S.K. Mal Lodha, J. - (1.) This is an appeal by the husband Mohanlal under section 28 of the Hindu Marriage Act (No. XXV of 1955) for short 'the Act') against the judgment dated October 19, 1979 of the learned District Judge, Bikaner by which he dismissed the petition for dissolution of marriage by a decree of divorce under section 13(1) of the Act. For the sake of convenience, the husband-appellant and the wife-respondent will hereinafter be referred to as 'the husband' and 'the wife' respectively in this judgment.
(2.) The husband filed a petition under section 13 (1) of the Act October 13, 1972 for dissolution of marriage by a decree of divorce on August 13, 1972 in the Court of District Judge, Bikaner. It was stated by him that he was married with the wife in November, 1965 and, thereafter, they resided at Bikaner as wife and husband. A girl was born in January, 1979 out of this wedlock. According to the husband, the wife has been residing at her parents' house preceding four years from the date of presentation of the petition. It was stated that the husband and the wife met last on December 24, 1971 and thereafter they did not meet. An averment was made in para 7 of the petition that the wife is pregnant and its duration is of five months. In para 8 of the petition, it was stated that for the last seven months, prior to the filing of the petition, the husband and wife neither met nor cohabited. The words used in puss are : It was alleged that the wife has been pregnant by a person other than the husband and so she is leading an adulterous life, and that as she is carrying on prostitution, she is not fit to remain as husband's wife so he is entitled to the decree for dissolution of marriage by divorce. The wife resisted the petition. She did not admit that they met last only on December 24, 1971. She also denied that in August, 1972, there was pregnancy of five months, but according to her at that time she was having pregnancy of 71/2 months duration. She denied the charge of adulterous life. In the additional pleas, she stated that she was suffering from serious disease and on account of that she became extremely week, that her in-laws did not get her treatment properly, but treated her with cruelty, and because of this, she was forced to go to her parents' house.
(3.) On November 15, 1975, following issues were framed:- 1. Whether the respondent was and is living in adultery ? 2. Has the court jurisdiction to try the petition ? 3. Relief to follow ? The husband examined himself as P. W. 1 and P. W. 2 Malchand on July 24, 1976. Thereafter, the statements of N.A.W. 1 Smt. Pushpa Devi and N.A. W. 2 Smt. Rukma Devi were recorded on November 1, 1976. The parties finished their evidence. The case was posted for arguments and the arguments were heard on February 28, 1977 and it was ordered to be put up for judgment on March 15, 1977. An application for amendment of the petition was submitted on behalf of the husband on August 10, 1977 by adding the following in para 6 of the petition : This application was resisted by the wife by filing reply on August 18, 1977. The learned District Judge allowed the amendment on September 23, 1977 on payment of Rs. 30 as costs. The amended petition was filed on October 3, 1977. Thereafter, the wife took time for filing reply to the amended petition. However, as no reply was filed, the right to file reply to the amended petition was closed on December 11, 1978. An additional issue was framed on December 11, 1978, which, when translated into English, reads as under : 4. Whether non-petitioner had no cohabitation with the petitioner after the first week of October, 1971. If yes, what is the effect on the petition ? The parties did not lead any evidence in support of the aforesaid additional issue nor desired to cross-examine each others' witnesses after the filing of the amended petition. The learned District Judge by his judgment dated October 19, 1979 dismissed the petition under section 13(1) for dissolution of marriage by a decree of divorce. Hence this appeal by the husband. ;