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PETITIONER: CHANDRA MOHINI SRIVASTAVA

       Vs.

RESPONDENT: AVINASH PRASAD SRIVASTAVA & ANR.

DATE OF JUDGMENT: 13/10/1966

BENCH: WANCHOO, K.N. BENCH: WANCHOO, K.N. MITTER, G.K.

CITATION:  1967 AIR  581            1967 SCR  (1) 864  CITATOR INFO :  RF         1978 SC1351  (12)             1988 SC 839  (7,9)             1989 SC1477  (6,8)

ACT: Hindu  Marriage Act (25 of 1955),s. 13 (1) (i) and by  Hindu Marriage  (Uttar  Pradesh Sanshodhan) Adhiniyam  Decree  for divorce when can be passed--Condonation--What amounts to. Constitution  of  India, 1950, Art. 136-No right  of  appeal against  decree  for divorce-Second marriage by  husband  in ignorance of grant of special leave-If special leave can  be revoked.

HEADNOTE: The respondent filed a suit against his wife, the appellant, for dissolution of his marriage with her on the ground  that she  was living in adultery.  The trial court dismissed  the suit.  In appeal, the High Court held that the wife was  not living in adultery, but that two letters written by the  co- respondent  to  the wife showed that there had  been  sexual intercourse between the wife and the co-respondent in  1955, after  the  marriage,  and  that  the  respondent  would  be entitled to claim judicial separation under s. 10(1) (f)  of the Hindu Marriage Act, 1955.  Relying upon the amendment to s.  13(1)  (viii)  by  the  Hindu  Marriage  (Uttar  Pradesh Sanshodhan)  Adhiniyam, 1962, the High Court also held  that it was a case where a decree  for  dissolution of marriage could be  passed.   The decree of the High Court was dated 7th January 1964 on which date  the marriage stood dissolved.  On 7th April 1964,  the wife  presented a petition, for special leave to  appeal  to this Court.  But, in ignorance of that step, the  respondent married another woman in July 1964 and a son was born to her in  May 1965.  Meanwhile, in September 1964, the  respondent to notice of the grant of special leave.  In September 1966, he  applied  to this Court for revocation of  the  grant  of special leave, on the ground, that because of the negligence of  the wife in not informing him that she was applying  for special  leave,  he had married again and a child  was  also born to his second wife who might become illegitimate if the appeal was allowed. HELD:     (1) Even though it may not have been unlawful  for

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the  respondent to have married immediately after  the  High Court’s  decree,  for no appeal as of right  lies  from  the decree  of  the High Court to this Court in  these  matters, still,  the respondent had to make sure whether an  applica- tion  for special leave had been filed ’in this  Court.   He could  not, by marrying immediately after the  High  Court’s decree,  deprive  the  wife of the chance  of  presenting  a special leave petition to this Court.  By doing so, be  took a  risk and could not ask this Court to revoke  the  special leave on that ground. [868] (2)  The order of the High Court granting divorce should  be set aside (i)  Even assuming that the two letters indicated that there was  some  illicit  intimacy between the wife  and  the  co- respondent, the High Court was in error in granting  divorce under  s.  13 (1) (viii) as amended by the  U.P.  amendment. Before a decree for divorce can be granted thereunder, there must   first  be  a  decree  for  judicial  separation   and thereafter,  under the amendment, a decree for divorce  will follow if one of two conditions  865 is  satisfied,  namely, that (a) a period of two  years  had elapsed,  or (b) the case is one of exceptional hardship  to the  petitioner or of exceptional depravity on the  part  of the other party. The amended clause therefore requires first a decree for judicial separation and thereafter a decree for divorce  may  follow under cl. (b) without waiting  for  two years.   It  is not open to a court to grant  a  decree  for divorce  forthwith on the ground of exceptional hardship  to the petitioner or of exceptional depravity on the NO of  the other  party, even without a decree of judicial  separation, on the assumption that a decree of judicial separation could have  been  passed on the ground mentioned in  s.  10(1)(f). [870 C-H] (ii) The two letters do not however indicate that there must have  been sexual intercourse between the wife and  the  co- respondent in 1955.  Therefore, there was no ground even for a decree of judicial separation in favour of the respondent. [871 C] (iii)     Even  if  there had been such  sexual  intercourse there  was condonation within the meaning of s. 23 ( 1)  (b) of  the  Act.   In  his statement  under  O.X,  r.  2  Civil Procedure Code, the respondent admitted that he knew of  the illicit  relations  between his wife and  the  co-respondent even  in 1955 or 1956, but the respondent continued to  live with  his  wife  and a son was barn to them  in  1957.   The respondent tried to refile from that statement by stating in his  evidence  that what he meant was  that  he  entertained suspicion  only, but that he was definite about the  illicit intimacy  only  in May/June 1958.  But even  thereafter,  he admitted having sexual relations with his wife up to October -  1958.  The fact that the husband cohabited with the  wife even  after  the  knowledge  that she  had  been  guilty  of cohabiting  with another would be sufficient  to  constitute condonation.  Moreover the respondent also admitted that  he kept her with him at the instance of his friends.  Ibis  was a  clear  indication  of condonation even in  the  sense  of forgiveness,  confirmed or made effective by  reinstatement. [871 D-H: 872 C] Perry. v. Perry, [1952] 1 All.  E.R. 1076, referred to.

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 138 of 1966.

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Appeal  by special leave from the judgment and  order  dated January 7, 1964 of the Allahabad High Court in First  Appeal No. 289 of 1961. J.P. Goyal and M. V. Goswami, for the appellant. S.   P.  Sinha,  Champat  Rai,  E. C.  Agarwala  and  P.  C. Agarwala, for respondent No. 1. The Judgment of the Court was delivered by Wanchoo,  J. This is an appeal by special leave against  the judgment  of  the  Allahabad High Court and  arises  in  the following  circumstances.  A suit was brought by  the  first respondent, Avinash Prasad Srivastava, against the appellant for dissolution of his marriage with her and the grant of  a decree of divorce.  In the alternative the first  respondent prayed  for a decree of judicial separation.  His  case  was that  he was married to the appellant on May 27,  1955,  and the  appellant lived with him for four years and a half  The parties last resided together and cohabited at Bareilly.   A number  of  allegations  of  all kinds  ’were  made  in  the petition by the 866 first   respondent   against  the  appellant;  but   it   is unnecessary  to refer to them, for the first respondent  had to bring his case under one or other clause of s. 13 of  the Hindu Marriage Act, No. 25 of 1955, (hereinafter referred to as the Act) if he wanted a decree of divorce, and under  one or  other clause of s. 10 if he wanted a decree of  judicial separation.  It is enough to say that the first respondent’s case  so  far as the prayer for divorce  was  concerned  was based  upon cl. (1) of s. 13(1), namely, that the  appellant was  living  in  adultery, and in the  alternative,  on  cl. (viii)  of  s. 13(1) read with s. 2 of  the  Hindu  Marriage (Uttar Pradesh Sanshodhan) Adhiniyam, No. XIII of 1962.   As to judicial separation, the case apparently was based on cl. (b) of s. 10(1), namely, that the first respondent had  been treated with cruelty within the meaning of that section, and also on cl. (f) of S. 10(1). The  appellant denied that she had been living in  adultery. She  also denied that she ever had sexual  intercourse  with Chandra Prakash Srivastava, who was made a co-respondent  in the  petition.  She also denied that she was guilty  of  any cruelty  as  alleged.  On these pleadings, two  main  issues arose,  namely-(1) whether the appellant had been living  in adultery  or  had sexual intercourse  with  Chandra  Prakash Srivastava  after  her marriage, and (ii)  whether  she  had treated  the first respondent with such cruelty as to  bring the  case  within  cl. (b) of s. 10(1).   There  were  other issues as to jurisdiction and as to some property the return of  which the first respondent was claiming, but we are  not concerned with them now. The  trial court held that the appellant was not  living  in adultery.  It also held that it was not proved beyond  doubt that there was any sexual intercourse between the  appellant and Chandra Prakash Srivastava at any time.  It further held that  even if there had been any sexual intercourse  it  had been condoned.  Finally it held that no such cruelty as came within  the  meaning of s. 10(1) (b) had  been  proved.   In consequence  the petition was dismissed and the  prayer  for dissolution of marriage or in the alternative, for  judicial separation, was refused. The first respondent then went in appeal to the High  Court. The  High  Court held that it had not been proved  that  the appellant had been living in adultery within the meaning  of s. 13 (1) (1) of the Act.  An attempt was made by the  first respondent  to prove illicit intimacy between the  appellant and Chandra Prakash Srivastava in May or June 1958, but that

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was  not believed either by the trial court or by  the  High Court.  But the High Court relying on two letters alleged to have  been  written  by Chandra Prakash  Srivastava  to  the appellant  held  that  there  had  been  sexual  intercourse between  the  appellant and Chandra  Prakash  Srivastava  in 1955.   The  High  Court  also  held  that-  there  was   no condonation  by  the  first respondent  of  this  adulterous intercourse.   It  was therefore of opinion that  the  first respondent would be entitled to claim judicial separation  867 unders.10(1)(f)  of  the  Act.   However,  using  the   U.P. amendment to s. 13 (1)(viii), the High Court held that  this was a case where dissolution of marriage was necessary.  The appeal therefore was allowed and dissolution of marriage was granted  by  the  High Court. It may be added  that  on  the question  of cruelty, the High Court held that there was  no such  cruelty as might come within the meaning of s. 10  (1) (b).  Thereupon the appellant obtained special leave,..  and that is how the matter has come up before us. Before  we deal with the merits of the appeal, we may  refer to an application (CMP No. 2935 of 1966) filed on behalf  of the  first  respondent, in which he prays that  the  special leave  granted  to the appellant be  revoked.   The  grounds taken  for  revocation of special leave are  that  the  High Court  granted divorce to the first respondent  and  ordered that  its  decree  should take effect  forthwith,  with  the result that the marriage between the appellant and the first respondent stood dissolved on January 7, 1964, when the High Court  allowed the appeal.  The special leave  petition  was presented  in this Court on April 7, 1964 and the  appellant did  not  convey  to  the  first  respondent  that  she  was intending to challenge the decision of the High Court.   She also did not pray for the stay of operation of the order  of the  High  Court.  The first respondent  therefore  believed that  she had submitted to the order of the High  Court  and married  another woman on July 2, 1964.  Special  leave  was granted  to the appellant by this Court on August 25,  1964, and  it  was  only  on September  9,  1964  when  the  first respondent got notice of the grant of special leave that  he came  to know that the judgment of the High Court was  under appeal  in  this  Court.  In the  meantime  he  had  already married  another woman and a son was born to that  woman  on May 20, 1965.  The first respondent therefore contended that because of the negligence of the appellant in not  informing him  that she was applying to this Court for special  leave, he  had married again and his new wife had given birth to  a son,  and  in consequence this Court should now  revoke  the special  leave that was granted so that the new child  might not become illegitimate. The application has been opposed on behalf of the  appellant and  it  is  contended that it was no part of  her  duty  to inform the first respondent that she was intending to  apply to this Court for special leave.  It was also contended that it was for the first respondent to make sure before marrying that no further steps had been taken by the appellant  after the  judgment of the High Court, and in this connection  she relied on ss. 15 and 28 of the Act.  In any case it is urged that  the  fact that the first respondent took the  risk  of marrying  without making sure whether any further steps  had been taken by the appellant was no ground for revocation  of special  leave.   It was also pointed out  that  though  the first respondent had been served as far back as September 9, 1964, he made the application 868 for revocation of special leave only on September 15,  1966,

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when the appeal was ready for hearing. We  are of opinion that special leave cannot be  revoked  on grounds  put  forward  on behalf of  the  first  respondent. Section  28 of the Act inter alia provides that all  decrees and  orders made by the court in any proceedings  under  the Act may be appealed from under any law for the time being in force, as if they were decrees and orders of the court  made in the exercise of its original civil jurisdiction.. Section 15  provides that "when a marriage has been dissolved  by  a decree  of divorce and there is no right of  appeal  against the decree or, if there is such a right of appeal, the  time for  appealing  has expired without an  appeal  having  been presented,  or an appeal’ has been presented but,  has  been dismissed,  it  shall  be lawful for  either  party  to  the marriage  to marry again." These two sections make it  clear that  where a marriage has been dissolved, either  party  to the marriage can lawfully marry only when there is no  right of appeal against the decree dissolving the marriage or,  if there is such a right of appeal, the time for filing  appeal has  expired without an appeal having been presented, or  if an  appeal has been presented it has been dismissed.  It  is true  that  s. 15 does not in terms apply to a  case  of  an application  for special leave to this Court.  Even  so,  we are of opinion that the party who has won in the High  Court and  got  a  decree of dissolution  of  marriage  cannot  by marrying  immediately  after the High  Court’s  decree  take away-from  the  losingparty  the  chance  of  presenting  an application  for  special leave. Even though s. 15  may  not apply  in  terms and it may not have been unlawful  for  the first respondent to have married immediately after the  High Court’s  decree,  for no appeal as of right  lies  from  the decree  of the High Court to this Court in this  matter,  we still  think  that it was for the first respondent  to  make sure whether an application for special leave had been filed in this Court and he could not by marrying immediately after the High Court’s -decree deprive the appellant of the chance to  present  a special leave petition to this Court.   If  a person  does so, he takes a risk and ,cannot ask this  Court to  revoke  the special leave on this ground.  We  need  not consider  the question as to whether the child born  to  the new wife on May 20, 1965 would be legitimate or not,  except to say that in such a situation s. 16 of the Act may come to the  aid of the new child.  We cannot therefore  revoke  the special  leave on the grounds put forward on behalf  of  the first  respondent  and hereby dismiss  his  application  for revocation of special leave. Turning  now  to the merits of the appeal, we  have  already indicated that the High Court as well as the trial court are agreed that the appellant was not living in adultery at  the time when the petition was filed.  They are also agreed that there was no such cruelty a would bring the case within  the meaning of s. 10(1) (b) of the Act. But the High Court found that there had been adultery between the  869 appellant  and Chandra Prakash in 1955 and the evidence  for that  consisted of two letters said to have been written  by Chandra Prakash to the appellant.  We cannot agree with this conclusion  of the High Court.  Chandra Prakash was  married to  a  cousin  of the appellant.  He  was  therefore  not  a stranger  to  the appellant and his writing letters  to  her would not therefore be a matter of any surprise.  We  cannot also  forget that the appellant in her statement has  denied on  oath that she ever had illicit connection  with  Chandra Prakash.   There  is also no doubt that the attempt  of  the first  respondent  to  prove that there  had,  been  illicit

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intimacy  between  the  appellant  and  Chandra  Prakash  in May/June   1958  has  failed  and  both  the   courts   have disbelieved  the  evidence in this behalf.  It  is  in  this background that we have to examine the two letters on  which reliance  has been placed by the High Court, that being  the only evidence in proof of adultery in 1955. It  is  true that the appellant has denied  receiving  those letters  and has also denied that she ever sent any  letters to  Chandra Prakash.  One can understand this denial in  the case  of  a  person  like the appellant  who  was  facing  a petition  for  divorce  on the  ground  of’  adultery.   But assuming  that  those  two  letters  were  received  by  the appellant, that does not in our opinion prove that there was any  adultery between the appellant and Chandra  Prakash  in 1955.  We have read those letters and we must say that  they are  most  improper and should not have been  written  by  a person like Chandra Prakash who was married to the cousin of the appellant.  But the first thing that strikes us is  that the mere fact that some male relation writes such letters to a  married woman, does not necessarily prove that there  was any illicit relationship between the writer of the  letters. and  the  married woman who received them.  The  matter  may have been different if any letters of the appellant  written to  Chandra  Prakash  had been  proved.   Further  there  is intrinsic  evidence  in the letters themselves  which  shows that  whatever  might  have been  the  feelings  of  Chandra Prakash  towards  the appellant, they were  not  necessarily reciprocated  by the appellant.  In Ex. 2,  Chandra  Prakash wrote to the appellant, "You love me as you love others  and this is why my share is very small.  You write me letters to satisfy  your anger".  This seems to suggest as  if  Chandra Prakash  was getting no response from the appellant.   Again in  Ex. 3, Chandra Prakash wrote, "I know that you would  be angry with me, but what can I do." This again suggests  that Chandra Prakash was getting no response from the  appellant. Further  in both these letters Chandra Prakash conveyed  his respects to the appellant’s husband, and on the whole we are not  satisfied that these letters indicate that  there  must have  been  sexual  intercourse between  the  appellant  and Chandra  Prakash  in  1955, which was the  time  when  these letters were written.  When we have the clear denial of  the appellant  to  the  effect that she  never  had  any  sexual intercourse with Chandra, 870 Prakash, we have no hesitation in accepting that denial, for there  is nothing in these letters which would even  suggest that  the  denial was false.  Nor does the evidence  of  the first  respondent,  once the incident of May/June  1958  has been  disbelieved,  show  anything  from  which  it  can  be inferred  that  there was any illicit relation  between  the appellant and Chandra Prakash in 1955 or at any other  time. We  are  therefore in agreement with the  trial  court  that these  ,letters  do  not show that  there  was  any  illicit relationship  between the appellant and Chandra  Prakash  in 1955. We  are  further of opinion that even  assuming  that  these letters  indicate  that  there  was  some  illicit  intimacy between  the appellant and Chandra Prakash, the  High  Court was still in error in granting divorce under s.  13(1)(viii) as  amended by the U.P. amendment.  By the  U.P.  amendment, the following clause was substituted for cl. (viii)    in the Act and was deemed always to have been substituted:-               "(viii) has not resumed cohabitation after the               passing  of a decree for  judicial  separation               against that party and-

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             (a)   a period of two years has elapsed  since               the passing of such  decree, or               (b)   the case is one of exceptional  hardship               to the petitioner or of exceptional  depravity               on the part of the other party"; As we read this provision, it is clear that before a  decree for divorce can be granted thereunder, there must first be a decree  for  judicial separation and  thereafter  under  the amendment  a decree for divorce ,will follow if one  of  two conditions  is  satisfied, namely that (i) a period  of  two years  has elapsed, or (ii) the case is one  of  exceptional hardship  to the petitioner or of exceptional  depravity  on the part of the other party.  Sub-clause (b) in our  opinion is  not  independent.   That  sub-clause  only  comes   into operation  after  a decree of judicial separation  has  been passed.  We cannot accept the contention that it is open  to a  court  under the amended provision to grant a  decree  of divorce  on  the  ground  of  exceptional  hardship  to  the petitioner  or of exceptional depravity on the part  of  the other  party, even without a decree of  judicial  separation having been first made.  Sub-clause (b) can only apply after a  decree for judicial separation has been passed and it  is not open to a court to apply that clause and give a  divorce forthwith  as has been done in this case on  the  assumption that a decree of judicial separation could have been  passed on the ground mentioned in s. 10 (1) (f).  We are clearly of opinion  that the amended clause [namely, cl. (viii)  of  s. 13(1)] still requires first a decree of judicial  separation and thereafter a decree of divorce may follow under cl.  (b) without waiting for two years, which is the necessary period for  the application of cl. (a).  The High  Court  therefore was not right in passing the decree of  871 divorce  in  this  case forthwith under sub-cl.  (b)  of  s. 13(1)(viii) as amended in U.P. It has however been urged on behalf of the first  respondent that we may now pass a decree of judicial separation instead of a decree of divorce passed by the High Court.  We are  of opinion  that even that cannot be done in the present  case. The  only ground on which the decree of judicial  separation can  now  be asked for is that mentioned in s. 10  (1)  (f), namely  that the appellant had sexual intercourse  with  any person other than her husband after the marriage.  The  only allegation in that respect was that the appellant had sexual intercourse with Chandra Prakash in 1955, and that is sought to  be proved by the two letters to which we  have  referred already.  We have held that those letters do not prove  that there  was any sexual intercourse between the appellant  and Chandra Prakash in 1955.  Therefore, there is no ground even for  a decree of judicial separation in favour of the  first respondent.. Besides  even  if  we were of opinion that  there  had  been sexual intercourse between the appellant and Chandra Prakash in 1955 (which we have no doubt is not true) this would be a case  of  condonation under s. 23(1)(b) of the  Act.   Under that  provision  a decree of judicial separation  cannot  be passed under s. IO (1) (b), if it appears to the court  that the  petitioner  has  in any manner  been  accessory  to  or connived  at or condoned the act or acts complained of.   In his  statement  under  0.  X. r. 2  of  the  Code  of  Civil Procedure,  the first respondent stated that it was  in  the month of June or July 1955 or 1956 that illicit relations of the  appellant with Chandra Prakash were confirmed  to  him. According  to that statement the first respondent knew  even in  1955  or 1956 that there had been adultery  between  the

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appellant   and  Chandra  Prakash.   Even  so,   the   first respondent  continued to live with the appellant and  a  son was  born  to  them  in 1957.  In  his  evidence  the  first respondent tried to resile from his statement made under  0. X r. 2 and said that what he meant was that in 1955/1956  he entertained  suspicion only.  This explanation is of  course untrue, for the words used in the statement under 0. X r.  2 were  that  illicit  relations  between  the  appellant  and Chandra Prakash were confirmed to him.  Even in his evidence the first respondent stated that he was definite in May/June 1958 that there was illicit connection between the appellant and   Chandra  Prakash.   It  was  admitted  by  the   first respondent  that he had sexual relations with the  appellant right  upto October 1958.  It is only in February 1959  when the appellant came finally to live with the first respondent that he said that he had no sexual relations with her during her stay of fifteen days.  He also admitted that even  after May/June  1958 he was willing to keep the appellant  at  the instance of his friends. 872 Reliance in this connection is placed on Perry v. Perry() as to  the content of condonation, which  involves  forgiveness confirmed  or  made effective by  reinstatement.   That  was however a case of desertion.  It is urged that in order that forgiveness  may be confirmed or made  effective,  something more  than  stray acts of cohabitation between  husband  and wife have to be proved.  But where as in this case, judicial separation  is being claimed on the ground of s. 10(1)  (f), the fact that the husband cohabited with the wife even after the  knowledge that she had been guilty of  cohabiting  with another  person  would  in  our  opinion  be  sufficient  to constitute  condonation, particularly, as in this case,  the first  respondent knew of the alleged adultery  in  May/June 1958  and  still  continued to cohabit  with  the  appellant thereafter upto October 1958.  Further the statement of  the first  respondent to the effect that he kept his wife  after May/June  1958  at the instance of his friends  is  a  clear indication  of condonation even in the sense of  forgiveness confirmed  or  made  effective  by  reinstatement.   We  are therefore  of opinion that the first respondent is not  even entitled to a decree of judicial separation. We  therefore allow the appeal, set aside the order  of  the High Court and restore that of the trial court rejecting the petition  of the first respondent.  The appellant  will  get her costs throughout from the first respondent. V.P.S.                                        Appeal allowed. (1) [1952] 1 All E.R. 1076. 873