1. The present Second Appeal under Section 100 of the Code of Civil Procedure has been preferred by the appellant-husband to quash and set aside the impugned judgment and order passed by the learned Assistant Judge, Mehsana dated 17/01/1985 in HMP No. 60/1983 by which the learned trial Court has dismissed the said HMP preferred by the appellant-husband for getting the decree for divorce on the ground of adultery by the respondent no. 1-wife. The learned trial Court after framing the issue at Exh. 23 and on appreciation of evidence has dismissed the said application and has refused to pass the decree for divorce by holding that the appellant-husband has failed to prove that respondent no. 1-wife was living in adultery. Being aggrieved and dissatisfied with the impugned judgment and decree passed by the learned Assistant Judge, Mehsana in HMP No. 60/1993 in dismissing the said petition and refusing to pass the decree for divorce, the appellant-husband preferred Regular Civil Appeal No. 119/1985 before the learned District Court, Mehsana, which has been dismissed by the learned appellate Court by impugned judgment and order dated 06/03/1986 by confirming the judgment and decree passed by the learned trial Court dismissing the aforesaid HMP. Being aggrieved and dissatisfied with the impugned judgment and orders passed by both the Courts below, the appellant-husband has preferred the present Second Appeal under Section 100 of the Code of Civil Procedure.
2. Ms.
Brahmbhatt, learned advocate appearing on behalf of the appellant-husband has vehemently submitted that both the Courts below have materially erred in law in dismissing HMP No. 60/1983 and Regular Civil Appeal No. 119/1985 on the ground that the adultery relationship has not been proved. It is further submitted that both the Courts below have materially erred in discarding the evidence of the appellant-husband as well as the independent witness. Making the above submission, it is requested to allow the present Second Appeal by submitting that as such parties are staying separately since many years.
3. The present Second Appeal is opposed by Shri Panchal, learned advocate appearing for Shri Jani, learned advocate appearing on behalf of respondent no. 1-wife. It is submitted that as such there are concurrent findings of fact given by both the Courts below in not believing the case of adultery made by the appellant-husband, which are not required to be interfered with by this Court in exercise of the powers under Section 100 of the Code of Civil Procedure. It is submitted that as such no substantial question of law arises in the present Second Appeal and, therefore, it is requested to dismiss the present Second Appeal.
4. Heard the learned advocates appearing on behalf of the respective parties at length and considered the impugned judgment and orders passed by both the Courts below as well as the evidence on record. At the outset, it is required to be noted that as such there are concurrent findings of fact given by both the Courts below holding that the appellant-husband has failed to prove the allegation that the respondent-wife is living in adultery and the finding of fact given by both the Courts below are on appreciation of evidence, which are not required to be interfered with by this Court in exercise of powers under Section 100 of the Code of Civil Procedure. This Court has considered the evidence on record and considering the same, it appears that no illegality has been committed by the Courts below in dismissing the HMP and refusing to pass the decree for divorce on the ground that respondent no. 1-wife was living in adultery. It is required to be noted that even absurd allegations have been made against respondent no. 1-wife, which are rightly disbelieved by both the Courts below. It is required to be noted that it was alleged by the appellant-husband that respondent no. 1-wife was living in adultery with her father, which is absolutely not believable and which is not rightly believed.
5. It is also required to be noted that this is a Second Appeal under Section 100 of the Code of Civil Procedure and unless any substantial question of law arises the same is not required to be entertained. The learned advocate appearing on behalf of the appellant-husband has failed to show any substantial question of law arising in the present Second Appeal.
6. Under the circumstances, the present Second Appeal deserves to be dismissed and is accordingly dismissed. No cost.
(M.R.
SHAH, J.) siji Top