(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. SECOND APPEAL NO. 508 OF 2007 Sau. Preeti Pramod Narkhede, Age : 41 years, Occupation : Household, .. Appellant C/o. Soma Trimbak Barhate, Nanded, (Original Taluka : Amalner, Dist. Jalgaon. petitioner) versus Shri Pramod Bhagwat Narkhede, Age : 47 years, Occupation : Service, Residing at Banking Sector, .. Respondent Bombay Municipal Corporation, (Original Room No. 211, New Building, respondent) Second Floor, Mumbai 400 001. ....................... Mr. U.S. Malte, Advocate, for the appellant. Mr. Girish Rane, Advocate, for the respondent. ........................ CORAM : K.U. CHANDIWAL, J. DATE : 3RD MAY 2010 (2) COURT'S ORDER : 1. Heard both sides. 2. The wife filed a petition under Section 9 of the Hindu Marriage Act, 1955, for restitution of conjugal rights. The learned IIIrd Joint Civil Judge (Senior Division), Jalgaon, by judgment dated 29th January 2001, allowed the petition and the husband was directed to join company of the petitioner (appellant herein). The matter was taken by the husband Pramod in Civil Appeal No. 317/2001 and by the judgment dated 3rd February 2007, the learned Principal District Judge, Jalgaon, reversed the findings and dismissed the proceedings under Section 9 of the Hindu Marriage Act, moved by the wife, Smt. Preeti, and hence the Second Appeal by her. 3. It is a matter of record, that after dismissal of the proceedings in the Civil Appeal and its fruits in favour of husband Pramod, he has initiated divorce proceedings against the wife, which are pending and could not be further prosecuted in view of the directions of this court dated 11-6-2008. 4. This court, by the above directions, asked the appellant to furnish address of third party, Ibrahimseth, and if the appellant does not know the respondent to make the address (3) clear within one week and thereafter the notice shall be issued. 5. Pursuant to the said directions, there was no impleadment of said third party when court issued notices, however, no response. 6. The substantial question of law, that Mr. Malte, learned Counsel appearing for the appellant, could project is, "whether the court of first appeal was justified in accepting the evidence of son Dhiraj blankly when in the written statement, there is no whisper about him, though husband refers to the situation of the adulterous behaviour / relations of the wife in his pleadings." 7. With the assistance of the learned Counsel appearing for the appellant, I have read evidence of Dhiraj and also respective pleadings of husband Pramod and also petition of Smt. Preeti. I find that the marital status between the parties is not in controversy, having married on 27th May 1986, at Bhusawal. The record illustrate, after the marriage, the parties started residing in a small tenement taken on rent in Ulhasnagar and thereafter, block was purchased in Amina Building in Kalyan area. During the cohabitation, Dhiraj was born on 25th February 1987, while Hemant was born on 12th October 1990. The parties separated from each other during the period between (4) 18th June 1994 to 26th June 1997, and on 26th June 1997, they parted finally. Both the sons remained with the respondent. 8. The appreciation of evidence of Dhiraj and that of the husband Pramod by the first appellate court, indeed illustrate that Dhiraj could not be branded to be tutored witness influenced by the father. The circumstances also demonstrate, the wife after such allegations of her adulterous behaviour, did not prosecute at any level, even to seek custody of the two minor children which were carried by the husband in the year 1997, though the proceedings under Section 9 of the Hindu Marriage Act were initiated on 29th April 1995. 9. Since the divorce petition moved by the husband is pending, it is for the learned Judge to independently evaluate the evidence of Dhiraj, if it is led, for entitlement of the husband to seek divorce. 10. It is demonstrated by the husband, that in the society where the couple was residing, office bearers were grumbling about behaviour of the wife. It was communicated to the husband, by Shri Pandit and Chairman of the Society. They had also informed the husband, in the absence of him, one person often used to visit flat. This has been rather cemented by the evidence of Dhiraj with precision. Considering the age of (5) Dhiraj, he cannot be said to have exaggerated in his evidence. The cross examination of Dhiraj do not indicate that he is tutored witness or he had deposed as per desire of his father. The witness was fair to indicate, he is unaware, what is controversy going on between his mother and father, though he came to the court. He had no instructions from his father, in what manner he has to give evidence. Taking survey of the above situation, the learned first appellate court has rightly appreciated the evidence and reached the conclusion, that the petition in terms of Section 9 of the Hindu Marriage Act was devoid of merit. 11. Mr. U.S. Malte, learned Counsel appearing for the appellant, has placed reliance on a judgment of Division Bench of this court, in the matter of Narayan Kanu Datavale and others Vs. State of Maharashtra (1997 Cri.L.J. 1788). In the said case, the Division Bench had held thus : " It is well settled that the testimony of a child witness should only be accepted after the greatest cuation and circumspection. The rationale for this is that it is common experience that a child witness is most susceptible to tutoring. Both on account of fear and inducement, he can be made to depose about things which he has not seen, and once having been (6) tutored, he goes on repeating in a parrot like manner what he has been tutored to state. " 12. No such eventuality is surfaced in the cross examination to castigate the evidence of Dhiraj, child witness. The learned Judge considered overall evidence with the demeanour of the witness and reached the findings. 13. The judgment of the Apex Court, relied upon by the learned Counsel for the appellant, in the matter of Smt. Sowmithri Vishnu Vs. Union of India and another (AIR 1985 SC 1618(1)), deals with the provisions of Section 497 of the Indian Penal Code and definition of "Adultery". I feel, this would hardly be applicable to the facts of the present case. 14. The Second Appeal sans any merit to project a substantial question of law between the parties, and it is accordingly dismissed. No costs. 15. The learned Judge, dealing with the divorce petition, shall independently decide it on merit, without being influenced by dismissal of this Second Appeal or by the findings recorded by the learned Principal District Judge, Jalgaon, in Civil Appeal No. 317/2001. (7) 16. The rider / direction, not to pronounce the judgment in divorce proceedings, by order dated 11-6-2008, is vacated. ( K.U. CHANDIWAL ) JUDGE ......................... bgp/sa508