J. V. Gupta, J. - (1.) :- It is wife's appeal against whom a decree of divorce has been passed under section 13 of the Hindu Marriage Act at the instance of her husband Faqir Chand.
(2.) The marriage between the parties had taken place in the year 1974. According to the husband, he had gone to Dubai on 5th Oct., 1983, and his wife was not pregnant at that time. He came to India on 12th March, 1985, i. e. after a continuous absence of 17 months and 13 days. On returning to India on the said date, he went to the house of the parents of his wife on 16th March, 1985, to bring her back to his house but he was astonished and shocked to find that she was on the family way. On enquiry by him, she told him that she was pregnant and was to deliver a child in a fortnight or so. She did not disclose the name of the person from whom she had conceived. On coming to know of this, the husband refused to bring her back with him and filed the present petition on 18th March, 1985, for dissolution of marriage by a decree of divorce on account of the adultery committed by the wife.
(3.) On appearance of the wife, efforts were made for a reconciliation but with no result. In the written statement she admitted that her husband had come back to India from Dubai after a continuous absence of 17 months. She also admitted that she had conceived during the absence of her husband. Her contention was that her husband is impotent and for that reasons, ten years of marriage had passed without any child being borne to her. She asserted that her husband and his parents were anxious to have a child, and they had, therefore, consented to her having sexual relationship with the brother of the husband Amarjit. She maintained that even during the stay of the husband in India she was having sexual relations with said Amarjit. It was also pleaded that the husband was an Arya Samajist and believed in Niyog and for that reason he was keen to have a child. She further admitted that she gave birth to a female child on 26th April, 1985, but the child died in the hospital. On the pleadings of the parties, the trial court framed the following issues : "(1) Whether the respondent has been living in adultery and has led adulterous life ? (2) Whether the respondent had sexual relations with Amarjit, brother of the petitioner with the consent of the petitioner ? (3) Relief." On an appreciation of the entire evidence it was concluded that the wife had sexual intercourse with a person other than her husband, during his absence from India. It was further found that the wife had failed to prove that she had sexual relations with Amarjit, the brother of the husband, with his consent. As result of these findings, the decree for divorce was granted.;