Gurdev Singh, J. - (1.) THE short question for our consideration in this appeal under Clause 10 of the Letters Patent relates to the interpretation of the expression "is Jiving in adultery" occurring in Section 13(1) (i) of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act), and constituting one of the grounds on which a Hindu marriage can be dissolved.
(2.) THE Appellant Smt. Karambir Kaur and the Respondent Kanwar Vijay Pal Singh were married according to Sikh rites on 12th of March, 1959. After a short stay together differences arose between them. The Wife, on being turned out of her husband's house, sought relief under Section 488, Code of Criminal Procedure, and she was granted maintenance on 28th of October, 1960. An attempt was made by the husband to nullify the effect of that order by seeking a decree for restitution of conjugal rights. He, however, did not succeed and while they were still living apart, on 21st of March, 1965, the husband Kanwar Vijay Pal Singh married the co -Respondent Dr. Amarjit Kaur, who bore him a son on 8th February, 1966. This second marriage was contracted by Kanwar Vijay Pal Singh by keeping Dr. Amarjit Kaur and her parents, who were living in Uttar Pradesh at Lucknow, in the dark about his first marriage. It was on learning about this second marriage and after making the necessary enquiries that the Appellant Smt. Karambir Kaur on 31st of July, 1967, approached the District Judge, Ludhiana, for divorce under Section 13 of the Act, on the plea that her husband Kanwar Vijay Pal Singh had married the co -Respondent Dr. Amarjit Kaur, from whose womb he had begot a son on 8th of February, 1966, and was still living in adultery with her. During the pendency of these proceedings for divorce the co -Respondent Dr. Amarjit Kaur made a petition under Section 11 of the Act to the Civil Judge, Malihabad at Lucknow (Uttar Pradesh) and got a declaration that her marriage with Kanwar Vijay Pal Singh being void was a nullity. A certified copy of the judgment in that case was admitted by the learned Single Judge into evidence, and on consideration of the relevant material the learned Judge held it proved that the Respondent Kanwar Vijay Pal Singh had married Dr. Amarjit Kaur on 21st of March, 1965, had been living in adultery with her and begot a son from her. He, however, refused to dissolve the Appellant's marriage and granted her judicial separation, on the ground that the Respondents were not continuously living together in adultery till the date the petition for divorce was instituted. The relevant part of the judgment runs thus: From the copy of the judgment by the Civil Judge, Malihabad, referred to above, it is clear that Kanwar Vijay Pal Singh married Dr. Amarjit Kaur on March 21, 1965, at Lucknow during the subsistence of his marriage with the Appellant, which marriage was a nullity as provided in Section 11 of the Act. It is also clear from this judgment that a son was born out of the union of the Respondents who was about 2 years and 5 months old when Dr. Amarjit Kaur gave her statement on July 25, 1968, in the petition by her against Kanwar Vijay Pal Singh. She had also stated before that Court that Kanwar Vijay Pal Singh was not seen by her after the month of July 1965. In view of this fact it cannot be said that on the date when the Appellant filed her petition under Section 13 of the Act, Respondent Kanwar Vijay Pal Singh was living in adultery with Dr. Amarjit Kaur. The marriage between the Respondents was a nullity and Kanwar Vijay Pal Singh could be said to be living in adultery with Dr. Amarjit Kaur only if they were living together on the date of the petition of the Appellant or had continuously lived together till about that date. The words in Section 13 of the Act are 'is living in adultery' which means that the Respondent must be living in adultery at the time the petition on that ground is made by the Petitioner.
(3.) IT may be observed here that in coming to the conclusion that Kanwar yijay Pal Singh was not living in adultery till the date of the petition for divorce, the learned Single Judge has relief solely on a part of the judgment in the proceedings instituted by Dr. Amarjit Kaur for nullity of her marriage, wherein it has been, observed that Dr. Amarjit Kaur had stated in those proceedings that after July, 1965, she had neither seen her husband nor lived with him. I am afraid, this stray sentence from the statement of Dr. Amarjit Kaur recorded in another case cannot be taken as legal and sufficient evidence of the fact that Dr. Amarjit Kaur and Kanwar Vijay Pal Singh had parted company in July, 1965, and were no longer living and cohabiting when the petition for divorce was presented by the Appellant. Even according to the facts found by the learned Single Judge, the proceedings for nullity of marriage were taken by Dr. Amarjit Kaur during the pendency of the divorce proceedings that had been, instituted against Kanwar Vijay Pal Singh by his first wife and it was only on 25th July, 1968, that Dr. Amarjit Kaur obtained the decree nullifying her marriage. Once it is found that Kanwar Vijay Pal Singh had taken another wife and was living with his co -Respondent Dr. Amarjit Kaur, who gave birth to a son from his loins the Court would be justified in presuming that they had continued their adulterous conduct in absence of any legal and cogent evidence to the country.;