Basheer Ahmed Sayeed, J.
1. This appeal is by the wife whose marriage with her husband has been dissolved by an order of the learned Subordinate Judge of Mayuram in an application filed by the husband for divorce under Act 6 of 1049, Section 5(1) (b).
2. Section 5(1) (b) is in the following terms:
'(1) Either party to a marriage solemnised before or after the commencement of this Act who has completed eighteen years of age may present a petition to the (concerned court) within the limits of whose jurisdiction the marriage was solemnised......
(b) if the wife, is a concubine of any otherman or is leading the life of a prostitute.'
In this case the petitioner-respondent did notallege that the appellant was leading a life ofa prostitute. He confined his petition for divorceto the ground that his wife, the appellate here, is a concubine of another man, namely, one Pavadai Chettiar. It goes beyond saying that in a case where the petitioner applies to the Court for a divorce on any one of the grounds contained in Section 6 of Act 6 of 1949, the burden lies heavily on the petitioner who seeks to establish the case on the grounds on which he seeks the dissolution of his marriage tie with his wife. The question in this case is whether the petitioner, the respondent before me, has succeeded in establishing the particular ground on which he relied for obtaining an order of dissolution of the marriage with his wife. In his petition filed before the learned Subordinate Judge, in paragraph 4 the respondent averred:
'For about one year past the respondent has been frequenting and staying in the house of one Pavadai Chettiar, son of Govindaswami Chettiar Vannia Vaisya, of Karuvazhakarai carrying on the business of oil pressing. The respondent has been keeping the said Pavadai Chettiar as her paramour and the said Pavadai Chettiar has been keeping the respondent as his concubine. When they had both come to Mayavaram at 2 p.m. on 24-2-1951, the petitioner and his people found them at 12 O' clock in the night and took them to Karuvazhakkarai.'
In the course of the trial of this petition it is significant that the respondent failed miserably to adduce any evidence in proof of his avertment in the first part of paragraph 4 of his petition. If he had succeeded in proving his allegation in the first part of that paragraph, he should have been entitled to the relief which he had applied for.
3. It is the finding of the learned Subordinate Judge that the respondent however has succeed ed in establishing that the appellant had keen keeping the said Pavadai Chettiar as her paramour and that the said Pavadai Chettiar had been keeping the appellant as his concubine. According to the learned Subordinate Judge, four pieces. of evidence would seem to prove the fact of this concubinage of the appellant with the said Pavadai Chettiar. The first piece of evidence referred to in paragraph 5 of his judgment is that of P.W. 1, the husband, as having seen his wife and Pavadai Chettiar in a compromising situation. The learned Subordinate Judge has rejected this part of the evidence of P.W. 1, the husband on the ground that it is not mentioned in the petition specifically and that it is not spoken to by the Sub-Inspector, P.W. 7 or any other witness for the matter of that. Therefore the mention by P.W. 1 of his having seen the appellant and Pavadai Chettiar in a compromising situation has not been accepted by the-learned Subordinate Judge. I should think he has acted very correctly in having rejected that part of the evidence of P.W. 1.
The next piece of evidence referred to by the learned Subordinate Judge and relied upon by him appears to be the deposition of P. Ws. 2 and 4 to 6 to the effect that the appellant's father and Natesa Padayachi, went and complained to the witnesses that the respondent was missing, that thereafter there was a search party consisting of these witnesses. P. Ws. 2 and 4 to 6 and that they went by train and some by cycles and searched at various places including three cinemas in Mayuram and found after all the girl in company with Pavadai Chettiar on the road in Kornad. Having been found in company with each other, the girl is said to have been sent back with her father and Pavadai Chettiar was also sent away separately. Though the learned Subordinate Judge came to the conclusion that there was no sufficient reason to discredit the evidence of these witnesses which, according to him seems to contain a solid substratum of truth, I do not think that in the nature of things it is safe to rely upon the evidence of these witnesses in order to prove concubinage, which has to be established positively and affirmatively by the person who seeks relief from the Court on that ground for a dissolution of a sacred tie between himself and another woman. I am inclined to agree with the points of attack that the learned counsel for the appellant has made against these witnesses.
P.W. 2 is not a man of much status and means. Nothing is shown as to why the appellant's father should have gone and complained to this particular witness when the appellant was found missing and why this witness should have taken all the trouble to go by train in search of this missing woman is also not explained. P.W. 4 is admittedly a close relation of the petitioner. He stands in the position of a first cousin to the respondent-petitioner and P.W. 5 is also another cousin of. the respondent. It is in evidence that he P.W. 5 was convicted in a prohibition case and sentenced to three months' imprisonment. The remarks made against P.W. 2 would apply equally to P.W. 6. He is not a man of means and why he should have taken so much interest in having gone about in search of a woman who had attained majority and who was said to have eloped with another person is not quite explicable. Even assuming for arguments sake that there is scope for relying upon the evidence of these four witnesses, P. Ws. 2, 4, 5 and 6 still in my opinion, any reliance placed upon the evidence of these witnesses will not carry the case of the respondent any further. It will go only to establish that there has been a stray act of elopement by the appellant with one Pavadal Chettiar and they were found together after such elopement.
The learned counsel for the respondent would however want me to accept his contention that this elopement could not have been an isolated or a single act. According to him, it postulates a prior arrangement or agreement and a continuous understanding that one should be the concubine of the other and the other should be the paramour of the one. He further argues that this elopement ought not to be considered as a mere casual act between two parties whose passion had run up to a certain degree which in turn forced them to elope in order that that passion might be satisfied, and that the natural and proper inference should be that this elopement is the result of a continuous course of conduct of intimacy between the parties. Therefore the learned counsel for the respondent would urge that this should be considered and construed to be nothing short of concubinage of the appellant with the said Pavadai Chettiar.
I must say that it is difficult for me to agree with the contention of the learned counsel for the respondent which lays down a very wide proposition. I think that this mere elopement can never be sufficient to constitute any continuous course of conduct of any criminal intimacy between the appellant and her supposed paramour, so as to constitute a state of concubinage. For constituting concubinage between a Hindu wife and another Hindu gentleman, something more than what has been urged before me by the learned counsel for the respondent would seem to be necessary. The elopement might have been just for satisfying the passion of each other. It might also be the result not of any continuous course of intimacy between the appellant and the so-called paramour but it might have been arranged just with a view to have one single act of adulterous intercourse. Learned counsel for the respondent would urge that we should infer that elopement is always the result of a continuous course of conduct of intimacy between the parties, which amounts to concubinage. If concubinage has already come into existence there will be no need for any elopement.
I do not think that it can be always postulated as a rule or the natural inference that when a couple, who are infatuated with each other resort to elopement, concubinage becomes proved. Granting that it has been proved that the elopement was true, still I do not think that it is possible for me to hold that the respondent in this case has established that his wife has been the concubine of another person by means of any acceptable evidence.
4. The next piece of evidence relied upon by the learned Subordinate Judge for coming to the conclusion that concubinage has been established as required by Section 5(1) (b) of Act VI of 1949 is that P. Ws. 3 and 7, apart from P.W. 1, have spoken to an admission on the part of the appellant herself that she was the concubine of Pavadai Chettiar and that Pavadai Chettiar has been the paramour of this appellant. I have been taken through the entire evidence by the learned counsel for the respondent and also through the relevant portions of the evidence on which the learned counsel for the appellant sought to rely. After a careful consideration of the evidence of these witnesses, P. Ws. 1, 3 and 7, I must confess I am unable to accept the finding of the learned Subordinate Judge that there has been any admission which could be relied upon by the appellant (petitioner?) to prove that she has been the concubine of Pavadai Chettiar.
The evidence of F. W. 1 does not show that either P.W. 3 or P.W. 7 were present when any confession or any admission was made by the said appellant. Apart from this discrepancy between the evidence of P.W. 1 and that of P. Ws. 3 and 7, militate against the view that there has been any confession or admission at all by the appellant to the effect that she has been the concubine of Pavadai Chettiar. All that P.W. 3 has stated in his evidence as having heard from the appellant is that the appellant said she had gone to Kaveri, that Pavadai Chettiar called her and they reclined together in a casurina tope and they went away to Mayuram proposing to go abroad. Then when the Sub-Inspector asked how long they were going on, the appellant said that whenever she came to her father's house, it was convenient for her to carry on with Pavadai Chettiar who ran or worked her father's 'chakki' (oil mill) and that it was going on for one year.
In cross-examination also P.W. 3 states as follows 'To a query by the Section 1, respondent herself admitted they had been carrying on like that for one year.' This evidence of P.W. 3 cannot be said to establish that the appellant had admitted that she was the concubine of Pavadai Chettiar. When we come to the evidence of P.W. 7, the Sub-Inspector who is said to have made enquiries into the case of this elopement, there is no corroboration of the statement made by P.W. 3 with regard to the admission by the appellant. In this connection, it is unintelligible as to what led the Sub-Inspector to make enquiries into a case which was not a cognisable one and about which there was no written complaint made to him. It is also very significant that this Sub-Inspector has such a bright memory that he could speak to things nine months later without reference to any record or any diary kept by him.
However that be, when his evidence is taken into consideration, all that he says is that he sent for the girl and the husband and enquired of them and also of the man who took away the girl by name Pavadai Chettiar. The girl told him that she did not like her husband and did not want to stay with him. That by no stretch of imagination could be considered to be an admission that she had been the concubine of the said Pavadai Chettiar. Learned counsel for the respondent however has invited my attention to the further evidence of this witness P.W. 7 wherein he says that as the girl said she went voluntarily with Pavadai Chettiar, he could not take any action and that she said that she preferred Pavadai Chettiar and went with him voluntarily and that she did not like her husband. It is difficult to agree with the learned counsel for the respondent that this statement made by P.W. 7 would constitute an admission on the part of the appellant that she had been the kept concubine of the said Pavadai Chettiar.
On the other hand, to a question by Court this witness, P.W. 7 has stated that the husband or the village headman did not tell him of any act of misbehaviour of the girl and Pavadai Chettiar at any particular place. Though P.W. 7 has spoken about this so-called admission to some extent, the learned Subordinate Judge has not chosen to place any reliance upon his deposition. Nevertheless the learned Subordinate Judge has upon the evidence of P. Ws. 3 and 7 come to the conclusion that the story of concubinage has been proved. I do not think that there is sufficient warrant for this finding of the learned Subordinate Judge.
In my view the learned Subordinate Judge has been carried away by the so-called adulterous intercourse or act on the part of the appellant to constitute the state of a concubine as contemplated in Sub-clause (b) of Section 5(1). All that this evidence, even if it is to be conceded that there has been any admission on the part of the appellant, would go only to show that she had some intimacy with Pavadai Chettiar. But what the section contemplates for a dissolution of a marriage tie is not any such criminal intimacy or adulterous intercourse on stray occasions hut a status of a concubine of a married woman with another person. Cases of a grant of divorce on proved adultery on the part of one of the spouses seem to have weighed heavily in the mind of the learned Subordinate Judge when he came to the conclusion that the evidence of P. Ws. 3 and 7 proved concubinage. I do not think that this Inference or conclusion is warranted. It is not mere adultery or adulterous Intercourse that should be considered sufficient for a relief under the Bigamy Act of 1949.
5. The learned Subordinate Judge has also placed reliance upon two exhibits, Exs. A 1 and A. 2 in order to support his finding that the claim of the respondent that the appellant was a concubine of Pavadai Chettiar was proved. Exs. A. 1 and A. 2 are letters said to have been written by the appellant to the said Pavadai Chettiar. Even at the outset it must be observed that these letters are not addressed by name of Pavadai Chettiar, The form of address is one to 'mama'. That 'mama' may either be the husband or some other close relation whom she might be addressing as 'mama'. There is no clear connection established between Pavadai Chettiar and the person addressed in the letters as 'mama'. If they were addressed to Pavadai Chettiar, then certainly there would have been some justification for the inference that these letters were part of a course of conduct which continued between the appellant and Pavadai Chettiar, which might give rise further in turn to an inference that the one was the concubine of the other.
But these letters are not even dated apart from their not being addressed by name to Pavadai Chettiar. The learned Subordinate Judge has no doubt laboured hard to find similarity between the signature in Ex. A. 2 with the signatures of the appellant contained in the vakalat in the deposition record, in the written statement and so forth. He has also attempted to get a signature made by the appellant before him in court. He claims to have compared the signatures and has come to the conclusion that the signature in Ex. A. a tallies with the signatures in the vakalat, the written statement and the depositions recorded by him in court, as also the signature which was taken from the appellant on a separate piece of paper. I have also had occasion to examine and compare the signature in Ex; A. 2 with the signatures in the rest of the documents referred to above. I think, a layman's as I am, it is difficult for me to come to the same conclusion as the learned Subordinate Judge has done.
As against the opinion of the learned Subordinate Judge I am inclined to think that there are variations in the disputed signatures and the genuine ones. I do not think that it is safe to rely upon the similarity of the signatures or on a layman's opinion as to whether they are similar or not. But even taking these letters, Exs. A. 1 and A. 2 to have proceeded from the appellant to Pavadai Chettiar, which is not proved, still, to my opinion, these letters do not carry the case of the respondent any further. For these letters would not by themselves, or even taken in con junction with the evidence of P. Ws. 3 and 7, constitute what is required of the respondent to prove, namely, that his wife is the concubine of Pavadai Chettiar. Apart from the suspicion that surrounds these letters, I do not think that it is proper or safe on the part of a court to rely upon these documents, particularly in view of the fact that these exhibits have not come from proper custody. If these letters had been written to Pavadai Chettiar by the appellant, it is difficult to conceive as to how they had come back to the appellant herself, as is said to be the case according to the evidence of P.W. 1.
If these love letters had been written by the appellant, they should have been in the custody of Pavadai Chettiar and in all probability, as is usual with human nature, they would have been preserved by Pavadai Chettiar and he would have clung to them. There is no reason why he should have sent these letters to be mixed up with the clothes or saries of the appellant. Even so the story of recovery of Ex. A. 2 is extremely suspicious and artificial and I do not think that it would be quite safe to act upon the testimony of these witnesses with regard to the production of these two exhibits. Not merely the way these letters came into existence but also the story about the recovery and production of these exhibits make me feel that they should not be attached any weight or importance, much less could any reliance be placed upon them to constitute, as the learned counsel for the respondent would have it, an important ingredient in the proof of concubinage between the appellant and the said Pavadai Chettiar.
6. The learned Subordinate Judge has depended very largely upon the cumulative effect of the evidence of these witnesses and the exhibits and has also relied upon the decision in -- 'Davidson v. Davidson', 62 Ind Cas 782 (A). I do not think that that decision in 62 Ind Cas 782 (A) has any relevancy to a case that has arisen under the special Act 6 of 1949. The requirements contemplated under Section 5 are not the same as those contained in the Indian Divorce Act.
7. I am, therefore, of the opinion that taking into consideration the entire evidence, it must be held that the respondent in this case has failed to establish the ground on which he sought a dissolution of his marriage with the appellant and I do not think that he is in the circumstances entitled to any relief prayed for by him. His petition, therefore, should have been dismissed. In the result this appeal is allowed and the marriage tie between the appellant and the respondent stands as before. I do not think that there is justification for me for awarding costs to the appellant but I do hope that parties interested in the continuance of happy relations between the spouses among whom marriage tie is a sacred one would see to it that the relation between this couple are made cordial and as normal as they could be.