# CHANDRA MOIIlNI SRIVASTAVA v. AVJNASH PRASAD SRIVASTAVA & ANR

- **Citation:** [1967] 1 S.C.R. 864
- **Court:** Supreme Court of India
- **Decided:** 1966-10-13
- **Case number:** Civil Appeal No. 138 of 1966
- **Bench:** K. N. Wanchoo, G. K. Mitter
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/chandra-moiilni-srivastava-v-avjnash-prasad-srivastava-anr-3927
- **Pages:** 9

## Headnote

Hindu Marriage Act (25 of 1955), s. 13(1)(i) and (viii) as amt,..,_
by Hindu Marriage (Uttar Pradesh Sanshodlum)Adhiniyam (13 of 1962)-
Decru for divorce when can be passtd-ConiJonatlon-What amounts to.
Constitution of India, 1950, Al'V. 136-No right of appeG-1 agaiNt
decree for d1vorc.e-Stcond 1narriage by husband in i'gnorance of grant of
special ltave-lf special leave can be revoktd.
. The respond~t filed a suit against his wife, the appellant, for dissolu·
uon of his marnage with her on the ground that she was living in adultery.
The trial court dismissed the suit.
Jn appeal, the High CoUtt held that
the wife was not living in adultery. but that two letters written by the
co-respondent to the wife showed that there bad been se•ual intercoune
between the wife and the co-respondent in 1955, after the marriage, and
that the respondent woulcl be entitled to claim judicial separation under
s. 10(1) (f) of the Hindu Marriage Act, 1955.
Relying upon the amendment to s. 13(1 )(viii) by the Hindu Marriage (Uttar Pradesh Sansbodhan)
Adhiniyam, 1962, the High Court also held that it was a case wbue a
decree for dissolution of marriage could be passed.
The decree of the
High Court was dated 7th January 1964 on which date the marriage
stood dissolved.
On 7th April 1964, the Wife presented a petition fqr
special leave to appeal to this Court. But, in ignorance of that step, the
respondent married another woman in July 1964 and a son was born to
her in May 1965.
Meanwhile, in September 1964, the respondent gpt
notice of the grant of special leave.
In September 1966, be applilod to
this Court for revocation of the grant of special leave, on the ground,
that because of the ne~ligcnce of the wife in not inforrning him that she
was applying for special leave, be bad married again and a child was
also born to his second wife who might become illegitimate if the appeal
was allowed.
HELD : ( 1) Even though it may not have been unlawf\tl for the respondent to have married immediately after the High Coon's decree, fer
no appeal as of right lies from the decree of the High CoUtt to this Court
in these matters. still, the respondent bad to make SUte whether an application for special loove bad been filed In this Court.
He could not, by
marrying immediately after the High Court's decree, deprive the wife of
the chance of J>resenting a special leave petition to this CoUtt. By doing
oo, he took a risk and could not ask this Court to rO\"Oke the special leave
on that ground. [868 E-0]
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(2) The order of the High Court granting divorce should be set aside.
(i) Even as~uming that the two letters indicated thlt there was some
illicit intimacy between the wife and the co-respondent, the High Court
was in error in granting divorC<!l under s. 13(1 )(viii) as amended by the
H
U.P. nmendment. Before a decree for divorce ean be granted thereunder,
there must fir.;t be a decree for judicial separation and thereafter, under
the amendment, a decree for divorce will follow if one of two conditiOlll
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CHANDRA MOIDNI v. AVINASH PRASAD (Wanchoo, J.)
865
is satisfied, namely, that (a) a period of two years had elapsed, or (b)
the case is one of exceptional hardship to the petitioner or of exceptional
deprivity on the part of the other party.
The amended clause therefore
requires first a decree for judicial separation and thereafter a decree for
divorce may follow under cl. {b) without waiting for two years. It is .not
open to a court to grant a decree for di,mce forthwith on the ground of
exceptional hardship to the petitioner or of exceptional depravity on the
part of the other party, even without a decree of judicial separation, on
the assumption that a decree of judicial separation could have been passed
on the ground mentioned in s. lO(l){f). [870 C-H]
{ii) The two letters do not howev.er indicate that there must have been
seo<ual intercourse between the wife and the co-respondent in 1955. Therefore, thl't"e was no ground even for a decree of ju

## Text

CHANDRA MOIIlNI SRIVASTAVA
v.
AVJNASH PRASAD SRIVASTAVA & ANR.
October 13, 1966
[K. N. WANCHOO AND G. K. MITTER, JJ.j
Hindu Marriage Act (25 of 1955), s. 13(1)(i) and (viii) as amt,..,_
by Hindu Marriage (Uttar Pradesh Sanshodlum)Adhiniyam (13 of 1962)-
Decru for divorce when can be passtd-ConiJonatlon-What amounts to.
Constitution of India, 1950, Al'V. 136-No right of appeG-1 agaiNt
decree for d1vorc.e-Stcond 1narriage by husband in i'gnorance of grant of
special ltave-lf special leave can be revoktd.
. The respond~t filed a suit against his wife, the appellant, for dissolu·
uon of his marnage with her on the ground that she was living in adultery.
The trial court dismissed the suit.
Jn appeal, the High CoUtt held that
the wife was not living in adultery. but that two letters written by the
co-respondent to the wife showed that there bad been se•ual intercoune
between the wife and the co-respondent in 1955, after the marriage, and
that the respondent woulcl be entitled to claim judicial separation under
s. 10(1) (f) of the Hindu Marriage Act, 1955.
Relying upon the amendment to s. 13(1 )(viii) by the Hindu Marriage (Uttar Pradesh Sansbodhan)
Adhiniyam, 1962, the High Court also held that it was a case wbue a
decree for dissolution of marriage could be passed.
The decree of the
High Court was dated 7th January 1964 on which date the marriage
stood dissolved.
On 7th April 1964, the Wife presented a petition fqr
special leave to appeal to this Court. But, in ignorance of that step, the
respondent married another woman in July 1964 and a son was born to
her in May 1965.
Meanwhile, in September 1964, the respondent gpt
notice of the grant of special leave.
In September 1966, be applilod to
this Court for revocation of the grant of special leave, on the ground,
that because of the ne~ligcnce of the wife in not inforrning him that she
was applying for special leave, be bad married again and a child was
also born to his second wife who might become illegitimate if the appeal
was allowed.
HELD : ( 1) Even though it may not have been unlawf\tl for the respondent to have married immediately after the High Coon's decree, fer
no appeal as of right lies from the decree of the High CoUtt to this Court
in these matters. still, the respondent bad to make SUte whether an application for special loove bad been filed In this Court.
He could not, by
marrying immediately after the High Court's decree, deprive the wife of
the chance of J>resenting a special leave petition to this CoUtt. By doing
oo, he took a risk and could not ask this Court to rO\"Oke the special leave
on that ground. [868 E-0]
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(2) The order of the High Court granting divorce should be set aside.
(i) Even as~uming that the two letters indicated thlt there was some
illicit intimacy between the wife and the co-respondent, the High Court
was in error in granting divorC<!l under s. 13(1 )(viii) as amended by the
H
U.P. nmendment. Before a decree for divorce ean be granted thereunder,
there must fir.;t be a decree for judicial separation and thereafter, under
the amendment, a decree for divorce will follow if one of two conditiOlll
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CHANDRA MOIDNI v. AVINASH PRASAD (Wanchoo, J.)
865
is satisfied, namely, that (a) a period of two years had elapsed, or (b)
the case is one of exceptional hardship to the petitioner or of exceptional
deprivity on the part of the other party.
The amended clause therefore
requires first a decree for judicial separation and thereafter a decree for
divorce may follow under cl. {b) without waiting for two years. It is .not
open to a court to grant a decree for di,mce forthwith on the ground of
exceptional hardship to the petitioner or of exceptional depravity on the
part of the other party, even without a decree of judicial separation, on
the assumption that a decree of judicial separation could have been passed
on the ground mentioned in s. lO(l){f). [870 C-H]
{ii) The two letters do not howev.er indicate that there must have been
seo<ual intercourse between the wife and the co-respondent in 1955. Therefore, thl't"e was no ground even for a decree of judicial separation in
favour of the respondent. [871 CJ
(iii) Even if there had been such sexual intercourse there was condonation within the meaning of s. 23 ( 1 )(b) of the Act. In his statement
under O.X, r. 2 Civil Procedure Code, the respondent admitted that he
knew of the illicit relations between his wife and the co•respondent e\1'n
in 1955 or 1956, bu! 'the respondent continued to live with his wife and
a son was born to them in 1957. The respondent tried to resile from that
statement by stating in his evidence that what he meant was that he
entertained suspicion only, but that he was definite aboutthe illicit intimacy
only in Ma}'!June 1958. But even thereafter, he admitted having sexual
relations with his wife up to October 19,58.
The fact that the husband
cohabited with the wife even after the knowledge that she had been guilty.
of cohabiting with another . would be aufficient to constitute condonation.
Moreover the respondent also admitted that he kept her with him at the
instance of his friends. This. was a clear indication of condonation even
in the sense of forgiveness, confirmed or made effective by reinstatement.
[871 D-H: 872 CJ
Perry. v. Perry, [1952] 1 All. E.R. 1076, referred to.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 138 of 1966.
Appeal by special leave from the judgment and order dated
January 7, 1964 of the Allahabad High Court in First Appeal No.
289 of 1961.
F
J.P. Goyal and M. V. Goswami, for the appellant.
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S. P. Sinha, Champa! Rai, E. C. Agarwala and P. C. Agarwala,
for respondent No. I,
The Judgment of .the Court was delivered by
Wanchoo, J. This is an appeal by special leave against the
judgment of the Allahabad High Court and arises in the following
circumstances. A suit was brought by the first respondent, Avinash
Prasad Srivastava, against the appellant for dissolution of !us
marriage with her and the grant of a decree of divorce. In the
alternative the first respondent prayed for a decree of judicial separation. His case was that he was married to the appellant on May
27, 1955, and the appellant lived with him for four years and a half.
The parties last resided together and cohabited at Bareilly. A
number of allegations of all kinds were made in the petition by the
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[I 967] I S.C.lt.
first respondent against the appellant; but it is unnecessary to refer
to them, for the first respondent had to bring his case under one or
other clause of s. 13 of the Hindu Ma~riage Act, No. 25 of 1955,
(hereinafter referred to as the Act) if he wanted a decree of divorce,
and under one or other clause of s. 10 if he wanted a decree of judicial separation. It is enough to say that the first respondent's case
so far as the l'rayer for divorce was concerned was based upon cl.
(i) of s. 13(1), namely, that the appellant was living in adultery,
"nd in the alternative, on cl. (viii) of s. 13(1) read with s. 2 of the
Hindu Marriage (Uttar Pradesh Sanshodhan) Adhiniyam, No. XIII
,,f 1962. As to judicial separation, the case apparently was based on
cl. {b) of s. 10(1), namely, that the first respondent had been treated
with cruelty within the meaning of that section, and also on cl. (f)
of s. 10(1).
.
The appellant denied that she had been living in adultery.
She also denied that she ever had sexual intercourse with Chandra
Prakash Srivastava, who was made a co-respondent in the petition.
She also denied that she was guilty of any cruelty as alleged. On
these pleadings, two main issues arose, namely-(i) whether the
appellant had been living in adultery or had sexual intercourse with
Chandra Prakash Srivastava after her marriage, and (ii) whether
she had treated the first respondent with such cruelty as to bring
the case within cl. (b) of s. 10(1). There were other issues as to
jurisdiction and as to some property the return of which the first
respondent was claiming, but we are not concerned with them now.
The trial court held that the appellant was not living in adultery.
It also held that it was not proved beyond doubt that there was any
sexual intercourse between the appellant and Chandra Prakash
Srivastava at any time.
It further held that even if there had been
any sexual intercourse it had been condoned.
Finally it held that no
such cruelty as came within the meaning of s. 10(1) (b) had been
proved.
In consequence the petition was dismissed and the prayer
for dissolution of marriage or in the alternative, for judicial separation, was refused.
The first respondent then went in appeal to the High Court.
The High Court held that it had not been proved that the appellant
had been living in adultery within the meaning ofs. 13 (I) (i) of the
Act. An attempt was made by the first respondent to prove illicit
intimacy between the appellant and Chandra Prakash Srivastava
in May or June 1958, but that was not believed either by the trial
court or by the High Court.
But the High Court relying on two
letters alleged to have been written by Chandra Prakash Srivastava
to the appellant held that there had been sexual intercourse between
the appellant and Chandra Prakash Srivastava in 1955. The High
Court also held that there was no condonation by the first respondent of this adulterous intercourse. It was therefore of orinion
that the first respondent would be entitled to claim judicial separation
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CHANDRA MOIIlNI v. AVINASH PRAiAD (Wanchoo, I.)
86T
Ii.
under s. 10 (I) (f) of the Act. However, using the U.P. amendment to·
s. 13 (!)(viii), the High Court held that this was a case where dissolution of marriage was necessary. The appeal therefore was
allowed and dissolution of marriage was granted by the High Court.
It may be added that on the question of cruelty, the High Court
held that there was no such cruelty as might come within the meanB
ing of s. 10 (1) (b). Thereupon the appellant obtained special leave,
and that is how the matter has come up before us.
Before we deal with the merits of the appeal, we may refer to an.
application (CMP No.· 2935 of 1966) filed on behalf of the first
respondent, in which he prays that the special leave granted to the
C . appellant be revoked. The grounds taken for revocation of special'
leave are that the High Court granted divorce to the first respondent
and ordered that its decree should take effect forthwith, with the·
result that the ~arriage between the appellant and the first respondent stood dissolved on January 7, 1964, when the High Court
allowed the appeal. The special leave petition was presented in this.
Court on April 7, 1964 and the appellant did not convey to the first
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respondent that she was intending to challenge the decision of the
High Court. She also did not pray for the stay of operation of the
order of the High Court. The first respondent therefore believed
that she had submitted to the order of the High Court and married
another woman on July 2, 1964. Special leave was granted to the·
appellant by this Court on August 25, 1964, and it was only on,
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September 9, 1964 when the first respondent got notice of the grant
of special leave that he came to know that the judgment of the High
Court was under appeal in this Court. In the meantime he had
already married another woman and a son was born to that woman,
on May 20, 1965. The first respondent therefore contended that
because of the negligence of the appellant in not informing him that
·she was applying to this Court for special leaye; he had married
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again and his new wife had given birth to a son, and in consequence·
this Court should now.revoke the special leave that was granted so·
that the new child might not become illegitimate.
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The application has been opposed on behalf of the appellant
and it is contended that it was no part of her duty to inform the·
first respondent that she was intending to apply to this Court for
special leave. It was also contended that it was for the first respondent to make sure before marrying that no further steps had been
taken by the appellant after the judgment of the High Court, and in
this COT\nectio&} she relied on ss. 15 and 28 of the Act. In any case
it is urged that the fact that the first respondent took the risk of
marrying without making sure whether any further steps had been
taken by the appellant was no ground for revocation of special leave.
It was also pointed out that though the first respondent had .been.
served as far back as September 9, 1964, he made the application
868
SUPUMB OOtlaT uroaTS
[1967] I s.c.ll
for revocation of special leave only on September 15, 1966, when the
appeal was ready for hearing.
We are of opinion that special leave cannot be revoked on
grounds put forward on behalf of the first respondent. Section 28
of the Act i11ter alia provides that all decrees and orders made by the
court in any proceedings under the Act may be appealed from under
any law for the time being in force, as if they were decrees and orders
of the court made in the exercise of its original civil jurisdiction.
Section 15 provides that "when a marriage has been dissolved by a
decree of di vorcc and there is no right of aP.peal against the decree
or, if there is such a right of appeal, the time for appealing has
expired without an appeal having been presented, or an appeal
has been presented but has been dismissed, it shall be lawful for
either party to the marriage to marry agairi." These two sections
make it clear that where a marriage has been dissolved, either party
to the marriage can lawfully marry only when there is no right of
appeal against the decree dissolving the marriage or, if there is such
a right of appeal, the time for filing appeal has expired without .an
appeal having been presented, or if an appeal has been presented it
has been dismissed.
It is true that s. 15 docs not in terms apply
to a case of an application for special leave to this Court.
Even so,
we arc of opinion that the party who has won in the High Court
and got a decree of dissolution of marriage cannot by marrying
immediately
after
the
High
Court's
decree
take
away
from the losing party the chance of presenting an application for
special leave.
Even though s. 15 may not apply in terms and it
may not have been unlawful for the first respondent to have married
immediately after the High Court's decree, for no appeal as of right
lies from the decree of the High Court to this Court in this matter,
we still think that it was for the first respondent to.make sure whether
an application for special leave had been filed in this Court and
he could not by marrying immediately after the High Court's
decree deprive the appellant of the chance to present a special leave
petition to this Court. Jf a person docs so, he takes a risk and
cannot ask this Court to revoke the special leave on this ground.
We need not consider the question as to whether the child born to
the new wife on May 20, 1965 would be legitimate or not, except to
say that in such a situation s. 16 of the Act may come to the aid of
the new child.
We cannot therefore revoke the special leave on the
grounds put forward on behalf of the first respondent and hereby
dismiss his application for revocation of >pecial leave.
Turning.now to the merits of the appeal, we have already indicated that the High Court as well as the trial court are agreed that
the appellant was not living in adultery at the time when the petition
was filed. They arc also agreed that there was no such cruelty as
would bring the case within the meaning of s. I 0( I) (bl oft he Act.
But the High Court found that there had been adultery between the
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CHANDRA MOIIlNI v. AVINASH PRASAD (Wanchoo, J.)
869·
appellant and Chandra Prakash in 1955 and the evidence for that
consisted of two letters said to have been written by Chandra
Prakash to the appellant. We cannot agree •with this conclusion
·of the High Court. Chandra Prakash was married to a cousin of
the appellant. He was therefore not a stranger to the appellant
and his writing letters to her would not therefore be a matter of any
surprise. We cannot also forget that the appellant in her statement
has denied on oath that she ever had illicit connection with Chandra
Prakash. There is also no doubt that the attempt of the first respondent to prove that there had been illicit intimacy between the
appellant and Chandra Prakash in May/June 1958 has failed and
both the courts have disbelieved the evidence in this behal. It
is in this background that we have to. examine the two letters on
which reliance has been placed by the High Court, that being the
only evidence in proof of adultery in 1955.
It is true that the appellant has· denied receiving those letters and
has also denied that she ever sent any letters to Chandra Prakash.
One can understand this denial in the case of a person like the
appellant who was facing a petition for .divorce on the ground of
adultery. But assuming that those two letters were received by the
appellant, that does not in our opinion prove that there was any
adultery between the appellant and Chandra Prakash in 1955. We
have read those letters and we must say that they are most improper
and should not have been written by a person like Chandra Prakash
who was married to the cousin of the appellant. But the first thing
that strikes us is that the mere fact that some male-relation writes
such letters to a married woman, does not necessarily prove that
there was any illicit relationship ·between the writer of the letters
and the married woman who received them. The inatter may have
been different if any letters of the appellant written to Chandra
Prakash had been proved. Further there is intrinsic evidence in the
fotters themselves which shows that whatever might have been the
feelings of Chandra Prakash towards the appellant, they were not
necessarily reciprocated by the appellant. In Ex. 2, Chandra
Prakash Wrote to the appellant, "You love me as you love others
and this is why my share is very small. You write me letters tosatisfy your anger". This seems to suggest as if Chandra Prakash
was getting no response from the appellant. Again in Ex. 3, Chandra Prakash wrote, "I know that you would be angry with me, but
what can I do." This again suggests that Chandra Prakash was
getting no response from the appellant. Further in both these letters
Chandra Prakash conveyed his respects to the appellant's husband,
and on the whole we are not satisfied that these letters indicate that
there must have been sexual intercourse between-the appellant and
Chandra Prakash in 1955, which was the time when these letters
were written. When we have the clear denial of the appellant _to·
the effect that she never had any sexual intercourse with Chandra
870
SUPlt.l!ME COUJlT llBPOR.TS
{l 967) I S.C.ll..
Prakash, we have no hesitation in a=pting that denial, for there is
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nothing in these letters which would even suggest that the denial
was false.
N ~r does the evidence of the first respondent, once the
incident of May/June 1958 has b::en disbelieved, s.how anything
from which it can b~ inferred that there was any illicit relation
between the appellant and Chandra Prakash in 1955 or at any other
time.
We arc therefore in agreement with the trial court that these
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letters do not show that there was any illicit relationship between the
appellant and Ch3ndra Prakash in 1955.
We are further of opinion that even assuming that these letters
indicate that there was some illicit ir:tim1cy b~twecn the appellant
and Chandra Prakash, the Higli Court was still in error in granting
divorce under's. 13{l){viii) as amended by the U.P. am~ndment.
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By the U.P. amendment, the following clause was substituted for cl.
(viii) in the Act and was deemed always to have been substituted:-
·'(viii) has not resumed cohabitation after the passing
of a decree for judicial separation against that party and-
(a) a period of two years has elapsed since the p1ssing
of such decree, or
(b) the case is one of exceptional hardship to the
petitioner or of exceptional depravity on the part of the
other JJarty";
As we read this provision, it is clear that before a decree for divorce
can be granted thereunder, there must first be a decree for judicial
separation and thereafter under the amendment a decree for divorce
will follow if one of two condition& is satisfied, namely that (i) a
period of two years has elapsed, or (ii) the case is one of exceptional
hardship to the petitioner or of exceptional depravity on the part of
the other party. Sub-clause (b) in our opinion is not independent.
That sub-clause only comes into operation after a decree of judicial
separation has been passed. We cannot accept the contention
that it is open to a court under the amended provision to grant a
decree of divorce on the ground of exceptional hardship to the
petitioner or of exceptional depravity on the part of the other
party, even without a decree of judicial separation having been first
made. Sub-clause (b) can only apply after a decree for judicial
separation has been passed and it is not open to a court to apply that
clause and give a divorce forthwith as has been done in this case on
the assumption that a decree of judicial separation could have been
passed on the ground mentioned ins. IO (1) (f). We are clearly of
opinion that the amended clause [namely, cl. (viii) of s. 13(1))
still requires first a decree of judicial se:iaration and thereafter a
decree of divorce nay follow under cl. (bl without waiting for two
years. which is the necessary period for the application of cl. (a).
The High Court therefore was not right in passing the decree of
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CHANDRA MORINI v. AVINASH PRASAD (Wanchoo, /.)
871
divorce in this case forthwith under sub-cl. (b) of s. 13(l)(viii)
as amendedin U.P.
It has however been urged on behalf of the first.respondent tha
we may now pass a decree of judicial separation instead of a decree
of divorce passed by the High Court. We are of opinion that
even that cannot be done in the present case. The only ground on
wlrich the decree of judicial separation can now be asked for is that
mentioned ins. 10 (1) (f), namely that the appellant had sexual intercourse with any person other than her husband after the marriage.
The only allegation in that respect was that the appellant had sexual
intercourse with Chandra Prakash in 1955, and that is sought to be
proved by the two letters to wlrich we have referred already. We
have held that those letters do not prove that there was any sexual
intercourse between the appellant and Chandra Prakash in 1955.
Therefore, there is no ground even for a. decree of judicial separation
in favour of the first respondent.
Besides even if we were of opinion that there had been sexual
intercourse between the appellant and Chandra Prakash in 1955
(which we have no doubt is not true) this would be a case of condonation under s. 23(1)(b) of the Act. Under that provision a decree
of judicial separation cannot l:ie passed under s. 10(1) (b), if it appears
to the court that the petitioner has in any manner been accessory to
or connived at or condoned the act or acts complained of. In
his statement under 0. X. r. 2 of the Code of Civil Procedure, the
first respondent stated that it was in the month of June or July 1955
or 1956 that illicit relations of the appellant with Chandra Prakash
were confirmed to him. According to that statement the first respondent knew even in 1955 or 1956 that there had been adultery
between the appellant and Chandra Prakash. Even so, the first
respondent continued to live with the appellant and a son was
born to them in 1957. In his evidence the first respondent tried to
resile from his statement made under 0. X r. 2 and said that what
he meant was that in 1955/1956 he entertained suspicion only. This
explanation is of course untrue, for the words used in the statement
under 0. X r. 2 were that illicit relationi; between the appellant and
Chandra Prakash were confirmed to him. Even in his evidence the
first respondent stated that he was definite in May/June 1958 that
there was illicit connection between the appellant and Chandra
Prakash. It was admitted by the first respondent that he had sexual
relations with the appellant right upto October 1958. It is only in
February 1959 when the appellant came finally to Jive with the first
respondent that he said that he had no sexual relations with her
during her stay of fifteen days. He also admitted that even after
May/June 1958 he was willing to keep the appellant at the instance
of his friends.
872
SUPDMJ! COUllT llJ!POllTS
(1967) 1 s.c.a..
Reliance in this connection is placed on Perry v. Perry( I) as to
the content of condonation, which involves forgiveness confirmed
or. made effective by reinstatement. That was however a case of
desertion. It is urged (hat in order that forgiveness may be confirmed or made effective, something more than stray acts of cohabitation between husband and wife have to be proved. But where
as in this case, judicial separation is being claimed on the ground of
s. 10(1) (f), the fact that the husband cohabited with the wife even
after the knowledge. that she had been guilty of cohabiting with
another person would in our opinion be sufficient to constitute
condonation, particularly. as in this case, the first respondent knew
of the alleged adultery in May/June 1958 and still continued to cohabit with the appellant thereafter upto October 1958.
Further the
statement of the first respondent to the effect that he kept his wife
after May/June 1958 at the instance of his friends is a clear indication of condonation even in the sense of forgiveness confirmed or
made effective by reinstatement. We are therefore of opinion that
the first respondent is not even entitled to a decree of judicial separation.
We therefore allow the appeal, set aside the order of the High
Court and restore that of the trial court rejecting the petition of the
first respondent. The appellant will get her costs throughout from •
the first respondent.
V.P.S.
Appeal allowed.
(I) [19521 t All'E.R. 1076.
A
B
c
D