Shmt. Karam Bir Kaur vs Kanwar Vijay Pal Singh and others

B.R. Tuli, J.—Shrimati Karam Bir Kaur filed a petition u/s 13 of the Hindu Marriage Act (hereinafter referred to as ''the Act'') for the dissolution of her marriage with Kanwar Vijay Pal Singh, Respondent No. 1, on the ground that he was living in adultery with Dr. Amarjit Kaur, who was madea co-Respondent In her petition, she stated that the marriage between her and Respondent No 1 was solemnised on March 12, 1959(sic) and they lived together as wife and husband at Ludhiana hut no child was born out of the union. It is evident that the relations between the parties became strained soon after the marriage as the said Respondent filed a petition u/s 9 of the Act against the Appellant which was dismissed in 1960 he filed a petition u/s 488 of the Code of Criminal Procedure which was allowed by the Additional District Magistrate, Ludhiana, by order date 1 October 28, 1960, allowing her maintenance at the rate of Rs. 90 per month. The Respondent filed a revision against that order which was dismissed in 1962 by the learned Additional Sessions Judge, Ludhiana

The allegation of the Appellant with regard to the adultery of Respondent No. 1 is stated in para 4(b) of the petition which is as under:

4(b) Respondent No. 1 is living in adultery with Shrimati Amarjit Kaur Respondent No. 2, whom Respondent No. 1 claims to have married on 21st March 1965. A son was born from Respondent No. 2 to Respondent No. 1 at Lady Dufferin Hospital, Luck-now, on 8th February, 1966. Respondent No. 2 is living with Respondent No. 1 as his mistress and rendering him conjugal rights.

The Respondents did not appear in the trial Court in spite of service and the proceedings against them were taken exparte. The learned District Judge, Ludhiana, however, came to the conclusion that from the evidence produced by the Appellant it had not been legally proved that Kanwar Vijay Pal Singh had married Amarjit Kaur during the currency of his marriage with the Appellant or that Respondent No. 1 was living in adultery with Respondent No 2. On that finding the petition of the Appellant was dismissed on March, 27, 1968. Against that decree, the Appellant filed the present appeal in this Court and made two applications for permission of this Court under Order XLI Rule 27 of the CPC (C.M. 1741 of 1968 and C M. 3125 of 1969) to produce some documents, one of which is a copy of the judgment of the Civil Judge Malihabad at Lucknow dated 25th July 1968 made on the petition of Dr. Amarjit Kaur against Kanwar Vijay Pal Singh u/s 11 of the Act annulling the marriage between them on the ground that it was a nullity Before admitting this evidence, notice had been issued to Kanwar Vijay Pal Singh, Respondent, it may be noted that the Respondents to the appeal are Kanwar Vijay Pal Singh and Dr. Amarjit Kaur but none of them has appeared to contest the appeal Kanwar Vijay Pal Singh was served by publication as he could not be served in the ordinary way. Before admitting the additional evidence, he was also given notice which was served on him by affixation on the outer door of his last known place of residence. In-spite of the fact that the appeal of Kanwar Vijay Pal Singh against the Appellant from the order of the learned trial Court dismissing his petition u/s 9 of the Act is also pending in this Court and was ordered to be heard alongwith this appeal, his learned Counsel stated that he had no instructions to appear in this appeal. That appeal could not be heard alongwith this appeal because Respondent No 1 had not paid the maintenance allowance and the expenses of defending the appeal to his wife. Karam Bir Kaur, the Appellant, in this appeal. It is thus clear that Kanwar Vijay Pal Singh is deliberately not defending this appeal. I allow the miscellaneous applications of the Appellant to produce additional evidence referred to above.

From the copy of the judgment passed by the Civil Judge, Malihabad, referred to above, it is clear, that Kanwar Vijay Pal Singh married Dr. Amarjit Kaur on March 21, 1965, at Lucknow during the subsistence of his marriage with the Appellant which marriage was a nullity as provided in Section 11 of the Act. It is also clear from this judgment that a son was born out of the union of the Respondents who was about 2 years and 5 months old when Dr. Amarjit Kaur gave her statement on July 25, 1968 in the petition filed by her against Kanwar Vijay Pal Singh. She had also stated before that Court that Kanwar Vijay Pal Singh was not seen by her after the month of July, 1965. In view of this fact it cannot be said that on the date when the Appellant filed her petition u/s 13 of the Act, Respondent Kanwar Vijay Pal Singh was living in adultery with Dr. Amarjit Kaur. The marriage between the Respondents was a nullity and Kanwar Vijay Pal Singh could be said to be living in adultery with Dr. Amarjit Kaur only if they were living together on the date of the petition of the Appellant or bad continuously lived together till about that date. The words in Section 13 of the Act are "is living in adultery" which means that the Respondent must be living in adultery at the time the petition on that ground is made by the Petitioner. It has been held by a Division Bench of the Bombay High Court in Rajani Prabhakar Lokur Vs. Prabhakar Raghavendra Lokur and Another,

It would not be in consonance with the intention of the Legislature to put too narrow and too circumscribed a construction upon the words ''is living'' in Clause (i) of Sub-section (1) of Section 13. On the other hand, it is clear that too loose a construction must also not be put on these words. For attracting the operation of these words, 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.

Shamsher Bahadur. J., in Bhagwan Singh Sher Singh Arora Vs. Amar Kaur and Another, expressed a similar view observing:

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.

In Dr. H.T. Vira Reddi Vs. Kistamma, a Division Bench of Ramamurti and Ramaprasada Rao, JJ. observed:

In a proceeding u/s 13 for a decree of divorce, on the ground of adultery, it is necessary that the course of immoral conduct must be more or less continuous and isolated lapses and acts of immorality would not suffice. On the other hand, for the relief of judicial separation u/s 10(1) (f), the party aggrieved will be entitled to that relief even if he proves one single act of infidelity on the part of the wife, she having had sexual intercourse with a stranger.

Form the Judgments cited above, it is apparent that the Appellant cannot be granted a decree of divroce in the instant case as living in adultery by her husband had stopped in July, 1965, that is, two years prior to the date of her petition. It has not been proved by the appelant that he had continued the life of adultery after July, 1965 to the date of her petition. Her prayer for dissolution of marriage by divorce is, therefore, declined. Her learned Counsel, however, has submitted that she can be granted the lesser relief of judicial separation u/s 10(1)(f) of the Act and for this submission, he relies upon the judgment of Shamsher Bahadur, J. and the Division Bench judgment of the Madras High Court referred to above. Shamsher Bahadur, J., held as under:-

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 it u/s 10 of the Hindu Marriage Act. In contrast to the requirement of S. 13, a judicial seperation u/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 proceedings. Under S. 21 of the Hindu Marriage Act, all proceedings under this Act ''shall be regulated, as far as may be by the CPC 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 dissoultion of marriage. To obtain a decree for dissolution of marriage, a wider and more expansive adultery has to be proved than 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 lessor relief than the one envisaged in Clause (i) of Sub-section (1) of S. 13. A single act 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 Order 7, R. 7 of the Code of Civil Procedure, though every plaint 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 P.L.R. 337 a Division Bench of Sir 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 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 spearation 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 principle of law relied upon, in my opinion, is equally applicable to the facts of the present case.

The learned Judges of the Madras High Court observed as under:

It may be noted that though originally the petition was founded on the ground of adultery and divorce was sought, the Appellant pressed his claim at the appellate stage, though not at the trial stage, for judicial separation. That the Petitioner can ask for the lesser relief of judicial separation, though in the first instance divorce was sought, is indisputable, and rightly, therefore, the learned Counsel for the Respondent did not demur to the course adopted by the Appellant both before Jagadisan, J, who heard the appeal and before us.

In the intant case it has been proved by production of the certified copy of the order of Civil Judge. Malihabad at Lucknow, that Respondent, Kanwar Vijay Pal Singh had undergone a ceremony of marriage with Dr. Amarjit Kaur on March 21, 1965 and lived with her till July, 1965. As a result of that union, a son was born to Dr. Amarjit Kaur. It is thus clear that from March 21, 1965 for about four months the Respondent lived in adultery and that is a sufficient ground for granting the decree of judicial separation to the Appellant in the present case, although she did not pray for it in her petition before the learned District Judge. The act of adultery committed by Kanwar Vijay Pal Singh with Dr. Amarjit Kaur has not been condoned by the Appellant as the Appellant and her husband have not lived together or seen each other, after he had married Dr. Amarjit Kaur and even prior therto as is shown from the proceedings for obtaining maintenance u/s 488 of the Code of Criminal Procedure and the petition made by Kanwar Vijay Pal Singh against the Appellant in 1960 u/s 9 of the Act for restitution of conjugal rights.

For the reasons given above, this appeal is accepted to the extent that the Appellant is granted a decree for judicial separation u/s 10(l)(f) of the Act against her husband Kanwar Vijay Pal Singh Respondent, with costs throughout.