M. Shakuntala vs M. Shivaraj

Bhaskar Rao, J.—This is a petition filed to review the Judgment and decree this Court dated 2-9-1986 passed in the above appeal and to allow the same.

2, The facts of the case are that the marriage of the petitioner with the respondent took place on 28-4-1974 at the house of her husband in Chinthalabasthi, Hyderabad. Thereafter they lived together happily for sometime and a female child was born. Later on some differences arose. Therefore, the husband filed O.P. No. 114/1977 on the file of the IV Addl. Judge, City Civil Courts, Hyderabad, for a decree of divorce on the ground of desertion by the wife. The lower court after considering the entire material on record allowed the O.P. and granted a decree of divorce. Against that Judgment, the wife filed the appeal, C.M.A. No. 385 of 1981. The appeal came up for hearing before a Division Bench of this Court consisting of K. Amareswari, J and one of us (Bhaskar Rao, J.). When the appeal came up for hearing this Court directed the learned counsel to produce the parties in the Court with a view to bring in reconciliation, if possible. Both the parties were not present and the counsel for both parties represented that they were not able to contact their parties. Therefore, this Court considering the material on record, dismissed the appeal filed by the wife.

Thereafter the wife filed the present review petition stating that subsequent to passing of the decree for divorce by the lower Court, there was re-union between the petitioner and the respondent and they lived together as husband and wife and a female child was also born to them on 20-10-1984, by name M. Mahalaxmi, in Vijay Marie Hospital, Hyderabad. When the appeal came up for hearing, the respondent-husband advised the petitioner-wife that it is not necessary to be present before the Court as they have reconciled. So believing the advice of her husband, she did not attend the Court and she did not evince any interest in the appeal. Therefore, this Court dismissed the appeal without her contesting the same. It is also stated that during the said period of re-union between the petitioner and the respondent, a female child was also born to them on 20-10-1984, named as Mahalaxmi. These allegations were disputed by the counsel for the husband. Therefore, this Court called for a finding from the trial court and both parties were permitted to file affidavits and adduce evidence in the lower court. In pursuance of the order of this Court calling for a finding, both parties appeared before the Court below and filed affidavits. The wife examined herself as R.W.1 and also examined another witness as R.W.2. The husband also appeared and examined himself as P.W.1. The wife filed I.A. No. 2787/89 in the lower court for appointment of the Director or such other Officer of the Centre for Cellular and Molecular Biology at Hyderabad for conducting blood test of the husband, Shivaraj, and the disputed child Mahalaxmi and also Smt. Shakuntala herself to determine the paternity of the second child Mahalaxmi. She also filed I.A. No. 2786/89 for a further direction that the husband should bear the expenses of that test as she is not in a position to bear the said expenditure. The lower Court, after hearing both sides allowed both I. As by its common order dt.16-10-1989. Against the said common order the husband filed C.R.P. Nos. 446/90 and 445 /90 in this Court, but both these C.R.Ps were dismissed in limine on 23-2-1990. Thereafter the husband did not comply with the order dt.16-10-1989 of the lower court in I.A. Nos. 2787/89 and 2786/89 and did not undergo the test. Thereafter, he filed another I.A. No. 1314/90 to review the order in the above I.As, but the said review petition was dismissed by the lower court on 31-8-1990 on the ground that the order dt.16-10-1989 in I.A. Nos. 2786/ 89 and 2787/89 stood merged in the order of the High Court passed in C.R.P. Nos. 445/90 and 446/90. The estimated expenditure for the test ordered in I.A. No. 2787/89 would work out to Rs. 3,500/- and this test is popularly known as DNR Finger prints test and it is well known throughout the world now, that this test is an accurate one and that the results are found to be quite correct to decide the paternity of child. The lower court after taking into consideration the evidence on record and the circumstances viz. there was reunion between the petitioner-wife and the respondent-husband in the year 1983 after the C.M.A. was admitted against the order of the trial court and interim suspension was granted, that they lived together and the second child Mahalaxmi was born and that as the husband refused to undergo scientific test called the DNR Finger Prints test and that he has got means to undergo the test as he is working as an employee in the Mint drawing salary; has drawn an adverse inference that if the petitioner would have undergone the test, the paternity of the child would have been declared and for that reason he refused to undergo the test and that ultimately the lower court sent a report that there was re-union between the petitioner-wife and the respondent-husband and the second female child Mahalaxmi was born to the petitioner through the respondent as they lived together as wife and husband during the period of reunion.

We have heard both the counsel.

The learned counsel for the petitioner-wife contended that this Court can review the judgment under appeal, having regard to the fact that after the admission of the civil miscellaneous appeal by this Court, the petitioner-wife and the respondent-husband lived together as husband and wife and a female child by name Mahalakshmi, was also born. This fact, according to the learned counsel, constitutes new evidence which was not there on record at the time of disposal of the appeal. Basing on this, this Court can review the judgment. The learned counsel for the respondent-husband, on the other hand, contended that once the appeal is disposed of on merits, generally the same is not subject to review and no evidence, which came into existence after the decree of divorce was granted by the Trial Court, can be entertained in the review petition. Therefore, there are no grounds to review the judgment.

In view of the above contentions, the question that arises for consideration is whether this Court can receive fresh evidence in review which came into existence after the disposal of the O.P. by the trial Court.

The facts of the case as stated supra are that the petitioner-wife and the respondent-husband lived for some time happily after their marriage and a female child was born to them. Thereafter, differences arose between both of them and there was a separation. Thereafter, the husband filed a petition for divorce on the ground of desertion. The trial Court, on an exhaustive consideration of the entire material on record, decreed the O.P. filed by the husband and granted a decree for divorce. The trial Court found that the wife has deserted the husband. That order was challenged in the civil miscellaneous appeal by the petitioner-wife before this Court. This Court admitted the C.M.A. and granted suspension of the trial Court''s order.

When the C.M.A. came up for hearing, this Court directed both the learned counsel to produce the parties in the Court for reconciliation, if possible. But the learned counsel represented that they were unable to contact the parties. Therefore, the C.M.A. was decided on merits and the same was ultimately dismissed. Thereafter, the present review petition was filed by the wife stating inter alia that after the C.M.A. was filed in the High Court, this Court suspended the order of the lower Court and further passed an injunction order restraining the respondent-husband from marrying second wife. Thereupon, the husband came to the petitioner-wife and requested her to come and live with him promising that he would look after her well. Therefore, the wife joined him in the year 1983 and they lived happily together. During that re-union, a female child was also born. As the wife was living with her husband, she did not attend the Court.

After the appeal was disposed of, the respondent-husband again started ill-treating her and sent her away. Therefore, she filed this present review petition. She was examined herself as R.W.1 in the enquiry conducted by the trial Court in pursuance of the directions of this Court and she examined R.W.2, P. Yellaiah, and filed Exs. B-1 to B-5 documents.

On a reading of the evidence of R.W.1, the wife, it is clear that there was re-union between herself and her husband and that she was prevented from appearing before the Court. The respondent-husband (P.W.1) in his cross-examination also stated that he contacted his Counsel in the C.M.A. at first when he entered appearance and again he contacted his Advocate only after the filing of the review petition in the High Court. From this, it is clear that the husband did not bother about the C.M.A. at all till the filing of the review petition. The petitioner-wife also did not bother, and according to her, her husband asked her not to go to the Court and, therefore, she did not appear.

Review petition was filed in July, 1988 along with the condonation of delay application. The review petition was admitted on 9-9-1988. On 8-2-1988 the husband purchased a Bajaj Electrical Fan worth about Rs. 735/- from Parveen Agencies of Lakdi-ka-pool, Hyderabad, under Ex.B-4, receipt, dated 8-2-1988. In the deposition before the lower Court, P.W.1, husband, admitted the purchase of the said fan. R.W.1, wife, stated that his fan was purchased by her husband to provide for the newly born child to P.W.1. Further, the husband has not attributed any unchastity to the wife. Thus, the said fact lends more assurance to the evidence of R.W.1 that there was re-union between herself and her husband.

Exs. A-2 to A-7 are the receipts filed in M.C. No. 61 of 1990, under which the husband paid maintenance to the wife. The last payment of maintenance in that M.C. was on 12-5-1983. Thus it shows that after 12.5.1983, there was no payment by the husband, because there was re-union between the wife and the husband. This fact also lends support to the contention of the wife that there was re-union between herself and her husband. The husband also admitted in his deposition as P.W.1 that he paid maintenance upto 1983 only and he filed receipts, Exs.A-2 to A-7. If there was no re-union, the respondent-husband would have continued to pay maintenance to the wife and the petitioner-wife would have taken steps to recover the maintenance granted by the Court. As there was re-union between the petitioner and the respondent, the question of recovering maintenance does not arise. This factor also lends support to the contention of the wife that there was re-union. It may be noted that merely because there was some mistake in giving the date of re-union, it cannot be said that there was no re-union at all.

According to the evidence of R.W.1, second baby, by name, Mahalakshmi was born on 20th October, 1984. The same is evident from the Hospital receipts and Municipal certificates, Exs. B-1 to B-4, and this shows that the second child was also born to the respondent-husband. R.W.2, who was also examined by the wife, corroborated this version. Thus, in all circumstances, the contention of the wife that there was re-union after the appeal was admitted by this Court that both of them lived happily as husband and wife and that a female child was born to them, cannot be doubted.

Another factor is that though the wife filed I.A. No. 2787 of 1989 for conducting D.N.A. Finger Print Test to the husband and the newly born child, and the Court below passed on order directing the husband to undergo the said test, the husband refused to undergo that test on the ground that he could not bear the expenses. Therefore, the Court below has rightly drawn an adverse inference against the respondent-husband. It may be noted that the husband is an employee and drawing salary and it cannot be said that he was not able to bear the expenses of the said test. In those circumstances, the Court below has rightly drawn an adverse inference. This factor also lends support to the contention of the wife that there was re-union between herself and her husband and a female child was also born to them. Thus, the evidence on record, i.e., the oral evidence of R.Ws. 1 and 2 and P.Ws. 1 and 2, as also the documentary evidence Exs. A-2 to A-5 and Exs. B-1 to B-5, clinchingly shows that there was re-union between the husband and the wife after the civil miscellaneous appeal was admitted by this Court in the year 1983 and they lived together happily until the C.M.A. was disposed of by this Court and thereafter the wife was sent away and therefore she was compelled to file the present review petition.

The next question, whether fresh evidence can be entertained or not in a review petition, was elaborately considered by the Calcutta High Court in Kunja Behary v. Kristo Dhone AIR 1939 Calcutta 42 wherein it was held:

"There can be no question that it is in the interests of the public generally that there should be an end to litigation. In order to obtain a new trial, for the purpose of calling fresh evidence, a litigant should show (i) that, such evidence was available, and of undoubted character; (ii) that the evidence was so material that its absence might cause a miscarriage of justice; (iii) that it could not with reasonable care and diligence have been brought forward at the time. Hence where there is new evidence proposed to be put forward in the form of an affidavit of a witness and there is evidence before the Court as to the credibility of the proposed witness and that evidence goes to show that he is not a person whose testimony can be relied upon; at any rate, it goes to show that the Court ought not to presume that the evidence to be given by him is true, the party cannot be given the benefit of the re-hearing of the appeal or litigation."

The further question is whether the Court can review the judgment. Review is governed by Order XLVII, Rule 1 of the CPC which reads thus:

"47(1). Any person considering himself aggrieved-

(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred;

(b) by a decree or order from which no appeal is allowed; or

(c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a renew of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order.

(2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the appellate Court the case on which he applies for the review."

According to the above provision the Court can review the judgment, if it is satisfied that the new evidence which is produced, could not be produced by the party though the party exercised due diligence. In this case, the evidence shows that though the wife wanted to appear before the Court in the appeal, the husband has asked her not to appear before the Court as both of them were living together and believing the words of the husband, the wife did not appear before the Court. This itself is a sufficient cause and it can be said that she was prevented by the husband from appearing in the Court, and this is a good reason for receiving the evidence in the review petition now. Admittedly, the wife is an illiterate lady. She has no idea of the Court proceedings. Therefore, when the Court is satisfied that the new evidence produced is such that it could not be adduced earlier in spite of due diligence, the Court can receive the same. Moreover, after considering such evidence along with the other evidence on record, the Court can review the judgment. Accordingly, the evidence of R.Ws.1 and 2 along with the documents, which were referred supra, clinchingly show that the husband filed O.P. for divorce on the ground of desertion and the trial Court, after an exhaustive consideration of the evidence on record, passed the decree for divorce. Thereafter, the wife filed an appeal in this Court. This Court admitted the appeal and granted suspension and also injunction against the respondent-husband not to marry second wife. Thereafter, the husband requested his wife to join him and on his request, the wife joined him and both of them live together from 1983 until the appeal is disposed of by this Court. After the appeal was disposed of by this Court, the respondent-husband started ill-treating and sent her away. These circumstances are sufficient to review the judgment under appeal.

It is a fact that the trial Court granted a decree for divorce on the ground of desertion after considering the entire evidence and material on record. After filing C.M.A. in this Court, there was re-union between the wife and the husband and both of them lived happily for more than five years and a female child was born. This fact is also spoken to by R.Ws.1 and 2 besides the documentary evidence, i.e., Exs. A-2 to A-5 and B-1 to B-5. These circumstances clearly establish that the husband has condoned the desertion caused earlier and lived with his wife for some time and during that period a female child was also born to the respondent. Once the husband has condoned desertion, the same ground is not available to the husband for seeking a decree for divorce due to the subsequent circumstances which are proved in this case. Therefore, the Court can take note of the circumstances which show that the husband has condoned the desertion, and requested the wife to come and live with him and accordingly both of them lived together after the decree of divorce, pending the appeal in the High Court. This is a strong circumstance to review the judgment.

For the aforesaid reasons, we allow this application for review and allow the C.M.A. by setting aside the judgment under appeal granting a decree of divorce. No order as to costs.