NARAYAN RATH Vs. KUNTALA KUMARI RATH

JUDGEMENT

(1.) This appeal is preferred against the judgment of the learned Subordinate Judge, Puri in O. S. No. 55 of 1978-I.

(2.) Appellant filed this Original Suit seeking a decree of divorce from the respondent in accordance with the provision in Section 13 of the Hindu Marriage Act, 1955 (in short 'the Act'). His case was that he married the respondent in 1959 and they were blessed with a daughter about four years after the marriage in 1963. Appellant discovered letters received by the respondent from her paramour Kulamani Mishra and it was apparent from the language used in those letters that she was leading an adulterous life and for that she was frequently visiting her parental house notwithstanding the resistence made by the appellant. After discovery of the letters in 1963, the respondent stayed in her parents house and in 1974, she instituted a proceeding under Section 125, Cr. P.C. registered as Misc. Case No. 77 of 1974 in the Court of J.M.F.C. Puri. Against judgment of Daitari Kar, Subordinate Judge, Puri, D/- 29-2-1980. She claimed for monthly maintenance for herself as well as the daughter. Learned Judicial Magistrate, First Class rejected her claim of maintenance on the ground that she was found to be leading adulterous life. However, maintenance was granted to the daughter. Both the parties preferred Criminal Revision No. 29 and 103 of 1978 against the order in that proceeding under Section 125, Cr. P.C. This Court confirmed the order and dismissed both the revisions. It is thereafter that appellant instituted this proceeding under Section 13 of the Act. Respondent entered appearance, filed a written statement denying the allegations and contested the case. On the basis of the pleadings, learned Subordinate Judge framed the following issues :- 1. Is the suit maintainable as framed. 2. Has the plaintiff any cause of action to bring the suit. 3. Is the plaintiff entitled to get a decree for divorce. 4. To what relief, if any, the plaintiff is entitled?

(3.) To prove his case, appellant examined himself as P.W. No. 1, a nephew of Kulamani Misra as P.W. No. 2 and his (appellants) elder brother as P.W. No. 3. Besides that appellant relied on certified copy of the letters and the deposition of the respondent in the proceeding under Section 125, Cr. P.C. respectively marked Exts. 1, 2, 3 and 5 besides judgment delivered by this Court in the Criminal Revision No. 29 and 103 of 1979-I marked Ext. 4. No other evidence was adduced on behalf of the respondent except examining herself as D. W. No. 1.