Chandha Reddy, C.J.
1. This is an appeal under Clause 15 of the Letters Patent against the order of our learned brother, Manoher Pershad, J. in C. M. P. 354 of 1953.
2. The appellant sought dissolution of his marriage with the respondent under Section 5(b) of the Madras Hindu (Bigamy Prevention and Divorce) Act, (Act VI of 1949) in the court of the Subordinate Judge, Tenali.
3. A few facts material for the purpose of this enquiry may be set out. The appellant was married to the respondent in or about the year 1944 and they lived together for some time amicably. Later on, he found the respondent misconducting herself and he chastised her on one or two occasions. It is alleged that having fallen into bad ways, the respondent did not like to continue to live with her husband and one day when he was away from the house, she bolted away to her parental home taking with her all the jewels and also some cash, On returning home he learnt that she had gone to her parents' house.
Thereupon, he wrote a letter to her brother, one Curuvaiah (Ex. A-1) complaining that the respondent was leading an immoral life and that she left his house in his absence carrying away the jewels and some cash. He added that the brother should take care of the jewels and the money as otherwise she was likely to dissipate them. A reply was sent by her brother (marked as Ex. A-3) denying the allegation of unchastity attributed to his sister and stating that she had obtained the permission of her husband before coming to his house.
This evoked a rejoinder from the appellant, who refuted the allegation regarding the permission said to have been accorded to the respondent. The charge of immorality was reiterated in this rejoinder. There does not seem to have been any further cor-respondence between the parties. Coming to know that the respondent continued to lead an adulterous life and was pregnaint, the appellant filed the petition which has given rise to this appeal on 15-10-1951.
4. He also filed an application in the Sub Court for getting the respondent examined by a lady doctor. The request was complied with and she was examined by the local) doctor and the examination disclosed that she was nine months pregnant. She gave birth to a female child in the beginning of November 1951, It may be stated that the medical examination took place on 28-10-1951.
5. The petition was opposed by the respondent on the ground that she was not leading an unchaste life and that the child was en ventre sa mere before she went to her brother's house.
6. In support of their respective cases, the parries led oral evidence. The appellant stuck to his case that the respondent was guilty of immoral conduct, that she was having promiscuous intercourse with a number of people, that the child was not born to him and that the conception took place after she left him. He was supported in this behalf by P. Ws. 2 and 3, who stated that they saw the respondent in the company of two paramours, once in the house of the appellant petitioner himself and again in a kandhichenu.
7. On the other hand, the case of the respondent as put forward in the oral evidence was that after she left her husband, some time in October 1950 the elders of the village, like R. Ws. 2 and 3, effected a reconciliation between them, took her and left her in the appellant's house and that it was only when she was seven months pregnant that she went back to her parents' house.
8. The Subordinate Judge dismissed the petition in the view that the case of the appellant that his wife was leading an immoral life and that the latter was not carrying at the time she left his house was not made out. He relied mainly on the statement made by the appellant in the course of his cross-examination that his wife left his house a day before the filing of the petition and a week before she was examined by the doctor. The learned Subordinate Judge had not taken into account the contents of the counter filed by her and of the plaint in the suit for maintenance.
Ho had completely ignored them. He ought to have tested the oral evidence in the case in the light of these two documents and the result of the medical examination. The surmise of the trial Court that it was with a view to evade payment! of maintenance is baseless as could be seen from his present conduct. The Subordinate Judge had also not paid sufficient attention to the attitude oi the respondent as disclosed in Ex. A-3.
9. On appeal, our learned brother, Manohar Per-shad, J. concurred! in the opinion of the trial court. Here again, it is the statement of the appellant mentioned above that was responsible for the result of the appeal. Aggrieved by this decision the husband has brought this Letters Patent appeal.
10. The sole question for determination in this appeal is whether the allegations in the petition have been made out by the appellant. Indisputably, the burden is very heavy on a person, who seeks to get a dissolution of his marriage on the ground that his wife is leading the life of a prostitute, to establish it by cogent and unimpeachable evidence. At the same time, it should be borne in mind that it is not possible for any person to prove by direct evidence that his wife is having promiscuous intercourse with a number of persons and the Court is entitled to have regard to strong and cogent circumstantial evidence,
11. In considering this point, we shall first advert to the pleadings in the case. As we have already stated, the case of the appellant was that even while the respondent was living in his house she was leading an adulterous life and that the appellant reprimanded her when he found her once in the company of a paramour and was keeping a strict watch on her way of living. This was found rather irksome to the respondent and, therefore, she suddenly left his house when he was away in the fields. On returning home and finding that she had gone away, the appellant wrote a letter to her brother complaining about her conduct and alleging that she had run away with the jewels on her person and money belonging to him. It was further recited in the petition that on enquiry he learnt that she was carrying on the life of a prostitute and was in an advanced state of pregnancy.
12. This was countered by the respondent by pleading that by the time she had to leave the appellant's house for the reason that she was being ill-treated by her husband at the instigation of his brothers she had 'passed the month and conceived and, knowing that, the appellant rushed with a petition with frivolous allegations. Reference is also made in the counter to her getting a reply notice issued to the appellant on 6-10-1950 with full details of the circumstances and the jewels that the appellant had taken.
13. This counter makes it abundantly clear that the respondent left the house of the appellant on the 30th September 1950, but at that time she wad pregnant. This is opposed to the present case which is already referred to. Evidently, the present ver-rion was invented to fit in with the medical exarnination. That examination revealed that on 28-10-1951 she was nine months pregnant. If that were so, she could not have conceived in September 1950. The longest period of gestation is only 330 days and there can be no interval of nearly fourteen months between conception and the birth of a child. It is to get over this difficulty that a change of front was made in the oral evidence of the respondent's witnesses.
14. Having regard to the recitals in the counter, it is difficult to believe the story set up in the oral evidence. Her present version is also destroyed by the averments in the plaint in O. S. No, 286 of 1952 (on the file of the District Munsif's Court, Tenali). The relevant recitals are as follows:
'Subsequently, when the petitioner (plaintiff) became pregnant, the respondent (defendant) at the evil advice of his elder brother beat and abused the petitioner (plaintiff) and was making attempt to administer poison to her, whereupon she bad to leave the house. As soon as she came out, the petitioner (plaintiff) had caused even a notice to be issued on 6-10-1950 with full particulars thereof. Therefore, this suit has been filed for making proper provision in respect of the petitioner's (plaintiff's) maintenance and residence.'
It is also pertinent to notice that the cause of action for the suit is alleged to have arisen on 6-10-1950 when the notice was issued. Significantly enough, there is no reference at all in the plaint to the respondent having come back to her husband after having left his home at the end of September 1950. On the other hand, the specific ease of the respondent was that she had left her husband's home before the issue of notice of Ex. A-3 and that she was then pregnant. It is also noteworthy that maintenance was claimed from 6-10-1951) which could not have been the case had she come hack to her husband and lived with hint for some months.
These documents are incompatible with the present version of the respondent that she returned to her husband sometime after October 1950 and was with him till she was seven months pregnant. On the other hand, read in conjunction with the result of the medical examination, they firmly establish the case of the appellant. It is abundantly clear from these two documents and the medical examination that she had not come back to her husband after October 1950 and that the conception took place long after she deserted him.
15. There is another circumstance which has a material bearing on this enquiry. Ex. A-3 docs not reveal any inclination on the part of the respondent to return to her husband. She only wanted that a deed ef maintenance should be executed in her favour. It is to be noted that in Ex. A-1 the appellant said that be was considering whether it was possible for him to live with her after what she had done. In reply to this, one would expect her to show her willingness to go back to him. This renders the defence of the respondent that shortly after she left her husband's house a, reconciliation took place and she was taken to the appellant's house by some mediators highly improbable.
16. In this state of affairs, could the statement of the appellant which has been referred to above lend any countenance to support the case o the respondent? In our opinion, the so-called ad mission was a mere slip. This is not also consistent with the respondent's case. It is nobody's case that the respondent left the house of the appellant on 14-10-1951. Nor is it consistent with, the other part of the statement that she left his house, a week before her medical examination, which took place on 28-10-1951. The two parts of the statement are irreconcilable for the reason already mentioned above, namely, that the petition was filed on 15-10-1951 and the medical examination was conducted on 28-10 1951.
That apart, the present case of the respondenl is that she left her husband's house when she was six or seven months pregnant, which should be somewhere in July or August, while the medical examination took place on 28-10-1951. Therefore, this does not support her case either. We are told by Sri Ramanarasu, counsel for the appellant, that when the appellant was questioned in cross-examination whether it was not a day before he filed the application that she left life house and a week before the medical examination, without realising the signi-ficance of it, he said 'yes' That seems to accord with probabilities. No doubt, this was not clarified in the re-examination, but, in our opinion, that should not make much difference so far as the case is concerned.
17. That there is not much substance in the case of the respondent could also be gathered from the evidence of R. W. 3 who said:
'It may be about two years before she came with pregnancy we took and left her in the house of the petitioner';
which is not the case of the respondent. Moreover, as we have already stated, P. Ws. 2 and 3 have deposed to the respondent being found in the company of persons whose names are given by the appellant and who are described as her paramours. There are no reasonable grounds to disbelieve their evidence. The fact that p. W. 2 did not know whether the respondent was carrying when she went away could not belittle bis evidence as was done by the trial court. He is not expected to know this, unless it he an advanced pregnancy. It must be mentioned that the opinion of our learned brother was founded mainly on the so-called admission of the appellant.
In our opinion, this cannot form the basis of judgment against the appellant for the reasons mentioned above. The averments both in the counter and in the plaint in O. S. No. 286 of 1952 read in the light of the medical examination substantiate the case of the appellant and leave no room for doubt regarding the unchastity of the respondent. In this connection, it should also be remembered that it is not the case of the respondent that during her stay with her parents her husband visited her or that he had any access to her. That being the position, the conclusion is inescapab'e that the child was not born to the appellant. Adultery by a wife may be proved by the birth of child to her of which her husband could not be the father (See Latey on Divorce (1952 Edition) page 302).
18. This leads us to the question as to whether these facts are sufficient to sustain a petition under Section 5 of Madras Act VI of 1949. It is contended by Srimathi Amareswari, counsel for the respondent, that a solitary instance of adultery could not justify the granting of a decree for dissolution of marriage and that it should be established that the respondent took to prostitution. The above narration of facts clearly establishes that it is not a mere case of a single lapse but that the child born was not to the appellant but to someone else.
In our opinion, this is sufficient to maintain a petition under Section 5. It is not necessary that it should be established that she was a common prostitute or a public prostitute. The language employed in Section 5(1)(b) of the Act is 'leading the life of a prostitute'. That does not connote that the wife is a public prostitute. In our opinion, it is sufficient if she is a whore having indiscriminate intercourse with a number of people to satisfy her lust.
19. In this connection, we may refer to Narasamma v. Dharmaraju, 1955-1 Andh WR 584 which contains an elaborate discussion on this subject. Subba Rao C. J. (as he then was) considered this question at some length and reached the conclusions that the conditions laid down in Section 5(1)(b) were satisfied if it was established that the wife was having promiscuous intercourse with different persons. In our considered judgment, if it is proved that the wife was having intercourse indiscriminately with different persons to satisfy her passion and not to make money, it would amount to 'leading the life of a prostitute' within the ambit of Section 5(1)(b) of that Act.
20. We may here advert to the following passage in the decision Emperor v. Lalya Bapu, AIR 1929 Bom 266 extracted by the learned Judge in 1955-1 Andh WR 584:
'The idea underlying prostitution is that a woman should surrender her body for a monetary consideration to some one who is not in law entitled to have sexual intercourse with her. The position of a mistress is not necessarily that of a prostitute. The relationship is of a more permanent nature than a casual relationship implied in prostitution. Having a stray paramour would not in our opinion constitute a woman a prostitute. Mr. Barberkar has also relied upon the distinction between a common prostitute and an ordinary prostitute. According to his contention, an ordinary prostitute is one who is available to any man who pays a price for her virtue. We do not agree that such a distinction is contemplated by Bombay Act XI of 1923. The matter, in our opinion, appears to rest more on degree than on kind.'
These remarks afford us some assistance in gathering the applitude of the sub-section. The law, if we may sav so with respect, was correctly stated in 1955-1 Andh WR 584. We are in entire agreement with the learned Judge that the word 'prostitute' used in the section is in the sense of a where rather than in the sense of professional prostitute. We are persuaded that the requisites of Section 5(1)(b) have been satisfied in this case and that the appellant is entitled to a decree for dissolution of his marriage with the respondent.
21. We are glad that irrespective of the result of this appeal, the appellant has agreed to pay maintenance to the respondent at eight bags of paddy per year and to give a vacant site of an extent of two cents on which a thatched shed could be put up to the respondent for her life with the vested reminder to her child.
22. In the result, the appeal is allowed. But, we direct the parties to bear their own costs throughout.