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Dr. Saroj Kumar Sen Vs. Dr. Kalyan Kanta Ray and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKolkata High Court
Decided On
Case NumberA.F.O.D. No. 371 of 1976 (with Cross-objection)
Judge
Reported inAIR1980Cal374,85CWN73
ActsHindu Marriage Act, 1955 - Section 13(1); ;Hindu Marriage (Amendment) Act, 1976 - Sections 10, 13(1) and 23(1)
AppellantDr. Saroj Kumar Sen
RespondentDr. Kalyan Kanta Ray and anr.
Appellant AdvocateSamir K. Mukherjee, Adv.
Respondent AdvocateB.C. Dutta and ;A.K. Sen Gupta, Advs.
Cases Referred and Sulekha Bairagi v. Kamala Kanta
Excerpt:
- b.n. maitra, j. 1. the petitioner has alleged that on the 16th august, 1959, he was married to the respondent no. 1, devika roy, according to the hindu rites in calcutta. after the marriage, two children were born. from april to november, 1969, while he lived in his quarters at rishra, he had to leave rishra for calcutta in connexion with his official duties at 8 a.m. and return home at about 7.30 p.m. the co-respondent, dr. saroj sen, is the medical officer of the alkali and chemical corporation of india, where the petitioner is employed as project manager. dr. sen used to treat the members of his family from 1966 to 1969. on the morning of 6th november, 1969, all of a sudden he returned to rishra. on that date, dr. sen committed adultery with his wife in that quarters. the two children.....
Judgment:

B.N. Maitra, J.

1. The petitioner has alleged that on the 16th August, 1959, he was married to the respondent No. 1, Devika Roy, according to the Hindu rites in Calcutta. After the marriage, two children were born. From April to November, 1969, while he lived in his quarters at Rishra, he had to leave Rishra for Calcutta in connexion with his official duties at 8 a.m. and return home at about 7.30 p.m. The co-respondent, Dr. Saroj Sen, is the Medical Officer of the Alkali and Chemical Corporation of India, where the petitioner is employed as Project Manager. Dr. Sen used to treat the members of his family from 1966 to 1969. On the morning of 6th November, 1969, all of a sudden he returned to Rishra. On that date, Dr. Sen committed adultery with his wife in that quarters. The two children were taken away by their 'Ayah' under the direction of Devika. So, he began to suspect them until to be sure about the same subsequently. Dr. Sen committed adultery with Devika from April, 1969, and has been living in adultery with her. On the 15th November, 1969, he along with his family members shifted to his quarters at 4 Aftab Garden, Alipore, Calcutta. Devika was then reluctant to leave Rishra. She lost all interest in the family including her children. Ultimately, she admitted that she had committed adultery with Dr. Sen. On the 16th December, 1969, she left the matrimonial home at Alipore. She also wrote letters admitting her guilt. Thereafter the petitioner did not share the bed with her. He did not make any connivance with her or condone such adultery. There is no collusion between the parties. The suit is for divorce and alternatively for judicial separation and also for the custody of the children.

2. Respondent No. 1, Devika Roy, filed a written statement denying the petitioner's allegations. It has been alleged, inter alia, that the petitioner had illicit relationship with their 'Ayah' and his cousin. There is collusion between the petitioner and Dr. Sen and they have been trying to get rid of her. She was tortured by the petitioner and ultimately, driven out of the house at Alipore. The petitioner insisted on her taking part in the dance in the Officers' Club. She did not agree to that proposal and a quarrel ensued between them. Dr. Sen used to visit their quarters. She requested the petitioner to ask Dr. Sen not to come to their quarters. But the former took no steps and began to abuse and torture her. After she had been driven out by the petitioner, his sister, Smt Kamala Sen Gupta, and her husband came to her father's house and stated that they would try for reconciliation if she wrote a letter to the petitioner admitting that she had committed adultery with Dr. Sen. She did not agree to that proposal. But her father prevailed upon her to do so and thereby on the 30th December, 1969, she wrote such a letter to her husband according to the dictation of Smt. Kamala Sen Gupta. But she did not receive any reply. According to the instruction of her father, on the 10th January, 1970, she again wrote a letter to her husband. But there was no response from his end. Her father was ailing and she felt much perturbed. Then on the 5th February, 1970, she again wrote a letter to the petitioner. But no response came from her husband. On the 26th or 27th February, 1970, Kamala Sen Gupta and her husband came to her father's place and told her that the first letter written by her had been missing and so, another letter was necessary. According to their request, and according to the instruction of her father, she wrote another letter to her husband.

3. Co-respondent No. 2 also put in a written statement and has stated that the suit is a collusive one. He did not commit any such adultery.

4. The learned Additional District Judge has believed the petitioner's version and held that the case of commission of adultery is true. Devika also made voluntary admissions and wrote letters of her own accord. There was no collusion between the husband and wife. But she was not living in adultery with Dr. Sen. Thus, he gave a decree for judicial separation and not for divorce.

5. Hence this appeal by Dr. Sen. The petitioner has also filed a cross-objection asking for divorce.

6. It has been argued by Mr. Samir Mookerjee on behalf of the appellant that everything was managed by the husband and wife to put Dr. Sen to trouble. Collusion is a fraudulent design, a secret understanding between the husband and wife. Dr. Sen visited the petitioner's quarters purely on professional call and not to satisfy his lust or to make love with Devika. Reliance has been placed on some decisions of this Court including those of Subrata v. Dipti in : AIR1974Cal61 and of Sachindranath v. Nilima reported in : AIR1970Cal38 . The last case shows that the House of Lords has stated in the case of Blyth v. Blyth in 1966 AC 643 that the standard of proof is preponderance of probability in cases of condonation and connivance and beyond reasonable doubt in cases of adultery and the like. We shall later point out what was actually stated in Blyth's case. The case of White v. White in : [1958]1SCR1410 has been cited to show that in such cases, the husband is required to establish his case beyond reasonable doubt. This test has not been satisfied because at best, Dr. Sen had an opportunity to make love with Devika. Halsbury's Laws of England, 3rd Edition, Vol. XII, pages 237 and 238, show that the evidence of opportunity does not lead to an irrebuttable presumption that adultery has been committed. We shall subsequently show what is the latest view of Halsbury on this. It has also been stated that the evidence of P. W. 6, Kalyan Kanta Roy, petitioner cannot be believed. His gardener, P. W. 5, Panchu Gopal Dutta, and P. W. 10, Saraju Haldar, Ayah-cum-Cook, are interested witnesses. D. W. 1, Devika, has stated that the alleged admissions had been extracted from her by hoodwinking her. There is no corroboration of her alleged admissions. The case in AIR 1925 Bom 231 (SB) has also been cited.

7. It has been stated on behalf of the petitioner-respondent that there is satisfactory evidence on his behalf to show that Devika committed adultery with Dr. Sen and the incident of the 6th November, 1969, is true. The letters, Ext. 3 series, were voluntarily written by the wife. Even her father, D. W. 6, Jyotirmoy Roy, tried for a settlement. Terms had been imposed on her. But she did not agree to abide by the same. On the 8th December, 1969, she came from Alipore to Rishra and met Dr. Sen. On the 15th December, 1969, she confessed about her guilt and on the next day, she voluntarily left the husband's home.

8. Regarding the cross-objection, it has been urged that since the case of adultery has been proved, in view of Subsections (1) and (2) of Section 39 of the Marriage Laws (Amendment) Act, 68 of 1976, a decree for divorce has to be passed in this appeal as a matter of course.

9. At the outset let us deal with the point of law. Halsbury's Laws of England, 4th Edition, Vol. XIII, para 563 says that adultery must be proved to the satisfaction of the Court, that is on a preponderance of probability. But the degree of probability depends on the subject matter and in proportion as the offence is grave, so ought the proof to be clear. The divorce is a civil proceeding and the analogies of criminal law are not apt. Now, this is not a criminal case. In a criminal case, there is a presumption of innocence in the accused's favour. In spite of the provisions of Section 3 of the Indian Evidence Act, such presumption of innocence of an accused has been imported into the Indian Criminal Law from the English law. In the well-known case of Woolmington v. Director of Public Prosecutions reported in 1935 AC 462, it has been stated that throughout the web of the English Criminal Law one golden thread is always to be seen, that is the duty of the prosecution to prove the prisoner's guilt. But there is no such law in regard to our civil proceedings. .Section 3 of the Indian Evidence Act will clinch the issue on this for it says when a fact is proved, disproved and not proved. That Act nowhere says that a civil Proceeding has to be proved beyond reasonable doubt. Of course, relying on the case of Preston Jones v. Preston Jones reported in (1951) 1 All ER 124, it has been stated in the case of White v. White in : [1958]1SCR1410 that in rases of adultery, the petitioner must prove his case to the hilt. In England previously a view was taken that such rases must be proved beyond reasonable doubt. Then in the case of Blyth v. Blyth (1966 AC 643) (supra) the House of Lords has held by a majority that regarding divorce or the bars to divorce like connivance or condonation, like any other civil case, the petitioner's case must be proved by a preponderance of probability. In the case of Dastane v. Dastane : [1975]3SCR967 , this aspect of standard of proof was discussed by the Supreme Court and it was held that such cases need not be proved to the hilt. In these types of cases, this is the latest position of law in England and in India as well. Consequently, the views expressed in the cases of Sachindra v. Nilima : AIR1970Cal38 (supra) and of Subrata v. Dipti : AIR1974Cal61 (supra) are no longer good law. Therefore, it is now necessary to see, if the case of adultery has, been proved and whether the test of preponderance of probability satisfied.

10. Let us now deal with the first chapter of the case because P. W. 6. Kalyan Kanta Roy, petitioner, has stated that from April, 1969 onwards, he was working in the Head Office at 34, Chowringhee Road, Calcutta, and he used to attend his Calcutta Office from Rishra and for that purpose, he would leave his quarters by 8 a.m. and return to Rishra round about 7-30 p.m. In the matrimonial cases, the most natural and competent witnesses are the members of the family. The petitioner's family was then composed of his wife and two children. The latter are only child witnesses and naturally, they were kept back from the witness box. The next natural witness is their 'Ayah', P. W. 10, Saraju Haldar. She has stated that Dr. Sen visited the petitioner's quarters for about 7 or 8 months. Every time 'Bowdi' (Devika) used to close the door from inside after Dr. Sen entered into the room. Dr. Sen visited her on many occasions at about 9/9-30 a.m. after 'Dadababu' (petitioner) had left for office and she used to go out of the quarters with the two children according to her direction. She is a competent and natural witness and we find nothing to disbelieve her testimony. We think that the petitioner had no illicit relationship with her.

11. The next witness offered on behalf of the husband is p. W. 5, Panchu Gopal Dutta, who is the gardener of the husband's company. He has stated that he used to see their Company's doctor. Dr. Sen, visit the petitioner's quarters during the letter's absence. Dr. Sen used to stay there for about half an hour or 45 minutes and he regularly visited that quarters for about 5 or 6 months. He is also a competent and natural witness at that.

12. P. W. 10, Saraju Halder, reported that fact to the petitioner's sister, P. W. 7, Smt. Kamala Sen, and she has corroborated her statement,

13. The next chapter of the case is the important incident which took place on the 6th November, 1969. P. W. 6, Kalyan Roy, says that on the 5th November, 1969, he had to leave for Delhi and on the 6th November, 1969, he returned therefrom by air. It has been contended on behalf of the appellant that this story of return on the 6th November, 1969, is not true and there is no corroboration on this.

14. P. W. 14, B. Kumar, works in the Travel Agencies. This witness has produced the documentary evidence, Exts. 11 and 7 series, and said that the ticket was issued for travel of Dr. K. K. Roy. It will appear from those documents that the ticket was issued for the 5th November, 1969. We believe this part of the petitioner's version and find that such journey was, undertaken by P. W. 6, Kalyan Kanta Roy, and he actually returned to Calcutta from Delhi by air on the morning of the 6th November, 1969.

15. It has been contended on behalf of the appellant that according to the husband's statement, he returned to Dum Dum Airport in the morning. In the normal course, he would have reached Rishra by 7/7-30 a.m. at the latest. Now, P. W. 6, Kalyan Roy, says that from the airport he went to his father's residence at Kalighat and met him. He has been corroborated on this by his father, P. W. 9, Nripati Kanta Roy. We see nothing to disbelieve such statements.

16. The evidence shows that there were two bed rooms in the petitioner's quarters at Rishra. P. W. 10, Saraju Haldar, has stated that the petitioner returned from Delhi at about 10 a.m. on the next day. Dr. Sen and 'Bowdi' had already gone to the southern bed room and closed it from inside. She had been asked bv 'Bowdi' to take the children out and she complied with her direction. She was playing with the children near the kitchen. Then she found the petitioner in the kitchen. The latter enquired of her about Devika and she told him that Dr. Sen and 'Bowdi' were in southern room. She says that thereupon the petitioner went towards the room.

17. The next evidence has been offered by P. W. 6, Kalyan Kanta Roy. He says that he went to that room and tried to open the lock. But he found that the room was bolted from inside. Then he came to the verandah and saw that Dr. Sen was hurriedly proceeding along the garden of his quarters. He has been corroborated on this by his gardener, P. W. 5, Panchu Gopal Dutta. He says that when Dr. Sen was hastily proceeding along the garden and going up to the main gate of the quarters, the petitioner had been watching Dr. Sen from the verandah and after that incident, Dr. Sen did not come to that quarters any more.

18. The next chapter has been unfolded by P. W. 6, Kalyan Kanta Roy. He says that thereafter he entered into that bed room and found that D. W. 1, Devika, was in the bed with her eyes closed. The pillow beside her was depressed and the bed disturbed. He repeatedly questioned her on the same, but she kept mum over the matter and after sometime silently went to the bathroom.

19. The letter, Ext. 3 (a) dated 30th March, 1971, addressed by Devika to Mrs. Verghese, who was their neighbour at Rishra at the relevant time, shows that in fact her husband had questioned her on this. D. W. 1, Devika does not say that P. W. 7, Kamala Sen Gupta, petitioner's sister, dictated that letter to her. It appears from that letter that her husband has been telling everybody that he had seen her in a very bad position and since she was so much enraged that she could not speak for a while. This letter was written after the suit was instituted and it conclusively shows that on the morning of the 6th November, 1969, she had been questioned by her husband about the condition of the bed and the presence of Dr. Sen in the closed bed room. Obviously, this aroused his suspicion.

20. It has been next contended on behalf of the appellant that the petitioner came up with a false case because he has stated that even on that day, he had his lunch with Devika. It seems that the learned Additional District Judge rightly stated that since p. W. 6, Kalyan Kanta Roy, was a man of position and a scholar, he did not take the risk of shouting and calling for explanation from Dr. Sen as to why he had been sneaking away from his quarters at that time. He acted prudently in not creating a row over the matter and spreading a scandal straightway.

21. It has been strenuously urged on behalf of the appellant that D. W. 4, Dr. Sen, has rightly stated that he did not visit the petitioner's quarters after March, 1969, and on 6-11-1969. Let us see what the appellant has stated in his evidence. D. W. 4, Dr. Saroj Kumar Sen, feigns not to remember it on that day, he had been to the petitioner's quarters. Had that allegation been false, he would have point-blank given a negative answer to that question. In the para 7 of his written statement, there is an admission that on that day, he visited Dr. Sen's quarters on a bona fide professional call. If the call was a bona fide professional one, he had no business to make such simulation in the witness box. This goes a long way in establishing the truth of the petitioner's allegations and brings into lurid light the appellant's conduct before the suit.

22. It has been argued on behalf of the appellant that there was collusion between the husband and wife. But D. W. 4, Dr. Saroj Kumar Sen, could not state in his evidence as to why he had been impleaded as a co-respondent. The learned Additional District Judge has rightly stated that this witness gave vague, evasive and unconvincing evidence. We see no reason why a third person was dragged into the matter. No motive has been ascribed why that Medical Officer was implicated. The evidence on the record shows that two doctors had been working in the petitioner's concern at the relevant time. Moreover, the fact that the wife used to entertain Dr. Sen in her bed room by closing it from inside and giving direction to the 'Ayah' to take away the children at that time, will also rule out the possibility of any collusion between the husband and wife. Had the case of collusion been true, she would have desisted from making nasty allegations against the petitioner in the written statement and would not have denied the factum of commission of adultery. The petitioner also would not have filed the present cross-objection.

23. There is also oral evidence to show that, as a matter of fact, there was no collusion. The evidence of P. W. 4, Sachi Prosad Chatterjee, Maintenance Superintendent of the petitioner's company, indicates that on the 8th December, 1969, i. e., after the departure of the petitioner from Rishra, he saw Devika in Dr. Sen's dispensary. This was reported to the petitioner and has been corroborated by P. W. 6, Kalyan Kanta Roy. The letter, Ext. 3, written by her to her husband on the 31st December, 1969, which is admissible as res gestae under Section 6 of the Evidence Act, also shows that she went to Rishra from Alipore, and she does not know who had supplied him with the aforesaid information. She says that Dr. Sen told her that nothing could be done and she had been advised by him to adjust herself a bit and comply with her husband's direction. This conduct also is a pointer that the case of collusion is not in the least true.

24. The wife did not appear in this Court. The learned Additional District Judge disbelieved her evidence and stated that all the letters, Ext, 3 series, had been voluntarily written by her. In those letters, she has made admission of committing adultery with the co-respondent, Dr. Sen. The long letter, Ext. 3, contains matters which could not be known to an outsider or to P. W. 7, Kamala. The latter has stated that she did not tell Devika to write those letters or to make any admission. Similar statement has been made by Kamala's husband, P. W. 8, Anil Kumar Sen Gupta.

25. D. W. 6, Jyotirmoy Sen, is Devika's father. He also wrote a letter to the petitioner's father. In his letter, there is nothing to indicate that his daughter was forced to write any letter to the petitioner or she wrote the same at anybody's dictation. In such circumstances, we are of opinion that the letters, Ext. 3 series, were voluntarily written by her and she was not decoyed to write those letters at the instance of P. W. 7, Kamala Sen Gupta, or the other relations of the petitioner, by holding out any false hope that should she make such admission, Dr. Roy would take her back.

26. In the case of Mahendra v. Sushila in : [1964]7SCR267 , Raghubar Dayal, J., has stated that in a matrimonial suit, the Court can arrive at the satisfaction contemplated by Section 23 of the Hindu Marriage Act even on the basis of the parties' admission alone, if the Court is of opinion that such admission is not collusive. We have already held that the admissions made by her in those letters are voluntary ones and not collusive. Moreover, P. W. 7, Kamala Sen Gupta, has stated that D. W. 1, Devika Roy, confessed to her that she had committed adultery with Dr. Saroj Kumar Sen on several occasions.

27. It has been contended on behalf of the appellant that the Court will consider the probability of the case because Dr. Saroj Kumar Sen, used to attend the dispensary of the same Company from the morning. Further, there is evidence on the record that coffee parties were held in that area on Thursdays. 6tb November, 1969, was a Thursday. Hence, in view of those two circumstances, the Court should disbelieve the husband's version.

28. D. W. 4, Dr. Saroj Kumar Sen, has stated even in his chief that as Medical-cum-Safety Officer he had to attend the out-patients in the dispensary from 7-30 a.m. to 9 a.m. At 9 a.m., he used to be relieved by Dr. H.N. Roy so that he might look after the safety duty for the rest of the day till 4-30 p.m. So, even from his own evidence, it is clear that he had sufficient opportunity to go to the petitioner's quarters round about 9 a.m. after being relieved of his duty at the dispensary. Otherwise, P. W. 5, Panchu Gopal Dutta, and P. W. 10, Saraju, could not have stated that Dr. Sen used to visit the petitioner's quarters regularly for 7 or 8 months after 9 a.m.

29. The learned Judge has pointed out that coffee parties were held on Thursdays between 10-30 and 12 noon. In that view of the matter, Dr. Sen had sufficient opportunity to go to the petitioner's quarters before such party started at about 10-30 a.m.

30. Now about the factual aspect of the case. Devika's father, D. W. 6, Jyotirmoy Sen, is a scholar and a retired professor. His letter, Ext. 3 (h) dated 27th January, 1970, shows that Devika alias Khuku is highly emotional and requires treatment by a psychiatrist. The khata, Ext. 15, written by her was produced. She is constrained to admit in her cross-examination that she cannot recall if the statements in that khata are the figments of her imagination. After considering the facts and circumstances of the case, we are of opinion that she is a queer card. Her letters, Ext. 3 series, show that she was neglected, mentally starved and even tortured by the petitioner. She was frequently asked by her husband to go out. Despite her reluctance she was goaded by her husband to lead ultra modern life by attending parties, consuming alcohol and dancing with persons of her opposite sex. It seems that even after returning to his quarters the petitioner was wholly engrossed in the work of his office and had connection with his wife only in bed. Naturally, this emotional lady was feeling bored and pining for some company. So, she rightly complained in her first letter, Ext. 3, that while in bed she was frigid. He thereby paved the way for her downfall. Her letter, Ext. 3, shows how Dr. Sen made overtures of love to her, roused her feelings, and eventually committed adultery with her. It will be pertinent to point that in that letter there is no indecent allegation against Dr. Roy's character, though subsequently nasty statements were made in some later letters and also in her written statement.

31. It has been contended on behalf of the husband that the story of torture is false. But P. W. 6, Kalyan Kanta Roy, is constrained to admit that under the orders of the Court, her ornaments and belongings had to be returned. D. W. 1. Devika, says that on the 16th December, 1969, the petitioner drove her out of the house. If she voluntarily left her husband's protection, one would expect that she would leave with her ornaments and belongings. That circumstance goes to show that, in fact, the petitioner used to torture her and ultimately, on the 16th December, 1969, he drove her out of his quarters. P. W. 6, Kalyan Roy, has stated that on the 15th December, 1969, she confessed everything and stated that she had committed adultery with Dr. Sen. Normally, the husband's reaction was to drive her out of the house on the following day. The letters, Ext. 3 series, and the evidence given by her father, D. W. 6, Jyotirmoy Sen, and P. W. 7, Kamala Sen, indicate that there were attempts for a reconciliation. Some terms were imposed that she should stay in some ashram and so on and so forth. But those terms were not acceptable to her. The parties failed to come to terms and this led to the filing of this unfortunate litigation to snap the marriage tie.

32. The evidence of P. W. 9, Nripati Roy, shows that on the 8th December, 1969, at about 7 p.m. he saw Devika and Dr. Sen in the Lake Place. That shows Dr. Saroj Kumar Sen's conduct even after the couple left Rishra.

33. Thus, from the facts and circumstances, discussed above, we reject the contention put forward on behalf of the appellant and believe the evidence of the aforesaid P. Ws. The preponderance of probability is in the husband's favour. We also hold that for the period from April to October, 1969, Dr. Saroj Kumar Sen voluntarily committed adultery with Devika Roy in the petitioner's quarters in the morning after 9 a.m. and he also committed adultery with her in the bed room of the petitioner's quarters on the morning of the 6th November, 1960. We also find that there was no collusion between the parties when the suit was filed and the petitioner did not make any delay in filing the suit or condone her misdeed.

34. Mr. Bankim Dutta has stated that no petition for amendment is necessary. There is a prayer for divorce in the petition and also in the cross-objection.

35. Section 39(1) of the Central Act 68 of 1976 says that it applies to all pending marriage proceedings. This view has been taken by three Bench decisions at this Court reported in : AIR1977Cal193 , Sundari v. Basu, Debi v. K. Bhaduri in : AIR1980Cal1 and Sulekha Bairagi v. Kamala Kanta in : AIR1980Cal370 .

35-A. That section says:--

'39 (1). All petitions and proceedings in causes and matters matrimonial which are pending in any court at the commencement of the Marriage Laws (Amendment) Act, 1976, shall be dealt with and decided by such courts;

(1) if it is a petition or proceeding under the Hindu Marriage Act, then so far as may be, as if it had been originally instituted therein under the Hindu Marriage Act, as amended by this Act;

(2) In every petition or proceeding to which Sub-section (1) applies, the court in which the petition or proceeding is pending shall give an opportunity to the parties to amend the pleadings in so far as such amendment is necessary to give effect to the provisions of Sub-section (1), within such time as it may allow in this behalf and any such amendment may include an amendment for conversion of a petition or proceeding for judicial separation into a petition or proceeding, as the case may be, for divorce.'

36. The present petition was filed under the provisions of the Section 10(1)(f) and alternatively under Section 13(1)(i) of the unamended Hindu Marriage Act, 1956. Section 13(1)(i) of that unamended Act says that a party to the marriage may obtain a decree for divorce where the other party is living in adultery. A material change has been brought about by the amending Act of 1976, because the amended Section 13(1)(i) says that a decree for divorce can be obtained by one party where the other party has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse. Section 13(1)(b) of the Act says that in such cases, the Court has to see that the petitioner has not, in any manner, been accessory to or connived at or condoned the act or acts complained of.

37. The necessary averment of adultery has been made out in the cross-objection as well. It may be pointed out that P. W. 6, Kalyan Kanta Roy, has stated that he cannot say if Devika has been living in adultery with Dr. Sen. It is common ground that she has been working in a gramophone company under the name Devika Sen and living with her father at 68/6A Purna Das Road and not with Dr. Saroj Kumar Sen. Hence, without taking further evidence, there cannot be an automatic decree for divorce by the appellate court, though in this case no amendment of the petition will be necessary. On account of such subsequent change of law the case must be sent back to the trial court for arriving at a decision whether after the decree for judicial separation, the husband and the wife have resumed cohabitation and if there has been any condonation by him. The Court will send notices to the petitioner-husband and Devika and give an opportunity to them to adduce evidence only on this point. If, after considering the further evidence in this respect, the Court is satisfied that after the decree in question was passed there was no resumption of cohabitation between Kalyan Roy and Devika Roy and there was no condonation by him, there will be a decree for divorce. If, on the other hand, the Court arrives at a conclusion the other way about, then the suit will be dismissed because of the happening of such subsequent event, if any. If no further evidence is adduced, the decree already passed will be maintained. The question of the custody of the children is left open. Although we affirm the findings of the trial court in view of the partial success of the cross-objection, the decree and judgment will have to be Bet aside.

38. The appeal is dismissed with costs to the respondent No. 1 and without costs to the rest. The cross-objection is allowed without costs. The judgment and decree appealed against be hereby set aside and the proceeding remitted to the trial court for disposal according to law in the light of the observations made in the body of the judgment.

39. The learned Advocate appearing on behalf of the appellant has asked for a certificate for leave to the Supreme Court. No substantial question of law is involved. There is no question of public importance which requires determination by the Supreme Court, So, the certificate asked for is refused.

Chittatosh Mookerjee, J.

40. I agree.


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