B D CHARLES Vs. NORA BENJAMIN

JUDGEMENT

(1.) F. B. Civil Misc. Reference (Divorce) No. 120 of 1978 has come up before us exercising jurisdiction over matrimonial causes under Sec, 17 of the Indian Divorce Act, 1869 (No. IV of 1869) (for short, 'the Act' hereafter) for confirmation of a decree nisi passed by the learned District Judge, Jodhpur dated January 3, 1978. S. B. Civil Misc. Appeal No. 32 of 1978 under Sec. 55 of the Act is directed against the aforesaid order of the learned District Judge by which he awarded Rs. 1,000/- as damages to the petitioner-husband by the appellant-non-petitioner No. 2 (alleged adulterer). The reference and the appeal were heard together. As common questions of law and fact are involved, it is convenient to decide them by a common judgment.

(2.) B. D. Charles is the husband, Smt. Nora Benjamin is his wife and Ravikumar Goswami is the alleged adulterer, who will hereafter be referred to as the 'husband', 'the wife' and 'the adulterer' respectively. In the petition of the husband under Sec. 10 of the Act, the wife and the adulterer were impleaded as non-petitioners Nos. 1 and 2 respectively. The case of the husband is that he and his wife are Christians and they were married in Tudala City, District Agra on Oct. 20, 1958 according to Christian rites and that out of this wedlock, Savita Charles (P. W. 4), Santosh Charles (P. W. 3), Sanjay Charles (P. W. 5), Sharley Charles and Sandeep Charles were born. It was further stated in para 6 of the petition that during the three years immediately preceding the date of filing it, the wife ran away from the house of the husband for about four to five times and lived separately where the adulterer was frequently visiting and cohabiting with her. The illicit relation of the wife with the adulterer developed day by day and she left the house of the husband and shifted to another house situate at Paota 'C' Road, Jodhpur on Sep. 29, 1976. It was averred that she had no intention to return to her matrimonial home. A notice was issued by the husband to the adulterer on June 5, 1978 which was delivered to him but no reply was received. The petitioner also mentioned that the adulterer also is a married man and knowing fully well that the wife is lawfully married to the husband who is alive still indulged in sexual intercourse with the wife frequently against the wishes and without the consent or connivance of the petitioner. On the ground of adultery, it was prayed that decree of divorce may be passed in favour of the husband and against the wife and their marriage may be dissolved. A sum of Rs. 5,000/- was claimed as damages from the adulterer for having committed adultery with the wife. This petition was filed on Oct. 18, 1976.

(3.) The wife contested the petition by filing a reply dated March 11, 1977. She denied the allegation of adultery and also denied that she had eloped with the adulterer and had been living with him. It was stated by her that the allegation of adultery has been levelled against her by the husband to harass her and that the cruel behavior of the husband had forced her to live separately and leave the matrimonial home. It was submitted in the reply that the husband, according to his own saying, is guilty of connivance and condonation, for, the wife had been living with the husband up to Sep. 1976 and had been discharging all her marital obligations faithfully. An objection was taken that the husband has not been able to explain the gross delay in filing the petition. In these circumstances, it was prayed that the petition may be dismissed with costs.