A Vs. B

JUDGEMENT

(1.) This appeal arises out of the matrimonial petition filed by the appellant (original petitioner) in the Bombay City Civil Court at Bombay against his wife, the 1st respondent (original respondent) for divorce on the grounds of adultery alleged to have been committed by her with the respondents Nos. 2 and 3 (original co-respondents Nos. 1 and 2) and in the alternative on the ground of cruelty. The appellant husband had also earlier filed an infructuous petition for divorce. The 1st respondent wife however did not emerge unscathed though she succeeded in the earlier petition.

(2.) The petitioner had filed the earlier petition being M. J. Petition No. 1973 of 1972 on the same grounds as the present petition. The co-respondent therein was one Ram Ahuja and not the present respondents Nos. 2 and 3. He lost the said petition in the trial Court. He filed an appeal to this Court being First Appeal No. 599 of 1979, which was dismissed by me on 5/6th August, 1981. He lost the said appeal on the ground that out of the several incidents, only one incident of the 1st respondent and the said Ram Ahuja having been found in the family room of a restaurant can be possibly said to have been proved and even on the assumption that the same was proved, no inference of adultery can be drawn and as regards cruelty there was no evidence of any danger to the health or apprehension of any danger to the health of the appellant which is the requirement now imposed by law as decided by Division Bench of this Court in (Madanlal Sharma v. Santosh Sharma) L.P. Appeal No. 28 of 1980 by Rege & Kanade, JJ., dated 10th March, 1981.

(3.) During the pendency of the above petition, the appellant again engaged another detective agency and based on the reports thereof, filed the present petition. An application was made for amendment of the earlier petition to include the new facts, which was rejected by the trial Court as well as the Appellate Court.