JUDGMENT Gyanendra Kumar, J.
1. This is an appeal, by the petitioner-husband against the judgment and decree of the Civil Judge of Bareilly dismissing his petition under Sections 10 and 13 of the Hindu Marriage Act, 1955. The appellant had sought dissolution of the marriage, and in the alternative, judicial separation on three grounds, namely, adultery, cruelty and desertion by his wife.
2. The facts of the case are that the parties were married on 27-5-1955 at Gorakhpur. In November, 1957, a son was born from their union. The allegation of the appellant is that the respondent, without any just or reasonable cause, has been refusing her society to and co-habitation with the petitioner and that she has been living in adultery with the co-respondent Chandra Prakash. He has further claimed the recovery of ornaments and garments worth Rs. 2,000/- from the respondent (Smt. Chandra Mohani).
3. The co-respondent did not put in appearance at the trail, with the result that the case proceeded ex parte against him. The respondent, however denied' the allegations pf the appellant and alleged that it was the appellant and his parents, who had been treating her cruelly, that she had never deserted nor left her husband's home, as alleged by him. She strongly repudiated the allegation of the illicit intimacy with the co-respondent and denied having received letters from him including Exts. 2 and 3. Lastly she contended that "the ornaments mentioned in the petition were with the petitioner and not herself.
appellant was normally expected to be at home after returning from his office. It is again untrustworthy that the appellant would continue knocking at the door for about ten minutes or so, before the door was opened by the respondent or the co-respondent: In this connection it may be mentioned that no report was lodged, nor any action taken by the appellant or his parents about such a serious misconduct on the part of the respondent and her paramour.
6. However, the testimony furnished by the documentary evidence, particularly the two letters of Chandra Prakash co-respondent (Exts. 2 and 3) dated 16th and 1st July, 1955, respectively addressed to the respondent dearly indicate that the former was emotionally in love with the respondent. He was the husband of the maternal-cousin of the respondent. His relationship was also such that he could afford to make passionate overtures towards the respondent. The flowery language of these letters, the emotional out-bursts and the half revealed and half concealed sentiments expressed therein clearly indicate that it was not a sort of platonic love, which existed between the respondent and the co-respondent, but it was the usual intimacy of sex.
As was rightly pointed out in the case of Devyani Kantilal Shroff v. Kantilal Gamanlal Shroff, AIR 1963 Bom 98 it, is not necessary to establish the factum of adultery by direct evidence of some one having actually seen the lovers in the act, of incest through key-holes or by taking photographs of the adulterous intercourse. It is enough to prove the same by oral, documentary or circumstantial evidence from which the Court can draw an inference beyond reasonable doubt that the respondent and the co-respondent had adulterous relationship with each other. Therefore, even if we disregard the evidence of the appellant that he had actually seen the respondent and the co-respondent closeted together in a room in May/June, 1958, there is sufficient evidence to show that they had had reasonable opportunities of having sexual intercourse during that period when both of them lived at Gorakhpur. The two letters (Exts. 2 and 3) referred to above are clear pointers to such an inference. As indicated by these letters, the illegal intimacy between the respondent and the correspondent was after the solemnisation, of marriage between the appellant and the respondent. There is nothing to indicate that the appellant had really condoned the same after his suspicion was affirmed by the recovery of the two letters in February, 1959.
7. On the question of adultery, I may here point out a clear distinction between Sub-clause (f) of Section 10(1) of the Hindu Marriage Act and Clause (1) of Section 13 of that Act. In order to satisfy the requirements of Section 10(1)(f), it is enough to prove that the respondents had sexual intercourse with any person other than his or her spouse, even on one occasion after the solemnisation of the marriage. This would provide a valid ground for judicial separation between the parties provided the adulterous act had not been condoned or connived by the other spouse. However, for the purpose of Section 13(1) of the Act it is necessary to essablish continued living in adultery. In order to fulfil the requirements of this section a few stray or casual acts of adultery at her flung intervals is not sufficient. It refers to the adulterous way of life adopted by the erring party.
8. Applying the above principal distinction between Sections 10 and 13 to the facts of the instant case, there is nothing to indicate that the respondent has been living in adultery within the meaning of Section 13(1) of the Hindu Marriage Act. The only occasion or occasions on which the respondent is said to have committed acts of adultery relate to the period 1955. The learned Civil Judge, who had the advantage of seeing, hearing and watching the demeanour of the witnesses also came to the definite conclusion that there was some illicit intimacy between the respondent and the co-respondent, at that time. Therefore the appellant cannot claim divorce on the ground of the respondent living in adultery or leading a continued life of adultery. He would, however, be entitled to claim judicial separation even on the ground of adultery committed by the respondent in 1955, particularly when there is no proof to the effect that he had either condoned or connived at the acts of misconduct of his wife, after he was reassured about them in February, 1959, on discovery of the letter of the correspondent addressed to the respondent. At that time the appellant was posted at Bareilly, while the respondent was living at Gorakhpur. The suit was instituted on 25-10-1960 and it cannot be said that merely by the efflux of the intervening period the husband should be deemed to have condoned or connived at the adulterous acts of the respondent, nor can it be said to be a case of undue delay or laches on the part of the appellant in instituting the present suit, particularly when people are extremely hesitant to go to a Court of law regarding matters intimately concerned with their personal life. The finding of the Court below to the contrary does not appear to be correct.
9. So far as the question of cruelty is concerned, there is no satisfactory evidence of physical cruelty committed by the respondent upon the appellant. There is of course sufficient evidence of the respondent voluntarily depriving the appellant of her society and co-habitation for a long period. This, however, amounts to mental and moral cruelty to the appellant.
10. Regarding desertion, apart from the evidence of the appellant and his father P. W. 3 Kashi Parsad, there is the clear evidence of P. W. 2 Man Singh Gahlaut, Commercial Inspector, N. E. Railway Bareilly to the effect that he had himself seen the respondent fleeing away from her husband's house, that it was with great difficulty that he took her home, but she refused to live with her husband. Similar is the testimony of P. W. 5 Rajendra Mani Tripathi, another employee of the said Railway. He deposed that in October, 1958, the respondent had gone to the office of the appellant and threatened to commit suicide by laying herself on the railway track. She altogether refused to live with her husband. The factum of the alleged desertion of the appellant by the respondent is further corroborated by the letter dated 28-2-1959 written by P. W. Kashi Prasad to the father of the respondent, in which it had been emphasized that repeatedly the respondent had, without any sufficient cause, left the home of her husband.
The letters of the appellant addressed to the respondent dated 8-11-55 (Ext. A-1), 27-12-56 (Ext. A-2), 7-1-57 (Ext. A-3) and 4-1-57 (Ext. A-4) are also clearly indicative of the fact that the respondent had been living away from the appellant with-out adequate or reasonable cause. In the eyes of law, such deliberate living away of the wife from her husband clearly amounts to desertion of the appellant The parties have been living away from each other now for about six years. Today I gave them an, opportunity to talk aside to each other and see if by lapse of time their aggravated feelings have calmed down. But it appears that they are not set all prepared to reconcile with each other.
11. I would have normally been inclined to grant only decree for judicial separation and if the parties so liked, within the next two years, they could have reconciled themselves during that period and resumed cohabitation; in that event it would not have been necessary to seek an actual decree for divorce. But the long-drawn out strained relations between the parties, the final rift brought about by the revelation of the grave misconduct of the respondent with the co-respondent, considerably aggravated by the litigation, as well as their present mental attitude and approach towards each other are such that it would be of no use prolonging the agony for another two years. In fact it would be more in the interest of justice and in their own interest to grant a decree for dissolution of marriage outright now. The appellant is already about 31 years of age, while the respondent has also attained the age of 27; they have thus already passed the ages of matrimony, judged from normal Indian standards. By waiting for another two years, the situation would become worse and would cause great hardship to both the partners in the matter of future matrimony. At any rate, the case is one of exceptional hardship to the appellant and of exceptional depravity on the part of the respondent within the meaning of Section 13 (1) (i) (viii) (b) of the Hindu Marriage (Uttar Pradesh Sanshodhan) Adhiniyam XIII of 1962, and calls for immediate dissolution of the marriage bond. I, therefore, consider it just and expedient in the instant case to allow the appeal of the appellant and grant dissolution of his marriage with the respondent.
12. So far as the question of recovery of ornaments from the alleged possession of the respondent is concerned, there is no satisfactory evidence that she had really taken away the same when she had left the home of her husband. Even if she had done so, there is not sufficient evidence on the record to prove as to which particular items had really been gifted to her by her parents and which by the appellant or his parents, after marriage. Learned counsel for the appellant also does not seriously press for the relief relating to the ornaments. Under the circumstances, the claim for ornaments has no force and is rejected.
13. In the result, I allow the appeal for the grant of divorce of the appellant with the respondent to take effect forthwith. In the circumstances, of the case, I make no order as to costs.