PETER MASIH Vs. ANGLLINA MASIH

JUDGEMENT

(1.) This first appeal is directed against the judgment and order of the Additional District Judge, Delhi dated 4th July 1983 in H.M.A. case No. 98 of 1982 whereby the petition for divorce filed by the appellant-husband under Ss. 10 and 34 of the Indian Divorce Act was dismissed.

(2.) The brief facts are as follows: The marriage of the appellant was solem- nised with respondent No. 1-on 24th June 1970 in accordance with Christian religious rites. After their marriage they resided to- gether at 4 Rajpur Road, Delhi and at St. Thomas Church, Mandir Marg, New Delhi. Respondent No. 1 gave birth to a son named Niraj on 18th October 1971 and a daughter named Renu on 16th July 1973. They con- tinued to live together till 7th May 1976. It is alleged that respondent No. 1 left the matri- monial home on 7th May 1976 and started residing with one Krishan Lal in house No. D-l/78 Krishna Market, Opposite Commu- nity Centre, Lajpat Nagar, New Delhi in one room tenanted premises. The children born from the wedlock of the appellant and respondent No. 1 however continued to live with the appellant.

(3.) It is the case of the appellant that respondent No. 1 was living in adultery with respondent No. 2 Krishan Lal since 7th May 1976 in the Lajpat Nagar premises which fact came to the notice of the appellant in the month of December 1981 and thereafter the appellant filed the petition for dissolution of marriage. The Additional District Judge after considering the evidence adduced by the parties came to the conclusion that the appellant having not proved the adultery was not entitled to a decree of dissolution of marriage. While coming to that decision the Additional District Judge has relied on the Full Bench judgment of this Court in Mrs. C. Howell v. R. S. Howell, AIR 1982 Delhi 328 and has observed that since in the instant case there is no evidence on the basis of which it can be held that the two respondents have commit- ted the adultery, the decree cannot be passed.