1. This reference for confirmation under S. 17 of the Indian Divorce Act, 1869 (hereinafter referred to as the Act) is by the court of III Additional District Judge, Metropolitan City in Matrimonial Case No. 1 of 1980 on his file. The petitioner, Mrs. Noreen Judith Sandhurst made an application under S. 10 of the Act for a decree of dissolution of marriage and divorce on the following averments.
2. The petitioner and respondent -Raymond Bernard Sandhurst, husband of the petitioner, are Christian by religion and belong to Indian Nationality and domicile. Respondent married the petitioner on 2-4-1975 at Coonoor. The marriage was solemnised at the Mother of Perpetual Health Church, Mount Road, Coonoor. The marriage certificate is Ex. P. 1. Both the petitioner and respondent were working as teachers in Frank Anthony Public School at Bangalore, and after the marriage also they continued to work there. In May 1975, the petitioner and respondent went to Coonoor for a month's holiday by which time the petitioner had become pregnant and she was unwell. In June 1975, both the petitioner and respondent joined evening M. Ed. classes, The petitioner discontinued these classes because of her ill health. But the respondent continued alone and he never used to return home everyday from his classes before 9-30 p.m. The petitioner did not suspect the fidelity when her husband told her that he was attending the classes.
3. There was also another lady teacher by name Mrs. Shanthi Devi, teaching Kannada in Frank Anthony Public School with whom, according to the petitioner, her husband developed familiarity and intimacy. They were seen at Nandi Hills in October 1976 at about 7 p.m. in the company of each other. When Mrs. Shanthi Devi was staying in the quarters of Alembic Glass Factory at Whitefield in April 1976 and second half of 1977, respondent was seen at Whitefield on three occasions; around May 1977 at about 7-30 a.m., the second time was about 2 months later when he was again seen coming from the direction of the said quarters at about 6-15 p.m. and lastly, in the month of August 1977 at about 6-15 p.m. Thus the petitioner has averred in the petition that respondent is guilty of adultery with Mrs. Shanthi Devi between June 1976 and August 1977 and, in particular, in the month of October 1976 when they were seen alone at Nandi Hills.
4. The petitioner has further averred that after the marriage, the respondent became sullen and quarrelsome. He was slipping into deep depression on several occasions and was losing temper. He did not pay attention to the requirements of the petitioner and never accompanied her on holidays. He even failed to visit the petitioner till 6 days after the birth of their only child. He did not pay the nursing home charges. He did not even pay the money for looking after the house. He always put forward excuses for not having paid money. The conduct of the, respondent put the petitioner's health in jeopardy and gave reasonable apprehension of danger to her life.
5. The Principal of the Frank Anthony Public School talked to her in regard to the affairs of Mrs. Shanthi Devi and thereafter Mrs. Shanthi Devi left the employment with the Frank Anthony Public School.
6. The respondent, thereafter, without the knowledge or consent of the petitioner, left Bangalore on or about the 15th of Dec. 1977, without any reasonable cause and abandoned the petitioner against her will with the intention of separating himself and putting an end to cohabitation with her. He did not communicate with the petitioner nor did he send her any money thereafter. Thus, the petitioner averred that the respondent was guilty of desertion with cruelty and also adultery with desertion for more than 2 years prior to the institution of the petition. The petition was instituted on 1st Jan. 1980.
7. She has also averred further that there was no collusion between her and respondent in submitting the petition. The respondent was duly served with notice of the petition but he remained absent and proceeding went on ex parte against him. The petitioner examined herself in respect of the petitioner's averments as P.W. 4 and has examined 3 other witnesses on her behalf. The learned District Judge, appreciating the evidence on record, has held that the petitioner has proved adultery alleged against her husband. He has further held that she has also proved cruelty and desertion as alleged. In that view he has held that the petitioner is entitled to the relief of decree for divorce as also for custody of the child as prayed for and having passed the order for a decree of divorce, he has submitted the records to this Court for confirming the case under S. 17 of the Act.
8. Section 17 of the Act no doubt casts a duty on this Court to reassess the evidence on record to satisfy itself with the findings given by the learned District Judge that they are based on proper evidence and that it is a fit case wherein a decree for divorce should be granted. ' The two grounds made out for divorce in the instant petition are (1) adultery with cruelty and (2) adultery with desertion for a period of more than two years. Therefore, it is necessary for us to see whether the petitioner has proved the adultery as alleged on the part of her husband. It is the case of the petitioner that her husband has illicit intimacy with Mrs. Shanthi Devi who was also a teacher serving in Frank Anthony Public School. There is no dispute about the fact that the petitioner, respondent and Mrs. Shanthi Devi were serving as teachers in the said school. Thus, there was, no doubt, an opportunity for Raymond Bernard Sandhurst, to have acquaintance and friendship with Mrs. Shanthi Devi. The evidence on record shows that husband of Mrs. Shanthi Devi was never seen in her company. Thus she was a teacher who had the company of petitioner's husband and it was not unlikely that the acquaintance between Raymond Bernard Sandhurst and Mrs. Shanthi Devi developed into friendship. But the real question is whether the friendship culminated into criminal intimacy described as adultery in the petition. It is an established rule of evidence that adultery is not likely to be proved by direct evidence. Adultery has to be proved mainly by circumstantial evidence and the Court has to be satisfied that there is no collusion between the parties and the persons concerned had an opportunity to have guilty intercourse. At the same time, it is necessary to remember that the satisfaction established by the person must be such as would need the guarded discretion of a reasonable and just man to come to the conclusion of adultery.
9. The evidence placed on record, in the instant case, shows that Mr. Raymond Bernard Sandhurst and Mrs. Shanthi Devi were seen together at Nandi Hills in October 1976. P. W. 2, Claude Drogue has deposed to it. He has stated that he had gone to Stud Farm near Nandi Hills in October 1976 and from Stud Farm, he went to Nandi Hills as it was near to the Stud Farm being at a distance of 18 Kms. and there he saw Mr. Sandhurst and Mrs. Shanthi Devi together. The time was about 7 O'clock in the evening. His evidence is, no doubt, not challenged in the cross-examination. The learned counsel for the petitioner submitted that people would not go to Nandi Hills merely for fresh air and when they were seen together at about 7 O'clock in the evening alone, an irresistible inference has to be drawn that they had gone there with an unholy intention and not merely for spending some time in fresh air. It is, no doubt, true that in these days if a man and a woman are seen together, the Court cannot jump to the conclusion that their intention is nothing but illicit intimacy. But the facts of each case are unique. We have to appreciate the facts of the present case, having regard to the background depicted by the petitioner. Earlier Ms. Sandhurst pretended that he would attend the classes and he used to go out of the house and return only after 9 O'clock in the night. It was later found out by the petitioner, his wife, that he did not mark the attendance for the classes at all and it, was reported to her that her husband was seen moving with Mrs. Shanti Devi Thus, Mrs. Shanthi Devi. who was, a colleague in the school along with her husband firstly developed acquaintance with her husband and ultimately they were seen together alone in the evening in October 1976, at Nandi Hills. Putting all these things together, it can be said that they had guilty intention and they had an opportunity to have guilty intercourse and thus the Court may presume adultery as it is satisfied about the guilty attachments subsisting between Mrs. Shanthi Devi and Sandhurst.
10. Not merely that; it is further in the evidence of PW 3, Miss M. Bernes that she saw petitioner's husband going to the house of Mrs. Shanthi Devi in Whitefield in Alembic Glass Factory quarters and coming out of the house in the morning. Visiting three times may not be merely an occasional visit. If it is only once it could have been taken that both of them being colleagues, Mr. Sandhurst gave visit a courtesy to Mrs. Shanthi Devi. Besides, the time of the visit and time of the coming out are also important. He was seen going from her house in the morning which leads us to the irresistible conclusion on the facts of the present case that he spent the nights with her and having regard to the other features in the case we can safely conclude that he had illicit intimacy with Mrs. Shanthi Devi. The learned District Judge came to the conclusion after considering elaborately the evidence of all the witnesses and examining the probabilities that the petitioner has proved adultery of her husband with Mrs. Shanthi Devi. For the reasons discussed above we have no compelling ground to differ from the findings so given. We affirm the finding. That leads us to consider the question of desertion. The petitioner has sworn that even sometime after the marriage, her husband used to become suddenly angry and lose his temper with her. He did not visit her place even immediately after the childbirth; and pay anything towards the nursing home charges. He did not pay even for the establishment of the house and ultimately on 15th Dec., 1977 he went out of the house and thereafter never communicated. Thus, she has sworn that on 15-7-1977, he has deserted her without any, reasonable cause; she filed the application only in January 1980. Thus, it is obvious that the desertion for more than two years, is established. Lastly, we consider the question of cruelty. Cruelty is not defined in the Act. But it is described by this Court by a Division Bench to which one of us was a party in the case of Srikant Ranghacharya V. Anuradha, : AIR1980Kant8
(At p. 11 of AIR) as under:-
'The legal concept of cruelty in 'Matrimonial offences is not confined to positive acts of causing physical injury by one spouse to another. Without there being a physical injury, there can be cruelty in a greater degree. 'Cruel' means, 'Cruel' in the ordinary sense of the term; it has no esoteric or artificial meaning. There may be cruelty without an intention to injure. Failure to comply with one of the essential obligations of the marital life by the husband would amount to subjecting the wife to cruelty. It is one of the essential and principal obligations on the part of the husband to satisfy the sexual urge of his wife ------it may safely be stated that any conduct of the husband which causes disgrace to the wife or subjects her to a course of annoyance and indignity amounts to legal cruelty.'
11. Thus, we can conclude that the conduct of the husband, on the facts of the present case, in not visiting his wife immediately after the child born to them and in not paying nursing home charges and expenses and in having illicit intimacy with Mrs. Shanthi Devi amounted to legal cruelty putting his wife into mental torture. Hence, we have no hesitation to hold that the learned District Judge is justified in coming to the said conclusion. In the result, we are satisfied that both the grounds made out for dissolution of marriage are amply proved.
12. We are satisfied, further, that there is no collusion between the parties and the parties are Indian Catholics and marriage was solemnised as stated above according to the rites of Roman Catholics in India. Hence, we hereby confirm the order of dissolution of marriage and the decree for divorce passed by the learned District Judge.
13. Order accordingly.