S V SUHASINI DEVI Vs. PADMANABHAN MADHAVAN

JUDGEMENT

(1.) This appeal by the respondents is against the ex parte decree dissolving the marriage between the petitioner and the first respondent passed by the lower court under S.13 of the Hindu Marriage Act, 1955.

(2.) The petitioner had married the first respondent on 6-6-1976. A petition under S.13 of the Act was filed on 29-10-1980 for dissolution of the marriage on the ground that the first respondent wife had after solemnization of the marriage voluntary sexual intercourse with the second respondent her sister's husband. Both the respondents filed written statements denying the allegation of adultery. The case was posted from time to time and on 12-1-1984 it was posted for trial on 22-2-1984. The case was however, advanced to 4-2-1984 on an oral representation made on behalf of the petitioner (we do not see any petition to advance the trial of the case among the records sent up to this court). The respondents were absent on 4-2-1984. The power of attorney holder of the petitioner was examined as PW-1. Arguments on behalf of the petitioner were heard on 4-2-1984 itself and the case was posted for orders on 1-2-1984 The court below on 8-2-1984 passed a decree dissolving the marriage between the petitioner and the first respondent on its finding that the first respondent is guilty of adultery after the solemnization of her marriage "with the petitioner. The only evidence adduced in the case is the oral evidence of PW-1 the power of attorney holder of the petitioner. The finding of adultery is based entirely on the evidence of Pw-1.

(3.) The respondents filed this appeal on 26-5-1986 long after the period of 30 days for an appeal provided for under S.28(4) of the Act. The appeal was accompanied by a petition C.M.P. 11164 of 1986 to condone the delay in filing the appeal. A learned Judge of this court by order dated 12-8-1987 after hearing both parties condoned the delay and the appeal was taken to file. In the counter affidavit filed in C.M.P. 1739/1988 for stay of operation of the decree, the petitioner husband has averred that he had on 20-12-1985 married one Omana and a male child was born to Omana on 15-11-1986. Ext. R1 a) produced along with the counter affidavit is the certificate of marriage issued by the local Registrar of Marriages.