B.R.Tuli, J. - (1.) SHRIMATI Karam Bir Kaur filed a petition under Section 13 of the Hindu Marriage Act (hereinafter referred to as 'the Act') for the dissolution of her marriage with Kanwar Vijay Pal Singh, Respondent No. 1, on the ground that he was living in adultery with Dr. Amarjit Kaur, who was made a co -Respondent In her petition, she stated that the marriage between her and Respondent No 1 was solemnised on March 12, 1959(sic) and they lived together as wife and husband at Ludhiana hut no child was born out of the union. It is evident that the relations between the parties became strained soon after the marriage as the said Respondent filed a petition under Section 9 of the Act against the Appellant which was dismissed in 1960 he filed a petition under Section 488 of the Code of Criminal Procedure which was allowed by the Additional District Magistrate, Ludhiana, by order date 1 October 28, 1960, allowing her maintenance at the rate of Rs. 90 per month. The Respondent filed a revision against that order which was dismissed in 1962 by the learned Additional Sessions Judge, Ludhiana
(2.) THE allegation of the Appellant with regard to the adultery of Respondent No. 1 is stated in para 4(b) of the petition which is as under: 4(b) Respondent No. 1 is living in adultery with Shrimati Amarjit Kaur Respondent No. 2, whom Respondent No. 1 claims to have married on 21st March 1965. A son was born from Respondent No. 2 to Respondent No. 1 at Lady Dufferin Hospital, Luck -now, on 8th February, 1966. Respondent No. 2 is living with Respondent No. 1 as his mistress and rendering him conjugal rights. The Respondents did not appear in the trial Court in spite of service and the proceedings against them were taken exparte. The learned District Judge, Ludhiana, however, came to the conclusion that from the evidence produced by the Appellant it had not been legally proved that Kanwar Vijay Pal Singh had married Amarjit Kaur during the currency of his marriage with the Appellant or that Respondent No. 1 was living in adultery with Respondent No 2. On that finding the petition of the Appellant was dismissed on March, 27, 1968. Against that decree, the Appellant filed the present appeal in this Court and made two applications for permission of this Court under Order XLI Rule 27 of the Code of Civil Procedure (C.M. 1741 of 1968 and C M. 3125 of 1969) to produce some documents, one of which is a copy of the judgment of the Civil Judge Malihabad at Lucknow dated 25th July 1968 made on the petition of Dr. Amarjit Kaur against Kanwar Vijay Pal Singh under Section 11 of the Act annulling the marriage between them on the ground that it was a nullity Before admitting this evidence, notice had been issued to Kanwar Vijay Pal Singh, Respondent, it may be noted that the Respondents to the appeal are Kanwar Vijay Pal Singh and Dr. Amarjit Kaur but none of them has appeared to contest the appeal Kanwar Vijay Pal Singh was served by publication as he could not be served in the ordinary way. Before admitting the additional evidence, he was also given notice which was served on him by affixation on the outer door of his last known place of residence. In -spite of the fact that the appeal of Kanwar Vijay Pal Singh against the Appellant from the order of the learned trial Court dismissing his petition under Section 9 of the Act is also pending in this Court and was ordered to be heard alongwith this appeal, his learned Counsel stated that he had no instructions to appear in this appeal. That appeal could not be heard alongwith this appeal because Respondent No 1 had not paid the maintenance allowance and the expenses of defending the appeal to his wife. Karam Bir Kaur, the Appellant, in this appeal. It is thus clear that Kanwar Vijay Pal Singh is deliberately not defending this appeal. I allow the miscellaneous applications of the Appellant to produce additional evidence referred to above. From the copy of the judgment passed 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 filed 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 bad 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. It has been held by a Division Bench of the Bombay High Court in Rajni Prabhakar Lokur v. Prabhakar Raghavendra Lokur : AIR 1958 Bom 264. - It would not be in consonance with the intention of the Legislature to put too narrow and too circumscribed a construction upon the words 'is living' in Clause (i) of Sub -section (1) of Section 13. On the other hand, it is clear that too loose a construction must also not be put on these words. For attracting the operation of these words, it would not be enough if the spouse was living in adultery sometime in the past, but had seceded from such life for an appreciable duration extending to the filing of the petition. Shamsher Bahadur. J., in Bhagwan Singh Sher Singh Arora v. Amar Kaur W/O Bhagwan Singh : AIR 1962 P&H 144 expressed a similar view observing: It has been rightly argued by the counsel for the Respondent that it must be shown right up to the date of petition and even till the date of the decree that the offending Respondent is living in the matrimonial offence of adultery to entitle the aggrieved spouse to claim a decree for dissolution of marriage on this ground.
(3.) IN Dr. H. T. Vira Redai v. Kistamma : AIR 1969 Mad 235 a Division Bench of Ramamurti and Ramaprasada Rao, JJ. observed: In a proceeding under Section 13 for a decree of divorce, on the ground of adultery, it is necessary that the course of immoral conduct must be more or less continuous and isolated lapses and acts of immorality would not suffice. On the other hand, for the relief of judicial separation under Section 10(1) (f), the party aggrieved will be entitled to that relief even if he proves one single act of infidelity on the part of the wife, she having had sexual intercourse with a stranger.;