The meaning and scope of the expression "is living in adultery" in Clause (i) of Sub-section (1) of Section 13 of the Hindu Marriage Act, 1955, and its application in determining the grant of a decree for divorce.

Headnote:
HINDU MARRIAGE ACT, 1955 - SECTION 13(1)(I) - CONSTRUCTION - "IS LIVING IN ADULTERY" - MEANING AND SCOPE - DISTINCTION BETWEEN SINGLE LAPSE FROM VIRTUE AND CONTINUOUS COURSE OF ADULTEROUS LIFE - APPLICATION OF CLAUSE (I) OF SUB-SECTION (1) OF SECTION 13 - DELAY IN FILING PETITION - EFFECT - SECTION 23(1)(B) - CONDONATION - MEANING AND SCOPE - JUDICIAL SEPARATION - GROUNDS - SECTION 10(1)(F) - ADULTERY - EVIDENCE - SUFFICIENCY.
Fact of the Case:

The appellant-wife challenged the decree for divorce granted to her husband-petitioner on the ground that he failed to prove that at the date of filing the petition, she was living in adultery. The husband contended that a single lapse from virtue on the part of a spouse, if proved, would entitle the other party to a decree for judicial separation, but no decree for divorce could be passed unless it was established that at the date of the filing of the proceedings under the Act, the other party was living a continuous course of adulterous life.
Finding of the Court:

The Court held that the words "is living in adultery" in Clause (i) of Sub-section (1) of Section 13 of the Hindu Marriage Act, 1955, should not be construed too narrowly or too loosely. While a single lapse from virtue would not suffice, the "living" contemplated by the provision must be related, from the point of proximity of time, to the filing of the petition, so as to allow a reasonable inference that the petitioner had a fair ground to believe that the other spouse was living in adultery at the time of filing the petition.
Issues: 1. Whether the words "is living in adultery" in Clause (i) of Sub-section (1) of Section 13 of the Hindu Marriage Act, 1955, require the spouse to be living in adultery at the date of filing the petition? 2. Whether a single lapse from virtue on the part of a spouse is sufficient to grant a decree for divorce under Clause (i) of Sub-section (1) of Section 13? 3. Whether a continuous course of adulterous life must be established at the date of filing the petition for divorce under Clause (i) of Sub-section (1) of Section 13? 4. Whether delay in filing a petition for divorce affects the grant of relief under Clause (i) of Sub-section (1) of Section 13? 5. Whether condonation by the petitioner of the act or acts complained of bars a decree for divorce under Clause (i) of Sub-section (1) of Section 13? 6. Whether judicial separation can be granted under Section 10(1)(f) of the Hindu Marriage Act, 1955, on the ground of adultery?
Ratio Decidendi: 1. The Court held that the words "is living in adultery" in Clause (i) of Sub-section (1) of Section 13 of the Hindu Marriage Act, 1955, should not be construed too narrowly or too loosely. While a single lapse from virtue would not suffice, the "living" contemplated by the provision must be related, from the point of proximity of time, to the filing of the petition, so as to allow a reasonable inference that the petitioner had a fair ground to believe that the other spouse was living in adultery at the time of filing the petition. 2. The Court held that a single lapse from virtue on the part of a spouse is not sufficient to grant a decree for divorce under Clause (i) of Sub-section (1) of Section 13. 3. The Court held that a continuous course of adulterous life must be established at the date of filing the petition for divorce under Clause (i) of Sub-section (1) of Section 13. 4. The Court held that delay in filing a petition for divorce affects the grant of relief under Clause (i) of Sub-section (1) of Section 13, as it may indicate condonation or acquiescence by the petitioner. 5. The Court held that condonation by the petitioner of the act or acts complained of bars a decree for divorce under Clause (i) of Sub-section (1) of Section 13. 6. The Court held that judicial separation can be granted under Section 10(1)(f) of the Hindu Marriage Act, 1955, on the ground of adultery.
Final Decision: The decree for divorce granted by the trial court was set aside, and a decree for judicial separation under Section 10 of the Hindu Marriage Act, 1955, was substituted. The petitioner-husband was awarded costs throughout from the co-respondent.

Judgment

1. This appeal raises a question under the Hindu Marriage Act, 1955, and the question is one of construction of Clause (i) of Sub-section (1) of Section 33 of the Act. This question arises upon the following facts.

2. The appellant in this appeal is the wife of the respondent No. 1 and she has filed this appeal from a decree passed by the learned Civil Judge, Senior Division, Thana, in Petition No. 12 of 1955 made by the husband under the Hindu Marriage Act, 1955. By the decree passed by the learned Judge, the marriage between the appellant and respondent No. 1, Prabhakar Raghavendra Lokur has been dissolved. In other words, it is a divorce decree. It has been further ordered by the decree that respondent No. 1 husband shall recover costs of the petition from respondent No. 2 who is the co-respondent in this case. The wife and the co-respondent have been ordered to bear their own costs. It is from this decree that the wife has filed the present appeal.

3. A few facts leading up to the filing of petition No. 12 of 1955, by the husband under the Hindu Marriage Act, 1955, may now shortly be stated. It is a petition for divorce or in the Alternative for a judicial separation under the Hindu Marriage Act, 1955. As I have stated above, respondent No. 1 in this appeal is the husband of the appellant Rajani. Respondent No. 2 Madhu Shankar Kulkarni has been impleaded as co-respondent. In the course of this judgment, I shall refer to the husband as the petitioner. The petitioners case is that he was married to the appellant on 16-5-1952, at Kallhali, a village near Jamkhandi in the district of Bijapur. On the next day, i. e., 17-5-1952, the petitioner and his family returned to their home town at Kurundwad. The petitioners wife, on some pretext or another, did not accompany her husband and his family to Kurundwad. The petitioners contention is that she refused to accompany him to Kurundwad, because she did not like her marriage with him. On 11-8-1952, the wife went to live with the petitioners family at Kurundwad. She lived there till 15-10-1952. On 15-10-1952 she returned to her parents place in Jamkhandi. During the abovementioned period from 11-8-1952 to 15-10-1952, the petitioner was serving in Bombay. He was working as a junior assistant in one of the departments of the Secretariat in Bombay. During the aforesaid period of nearly two months from 11-8-1952 to 15-10-1952, the petitioner Went to Kurundwad on a weeks casual leave. There he met his wife, but she refused to co-habit with him. The days passed on and in February 1938 the petitioner secured residential accommodation in Dombivli. Thereafter the petitioners father wrote to the petitioners wifes father asking the latter to send the petitioners wife to reside with the petitioner. The petitioners wifes father sent a delayed reply to this letter and the reply was to the effect that as the petitioner wife had to attend a marriage of the daughter of Dr. Kulkarni in Ramdurg on or about the 19th or 20th April 1953, her going to reside with her husband, the petitioner, might be postponed till after the above said marriage. The petitioners wife thereafter went to Ramdurg on 13-4-1953 and lived in Ramdurg with the family of Dr. Kulkarni for about three weeks till 6-5-1953. on 6-5-1953, she returned to her own fathers place at Jamkhandi. It may be noted at this juncture that Dr. Kulkarnis son is the co-respondent in this petition, and it is the contention of the petitioner that, while his wife was living in Ramdurg during the abovementioned period of three weeks in the house of Dr. Kulkarni from 13-4-1953 to 6-5-1953, she was living in adultery with Dr. Kulkarnis son. On or about 2-6-1953, the petitioners wife went to Dombivli to live with her husband. But, while living in the house of the petitioner, she did not permit the petitioner to have access to her. The petitioner has two brothers Manohar and Parasharam. When the petitioners wife went to live with the petitioner in Dombiv

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