the learned District Judge.
14. As regards the question of consummation of arriage I find the statement of the petitioner absolutely false His statement does not inspire confidence. He appears to be untrue when he states that the non-petitioner No. 1 lived with the petitioner only in day upto 4-12-72. It may be stated that the petitioner had been opportunity to consummate the marriage. The non-petitioner No. 1 was accessible to him. It is absolutely unbelievable that after the marriage the petitioner did not indulge in sexual intercourse with his wife The learned District Judge has also considered the presumption, which arises in the circumstances of the present case Thus, considering the evidence, it cannot be found that the marriage was not consummated On the evidence on record, in my opinion, issue No. 1 and 2 have both been rightly decided against the petitioner by the learned District Judge and I concur with the findings of the learned trial Court on these issues.
15. So far as issue No. 4 is concerned, the mental cruelty alleged by the petitioner, is on the basis of the illicit relations and as issue No. 1 has been found against the petitioner, so on that account the question of causing of any mental cruelty by non-petitioner No. 1 to the petitioner, does not arise. I shall be considering the question of mental cruelty having been caused by the averments in the reply of the non-petitioner No. 1, independently.
16. Coming to be issue of desertion it may be stated that in the light of the statement of Om Prakash, the averment of the petitioner appears to be false that she lived with the petitioner upto 4-12-1972 and thereafter deserted him. Mst. Shakuntala has statue that she continued to live in her 'su ral' upto April, 1973, and thereafter she came to her parents house. Then her husband did not come to take her back. It may be mentioned that Mst. Shankuntala stated that she is willing to go to her husband, though certain conditions have been made by her in her statement. On the basis of the basis of the conditional willingness stated by her, it is contended that she is not prepared to go to her husband and go it should be found that she has no animus to return to her matrimonial home. If her statement is read as a whole in my opinion, it cannot be inferred that she had no such animus Rather, the petitioner in his own statement, has stated that even if the non petitioner wants to live with him he is not prepared to keep her. Though Mst. Shankuntala has accused her husband to be of bad character having illicit relations with his Bhuwa, still on that basis Mst. Shankuntala has not stated that she is not prepared to live with her husband. She has clearly stated that she is still prepared to live with her husband and the accusations levelled against her should be withdrawn and some sort of security of her life may be given; and a further condition has been imposed by her that her 'Bhuwa sas' may not misbehave with her She has stated that she his no complaint against her husband. If her statement is viewed in the light of the petitioner's own statement, It cannot be said that the non-petitioner No. 1 has deserted the petitioner. Ni clear animus deserendi it established from the evidence on record Moreover, it does not appear that the petitioner ever went to bring back his wife. Rather appears to be obstinate and he does not want to keep her at all In view of such a statement of the petitioner, it cannot be found that the petitioner is in desertion On the contrary the truth appears to be is that it is the non petitioner No. 1, who has been deserted by the petitioner. Thus, the finding on desertion as well does not call for any interference.
17. The matter is now required to be viewed as to whether the accusations and aspersions made by the non-petitioner No. 1 against the petitioner and his father amount to mental cruelty to the petitioned? The question arises whether these averments can be taken into consideration despite the fact that no issue vas framed on these averments and the prayer for necking the decree for divorce by the non-petitioner No. 1 has not been pressed, rather relinquished at the Bar. It may be pointed out that even at the trial issues arising from the averments made in the reply for seeking the relief of decree for divorce by way of counter claim, were not pressed, but the fact, never the less, remains that accusations and aspersions were made by the non-petitioner against the petitioner and his father. Such accusations cannot be lightly ignored by simply stating that when accusations were made against the non-petitioner No. 1, so in turn the non-petitioner No. 1 as well retorted in the same manner. In my opinion, such accusations and aspersions do amount to mental cruelty and they can certainly be taken into consideration. In Parihar (Priti) v. Prihar (Kailash Singh) A.I.R. 1973 Rajasthan 14 there were two letters sent by the wife to the Air Force Authorities of her husband & certain allegations were made in cross-examination of the husband regarding his sister's doubtful character Such conduct on the part of the wife was considered to amount to causing mental cruelty to the husband and in respect of the two letters it was observed that the letters were the act of cruelty not slight enough to effect revival only but per se constitute cruelty in the first instance and it was observed that the complaint which the wife made against the husband to his officers could have even cost him his job and is certaintly an act which would bring about mental cruelty. These acts on the part of the wife took place after the presentation of the petition and a question arose as to whether they could be taken into account and it was also considered whether in the circumstances, these acts were provoked by the husband him self and, therefore, do not amount to mental cruelty. After consideration of the case law and the evidence it was found that these acts on the part of the wife amounted to mental cruelty. It was observed in that case that it is not correct to say that the subsequent cruelty is on account of wrong committed by the husband.
18. In the present case I may further observe that all effort for reconciliation have proved failure and the relations of the parties have reached to a stage where reunion is not possible and further there were cross relations between the two families Shakuntala's brother Jay Shanker is married to Smt. Dev Kanya and Dev Kanya's uncle's on the present petitioner, is married to Shakuntala and it appears that the parties to both the marriage have fallen out. In such a situation the accusations made by the non-petitioner No. 1 against the petitioner and his father, have to be viewed in proper prospective in the facts and circumstances of the case and if so viewed, legitimately this conclusion can be reached that the conduct of the non-petitioner in levelling the accusations is nothing short of causing mental cruelty and so the petitioner is entitled to relief of divorce on that basis.
19. In the view, which I have taken with regard to the mental cruelty having been caused by the accusations made by the non-petitioner No. 1 in her reply and evidence, it is not necessary to consider the submission made by Shri Mardia based on Section 13A of the Act. How ever, as the point has been seriously and strenuously urged, I consider it proper to advert to it.
20. For facility of reference Section 13A is reproduced here under:
Section 13A : Alternate relief in divorce proceedings : In any proceedings under this Act, on a petition for dissolution of marriage by a decree of divorce, except in so far as the petition is founded on the grounds mentioned in Clauses (ii), (vi) and (vii) of Sub-section (1) of Section 13, the court may, if it considers it just so to do having regard to the circumstances of the case, pass instead a decree for judicial separation.
21. It would appear that Section 13A provides for, alternative relief in divorce proceedings, if the petition for divorce is moved on the grounds mentioned in Sub-section (1) of Section 13 except on the grounds mentioned in Clauses (ii), (vi and (vii) of Sub-section (1) of Section 13, the court may, If it considers it just so to do having regard to the circumstances of the case, pass instead a decree for judicial separation. It does not add a new ground for obtaining a decree for judicial separation. The petition for judicial separation can be moved under Section 10 of the Act on any of the grounds specified in Sub-section (1) of Section 13 and in the case of a wife also on any of the grounds specified in Sub-section (2) thereof. By introduction of Section 13A it cannot be taken that even where the grounds for seeking judicial separation are not proved, still the Court may pass a decree for judicial separation. What Section 13A contemplates, is that instead of passing a decree for divorce whereby the marriage the is broken, the Court may, looking of the circumstances of the case, instead piss a decree for judicial separation, giving the spouses a further opportunity to come closure, if possible and reunite. By introduction of Section 13A it cannot be, taken that even where grounds are not proved and the Court feels that the relations between the spouses have completely broken and there is no possibility of reunion, then it may pass a decree for judicial separation. In my opinion, such a construction cannot be placed on Section 13A It would, introduce a new ground for claiming, judicial separation leaving entirely at the discretion of the Court, particularly when it is found that the marriage the is irretrievably, broken. I have not been referred to any case on the point, though I have been referred to the statement of objects and reasons to the Marriage Laws (Amendment) Bill and I have also been referred to the notes on Clause (8). It is stated in Clause (8) that a new Section 13A, is proposed to be inserted to provide that under certain circumstances the court may, while dealing with a petition for divorce, have a discretion to grant a decree for judicial separation instead. It may be stated that grounds for judicial separation and divorce are common & if the grounds are proved, then the Court instead of passing a decree fir divorce may pass a decree for judicial separation, if it considers just in the facts and circumstances of the case.
22. Shri Mardia referred to the commentary on Section 13A of the Act in the Treatise 'The Law relating to Marriage and Divorce' by Shri Sagir Chand Jain, 1979 Edition, in which at page 125 it is stated that:
On the recommendation of the Law Commission, this section has been inserted to provide that under certain circumstances the courts may, while dealing with a petition for divorce, have a discretion to grant a decree for judicial separation instead The court has a discretion or rather a duty, to refuse the desired relief in certain circumstances as provided tinder Section 23(1) of the Act. The Law Commission recommended that, it would be convenient if the court is given a discretion not to dismiss the proceedings in toto, but to grant a lesser relief instead.
23. It is further stated that:
The court has been given discretion to grant a lesser relief of judicial separation in certain cases where it is of the opinion that divorce should not be granted.
24. It may be pointed out that under Section 23(1) if the court is satisfied that any of the grounds for granting relief exists and the case is not covered under Clauses (a) to (e) then the court is required to decree such relief If the ground for granting relief itself does not exist, i.e., if the ground is not proved the party claiming relief is not entitled to the same. However, Section 13A appears to make a provision that even where ground for relief of divorce exists still in the discretion of the court decree for judicial separation can be passed. The marginal note to the section reflects the intention of the provision which says for alternate relief in divorce proceedings. One who is not entitled to a decree of divorce, cannot be granted decree for judicial reparation. The word 'instead' appearing in the last sentence 'the court may...pas instead a decree for judicial separation' means 'in the stead, place or room of' as given in the Chamber's Twentieth Century Dictionary. It means that the court may its die creation in place of decree for divorce, pass decree for dissolution. If the Law Commission's recommendation was that decree for judicial separation can be passed if the court considers it just having regard to the circumstances of the case, even though the ground for divorce does not exist, i.e., not proved then in my humble opinion the said object is not achieved by the language of Section 13A. If the Parliament intended to achieve that object, it could have introduced it as a ground for relief of judicial separation that if the court considers it just so to do having regard to the circumstances of the case it may pus a decree for judicial separation. It is true that by the Marriage Laws Amendment Act, 1976, divorce has been liberalised and certain anamolies removed and gaps filled in and courts too appear to have become liberal in granting relief of divorce considering that broken hearts can not be reunited, still by the suggested interpretative methodology, an innovation can not be introduced in law when the language of Section 13A does not spell out the same. Thus, in my opinion this contention does not merit acceptance.
25. In view of my finding regarding mental cruelty having been caused to the petitioner by the accusations and aspersions made by the non-petitioner No. 1 against the petitioner and his father, the petitioner is entitled to the relief of decree for divorce, so on that basis the appeal deserves to be accepted.
26. No either point has been pressed before me.
27. In the result, the appeal is allowed, the decree of dismissal of the petition is set aside and the marriage of the petitioner-appellant with the respondent-non petitioner No. 1 is dissolved and a decree for divorce is passed in favour of the appellant Om Prakash. The rest of the order of the District Judge regarding grant of maintenance, is maintained.