LAWS(BOM)-1987-11-47

MR. P. Vs. MRS. P. AND MR. R.

Decided On November 27, 1987
Mr. P. Appellant
V/S
Mrs. P. And Mr. R. Respondents

JUDGEMENT

(1.) THIS judgment disposes of L.P.A. Nos. 14 and 15 of 1983. Mr. P is the common appellant. Mrs. P who is the first respondent in both appeals is his wife. The husband had filed two petitions against her under the Hindu Marriage Act for dissolution of their marriage on the ground of adultery and cruelty. The first one was filed in January 1973, with one Mr. R as the co -respondent. The second petition was filed in July 1976. Here are two co -respondents, Mr. J., Mr. M. The two petitions were tried separately by two Judges of the Bombay City Civil Court, Shri R.V. Joshi and the late Shri Makhijani, Both came to be dismissed. The learned single Judge (Mody, J.) has dismissed the two appeals preferred by the petitioner. Now he has preferred these two Letters Patent Appeals before this Court.

(2.) IT is not in dispute that the marriage of the appellant and the first respondent (hereafter generally referred to as "the respondent") was solemnised according to Hindu rites on February 14, 1943 at Bhavnagar. They are at present about 73 years and 65 years old respectively. Ever since the marriage, they have been residing at Bombay. They have three sons and one daughter. The eldest issue K - a son - is now about 44 years old. The youngest son Y is about 30. The appellant is a double Graduate in Arts and Law and a Sales Tax practitioner by profession. There were no problems till 1964 or so. The appellant's case is that at about that time he noticed coldness and indifference developing in respondent's treatment to him. This conduct aroused his suspicion about her fidelity. In 1969 he arranged a watch on her movements with the help of certain private detectives. Although evidence was adduced in the first petition on as many as five incidents, ultimately the trial Court found that the appellant had succeeded in establishing just one incident of November 30, 1971 (that too, partly). In the other petition the trial Court held that the appellant had met co -respondent J. on four occasions and co -respondent M. on two occasions. It was, however, held in both matters that the facts proved were not sufficient to establish the plea of adultery. So far as the question of cruelty was concerned, the trial Judges held that according to the law then obtaining, it was necessary for the appellant to establish that the conduct of the wife was of such a character as to cause danger to his life, limb or health - -bodily or mental - or to give rise to a reasonable apprehension of such a danger. As this particular ingredient remained unproved, the trial Judges negatived the plea of cruelty as well. Both petitions came to be dismissed and the learned single Judge (Mody, J.) confirmed these decisions in the two First Appeals Judgment of Mody J. is reported in : AIR1983Bom8 preferred by the appellant.

(3.) AFTER the advent of the Amending Act, the appellant took out a Chamber Summons in the first petition for amendment of plaint. He sought to rely on the additional ground of 'cruelty' for dissolution of marriage. He also sought to rely on certain activities indulged in by the wife subsequent to the filing of the first petition. The amendment was granted partly and the appellant was allowed to plead facts only prior in time to the filing of the first petition. He was asked to file a separate petition, based on subsequent facts. This order was upheld by the High Court in revision. It was in these circumstances that he filed the second petition in July 1976.