1. This is an appeal by a wife whose application for a decree for judicial separation under Section 10 of the Hindu Marriage Act was dismissed by the District Judge. The marriage between the appellant and her husband who is the respondent was solemnised in the City of Mysore on May 5, 1942. They began to live together in the City of Bangalore from the year 1945 and there were at least four issues of that marriage only two of which now survive. On July 3, 1958, the appellant made an application to the District Judge for a decree for judicial separation and the only ground on which the decree was sought was that the husband committed an act of adultery with his sister's daughter Alumelu after the solemnisation of the marriage.
2. The District Judge did not consider that that accusation against the husband was established and so he refused to make a decree for judicial separation.
3. There is undisputed evidence in this case that after the two spouses began to live together in Malleswaram in Bangalore City they were, at a certain stage of their marital life joined by the husband's sister's daughter Alumelu either in December 1956 or during the commencement of the year 1957. That Alumelu continued to live) with these two spouses till about September 1957 and that during that month on the insistence of the wife, Alumelu was asked to live elsewhere and she, thereupon for a few days, lived in a place called Peenya very near Malleswaram was the evidence given by the wife which was corroborated bythe evidence given by Rajagopal who was examined as P. W. 4. It was next stated that Alumelu very soon returned to the house of the husband taking advantage of the fact that the appellant was away from Bangalore and was on a visitto her parents who were in Quilon.
4. That during all this period when Alumelu was living with these spouses, the respondent was on terms of unusual familiarity and that on one such occasion he was discovered some time during mid-night to have been indulging in an act of indelicate familiarity with Alumelu was also the evidence given by the appellant. However that may be, the undisputed fact is that on May 30, 1958 this Alumelu who was an unmarried young lady gave birth to a female child in the Vani Vilas Hospital, Bangalore. There is also equally trustworthy evidence that before her confinement, Alumelu was taken by her father to a rescue home in Bangalore called Abhayashram, on May 1, 1958 and was taken away from that home on May 9, 1958. P. W. 3 Dr. Ratnamma Isack, the Honorary Secretary of that rescue home gave evidence about it and P. W. 5, the clerk of that rescue home corroborated that evidence. P. W. 2. Dr. Kokila who is the surgeon of the Vani Vilas Hospital, Bangalore, spoke to the fact that Alumelu was admitted as an in-patient of that hospital on May 30, 1958 and that on the same date, she gave birth to a female child. Exhibit P 1 is the admission register of that hospital containing the relevant entry about the admission. Exhibit P-2 the temperature chart, Exhibit P-3, the maternity case sheet and Exhibits P4 and P 5, the diet tickets are the other documents produced by P. W. 2 in support of her testimony.
5. It was not disputed by the husband that his unmarried niece Alumelu came to live with the spouses when she was about 31 years old sometime during the year 1956 or during the early part of the year 1957. Indeed that allegation which was made by the appellant in her application for a decree for judicial separation was not traversed by the respondent in his statement of objections. P. W. 4 Rajagopal gave evidence that ho was also living with these two spouses as a paying-guest sometime during the 1953 and 1954. His further evidence was that in the year 1954, he was transferred to Kolar, that he came back to Bangalore in the year 1955 and continued to live with these spouses as a paying-guest. That Alumelu came to live with these two spouses in the year 1956 and stayed for about a month and that even during that period, the respondent and Alumelu were on intimate terms was the further evidence given by him. He proceeded to state that Alumelu returned to her parent's house but was able to secure a job in February or March 1957 in Bangalore and so came back to Bangalore and continued to stay with the respondent and that even on that occasion she became so intimate with the respondent that the witness began to suspect that all was not well with them.
6. That Alumelu continued to stay in that way with the respondent until September 1957 when the appellant insisted upon Alumelu living separately from them, and, that for that reason Alumelu was made to go and live separately in Peenya but that she however returned soon, after, when the appellant went to Quilon and continued to stay with the respondent till May 1958, was also the evidence given by this witness. P. W. 1 is the wife and she stated in her evidence that during the period Alumelu was staying with them, the respondent became intimate with her and that the child born to Alumelu was the off spring of that illegitimate intimacy. She explained that when Alumelu became enceinte when she was staying with them, she insisted that her confinement should not take place in her house, whereupon one day before Alumelu became a mother, she was sent away from their house.
7. It is thus clear from the evidence given by these two witnesses that during the period between December 1956 or January 1957 and sometime during the end of April 1958 Alumelu was residing with these two spouses though not continuously but for long period and that during that period both P. W. 1 and P. W. 4 noticed undue familiarity between the respondent and Alumelu. The evidence of P. W. 1 as already pointed out, went further and she spoke about the mid-night incident already referred to.
8. The question is whether this evidence given by P. Ws. 1 and 4 establishes the accusation of adultery with which the wife charged her husband. But this accusation is not made to rest solely on the evidence given by these two witnesses. Mr. Vijaya Shankar, the learned Advocate for the appellant has asked attention to many other pieces of evidence which, according to him, constitute corroborating evidence of a material character. He asked us to say that the fact that Alumelu gave birth to a child on May 30, 1958 when she was a spinster is one such corroborating piece of evidence. He has also asked attention to two statements said to have been made by Alumelu, once when she was in the rescue home and on the second occasion, when she got herself admitted into the Vani Vilas Hospital. Exhibits P-1 and P-6 are those two statements. Exhibit P-1 is an entry in the register of in-patients maintained by the Vani Vilas Hospital which is a Government hospital about which P. W. 2, the surgeon of that hospital gave evidence. Mr. Vijaya Shankar depends upon the description which Alumelu gave about herself when she entered that hospital and that description is:
'No. 6530: Name: M.C. Alumelu, Occupation: Employee in H. A. L. Permanent residence: W/o. M. C. Ramaswamy, D/o M.C. Srinivasa, Iyengar and Ranganayaki, No. 109, West Park Road, Malleswaram, Bangalore City'.
The letters 'W/o' which, according to Mr. Vijaya Shankar mean 'wife of and that is also what was stated by P. W. 2. M.C. Ramaswami is no other than the respondent. Mr. Vijayashankar argued that if Alumelu described the respondent as her husband when she entered the hospital for confinement, and, it was necessary for her to state the name of her husband when she entered the hospital in delicate condition, and, she named the respondent as her husband, the fact that she did so on the eve of her confinement, was a piece of evidence in material corroboration, of the evidence given by P. Ws. 1 and 4. Exhibit P-6 is a record made by P. W. 5 who is a clerk of the rescue home when Alumelu entered that home on May 1, 1958 to which she was taken by her father. This record which was made in an admission register is spoken to by P. W. 3 who is the Honorary Secretary of that home and also by P. W. 5 who made it. This record is in the nature of the history of the case of Alumelu. This is what was recorded.
'She has parents at Madras. She came to Bangalore one year back and stayed with her maternal uncle. She is a trained teacher passed S. S. L. C. (Tamil). She was working at Jalahalli Elementary School. She got in connection with her uncle and got pregnant. He is not willing to keep her at home as he is a married man and his wife will he returning home after completing her B. A, at Benares. The parents are not willing to take her just now as two of her sisters are getting married and it will be black mark for the family. So having no place to go she came in search of a shelter and cams to Abbayashram. She was admitted with the permission of the Hon. Secretary.
ADDRESS: M.C. Srinivasa Iyengar Esq., Retd. Cashier, National Bank of India Ltd. 19, Nadumuni Street, T. Nagar Madras 17'.
It was said that although Alumelu did not name the respondent, she gave a description which was unmistakably a reference to her uncle by whom she stated she got pregnant. The other particulars given by Alumelu to the effect that the uncle was a married man and that he declined to continue to keep her in his own house for that reason, and, that she was staying with the uncle for about a year after she came to Bangalore from Madras, are all particulars according to Mr. Vijaya Shankar which identify the respondent as the uncle beyond any doubt.
9. Now section 10(1)(f) of the Act states that adultery on the part of a spouse is a ground for judicial separation although the word 'adultery' is not employed in that clause. It reads:
'10 (1) Either party to a marriage, whether solemnized before or after commencement of this Act, may present a petition to the District Court praying for a decree for judicial separation on the ground that the other party-
* * * * * (f) has after the solemnisation of the marriage had sexual intercourse with any persons other than his or her spouse'
What, this clause requires is proof that respondent, bad, after his marriage, sexual intercourse with Alumelu and we were asked to say that the pregnancy of Alumelu was caused by impregnation during such intercourse. That was how the adultery was attempted to be established.
Since it is clear beyond doubt that Alumelu did become pregnant while she was in an unmarried state and that she gave birth to a female child while she continued in that state, the question is whether the pregnancy which resulted in a child-birth was attributable to the impregnation during any sexual intercourse which the respondent had with her. There is no direct evidence of any such adulterous act on the part of the respondent, for no one Who claims to have seen the act has given any evidence about it. But it is clear thatfor the establishment of the accusation of adultery,it is not necessary that some one who has seen theadulterous act must give evidence about it. Whatestablishes an accusation of adultery is amongother matters evidence of prior or subsequent actsof undue familiarity and opportunities for adultery in the context of other evidence of a circumstantial nature. The statement of law on thisquestion was stated by Sir William Scott in Love-den v. Loveden (1810) 161 E. R. 648. This iswhat he said:.
'It is a fundamental rule, that it is not necessary to prove the direct fact of adultery; because, if it were otherwise there is not one case in a hundred in which that proof would be attainable; It is very rarely indeed that the parties are surprised in the direct fact of adultery. In every case almost the fact is inferred from circumstances that lead to it by fair inference as a necessary conclusion; and unless this were so held, no protection whatever could be given to marital rights. What are the circumstances which lead to such a conclusion cannot be laid down universally, though many of them, of a more obvious nature and of more frequent occurrence, are to be found in the ancient books; at the same time it is impossible to indicate them universally; because they may be infinitely diversified by the situation and character of the parties, by the state of general manners, and by many other incidental circumstances apparently slight and delicate in themselves, but which may have most important bearings in decisions upon the particular case. The only general rule that can be laid down upon the subject is that the circumstances must be such as would lead the guarded discretion of a reasonable and just man to the conclusion; for it is not to lead a rash and intemperate judgment, moving upon appearances that are equally capable of two interpretations, neither is it to be a matter of artificial reasoning, judging upon such things differently from what would strike the careful and cautious consideration of a discreetman. The facts are not of a technical nature; they are facts determinable upon common grounds of reason; and courts of justice would wander very much from their proper office of giving protection to the rights of mankind, if they let themselves loose to subtitles and remote and artificial reasonings upon such subjects. Upon such subjects the rational and the legal interpretation must be the same'.
In Preston-Jones v. Preston-Jones, 1951 (1) All E. R. 124 the House of Lords referred to these observations of Sir William Scott and said at p. 138 of the report;
'The evidence must, no doubt, be clear and satisfactory, beyond a mere balance of probabilities and conclusive in the sense that it will satisfy what Sir William Scott described in Loveden v. Love-den as the guarded discretion of a reasonable and just man.''
In Bipinchandra Jaisinghbhai v. Prabhavati, : 1SCR838 our Supreme Court enunciated the rule in the same way. It was pointed out that a spouse accusing the other of any matrimonial offence must prove the offence beyond reasonable doubt, and that where the evidence is that of the spouse it was rule of caution that that evidence should received corroboration.
10. The evidence given by the wife in this case, if believed, cannot but lead to the fair inference that during the period Alumelu was staying in the matrimonial home of these spouses, the respondent had become unduly familiar with her. She stated in her evidence: 'I suspected respondent and Alumelamma for the first time about 5 or 6 months after she came to our house. At about midnight, I found when I awakened in the night respondent dragging Alamelamma. When I asked him what it was about. Respondent said that I should not suspect the innocent girl'. Rajagopal P. W. 4 stated that:
'Alamelamma came to Bangalore at the end of 1956 in connection with an interview for a job. She stayed in respondent's house for about a month on that occasion. Respondent and Alamelamma were on intimate terms ..... She was quite intimate with respondent giving room for suspicion about her attitude towards the respondent.'
It is true that the evidence given by P. W. 1 about the midnight incident was what was elicited during cross-examination. This is what she stated in her examination-in-chief.
'Alumelamma is now about 31 or 32 years old now. She was employed as a teacher or something in a Military school at Jalahalli. She came to live with us in February or March 1957. Respondent became quite intimate with Alumelamma and he has begotten by Alamelamma a female child which was born in Vani Vilas Hospital. Alumelamma has not been married but I learnt that she has to have married respondent before ho married me. While Alumelamma stayed with us, I was also with my husband. I myself sent away Alamelamma from our house stating that I would not allow her to have the confinement in our house. This was about one day before she gave birth to the child.'
It is not surprising that the wife giving evidence of adultery on the part of her husband did not mention all the details of the disgraceful conduct of her husband in her examination-in-chief and was obliged to come out with these details when she was pressed to do so during cross-examination. If the midnight incident has revealed itself in that way, the fact that it stood revealed during cross-examination does not, to my mind, indicate that P. W. 1 was not speaking the truth.
11. Normally the evidence given by P. W. 1 and P. W. 4 that the respondent and his niece were on terms of familiarity might not have by itself led to any tangible conclusion on the question whether the sexual intercourse which is necessary for the purpose of section 10(1)(f) of the Act did really take place. But it is clear from the evidence, that both P. Ws. 1 and 4 were speaking of forbidden familiarities considered unconventional between an uncle and his niece. The evidence of such familiarity between a person accused of adultery and the person with, whom he is said to have had sexual intercourse being a material piece of evidence, the reason for such familiarity is to be found in what resulted in consequence of it. If Alumelu became pregnant when she and the respondent were conducting themselves in that way, and if in addition there is evidence given by P. W. 1 about the salacious midnight incident, the fact that Alumelu became pregnant when she was staying in the house of the spouses, would be a piece of evidence corroborating the accusation made by P. W. 1 that the respondent was the father of the child to which Alumelu gave birth.
12. The District Judge did not doubt the existence of opportunities for adultery which the respondent had during the period Alumelu was staying with him. He did not also distrust the testimony given by P. Ws. 2, 3 and 5. Nor did he say that the evidence of P. W. 4 was for any reason open to suspicion. He seems to have been under the impression that more direct evidence than what was produced in this case was necessary to establish the accusation of adultery and that that evidence was not available in this case. That was the reason why he was inclined to think that the respondent was not the father of Alumelu's child.
13. The question is whether that conclusion can be supported. The evidence so far discussed consisting of that given by P. Ws. 1 and 4 which refers to the relations of the respondent with Alumelu, strikes us as evidence of a trustworthy character. The evidence of P. W. 1 is materially corroborated by the evidence given by P. W. 4 who is not shown to be untrustworthy witness. On the contrary it is not disputed that P. W. 4 did reside with these two spouses as a paying guest at all relevant points of time and therefore, had the opportunity to watch the way in which the respondent and Alumelu' were behaving themselves.
14. Mr. Vijaya Shankar contends that there is other corroborating evidence of a material character and that according to him, is what is available from the statements of Alumelu both to the organisers of the rescue home and at the Vani Vilas Hospital. It is true that in Exhibit P-1 which is an entry in the admission register Alumelu described herself as the wife of the respondent. It is equally true that the clear meaning of what, is stated in Exhibit P-6 which is a record made by P. W. 5 is that the respondent was responsible for the pregnancy of Alumelu.
Mr. Vijaya Shankar contends that these two pieces of evidence fully establish the truth of the wife's case that Alumelu became pregnant by her husband, which Mr. Moganna for the respondent asks us to say that the statements contained in Exhibits P-1 and P-6 cannot be treated as evidence against the husband. It should be mentioned here that Alumelu was not examined although the wife did make more than one attempt to secure her presence before the District Judge so that her evidence may be recorded. Alumelu, we are informed, did not appear before the court since the summons issued to her could not be served for the the reason that Alumelu was residing somewhere in Madras, and, each time, the summons issued to her was returned without service. That was how the evidence of Alumelu became unavailable. But the question is whether the statements contained in Exhibits P-1 and P-6 are relevant, and, if so, have been proved. About relevancy there can be no question since if the statements contained in these two documents are shown to be true, they would undoubtedly constitute evidence of adultery with which the husband was charged.
Exhibit P-1, according to the arguments was an entry in a public record and therefore proved itself under the provisions of Section 35 of the Evidence Act. There can be no doubt about the, correctness of this assertion made by Mr. Vijaya Shankar to the extent it does. P. W. 2 is a surgeon of the Vani Vilas Hospital and Exhibit P-1 is the in-patient register maintained by a public servant in the discharge of his official duty and is, therefore, a public record within the meaning of that expression occurring in Section 35 of the Evidence Act. If, in addition to that fact, there is the direct evidence of P. W. 2 that that record was made when Alumelu entered the hospital, whatever proof was necessary in respect of Exhibit P-1, was thus available. But the fact that Exhibit P-1 is proved only shows that Alumelu made a statement to the authorities of the Vani Vilas Hospital that she was the wife of Ramaswamy which in effect means that she became pregnant by the respondent. That she made that statement to the authorities of the Vani Vilas Hospital can therefore be said to have been proved and of that, there can be no doubt.
But what Mr. Moganna contends is that the statement that Alumelu became pregnant by respondent can have no evidentiary value unless Alumelu gave evidence about it and it seems to us that Mr. Moganna is right when he makes the submission, since it is clear that if a person who is a party to an adulterous act to make a confession that there was such adultery, that confession would be evidence against the other party to the act only if the party making the confession gives evidence about it. That, is also what can be said about Exhibit P-6 which stands proved by the evidence of P. W. 5 who recorded that statement. Here again Mr. Moganna is right when he contends that the truth of the statements contained in Exhibit P-6 should have been established by the evidence of Alumelu.
15. The statements contained in Exhibits P-1 and P-6 cannot be said to have been proved in the sense that there is no proof of the truth of the statements made by Alumelu on those two occasions although there can be no doubt that Alumelu did make those statements to the hospital and rescue home authorities. But if in the context of her pregnancy, Alumelu, when she was in an unmarried state entered the rescue home and the hospital, and made statements disclosing the identity of the person by whom she became pregnant, the fact that she made statements to that effect is itself, to our mind, some evidence in corroboration of the evidence by P. Ws. 1 and 4. The fact that Alumelu became pregnant and the fact that she made a statement to the effect that the respondent was responsible for her pregnancy are in that sense materials affording corroboration of the evidence given by P Ws. 1 and 4.
it appears to us that although it may not be permissible to say without the evidence of Alumelu that these statements prove that the respondent was the person, through whom Alumelu became pregnant, it is certainly permissible for us to say that the fact that Alumelu made those statements is what corroborates the evidence of P. Ws. 1 and 4. That, in our opinion, is how the 'guarded discretion' referred to by Sir William Scott has to be exercised in the appreciation of the evidence before us.
16. A clear exposition of what is corroborating evidence was made by Lord Reading C. J. in Rex v. Basker Ville, 1916-2 K. B. 658. This is what he said at page 665:
'The rule of practice as to corroborative evidence has arisen in consequence of the danger of convicting a person upon the unconfirmed testimony of one who is admittedly a criminal. What is required is some additional evidence rendering it probable that the story of the accomplice is true and that it is reasonably safe to act upon it.'
If, therefore, even of the evidence of a person who himself is admittedly a criminal, the corroboration that is necessary is some additional evidence rendering probable his own story, the same principle would be equally applicable to the evidence given by a person like P. W. 1 who is not in the position of an accomplice. If, therefore, what is necessary is some evidence which renders probable the evidence given by P. W. 1, that evidence is the fact that Alumelu made a statement on the eve of her confinement that the respondent was the person by whom she had become pregnant.
17. Even if it could be said that the factthat those statements were made by Alumelushould be excluded from consideration altogetherand it does not appear to us that it can be totallyexcluded in that way the evidence of P. Ws. 1 and4 whom we believe and the other circumstantialevidence in the case is sufficient to establish the accusation of adultery.
18. We are not impressed by the argument advanced by Mr. Moganna that P. W. 1 in her evidence admitted that she had no suspicion about the true position between her husband and Alumelu during the period Alumelu was staying with them. In fact, in the very next sentence P. W. 1 explained that she did not suspect that these two persons were on terms of illicit intimacy only for about five or six months after Alumelu joined them. There is, in our opinion, not much substance in the argument that in one part of her evidence P. W. 1 stated that the relations between her and her husband were cordial. We must understand that evidence as meaning nothing more than that in every other respect there was really no room for difference of opinion between the two spouses. For the reasons already stated, the criticism that Alumelu was not examined or that the presents of P. W. 1 were not examined cannot have much materiality.
19. Mr. Moganna asked us to say that P. W. 1 had manufactured the accusation of adultery against her husband on the instigation of her sister's husband, a certain Dr. Rangaswamy. This suggestion, in our opinion, is entirely groundless. It was for the first time that the respondent in, the course of his evidence made an extremely unfounded allegation that some time during the period when the spouses were living together, Dr. Rangaswamy, the husband of the, appellant's sister was also residing with them and that during that period, the respondent noticed the appellant staying in the room of Dr. Rangaswamy for unusually long intervals and that he even rebuked Dr. Rangaswamy about it. It is, however, to be observed that this traducement of his wife and of Dr. Rangaswamy is a fabrication about which nothing was said in the pleadings. Further, no such suggestion was made to. P. W. 1 or P. W. 4 in their cross-examination.
20. In our opinion, the appellant has satisfactorily established the truth of her accusation that the respondent did have sexual intercourse with Alumelu sometime during the year 1957 and that being so, she was clearly entitled to a decree for judicial separation.
21. This appeal is allowed. We set aside the decision of the District Judge and in its place we make a decree for judicial separation as prayed for by the appellant.
22. The appellant is at liberty to make applications for alimony or maintenance or for custody under the provisions of Sections 25 and 26 ' of the Act to the court below and those applications when made by her should be heard and disposed of according to law.
23. The appellant will be entitled to her costs both in this court as well as in the court below.
24. Appeal allowed.