MAHESH KUMAR SHRIVASTAVA Vs. SHOBHA SHRIVASTVA AND ANOTHER

JUDGEMENT

(1.) The appellant husband has preferred this appeal under section 28 of the Hindu Marriage Act, 1955, against the rejection of his petition under section 13(1)(i) of the Act for divorce on the ground that the respondent No. 1 conceived because of voluntary sexual intercourse with the respondent No. 2.

(2.) It is not in dispute that the appellant was married with respondent No. I according to Hindu rites on 18th June 1975 in village Machhiwada, Tahsil Amarwada District Chhindwara. After the marriage the respondent No. 1 started living in the house of her father-in-law at Lakhandon in Seoni District. At the relevant time the appellant was working in Damua Coal Mines, Tahsil & District Chhindwara. The appellant's case is that in Dec. 1976 the respondent No. I expressed her desire to go to her parents' place and so she was taken there by Basodilal (P.W. 4), maternal uncle of the appellant. The respondent No. 1 lived with her parents in Machhiwada till 10-7-1977. On that day she suddenly came to Damua and stayed in the house of her relation Hariprasad (PAV. 2). On the next day she shifted in the house of Bhaskar Rao (P.W. 3), a friend of the appellant. As soon as the appellant learnt that she has come to Damua, he asked his younger brother Dilip Kumar to take her to Lakhnadon. At Lakhndon the respondent No. 1 started keeping indifferent health and there was suspicion that she had conceived. So in Sept. 1977 she was got examined by Dr. Smt. Parakar (P.W. 6) who after examination opioned that respondent No. 1 had 5 month's pregnancy. When the appellant came to Lakhnadon during Diwali holidays he learnt about it and he was surprised about the conception of the respondent No. 1 as he had no access to her from Dec. 1976. In July 1977 also, when she came to Damua the appellant had no access. The appellant learnt that in Machhiwada the respondent No. 1 had developed illicit intimacy with the respondent No. 2 who was her cousin. The respondent No. 1 was questioned in the presence of neighbourers and she admitted that she has conceived through the respondent No. 2. The respondent No. 1 was then reached to her parents' place on 31-1-1978. The appellant, therefore, claimed divorce on the ground that the respondent No. 1 had voluntary sexual intercourse with the respondent No. 2.

(3.) The petition was opposed by both the respondents. According to the respondent No. 1, she did not come to her parents' place in Dec. 1976 but she reached there in May 1977. On 10-7-1977 she came to Camuadanda-stayed with the appellant and lived with him for about a week. The appellant had cohabited with her there. The appellant also learnt that she has conceived. She was then taken to Lakhnadon but there she was being ill-treated by her in laws as they father was unable to fulfil. (Sic.) So she was reached to her parents' place. She had never any sexual intercourse with the respondent No. 2. The respondent No. 2 in his written statement submitted that since 1975 he is not living in Machhiwada but was in service outside and he had no opportunity to meet the respondent No. 1.