Case Note & Summary
The dispute arose from a matrimonial petition filed by the respondent husband under the Hindu Marriage Act, 1955, seeking dissolution of marriage by divorce and alternatively judicial separation from the appellant wife. The parties married on 27 May 1955 and last cohabited at Bareilly. The husband alleged that the wife was living in adultery with the co-respondent and had treated him with cruelty. The husband based his divorce prayer on Section 13(1)(i) of the Hindu Marriage Act, 1955, alleging the wife was living in adultery, and alternatively on Section 13(1)(viii) as amended by the Hindu Marriage (Uttar Pradesh Sanshodhan) Adhiniyam, 1962. For judicial separation, he relied on Section 10(1)(b) (cruelty) and Section 10(1)(f) (adultery). The trial court dismissed the petition, holding that living in adultery was not proved, any sexual intercourse had been condoned, and cruelty was not established. On appeal, the Allahabad High Court in First Appeal No. 289 of 1961, by judgment dated 7 January 1964, held that living in adultery was not proved, but relying on two letters alleged to be written by the co-respondent to the wife, concluded that sexual intercourse had occurred in 1955, and that there was no condonation. The High Court then invoked the U.P. amendment to Section 13(1)(viii) and granted a decree of divorce, dissolving the marriage forthwith. The wife applied for special leave to appeal to the Supreme Court on 7 April 1964; special leave was granted on 25 August 1964. In ignorance of the special leave petition, the husband married another woman on 2 July 1964, and a son was born to that second wife on 20 May 1965. The husband later filed an application CMP No. 2935 of 1966 for revocation of special leave. The Supreme Court considered whether the High Court could grant divorce directly under the amended Section 13(1)(viii) without first passing a decree for judicial separation; whether the two letters proved sexual intercourse sufficient for judicial separation under Section 10(1)(f); whether the husband had condoned any adultery by cohabitation under Section 23(1)(b); and whether special leave should be revoked because of the husband's second marriage. The appellant wife contended that she was not obliged to inform the husband of her special leave petition, that the husband took the risk by remarrying without verifying whether further steps had been taken, and that the two letters did not prove adultery; alternatively, if any adultery occurred, it was condoned by the husband's continued cohabitation. The respondent husband argued that the wife's negligence in not informing him caused his second marriage and the birth of a child, so special leave should be revoked to avoid illegitimacy, and that the High Court correctly granted divorce based on exceptional hardship or depravity. The Supreme Court held that Sections 15 and 28 of the Hindu Marriage Act made it lawful to remarry only after the time for appeal had expired or an appeal had been dismissed, and that the husband could not, by marrying immediately after the High Court's decree, deprive the wife of her chance to present a special leave petition. The Court refused to revoke special leave. On merits, the Court found that the amended Section 13(1)(viii) required first a decree for judicial separation; only then could a divorce decree follow if either two years had elapsed or the case showed exceptional hardship to the petitioner or exceptional depravity on the other party. The High Court erred in granting divorce without such prior judicial separation. The Court also held that the two letters did not prove sexual intercourse in 1955, so no ground for judicial separation under Section 10(1)(f) existed. Furthermore, even if adultery had occurred, the husband's admission in his statement under Order X Rule 2 CPC that he knew of the illicit relations as early as 1955 or 1956, yet continued to live with the wife and a son was born in 1957, and his admitted sexual relations up to October 1958, constituted condonation under Section 23(1)(b). The Court referred to Perry v. Perry, [1952] 1 All E.R. 1076, on condonation by reinstatement. The Supreme Court allowed the appeal, set aside the Allahabad High Court's decree of divorce dated 7 January 1964, and dismissed the application for revocation of special leave. The result was that the husband's petition for dissolution or judicial separation failed, and the trial court's dismissal stood restored.
Headnote
A) Hindu Law - Divorce - Prior Judicial Separation Required Under U.P. Amendment - Hindu Marriage Act, 1955, Section 13(1)(viii); Hindu Marriage (Uttar Pradesh Sanshodhan) Adhiniyam, 1962, Section 2 - The High Court erroneously granted divorce directly on ground of exceptional hardship/depravity without first passing a decree for judicial separation under Section 10(1)(f). The Court held that the amended clause requires first a decree for judicial separation and thereafter divorce may follow if either two years elapsed or exceptional hardship/depravity shown. Held the divorce decree set aside (Paras Not mentioned). B) Evidence - Letters as Proof of Adultery - Section 10(1)(f) Hindu Marriage Act, 1955 - Two letters alleged to be written by co-respondent to wife did not establish sexual intercourse in 1955; therefore no ground for judicial separation arose. The High Court's reliance on the letters was misplaced and the finding reversed (Paras Not mentioned). C) Hindu Law - Condonation - Section 23(1)(b) Hindu Marriage Act, 1955 - Husband's cohabitation with wife after knowledge of her adulterous relations amounted to condonation; admission under Order X Rule 2 CPC of knowledge as early as 1955-56, continued living together, birth of son in 1957, and sexual relations up to October 1958 constituted forgiveness confirmed by reinstatement. Referred to Perry v. Perry, [1952] 1 All E.R. 1076 (Paras Not mentioned). D) Supreme Court - Special Leave Petition - Article 136 Constitution of India, 1950; Sections 15 and 28 Hindu Marriage Act, 1955 - Respondent's second marriage in ignorance of pending special leave petition did not justify revocation of special leave; party marrying before exhausting appeal rights takes risk and cannot deprive other spouse of chance to seek special leave. Held application for revocation dismissed (Paras Not mentioned).
Issue of Consideration
Whether the High Court could grant a decree of divorce under Section 13(1)(viii) as amended by the Hindu Marriage (Uttar Pradesh Sanshodhan) Adhiniyam, 1962, without first passing a decree for judicial separation; whether the two letters relied upon established sexual intercourse sufficient for judicial separation under Section 10(1)(f); whether the husband had condoned the wife's alleged adultery under Section 23(1)(b); and whether special leave granted under Article 136 of the Constitution of India should be revoked because the respondent married again in ignorance of the special leave petition.
Final Decision
The Supreme Court allowed the appeal, set aside the Allahabad High Court's decree of divorce dated 7 January 1964, and dismissed the application for revocation of special leave. The result was that the husband's petition for dissolution or judicial separation failed, and the trial court's dismissal stood restored.
Law Points
- Legal points not extracted
- Divorce under U.P. amendment to Section 13(1)(viii) requires prior decree for judicial separation
- Condonation occurs when husband cohabits with wife after knowledge of adultery
- Special leave cannot be revoked due to respondent's second marriage after High Court decree
- Two letters insufficient to prove sexual intercourse
- Party marrying without verifying pending special leave petition takes risk
- U.P. amendment cannot be used to grant divorce without judicial separation decree
