1. This appeal is preferred by one P. S. J. Manickavasagam (hereinafter called the husband) against the decree for judicial separation passed in O. M. S. 3 of 1960 on a petition filed by his wife Chandramathi Dayamani Manickavasagam (hereinafter called the wife) for judicial separation, maintenance and custody of the children. The judgment itself is a common judgment in a series of proceedings, viz., O. M. S. 9 of 1959 filed by the husband for a decree for restitution of conjugal rights against his wife, O. P. 221 of 1959 also filed by the husband under the Guardians and Wards Act VIII of 1890 for declaring him the guardian of his minor children Jayachandran and Premalatha and for the custody of these children and the said O. M. S. 3 of 1960 filed by the wife for judicial separation.
(2) The parties are Indian Christians. They belong to a respectable middle class family. The husband is a professor of mathematics, and is a member of the Madras Educational service. He married the respondent in the year 1948. He and his wife were living together happily till 1958, when due to the intervention of the mother-in-law troubles started. The wife left his home in 1958 for her mother's place at Madurai with her two children and refused to come back with him. Thereupon the spouses exchanged notices before the present proceedings were instituted. The husband came to court in the first instance and filed O. M. S. 9 of 1959 for restitution of conjugal rights. In answer to he suit the wife filed a written statement alleging that her husband has been treating her cruelty by beating her very often and preventing her from having access to her relations in Madras and elsewhere. She also appended to the statement a catalogue of the various acts of cruelty on the part of the husband towards her during their married life. Among those acts of cruelty, the incident which took place on 15-5-1959 assumed great importance during the trial 1959 of the husband's petition for restitution of conjugal rights and in the subsequent proceedings.
To prove the cruelty meted out to her by the husband, the wife adduced oral evidence of her mother, her brother Dr. Sukumar, her uncle A. M. Charles a resident of Madras and Abdul Rasack, a doctor in Madurai. All these witnesses deposed that the incident which happened on 15-5-1959 was the main cause for the wife breaking away from her husband's protection. The doctor was summoned to prove that the examined her on 20-5-1959, five days after the incident, and found old contused wound on the inner aspect of the left foot and other injuries. He was of opinion that the injuries were simple in nature and could have been caused by a stick. After the evidence was closed in the petition filed by the husband for restitution of conjugal rights and after the trial was practically over, the husband apprehending that his petition may not survive, filed an application for withdrawal of his petition (O. M. S. 9 of 1959). But even before the application for withdrawal as put into court, the wife filed another petition O. M. S. 3 of 1960 out of which the present appeal arises for judicial separation on the ground of cruelty of the husband. When the husband requested the court to give him permission to withdraw O. M. S. 9 of 1959, the wife seriously objected to such withdrawal and insisted upon the court either to dismiss it or pass any suitable order. The learned Judge, instead of dismissing the husband's petition, directed the wife to file particulars of the ground upon which judicial separation is sought in support of her petition for judicial separation and directed the office to pose O. M. S. 9 of 1959 and 3 of 1960 and the connected O. P. for custody of children together for disposal.
When these proceedings came up for hearing on 7-7-1960, learned counsel for the husband made a request to the court that four of the witnesses examined in O. M. S. 9 of 1959 on behalf of the wife should be recalled for further cross-examination. Counsel for the wife opposed the request on the ground that the issue already framed in O. M. S. 9 of 1959 covers the acts of cruelty relied upon in the later petition O. M. S. 3 of 1960 and any finding of the court on this issue would be sufficient to grant a decree for judicial separation of the evidence is in favour of the wife. The learned Judge asked the husband to further cross-examine three witnesses, viz., the wife, her brother Dr. Sukumar and her maternal uncle Charles, but disallowed the request for further cross-examination of the Madurai doctor on the ground that it was unreasonable. The trial of O. M. S. 3 of 1950 went on and the three witnesses were cross-examined and a common judgment was delivered in all these proceedings. The learned Judge while dealing with the case of cruelty which was common to both the petitions observed:
'In so far as the final result of the break-down of the marriage is concerned, I am relieved of the duty of examining the various incidents spoken to in the evidence during the years 1949 to 1959 because if the last act of cruelty, namely, the incident of 15-5-1959 is established by unimpeachable evidence, that would be sufficient answer to the claim of husband for restitution of conjugal rights and a sufficient basis for the claim of the wife for judicial separation'. In the end the learned Judge come to the conclusion that the husband is not entitled to a decree for restitution of conjugal rights and that the wife is entitled to a decree for judicial separation because she has tendered satisfactory proof of cruelty on the part of the husband and accordingly granted a decree for judicial separation. He granted a decree for judicial separation. He granted custody of the minor son Theodore Jayachandran to the father and the minor daughter Premalatha to the mother. He also directed the husband to pay the wife maintenance at the rate of Rs.140 per month. This appeal is preferred by the husband only against the decree for judicial separation granted in O. M. S. 3 of 1960.
(3) The learned counsel for the appellant contended before us that the procedure adopted by the learned Judge in disposing of these proceeding has seriously prejudiced his client and has vitiated the trial of O. M. S. 3 of 1960. He represented to us that his request to have the said O. M. S. 3 of 1960 tried separately was not acceded. He also contended that the learned Judge ought not to have allowed the evidence recorded in O. M. S. 9 of 1959 to be read as evidence in O. M. S. 3 of 1960. When these proceedings came up together for hearing, the wife did not examine herself in chief to obtain testimony in support of the version of the facts alleged in her supplemental statement filed in O. M. S. 3 of 1960 and the learned Judge allowed her to go into the box only for the purpose of cross-examination. Equally the husband was not allowed to state in examination-in-chief his case in regard to the cruelty alleged by the wife, but was only directed to go into the witnesses who were recalled for giving evidence were also only further cross-examined in regard to the alleged acts of cruelty and also the allegations made in the petition for judicial separation filed by the wife. Now we have to consider whether the procedure adopted by the learned Judge is quite consistent with procedure to be followed under the Indian Divorce Act, IV of 1869. Section 7 of that Act provides:
'Subject to the provisions contained in this Act, the High Courts and District Courts shall, in all suits and proceedings thereunder, act and give relief on principles and rules which, in the opinion of the said courts, are as nearly as may be comfortable to he principles and rules on which the court for Divorce and Matrimonial Causes in England for the time being acts and gives relief.'
Section 45 says:
'Subject to the provisions herein contained all proceedings under this Act between party and party shall be regulated by the Code of Civil Procedure.'
Section 7 gives the court wide powers to enquire into the practice and principles prevailing in the English Divorce Courts and to use them as a guide in determining similar questions arising in India, subject only to he following reservations mentioned in the Law and Practice of Divorce by S. C. Manchanda, 2nd Edn., at page 35:
'(i) That where there are specific provisions the Act the courts have no authority to enlarge or to cut down their scope by the application of the rules and principles of the English Divorce courts. Therefore the first and foremost duty of the courts is to look at the provisions of the Act itself and to give them their fullest effect. The courts can neither cut down the provisions of the Act nor can they supply any form of relief not provided by the Act.
(ii) Subject to the provisions of the Act the courts may grant relief on principles and rules prevailing in the Divorce Courts in England. The guidance sought must be such as harmonises with the Act and must never be allowed to run counter to it.
(iii) In matters of procedure the Civil procedure Code shall regulate all proceedings subject to he provisions of the Divorce Act itself. But if there is no provision in the Act or in the Code then the rules and the practice prevailing in the English Divorce courts may be followed in regulating the procedure.
(iv) In any case, it is always relevant to enquire how matters stood and stand in England with regard to the particular question arising in India. The decisions given by the courts of Divorce and Matrimonial causes in England should be used as a guide whenever possible except when the facts of any particular case, arising out of the peculiar circumstances of Anglo-Indian life, constitute situation such as the English courts is not likely to have had in view. But no decision of the English courts which runs counter to the provisions of the Divorce Act ought to be allowed to serve as a guide'.
(4) Now what are the principles that have been laid down by the English courts in such a situation, namely, when there is a petition and a counter-petitions? Under this occurs resulting in two separate suits between the two spouses the Registrar will make an order consolidating the two suits so that both the petitions are heard at the same time. Either party can apply for the party by the registry. The Registrar's order consolidating the two suits gives the consolidated suit the title of the leading suit, that is, the suit first filed being placed first and the spouses are called husband and wife instead of petitioner and respondent and all the petitions filed thereafter must bear double title. Such a procedure is not found in the Indian Divorce Act 4 of 1869. When there is no such procedure provided in the Act, it is the duty of the court to follow the procedure provided in the matrimonial rules under the English Act. In the instant case when the wife filed a petition an order for consolidating both the petitions for restitution of conjugal rights and judicial separation and the whole proceeding should have simultaneously. But the procedure adopted for disposal of the two petitions was not in conformity with either the English Rules of practice or the rules framed under the Divorce Act of 1869. In the instant case, after the recording of evidence was completed in the husband's petition (O. M. S. 9 of 1959) and its trial was practically over, the husband finding that this withdrawal of the same and the wife filed a petition (O. M. S. 3 of 1960) for judicial separation. The court directed the two petitions to be posted together and began the trial of O. M. S. 3 of 1960 with the evidence already recorded in O. M. S. 9 of 1959. The Evidence recorded in O. M. S. 9 of 1959 and the further cross-examination of some of the witnesses examined in the petition for restitution of conjugal rights were treated as evidence in both the petitions. The petition of the husband for restitution of conjugal rights and the petition of the wife for judicial separation are two independent proceedings. Each petition must stand by itself and the allegations made in each of them and must be strictly proved. When the issues are common in both the petitions, one of them should be similar situation in Osborne v. Osborne, (1863) 164 ER 1301. In that case, originally the husband filed a petition for dissolution of marriage on 30-5-1862 to which the wife had filed an answer in which the wife had filed separation. She also filed a petition for judicial separation on 28-3-1863. The same issues were raised in both the suits, whether the wife had been guilty of adultery and whether the husband had been guilty of adultery, cruelty and desertion. An application was made on behalf of the wife for issue of two commissions in the husband's suit had been disposed of. The court observed:
'Wherever there are two suits in which the same issues are raised, and I can find a legitimate reason to stay one or the other, I will do so. The order for the commission in the husband's suit may be drawn up in such form as that he evidence may be available in the wife's suit if that comes to a hearing'.
In the instant case, in O. M. S. 9 of 1959 instituted by the husband for restitution of conjugal right evidence had already been recorded and the wife had only to prove that she had a reasonable excuse to withdraw form the society of her husband on the ground of cruelty, whereas in the petition for judicial separation the court should be satisfied beyond reasonable doubt on the evidence that he wife is entitled to separate herself from the husband on the ground of cruelty. Thus the standard of proof required for proving cruelty in the petition for restitution of conjugal rights is different from the required in the petition for judicial separation. In a petition for judicial separation the petitioner must establish her case beyond reasonable doubt. Though the Court of Appeal in Ginesi v. Ginesi, 1948 P 179 decided that the standard of proof of adultery in a matrimonial suit was proof beyond reasonable doubts because adultery was regarded by the ecclesiastical court as quasi-criminal offence, and it must be proved with the same strictness as is required in a criminal case, this principle has been modified in subsequent case in the court of Appeal and House of Lords and the dictum laid down in Preston Jones v. Preston Jones, 1951 AC 391 reads:
'The jurisdiction divorce involves the status of the parties and the public interest requires that the marriage bond shall not be set aside lightly or without strict enquiry. The terms of the statue recognise this plainly, and I think it would be quite out of keeping with the anxious nature of its provisions to hold that the court might be 'satisfied' in respect of a ground for dissolution with something less than proof beyond reasonable doubt. I should perhaps add that I do not base my conclusions as to the appropriate standard of proof on any analogy drawn from the criminal law. I do not think it is possible to say at any rate since the decision of this House in Mordaunt v. Moncriffe, (1874) 2 Sc & Div 374 that the two jurisdictions are other than distinct. The true reason as it seems to me, why both accept the same general standard proof beyond reasonable doubt lies not in any analogy but in the gravity and public importance of the issues with which each is concerned.'
(5) The principle laid down in the above case was approved in Earnest John White v. Kathleen Olive White, : 1SCR1410 . It is established law that in a petition for judicial separation the petitioner should power the allegations made therein in regard to cruelty beyond reasonable doubt. In the circumstances of this case and having regard to the course of the case took, we feel as pointed out by Mc. Cardie J., in Myers v. Myers, Carpendale Radford and Thom, 1918 P 260 :
'.................the wife cannot claim that she alone is to be considered. The husband's interests should be regarded equally with the interests of a wife.......................Full recognition should be given to he husband's position and rights as a petitioner. The court must always weigh the matter with due regard to the interests of all parties'.
(6) The parties to the action for judicial separation should be allowed to present all their evidence. This has not been done in the present case. We have no option but to set aside the decree therein and to direct the trial of the same afresh. There will be an order accordingly. We however wish to make it clear that we are not interfering with the order made by the other proceedings, viz., the petitions filed by the husband for restitution of conjugal rights and for custody of the children (O. M. S. 9 of 1959) and O.P.221 of 1959). Costs will abide the results of the suit.
(7) Order accordingly.