SHIV SHANKAR Vs. PRABHA WATI

JUDGEMENT

(1.) The appellant husband being aggrieved by a decree for judicial separation passed by Shri K. K. Verma, District Judge, a a Chhindwara on 12-3-1982 in Civil Suit No. 28-A of 1980 has come up to this Court by filing the present appeal under section 28 of the Hindu Marriage Act, 1955.

(2.) It is not disputed that the parties were married at village Baregaon, District Chhindwara on 4-5-1978 and thereafter the plaintiff wife lived with the husband on several occasions. It is also admitted that she is staying with her parents from the 3rd week of Dec., 1978. The appellant husband sent notices to the wife on 7-5-79 and 6-6-79 (Exs. P-1 and P-2). It is also admitted that the applicant wife had filed an application under section 13 of the Act for divorce which was dismissed in her absence on 4-8-1980. The case of the applicant wife is that she was not treated properly by the non-applicant husband as she had not carried enough dowry with her. During her stay the husband she claims to have become pregnant and the husband is alleged to have forced her to cause abortion and even gave some tablets for the purpose. She, however, did not agree. It was also alleged that by giving notice the husband had falsely alleged that he was not the father of the child. It was also alleged by her that the husband has married to one Rukmani Bai of Prabhat Pattan on 23-6-80 and since then he was living in adultery with her. She, therefore claimed a decree for judicial separation. The non-applicant denied having committed 'any act of cruelty. He also denied having contracted second marriage and prayed for dismissal of the suit. Learned District Judge considered the oral and documentary evidence on record and held that the allegations contained in Exs. P-1 and P-2 that non-applicant husband was not the father of the child was false and amounted to cruelty in law. Relying on oral evidence, the learned District Judge also held that the non-applicant husband contracted second marriage and was living in adultery. Under these circumstances, a decree for judicial separation was passed.

(3.) The submission of the learned counsel for the appellant husband is that the earlier case of the applicant wife was dismissed in default and hence she is precluded from filing the present suit on the same cause of action. It is also submitted that the finding of the trial Court on second marriage is a perverse finding. Learned counsel for the respondent wife supported the finding and submitted that the grievance of the appellant husband is baseless. Since the decree for judicial separation was granted on the ground of cruelty and also second marriage, I consider it proper to first consider the wife's case for second marriage of the husband. The said case is based on documentary evidence, Ex. P-4 which is a post card written from Prabhat Pattan to one Santosh Rao informing that appellant Shiv Shankar was to be married on 23-6-1980. The document has been proved by Venkat Rao (P.W. 5). According to him, this post card was given by Vishwa Nath of Padurna. The appellant husband has not examined anyone to show that this post card is forged document. From the postal seal it appears to be a genuine document. Inspite of it, it would not be conclusive of the matter. P. W. 2, Makunda claims to uncle of Sampat whose daughter Rakhma is married to the appellant husband. He has identified the applicant in the Court as the person with whom the marriage was performed. He is an old man of about 75 years and closely related to the second wife. There is nothing in his cross-examination to discredit his testimony. P.W. 3 Mahadeo claims that Rakhma's mother is his niece and Rakhma has married to Shiv Shanker and is living with him. This witness is also a close relation of the parties. P. W. 4, Gyanoba is a person who claims to have attended the marriage and has proved that appellant Shiv Shankar was living with Rakhma Bai. This oral evidence is only evidence of marriage and of the fact that Shiv Shankar is living with Rakhma. No witness has been produced to prove the contrary. Under the circumstances, only conclusion that can he drawn is that the appellant husband has married second time and is living with his second wife. It is not disputed that this by itself would be sufficient to support the impugned judgment and decree granting judicial separation. In this view of the matter, question relating to cruelty need not be examined.