LexCHANDRA MOHINI SRIVASTAVA versus AVINASH PRASAD SRIVASTAVA & ANR.
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
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 amend-
ment 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 res-
pondent 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 applica-
tion 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. There-
fore, 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 con-
donation 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 relatiExcerpt shown. Read the full judgment & AI analysis in Lexace.