AZAD KUMARI Vs. SATYA PRAKASH

JUDGEMENT

(1.) THIS is a wife's second appeal from a decree of divorce passed against her by the Court of the Civil Judge, Etah, on the 4th July, 1980. on the petition of the husband, who is the respondent here, which was confirmed on first appeal by the judgment dt. 11th Aug. 1982 of the court of the Second Additional District Judge, Etah.

(2.) THE parties were married in 1969, According to the petitioner-husband, the appellant-wife lived with him for two months after the marriage, but came away thereafter to her maternal home with her ornaments and clothes and has not returned to him ever since; that the appellant-wife had thus deserted the petitioner-husband without any cause and had acted very cruelly by not performing her marital obligations and by not cohabiting with him This is followed by the allegations that the appellant- wife had never regarded the petitioner as her husband nor did she ever conduct herself as his wife; that the petitioner-husband had come to know that the appellant had illicit connections with another man since before the marriage and this fact was concealed from him, and the petitioner's consent to the marriage was thus procured by fraud inasmuch as he would have never consented to his marriage with the appellant it he had known this fact. THE petition proceeds on to allege that even after marriage the appellant was maintaining her illicit connection with that man. It was then alleged that about three years ago the appellant gave birth to a child and only a few months ago she had her second child aborted; that she was living in adultery and had sexual intercourse with a third person, and that the petitioner was entitled to a decree of divorce against her. THE further allegations made in the petition are that the petitioner did not beget any child on the appellant; that the petition was not collusive; that the petitioner had not condoned the appellant's acts; that the parties had no joint property and that the cause of action for the suit arose on the 16th Feb. 1977 which was the date of appellant's last refusal; and that the cause of action arose at Etah where the parties last resided together. THE subject-matter of the suit was valued at Rs. 1,000/ -. THE alleged adulterer was, however, not named and not made a co- respondent with the wife, nor did the petitioner apply for being excused from doing so under R. 6 of the Hindu Marriage and Divorce Rules, 1956.

(3.) THE Trial Court found on the third issue that the appellant was guilty of adultery, that is to say, she has had sexual intercourse after the marriage with a person other than her husband. On issue No. 1, the Trial Court found that the appellant had not deserted the petitioner. On issue No. 2, it found that the appellant was living in adultery since before the marriage and the petitioner was defrauded but such a fraud was not a ground for divorce under Section 13, and therefore, the finding had no effect on the case. On issue No. 4, the Trial Court found that the petitioner had not treated the appellant with cruelty; and finding, on issue No. 5, that the petitioner was entitled to the relief claimed, decreed the suit for divorce.