9911796707
TMI Blog1966 (10) TMI 167X X X X Extracts X X X X X X X X Extracts X X X X ..... to as the Act) if he wanted a decree of divorce, and under one or other clause of s. 10 if he wanted a decree of judicial separation. It is enough to say that the first respondent's case so far as the prayer for divorce was concerned was based upon clause(i) of s. 13(1), namely, that the appellant was living in adultery, and in the alternative, on clause(viii) of s. 13(1) read with s. 2 of the Hindu Marriage (Uttar Pradesh Sanshodhan) Adhiniyam No. XIII of 1962. As to judicial separation, the case apparently was based on clause(b) of s. 10(1), namely, that the first respondent had been treated with cruelty within the meaning of that section, and also on clause(f) of s. 10(1). 2. The appellant denied that she had been living in adultery. She also denied that she ever had sexual intercourse with Chandra Prakash Srivastava, who was made a co-respondent in the petition. She also denied that she was guilty of any cruelty as alleged. On these pleadings, two main issues arose, namely - (i) Whether the appellant had been living in adultery or had sexual intercourse with Chandra Prakash Srivastava after her marriage, and (ii) whether she had treated the first respondent with such cru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of special leave are that the High Court granted divorce to the first respondent and ordered that its decree should take effect forthwith, with the result that the marriage between the appellant and the first respondent stood dissolved on January 7, 1964, when the High Court allowed the appeal. The special leave petition was presented in this Court on April 7, 1964 and the appellant did not convey to the first respondent that she was intending to challenge the decision of the High Court. She also did not pray for the stay of operation of the order of the High Court. The first respondent therefore believed that she had submitted to the order of the High Court and married another woman on July 2, 1964. Special leave was granted to the appellant by this Court on August 25, 1964, and it was only on September 9, 1964 when the first respondent got notice of the grant of special leave that he came to know that the judgment of the High Court was under appeal in this Court. In the meantime he had already married another woman and a son was born to that woman on May 20, 1965. The first respondent therefore contended that because of the negligence of the appellant in not informing him that sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on for special leave to this Court. Even so, we are of opinion that the party who has won in the High Court and got a decree of dissolution of marriage cannot by marrying immediately after the High Court's decree take away from the losing party the chance of presenting an application for special leave. Even though s. 15 may not apply in terms and it may not have been unlawful for the first respondent to have married immediately after the High Court's decree, for no appeal as of right lies from the decree of the High Court to this Court in this matter, we still think that it was for the first respondent to make sure whether an application for special leave had been filed in this Court and he could not by marrying immediately after the High Court's decree deprive the appellant of the chance to present a special leave petition to this Court. If a person does so, he takes a risk and cannot ask this Court to revoke the special leave on this ground. We need not consider the question as to whether the child born to the new wife on May 20, 1965 would be legitimate or not, except to say that in such a situation s. 16 of the Act may come to the aid of the new child. We cannot the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arried woman who received them. The matter may have been different if any letters of the appellant written to Chandra Prakash had been proved. Further there is intrinsic evidence in the letters themselves which shows that whatever might have been the feelings of Chandra Prakash towards the appellant, they were not necessarily reciprocated by the appellant. In Ex. 2, Chandra Prakash wrote to the appellant, "You love me as you love others and this is why my share is very small. You writ me letters to satisfy your anger". This seems to suggest as if Chandra Prakash was getting no response from the appellant. Again in Ex. 3, Chandra Prakash wrote, "I know that you would be angry with me, but what can I do." This again suggests that Chandra Prakash was getting no response from the appellant. Further in both these letters Chandra Prakash conveyed his respects to the appellant's husband, and on the whole we are not satisfied that these letters indicate that there must have been sexual intercourse between the appellant and Chandra Prakash in 1955, which was the time when these letters were written. When we have the clear denial of the appellant to the effect that sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... divorce forthwith as has been done in this case on the assumption that a decree of judicial separation could have been passed on the ground mentioned in s. 10(1)(f). We are clearly of opinion that the amended clause [namely, clause(viii) of s. 13(1)] still requires first a decree of judicial separation and thereafter a decree of divorce may follow under clause(b) without waiting for two years, which is the necessary period for the application of clause(a). The High Court therefore was not right in passing the decree of divorce in this case forthwith under sub-clause(b) of s. 13(1)(viii) as amended in U.P. 12. It has however been urged on behalf of the first respondent that we may now pass a decree of judicial separation instead of a decree of divorce passed by the High Court. We are of opinion that even that cannot be done in the present case. The only ground on which the decree of judicial separation can now be asked for is that mentioned in s. 10(1)(f), namely that the appellant had sexual inter-course with any person other than her husband after the marriage. The only allegation in that respect was that the appellant had sexual intercourse with Chandra Prakash in 1955, and tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver a case of desertion. It is urged that in order that forgiveness may be confirmed or made effective, something more than stray acts of cohabitation between husband and wife have to be proved. But where as in this case, judicial separation is being claimed on the ground of s. 10(1)(f), the fact that the husband cohabited with the wife even after the knowledge that she had been guilty of cohabiting with another person would in our opinion be sufficient to constitute condonation, particularly, as in this case, the first respondent knew of the alleged adultery in May/June 1958 and still continued to cohabit with the appellant thereafter upto October 1958. Further the statement of the first respondent to the effect that he kept his wife after May/June 1958 at the instance of his friends is a clear indication of condonation even in the sense of forgiveness confirmed or made effective by reinstatement. We are therefore of opinion that the first respondent is not even entitled to a decree of judicial separation. 14. We therefore allow the appeal, set aside the order of the High Court and restore that of the trial court rejecting the petition of the first respondent. The appellant will ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
