ASHOK KUMAR ARORA Vs. PREM ARORA

JUDGEMENT

(1.) This appeal under S. 28 of the Hindu Marriage Act, 1955 is directed against the judgment and decree dated July 18, 1983 of Shri Ravi Kumar, Additional District Judge, Delhi dismissing the petition of the appellant under S. 13(l)(ia) and (ib) of the said Act for the dissolution of marriage.

(2.) The appellant and the respondent were married on November 13, 1970 at Delhi in accordance with Hindu rites. After the marriage, the appellant and respondent lived and cohabited together and out of this wedlock, one male child was born on August 23,1971. Allegations are made in the petition that the respondent had been leading immoral and sinful life before marriage and had been operating as a call girl and that she confessed her past relationship with strangers and deserted the appellant on February 27, 1972 leaving the male child in the custody of the appellant. In para 10 of the petition, it is alleged the respondent confessed about her immoral and sinful life and told the appellant that for several personal and unavoidable reasons it would not be possible for her to live with him any more and perform the duties and obligations of a faithful wife and a devoted mother. In para 11 it is alleged that the respondent told the appellant that in the existing circumstances, it would be in the interest of both the parties and their families if the marriage was dissolved immediately and both of them released from the marriage bond. Then allegations are made in para 13 that the respondent deserted the appellant and her son aged about 5 months oFebruary 27, 1972 and executed a deed of divorce. A copy of the aforesaid deed is attached with the petition. It is averred that the aforesaid deed has been filed only with a view to prove the intention of the respondent to bring cohabitation permanently to an end. The petition was filed on February 1, 1980. In para 18 it is pleaded that there has not been any unnecessary and improper delay in instituting the case, that the case was not filed earlier in the paramount interest of the child who has been critically ill, both mentally and physically, that as the guardianship of the minor who has not completed the age of 5 years, ordinarily remained with the mother, that the appellant who is the natural guardian of the child has delayed the filing of the petition till the boy crossed the statutory age limit with a view to negative the claim of the respondent for the custody of the child in the event of such a claim being made by her and that that was necessary for the proper upbringing of the boy and to ensure provision of proper medical facility. In the written statement, the respondent has denied the allegations of leading immoral or sinful life before and after marriage or operating as a call girl. It is averred that by such like suspicions as are mentioned in the application, the appellant made the respondent's life miserable. Counter-allegations are made that the appellant himself was involved with many girls with whom he used to act in stage dramas. There is vehement denial of the desertion by the respondent. On the contrary, the plea is that the appellant and his brother threw the respondent out in three clothes. It is denied that the respondent executed any divorce deed. The plea is that the appellant in order to create false evidence wrote some papers and got from the respondent her signatures at dagger's point, that he threatened that in case the respondent did not sign the papers, the appellant would finish her and that the respondent has not consented to divorce or to any such deed as alleged in para 12 of the petition. As regards para 18, it is stated that the excuses for the delay are false and cooked up.

(3.) On the pleadings of the parties, the following issues were framed :