TULSI DAS KUMBHKAR Vs. DANDI KUMHARIN

JUDGEMENT

(1.) This first appeal has been preferred by the petitioner - husband against the judgment and decree dated 19 th July, 2004 passed in Title(Matrimonial-divorce) Suit No. 99 of 1993 -24 of 1995 , whose suit against his wife, respondent no. 1, Dandi Kumharin under sections 13(1)(i)(i-a)(i-b) of the Hindu Marriage Act, 1955 for dissolution of marriage by decree of divorce has been dismissed.

(2.) As per the case of the appellant husband, he was married to the respondent no. 1 in the year 1969 in Sangha Form according to the prevalent custom and started living with her in the matrimonial home. It has been alleged that the respondent no.1, Dandi Kumharin had earlier been married with one Mansu Kumbhkar- respondent no. 2, which was suppressed by her while marrying with the appellant- husband and she continued to have illicit relationship with the respondent no. 2 even after the marriage with appellant, which was seriously objected to by the appellant. As a result she left his house and started living with the said Mansu Kumbhkar. It has been stated that they last resided together in June 1973. It has also been stated on the part of the appellant that the respondent no. 1 was allowed maintenance against this appellant in a proceeding under Section 125 C.P.C. being filed by her as M.P. Case No. 40 of 1978 and the appellant has been paying maintenance to the respondent no. 1, since then. The Divorce Suit has been preferred on the ground of adultery, serious mental torture and also on the ground of desertion of the appellant by the respondent no. 1, since June 1973 without any reasonable cause.

(3.) The respondent No. 1 had appeared and filed her written statement before the trial court categorically denying the allegation relating to her marriage to the respondent no.2 and stating that she is legally married wife of the petitioner- appellant solemnized according to Hindu rites and customs. It has also been stated that out of their wed-lock two children were born. The respondent no. 1 has alleged that the appellant husband surreptitiously contracted second marriage with one Tulia Kumharin, daughter of late Janki Kumharin in the year 1977 and both of them started torturing the respondent no. 1and was ultimately ousted from matrimonial home along with her children where after she is living in her parents' house in Taliapur. It has further been stated on her part that the appellant is having three children from his second wife also. Since the respondent no.1 had been expelled from the matrimonial home and had to maintain her children, she filed the maintenance case being M.P. Case No. 40 of 1978, which was allowed on 24.1.1981 directing the petitioner to pay a sum of Rs. 125, which was subsequently raised to Rs. 500/- which he has been paying till date. She has further submitted that her daughter has been married and her son is still living with her and she is willing to live with the petitioner- husband along with her son at the matrimonial house. The respondent no.1 has prayed for dismissal of the suit on the basis of the aforesaid facts.