BHOLESWAR SAHU Vs. BASANTI SAHU

JUDGEMENT

(1.) PETITIONER of O.S. No. 68 of 1991 is the appellant. Respondent No. 1 Basanti Sahoo is his legally married wife. Petitioner filed the suit for a decree of divorce under Section 13 of the Hindu Marriage Act, 1955 (in short, 'the Act'). The totality of the pleading advanced by the petitioner projected a case of desertion by the wife and also leading an adulterous life with respondent No. 2. Such pleas are covered by the provision in Clauses (i) and (1 b) under Sub section (1) of Section 13 of the Act. Respondent No. 1 (wife) contested to that issue and denied to the allegations both of desertion and adultery. The trial Court decided the suit in favour of the petitioner and granted a decree of divorce on assessment of oral evidence of P.Ws. 1 to 4 and D.Ws. 1 and 2. No document was admitted on evidence from either side. The trial Court recorded the finding on the basis of the oral evidence that by conduct respondent No. 1 has proved that she has deserted the petitioner and the plea of adultery is not an imagined one.

(2.) AS against that judgment and decree passed by learned CivilJudge (Sr. Division), Angul in O.S. No. 68 of 1991, respondent No. 1 preferred Title Appeal No. 15 of 1997 in the Court of District Judge, Dhenkanal and the same was re numbered as Title Appeal No. 15/16 of 1997 98 in the Court of Addl. District Judge, Angul. On 3.12.1999 learned Addl. District Judge delivered the impugned judgment. Learned Addl. District Judge set aside the decree of divorce on the grounds that there was no credible evidence to prove the plea of desertion and adultery so as to grant a decree of divorce in favour of the petitioner. He also found the judgment and decree to be non sustainable in view of the failure of learned Civil Judge in attempting reconciliation between the parties before hearing the suit and delivering the judgment.

(3.) MARRIAGE between the petitioner and respondent No. 1 was performed on 31.4.1979 and the dispute has surfaced through Court litigation at least since 1985 when respondent No. 1 filed application under Section 125, Cr.P.C. claiming for monthly maintenance and thereafter in the year 1991 when petitioner filed the suit for divorce. In her pleading and evidence, respondent No. 1 has alleged that petitioner has accepted a second wife and has begot children through her, but she has not been able to prove the same through proper evidence. In fact, her admission in course of her cross examination is about acquittal of the petitioner and the co accused in the criminal proceeding for the offence under Section 494, IPC supports to the stand advanced by the petitioner in that respect. Be that as it may, petitioner is to succeed in the suit if he proves the aforesaid two allegations against respondent No. 1 relating to adultery and desertion. In that respect though petitioner has pleaded about the adulterous life led by respondent No. 1 by moving to different hotels at different places along with respondent No. 2 and both respondent Nos. 1 and 2 having taken joint photographs to exhibit their relationship as couple, yet petitioner has tendered no evidence in support of such plea. Therefore, the trial Court was absolutely wrong in its opinion that the factum of adultery is not to be disbelieved.