B.M. Lal, J.
1. This appeal under Section 28 of the Hindu Marriage Act, 1956 (hereinafter referred to as the Act) is filed by the husband.
2. The appellant brought an action under Section 13 of the Act seeking a decree for divorce against the respondent/wife on the ground of adultery.
3. In short, the appellant-plaintiff's case is that the parties are Hindus. Appellant's marriage with respondent No. 1 Smt. Ratna Prabha was solemnised according to the custom and Ritis prevalent in their caste in the year 1968. They both lived at Bhopal and the spouse was blessed with three issues. Appellant stated that Smt. Ratna Prabha-wife deserted him without any excuse on 10th of June, 1978; and all the attempts made by him to bring her to matrimonial home resulted in futile. It is further submitted that she is leading a adulterous life with one Dr. Dafal - respondent No. 2, who was Assistant Superintendent of Hamidia Hospital, Bhopal, and residing in Arera Colony. He, therefore, prayed for a decree of divorce.
4. The respondent No. 1, while filing her written statement, emerged with a plea that it is the husband who deserted her. She also stated that she has been subjected to cruel treatment by the appellant. He actually drove her out of the matrimonial home. The other wild allegations about the adultery have been denied. She further submitted that the appellant has entered into a second marriage, and therefore to get over from the legal complications; by concocting and making false allegations, this petition has been filed. She further submitted that, on similar facts about the adultery on an earlier occasion vide Civil Suit No. 32-A/78 was filed, and the same was withdrawn by him on 26-7-79. She, therefore, submitted that the present suit on the same allegations is not maintainable.
5. The trial Court by the impugned judgment and decree dismissed the suit, against which this appeal is filed.
6. After hearing the rival contentions of the parties, this Court has come to the conclusion that this appeal has no substance and deserves to be dismissed.
7. The learned counsel, appearing for the appellant, frankly conceded that the earlier suit was not withdrawn with the permission of the Court to file a fresh suit. Therefore, Order 23 Rule 1(4) C.P.C. comes into operation creating legal impediment in instituting a fresh suit in respect of the same cause of action about the adultery; and, therefore, the trial Court has rightly reached the conclusion that the present suit is not maintainable in the eye of law.
8. Though in view of the fact that the suit, as framed and filed, is not maintainable as the earlier suit on the same cause of action was withdrawn on 26-7-79, yet the learned counsel has advanced an argument that the appellant has successfully proved that the respondent/wife is leading an adulterous life with respondent No. 2 Dr. Dafal. No doubt, for such allegations, it is difficult to get direct evidence and, therefore, in the absence of such direct evidence, the Court has to drawn positive inference from the surrounding circumstances of the case. But the facts of the instant case have proceeded in reverse gear, inasmuch as the appellant has tried to lead the direct evidence on the subject of adultery.
9. Naval Kishore Sharma (PW 2) and Vijay (PW 3) are the witnesses, who have deposed that they have seen the respondent No. 1 Smt. Ratna Prabha in a compromising position with Dr. Dafal number of times; but surprisingly enough, they state that they have deposed this fact before this Court for the first time, and at no point of time, prior to it, they disclosed this fact to the appellant Prakash Chand Gaikwad. If this is so, then how these two witnesses on the point of adultery have been examined by the appellant. Such a statement negatives the case of the appellant relating to adultery.
10. No other points were pressed by the appellant.
11. From the discussion aforesaid, this appeal is devoid of force and is hereby dismissed. Counsel's fees Rs. 750/- if certified.