KISTAMMA Vs. H T VIRA REDDY

JUDGEMENT

(1.) The parties to this appeal Dr. Vira Reddy and Kistamma were married in June, 1943, according to Hindu rites and ceremonies. The marriage was unhappy. On 23/12/1958, Kistamma gave birth to a female child. On 28/05/1959, Dr. Reddy by a lawyer's notice informed Kistamma that he desired to institute a proceeding to divorce her. In February, 1960, Dr. Reddy instituted a petition in the City Civil court, Madras, under S. 13 (1) of the Hindu Marriage Act 25 of 1955, for a decree for divorce on the allegations that Kistamma "had subjected him to unspeakable acts of cruelty" and "had made his life miserable", that she left his protection on 17/11/1957 ; that the had since then been "openly living in adultery" ; and that she had "given birth to an illegitimate child on 23/12/1958". The petition was restated by Kistamma. She denied that she was guilty of cruelty to the petitioner; she also denied that she was living in adultery and assorted that the child born to her was the child of Dr. Reddy. She claimed that she had not deserted her husband and that she went to her "father's house for delivery" in August, 1958.

(2.) At the trial Dr. Reddy admitted that he was unable to establish that Kistamma was living 'in adultery. But relying solely upon the groundthat Kistamma had given birth to a child in December, 1958, he claimed an order of judicial separation under S. 10 (1) (f) of the Hindu Marriage act. The Trial Judge held that it was not proved that Kistamma left the matrimonial home on 17/11/1957, or that her child was an illegitimate child. The petition was accordingly dismissed. The order was confirmed in appeal to the High court of Madras. Jagadisan, J. , agreed with the decision of the Trial court. But in an appeal under the Letters Patent, a division bench of the High court set aside the decree, holding that Kistamma left the matrimonial home on 17/11/1957, and since it was common ground that after Kistamma left the matrimonial home Dr. Reddy had no access to her, the child born in December, 1958, was the result of adulterous inter course. Against the decree granting judicial separation Kistamma has appealed to this court with special leave.

(3.) Normally in an appeal with special leave) this court does not enter upon a reappraisal of the evidence. But, in our judgment, this is one of those exceptional cases in which departure from the normal practice is called for. The High court was of the view that the Trial court and Jagdisan,j. , had misread the evidence and had on that account reached an erroneous conclusion. Counsel for Kistamma contends that the High court had misread the evidence and has relied upon several matters of importance which were never deposed to by the witnesses.