Report No. 136

Can be examined

4.5. In a Delhi case,1 in the cross-examination of the petitioner husband, it was suggested that he was having illicit relationship with one B. Subsequently, the respondent-wife in her statement improved her allegation and said that the herself had seen the husband closeted with B and sleeping with B in a compromising position. This imputation was not a ground pleaded by the husband in the petition. It was contended that as this particular episode of cruelty was not taken in the pleadings, either initially or by way of amendment, it could not be taken into consideration by the court. The learned Single Judge took note of the relevant authorities and, disagreeing with the contention, observed:

"I have considered these cases, but they only state the general rule while it is equally well settled that there are exceptions to this rule and it is open to a court in exceptional cases to take into consideration events which may have taken place subsequent to the filing of the suit and grant relief on their basis where the relief as claimed originally in the suit may have become inappropriate by reason of altered circumstances and where this may appear to be necessary in order to shorten unnecessary litigation or to sob-serve the substantial interest of justice. Ram Dayal v. Maji Devdiji, AIR 1956 Raj 12, which I followed in Parihar v. Parihar, AIR 1978 Raj 140.

Exceptions must be applied in matrimonial cases, in order to sub-serve the interest of justice and not to compel the parties to begin another round of litigation on the basis of subsequent events and allow the precious period of their life to go waste. It must be so done depending, of course, on the nature of the case, because it is not only the parties which are concerned in the case, but the court has a certain amount of duty and discretion to exercise. The relief entirely depends upon its satisfaction. That is why, in Chand Narain v. Smt. Saroj, 1975 HLR 494 (Raj): AIR 1975 Raj 88, a fact elicited in cross-examination, though not pleaded, was considered as to constitute-cruelly.

In Kundan Lal v. Kanta Rani, 1979 Mad LR 352 (P&H), the husband in his suit for nullity and desertion, pleaded an unjustified impotence against the wife, the wife in her written statement did not say that the false charge of impotence amounted to cruelty and further did not plead that a report of theft was lodged against her with the police, but all this was proved on record. It was held that the wife was justified in her withdrawal from the society of her husband. I am, therefore, of the view that the learned trial judge was justified in holding that he could take into consideration the allegation of adultery made by the wife at the time of cross-examination and in her deposition."

This view was reaffirmed2-3 by the Delhi High Court in 1987.

1. Pushpa Rani v. Krishan Lal, AIR 1982 Del 107.

2. Ashok Sharma v. Smt. Santosh Sharma, AIR 1987 Del 63.

3. Savitri v. Mulclumd, AIR 1987 Del 52.

4.6. In a Himachal Pradesh case, a subsequent allegation was taken into account in a case of maintenance.1

1. Shakuntala v. Rattan Lal, 1981 HLR 542 (HP).