SURAJ PARKASH KATAL Vs. SANTOSH

JUDGEMENT

(1.) Shrimati Santosh (the wife) brought a petition on 6th April, 1976 under Section 10 of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act) for judicial separation against Shri Suraj Parkash (the husband). The allegations are that the husband has deserted the wife for a continuous period of more than two years immediately preceding the presentation of the petition and the husband has treated the wife with such cruelty as to cause a reasonable apprehension in her mind that it would be harmful, injurious and dangerous for her to live with him and hence she is entitled to judicial separation under Section 10 (1) of the Act. With the amendment of the Act by Act 68 of 1976, the wife moved an application under Order 6 Rule 17 of the Code of Civil Procedure for converting the petition for judicial separation into one for divorce by virtue of Section 39 of Act 68 of 1976. The amendment application was allowed. The wife in the amended petition seeks a decree of divorce against the husband. Shri S,C. Jain, Additional District Judge, Delhi to whom the petition was entrusted for trial on the appreciation of oral as well as documentary evidence produced on the record held the factum of cruelty as proved and granted a decree of divorce in favour of the wife against the husband with costs by Judgment and decree dated 6th October, 1977. The present appeal by the husband in directed against the said Judgment and decree.

(2.) The husband along with the appeal has also filed an application under Order 41 Rule 27 of the Code of Civil Procedure for. lending additional evidence comprising of the letters exchanged between the parties and swo photographs of the wife. The ground for additional evidence is that these documents could not he traced during the trial of the case in spite of the exercise of due diligence and they became available only after the decition of the case from some oli papers. This is C.M. 2238/77.

(3.) The husband has also moved another application under Section 26 of the Act for custody of the two children, i.e, one son born on 15th May, 1973 and the other son born on 7th October. 1974 during the lawful wedlock This is C.M. 2498/78.