SHYAM NARAYAN SRIVASTATA Vs. SHAIL SRIVASTAVA AND ANOTHER

JUDGEMENT

(1.) THIS appeal is directed against the order dated 31-3-1973 passed by the 1st Additional District Judge, Varanasi in Hindu Marriage Petition No. 27 of 1969 refusing to pass a decree of judicial separation under section 10 of the Hindu Marriage Act, 1955 (Act 25 of 1955) here­inafter referred to as the Act.

(2.) THE allegations in the petition were that the petitioner-appellant married respondent No. 1 Smt Shail Srivastava on 10-5-1952 at Varanasi according to Hindu Dharma Shastra and custom prevalent in the community of the parties. The respondent No. 1 was at that time residing with her parents at S-12/16, Pearia Pokhari, Varanasi. After marriage she came to the house of the appellant and started living with him as his wife and a son was born to her from the appellant on 17-9-1953. The respondent No. 1 was very desirous of further education and appreciating her desire the appellant bore all the expenses of her education and respondent No 1 gradually acquired the degrees of M. A. and B. Ex. in the years 1956 and 1958 respectively. There­after the appellant in order to satisfy his wife's desire for doing service got her employed as a teacher in Kanya Kumari Vidya Mandir Inter. Collge, Varanasi. This according to the allegations in the petition was an unfor­tunate turning point in their lives and the education as well as the emoluments which came to respondent No. 1 as a result of her employment went into her head and she lost interest in the appellant and his household affairs and began passing much of her time in the College and with some of her friends. Gradually the appellant's life became miserable and all the felicity and comforts of home and conjugal life vanished. The respondent no. 1 began visiting some undesirable persons and used to return late in the night and in spite of the appellant's admonitions she did not mend her ways and shed her associations with such persons. Crisis came when she actually went away with her most favourite person, namely Lalit Mohan Srivastava, respondent No. 2, residing at S-12/80, Pearia Pokhari, Varanasi, Lalit Mohan was the husband of her elder sister. This incident gave rise to a great scandal and not only was the appellant much perturbed by it but his family prestige was also at stake. He lodged a first information report with the police against Lalit Mohan on 24-4-1960. However, it is alleged that respondent No. 1 was found out at the residence of Lalit Mohan and was brought back to the appellant's house and on intervention of some of his relations he was prevented from taking any further action in the matter. The respondent No. 1 proved incorrigible and persisted in her objectionable activities. The final breach came when in June 1966 she deserted the appellant and without his consent she left his house bag and baggage and started living with Lalit Mohan and did not return to the appellant. The appellant served a notice datted 12-5-1969 on her severing the relationship of husband and wife. Still, however, the notice gave her a week's time to return to him and he willing to lead a normal happy marital life with him. She did not return when the Petition No. 27 of 1969 was filed in the court of the 1st Additional District Judge, Varanasi on 28/30-5-1969. The petition also contained the allegation of adultery against respondent No. 1 (which was introduced by a subsequent amendment) and it was averred that the said respondent had been found indulging in sexual intercourse with Lalit Mohan Srivastava even before and after her return from his house in the first instance and that Lalit Mohan Srivastava used to visit the residence of the appellant on the pretext of his being a relation with the object of carrying on illicit affair with her.

(3.) AN analysis of the petition shows that it was founded on two allegations, namely desertion and what may be loosely called adultery. It may be noted at the every outset that adultery or living in adultery as normally understood is not a sufficient ground for allowing judicial separation under section 10 of the Act. The requirement of the section is, as provided in clause (f) of sub­section (1) of section 10, that either party to a marriage, whether solemnised before or after the commencement of this Act may present a petition to the District Court praying for a decree for judicial separation on the ground that the other party has, after the solemnisation of the marriage, had sexual inter­course with any person other than his or her spouse. It is, therefore, clear that nothing short of proof of actual sexual intercourse after the solemnisation of marriage with a person other than the spouse is sufficient to entitle the petitioner to judicial separation. It appears that with this end in view an amendment application was filed by the appellant later and allowed on 12-8-1972 whereby an allegation was added to the effect that respondent No. 1 had sexual intercourse with respondent No. 2 and it was submitted on behalf of the respondents that since initially the petition did not contain any such allegation as required by clause (f) of sub-section (1) of section 10, this ground which was subsequently added should be excluded from consideration and the petition must be dismissed so far as that allegation was concerned. It is true that literally in terms of clause (f) an allegation to that effect had not been made initially in the petition, nevertheless it has never been endorsed by judicial opinion in this country that pleadings should be examined in a spirit of carrying criticism. So long as the substance of the relevant grounds is traversed in the pleadings and the parties go to trial with full awareness of the allegations made against each other and also lead evidence in accordance with the same, no prejudice can be said to have been caused and a plea cannot be ruled out from consideration merely because it was not expressed in literal or categorical terms. In fact, after the amendment had been allowed, this ground must be deemed to have been woven into the very texture of the petition and no adverse inference could be drawn against the appellant on that ground. It cannot be denied that substantially, though indirectly, such allegation had already been made even originally in the petition when a reference was made to the close intimacy between respondent No. 1 and the respondent no. 2, her free association with him which had resulted in the lodging of the first information report with the police on 24-4-1960, which fact was expressly adverted to in the petition. It was observed in B. Prabhu Narain Singh and others v. B. Jitendra Mohan Singh and another(1), that the court must take the pleadings in the case as they stand and leave out of consideration the pleadings as they stood before the amendment. In Warner v. Samposon(2), it was laid down that a writ as amended became for that purpose the original comencement of 'the action and that once the pleadings were amended that which stood before the amendment was no longer material. In my opinion technicalities must not be allowed to stand in the way of doing substantial justice between the parties and the ground which in essence is already covered by the pleadings does not suffer in force if the parties chose to make it more explicit and better by subsequent pleadings. I, therefore, proceed to examine the two grounds of the petition, namely, desertion and what may for the sake of convenience be called adultery.