( 1 ) THIS is the husband's appeal on his failure to get a decree of annulment of the marriage with respondent 1 (his wife) inter alia on the ground that she committed adultery which was witnessed by the husband himself on 6-9-1972 and on the ground that the first respondent, his wife, had deserted him for over a period of seven years. ( 2 ) IN Miscellaneous Case No. 3 of 1980 in the Court of the Civil Judge at Athani, the petitioner pleaded that on his return from his shop to his house at a time he found respondents cohabiting sexually and seeing him they got up; he rebuked them. He rebuked and told her not to continue her adulterous life in furture. Thereafter the petitioner was shocked and he took meticulous care to refrain from having sexual intercourse with his wife. He further alleged that even thereafter the first respondent had her menstrual periods regularly up to 11-3-1973. However she gave birth to a male child on 18-12-1973. He therefore pleaded that the child born in December 1973 was not fathered by him. It was claimed by him that the said child was the progeny of the first respondent by her illicit relationship with the second respondent. On 7-4-1973, he alleged that respondents were once again caught redhanded while being together, were locked up inside the room where they were found and were physically assaulted or battered by the first respondent's relatives and others. It was only thereafter on 18-12-1973 the second child was born to the first respondent. Finally, he alleged that the first respondent left the home of the petitioner once and for all to her parent's house at Athani during March, 1973 with the requisite animus or intention to desert the petitioner. In the meanwhile, the second respondent had left for Sindagi in 1975. He, therefore, claimed divorce. It is useful at this stage to mention that the petition itself was filed in the year 1980. ( 3 ) FIRST respondent entered appearance and admitted her marriage to the petitioner. She denied all allegations. She in turn alleged, she gave birth to the child at private maternity home at Athani and second child was also born at the same maternity home on 8-12-1973. Until then for relationship with the petitioner was cordial. ( 3 ) FIRST respondent entered appearance and admitted her marriage to the petitioner. She denied all allegations. She in turn alleged, she gave birth to the child at private maternity home at Athani and second child was also born at the same maternity home on 8-12-1973. Until then for relationship with the petitioner was cordial. It was however claimed that she was subjected to mental agony by the petitioner and was subjected to physical assaults also. She pleaded that petitioner's sister by name Anusuya was throughout residing in the petitioner's house and his father by name Shivappa, an aged person being physically weak, used to mostly confine himself to the house. The said Ansuya, her sister-in-law, was living with them though she was married. She gave detailed description of the families living in the neighbourhood of the petitioner's house. She denied that she deserted the petitioner during 1973. She alleged that she was eased out of the house by the petitioner in collusion with his sister with the ulterior motive of marrying another girl. She denied any knowledge of the second respondent, who she stated, was a married person having four children. She also denied the second respondent having a tea shop on the main road of Athani and living in the house of one Neelgangavva Hanji as alleged by the petitioner. ( 4 ) ON such pleadings the Court below formulated the following points for consideration:-1. In respect of the petition pertaining to S. 13 (1) of the Hindu Marriage Act, 1955 (a) Whether after the solemnization of the marriage of the first respondent had sexual intercourse with the second respondent? (b) Whether she had done so voluntarily? (c) Whether the petitioner has not in any manner condoned the Act complained of? (d) Whether the petition is not the one presented in collusion with the first respondent? (e) Whether there has not been unnecessary or improper delay in instituting the proceedings? (f) Whether there is no legal ground to preclude the Court to allow the petition? (g) What order?ii. In regard to the second ground under S. 13 (1) (b) again formulated the following point for consideration:- (a) Whether the petitioner proves the first respondent for a period of not less than two years immediately preceding the petition deserted him? (b) Whether she has done so without reasonable cause and without the consent of the petitioner? (g) What order?ii. In regard to the second ground under S. 13 (1) (b) again formulated the following point for consideration:- (a) Whether the petitioner proves the first respondent for a period of not less than two years immediately preceding the petition deserted him? (b) Whether she has done so without reasonable cause and without the consent of the petitioner? (c) Whether the petition is not presented in collusion with the first respondent? (d) Whether there has not been any unnecessary or improper delay in instituting the proceeding? (e) Whether there is no legal ground to bar the petition being allowed? (f) What order? ( 5 ) ON behalf of the petitioner, petitioner and his father were examined. On behalf of the respondent, herself and one Irappa Malasiddappa Kulolagi were examined. The petitioner got marked as many as six documents Exhibits P1, P2, P3, P3a, P4, P4a. The first respondent got marked as many as eight documents in support of her case and respondent 2 remained ex parte. ( 6 ) WE need not advert to in detail to the evidence of the petitioner except it is he who stated on oath that he witnessed his wife committing the act of adultery with the second respondent on 6-9-1972. But, thereafter he himself stated that for the sake of dignity and fair name of his house, and on the advice of his father to whom he disclosed the incident which he had witnessed, he kept quiet and allowed his wife to continue to reside in the house though he desisted himself from having any sexual intercourse with her. ( 7 ) IT was only in May, 1973 that respondent 1 went to her house in Athani and thereafter delivered the second child at the same nursing home in which she had delivered the first child. The only corroborating oral testimony in support of the oral testimony of the petitioner is the evidence of his father. The trial Court has not believed that, having regard to the relationship and inconsistency in the evidence adduced on behalf of the first respondent. In the light of the evidence on record both oral and documentary, the trial Court came to the following conclusions: (1) That the petitioner had failed to prove the adulterous conduct of the first respondent on 6-9-1972. In the light of the evidence on record both oral and documentary, the trial Court came to the following conclusions: (1) That the petitioner had failed to prove the adulterous conduct of the first respondent on 6-9-1972. (2) Assuming, but not conceding, an adulterous conduct on the part of the respondent had been established, by the subsequent conduct of the petitioner it must be held that he had condoned such an Act. (3) That the paternity of a child was involved and therefore the Court should proceed with great cautious in accepting the version put forward by the petitioner. (4) The inordinate delay in approaching the Court for a decree of annulment of the marriage, which was over eight years, in the light of the pronouncement of this Court which attracts application could not be overlooked and petition allowed as no reasonable explanation for such inordinate delay was forthcoming from the petitioner. (5) That there was no case of desertion made out on the facts and circumstances of the case. ( 8 ) WE ourselves are in complete agreement with the conclusions reached by the learned Civil Judge. The learned Civil Judge has not accepted at face value the evidence of the petitioner and the benevolent attitude towards his wife on his witnessing the act of adultery. It was in the evidence of the first respondent that by nature, the petitioner was somewhat impetous, abusive, cruel and given to act somewhat irrationally in her experience as his wife for a considerable time. Thus he took a very lenient attitude towards her adulterous conduct and warned her that in future she should not indulge in such conduct was unbelieveable having regard to his nature. He also took notice of the fact that in the petition, it had been alleged that there was a subsequent adulterous conduct after the first respondent left the petitioner's house in March, 1973 at which time respondents were caught red-handed by respondent's own people and severely thrashed. But no evidence whatsoever was forthcoming to establish that plea. In that circumstances, he had no alternative but to disbelieve the version put forward by the petitioner. But no evidence whatsoever was forthcoming to establish that plea. In that circumstances, he had no alternative but to disbelieve the version put forward by the petitioner. ( 9 ) IT is the evidence of the petitioner himself that for the sake of dignity of his house he kept quiet about the incident which he witnessed on 6-9-1972 and allowed his wife to live with him till March, 1973 when she, according to him, left once and for all to her parent's house at Athani or her own free will. Thus, the learned Civil Judge relied upon the decision of the Supreme Court in Dastane v. Dastane ( AIR 1975 SC 1534 ). Supreme Court, explaining the scope of S. 23 (1) (b) read with S. 10 (1) (b) stated, in any proceedings for judicial separation founded on cruelty, the meaning of the expression 'condonation' fell for consideration. In that context, Chandrachud, J. , as he then was, speaking for the Court stated as follows"condonation means forgiveness of the matrimonial offence and the restoration of offending spouse to the same position as he or she occupied before the offence was committed. To constitute condonation there must be, therefore, two things : forgiveness and restoration. The evidence of condonation in this case is, as strong and satisfactory as the evidence of cruelty. "applying the ruling of the Supreme Court to the facts of the case on hand we have petitioner's own version, for the sake of dignity of his family he condoned the lapse. Therefore, even on that ground, the trial Court's conclusion must be sustained by us. ( 10 ) THE learned Civil Judge was correct in his approach that in the fight between the spouses, an innocent child should not be allowed to suffer for all times to come while his paternity was in doubt. Here again the conduct of the petitioner and his father who had become aware of the birth of the child, the place where it was born i. e. , the same as the first child was taken note of. Here again the conduct of the petitioner and his father who had become aware of the birth of the child, the place where it was born i. e. , the same as the first child was taken note of. There was no dispute that in the nursing home register the name of the petitioner was entered as the father of the child which the petitioner did not dispute at the relevant time and the fact that there was no subsequent reference even in the complaint made to the police either to the adulterous conduct or to the infidelity of the wife when the first respondent made an attempt to return to her spouse's house with her second child and was refused permission to enter the house also weighed with the lower Court. The Court below having already held that the version put forward by the petitioner could not be relied upon and having come to the conclusion that there was condonation and there was proof of living under a common roof for nearly 8 months after the alleged audulterous conduct of the first respondent gave the benefit to the first respondent and to the child and came to the conclusion that the petitioner had for his own convenience created a doubt of the fidelity of the wife and in that sense made a very cautious approach in accepting or rejecting the case put forward by the petitioner or the first respondent, as the case may be. We do not find anything wrong in such an approach. ( 11 ) EVEN before us, Mr. Savanur, learned counsel for the appellant, was unable to give us any satisfactory explanation in regard to the enormous delay. It was in the evidence of the first respondent that from the time of the marriage, her husband and her father-in-law and sister-in-law were giving her certain amount of trouble asking her to bring greater sums of money from her parents' house and thus they were ill-treating her now and then. Despite it, she led her normal life of a good wife. It was only when she went for delivery, as is customary in their community, to her parental house and when she attempted to return with the second child they gave trouble and refused to have her with the sole intention of preventing her from coming without money. Despite it, she led her normal life of a good wife. It was only when she went for delivery, as is customary in their community, to her parental house and when she attempted to return with the second child they gave trouble and refused to have her with the sole intention of preventing her from coming without money. The conduct of the father of the petitioner and petitioner himself in regard to that incident spoke volumes for the suffering to which the first respondent was subjected to and the action on the part of the petitioner and his father in lodging a police complaint against her and forcibly preventing her from entering into their house in 1974. If matters had reached that pitch at that point of time it was open to the petitioner to seek legal remedy in 1974 itself instead of waiting till April, 1980. ( 12 ) HOWEVER, Mr. Savanur drew our attention to the decision of a Division Bench of this Court in the case of N. B. Rukmini v. P. M. Srinivasa ( AIR 1984 Kar 131 ) wherein a delay of about seven years was held not to be fatal to the petition. The passage relied upon by the learned counsel is to be found in paragraph 16 of the judgment as reported in AIR 1984 Kar 131 on page 135. It is as follows: "in the facts and circumstances of the case, delay of 8 years from date of leaving house cannot be a ground for rejecting divorce petition by husband on ground of desertion. " Their Lordships rendered the decision relying upon a passage in the judgment of Lord Denning in Becker v. Becker, (1966) 1 All ER 894. The passage in Rukmani's case reads as follows. "there may be instances of acquiescence or condonation or connivance in such cases. It is not so in the case of desertion. As rightly pointed out by Lord Denning far from being liable to be condemned, in such cases the spouses are to be congratulated for their enduring patience and hope to join each other. It is all the more so in the spouses in Hindu Society, having regard to our tradition and custom. As rightly pointed out by Lord Denning far from being liable to be condemned, in such cases the spouses are to be congratulated for their enduring patience and hope to join each other. It is all the more so in the spouses in Hindu Society, having regard to our tradition and custom. " It was in that circumstance that they did not consider the delay in approaching the Court on the sole ground of desertion, as delay constituting a ground for rejecting the petition. ( 13 ) IN fact, they did notice an earlier decision of the Division Bench of this Court in the case of Thimmappa v. Thimmappa (1972 (1) Mys LJ 251) : (AIR 1972 Mys 234) in which a Division Bench had held that where the husband filed the petition for divorce 4 to 5 years after he came to know that his wife had committed adultery and had not explained the reason for the inrodinate delay in filing the petition, a decree for divorce could be refused on the ground of delay alone. That was however distinguished, and actually it was so distinguished in the later decision on the ground that desertion and separation stood on a different footing giving rise to different inferences in regard to the desirability of reconciliation even after a long separation, greater being the desire to come back to live as spouses. That principle has been accepted by Lord Denning. When decisions of the same force as precedents are cited; that which directly covers the facts of the case on hand must be followed. ( 14 ) THIS is a case of divorce both on the ground of adultery as well as on the ground of desertion which we will explain later is itself a contradiction. To urge the ground of adultery after 8 years, as in the case of Thimmavva, we find it is fatal to the petition. Even in this regard we must not fail to note that there was an opportunity to throw her out from the house in 1974. He had not mentioned anything about the adultery to which we have already referred earlier. That shows he was totally indifferent about approaching the Court for the relief at the appropriate time if his version were to be true. He had not mentioned anything about the adultery to which we have already referred earlier. That shows he was totally indifferent about approaching the Court for the relief at the appropriate time if his version were to be true. We do follow the decision of the Court in Thimmavva's case as the facts of that case are very similar to the case on hand. Therefore, we agree with the trial Court's finding on this point. ( 15 ) IT was indeed strange attitude on the part of the petitioner that when the first respondent came back to him in the year 1974 with the second child he drove her with the assistance of his father. Whatever may be the reason, it has been the evidence of the petitioner and his father. Also the fact of lodging a police complaint in that behalf is also in evidence. Therefore, a person who complained about the adulterous conduct of his wife in the Court cannot at the same time be permitted to plead that his wife had deserted him when admittedly he had thrown her out with the help of the police and therefore on that count also he must be given a divorce. Mr. Savanur was unable to explain this contradiction in the plea put forward by the petitioner. ( 16 ) WE, therefore, have no hesitation to come to the conclusion that the petitioner failed to make out a case for divorce on both the grounds he urged and as such we dismiss his appeal. ( 17 ) HOWEVER, we notice that this appeal is dismissed at the stage of admission after notice to respondents, and after hearing the parties. There will be no order as to costs. Appeal dismissed. --- *** --- .