JUDGMENT
Sardar Ali Khan, J.
1. O.P. No. 17 of 1983 on the file of the District Judge, Kurnool, filed by the petitioner-wife, who is the respondent in this appeal, contains allegations that the respondent-husband, appellant herein, was not maintaining the family and it was she alone, who was working as a teacher and earning some money from private tutions, was looking after the family. The wife further allege that the husband was leading a life an idler, addicted to drinks and other vices. The husband is said to have beaten the wife mercilessly in public street when she refused to give him any money for his drinking purposes. She also alleged adultery against the husband with all sorts of women. Therefore, the petition for dissolution of marriage under Section 10 of the Indian, Divorce Act was filed by the wife on the ground of adultery coupled with cruelty and desertion.
2. It may be mentioned here that the parties are Indian Christians and the application is filed by the wife for the dissolution of the marriage on the grounds briefly stated above.
3. In the counter filed on behalf of the respondent-husband the allegations levelled against him are flatly denied. The husband projects himself as the devoted parent who was making all efforts to meet the needs of the family. It is significant to note that in this counter the respondent-husband has stated that the petitioner had been treating the respondent in a disrespectful manner keeping one Babu in the house under the guise of paying guest. The other allegations made by the husband are that the wife is not carrying out her duties cast on her and that she is oblivion of providing comfort to the husband.
4. The couple were married about 25 years back and the husband is now aged approximately 60 years while the wife is nearing 50 years of age. In other words, they are not young couple who can seek solace while they are parted with each other at this late stage in life. Their children have grown up and one son is a doctor and the daughter has been married and is having her own children. The other significant factor which may be referred to at this juncture itself is a statement in the deposition of the husband who figured as RW 1 before the lower Court. It may be worthwhile to quote the statement given by the husband viz. “people were saying that my wife developed illicit Intimacy with that Babu. I also believed it to be true. I advised her to send him out and told her that it is not proper on her part to behave like that when she has a married daughter and a son who is a doctor.”
5. Now, coming to the order under appeal, it may be seen that the Court below has disbelieved the allegations made by the wife while seeking a decree for dissolution of marriage. The only ground on the basis of which the Court below has granted the decree of judicial separation appears to be the allegation of adultery made against the wife by the husband in the manner indicated above. While saying so, the Conrt below relied upon the decision reported in Smt, Kamala Devi v. Amarnath, (1) AIR 1961 Jammu and Kashmir 38. However, the point of distinction in that case is that the allegation of adultery against the wife was made by the husband in a petition filed by the husband against the wife under Section 498 of the Indian Penal Code which was found to be false. In that view of the matter it was held that such baseless allegation or unchastity on the part of the wife amounts to mental cruelty and a women of self-respect is bound to take such a charge to her heart. Of course, the case further proceeds by elaborating the fact that the charge of adultery is a serious matter which can be levied by a husband against his wife and therefore, must be dealt with in the background of the charge and the circumstances that may be surrounding the family life. It is, therefore, evident that while disbelieving almost all the allegations made by the wife in her petition, the Court below has granted the decree of judicial separation on the ground of the allegation of adultery made by the husband in the counter and the deposition. It is needless to mention that such an allegation has not been made in the petition because for the first time it has been levelled against the wife by the husband in the counter filed by him.
6. While agreeing with the general principle that a charge of adultery levelled against wife is a serious one and is bound to cause irreparable damage between the two, it remains to be seen from the facts of this case the manner in which such a charge has been levelled by the husband. Firstly, in the counter filed by the husband it is vaguely suggested that the wife is behaving in a disrespectful manner keeping one Babu in the house under the guise of a paying guest. It goes without saying that there is no positive charge of adultery levelled by the husband in the counter. At the most it can be construed to be an indirect hint that there is something wrong in her relationship with Babu. Coming to the deposition of RW 1 it may be seen that he has stated “People were saying that my wife developed illicit intimacy with that Babu. I also believed it to be true”. The manner in which this statement has been made clearly shows that there is lack of any positive assertion on the part of the husband to allege adultery against his wife. Each and every statement made by the husband may be some times in anger and another times in desparation of the wife behaving in an immoral manner it cannot be taken as a positive allegation of adultery, on part of the wife. The allegation of this nature, made after the petition for divorce has been filed by one of the spouses, particularly when they lack definiteness, cannot amount to cruelty thereby causing mental agony to the other party, This is one aspect which has to be kept in mind while discussing the pros and cons of the matter The Court below was, therefore clearly in error in granting a decree for judicial separation on the single and solitary allegation made almost in a nonchallaut manner against the wife alleging a reprehensible conduct while taking the individual Mr. Babu as per paying guest. We are, therefore, of the view that the order and decree under appeal are not susceptible in the eye of law and are, therefore, set aside. Consequently this CMA is allowed but in the circumstances of the case there will be no order as to costs.