1. The appellant filed Hindu Marriage Petition No. 19 of 1964 for obtaining a divorce from the respondent, on the ground of her living in adultery. The trial court decreed the suit but the decision was set aside in Regular Civil Appeal No. 26 of 1965, by the learned District Judge of Bulsar at Navsari, who dismissed the suit with costs. It is against that order of dismissal that the present appeal is filed.
2. The learned trial Judge held that the oral evidence led on behalf of the petitioner was believable and that the same was supported by a letter Ex. 21, dated 10th April, 1962, written by the respondent-wife to the appellant admitting her intimacy with one Madhia alias Govind Ranchhod. He also held that looking to the circumstances of the case, after 19-3-1962, there was hardly and possibility of a sexual intercourse having been taken place between the parties, that the birth of a male child to the respondent on or about 25th February, 1963 was enough to show that the birth of that child was a result of adulterous course of conduct on the part of the respondent. He was also of opinion that the attempt of the respondent-wife of going to Hyderabad was an attempt to conceal the results of her leading an adulterous life and because of it she had not appeared before the Panch of the caste assembled for the purpose. He held that the petition was not bad for non-joinder of parties as the paternity of the illegitimate son appeared to be unknown.
3. The learned Judge in appeal disagreed with the appreciation of the evidence by the learned trial Judge and held that upto 23-1-1962 the parties were living happily and the evidence of Narsi and his mother, showing that Madhia twice or thrice visited the respondent at about 10 or 10-30 P. M. at night may at best create a suspicion against the respondent and would not necessarily mean that the respondent had committed adultery with Madhia. He was also of opinion that assuming that on one or two occasions the respondent had criminal intimacy with Madhia that would not be enough in law to hold that the respondent was 'living in adultery'. He went further and also held that the appellant-husband had condoned those instances of adultery with Madhia by staying with the appellant upto 18-4-1962 when she left for Bhinar village where her father was staying and that in these circumstances there would also be a presumption that the last sexual intercourse that may have taken place between the parties would be about 18-4-1962. He further held that after the respondent went to her father's place there was no evidence whatever that the respondent was living in adultery and that with the established position that the appellant had access to the respondent at his house at Dalvada upto 18-4-1962 a somewhat longer period of pregnancy amounting to about 313 days or some would not necessarily point in the direction of the respondent 'living in adultery', which according to the learned Judge should be a continuous piece of conduct extending almost upto the date of petition. He also held that it was possible that the letter, Ex. 21, was a result of beating given by the appellant to the respondent.
4. There are certain admitted facts namely that the parties were married in 1932 when they were children and the marriage was consummated in the year 1944 and ultimately a daughter named Kanta was born. The appellant was serving in Crompton Engineering Co. Madras Ltd., since about the year 1956 and had to go to various places in different States. His agricultural lands were being looked after by the respondent and Madhia was their farm labourer. The appellant returned to Delvada from Banaras on 21-3-1962. Some time thereafter he came to know from Narsi, a neighbour that Madhia was seen visiting the respondent 2 or 3 times at night at about 10 or 10-30 P.M. Thereafter the appellant left Delvada on 19-3-1962 and returned to Delvada on 31-3-1962, as his brother was to be operated. Thereafter he again left Delvada on 1-4-1962 and returned on 14-4-1962. On or about 18-4-1962 there were quarrels between the husband and the wife with the result that the wife left for Bhinar village where her father was staying. In between she along with her brother went to Hyderabad on 11-9-1962 but the appellant did not keep her with him with the result that the respondent and her brother returned to their village. In the meanwhile a meeting of the caste panch was called on 31-1-1963 but the respondent and her father did not appear before the Panch. A male child was born to the respondent on or about 25-2-1963 and it is alleged that the child was a result of the respondent living in adultery.
5. Section 21 of the Hindu Marriage Act, 1955 deals with the procedure to be adopted, and further provides that matrimonial proceedings being of a special nature, provisions made under the Act and the rules made by the High Court are to be observed. In all other respects the provisions of the Code are made applicable. The High Court of Bombay has framed rules under Sections 14 and 21 of the Hindu Marriage Act (XXV of 1955) for carrying out the purposes of the Act. The rules are called the Hindu Marriage and Divorce Rules, 1955 which are contained in para 279 in Chapter XV at pages 110 to 115 of the Civil Manual 1960 Volume I. Rule 5 thereof provides that in every petition for divorce or judicial separation on the ground that the respondent is living in adultery or has committed adultery with any person, the petitioner shall make such person a co-respondent. The petitioner may, however, apply to the court by an application supported by an affidavit for leave to dispense with the joinder of such person as a corespondent on any of the following grounds: -
(i) that the name of such person is unknown to the petitioner although he has made due efforts for discovery.
(ii) that such person is dead; etc. etc.
6. It is contended for the appellant that these rules framed by the Bombay High Court had not been adopted by the Gujarat High Court and that the rule is only directory and not mandatory in character. Section 88 of the Bombay Reorganisation Act, 1960, provides for adaptation of the laws made and the rules and regulations made by the High Court of Bombay automatically apply to the High Court of Gujarat under Clause 4 of the Adaptation of the Law (State and Concurrent Subjects) Order 1960. In my opinion the use of the word 'shall' in the rule quoted above makes the provisions mandatory and not merely directory. Possibly the underlying idea in considering the person committing adultery as a co-respondent is with a view that in proceedings of this nature wherein a character of this person is assailed the same should not be allowed to be proceeded with in his absence. It is the positive case of the appellant that the appellant was living in adultery with Madhia and, therefore, the character of Madhia was certainly in question and, therefore, it was necessary to join him as a party. If in fact the alleged person committing adultery was unknown the necessary affidavit in that behalf of the person committing adultery being unknown was necessary to be filed. This to my mind will also have considerable effect on the question of the appellant 'living in adultery' because if the person committing adultery was unknown and could not be made a party the evidence led has to be appreciated in that light. In the facts alleged Madhia was a necessary party in the matter. No attempt seems to have been made to make Madhia a party to the proceedings.
7. The learned Advocate for the appellant relied on the rulings in Dr. H. T. Vira Reddy v. Kistamma, AIR 1969 Mad 235 and the ruling in Devyani v. Kantilal, AIR 1963 Bom 98. Both these rulings lay down the guiding and salutary principles regarding the burden of proof etc. to be discharged in matter falling within the scope of Sections 10, 13 and 23 of the Hindu Marriage Act, 1955, one of them being that in matrimonial proceedings the court had to be vigilant that the burden of proof is satisfactorily established and properly discharged by the applicant and the proof adduced is of a high degree. It is also laid down that in cases of this type the court must have due regard to the social conditions and the manner in which the parties are accustomed to live. As laid down in the ruling in Ramappa v. Bojjappa, AIR 1963 SC 1633 that : -
'It has been always recognized that the sufficiency or adequacy of evidence to support a finding of fact is a matter for decision of the court of facts and cannot be agitated in a second appeal.' and that:
'If in reaching its decision in second appeals, the High Court contravenes the express provisions of Section 100, it would inevitably introduce in such decisions an element of disconcerning unpredictability which is usually associated with gambling; and that is a reproach which judicial process must constantly and scrupulously endeavour to avoid.'
8. It is, therefore, contended for the respondent that this court was bound by the finding on facts by the learned appellate judge unless the findings are contrary to law or that material issues of law had not been properly decided or that there was some procedural defect in the conduct of the matter or that a wrong onus of proof had been laid or that evidence which was inadmissible had been admitted such that it materially affected the decision of facts. It has also been laid down in the aforesaid ruling of the Supreme Court that:
'The admissibility of evidence is no doubt a point of law, but once it is shown that the evidence on which courts of fact have acted was admissible and relevant, it is not open to a party feeling aggrieved by the findings recorded by the court of fact to contend before the High Court in second appeal that the said evidence is not sufficient to justify the findings of fact in question.'
9. I have not been shown any of the aforesaid defects by the learned lawyer for the appellant except the question relating to the access of the appellant to the respondent and the birth of a son to the respondent after the normal period of gestation of 280 days.
10. It is true that in case of adultery direct proof of this is difficult to get and one has to rely for the proof thereof on circumstantial evidence and the same may be sufficiently proved by circumstances from which adultery may be inferred and, therefore, one has to rely on circumstantial evidence, evidence as to non-access and the birth of a child and finally confessions or admissions of the parties in relation thereto. The learned judge in appeal has disbelieved the evidence of Narshi and his mother about Madhia visiting the respondent on 2 or 3 occasions at night and that even if it was believed that circumstance would only lead to some suspicion about some intimacy between the two and nothing more and that that circumstance also had to be viewed in light of the fact that Madhia was the farm labourer of the respondent and would have occasions to go to her in the night on 2 or 3 occasions spoken of by Narsi and his mother. Now the impression of a witness that the respondent committed adultery is no proof of the commission of adultery and similar would be the position regarding the belief of the husband. If Madhia as a necessary party had been joined in the petition perhaps he would have thrown considerable light on this circumstance. Even after coming to know of the alleged illicit connection with Madhia soon after the petitioner came to Delvada after January, 1962 admittedly he continued to have relations with the respondent as husband and wife upto 19th March. 1962 and that is also the case of the petitioner as disclosed in point No. 17 in the Memo. of appeal where the claim made is that the last sexual intercourse which the appellant had with the respondent was on 19th March, 1962. The learned Judge in appeal has found as a question of fact that with the parties living under one roof upto 18-4-1962 even assuming that the respondent had lapsed from virtue on one or two occasions there was condonation of the alleged lapses. The best evidence of condonation is the continuance or resumption of sexual intercourse by the husband after he had discovered the misconduct of his wife and the question of condonation is a question of fact.
11. 'Living in adultery' means following an almost continuous course of adulterous conduct and not to a single lapse from virtue 1 or 2 lapses of virtue would no doubt be acts of adultery but are insufficient to show that the respondent was 'living in adultery' and, therefore, the appellant has to prove a course of conduct over some period with repetition of acts of adultery, with one or more persons. With the use of the continuous present tense for attracting the operation of the phrase 'is living in adultery' it would not be enough for the spouse who was living in adultery for some time in the past and it has to be shown that the period during which the wife was living an adulterous life was so related, in proximity of time to the filing of the petition, that one can reasonably infer that the petitioner had a fair ground to believe, about the time of the filing of the petition that the wife was living in adultery. See Rajani Prabhakar Lokur v. Prabhakar Raghavendra, 59 Bom LR 1169 = (AIR 1958 Bom 264). In fact the present petition is filed nearly 2 1/2 years after the alleged intimacies with Madhia. It has also been found as a matter of fact that there was no evidence whatever of the respondent living in adultery after she left for Bhinar and stayed with her father.
12. For the purposes of proving fresh act of adultery after 18th April, 1962 the appellant relies on the circumstance of the respondent having delivered a male child on or about 25th February, 1963. The petitioner seems to have no idea of the activities of the respondent after she left his house or with whom she had illicit connection at Bhinar. It has been found as a matter of fact that the parties were living under one roof upto 18th April, 1962. It is true that in between the appellant had gone out of Delvada and on one occasion had returned as his brother was to be operated upon. The appellant, however, has admitted that the last intercourse which he had with the respondent was on 19th March, 1962. In the ruling in Uttamrao Rajaram v. Sitaram, 64 Bom LR 752 = (AIR 1963 Bom 165) it has been observed as follows: -
'That in every case where a child is born in lawful wedlock, the Husband not being separated from his wife by a sentence of Divorce, sexual intercourse is presumed to have taken place between the Husband and wife, until that presumption is countered by such evidence as proves, to the satisfaction of those who to decide the question, that such sexual intercourse did not take place at any time, when by such intercourse, the husband could, according to the laws of nature, be the father of such child.'
13. If the last sexual intercourse took place on 19th March, 1962 the male child was born 343 days thereafter and if it is taken as has been done by the learned appellate Judge that the last sexual intercourse took place on or about 18-4-1962 the child is born after 313 days. No medical evidence has been led in this case by either side. Under Section 112 of the Indian Evidence Act the possible duration of pregnancy has been fixed at 280 days but actually the period of gestation may be more and in many cases when there is birth outside nature. It is also possible that fertilization which generally takes place at the time of coitus, instances are not unknown when some interval between insemination and fertilization takes some time. In Gaskill v. Gaskill, 1921 P. 425 the medical evidence was that such interval may be as long as 21 days and in the ruling in Hadlum v. Hadlum, 1949 P. 197, it was 17 days. Reliance is placed on the ruling in Mahendra v. Sushila. AIR 1965 SC 364. In that case the parties were betrothed sometime in June-July 1945 and their marriage was celebrated on 10th March, 1947. The husband had marital relations with his wife while at Bombay. The husband thereafter left for U.S.A. and a female child was born to Sushila on 27th August 1947 after a period of 5 months and 17 days after their marriage and it was then contended that the child was a result of adulterous intercourse. The defence of the wife was that after betrothal they used to have sexual intercourse. Considerable medical evidence was led in the case and it was held that in the fact of that case that the conception had taken place before the first coitus between the husband and wife and the wife was pregnant by a person other than the husband at the time of the marriage. The facts in this case are different. The other ruling relied upon is P. v. P. English Law Reports, (1951) AC 391. In that case a child was found to be normally delivered and appeared to be healthy full time child, according to the medical opinion. It was also proved as a matter of fact that the husband was not within the country between August 29, 1945 and February 13, 1946 and could not have any access to the wife during that period. It was held by majority that the onus of proof on the husband did not extend to establishing the scientific impossibility of his being the father of the child, and that, on the whole evidence, the wife's adultery had been proved beyond reasonable doubt. Lord Simonds who delivered majority judgment observed:
'In the case of an interval of 360 days between intercourse with her husband and the birth of a child the court cannot, in the absence of further evidence, regard adultery by the wife as established.'
In short the opinion was that the period of 360 days could not in the absence of further evidence be considered a proof of adultery that is to say that the child was born from someone other than the father who has the last coitus with the alleged mother. This case as well as other English cases have been considered in the ruling of 64 Bom LR 752 = (AIR 1963 Bom 165). In the case of Wood v. Wood, 1947-2 All ER 95, it was held that the child born after 346 days after coitus was held to be legitimate. In Hadlum v. Hadlum 1949 P. 197, it was held that the child born after a period of 349 days was held legitimate. I respectfully agree with the proposition of law laid down in the aforesaid ruling which is to the effect that: -
'The presumption as to legitimacy contained in Section 112 of the Indian Evidence Act, 1872, does not necessarily mean that if a child is born beyond a period of 280 days, it must be presumed that the child is illegitimate. If the plaintiff comes to court the initial burden is on him. If the child is born within a reasonably possible period of the normal period of gestation then the court should raise a presumption of legitimacy and then the burden of proof would shift. Something more than mere delay in delivery is required to negative legitimacy and the evidence must show that the child is not a legitimate child beyond any reasonable doubt.
In some cases it may not be improper to consider the unchastity of the mother as one of the factors which would determine the issue of legitimacy. But this unchastity must be very near about the time when the child could have been conceived and was born. Merely because a person has misconducted once, there cannot be a presumption that the misconduct must continue, much less can there be a retrospective presumption. Unless the Court definitely finds unchastity in the mother immediately about the time the child is born or could have been begotten, it would not be a relevant circumstance.
14. It would, therefore, follow that the presumption as to the legitimacy under Section 112 of the Evidence Act it does not unnecessarily mean that if a child was born beyond the period of 280 days it can be presumed that the child was legitimate and if in the facts and circumstances of a good case and considering the medical evidence, if any, led by the parties it could be held that the child was born within a reasonable period of the normal period of gestation, then the court should raise a presumption of legitimacy. The alleged illicit connection between the respondent and Madhia is said to have taken some time prior to 19th March, 1962 when the appellant came to Delvada and in that circumstance it cannot be said that the child born on 27th February, 1963 was a result of illicit connection with Madhia. As stated earlier there is no evidence of any acts of adultery by the respondent after she went to Bhinar. The learned Judge was, therefore, right that the appellant had access to the respondent while living under the same roof upto 18th April, 1962 and the period of gestation of 313 days cannot be said to be unreasonable nor even the period of 343 days counting it from 19th March, 1962 when admittedly the appellant had sexual intercourse with the respondent. The evidence whether direct or circumstantial must be necessarily of such a character as would lead a reasonable man to conclude that no other inference than of misconduct can be drawn from the same, and a mere probability that adultery may have been committed is not enough, as one cannot act in such matters on mere suspicion.
15. The learned appellate Judge has held that the letter Ex. 21, written by the respondent may be a result of her having been beaten by the appellant. The opening lines of that letter would appear to indicate that a show has been made that it was written from a place other that Delvada, though admittedly on that date the respondent was staying at Delvada. It was on the 13th that the appellant had returned to Delvada. Even that letter as found by the learned Judge does not show that the respondent had admitted having committed adultery with Madhia. The mention in the last part of the letter that the respondent would like to have sexual intercourse only with the appellant need not prove the positive fact that she had so written because she had committed adultery with Madhia. If there is evidence, not open to exception, of admissions of adultery, the court may act on such admissions even if there is total absence of all other evidence in the facts of a given case but ordinarily evidence of adultery should be independent of a wife's admissions particularly when such evidence of admission is open to exception and cannot be believed in light of the surrounding circumstances particularly circumstance connected with the writing of this letter containing such admissions. In this case it being held as a matter of fact that the respondent was a woman of a backward community and being desirous of laying a foundation for reconciliation might have written that letter and that such a piece of evidence cannot be said to be such as would lead to the inference that the alleged adultery has been proved beyond reasonable doubt.
16. The learned Judge, therefore, was right in holding that assuming that there were one or two lapses on the part of the respondent with no other evidence to show that adultery that was being committed by the respondent was an open and continuous conduct almost upto the time when the petition was filed and that no evidence as to the respondent having committed adultery after going to Bhinar for a period of two years and more, that the discretion exercised in the case was proper.
17. It has not been contended before me that the evidence in the case even though it was not sufficient to grant a divorce was sufficient to grant a decree for judicial separation. In fact the alleged adultery committed by the respondent with Madhia has not been held to be proved.
18. The result, therefore, is that this appeal must fail and must be dismissed with costs.
19. The appeal is dismissed with costs.
20. The request of the learned advocate of the appellant Mr. Shethna for leave to file a letters patent appeal is rejected.
21. Appeal dismissed.