RAM SEWAK Vs. SMT. PUSHPA DEVI

JUDGEMENT

(1.) THIS First Appeal by the husband is directed against the dismissal of his petition for divorce under Section 13 of the Hindu Marriage Act, 1955. The ground, on which divorce was sought, is that the respondent, his wife, has had voluntary sexual intercourse with a person other than him. That other person was not named but on an application (27 -Ga) made under Rule 6(d) of the Hindu Marriage Rules, 1956, supported by an affidavit (28 -Ga), the petitioner was permitted to file the petition without impleading the alleged adulterer. There is a vague and general allegation that the respondent was not sexually satisfied with the petitioner and that she had illicit connection with persons other than him. There is no specific allegation of any fact or occasion when the respondent might have had sexual intercourse with any person other than the petitioner. The only basis, on which divorce was claimed on the aforesaid grounds, was the receipt of information in February 1980, that the respondent had given birth to a son in the second week of January, 1980, although there was no sexual intercourse between the petitioner and the respondent after November, 1978, when he had left for training at Polytechnic, Roorkee. It was added that the petitioner returned home from the training at Roorkee in the month of June, 1979, but there was no sexual intercourse or bodily contact between him and the respondent from June, 1979 to August, 1979, when the respondent left the petitioner's home, on discovery by the petitioner's mother that the respondent was pregnant.

(2.) I might add that although the petitioner's counsel first stated in the 20th August, 1981 that the first hearing of the suit, that is, the day on which issues were framed, that "divorce is sought on the ground of cruelty and adultery" in his subsequent statement made the same day, it was stated that "divorce is also sought on the ground that the respondent had sexual intercourse voluntarily with some other person and not on the ground that she is living in adultery."

(3.) THE petitioner had also complained of cruelty against the respondent and the only allegation in the petition in support of it was that the respondent's complaint against him was that he was not fully developed and was unable to give her physical happiness and that complaint of the respondent against the petitioner has continued, with the result that the petitioner was living under great mental torture. An issue was also framed raising the question whether the respondent has treated the petitioner with cruelty as alleged, but was answered against him in the negative with the observation that he had utterly failed to prove that the respondent ever treated him cruelly. On the other hand, the trial Court found that it was the petitioner who had treated the respondent with cruelty. Be that as it may, since the respondent has not asked for any relief, the finding is of no consequence so far as this case is concerned.