PREMLATA VITHAL KETKAR Vs. VITHAL DHONDIRAM KETKAR

JUDGEMENT

(1.) THIS second appeal is preferred against the judgment and decree dated 19th of June, 1985 passed by the District and Sessions Judge, Ratnagiri in Civil Appeal No. 133 of 1981 preferred against judgment and decree passed by the Civil Judge Senior Division, Ratnagiri dated 4th of July, 1981 in Marriage Petition No. 313 of 1979. By the aforesaid judgment and decree, the lower Appellate Court allowed the appeal and passed the decree of dissolution of marriage in favour of Respondent No. 1.

(2.) FEW facts which are necessary to dispose of this second appeal are as under: Respondent No. 1 - husband in this case filed Marriage Petition No. 313 of 1979 for divorce under Section 13(1) of the Hindu Marriage Act, 1955 against the present Appellate -wife on the ground of adultery. In the aforesaid Marriage petition, petitioner -husband i. e. Respondent No. 1 also made Respondent No. 2 as party opponent, who indulged in adultery. The trial Court by its judgment and decree dated 4th of July, 1981 dismissed the Marriage Petition on the ground that Respondent No. 1 - husband had not proved the act of adultery as against the present appellant and Respondent No 2. The trial Court held that the writing given by the appellant wife more particularly Exhibits 32 and 33, were under coercion and therefore, cannot be relied upon. The trial Court held that taking into consideration the overall facts and circumstances the allegations of the Respondent No. 1 - husband are not, probable. Against the said judgment and decree passed by the trial Court, the Respondent No. 1 preferred an appeal before the District Judge, Ratnagiri, being Civil Appeal No. 133 of 1981. The appellate Court held that the evidence as led by Respondent No. 1 - husband was sufficient to show that the present appellant was in adultery with respondent No. 2 and, therefore, Respondent No. 1 - husband is entitled to get the decree of divorce. Against the aforesaid judgment and decree of the lower appellate Court, appellants -wife has preferred this second appeal.

(3.) I have heard both the sides at length it is the case of the Respondent No. 1 - husband that somewhere in the year 1972 the appellate -wife was bitten by a dog and, therefore, she was taken to Ratnagiri for taking treatment in the Civil Hospital. Respondent No. 1 kept the appellate at the house of his friend Chandrakant Gavali, teacher and asked her to remain there till her treatment was over. It appears that after Respondent No. 1 left Ratnagiri for his village the appellant left the place of this Chandrakant Gavali and started residing in the house of Respondent No. 2 who is the cousin brother of the present Respondent No. 1. There, in the house of Respondent No. 2 , she had immoral sexual relationship with Respondent No. 2. When the said fact of her having immoral relationship with Respondent No. 2 was brought to the notice of the Respondent No. 1, Respondent No. 1 asked for an explanation from the Appellant, wherein the appellant confessed in writing that she has sexual intercourse with Respondent No. 2 during her stay at Ratnagiri. The aforesaid writing is Exhibit 32 dated 23.1.1973. The husband also relied on the contents of an inland letter Exhibit 33 produced by appellant -wife. The said Exhibit 33 is a letter written by appellant -wife to Respondent No. 2 and it is dated 2 -2 -1937. On the basis of this letter and the depositions, the lower appellate Court came to the conclusion that the evidence on record sufficiently shows that the appellant -wife was in adultery with respondent No. 2 during her stay at Ratnagiri and therefore, passed the decree of dissolution of marriage under Section 13(1) of the Hindu Marriage Act, 1955. It is this finding, which is the subject -matter of challenge in this second appeal.