(1) This is an appeal preferred by the wife against the order of the courts below dissolving her marriage with the first respondent-husband, on a petition filed by him under Section 13(1)(i) of the Hindu Marriage Act 1955 for dissolution of the marriage on the ground that the wife has been living in adultery with the second respondent.
(2) The short facts necessary for the disposal of this appeal are these. The first respondent is a man of influence as well as affluence. He is possessed of immovable properties about 50 acres and he gets an annual income of Rs. 50,000. He is a much married man, having three wives at the same time, and the appellant is the third wife. The first respondent married the appellant when she was three years. After attaining puberty, she joined the first respondent. The first wife has two daughters. The second wife died in 1957 leaving behind two sons and a daughter. Manicka Gounder a brother-in-law of the first respondent, was looking after the children left behind by the second wife. When the appellant was pregnant, the first respondent and his brother-in-law conceived the idea of driving away the appellant for his houses. In the month of May 1960, it is alleged by the appellant, her husband, under the protect of providing her some immovable property, took her to the Sub Registrar Office karur, along with Pichaikara Gounder, the second respondent. A document, alleged to be a settlement, providing immovable property was registered there. In fact, it turned out to be a marriage settlement between the appellant and the second respondent. Subsequently she was taken to the house of one advocate, S. Krishnaswami Aiyangar, and she was asked to sign in some papers, which turned out to be notices to her father and her husband informing them of her marriage with the second respondent. When she came to know of the contents of the notice from her father, she apprised the second respondent about that, any they both rushed to the Sub Registrar Office and executed a counter document annulling the said marriage agreement. The appellant also issued notices to the first respondent and started criminal proceedings against her husband. The first respondent opposed that application and contended that his wife was not entitled to any maintenance, because she was carrying on an adulterous life with one Shanmugha Moopan and another farm servant. The Magistrate found that the husband was not able to establish the unchastity of his wife and granted her maintenance. The husband, in turn, started the proceedings out of which this appeal arises for dissolution of the marriage on the ground that she has been living in adultery with the second respondent.
(3) In order to prove his case, the first respondent has adduced evidence about the marriage agreement entered into between the appellant and the second respondent, the alleged notices issued by her to her father and the first respondent and the photograph of the appellant standing by the side of the second respondent. He also led in evidence of an alleged panchayat wherein the appellant returned her tail to her husband.
(4) The courts below have given a concurrent finding that the alleged panchayat convened by the first respondent for the dissolution of the marriage with the appellant on the ground of her misconduct with the two farm servants was not true. But the courts below have found that the appellant was living in adultery with the second respondent and that therefore the husband was entitled to the dissolution of the marriage.
(5) In this appeal, the only question for consideration is whether the first respondent husband is entitled to get a decree for dissolution of his marriage with the appellant, on the ground that the wife has been living in adultery with the second respondent. For this, the courts below have mainly relied on the evidence of P.W. 7 and P.W. 8. These witness speak to an incident which happened in their village. According to them, the second respondent came to the village with the appellant to seek accommodation in house, together for about two weeks. This must be in 1960. The courts below have also relied on the photograph taken in May 1960. Thus there is no specific allegation that the appellant has been living in adultery with the second respondent at the time of the petition. To my mind, the alleged marriage agreement, the alleged notices issued by the appellant to her husband and her father, the subsequent cancellation of the marriage agreement and the alleged photograph taken on the appellant with the second respondent are all suspicious in character. The attending circumstances only go to show that the first respondent has been anxious to get rid of the appellant on some pretext or other. It is inconceivable that the appellant would go to the Sub Registrar office to registrar such a document with the second respondent openly. Even assuming that the marriage settlement came into existence, as alleged by the first respondent, it was immediately cancelled by the parties to the marriage agreement. If the appellant had really registered such an agreement there is no reason for this hurried cancellation of such an agreement. Equally, one would not except an illiterate woman as the appellant to go to an advocate's house soon after the registration of the marriage agreement, and instruct her counsel to cause notices to be issued to her father and her husband, informing them of the life she was going to lead with the second respondent. It is unbelievable that the appellant who is a married woman would go to a photographic studio and pose with the second respondent who is a farmservant of her husband's brother for a photograph. No doubt, the photographer has given evidence that both the appellant and the second respondent came to the studio and had a photo taken, and that the appellant paid the charges of Rs. 5. I fail to understand why the appellant should pay the charges of Rs. 5 and also put her signature in the book, when the second respondent has accompanied her to the studio. All these circumstances throw an air of suspicion that they were all due to the ingenuity displayed by the first respondent to somehow get rid of the appellant.
(6) Now what is the standard of proof necessary in matrimonial causes? These has been a difference of opinion in the courts of British Commonwealth concerning the standard of proof. In Ginesi v. Ginesi, 1948-1 All E. R. 373 the court of appeal decided that the standard of proof of adultery in a matrimonial suit was proof beyond reasonable doubt, because.
'Adultery was regarded by the ecclesiastical court as a quasi-criminal offence, and it must be proved with the same strictness as is required in a criminal case.'
But the High Court of Australia in Briginshaw v. Briginshaw, (1938) 60 C.L.R. 336 took a contrary view. In Merdunt v. Mancreiffe, (1874) L. R. 2 Sc. and Div. 374 the House of Lords decided that divorce suits in which adultery was alleged were civil proceedings. The principle laid down in 1948 1 All E. R. 373 was followed in Davis v. Davis, 1950 1 All E. R. 40. But in Gower v. Gower. 1950 1 All E. R. 804, Lord Denning expressed the opinion that it was open to the court to reconsider 1948 1 All ER 373. In 1950 2 All E. R. 458 Denning L. J. considered that the phrase 'reasonable doubt' did not imply the same strict standard of proof as that which prevails in criminals proceedings. In Levendod v. Levedon, (1810) 2 Hag. Con 1, William Scoot observed that the circumstances must be such as would lead the guarded discretion of a reasonable and just man to the conclusion. In Lyons v. Lyons, 1950 N. I. 181 the Lord Chief Justice of Northern Ireland observed.
'To apply the full criminal standard of proof in all cases of divorce.... would.. in a large measure nullify jurisdiction and amount in many cases to a denial of a justice.. The rights and privileges of civil status, and 'the peculiar duty of protecting the sanctity of marriage', call for a higher standard of proof than is required in ordinary civil proceedings which are determined by the preponderance or weight of evidence and the balance of probabilities.'
(7) In Preston Jones v. Preston Jones, 1951 A. C. 391, the wife had given birth to a child three hundred and sixty days after the husband could have had intercourse with the wife as could have resulted in the conception of a child. The House of Lords decided by a majority of four to one that the husband had established his case beyond reasonable doubt. Finally in Galler v. Galler, 1954 1 All E. R. 536, Hodson L. J., observed that 'the courts of this country... have come down on the side of the view that....in divorce as in crime, the court has to be satisfied beyond reasonable doubt'. Taking a comprehensive view of the case law on the standard of proof, I am of opinion that the circumstances alleged by the first respondent, viz., the marriage agreement between the appellant and second respondent, the alleged notice issued by the appellant to the first respondent, and also her father, the alleged photograph taken by the appellant with the second respondent, the subsequent cancellation of the marriage agreement, would not certainly lead a reasonable man to the conclusion that the appellant had been living in adultery with the second respondent.
(8) Adultery, from its nature, is a secret act. Directed evidence of an act of adultery is extremely difficult. It is very rarely indeed that the parties are surprised in the direct act of adultery. Direct evidence, even when produced, the court will tend to look upon it with disfavour, as it is highly improbable that any person can be a witness to such acts, as such acts are generally performed with utmost secrecy. It is therefore highly improbable that the appellant and the second respondent would have come to a village to seek accommodation to carry on their carrel pleasure. It is too much to believe that the witnesses P.W. 7 and P.W. 8 allowed them to remain in a farm house continuously for two weeks. In such a case they would have certainly informed the first respondent who is a man of influence and affluence. The people in the village will not certainly allow such persons to lead the adulterous life knowing fully well that the appellant is the wife of the first respondent.
(9) I shall now deal with the point whether the appellant has been living in adultery. The words 'is living in adultery' have been considered in Section 488 Cri. P. C. Many high Courts have held them to mean a continuous course of adulterous life as distinguished from one or two lapses from virtue. Living in adultery is wider than mere living as a concubine or as a kept mistress. The word is 'is living' cannot mean 'was living'. It is true that it would not be possible to lay down and hard and fast rule. Each case must be decide upon its own facts. Our courts in Gantapalli Appalamma v. Gantapalli Yellayya, (1897) AIR 20 Mad 470, Patala Atchamma v. P. Mahalakshmi ILR (1907) Mad 332, Kallu v. Kaunsilia, ILR (1904) All 326 and Jatindra v. Gouri Bala : AIR1925Cal794 have held that the words 'living in adultery' imply a course of adulterous conduct more or less continuos. In Rajani v. Prabhakar : AIR1958Bom264 , soon after the marriage, the wife went and lived for about three weeks in the house of a friend of her father where she developed illicit intimacy with his son. Documentary evidence was produced to show that she was living in illicit intimacy with him. This was write some time before the petition for the dissolution of the marriage by the husband. The learned judges held that it would be difficult to hold that the petitioner's wife's conduct would fall within the purview of Clause (I) sub-sec. (1) of S. 13 of the Hindu Marriage Act so as to entitle the husband to a decree for divorce against her. Taking a comprehensive view of the facts of this case, I am of opinion that the story of the husband that his wife was having illicit intimacy with the second respondent, who is already a father of five children, that she was living with him for two weeks in the village, that she and the second respondent executed the marriage agreement, that she sent noticed to her father and her husband and the subsequent cancellation of the agreement, goes to show that the first respondent was anxious to somehow get rid of the appellant. The course adopted by the husband appears clumsy and hasty.
(10) For the aforesaid reasons I allow the appeal. There will be no order as to cost. Leave granted.
(11) Appeal allowed.