1. The defendant-appellant (husband) has come up in appeal from the judgment and decree of the learned Additional District Judge, Rajgarh, granting a divorce to the plaintiff-respondent (wife) in her suit under Section 13 of the Hindu Marriage Act, 1955. The main reason for the divorce, which the appellant has admitted as a fact is that he has been living with another woman whom he has married as his wife, as the facts show, after the commencement of the Hindu Marriage Act, 1955. The plaintiff-respondent herself had been married to him several years before that date.
2. In the judgment, which is somewhat brief possibly on account of the facts being admitted, it is not expressly made out whether the decree was being passed in accordance with the ground in Section 13(2)(i) or that in Section 13(1)(i) of the Act. The argument here is that the 'marriage' of the second 'wife' having been solemnized after the commencement of the Act, she is really no wife at all in the eyes of the law and, therefore, the ground in Section 13(2)(i) has not been made out and the judgment and decree of the trial Court should be set aside. Another ground raised is, that the plaintiff (wife) has not satisfied the Court in the manner required by Section 23 of the Act that she was not taking advantage of her own wrong, that being herself persuading the appellant (husband) to take another wife because she felt that she was incapable of giving birth to male children and he badly wanted such issue.
3. It is necessary in the circumstances to examine these two grounds. The first one is based on a clear misunderstanding on the part of the husband-appellant. He is living continuously with a woman whom he calls his wife and with whom he has gone through a ceremony of marriage but after the commencement of the Hindu Marriage Act, 1955; certainly, a divorce on this ground does not come under the ambit of Section 13(2)(i): but it does come under one of the general provisions in Section 13(1)(i)--'is living in adultery'; Since there appears to be some misunderstanding in this regard and as the legislature has left undefined the phrase 'living in adultery' in this regard, and I think intentionally so, it is useful to examine the problem at some length.
4. Section 13 has got two parts, the general one in Sub-section (1) which enables either party to a marriage to seek its dissolution by a decree of divorce on one or other of the nine grounds. Most petitions would naturally fall under this sub-section At the same time, the legislature has taken account of the state of the Hindu society before 1955. where, except possibly in certain parts of the country, it was not legally forbidden for a Hindu man to take a second wife while the first was living. When the Act came into force, the legislature left it to the choice of the wife of a polygamous husband either to remain with the husband or seek divorce on that ground. Accordingly, Subsection (2) (i) has been enacted under which only the wife can come There is another grievance contained in Sub-section (2) (ii) of the Act on which also it is the wife who could apply, but we are not concerned with it here.
5. The point to note for our purposes is that very often the wife, who petitions under this sub-section, may not be in a position to satisfy the Court that the other woman is the legally married wife of her husband. She can only say that she is living 'as a wife usually does'. Whether the marriage itself is valid, she cannot be sure, it may be invalid for want of ceremony or on account of the simple fact that the marriage so called having been solemnigad after the Commencement of the Act, is, in the eyes of law, no marriage at all. If, strictly speaking, the other woman is not this wife, then the only ground on which the marriage can be dissolved by a decree of divorce is one of the general provisions viz.. Section 13(1) .
6. 'Living in adultery' has, in matrimonial cases, a different and a wider meaning than in two other enactments in which the phrase has been used. Section 497, Indian Penal Code, makes adultery by a man punishable on a complaint by the husband of the woman with whom the offence is committed. This certainly pre-supposes that the woman concerned is a married one so that for the purposes of that section.
'Living in terms of carnal intimacy with any woman other than one's wife, does not become adultery unless she is the married wife of another and, the other--her husband--does not give his consent.'
If she is unmarried or widowed or if the husband had connived, then there is no adultery for the purpose of that section.
Section 488. Code of Criminal Procedure, again speaks of a woman living in adultery losing her right of maintenance. There again the connotation is narrow. She is of course a married woman; but still the purpose of the section is limited. While in the Penal Code, adultery is viewed primarily as an invasion on the right of the husband over his married wife, in the maintenance-section in the Code of Criminal Procedure, living in adultery is viewed an a disqualification annulling the duty of a woman's husband to give her maintenance.
7. In marital eases, the word 'adultery' takes its fullest dictionary meaning. When it is a man living in adultery with a woman, it has. in these cases, no implication that the latter is necessarily married to another man and is owning exclusive conjugal rights to him. In this class of cases, ''adultery' means nothing else than sexual relations unfollowed by a marriage or, what is recognised in that society, as equivalent of a legal union. This word, like the word 'adulteration', is derived from a Latin root (through French) which originally meant 'mixing or degrading or counterfeiting'. In English itself, the word 'adultery' has been defined thus (vide Shorter Oxford English Dictionary):
'Violation of the marital band; sexual relations of a married person with one who is not his or her lawful spouse whether unmarried or married to another '
In the first case, it is single adultery; in the other, it is called double adultery. It is in this wide sense that we have to understand the phrase in Section 13(1)(i). For that (as indeed in the instant ease the woman concerned may not be the wife of anybody. She may be the mistress of the adulterer or the mistress of one who believed her to be legally married but is still nothing more than a concubine.
8. The ground in Section 13(2)(i) of the Act is not a case of 'living in adultery'. The second woman is no doubt the legal wife of the man but that section has given an option to the wife of a polygamous husband which the legislature considered necessary in the special circumstances of the Hindu society when the Act came into force.
9. There is a two-fold emphasis in Section 13(1)(i) of the Act. There should be adultery in the sense already set out and that should be a state of affairs continuing for some time. Casual or insolated acts of improper sex relations will not be a sufficient ground for that section, there should be a course of conduct. In the instant case, the husband appellant has been living for some years with the second woman and the requirement is fulfilled. Merely because somebody thought, and wrongly thought in our opinion, that the circumstances of the case might come under Sub-section (2) (i), there is no reason at all why Sub-section (1) (i) should not be applied, as it is patently applicable to the proved facts of the case.
10. The, second ground can be disposed of very briefly. The husband-appellant's argument seems to be that it was the plaintiff herself who insisted upon his taking second woman, the reason being that she i.e. the plaintiff, had given birth to a daughter and felt that for one thing, she could never give birth to sons and for another, that her husband should have boy-children if necessary, through another woman. On the face of it, this story is fantastic. Actually, the trial Court having considered it, has refused to believe. We also disbelieve this ground. This is, therefore, not a case where the wife is taking advantage of her own wrong.
11. The judgment and decree of the trial Court are upheld and the appeal is dismissed. The appellant should pay the costs to the plaintiff-respondent and pleader's fee according to rules.