JUDGMENT :- The appellant filed Hindu Marriage Petition No. 19 of 1964 for obtaining a divorce from the respondent, on the ground of her living in adultery. The trial court decreed the suit but the decision was set aside in Regular Civil Appeal No. 26 of 1965, by the learned District Judge of Bulsar at Navsari, who dismissed the suit with costs. It is against that order of dismissal that the present appeal is filed.

2. The learned trial Judge held that the oral evidence led on behalf of the petitioner was believable and that the same was supported by a letter Ex. 21, dated 10th April, 1962, written by the respondent-wife to the appellant admitting her intimacy with one Madhia alias Govind Ranchhod. He also held that looking to the circumstances of the case, after 19-3-1962, there was hardly any possibility of a sexual intercourse having been taken place between the parties, that the birth of a male child to the respondent on or about 25th February, 1963 was enough to show that the birth of that child was a result of adulterous course of conduct on the part of the respondent. He was also of opinion that the attempt of the respondent-wife of going to Hyderabad was an attempt to conceal the results of her leading an adulterous life and because of it she had not appeared before the Panch of the caste assembled for the purpose. He held that the petition was not bad for non-joinder of parties as the paternity of the illegitimate son appeared to be unknown.

3. The learned Judge in appeal disagreed with the appreciation of the evidence by the learned trial Judge and held that upto 23-1-1962 the parties were living happily and the evidence of Narsi and his mother, showing that Madhia twice or thrice visited the respondent at about 10 or 10-30 P. M. at night may at best create a suspicion against the respondent and would not necessarily mean that the respondent had committed adultery with Madhia. He was also of opinion that assuming that on one or two occasions the respondent had criminal intimacy with Madhia that would not be enough in law to hold that the respondent was "living in adultery". He went further and also held that the appellant-husband had condoned those instances of adultery with Madhia by staying with the appellant upto 18-4-1962 when she left for Bhinar village where her father was staying and that in these circumstances there would also be a presumption that the last sexual intercourse that may have taken place between the parties would be about 18-4-1962. He further held that after the respondent went to her father's place there was no evidence whatever that the respondent was living in adultery and that with the established position that the appellant had access to the respondent at his house at Dalvada upto 18-4-1962 a somewhat longer period of pregnancy amounting to about 313 days or so would not necessarily point in the direction of the respondent "living in adultery", which according to the learned Judge should be a continuous piece of conduct extending almost upto the date of petition. He also held that it was possible that the letter, Ex. 21, was a result of beating given by the appellant to the respondent

4. There are certain admitted facts namely that the parties were married in 1932 when they were children and the marriage was consummated in the year 1944 and ultimately a daughter named Kanta was born. The appellant was serving in Crompton Engineering Co. Madras Ltd., since about the year 1956 and had to go to various places in different States. His agricultural lands were being looked after by the respondent, and Madhia was their farm labourer. The appellant returned to Delvada from Banaras on 21-3-1962. Some time thereafter he came to know from Narsi, a neighbour that Madhia was seen visiting the respondent 2 or 3 times at night at about 10 or 10-30 P. M. Thereafter the appellant left Delvada on 19-3-1962 and returned to Delvada on 31-3-1962, as his brother was to be operated. Thereafter he again left Delvada

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