D. R. Khanna ( 1 ) THIS appeal has been moved by Gita Masand againsta decree of divorce granted by Shri G. S. Dhaka, Additional District Judgedelhi on 7-2-1984 in a petition for divorce brought by her husband Naraindass Masand. Of the two grounds alleged on which divorce was claimed,the one relating to desertion was not proved. No attempt to seek reversalof that finding in this appeal by Narain Dass has been made. Divorce insteadhas been granted on the ground of cruelty, and the basis of the same hasbeen the charge of adultery which Gita Masand levelled against Narain Dassand further that she had at one time taken sleeping pills in excess. It maybe relevant here to mention that the allegation of adultery was not initiallymade the subject matter of the divorce petition but was introduced by way ofamendment as a result of the written statement which Gita Masand had filedand in which she had mentioned that Narain Dass bad been ill-treating herbecause he had fallen in love with another girl named Surinder Kaur employedin his office for the last three years, it was added that Narain Dass hadmala-fide and with selfish motive sought divorce to enable him to remarry herthat employee who is young and beautiful. ( 2 ) THE parties were married according to Hindu rites on 12-3-1967 andthey have three children now between the ages about 7 to 17 years. Theyare all at present living with Gita Masand, and in a petition moved undersection 125 Cr. P. C. , Narain Dass has been required to pay Rs. 500. 00 permonth to them as maintenance which has now been raised to Rs. 750. 00 permonth. ( 3 ) AT the time of the marriage, Narain Dass was employed at asmallsalary of Rs. 150. 00 per month in an airlines office. Shortly thereafter theywent to England and lived there for a number of years. Two children wereborn there. Byabout 1976 they returned to India and Narain Dass startedtravel agency business in Connaught Place, New Delhi. The parties continuedliving happily till about the beginning of 1979. Shortly before that Gitamasand had gone to England where her third child was born and returnedfrom there by the end of February 1979. Gita Masand s grievance is thaton her return from there, she found the behaviour of Narain Dass towards hertotally changed and he started ill-treating and abusing her. The parties continuedliving happily till about the beginning of 1979. Shortly before that Gitamasand had gone to England where her third child was born and returnedfrom there by the end of February 1979. Gita Masand s grievance is thaton her return from there, she found the behaviour of Narain Dass towards hertotally changed and he started ill-treating and abusing her. He would comelate at night and became indifferent to her. This happened according to heras by about this time, the girl Surinder Kaur, joined is office as his employee. Narain Dass then started praising Surinder Kaur in the talks with Gitamasand and even expressed a desire that Gita Masand could separatefrom him so that he could marry her. He would take her in outings andsometime take the children along. The attitude of Narain Dass, accordinglybecame very rude and he used to give her beatings also and pull her hair. Onone occasion, she felt so disgusted that she took sleeping pills and had to beadmitted in a hospital. According to Gita Masand, the police wanted totake action against Narain Dass for his rendering her in that situationbut the still came to his rescue and ensured that no action was taken aganisthim. On one of the occasions, she had gone to the office of her husbandand found Surinder Kaur sitting in his cabin. She waited outsideand when Surinder Kaur came out and she went in, Narain Dasstook her to task for not extending greetings to Surinder Kaur. Tothis she replied that Surinder Kaur an employee should have instead wishedher. Finally, according to Gita Masand, she was turned out from thematrimonial home by Narain Dass after being given beating in the last weekof May 1981. Now she is living with her father who is a retired headconstable of police and who had as well served Narain Dass s office for about3 years between 1976 and 1979 as an employee. ( 4 ) IT is noteworthy to mention there that Narain Dass moved the divorcepetition in the trial court on 13-1-1981. At that time Gita Masand was stillliving in the matrimonial home and it was not till the end of May 1981 thatshe left. According to Narain Dass, they were living in separate portions ofthe same house, the marriage otherwise having broken. At that time Gita Masand was stillliving in the matrimonial home and it was not till the end of May 1981 thatshe left. According to Narain Dass, they were living in separate portions ofthe same house, the marriage otherwise having broken. ( 5 ) THE case of Narain Dass has been that Gita Masand has beenextremely ill tampered and rude to him and would not sometime go withhim to social functions and actually insulted him before his friends also. She had further been threatening to commit suicide and get him involvedin a police case and in this process once took 25 sleeping pills and bad tobe removed to hospital where medical treatment saved her. It was alsostated that she had been instigating the children against him. ( 6 ) IN the amended petition which Narain Dass later filed he tookexception to the stand taken by Gita Masand that he had developed loveaffair with Surinder Kaur, and rather totally denied any such intimacy. Herthat allegation was termed as false accusation of adultery towards him andon this additional ground of cruelty, he as well sought divorce. ( 7 ) HE however, admitted that Surinder Kaur is working as an employeein his office. Her age is said to be now about 27 years and she is unmarriedand educated upto M. A. ( 8 ) THERE is no doubt that Narain Dass is now well off in his business. He has now a car and his financial position has substantially flourished sincehis marriage. ( 9 ) THE learned trial court after considering the evidence produced onrecord held that so far as the plea of desertion the same was not established. Divorce was, however, granted on the ground that Gita Masand had made afalse accusation of adultery against Narain Dass, and had also once takenexcessive sleeping pills. ( 10 ) BEFORE proceeding further, a significant development which hastaken place in the meanwhile, may be referred to here. Gita Masand filedthe present appeal against the decree of the trial court, and the same wasadmitted on 24-2-1984. On her separate application, the Court restrainedthe respondent from marrying in the meanwhile. The respondent appearedbefore the Court on 4-4-1984, and stated that he had not remarried. Theinterim restraint order was, therefore, made absolute. Gita Masand filedthe present appeal against the decree of the trial court, and the same wasadmitted on 24-2-1984. On her separate application, the Court restrainedthe respondent from marrying in the meanwhile. The respondent appearedbefore the Court on 4-4-1984, and stated that he had not remarried. Theinterim restraint order was, therefore, made absolute. It, however, sotranspired that on 31-8-1984 when the appeal came up for hearingbefore Goswamy, J. , none appeared from the side of the appellant and assuch it was dismissed in default. Gita Masand, however, later moved anapplication for restoration of the appeal in which her counsel stated thathe did not see the case in the list on 31-8-1984 or before, and, therefore,could not make appearance. The absence was pleaded to be due to bonafide reason, and not for ulterior intention. Goswamy, J. by an order dated12-11-1984 accepted this application on being satisfied that there was sufficientcause for non-appearance of the counsel, and restored the appeal. Theappeal then came up for hearing on 3-12-1984 when none appeared from theside of the respondent. The appellant s counsel then stated that he hadbeen given to understand that the respondent had remarried in spite of theinterim injunction issued, and therefore, sought adjournment for moving anappropriate application. Later contempt application C. C. P. No. 241 of1984 was moved from the appellant s side. In this it was brought out thatthe remarriage that the respondent has effected, was with none other thansurinder Kaur about whom the appellant had been making allegations inthe trial court. The respondent after obtaining some adjournments inreply admitted that the second marriage had been effected. This accordingto him, was on 2-10-1984, and at that time the appeal was laying dismissedin default. In the circumstances, he contended that the stay order was notoperative at that stage, and, therefore, no contempt was committed by him bythat second, marriage. It was after this that the application for restoration wasmoved on 16-10-1984, and the appeal restored on 12-11-1984. The respondentdoes not dispute that it is with Surinder Kaur who has been employed withhim, that he has effected this marriage. From his side, however, it has beenurged that this was because of the accusation levied by Gita Masand againstthem and in order to save the honour of Surinder Kaur. ( 11 ) I have heard the parties and given my utmost consideration to theentire matter. From his side, however, it has beenurged that this was because of the accusation levied by Gita Masand againstthem and in order to save the honour of Surinder Kaur. ( 11 ) I have heard the parties and given my utmost consideration to theentire matter. As already noted above, so far as the allegations made bynarain Dass that Gita Masand had been ill-tempered, and displaying aninsulting attitude towards him, the same was not accepted by the trial court. I have no reason to differ with the assessment of evidence in that regard. She had stood by him as his wife when his financial position was quite low. She went with him abroad and bore three children to him who are all sons. No Specific instance has been brought out which happened before 1979 to bringout that the matrimonial life had any stormy weather. It was going on smoothlytill the entrance in the arena by Surinder Kaur as an employee in the officeof Narain Dass. By then his financial position had taken a considerable upward turn, and Gita Masand too was sent to London so that she could deliverher third child there. Perhaps Narain Dass thought of having more free timewith Surinder Kaur in her absence. According to Gita Masand when shereturned from London with her new born child, the entire matrimonialcomplex was found changed. Narain Dass became indifferent and extremelyrude to her, would come late at night and would be mostly talking ofsurinder Kaur, and her looks. On protestations against this rude behaviourfrom Gita Masand, he would beat her as well. This is borne out from thetestimony of the eldest son of the parties who was at that time around 15years of age. I am unable to reject his testimony on the ground that sincehe was at that time living with the mother, he was under her influence todepose against him. After all he was his son as well, and he had witnessedbow the home had broken down, and what used to happen. He has beenspecific that Narain Dass even took the children with Surinder Kaur tooutings, and would come late at night. ( 12 ) IT is sometimes well said that men may lie but circumstancesdo not. After all he was his son as well, and he had witnessedbow the home had broken down, and what used to happen. He has beenspecific that Narain Dass even took the children with Surinder Kaur tooutings, and would come late at night. ( 12 ) IT is sometimes well said that men may lie but circumstancesdo not. The unusual baste which Narain Dass displayed in marryingsurinder Kaur during the interregnum period in which the appeal hadunfortunately stood dismissed in default, brings out and corroborates morethan what Gita Masand had all through been in trial court trying to bringhome. This marriage rather reflects the genuineness of the stand taken byher in that court and the falsity of the case set up by the husband there. I amunable to accept the solicitudous posture on Narain Dass s behalf that hehas per-force done so in order to save the honour of Surinder Kaur. A personwho has chosen so readily to discard a wife who had stood by him in hisdifficult days and borne him three children can hardly be heard to takeshelter behind the virtuous obsession of saving the reputation of a helplessgirl. ( 13 ) I am unable to approve the approach adopted the trial court inallowing a decree for divorce simply because the wife had mentioned of alove affair which the husband had developed with his employee. Firstly thewritten statement did not make specific mention of adultery between them. There could also be no direct evidence of the amorous relationship betweenthem which the wife could have placed before the Court. It is the overallcircumstances which have to be weighed in cases of this type, and whetherafter their proper assessment it can be taken beyond reasonable doubt thata relationship of unfaithfulness to the marriage or adulterous life has beenbrought out. I am further unable to hold that a spouse should not, in anycase, make allegations of unfaithfulness to the other even if genuine reasonsexist for the same. Law does not expect that the spouse should continueto suffer silently and without protest. Not many self-respecting and dignifiedspouses would readily accept unfaithfulness in matrimonial life withoutprotest. ( 14 ) I am further of the view that the taking of excessive sleeping pillsby Gita Masand was not as a result of any suicide tendency prevailing in hercharacter. Law does not expect that the spouse should continueto suffer silently and without protest. Not many self-respecting and dignifiedspouses would readily accept unfaithfulness in matrimonial life withoutprotest. ( 14 ) I am further of the view that the taking of excessive sleeping pillsby Gita Masand was not as a result of any suicide tendency prevailing in hercharacter. It was more reflective of desperation and acute mental frustrationin which she had been rendered on being ignored, insulted and beaten by herhusband in preference for another woman. She must have found herselfdesolate and forsaken. ( 15 ) IN the totality of these circumstances, I am unable to sustain thedecree of divorce which the trial court has awarded. It has been rather Gitamasand who has been the victim of cruelty and high-handedness on the partof Narain Dass, and it is the latter who has been the person responsiblefor the break down of the matrimonial home. I am not oblivious of thesecond marriage which Narain Dass has in the meanwhile effected withsurinder Kaur and her future being now as well involved. In unfortunatecases of remarriages, the courts of course do consider the need to find outa via-media in the context of the new developments, and sometime provideadequate alimony to the aggrieved party. However, the unusual bastedisplayed by Narain Dass in remarrying Surinder Kaur and his mala fidestealing a march over the decision that may be given in this appeal, do notcall for any indulgent attitude towards him and permit him to make thebest of his own extreme wrong done to Gita Masand. In F. A. O. 57 of 1983 (Smt. Sneh Lata v. Kewal Krishan), decided on 23-11-1984. I had theoccasion to observe as under : - "normally when one of the spouses after a decree of divorce haseffected another marriage, a difficult situation arises, and the courthas to ponder a lot whether sustenance of the earlier marriage isworthwhile and fresh complications may not be created where athird person s life is involved and she or he has been taken into anew wedlock. Judicial hesitancy is bound to be there in suchcircumstances. Judicial hesitancy is bound to be there in suchcircumstances. However, when the case is of the nature whichpalpably brings out a deliberate conduct on the part of one of thespouses to steal a march and set at naught the legitimate remedywhich may be available to the other spouse of filing appeal, aserious view of the matter has to be taken, and the court shouldnot keep its hands off in shere resignation and allow the party tosit pretty, taking advantage of its own wrong. It is as such thati have felt constrained to go into the merits of the appeal, andthis is specially so when it has been urged from the side of theappellant that she has been a helpless woman whose only faultappears to have been that she did not come up to the expectationsof better looks which the husband had. All this period, it is pointedout, that she has not claimed any penny as maintenance for herselfand her child whom she is maintaining by her singular efforts, andthe respondent too has not chosen to display any responsibility fortheir maintenance. " ( 16 ) THE result, therefore, is that the appeal is allowed and the decreeof divorce reversed. The appellant will be entitled to costs throughout. ( 17 ) SINCE technically speaking the stay order of this Court was notoperative when the appeal had stood dismissed in default, no punishmentcan be awarded to Narain Dass under C. C. P. 241 of 1984 though as alreadynoted above) it must be said that he has clearly acted mala fide.