Harnam Singh, J.
1. On 10-3-1948, Major Ramchandra applied under Section 10, Divorce Act, 1869,for dissolution of his marriage with Mrs Saras- wati. Ramchandra on, the ground that Mrs. Saraswati Ramchandra was living in adultery with Mr. L. C. Acharaya alias father co-respondent. In the application, a sum of rupees 5,000/- was claimed as damages from. the corespondent on the ground of his, having committed adultery with Mrs.. Saraswati Ramchandra. (2) Mrs. Saraswati Ramchandra and Mr. Pather resisted the application for divorce and on the pleadings of the parties the following issues were fixed on 20th April 1948:
1. Has the respondent been guilty of adultery with the co-respondent as alleged in the petition?
2. If issue 1 is. found in favour of the petitioner, did the petitioner, in any manner, condone his wife's adultery?
3. Has there been any ill treatment with the respondent by. the petitioner, and if so, did such ill treatment, in any manner, lead to the adultery on the part of the respondent?
4. Is the petitioner not entitled to relief on account of the delay in filing ;the netition?
5. Is there any collusion between the/parties?
6. Does the petition require ad valorem court-fee on the amount of damages claimed?
7. In case the petition succeeds, is the petitioner entitled to damages, and if so; how much and against whom?
3. In the written statement put in by Mrs. Saraswati Ramchandra and Mr. Father it was admitted that the marriage between the parties was celebrated at Simla under Act 3 of 1872, hereinafter referred to as the Act, and that the parties were domiciled in India when the petition for dissolution of marriage was presented. Mrs. Saraswati Ramchandra further admitted in the written statement that the petitioner and respondent 1 last resided together within the local limits of the ordinary jurisdiction of the District Judge of Delhi.
4. Major Ramchandra examined evidence between 26th May 1948 and 8th July 1948. On 12th December 1948, Mrs. Saraswati Ramchandra made ah application under Rule 17 of Order 6 read with Section 151, Civil P. C., for the amendment of the written statement. On 1st April 1949, the amendment was allowed and an additional issue was fixed reading :
'Was the marriage between the parties under the Special Marriages Act invalid for any of the following reasons:
(a) that the respondent professed the Muslim religion while the petitioner professed the Hindu religion;
(b) that the respondent was in fact a Muslim and as such could not marry a Hindu like the petitioner under the Special Marriages Act or any other law.'
5. In support of the application for the dissolution of marriage Major Ramchandra examined Sham Lal P W. 1, Alamgir P. W. 2, Trimale Lachhmi Narshima Acharaya. P. W. 3, Muthra Parshad Sriwastva P. W. 4, Sardar Tar-lok Singh P. W. 5, Sardar Phool Singh P. W. 6, Jagdish Chandar P. W. 7. Manohar Lal P. W. 8, Kundan Lal P. W. 9, Behari Lal P. W. 10. Kishan Chand P. W. 11, Kidar Nath P. W. 12, Kalyah Singh P. W. 13, N. C. Ghosh P. W. 14 and himself gave evidence in his own cause, while the respondents did not examine any evidence in the case.
6. In deciding Divorce Case No. 3 of 1948 the District Judge at Delhi has found for the applicant on issues 1 to 5 and 8. Major Ramchandra gave up the claim for damages against the co-respondent. That being so, no decision has been given on issues 6 and 7. In the result, the District Judge has grantgfl. Major Ramchandra a decree 'nisi' for the. dissolution of marriage.
7. In these circumstances the. case has come up in this Court, for confirmation of the decree nisi passed by the District Judge on 31st May 1951.
8. In order to appreciate the contentions raised the facts of the case, so far as material, may be set out in some detail.
9. Respondent i Was married to Mr. H. SUn-der Rao in April 1935. In 1944 respondent 1 became a Muslim and on 10th March 1945, the Senior Subordinate Judge, Simla, decreeing Civil Suit No. 137 of 1944 declared that the marriage between Sara alias Saraswati with Shri H.: Sunder Rao stood dissolved. In this connection copy: of the judgment, Exhibit P.W. 15/1, may be seen. On 6th April 1945, respondent 1 was married to the petitioner under the Act by the Registrar of Marriages at Simla. Respondent I having left the house of the petitioner on 26th July 1947, instituted Criminal Case No. 75/4 of 1947 under Section 488, Criminal P. C. on 4th October 1947. On 8th April 1948, Major Ramchandra instituted Criminal Case No. 43/2 of 1948 against Mr. L. C. Acharaya under Section 497, Penal Code. On 20th January. 1949, Mr. L. C. Acharaya was convicted under Section 497, Penal Code, and sentenced to three months' rigorous imprisonment ior having committed adultery with Mrs. Saraswati Ramchandra.
10. Basing himself on the provisions of Section 57, Divorce Act, counsel for Mrs. Saraswati Ramchandra argues that the marriage of respondent 1 with the petitioner was void; for the marriage was performed within the period of wait as provided by Section 57, Divorce Act. As stated above, the Senior Subordinate Judge decreed Civil Suit No. 137 of 1944 on 10th March 1945, declaring, that the marriage of Sara, alias Saraswati 'with Shri H. Sunder Rao stood dissolved before the institution of that suit. Clearly Section 57, Divorce Act has no application to the facts of the case.
11. Counsel for Mrs. Saraswati Ramchandra then argues that inasmuch as respondent 1 was a Muslim'on 6th April 1946, when the marriage between respondent 1 and the petitioner was celebrated by the Registrar of Marriages at Simla, the marriage was void. That there is no force in the argument raised is plain from the provisions of Sections 2, 10 and 21 of the Act. in the present case.Major Ramchandra and Saraswati filed declarations under Section 10 of the Act stating that they professed no religion. The fact that the parties belonged to some religion and yet they declared before the Registrar that they professed no religion does not affect the validity of the marriage under the Act what-ever penalty they may incur for making a false declaration under Section 21 of the Act. For an authority on this point -- 'Dr. Niranjan Das v. Mrs. Ena Mohan', AIR 1943 Cal 146 may be seen.
12. Then it is said that the decree passedin Civil Suit No. 137 of 1944 on 10th March1945, .does not bind the parties for the reasonthat the ground on which the declaration thatthe marriage between Saraswati and Mr. H.Sundar Rao stood dissolved was given was notvalid in law. Indisputably, the Court of theSenior Subordinate Judge was competent toentertain Civil Suit No. 137 of 1944 and give adecision in that suit on the point of dissolutionof marriage between the parties. In these circumstances it is not open to Mrs. SaraswatiRamchandra to impugn the Validity of the judgment given by the Senior Subordinate Judgeon 10th April 1945.
13. Counsel for Mrs. Saraswati Ramchandra contends that the petnr. has not established that the co-respondent had corrimitted adultery with respondent 1. In my judgment, the evidence given by Sardar Tarlok Singh P. W. 5, Sardar Phool Singh P. W. 6, Jagdish Chandar P. W. 7, Manohar Lal P. W. 8, Kundan Lal P. W. 9, Behari Lal P. W. 10, Kidar Nath P. W. 12, Kalyan Singh P. W. 13 and Major Ramchandra proves that respondent 2 had committed adultery with respondent 1.
14. Major Ramchandra gave evidence that in June 1947 he allowed the co-respondent to live in his house for a few days till he could find accommodation, that the co-respondent lived in the house of the petitioner for a week or ten days and during that period the corespondent and Mrs. Saraswati Ramchandra used to go out for a walk and return late in the evening, that he asked the co-respondent to leave the house whereupon the co-respondent left the house but thereafter came to the gate of the house at about 7 a. m. and Mrs. Saraswati Ramchandra used to go away with the co-respondent and that suspecting illicit connection between Mrs. Saraswati Ramchandra and the co-respondent the petitioner protested but respondent 1 said that she would behave as she liked. On 26th July 1947, at about 2 p. m. when Major. Ramchandra returned from his office he found the respondent and the co-respondent going together carrying their bedding. The petitioner overtook Mrs. Saraswati Ramchandra and asked her to return home. Mrs. Ramchandra refused to listen and the co-respondent struck Major Ramchandra on his face. On 22nd April 1948, Major Ramchandra instituted Criminal Case. No. 43/2 of 1948 under Section 497, Penal Code, and in that case Mr. L. C. Acharaya was convicted under Section 497, Penal Code. and sentenced to three months' rigorous imprisonment for having committed adultery with Mrs. Saraswati Ramchandra.
15. Manohar Lal gave evidence that he occupied room No. 19/2 in Kings way Refugees' Camp while Mrs. Saraswati Ramchandra occupied room No. 19/1 in that Camp. The room in the occupation of Mrs. Saraswati Ramchandra was 10' x 6'.
16. In November 1947 the co-respondent began living with Mrs. Saraswati Ramchandra in that room: Manohar Lal thought that the co-respondent was the husband of Mrs. Saraswati Ramchandra.
17. Behari Lal gave evidence that the corespondent lived with Mrs. Saraswati Ramchandra in the Camp.
18. Kalyan Singh staled that on several occasions he saw Mrs. Saraswati Ramchandra with the co-respondent in room No. 19/1, Kingsway Refugees' Camp. On those occasions the' door was closed.
19. Sardar Tarlok Singh went to Room No. 19/1 on 7th April 1945 at about 10 or 10-30 p. m. Reaching there he found room No. 19/1 fastened from inside. Sardar. Tarlok Singh knocked at the door which was opened after five minutes and inside the room he found Mrs. Saraswati Ramchandra and Mr. L. C. Acharaya. In that room there was no charpoy and a table was being used as bedding. In the cross-examination of Sardar Tarlok Singh it was elicited that Mr. L. C. Acharaya on interrogation informed him that he lived in that room with Mrs. Saraswati Ramchandra. To similar effect is the evidence given by Sardar Phool Singh P. W. 6 and Jagdish Chandar P.. W. 7.
20. Now, direct proof of adultery is very rare and even if produced the Court will look upon it with disfavour as it is highly improb-able that any person could be a witness to actswhich are generally performed with the utmostsecrecy. Clearly, there is abundant evidence toshow adulterous connection between Mrs.Saraswati Ramchandra and Mr. L. C. Acharaya,and I have no doubt that Mrs. SaraswatiRamchandra was living in adultery with theco-respondent before 10th March 1948, whenthe application for dissolution of marriagewas made.
21. No other point was pressed in these proceedings.
22. For the reasons given above, I confirm the decree nisi granted by the District Judge on 31st May 1951, in Divorce Case No: 3 of 1943.
23. Having regard to the pleas put in by Mrs. Saraswati Ramchandra I order that she should pay the costs of the proceedings to Major Ramchandra which I assess at Rs. 200/-.
Bhandari, J.
24. I agree.
Khosla, J.
25. I agree.