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Report No. 136

Cannot be examined

4.7. According to the view propounded by the Allahabad High Court an allegation in the written statement cannot be examined to afford any cause of action.1

The pertinent observations are:-

"Having heard learned counsel for the parties on the merits of the appeal, I find that it has none. I have already recited in some detail the allegations made by the husband in his original petition and even indicated that even if all the facts, stated by the petitioner in his original petition were accepted on their face, no case whether of cruelty or desertion, for judicial separation or divorce could be said to be made out against the respondent. The lower appellate court has recited certain statements, made by the respondent wife in her written statement, while discussing the point whether the allegations made by the wife regarding the husband's intimacy with his Bhabhi are false and whether they amount to cruelty in law.

Now, I must observe, at the very outset, that a fact in order to afford a cause of action for any relief, must precede the initiation of the action. Consequently any allegation made by the wife in her written statement could afford no cause of action for any relief on the husband's petition. Therefore, I do not think that the statements made by the wife in her written statement, could afford any ground for granting relief to the husband in the present case and need not have been discussed by the lower appellate court.

With regard to the facts preceding the presentation of the petition, I agree with the finding reached on assessment of the evidence by the lower appellate court that none of them could amount to cruelty and at any rate, the allegation of illicit relations between the husband and his Bhabhi, which is said to have been hurled by the wife at him, must be deemed to have been condoned by the cohabitation between the husband and the wife in the year 1969, which resulted in the birth of a child on or about 12-5-1970, after which the parties did net live together."

1. Sadan Singh v. Smt. Reshma, AIR 1982 All 52.

4.8. The Punjab High Court has also sustained the proposition that such subsequent statements cannot be taken into account.1

1. Jarnail Kaur v. Sarwan Singh, 1979 HLR 415 (P&H).



Conflicts in High Court Decisions on Central Laws - How to Foreclose and how to Resolve Back




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