CHANDRA MOHINI SRIVASTAVA versus AVINASH PRASAD SRIVASTAVA & ANR.

CHANDRA MOIIlNI SRIVASTAVA

AVJNASH PRASAD SRIVASTAVA & ANR.

October 13, 1966

[K. N. WANCHOO AND G. K. MITTER, JJ.j

Hindu Marriage Act (25 of 1955), s. 13(1)(i) and (viii) as amt,..,_ by Hindu Marriage (Uttar Pradesh Sanshodlum)Adhiniyam (13 of 1962)-Decru for divorce when can be passtd-ConiJonatlon-What amounts to.

Constitution of India, 1950, Al'V. 136-No right of appeG-1 agaiNt decree for d1vorc.e-Stcond 1narriage by husband in i'gnorance of grant of special ltave-lf special leave can be revoktd.

. The respond~t filed suit against his wife, the appellant, for dissolu· uon of his marnage with her on the ground that she was living in adultery. The trial court dismissed the suit. Jn appeal, the High CoUtt held that the wife was not living in adultery. but that two letters written by the co-respondent to the wife showed that there bad been se•ual intercoune between the wife and the co-respondent in 1955, after the marriage, and that the respondent woulcl be entitled to claim judicial separation under s. 10(1) (f) of the Hindu Marriage Act, 1955. Relying upon the amend-ment to s. 13(1 )(viii) by the Hindu Marriage (Uttar Pradesh Sansbodhan) Adhiniyam, 1962, the High Court also held that it was case wbue decree for dissolution of marriage could be passed. The decree of the High Court was dated 7th January 1964 on which date the marriage stood dissolved. On 7th April 1964, the Wife presented petition fqr special leave to appeal to this Court. But, in ignorance of that step, the respondent married another woman in July 1964 and son was born to her in May 1965. Meanwhile, in September 1964, the respondent gpt notice of the grant of special leave. In September 1966, be applilod to this Court for revocation of the grant of special leave, on the ground, that because of the ne~ligcnce of the wife in not inforrning him that she was applying for special leave, be bad married again and child was also born to his second wife who might become illegitimate if the appeal was allowed.

HELD : ( 1) Even though it may not have been unlawf\tl for the res-pondent to have married immediately after the High Coon's decree, fer no appeal as of right lies from the decree of the High CoUtt to this Court in these matters. still, the respondent bad to make SUte whether an applica-tion for special loove bad been filed In this Court. He could not, by marrying immediately after the High Court's decree, deprive the wife of the chance of J>resenting special leave petition to this CoUtt. By doing oo, he took risk and could not ask this Court to rO\"Oke the special leave on that ground. [868 E-0]

(2) The order of the High Court granting divorce should be set aside.

(i) Even as~uming that the two letters indicated thlt there was some illicit intimacy between the wife and the co-respondent, the High Court was in error in granting divorC<!l under s. 13(1 )(viii) as amended by the U.P. nmendment. Before decree for divorce ean be granted thereunder, there must fir.;t be decree for judicial separation and thereafter, under the amendment, decree for divorce will follow if one of two conditiOlll

is satisfied, namely, that (a) period of two years had elapsed, or (b) the case is one of exceptional hardship to the petitioner or of exceptional deprivity on the part of the other party. The amended clause therefore requires first decree for judicial separation and thereafter decree for divorce may follow under cl. {b) without waiting for two years. It is .not open to court to grant decree for di,mce forthwith on the ground of exceptional hardship to the petitioner or of exceptional depravity on the part of the other party, even without decree of judicial separation, on the assumption that decree of judicial separation could have been passed on the ground mentioned in s. lO(l){f). [870 C-H]{ii) The two letters do not howev.er indicate that there must have been seo<ual intercourse between the wife and the co-respondent in 1955. There-fore, thl't"e was no ground even for decree of judicial separation in favour of the respondent. [871 CJ

(iii) Even if there had been such sexual intercourse there was con-donation within the meaning of s. 23 ( 1 )(b) of the Act. In his statement under O.X, r. 2 Civil Procedure Code, the respondent admitted that he knew of the illicit relations between his wife and the co•respondent e\1'n in 1955 or 1956, bu! 'the respondent continued to live with his wife and son was born to them in 1957. The respondent tried to resile from that statement by stating in his evidence that what he meant was that he entertained suspicion only, but that he was definite aboutthe illicit intimacy only in Ma}'!June 1958. But even thereafter, he admitted having sexual relations with his wife up to October 19,58. The fact that the husband cohabited with the wife even after the knowledge that she had been guilty. of cohabiting with another . would be aufficient to constitute condonation. Moreover the respondent also admitted that he kept her with him at the instance of his friends. This. was clear indication of condonation even in the sense of forgiveness, confirmed or made effective by reinstatement. [871 D-H: 872 CJ

Perry. v. Perry, [1952] 1 All. E.R. 1076, referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 138 of 1966.

Appeal by special leave from the judgment and order dated January 7, 1964 of the Allahabad High Court in First Appeal No. 289 of 1961.

J.P. Goyal and M. V. Goswami, for the appellant.

S. P. Sinha, Champa! Rai, E. C. Agarwala and P. C. Agarwala, for respondent No. I,

The Judgment of .the Court was delivered by

Wanchoo, J. This is an appeal by special leave against the judgment of the Allahabad High Court and arises in the following circumstances. suit was brought by the first respondent, Avinash Prasad Srivastava, against the appellant for dissolution of !us marriage with her and the grant of decree of divorce. In the alternative the first respondent prayed for decree of judicial sepa-ration. His case was that he was married to the appellant on May 27, 1955, and the appellant lived with him for four years and half. The parties last resided together and cohabited at Bareilly. number of allegations of all kinds were made in the petition by the

first respondent against the appellant; but it is unnecessary to refer to them, for the first respondent had to bring his case under one or other clause of s. 13 of the Hindu Ma~riage Act, No. 25 of 1955, (hereinafter referred to as the Act) if he wanted decree of divorce, and under one or other clause of s. 10 if he wanted decree of judi-cial separation. It is enough to say that the first respondent's case so far as the l'rayer for divorce was concerned was based upon cl. (i) of s. 13(1), namely, that the appellant was living in adultery, "nd in the alternative, on cl. (viii) of s. 13(1) read with s. 2 of the Hindu Marriage (Uttar Pradesh Sanshodhan) Adhiniyam, No. XIII ,,f 1962. As to judicial separation, the case apparently was based on cl. {b) of s. 10(1), namely, that the first respondent had been treated with cruelty within the meaning of that section, and also on cl. (f) of s. 10(1). .

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 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 cruelty as to bring the case within cl. (b) of s. 10(1). There were other issues as to jurisdiction and as to some property the return of which the first respondent was claiming, but we are not concerned with them now.The trial court held that the appellant was not living in adultery. It also held that it was not proved beyond doubt that there was any sexual intercourse between the appellant and Chandra Prakash Srivastava at any time. It further held that even if there had been any sexual intercourse it had been condoned. Finally it held that no such cruelty as came within the meaning of s. 10(1) (b) had been proved. In consequence the petition was dismissed and the prayer for dissolution of marriage or in the alternative, for judicial separa-tion, was refused.

The first respondent then went in appeal to the High Court. The High Court held that it had not been proved that the appellant had been living in adultery within the meaning ofs. 13 (I) (i) of the Act. An attempt was made by the first respondent to prove illicit intimacy between the appellant and Chandra Prakash Srivastava in May or June 1958, but that was not believed either by the trial court or by the High Court. But the High Court relying on two letters alleged to have been written by Chandra Prakash Srivastava to the appellant held that there had been sexual intercourse between the appellant and Chandra Prakash Srivastava in 1955. The High Court also held that there was no condonation by the first respon-dent of this adulterous intercourse. It was therefore of orinion that the first respondent would be entitled to claim judicial separation

Ii. under s. 10 (I) (f) of the Act. However, using the U.P. amendment to· s. 13 (!)(viii), the High Court held that this was case where dis-solution of marriage was necessary. The appeal therefore was allowed and dissolution of marriage was granted by the High Court. It may be added that on the question of cruelty, the High Court held that there was no such cruelty as might come within the mean-B ing of s. 10 (1) (b). Thereupon the appellant obtained special leave, and that is how the matter has come up before us.

Before we deal with the merits of the appeal, we may refer to an. application (CMP No.· 2935 of 1966) filed on behalf of the first respondent, in which he prays that the special leave granted to the . appellant be revoked. The grounds taken for revocation 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 ~arriage between the appellant and the first respon-dent 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, J: 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 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 ·she was applying to this Court for special leaye; he had married again and his new wife had given birth to son, and in consequence· this Court should now.revoke the special leave that was granted so· that the new child might not become illegitimate.The application has been opposed on behalf of the appellant and it is contended that it was no part of her duty to inform the· first respondent that she was intending to apply to this Court for special leave. It was also contended that it was for the first respon-dent to make sure before marrying that no further steps had been taken by the appellant after the judgment of the High Court, and in this COT\nectio&} she relied on ss. 15 and 28 of the Act. In any case it is urged that the fact that the first respondent took the risk of marrying without making sure whether any further steps had been taken by the appellant was no ground for revocation of special leave. It was also pointed out that though the first respondent had .been. served as far back as September 9, 1964, he made the application

for revocation of special leave only on September 15, 1966, when the appeal was ready for hearing.

We are of opinion that special leave cannot be revoked on grounds put forward on behalf of the first respondent. Section 28 of the Act i11ter alia provides that all decrees and orders made by the court in any proceedings under the Act may be appealed from under any law for the time being in force, as if they were decrees and orders of the court made in the exercise of its original civil jurisdiction. Section 15 provides that "when marriage has been dissolved by decree of di vorcc and there is no right of aP.peal against the decree or, if there is such right of appeal, the time for appealing has expired without an appeal having been presented, or an appeal has been presented but has been dismissed, it shall be lawful for either party to the marriage to marry agairi." These two sections make it clear that where marriage has been dissolved, either party to the marriage can lawfully marry only when there is no right of appeal against the decree dissolving the marriage or, if there is such right of appeal, the time for filing appeal has expired without .an appeal having been presented, or if an appeal has been presented it has been dismissed. It is true that s. 15 docs not in terms apply to case of an application for special leave to this Court. Even so, we arc of opinion that the party who has won in the High Court and got 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 special leave petition to this Court. Jf person docs so, he takes 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 situation s. 16 of the Act may come to the aid of the new child. We cannot therefore revoke the special leave on the grounds put forward on behalf of the first respondent and hereby dismiss his application for revocation of >pecial leave.

Turning.now to the merits of the appeal, we have already indi-cated that the High Court as well as the trial court are agreed that the appellant was not living in adultery at the time when the petition was filed. They arc also agreed that there was no such cruelty as would bring the case within the meaning of s. I 0( I) (bl oft he Act. But the High Court found that there had been adultery between the

appellant and Chandra Prakash in 1955 and the evidence for that consisted of two letters said to have been written by Chandra Prakash to the appellant. We cannot agree •with this conclusion ·of the High Court. Chandra Prakash was married to cousin of the appellant. He was therefore not stranger to the appellant and his writing letters to her would not therefore be matter of any surprise. We cannot also forget that the appellant in her statement has denied on oath that she ever had illicit connection with Chandra Prakash. There is also no doubt that the attempt of the first res-pondent to prove that there had been illicit intimacy between the appellant and Chandra Prakash in May/June 1958 has failed and both the courts have disbelieved the evidence in this behal. It is in this background that we have to. examine the two letters on which reliance has been placed by the High Court, that being the only evidence in proof of adultery in 1955.

It is true that the appellant has· denied receiving those letters and has also denied that she ever sent any letters to Chandra Prakash. One can understand this denial in the case of person like the appellant who was facing petition for .divorce on the ground of adultery. But assuming that those two letters were received by the appellant, that does not in our opinion prove that there was any adultery between the appellant and Chandra Prakash in 1955. We have read those letters and we must say that they are most improper and should not have been written by person like Chandra Prakash who was married to the cousin of the appellant. But the first thing that strikes us is that the mere fact that some male-relation writes such letters to married woman, does not necessarily prove that there was any illicit relationship ·between the writer of the letters and the married woman who received them. The inatter may have been different if any letters of the appellant written to Chandra Prakash had been proved. Further there is intrinsic evidence in the fotters 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 write me letters to-G satisfy your anger". This seems to suggest as if Chandra Prakash was getting no response from the appellant. Again in Ex. 3, Chan-dra 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 she never had any sexual intercourse with Chandra

Prakash, we have no hesitation in a=pting that denial, for there is

nothing in these letters which would even suggest that the denial was false. N ~r does the evidence of the first respondent, once the incident of May/June 1958 has b::en disbelieved, s.how anything from which it can b~ inferred that there was any illicit relation between the appellant and Chandra Prakash in 1955 or at any other time. We arc therefore in agreement with the trial court that these letters do not show that there was any illicit relationship between the appellant and Ch3ndra Prakash in 1955.

We are further of opinion that even assuming that these letters

indicate that there was some illicit ir:tim1cy b~twecn the appellant and Chandra Prakash, the Higli Court was still in error in granting divorce under's. 13{l){viii) as amended by the U.P. am~ndment. By the U.P. amendment, the following clause was substituted for cl. (viii) in the Act and was deemed always to have been substituted:-

·'(viii) has not resumed cohabitation after the passing

of decree for judicial separation against that party and-

(a) period of two years has elapsed since the p1ssing

of such decree, or

(b) the case is one of exceptional hardship to the

petitioner or of exceptional depravity on the part of the other JJarty";

As we read this provision, it is clear that before decree for divorce can be granted thereunder, there must first be decree for judicial separation and thereafter under the amendment decree for divorce will follow if one of two condition& is satisfied, namely that (i) period of two years has elapsed, or (ii) the case is one of exceptional hardship to the petitioner or of exceptional depravity on the part of the other party. Sub-clause (b) in our opinion is not independent. That sub-clause only comes into operation after decree of judicial separation has been passed. We cannot accept the contention that it is open to court under the amended provision to grant decree of divorce on the ground of exceptional hardship to the petitioner or of exceptional depravity on the part of the other party, even without decree of judicial separation having been first made. Sub-clause (b) can only apply after decree for judicial separation has been passed and it is not open to court to apply that clause and give divorce forthwith as has been done in this case on the assumption that decree of judicial separation could have been passed on the ground mentioned ins. IO (1) (f). We are clearly of opinion that the amended clause [namely, cl. (viii) of s. 13(1)) still requires first decree of judicial se:iaration and thereafter decree of divorce nay follow under cl. (bl without waiting for two years. which is the necessary period for the application of cl. (a). The High Court therefore was not right in passing the decree of

divorce in this case forthwith under sub-cl. (b) of s. 13(l)(viii) as amendedin U.P.

It has however been urged on behalf of the first.respondent tha we may now pass decree of judicial separation instead of 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 wlrich the decree of judicial separation can now be asked for is that mentioned ins. 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 that is sought to be proved by the two letters to wlrich we have referred already. We have held that those letters do not prove that there was any sexual intercourse between the appellant and Chandra Prakash in 1955. Therefore, there is no ground even for a. decree of judicial separation in favour of the first respondent.

Besides even if we were of opinion that there had been sexual intercourse between the appellant and Chandra Prakash in 1955 (which we have no doubt is not true) this would be case of condo-nation under s. 23(1)(b) of the Act. Under that provision decree of judicial separation cannot l:ie passed under s. 10(1) (b), if it appears to the court that the petitioner has in any manner been accessory to or connived at or condoned the act or acts complained of. In his statement under 0. X. r. 2 of the Code of Civil Procedure, the first respondent stated that it was in the month of June or July 1955 or 1956 that illicit relations of the appellant with Chandra Prakash were confirmed to him. According to that statement the first res-pondent knew even in 1955 or 1956 that there had been adultery between the appellant and Chandra Prakash. Even so, the first respondent continued to live with the appellant and son was born to them in 1957. In his evidence the first respondent tried to resile from his statement made under 0. X r. 2 and said that what he meant was that in 1955/1956 he entertained suspicion only. This explanation is of course untrue, for the words used in the statement under 0. X r. 2 were that illicit relationi; between the appellant and Chandra Prakash were confirmed to him. Even in his evidence the first respondent stated that he was definite in May/June 1958 that there was illicit connection between the appellant and Chandra Prakash. It was admitted by the first respondent that he had sexual relations with the appellant right upto October 1958. It is only in February 1959 when the appellant came finally to Jive with the first respondent that he said that he had no sexual relations with her during her stay of fifteen days. He also admitted that even after May/June 1958 he was willing to keep the appellant at the instance of his friends.

Reliance in this connection is placed on Perry v. Perry( I) as to the content of condonation, which involves forgiveness confirmed or. made effective by reinstatement. That was however case of desertion. It is urged (hat in order that forgiveness may be con-firmed or made effective, something more than stray acts of cohabi-tation 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 coha-bit 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 clear indica-tion 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 decree of judicial separa-tion.

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 get her costs throughout from • the first respondent.

Appeal allowed.