H T VIRA REDDI Vs. KISTAMMA

JUDGEMENT

(1.) I have perused the judgment of my learned brother with respect, I entirely agree with his reasonings and conclusions. The only justification for my writing a separate judgment is (as Lord Campbell observed in Piers v. Piers, (1849) 2 HL cas 331 = 9 ER 1118 observed at page 1136), the tremendous responsibility that is cast upon us while rendering this decision which will have grave and serious consequences upon the status of the child. We have bestowed anxious and careful thought over all the aspects of the matter and have reached the clear conclusion that applying all the standards of strict proof beyond all reasonable doubt, as insisted in all matrimonial cases, the appellant had made out a case for judicial separation under Section 10 (1) (f) of the Hindu Marriage Act 1955 (referred to herein as the Act) i. e. on the ground that the respondent had had sexual intercourse with some person other than the appellant The prayer for a decree of divorce under Section 13 (1) (i) of the Act on the ground that the respondent was living in adultery was not pressed before us. In a proceeding under Section 13, for a decree of divorce, on the ground of adultery, it is necessary that the course of immoral conduct must be more or less continuous and isolated lapses and acts of immorality would not suffice. On the other hand, for the relief of judicial separation under Section 10 (1) (f), the party aggrieved will be entitled to that relief even if he proves one single act of infidelity on the part of the wife, fihe having had sexual intercourse with a stranger. In the instant case, the attempt of the appellant has been to establish beyond all reasonable doubt that the wife severed her connections and left the appellant once for all on 17-11-1957 after a serious quarrel, that thereafter, there had been no kind of access whatever between the couple and that he had not even looked at the face of the respondent, with the result, that the female child which was born to the respondent on 23-12-1958, 402 days after the final severance of ties and separation, was born only as a result of the respondent's sexual intercourse with somebody other than the petitioner, the appellant herein. In other words, the appellant is not relying upon any evidence either of himself or of other witnesses having actually seen the respondent having sexual intercourse with a third party. He solely relies upon the single fact of the respondent giving birth to a female child after an interval of 402 days of the separation of the severance of ties as husband and wife. The only crucial question that arises is whether the respondent left Madras and the appellant once for all, on 17th November, 1957, and settled down with her parents in her native village near Bellary.

(2.) AS against this (omitting her case about the several episodes in her married life during her stay with the husband) the rival version of the respondent is that she became pregnant through the appellant in Ugadi, middle of March, 1957, that this pregnancy was disclosed to R. Ws. 3, 4 and 5 on 30-6-1958, when they visited the respondent and the appellant at the latter's bungalow in Poonamallee High Road, that R. W. 4 gave her Tirupati Prasadam, that the respondent's brother Thamma beddi (R. W. 6) and his wife came to Madras in August 1958 along with presents as is customary in the case of first pregnancy, stayed with the respondent for two or three days and took her home to their native place, that the confinement took place in a Nursing Home in Bellary, that during her stay away from Madras, all the relations of the appellant i. e. the father of the appellant, his brothers and their wives, cousin, etc. , took active interest as a rejoicing event, visited the respondent and gave her the usual presents and also participated in the Namakaranam ceremony of the child. To prove, that she was in Madras with her husband in June 1958. (undoubtedly at a time when she had become pregnant) besides her own evidence, the respondent had adduced the evidence of R. Ws. 3. 4 and 5 and her brother Thamma Reddi, r. W. 6. The mental attitude and this conduct of the members of the family of the appellant during the period of pregnancy, at the time of the delivery in the Nursing home at Bellary and at the time of the Namakaranam ceremony are also relied upon by the respondent as strong background and powerful surrounding circumstances tending to the inference that the pregnancy and the child birth was considered by all of them as an event for rejoicing and great jubilation and that the members of the family would not have assumed this cordial attitude, free from any suspicion or misgivings about the pregnancy and the child birth. It is obvious, that if this case of the respondent is true, the appellant has no case.

(3.) THIS identical aspect has also been considered in the decisions of other High courts. In Venkataramayya v. Kesavanarayana, a Single Judge of the High Court in a first appeal reversed the decision of the trial Judge. In the letters Patent appeal before the Bench, the objection was raised that the Letters patent Appeal was virtually in the nature of a second appeal and the Bench was governed by the limitations contained in Section 100, C. P. C. Umamaheswaram, J. , delivering the judgment on behalf of the Bench overruled this objection holding that there was no rule of law that a finding of fact arrived at by a Single Judge of the High Court in a first appeal is not open to challenge under Clause 15 of the letters Patent and that the Letters Patent appeal is in the nature of a rehearing of the appeal. Clause 15 being differently worded from Section 100, C. P. C. The inhibition in Section 100, C. P. C. cannot be imported into an appeal under Clause 15, Letters Patent. An earlier decision of the Patna High Court in Ramsarup Singh v. Muneshwar singh, took the view that Section 100, C. P. C. would apply to a bench hearing a Letters Patent Appeal under the corresponding clause, Clause 10 of the Letters Patent Patna. But later decisions have taken a different view on the same lines as the Andhra Pradesh High Court In Jugal Kishore v. Union of India, it was pointed out by the Bench that when the very same clause in the Letters Patent provides for an appeal from the decision of a Single Judge exercising original jurisdiction as well as exercising appellate jurisdiction it was impossible to imagine that in one case the Bench will have jurisdiction to interfere on facts, but in the other, the Bench having no jurisdiction to interfere on facts, the sole scope of the hearing in appeal being confined to mere questions of law. It was also observed that it is a well-established principle of law that unless the statute otherwise provides, an appellate Court shall have the same powers and jurisdiction of dealing with all questions either of fact or of law arising in the appeal before it as that of the Court whose judgment is the subject-matter of scrutiny in the appeal. It was further emphasised therein that it is only because of the special provision contained in Section 100, C. P. C. that in second appeals, there are well defined restrictions and prohibitions with regard to the investigation on facts. The observations to the contrary of Mahapatra, J. , in the earlier decision of the Patna High Court, in , were distinguished as in the nature of obiter dicta.