CHITTATOSH MUKHERJEE, B. N. MAITRA

( 1 ) PETITIONER has asked for divorce on the ground of his wife's adultery and alternatively, for judicial separation on account of her cruelty. His allegation is that in the middle of May, 1959, he was married to Sulekha, respondent No. 1, according to Hindu rites. Since then they have been residing at Bangaon. He is a professor of Dina Bandu Maha Vidyalaya College of that place. From the beginning she had no liking for him. During the last four years the relations between the two became strained. She often used to gout out of the house with co-respondent No. 2, Biswanath. On the 13th September, 1970, at about 10 p. m. , he went to his house, opened the closed door for it was unbolted from within and found that Sulekha was in a compromising position with Biswanath. At his sight Sulekha became very angry and gave orders to Biswanath to do away with him. Biswanath picked up the bolt of the door and struck him on the head with it. He suffered grievous hurt, informed the police and was hospitalized. He was detained there for 21 days. A criminal case is pending against her and Biswanath over that incident. When he was in the hospital Sulekha did not go there to seem him. After that incident he became very much afraid and for fear of his life he was compelled to live elsewhere in a rented house. On the request of his father-in-law he did not institute the suit for he wanted to give her a chance to mend her ways. But she has been living in adultery with Biswanath and other unknown persons.

( 2 ) RESPONDENT No. 1 filed a written statement denying the petitioner's allegations. It has been alleged, inter alia, that on that night of the 13th September, 1970, the petitioner suddenly appeared before her and asked her to sign on a paper signifying her consent to his marriage with some other woman. She declined to comply with the request. Thereupon the petitioner flew into a rage and slapped her. All on a sudden, he fell down and sustained an injury in the head. She did not treat the petitioner with cruelty. When he was hospitalized, she used to go there and nurse him.

( 3 ) THE learned Additional District Judge stated that the story of commission of adultery was not proved. He believed that Biswanath inflicted injury on the petitioner's head at her instance. So, on the ground of cruelty he passed a decree for judicial separation against respondent no. 1. Hence this appeal by the wife.

( 4 ) IT has been contended on behalf of the appellant that in view of the provisions of section 23 (I) (d) of the Hindu Marriage Act, the petitioner is bound to explain the unreasonable delay of about three years and a half in filing the present suit. Reference has been made to the cases reported in (1) A. I. R. 1965 S. C. 364 and (2) A. I. R. 1979 Gujarat 98. The delay has not been explained and hence the suit will fail on that ground. The petitioner has come up with the story of cruelty on a solitary occasion. The single act of cruelty is not sufficient. It cannot be believed that Biswanath would commit sexual intercourse with her at that hour of the night, while the petitioner's mother and their five children were living in that house. The learned Additional District Judge rightly disbelieved that story. Reference has also been made to the case reported in (3) A. I. R. 1970 Cal. 266. It is true that the petitioner filed a criminal case against the respondents and both of them were convicted by the trial court. Biswanath did not move this Court against the order of conviction. But Sulekha came up in revision. Her revisional application was allowed by the High Court and she earned an acquittal. It cannot be believed that Biswanath assaulted him at her instance. There was a scuffle. The petitioner fell down and sustained the injury in the head. The true version of the incident has been kept back from the court by the parties.

( 5 ) IT has been urged on behalf of the husband, respondent no. 1 that the Hindu Marriage Act

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