BHIKABAI Vs. ARVIND BHALCHANDRA TAMBOLI AND ANOTHER

JUDGEMENT

(1.) This is an appeal filed by the original respondent wife against the order passed by the learned single Judge of this Court in First Appeal No. 764 of 1930 decided on 2nd Dec. 1981 allowing the appeal filed by the appellant husband and granting a decree for divorce dissolving the marriage of the petitioner husband and original respondent No. I wife. It is an admitted position that the marriage of respondent No. 1 husband and the appellant wife took place on 13th of vlay 1973. There-after the petition for dissolution of marriage was filed by the husband on 2nd of July 1976, but for one reason or other it could not be heard earlier and came to be assigned to the learned Assistant Judge in the year 1980. This petition for dissolution of the marriage was filed on the ground that after the solemnization of the marriage the wife had voluntary sexual intercourse with respondent No. 2 Nimba, viz. the person other than her spouse. The allegations made in the. petition in that behalf were denied by the wife. It appears from the record that in support of his case the petitioner husband examined himself, Dr. Dwarkabai Thakare, Prabhakar Kulkarni and P.S.I. Shivaji Kolge. Apart from this oral evidence the petitioner husband placed strong reliance upon Exhibit 116, affidavit sworn by wife Bhikabai, Exhibit 174, the statement recorded by P.S.I. Kolge and Exhibit 113, tape-recorded version of the conversation of the appellant and respondent No. 1. On the other hand the appellant wife examined herself and respondent No. 2 Nimba filed a written statement denying the allegations made in the petition, but he did not enter into the witness box nor he examined anybody in his defence. After appreciating all the evidence on record, the trial Court viz. the learned Assistant Judge, Dhule, disbelieved the evidence adduced on behalf of the petitioner husband and therefore dismissed the marriage (Divorce) petition with costs. Biting aggrieved by this judgment and decree the respondent husband filed an appeal before this Court, which was heard by Desai J. and was decided by his judgment dated 2nd of Dec. 1981. Disagreeing with the view taken by the trial Court, the learned single judge of this Court held that the husband has proved his case of adultery and therefore granted a decree of dissolution of marriage in his favour. However, the learned single Judge came to the conclusion that the child born on 11-11-1976 was not an illegitimate child and therefore to make a provision for his maintenance the learned single judge passed an order granting maintenance at the rate of Rs. 100.00 per month. The learned Judge also directed payment of a lump sun of R. 3000.00 towards arrears of maintenance. As already observed it is against this appellate judgment and decree that the present letters patent appeal has been filed by the appellant wife.

(2.) Shri Gumaste, learned Counsel appearing for the appellant con-tended before us that the learned single judge committed an error in accepting the evidence of the tape-recorded version, which according to the learned Counsel was wholly untrustworthy and tainted one. He also contended that the learned judge also committed an error in accepting the evidence of P.S.I. Kolge as well as the confessional statement of the wife recorded by him. According to him there is intrinsic evidence on record to indicate that the said statement was neither voluntary nor trustworthy. It is further contended by him that to get a decree of divorce respondent husband in the present case has manufactured and concocted false evidence and the learned single judge has committed an error in believing the said concocted and manipulated evidence. He also contended that assuming that respondent husband has succeeded in proving that the wife had voluntary sexual intercourse with any other person after their marriage, still it should have been held by the learned single Judge that the said act was condoned. He also contended that the learned single judge has not properly construed the pleadings of the parties and particularly that of the husband which included an admission regarding condonation of the marital offence.

(3.) On the other hand it is contended by Shri Aggrawal, learned Counsel appearing for the husband that the finding recorded by the learned single judge is based on the evidence and the material on record and there-fore is not open for challenge in this Letters Patent Appeal. He also con-tended that the learned single judge was right in accepting the evidence of the husband which gets substantial corroboration in Exhibit 118, tape-recorded version and Exhibit 171, the statement recorded by P.S.I. Kolge. He also contended that in clearest terms the husband has stated in his deposition before the trial Court that he has not condoned the slid offence of adultery. This is also clear from the subsequent conduct of the parties. Therefore, the learned single Judge was wholly justified in granting a decree for divorce. Shri Dalvi, learned Counsel appearing for petitioner Vaishali Arvind Tamboli in Civil Application No. 2974 of 1982 contended before us that after expiry of the period of limitation for filing the Letters Patent Appeal the husband in this case has married h-r (Vaishali) on 3rd of Jan. 1932. The said marriage is perfectly legal, and valid in view of the provisions of Sec. 15 of the Hindu Marriage Act. A daughter is also born to the applicant Vaishali, second wife and husband Arvind on 18th Jan. 1983. In view of this subsequent event this Curt should not entertain the present Letters Patent Appeal. He also contended that Sec. 28 of the Hindu Marriage Act does not include in its import a letters patent appeal which is not an appeal provided by the general law viz. either by the Hindu Marriage Act or the Code of Civil Procedure. In the alternative it is contended by Shri Dalvi that in any case this Court should not interfere in this letters patent appeal at this late stage when certain rights are created in the second wife, as well as the newly born child. This position is seriously disputed by Shri Gumaste, who has placed strong reliance upon the decision of the Supreme Court in Smt. Chandra Vs. Avinash Prasad, A.I.R. 67 S.C. 581 and has contended that even a letters patent appeal is included within the import of Sec. 15 read with Sec. 28 of the Hindu Marriage Act.