RAJENDRA AGRAWAL Vs. SHARDA DEVI AGRAWAL

JUDGEMENT

(1.) THE husband/Appellant has preferred this appeal against the judgment and decree passed by the Court below thereby dismissing the suit by him under Section 13 ( ) (i) and 13 (1) (ia) of the Hindu Marriage Act, 1955, (hereinafter referred to as 'the Act').

(2.) THE facts leading to the filing of this appeal fall within a short compass. The Petitioner/husband filed the suit against his wife -Defendant -Respondent, alleging that she is a cruel and characterless woman having il(sic) cit relations with many persons; and with one Mohan Shivhare in particular. The other ground taken was that of cruelty and the learned Court below found that the Plaintiff could not succeed on both the counts in proving the suit allegations against the Respondent/Defendant and as such dismissed the suit, by the impugned judgment. Shri K.K. Lahoti. appearing for the Appellants contends that the impugned order is bad in law, mainly based on the mis appreciation of document Ex. P -1 executed by the Respondent/Defendant Smt Sharda Devi, wherein though she admitted her illicit relationship with Mohan Shivhare but promised to be of good character in future. Despite the execution of the document Ex. P -1 when she did not improve and was further found meeting the said Mohan Shivhare the suit for the decree of divorce as contemplated under Section 13 (1) (i) and 13 (1) (ia) was filed by the Appellant. To support his contentions, the Appellant examined himself as PW.1, one Ramesh Chandra an attesting witness of document Ex. P -l, as PW. 2 and Jagdish, a teacher as PW. 3, in whose house the Appellant and the Respondent had resided and the house was got vacated by witness Jagdish PW. 3, because of the above described illicit activities of the Respondent.

(3.) THE fact, which has mainly weighed with the learned trial Court with regard to document Ex. P -1 was an overwriting on the date of execution of the document, making it as 27 -10 83, instead of 24 -10 -83 and on this count, the learned trial Court found that the document was suspicious. This document is on a stamp paper, which itself was purchased on 27 -10 -83. The learned trial Court failed to take note of this date and has discussed the over writing in the light of the amendment made by the Plaintiff in the plaint, correcting the date of the execution of document from 24th October to 27th October, 1983, assuming that it was made after the objection in the written -statement and treated it, an after thought affair. While discussing the evidence and the circumstances in this regard, the learned trial Court lost sight of a very important material circumstance that prior to the filing of present suit a notice Ex. P -2 dated 24 -9 -84, was served by the Plaintiff/Appellant on his wife mentioning therein the date of execution of document Ex. P -1 as 27 10 -83 and as such the correction in the plaint by way of amendment could not be the result of the objection in the written -statement. The over -writing on the date of execution could not assume such material importance so as to discredit the document and also the Plaintiff's whole evidence. On the document Ex. P -1, her signatures have been admitted by the Respondent. This document is also stated to be bearing the signatures of her brother Mahesh Chandra Bansal as an attesting witness.