- (1.) THIS is a wife's second appeal from a decree of divorce passed against her by the Court of the Civil Judge, Etah, on the 4th July, 1980. on the petition of the husband, who is the respondent here, which was confirmed on first appeal by the judgment dt. 11th Aug. 1982 of the court of the Second Additional District Judge, Etah.
(2.) THE parties were married in 1969, According to the petitioner-husband, the appellant-wife lived with him for two months after the marriage, but came away thereafter to her maternal home with her ornaments and clothes and has not returned to him ever since; that the appellant-wife had thus deserted the petitioner-husband without any cause and had acted very cruelly by not performing her marital obligations and by not cohabiting with him This is followed by the allegations that the appellant- wife had never regarded the petitioner as her husband nor did she ever conduct herself as his wife; that the petitioner-husband had come to know that the appellant had illicit connections with another man since before the marriage and this fact was concealed from him, and the petitioner's consent to the marriage was thus procured by fraud inasmuch as he would have never consented to his marriage with the appellant it he had known this fact. THE petition proceeds on to allege that even after marriage the appellant was maintaining her illicit connection with that man. It was then alleged that about three years ago the appellant gave birth to a child and only a few months ago she had her second child aborted; that she was living in adultery and had sexual intercourse with a third person, and that the petitioner was entitled to a decree of divorce against her. THE further allegations made in the petition are that the petitioner did not beget any child on the appellant; that the petition was not collusive; that the petitioner had not condoned the appellant's acts; that the parties had no joint property and that the cause of action for the suit arose on the 16th Feb. 1977 which was the date of appellant's last refusal; and that the cause of action arose at Etah where the parties last resided together. THE subject-matter of the suit was valued at Rs. 1,000/ -. THE alleged adulterer was, however, not named and not made a co- respondent with the wife, nor did the petitioner apply for being excused from doing so under R. 6 of the Hindu Marriage and Divorce Rules, 1956. The defence was a complete denial of the petitioner's case except for the fact of marriage. The additional pleas raised were that after the marriage in May, 1969, the appellant returned with her brother in the customary way after living with the petitioner for ten days, and it was in May, 1970 that the petitioner took the appellant back to his place after the customary second marriage; and thereafter the appellant returned to her maternal place in the month of Sawan of the year 1970 with her brother and after staying there for 2-3 days for Raksha Bandhan she again returned with the petitioner to his place. The appellant again went to her maternal home during the month of Sawan of the year 1971 with her brother and thereafter she returned with the petitioner after Janmasthmi with all her ornaments and clothes. The appellant stayed with the petitioner at Etah and duly performed her marital obligations. It was added that the petitioner was addicted to gambling and also drinks: that on the occasion of Deothan Ekadashi during the month of Kartik of the year 1970, the petitioner asked for the appellant's jewellery for gambling. This led to an altercation, whereupon the appellant's mother-in-law took the jewellery saying that she would keep it with her lest the petitioner might take away the same from the appellant by force, and kept the jewellery and the good clothes of the appellant with her. It is then alleged that thereafter the petitioner started drinking more, and also beating the appellant, saying that she had given the jewellery to his mother and should, therefore, get him Rs. 1,000/- from her mother's place. The appellant did not agree to do that, and suffered beating. She became pregnant during this period and because of the beatings her mother-in-law also became annoyed with the appellant and turned her out after beating in June 1972, when she came to her maternal home without any of her jewellery. There she gave birth to a daughter on the 18th Aug. 1972, whose name is Parveen Kumari and who was aged five and a quarter years, the date of the written statement being the 27th Sept. 1977. The appellant asserted that after giving birth to Parveen Kumari she did not become pregnant again and never had any abortion nor did she have sexual intercourse with any person other than her husband nor did she lead an adulterous life, nor was she living in adultery. It was then said that when the appellant's father asked the petitioner to keep her with him he demanded Rs. 5,000/ -. The petitioner was said to be a prosperous person having a share in joint family property and an income of Rs. 1,000/- per month. Lastly, it was pleaded that the petitioner had consented to the marriage after making due enquiries and finding out every thing about the appellant. The following were the issues on which the parties went to trial : "1. Whether the defendant deserted the petitioner " "2. Whether the defendant committed fraud as alleged in para 7 of petition ?" "3. Whether the defendant has committed adultery as alleged ?" "4. Whether the petitioner has committed cruelty as alleged ?" "5. Relief ?"
(3.) THE Trial Court found on the third issue that the appellant was guilty of adultery, that is to say, she has had sexual intercourse after the marriage with a person other than her husband. On issue No. 1, the Trial Court found that the appellant had not deserted the petitioner. On issue No. 2, it found that the appellant was living in adultery since before the marriage and the petitioner was defrauded but such a fraud was not a ground for divorce under Section 13, and therefore, the finding had no effect on the case. On issue No. 4, the Trial Court found that the petitioner had not treated the appellant with cruelty; and finding, on issue No. 5, that the petitioner was entitled to the relief claimed, decreed the suit for divorce. On appeal by the wife, the first question formulated by the lower Appellate Court for its consideration was whether she was having sexual intercourse with others after her marriage with the petitioner.;