(1) This is a husband's appeal from the judgment of the Subordinate Judge, Muktsar, dismissing his petition for dissolution of his marriage with his wife Amar Kaur respondent, under S.13 of the Hindu Marriage Act.
(2) The parties were married to each other at village Chipli of Tehsil Dipalpur District Montgomery (now in Pakistan) on 20th of August 1940.These issues were born on of this union; two daughters on 2nd of December 1941 and 8th of January 1946 respectively, and a son on 10th of November 1948.A decree for divorce was sought on the ground of adultery committed by the respondent-wife with co-respondent, Such a Singh, on or about 21st of October 1955 in Gulshan Hotel, Bhatinda, and at Kot Bhai from 16th of January 1954 to 31st of May 1956 and with unknown persons of Abul Khurana from 8th of January 1958 to 31st of March 1958.The petitioner-husband made an allegation that his wife as a result of her adulterous conduct had been expelled from the Education Department where she had been employed as a teacher till 31st March 1958. Reliance was placed in the petition on the general reputation which the respondent-wife had at the various places she was posted as a teacher. The petition was presented on 27th of August 1958 and it was asserted that it had not been induced by collusion or connivance nor had the adultery been condoned by the petitioner at any stage.
(3) The petition was contested by the respondent, Amar Kaur, who pleaded that she had been turned out of the house by her husband after he had taken away her ornaments in the month of January 1953. While admitting that she worked as a teacher in different schools, she denied the charge of adultery leveled against her. According to her, the petition for divorce was by way of retaliation to the application which she had presented for maintenance under S. 488 of the Cri. P. C. In order to invest the Ferozepur Court with jurisdiction, the petitioner averred in paragraph (3) that he last resided and cohabited with his wife at Malout Mandi up to 26th of June 1958. The wife denied this position altogether and stated that while they were married in Pakistan, she never lived with her husband in Malout Mandi. The jurisdiction of the Ferozepur Court to try the petition for divorce was challenged. Though the plea of jurisdiction appears to have been raised the only issue which has been framed is as under:
"Whether the applicant is entitled to get divorce on account of adultery petitioner?"
(4) The trial Court holding that adultery is not proved, decided the issue against the petitioner. he also held that the husband must be deemed to have condoned the adultery by the admission which he made in paragraph 3 of the petition that he and his wife resided and cohabited together in Malout Mandi till 26th of June 1958. The petition having been dismissed, the husband has come in appeal to this Court.
(5) Though I agree with the appraisal made by the trial Court with regard to the evidence of general repute and character against the respondent. I have formed an impression that the specific act of adultery committed by the wife with the corespondent at Gulshan Hotel, Bhatinda, on 21st of October 1955 has been established.
*** *** (Then after discussing evidence His Lordship proceeded):
(6-8) It is never necessary to prove adultery or even a single act of adultery by direct evidence. Such evidence is generally discredited when it is produced. Adultery has to be inferred from circumstances which exclude any presumption of innocence in favour of the person against whom it is alleged. In my opinion, the evidence with regard to the act of adultery committed in Gulshan Hotel is conclusive. The requirements of the test are amply met by the probative statements of witnesses mentioned aforesaid.
(9) Still, there are two impediments in the way of the petitioner. The first is the bar of condonation. It has been contended by the counsel for the respondent that the petitioner having admitted cohabitation with the respondent after she had committed adultery with co-respondent in Gulshan Hotel must be regarded to have condoned the matrimonial offence of adultery. As stated by Rayden on Divorce (6th edition) at page 177:
"Condition is the reinstatement in his or her former marital position of a spouse who has committed a matrimonial wrong of which all material facts are known to the other spouse, with the intention of forgiving and remitting the wrong, on condition that the spouse whose wrong is so condoned does not thenceforward commit any further matrimonial offence. Condition therefore consists of a factum of reinstatement and an animus remittendi"
.
(10) The averment made in paragraph 3 of the petition has to be read with paragraph 5 in which it is stated that the petitioner never condoned the adulterous acts of his wife. The respondent herself denied in her written statements that she cohabited with her husband at Malout Mandi and the evidence on both parties is to the effect that they had never lived together since 1953. The pleading read as a whole and the evidence, induce me to accept the contention of Mr. A. M. Suit that the statement made in paragraph 3 of the petition was only meant to invest the Ferozepur Court with jurisdiction. Paragraph 10 of the written statement of Amar Kaur where the fact of cohabitation is denied and the jurisdiction of the Ferozepur Court where the petition has been filed has been questioned, supports the submission which has been made by the learned counsel.
Moreover, there is no evidence to show that cohabitation between the parties, if ever committed in 1958, was with full knowledge of the petitioner that his wife had committed adultery with the co-respondent in Gulshan Hotel on 21st of October 1955. There is no a scintilla of evidence to show that after the alleged cohabitation the husband reinstated the wife in his previous position. Indeed, the evidence is to the effect that the parties have not lived together as husband and wife since 1953. Even assuming that the parties cohabited together before the filling of the petition, this would not be enough to constitute condonation according to the decision of the Court of appeal in Perry v. Perry, (1952) 1 All ER 1076, where it was held that,
"though sexual intercourse was beyond doubt a most important incident in the martial relationship, an act, or two or three acts, of intercourse could not be regarded as proof of the resumption of martial relationship, an act, or two or three acts, of intercourse could not be regarded as proof of the resumption of marital relationship where a wife, though participating in such acts in all other respects repudiated the relationship........"
In the written statement, the wife has denied cohabitation and in fact had repudiated it. There cannot, therefore, be said to have been any resumption of marital relationship. As said by Lord Justice Asquith (as Lord Asquith then was) in Bartram v. Bartam, (1949) 2 All ER 270, "having regard to these and other proved circumstances in the case, it seems to me wrong to hold that the three years period was interrupted by any resumption of cohabitation, for such resumption involves, in the language of Lord Merriman, P., in Mummery v. Mummery, 1942-1 All ER 553 a bilateral intention on the part of both spouses to set up a matrimonial home together. In my view, the facts proved in this case negative any such intention on the part of the wife who was not a free agent but was acting under the spur of necessity". A bare assertion of cohabitation must, therefore, be regarded as ineffective to constitute cohabitation in the instant case where the wife has denied the suggestion and there is no question of any "bilateral intention on the part of both spouses to set up a matrimonial home together".
(11) My conclusion on this aspect of the case, therefore, is that the petitioner's solitary statement, made in paragraph 3 of the petition contradicted by his subsequent statement that he never condoned the adultery and unsupported by any evidence on record is insufficient to constitute an act of condonation. If any cohabitation between the petitioner and respondent No.1 took place after 21st of October 1955, there is no proof that this was done in knowledge of the adultery between the two respondents and that it does not result in the resumption of a matrimonial home.
(12) This brings me to the remaining point in this case, whether a decree for dissolution of marriage can be granted under the provisions of S. 13 of the Hindu Marriage Act. Sub-section (1) of S. 13 says that "any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the order party:
(i) is living in adultery; or xxx xxx It has been rightly argued by the counsel for the respondent that it must be shown right up to the date of petition and even till the date of the decree that the offending respondent is living in the matrimonial offence of adultery to entitle the aggrieved spouse to claim a decree for dissolution of marriage on this ground.
Apart from the fact that the language used in the section is clear and unambiguous, there is authority to support the proposition which has been advanced by Mr. Bindra, the learned counsel for the respondent-wife. In Rajani Prabhakar v. Prabhakar Raghavendra, AIR 1959 Bom 264 (Vyas and Miabhoy JJ.) it was held that "living in adultery" means a continuous course of adulterous life as distinguished from one or two lapses from virtue". Vyas J. observed at page 267 that to give meaning to the words "is living" in clause (I) of sub-section (1) of S. 13.
"it would not be enough if the spouse was living in adultery sometime in the past, but had seceded from such life for an appreciable duration extending to the filing of the petition. It would not be possible to lay down a hard and fast rule about it since the decision of each case must depend upon its own merits and turn upon its own circumstances.....................it must be shown that the period during which the spouse was living an adulterous life was so related from the point of proximity of time, to the filing of the petitioner that it could be reasonably inferred that the petitioner had a fair ground to believe that when the petition was filed, she was living in adultery"
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(13) Having held that only one act of adultery has been proved on record, namely, on 21st of October 1955, a decree for dissolution of marriage cannot obviously be granted to the husband whose petition was presented in 1958.
(14) Although the petitioner did not ask for the relief of judicial separation, it has been urged by his learned counsel that he is entitled to is under S.10 of the Hindu Marriage Act. In contrast to the requirement of S.13, a judicial separation under S. 10(1)(f) can be granted if the offending spouse "after the solemnization of the marriage, had sexual intercourse with any person other than his or her spouse". That the act of adultery committed by the respondent with the co-respondent would be sufficient to entitle the petitioner to a decree for judicial separation appears to be manifest from the language of S.10. The question which I have to ask myself is whether the failure of the petitioner to have claimed an alternative relief disentitles him to it in the present procedure? Under S.21 of the Hindu Marriage Act, all proceedings under this Act "shall be regulated, as far as may be by the Code of Civil Procedure 1908".
The proceedings under the Hindu Marriage Act have to be in accordance with the Code of Civil Procedure. The relief of judicial separation on ground of adultery is not inconsistent with what was actually prayed for in the petition for dissolution of marriage. To obtain a decree for dissolution of marriage, a wider and more expansive adultery has to be proved that what is required for a decree for judicial separation. The relief, contemplated in clause (f) of sub-section (1) of S.10 can truly be called a lesser relief than the one envisaged in clause (I) of sub-section (1) of S.13. A single of adultery would suffice for a decree for judicial separation whereas a continuous course of adultery is an essential prerequisite for a decree for dissolution of marriage on this ground.
Under O. 7, R. 7 of the Code of Civil Procedure, though every plain shall state specifically the relief which the plaintiff claims it "shall not be necessary to ask for general or other relief which may always be given as the Court may think just to the same extent as if it had been asked for". So long as the "other relief" to which a petitioner is entitled is not inconsistent with the original relief asked for and is based on the same cause of action and is not different from it, it is generally granted even when not asked for.
In Glorious Jacob v. Mrs. Rosie Jacob, 1939-41 Pun LR 337: (AIR 1939 Lah 404) a Division Bench of Sri James Addison and Ram Lall JJ. held that,
"where in a petition for dissolution of marriage under the Indian Divorce Act, a case for dissolution of marriage is not made out but there is a case for granting judicial separation and the court has failed to consider this aspect of the case, there is ground for review and the court may grant judicial separation on an application for review being made"
.
In that particular case, the District Judge who dismissed the petition for dissolution of marriage was moved in a review petition for granting a decree for judicial separation. The District Judge acceded to the prayer made in review and his action was confirmed by the Division Bench of the Lahore High Court. The principles of law relief upon, in my opinion, is equally applicable to the facts of the present case.
(15) In my judgment, there is no impediment in the way of the petitioner being granted the relief for judicial separation and I would, accordingly, allow this appeal and grant a decree for separation of marriage to the petitioner. In the circumstances of the case, I would make no order as to costs.
KE/D.H.Z.
(16) Appeal allowed.