1. I have perused the judgment of my learned brother; with respect, I entirely agree with his reasonings and conclusions. The only justification for my writing a separate judgment is (as Lord Campbell observed in Piers v. Piers, (1849) 2 HL Cas 331 9 ER 1 118 observed at page 1136), the tremendous responsibility that is cast upon us while rendering this decision which will have grave and serious consequences upon the status of the child. We have bestowed anxious and careful thought over all the aspects of the matter and have reached the clear conclusion that applying all the standards of strict proof beyond all reasonable doubt, as insisted in all matrimonial cases, the appellant had made out a case for judicial separation under Section 10(1)(f) of the Hindu Marriage Act 1955 (referred to herein as the Act) i. e. on the ground that the respondent had had sexual intercourse with some person other than the appellant The prayer for a decree of divorce under Section 13(1)(i) of the Act on the ground that the respondent was living in adultery was not pressed before us.
In a proceeding under Section 13, for a decree of divorce, on the ground of adultery, it is necessary that the course of immoral conduct must be more or less continuous and isolated lapses and acts of immorality would not suffice. On the other hand, for the relief of judicial separation under Section 10(1)(f), the party aggrieved will be entitled to that relief even if he proves one single act of infidelity on the part of the wife, fihe having had sexual intercourse with a stranger.
In the instant case, the attempt of the appellant has been to establish beyond all reasonable doubt that the wife severed her connections and left the appellant once for all on 17-11-1957 after a serious quarrel, that thereafter, there had been no kind of access whatever between the couple and that he had not even looked at the face of the respondent, with the result, that the female child which was born to the respondent on 23-12-1958, 402 days after the final severance of ties and separation, was born only as a result of the respondent's sexual intercourse with somebody other than the petitioner, the appellant herein. In other words, the appellant is not relying upon any evidence either of himself or of other witnesses having actually seen the respondent having sexual intercourse with a third party. He solely relies upon the single fact of the respondent giving birth to a female child after an interval of 402 days of the separation of the severance of ties as husband and wife. The only crucial question that arises is whether the respondent left Madras and the appellant once for all, on 17th November, 1957, and settled down with her parents in her native village near Bellary.
2. As against this (omitting her case about the several episodes in her married life during her stay with the husband) the rival version of the respondent is that she became pregnant through the appellant in Ugadi, middle of March, 1957, that this pregnancy was disclosed to R. Ws. 3, 4 and 5 on 30-6-1958, when they visited the respondent and the appellant at the latter's bungalow in Poonamallee High Road, that R.W. 4 gave her Tirupati Prasadam, that the respondent's brother Thamma Beddi (R.W. 6) and his wife came to Madras in August 1958 along with presents as is customary in the case of first pregnancy, stayed with the respondent for two or three days and took her home to their native place, that the confinement took place in a Nursing Home in Bellary, that during her stay away from Madras, all the relations of the appellant i.e. the father of the appellant, his brothers and their wives, cousin, etc., took active interest as a rejoicing event, visited the respondent and gave her the usual presents and also participated in the Namakaranam ceremony of the child.
To prove, that she was in Madras with her husband in June 1958. (undoubtedly at a time when she had become pregnant) besides her own evidence, the respondent had adduced the evidence of R.Ws. 3. 4 and 5 and her brother Thamma Reddi, R.W. 6. The mental attitude and this conduct of the members of the family of the appellant during the period of pregnancy, at the time of the delivery in the Nursing Home at Bellary and at the time of the Namakaranam ceremony are also relied upon by the respondent as strong background and powerful surrounding circumstances tending to the inference that the pregnancy and the child birth was considered by all of them as an event for rejoicing and great jubilation and that the members of the family would not have assumed this cordial attitude, free from any suspicion or misgivings about the pregnancy and the child birth. It is obvious, that if this case of the respondent is true, the appellant has no case.
3. The married life of the couple has been very unhappy, and too often, the relationship between the couple became embittered and strained on account of the frequent unhappy episodes. It is unnecessary to embark upon an investigation as to who is the more guilty or blameworthy party. But the overall picture which one gets is that the appellant has been a victim, subjected to any amount of harassment and humiliation from his obstinate unyielding wife who wrecked the married life and made life impossible for the appellant. The answers elicited in the course of the cross-examination of the respondent and her witnesses give the picture that she is willing tool in the hands of interested, designing, powerful persons behind the screen who are bent upon ruining the career of the appellant. Surely, this is not a case of the respondent being an ill-treated or discarded wife. Even so, I propose to examine the truth of the rival versions unaffected by and without any reference to the relative blame or guilt of the respondent As my learned brother has elaborately dealt with the facts of the case, there is no need for me to reiterate the same and I shall straightway address myself to the crucial question whether the respondent was in Madras in June 1958.
(After analysing the facts. His Lordship proceeded):--
4. Before I examine the evidence on this aspect, it will be convenient to refer to the law as to the precise limit of jurisdiction of this Court and the scope of an enquiry in an appeal under Clause 15 of the Letters Patent against the judgment of a Single Judge of this Court. The appeal C. M. A. 83 of 1961 against the judgment of the learned City Civil Judge was preferred to this Court under Section 28 of the Act of 1955. The Act does not contain any prohibition or restriction as to a further appeal like Section 39(2) of the Arbitration Act, covered by the decision of the Supreme Court in Union of India v. Mohindra Supply Co., : 3SCR497 with the result, that the appellant has got a further right of appeal to this Court under Clause 15 of the Letters Patent, The question is whether in such a Letters Patent appeal, the Bench is entitled to consider questions and findings of facts and reach its own conclusion, whether affirming or differing from the findings of the learned Single Judge or whether the Bench is bound by the findings of fact reached by the learned Single Judge. Clause 15 of the Letters Patent provides (in so far as it is material):--
'And we do further ordain that an appeal shall lie to the said High Court of Judicature ......... from the judgment (notbeing a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court .........) of one Judge of the saidHigh Court ......... and that notwithstanding anything hereinbefore provided an appeal shall lie to the said High Court from a judgment of one Judge of the said High Court ......... In the exercise ofappellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court, where the Judge who passed the judgment declares that the case is a fit one for appeal; ...............'
Adverting to the unqualified nature of the right of appeal under a similar provision (Clause 10 of the Letters Patent of the Lahore High Court) the Supreme Court in Ladli Prasad v. Karnal Distillery Co. Ltd., : 1SCR270 observed thus-
'Manifestly the clause confers an unqualified right of appeal to the High Court from the judgment of a Single Judge exercising original civil jurisdiction. Similarly, there is a right of appeal from a judgment of a Single Judge hearing a civil appeal where the judgment is not in an appeal from an appellate decree. But again the judgment of a Single Judge exercising powers in an appeal from an appellate decree, an appeal under the Letters Patent only lies if the Judge declared that the case is fit one for appeal and not otherwise. There is no warrant for making a distinction between an appeal filed against the judgment of a Single Judge exercising original jurisdiction and a judgment in exercise of appellate jurisdiction.'
This is a clear pronouncement to the I effect that the jurisdiction of the Bench and the scope of an enquiry in an appeal against the judgment of a learned single Judge rendered in the exercise of his appellate jurisdiction (in a first appeal) will be the same as the jurisdiction of the Bench and the scope of an enquiry in an appeal from the decision of a learned single Judge of this Court disposing of original suits; that is to say, the Bench will have undoubted jurisdiction to examine the facts and the evidence and reach its own findings thereon.
5. This identical aspect has also been considered in the decisions of other High Courts. In Venkataramayya v. Kesavanarayana, : AIR1963AP447 , a Single Judge of the High Court in a first appeal reversed the decision of the trial Judge. In the Letters Patent appeal before the Bench, the objection was raised that the Letters Patent Appeal was virtually in the nature of a second appeal and the Bench was governed by the limitations contained in Section 100, C.P.C. Umamaheswaram, J., delivering the judgment on behalf of the Bench overruled this objection holding that there was no rule of law that a finding of fact arrived at by a Single Judge of the High Court in a first appeal is not open to challenge under Clause 15 of the Letters Patent and that the Letters Patent appeal is in the nature of a rehearing of the appeal. Clause 15 being differently worded from Section 100, C. P. C. The inhibition in Section 100, C. P. C. cannot be imported into an appeal under Clause 15, Letters Patent.
An earlier decision of the Patna High Court in Ramsarup Singh v. Muneshwar Singh, : AIR1964Pat76 took the view that Section 100, C. P. C. would apply to a Bench hearing a Letters Patent Appeal under the corresponding clause, Clause 10 of the Letters Patent Patna. But later decisions have taken a different view on the same lines as the Andhra Pradesh High Court In Jugal Kishore v. Union of India, : AIR1965Pat196 it was pointed out by the Bench that when the very same clause in the Letters Patent provides for an appeal from the decision of a Single Judge exercising original jurisdiction as well as exercising appellate jurisdiction it was impossible to imagine that in one case the Bench will have jurisdiction to interfere on facts, but in the other, the Bench having no jurisdiction to interfere on facts, the sole scope of the hearing in appeal being confined to mere questions of law. It was also observed that it is a well-established principle of law that unless the statute otherwise provides, an appellate Court shall have the same powers and jurisdiction of dealing with all questions either of fact or of law arising in the appeal before it as that of the Court whose judgment is the subject-matter of scrutiny in the appeal. It was further emphasised therein that it is only because of the special provision contained in Section 100, C.P.C. that in second appeals, there are well defined restrictions and prohibitions with regard to the investigation on facts. The observations to the contrary of Mahapatra, J., in the earlier decision of the Patna High Court, in : AIR1964Pat76 , were distinguished as in the nature of obiter dicta.
6. We may also refer to another Bench decision of the Patna High Court in Saligram v. Ayodhya Prasad, : AIR1966Pat61 in which it was held that the Bench in dealing with a Letters Patent appeal has all the powers which could have been exercised by the Single Judge. In view of the plain, unqualified language of Clause 15 and the clear pronouncement of the Supreme Court, it is unnecessary to elaborate the point further.
7. In a Letters Patent Appeal preferred, where leave has been granted by a Single Judge, while disposing of a second appeal, the position will be different, for the obvious reason, that the Bench bearing the appeal will be bound by the same statutory limitations as the Single Judge in a second appeal under Section 100, C.P.C. In a Letters Patent Appeal, the Bench is concerned with the correctness or otherwise, of the conclusion of the learned Single Judge and if the latter was bound by certain limitations, the Bench would be equally bound by the same. For instance, in Subbarama v. Saraswati, : AIR1967Mad85 , when a Single Judge disposing of a second appeal arising under the Hindu Marriage Act of 1955 interfered with questions of fact in violation of Section 100, C.P.C., the Bench reversed that finding. In Jivubai v. Ningappa, AIR 1963 Mys 3 again in a second appeal, arising out of proceedings under the Hindu Marriage Act, it was held that the High Court cannot interfere with questions of fact in view of the provisions of Section 100, C.P.C. These are all cases in which the first proceeding in the High Court itself was governed by Section 100, C.P.C. The appeal before Jagadisan, J., was not under Section 100, C.P.C., but was a first appeal.
8. Though our jurisdiction and powers under Clause 15 are wide and unqualified, the Bench is reluctant and does not lightly interfere with the findings of the learned Single Judge of this Court. It is, for this reason, that, barring appeals from the decisions in the Original suits, other appeals under Clause 15 Letters Patent, like writ appeals or appeals from orders of remand or decisions rendered by a Single Judge in the exercise of his appellate jurisdiction (not being second appellate jurisdiction) are posted for admission for an initial scrutiny by the Bench. The appellant has to make out a clear case for interference under Clause 15. The oft-quoted note of warning that a Judge sitting on appeal not having had the opportunity of seeing and hearing the witnesses and observing their demeanour should think twice and more than twice before reversing the findings of fact arrived at by the trial court which has had that opportunity, does not apply in the instant case as the learned Single Judge was only drawing his inference from the evidence on record and the probabilities of the case. Where important considerations bearing on the question of credibility have not been taken into account or properly weighed either by the trial Judge or by a Judge of this Court on appeal and where the question of the probability of the story given by the witnesses clearly indicates that the view taken by the trial Court and the Appellate Court is wrong, this Court will have no hesitation in reversing the findings on such questions. We are free to reach our own conclusion, where it is a question of inference on facts, based upon probabilities, circumstances of the case and the assessment of the oral evidence, where the trial Judge has not recorded any distinct opinion about his impression based upon his observations of the demeanour of the witnesses and the way in which evidence was given by them.
It may be useful to extract the following observations of the Supreme Court in Radha Prasad v. Gajadhar Singh, : 1SCR663 where the Supreme Court has specifically dealt with the power of the Appellate Court in the matter of appreciation of evidence and interference with the finding of fact:
'This question of the proper approach of the Court of appeal to decisions on questions of fact arrived at by the trial Court was considered by this Court in Sariu Prasad v. Jwaleshwari Pratap Narain Singh, : 1SCR781 . Mukherjee, J., while delivering the judgment of the Court observed:--
'In such cases, the Appellate Court has got to bear in mind that it has not the advantage which the trial Judge had in having the witnesses before him and of observing the manner in which they deposed in Court. This certainly does not mean that when an appeal lies on facts, the appellate Court is not competent to reverse a finding of fact arrived at by the trial Judge. The rule is -- and it is nothing more than a rule of practice--that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of the witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judge's notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lies, the Appellate Court should not interfere with the finding of the trial Judge on a question of fact The position in law, in our opinion, is that when an appeal lies on facts it is the right and the duty of the Appeal Court to consider what its decision on the question of facts should be; but in coming to its own decision it should bear in mind that it is looking at the printed record and has not the opportunity of seeing the witnesses and that it should not lightly reject the trial Judge's conclusion that the evidence of a particular witness should be believed or should not be believed particularly when such conclusion is based on the observation of the demeanour of the witness in Court. But, this does not mean that merely because an appeal Court has not heard or seen the witness it will in no case reverse the findings of a trial Judge even on the question of credibility, if such question depends on a fair consideration of the matters on record. When it appears to the Appeal Court that important considerations bearing on the question of credibility have not been taken into account or properly weighed by the trial Judge and such considerations including the question of probability of the story given by the witnesses clearly indicate that the view taken by the trial Judge is wrong, the Appeal Court should have no hesitation in reversing the findings of the trial Judge on such questions. Where the question is not of credibility based entirely on the demeanour of witnesses observed in Court but a question of inference of one fact from proved primary facts the Court of Appeal is in as good a position as the trial Judge and is free to reverse the findings if it thinks that the inference made by trial Judge is not justified' '.
9. I shall now consider the truth of the episode of 30th June 1958 .................................... (after discussing the facts, his Lordship proceeded):--
10. Learned Counsel for the respondent. Mr. T. K. Rajagopalan, invited our attention to some of the decisions and contended that the party who seeks relief, whether under Section 10 or under Section 13 of the Act must adduce strict, satisfactory proof, that the standard of proof should be as high and vigorous as in a criminal case and that the relief should not be granted on the mere balance of probabilities or on the basis of the benefit of doubt.
As part of this argument, learned Counsel also urged that the fact that the respondent had failed to establish her case as pleaded by her and that the evidence adduced by her oral or documentary, has been found to be false and did not support her, would not in any manner help the appellant in the matter of discharging the heavy burden upon him to establish his case by clear, positive, satisfactory evidence.
While we agree with a major portion of this submission, we are of the view that there is no warrant in law for this extreme contention. It is sufficient to refer to the decision of the Supreme Court in Earnest Joho White v. Kathleen Olive White, : 1SCR1410 as to the perspective of approach while deciding disputes in matrimonial causes. The Supreme Court has observed that Courts in India while deciding matrimonial causes, 'shall act and give relief on principles and rules which in the opinion of the Court are as nearly as may be conformable to the principles and rules on which the Court for Divorce and Matrimonial Causes in England for the time being acts and gives relief. From this decision, it is clear that while awarding relief under Section 23 of the Act, the Court must be satisfied beyond all reasonable doubt and that what is required is that there should be a strict enquiry into the matter. The word 'strict' is sufficiently apt to describe the measure and high standard of proof. While pointing out that the two jurisdictions, matrimonial and criminal, are distinct jurisdictions, the Supreme Court has extracted with approval, the statement of the law by Lord Macdermott in Prestone Jones v. Prestone Jones, 1951 AC 391 , to the effect that the expression 'satisfied' the statute means, 'satisfaction by' proof beyond reasonable doubt' and that the standard of proof drawn from the criminal law is not a safe or proper analogy.
11. As regards the precise import of the standard of proof beyond reasonabledoubt, it may be useful to refer to the following observations of Denning. L.J., in Miller v. Minister oj Pensions, 1947 2 All ER 372-
'It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deffect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence 'of course it is possible, but not in the least probable', the case is proved beyond reasonable doubt, but nothing short of that will suffice'.
This rule has been applied and followed in a recent Bench decision of this Court in : AIR1967Mad85 approving the statement of the law by Venkatadri, J., in Varadarajulu Naidu v. Baby Ammal, : AIR1965Mad29 .
In Bipinchandra Shah v. Prabhavati, : 1SCR838 , the husband sought divorce against the wife on the ground that she had deserted the husband for more than four years prior to the commencement of the proceeding. The question was whether during the entire period of four years, the wife stayed away with the definite continued, unbroken animus of not coming back to the husband or whether she had subsequently changed her mental attitude during that period and was anxious to join the husband. The wife's case that she did not leave or desert her husband voluntarily and of her own free will but the husband actually drove her out of the house was not accepted. Even so, on the facts, the Supreme Court found that after the wife left the husband of her own accord, during the interval of four years, the wife did not stick on to her decision but changed her mind and was prepared to join the husband. The Supreme Court observed at page 188 that
'the fact that the wife pleaded a case of constructive desertion by the husband and failed to establish that case would not necessarily lead to the conclusion that the husband had succeeded in proving his case'.
Learned Counsel for the respondent relied upon those observations. It is needless to say that those observations should be understood in the light of the particular facts of that case. As a general rule, there cannot possibly be any dispute that in matrimonial proceedings the Court is vigilant to see that the burden of proof is satisfactorily and properly discharged by the applicant and that the respondent's putting forward a false defence is not regarded as sufficient by itself to establish the truth of the applicant's case. At thesame time, the putting forward of falsedefence will destroy the respondent's credibility. This does not, however, meanthat in all cases, irrespective of the precise setting and the nature of the rivaltheories, the Court cannot take into account its own findings that the version ofthe other side is totally false. In numerous cases it will have a bearing upon theinference to be drawn upon the probabilities and the surrounding circumstancesof the case and the assessment of thepetitioner's case. :
Again, when there are only two diametrically opposite rival versions and the case does not admit of any other theory the finding of the Court that the case of one of the parties is totally false may have some bearing and relevance on the assessment of the truth of the other version. Indeed in many cases, the case may not admit of a treatment of the two rival versions, in two separate water-tight compartments. For instance, in this case if the case of the respondent that she left only in August, 1958 is found against, there is no other case that she left on some date other than November 1957, i.e., between November 1957 and August 1958. In this connection, it may be relevant to refer to a significant observation in the decision in : 1SCR1410 , already referred to. In that case, the husband asked for the dissolution of his marriage on the ground that the wife had committed adultery by staving for several days in the Central Hotel, Patna, along with one Mr. David. The wife, in contesting the petition, denied the whole episode of her stay in the Central Hotel along with Mr. David. The Supreme Court found that her defence was totally false, but that she stayed in the hotel and in the light thereof, assessed the evidence adduced by the husband and found the wife guilty of adultery. This is what the Supreme Court observed at page 443- 'The wife in the witness box wholly denied the episode of the Central Hotel including her stay there, which has deprived the Courts of her explanation. We are, therefore, unable to get any assistance from her or as a matter of that from respondent 2 as to what happened in the hotel at Patna'.
In the instant case, the wife respondent came forward with a false case about the circumstances under which she left the husband and the other events following thereafter. By this dubious conduct, she had deprived the Courts of her true explanation. Even in criminal cases, it is permissible for the prosecution to rely upon the fact that the explanation given by the accused in his statement under Section 342, Cri.P.C., is patently false and opposed to the established facts and circumstances of the case. I am of the view that for a limited purpose, depending upon the particular facts of each case and also depending upon the nature of the competing rival theories, it will not be improper for the Court to take into consideration, the fact that the case of one party has been proved to be completely false. At the same time, it has to be borne in mind that that by itself would not amount to holding that the appellant has discharged the burden.
There is no need to refer to the other cases relied upon by learned Counsel for the respondent because we are resting our conclusion not upon mere balance of probabilities or on the theory of benefit of doubt or even on the ground that the respondent's defence is false. We are satisfied that taking the evidence adduced on the side of the appellant, along with the probabilities and surrounding circumstances of the case, the appellant has proved beyond all reasonable doubt that the separation of the couple was in November 1957.
11A. It only now remains to consider the two circumstances strongly used against the appellant by Jagadisan, J., as powerful conduct evidence. The first is the failure to send an immediate reply to the telegram Ex. A.1, containing the news of the birth of the child. The learned Judge himself in the later portion has stated that having regard to the circumstances of the case, the prestige of the family, the conduct of the appellant was a fair and reasonable attitude and anybody in his position would have done the same thing. I may, in this connection, refer to the observations of Lord Denning in Joyce v. Joyce, 1966 2 WLR 660, that in matrimonial cases, it is better for the Judge to apply the same standard in all his findings. In that case, the trial Judge used some set of circumstances in two contexts mutually Inconsistent and this is how Lord Denning put the matter:--
'He very rightly acquitted the wife and the party cited, of the charge of adultery, saying that he was 'not sure' that there was adultery between them. But then he seems to have taken the suspicious circumstances into account in considering whether to exercise discretion in her favour. He said: 'I am left with a feeling of grave suspicion as to whether the party cited has committed adultery with the petitioner and she with him. If I had to decide this case on a balance of probabilities, I would make a finding of adultery'.
So his findings depended on the difference in the standard of proof. On the one hand, in considering whether the charge was proved against her, he had to be 'sure', that is, be satisfied beyond a reasonable doubt; and he acquitted her. On the other hand, in considering discretion, he could look at it on a balance of probabilities and in effect find her guilty. It reminds me of Hornal v. Neuberger Products Ltd., 1957 1 QB 247 1956 3 M LE 1034 1956 3 All ER 970 where different findings were made by a Judge according to the standard of proof he applied. I think that such a difference is very undesirable. It is better for the Judge to apply the same standard in all his findings. He should ask himself; am I satisfied that adultery has taken place? If yes, he should find her guilty. If no, acquit her. And having acquitted her, he should not take it against her when exercising discretion'.
12. I am also of the view that the appellant was well advised in keeping quiet at that moment and it is not right nor fair to expect him to send an immediate protest while his wife had not even been discharged from the Nursing Home. It must be borne in mind that the appellant's father and the respondent's mother are very near relatives, brother and sister. Is it right to expect of the appellant to send an immediate reply to Ex. A. 1, even while the respondent was in the Nursing home, charging her with adultery proclaiming the child as a bastard and threatening the wife with Court proceedings? To expect any such conduct on the part of the husband would mean to expect him to behave not like a human being, but a beast devoid of all culture.
For all these reasons I have no hesitation in holding that far from Ext. B.2 lending any support to the case of the respondent, it contains a clear, unambiguous, categorical statement with precision that after November 1957, the couple never met and there was no manner of contact between them.
13. The result is that the judgments of the learned City Civil Judge and Jagadisan, J, are set aside. The question of appropriate relief which would meet the ends of justice on the peculiar facts and circumstances of the case poses a problem. This case is a typical instance of best illustration of the proverbial saying 'Justice delayed is justice denied'. When the appeal came before the First Bench, my Lord, the Chief Justice and Natesan, J., attempted to compose the differences between the parties. But as the compromise proposals did not take any shape, the Bench directed the posting of the appeal before us. Even at the commencement of the hearing. Counsel on both sides stated that there is no question of any settlement. The final rupture and separation between the parties took place more than ten years back and the appellant is made to suffer for the inevitable delay of Court proceedings and this Court taking the final decision in his favour, setting aside the erroneous views held up till now. The maxim actus curiae neminem gravabit 'An act of the Court shall prejudice no man' has been applied in varying context so that no party suffers any prejudice through the instrumentality of the Court and the Court proceedings. Precedents are not wanting in which by the application of this salutary principle of justice underlying this maxim, judgments have been entered retrospectively to meet the justice of the case, the decision taking effect for a period long anterior to the date of the judgment -- Vide Broom's Legal Maxims, 10th Edn. page 73, 1939 Edition. If the award of the relief of judicial separation had not been delayed the appellant would have been entitled to the relief of divorce under Section 13, Sub-section (1-A), Sub-clause (i) read with Section 23, there having been no reunion between the parties for the past over ten years. The question whether in this proceeding itself, there can be a decree for judicial separation dating back to the date of the petition and a decree for divorce under Section 13 Sub-section (1-A) Sub-clause (i) was debated in the course of the hearing and whether in view of the language in Section 13, the Court will have jurisdiction to award the relief of divorce relying upon the fundamental legal maxim referred to above. In view of the fact that our decision may not be the final say in the matter, we took the view that it would only complicate matters if we were to award the relief of divorce under Section 13. It is unfortunate and a matter for regret that besides sufferings of every kind in his married life, the appellant has to wait for another two years before there can be a final legal severance of his marital ties. In this view, we are not expressing any final opinion as to the jurisdiction of the Court to mould the relief in matrimonial causes by the combined operation of Section 10 and Section 13 read with Section 23 of the Act,
14. The appeal is accordingly allowed, I agree with my learned brother about the order as to costs.
Ramaprasada Rao, J.
15. The appellant (husband) is seeking judicial separation from the respondent (wife) who is his father's sister's daughter. The marital life of the spouses was not rosy and was always impregnated with unhealthy and unhappy pin pricks. The appellant married the respondent according to the Hindu rites in 1943 at Maradagiri in former Bellary Dt., in the composite State of Madras. The appellant was a student there. Excepting for one month, July 1948, the respondent is stated to have been residing with her parents till 1948: This was so even when the appellant left for the United Kingdom for higher studies. On his return in 1953, the respondent joined him; but even then her consortium with him was for a short while. She left again for her parents' house and joined him at the intervention of elders after the appellant shifted to No. 439 Poonamallee High Road, a prominent highway in the city.
The appellant's version is that he was bearing with all the idiosyncrasies of his wife with assiduous patience and in fact was anxious to have a child. The respondent was subject to an operation for conception in or about the year 1956. The wife however was not responsive, and, according to the appellant, she was indifferent and was averse to share the common bed, thus making the life of the appellant most unhappy. The respondent, however, denies that she ever kept herself aloof from the consortium of her husband, and, in fact, she could not win over the affections of her husband because she was not good looking and uneducated. Her complaint is that she was being constantly nagged by her husband because of her backward social qualities.
We are not however concerned in this case with facts attendant and relating to physical or mental cruelty. The primordial fact, which is the primary setting on which the bed rock of the petition under the Hindu Marriage Act 1955 filed by the appellant rests, and as is now contended, is that the respondent is guilty of sexual intercourse with a third party, other than himself, within the meaning of Section 10(1)(f) of the Act, and hence the appellant is entitled to judicial separation on that ground. It may be noted that though originally the petition was founded on the ground of adultery and a divorce was sought, the appellant pressed his claim at the appellate stage, though not at the trial stage, for judicial separation. That the petitioner can ask for the lesser relief of judicial separation, though in the first instance divorce was sought, is indisputable, and rightly therefore the learned Counsel for the respondent did not demur to the course adopted by the appellant both before Jagadisan, J., who heard the appeal and before us.
16. The primary facts on which this petition is sought to be sustained, after foundering the charge of adultery, may be noted.
As already stated, the spouses, though under the same roof, were not living happily. Complaints and cross-complaints were the order of their living. According to the appellant, the rendition of conjugal rights by the respondent was an anathema to her, in spite of his honest overtures to consummate the marriage. Such domestic bickerings took an abnormal turn that, according to the appellant she would not talk to him freely, she would cook for herself in the bed room, she would not permit him to sleep with her on some pretext or other, and her hostility and aversion towards him reached the zenith in 1957. The respondent however denies such a state of affairs and would have it that it was the appellant who was avoiding her and was taking a delight in freely mixing up with other ladies of questionable character. On 17-11-1957, the respondent is reported to have left the abode of the appellant after spitting and cursing the appellant. In such a huff she left along with her brother and sister-in-law that she went in a taxi, though her husband was possessed of a car and was quite opulent at that time. The respondent no doubt admits of the parting, but would say that she ceremoniously left him with her brother quick, with child. In August 1958 and every thing was normal till then. It is not in dispute that the respondent gave birth to a child on 23-12-1958. It is also common ground that the appellant had no access to the respondent after she left her husband's abode.
The crucial question is when she left No. 439 Poonamalee High Road, Madras, her husband's residence. If, according to the appellant, she left on 17-11-1957, then the child born on 23-12-1958, cannot be the appellant's and that circumstance by Itself would satisfy the ingredients of Section 10(1)(f) of the Act. If, on the other hand, the respondent left in August 1958, as spoken to by her, the appellant should fail.
17. If the version of the respondent that she left in August 1958, is accepted, then the issue whether the appellant did have access to the respondent during the crucial periods necessarily looms large. As the words 'access' and 'non-access' are words of significance in matrimonial causes we are bound to adopt the timorous course of construing such words of art in its correct and not in some vague and extended meaning. The word 'access' can be explained as an indicia of opportunity for marital intercourse. Like any other physical fact it could be proved by direct or circumstantial evidence. Direct evidence can only be secured through the spouses concerned. There was once a controversy in India -- whether in bastardy proceedings, evidence of either spouse is admissible. In fact, a moot question was raised, whether the rule in Russell v. Russell, 1924 AC 687 precluding such admission of the evidence of the husband is adaptable to Indian conditions. The final authoritative pronouncement is now rendered by the Supreme Court in Venkateswarlu v. Venkatanarayana, : 1SCR424 wherein their Lordships say that there la nothing in the Evidence Act to prevent the spouses giving evidence of non-access.
In this case, the appellant who is a man of status and a well-known doctor, was anxious to have a child. He had an operation done to his wife in 1956. As stated already, the married life was not quite normal. But the appellant's anxiety to have children, after 14 years of marriage, can easily be visualised. The respondent was rigid and inelastic. She grew more turbulent and in 1957 there was a complete breakdown. He would say that after 1956 'the quarrels increased and we lived separately in the same house not having access to each other'. The explosive conduct of the respondent when she left her husband's roof in a taxi after having cursed and spat at the house is a strong circumstance to reflect the mind of the respondent and in what circumstances she left, This incident throws considerable cloud on the propriety of behaviour of the respondent in relation to her matrimonial home. It is no doubt imperative for the Courts to foster and protect the marital tie as it is a matter concerning society at large and is of grave public importance. A fortiori it is so, when a matter arises whether the husband should be deemed to have access to wife at the crucial time such that the resultant child may be legitimised instead of bastardised.
In this case non-access to the wife before she left is spoken to by the husband. Such evidence is admissible, but should be considered with caution, and , as pointed out by Panchapakesa Ayyar, J., in Dr. Dwarka Bai v. Nainan Mathew, : AIR1952Mad0 , with a lynx eye. As corroboration of such evidence is practically impossible and indeed not required, the surrounding circumstances, an overall picture and the conduct of the parties do act as legal accessories to weigh such uncorroborated testimony, Even in cases where adultery or any other matrimonial offence is alleged, the offence complained of should be proved beyond reasonable doubt. Undoubtedly, a matrimonial proceeding is an ordinary civil proceeding. But as it involves the disruption of a marital tie, law imposes a stricter degree of scrutiny of the evidence, if uncorroborated. Such corroboration is demanded as a rule of precaution and prudence so that a well instructed mind may be able, after bringing to bear its own observations and experiences of life, to 1udge from the pros and cons of each particular case, whether the sole ipse dixit renders possible the theory set out. The words of Sinha, J., in : 1SCR838 , may be usefully quoted:
'......... though corroboration is not required as an absolute rule of law the Courts Insist upon corroborative evidence, unless its absence is accounted forto the satisfaction of the Court. in this connection the following observations of Lord Goddard, C. J., in the case of Law son V. Lawson. 1955 1 All ER 341, 343 (A) may be referred to:-- 'These cases are not cases in which corroboration is required as matter of law. It is required as matter of precaution.........' ......... '
In the ultimate analysis, the evidence of the husband and other evidence and circumstances ought to be clinching and cogent to exclude the possibility of innocence of the person against whom the matrimonial offence is alleged.
.... ...... ...... ...... ......
(After discussing the evidence his Lordship proceeded).
18. From the above discussion we are constrained to take the view that even before she left her husband's abode, the appellant did not have 'access' to her or opportunity for sexual intercourse during the year 1957.
19. The next immediate question is when did she leave her husband's roof? is it on 17-11-1957 as stated by the appellant or in August 1958 as stated by the respondent?
We have therefore no hesitation to hold that the respondent left in November 1957 and not in August 1958.
20. We have now to consider whether matrimonial offence within the meaning of Section 10(1)(f) can be said to have been committed by the respondent, beyond reasonable doubt. (His Lordship discussed the evidence and proceeded.)
It is not so much the unchastlty of the wife that is the subject-matter of these proceedings; but it is the factum of the birth of a child beyond the period of twelve months after the cessation of marital consortium between the spouses. As pointed out by a Full Bench of this Court in John Howe V. Charlotte Howe. ILR 38 Mad 466 AIR 1916 Mad 338
'a child born eleven months after the cessation of marital intercourse was illegitimate and that the petitioner was entitled to a divorce'.
We need not go so far, as the overwhelming probabilities in this case assuredly point out that a marital offence within the meaning of Section 10(1)(f) has certainly been committed and it has been brought home to the respondent beyond reasonable doubt. Mere strictures on the appellant for not having expressly mentioned about the curious circumstances of the birth of a child after the respondent left him in November 1957 would tantamount to mincing matters.
It is an accepted canon of law as stated by Bowen, L.J., in Cropper v. Smith, (1884) 26 Ch D 700 'Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy'. Following the salient principle we find that the respondent, after the solemnisation of the marriage, had sexual intercourse with a person other than her spouse. Whilst rendering our finding as such, we have borne in mind that the question of legitimacy is of importance to the State and to the child and that this universal adage has to be applied in a matrimonial action.
21. Learned Counsel for the respondent however relied upon : AIR1967Mad85 . to state that this Court whilst exercising jurisdiction under the Letters Patent ought not to interfere with the findings of fact rendered by the learned appellate Judge. : AIR1967Mad85 was a case in which Venkatadri, J., virtually heard a second appeal in a matrimonial action. In those circumstances Ananta-naravanan. C.J., (as he then was) and Ramakrishnan, J., were of the view that the findings of the lower Court are binding in second appeal and Venkatadri, J., had no jurisdiction to re-assess the evidence and come to any other conclusion even if the learned Judge thinks that the evidence ought to be appreciated differently or that some part of the testimony ought not to be believed. We may however advert to a decision of the Division Bench of this Court in Md. Maraicair v. Veyanna Meeru Thevar, : AIR1954Mad894 and to the dicta of the Supreme Court in Earnist John White V. Kathleen Olive White : 1SCR1410 . Rajamannar. C. J. and Rajagopala Ayyangar, J., in AIR 1854 Mad 894 observed-
'Ordinarily, we are never Inclined to Interfere in cases where one learned Judge has exercised a discretion, but in the circumstances of this case, we are convinced that the learned Judge wrongly refused to exercise the discretion in favour of the appellant, and we are not satisfied that the ground on which the learned Judge refused to exercise this discretion in his favour is well founded.'
More apposite is the following observation of Kapur, J., speaking for the Supreme Court in : 1SCR1410 -
'The Supreme Court will not ordinarily interfere with the findings o fact given by the trial Judge and the appeal Court: but If in giving the findings the Courts ignore certain important pieces of evidence and other pieces of evidence which are equally important are shown to have been misread and misconstrued and if the Supreme Court comes to the conclusion that on the evidence taken as a whole no tribunal could properly as a matter of legitimate inference arrive at the conclusion that it has, interference by the Court will be called for'.
While respectfully adopting the observations of the Supreme Court as above. we may point out that that was a case in which the Supreme Court interfered in a matrimonial case, We have already amply justified our stand in coming to a conclusion different from Jagadisan, J. The learned appellate Judge was not exercising jurisdiction in second appeal either. In certain important particulars, the evidence has been misread and misconstrued. We are therefore of the view that the findings of fact of the lower Appellate Judge in the peculiar circumstances of this case can be re-assessed by us in the manner we did as above.
Having regard to the normal course ofevents and human conduct, we find thatthe appellant has proved his case thatthe respondent is guilty of an offencewithin the meaning of Section 10(1)(f),and whilst therefore allowing the appealgrant the appellant a decree for judicialseparation. This appeal is therefore allowed, but in the peculiar circumstancesof this case, there will be no order as tocosts.