1. This appeal is preferred against the decree and judgment of the learned Subordinate Judge Of Pudukottai in O. S. No, 215 of 1949.
2. The plaintiff Deivanai Achi who sues for separate maintenance, past and future, against her husband Kasiviswanathan Chettiar impleaded as the first defendant and his brother Annamalai Chettiar, impleaded as the second defendant in the suit, was married to the first defendant on 8-7-1935; see the marriage invitation Ex. A-16. There is no dispute that this Couple lived in accordance with the Nattukottai Chetty custom in separate quarters in the family house of the defendants between 1935 and 1937. Between 1937 and 1941 when the first defendant was in Arimalam the plaintiff wife does not seem to have lived with her husband. Then in 1941 the first defendant left for Malaya and returned to India in 1946 and the plaintiff lived only in Arimalam.
Then after the first defendant's return from foreign parts in 1946 till the date of the institution of the suit the husband and wife have been living apart. It is the case for the wife that she has been throughout faithful to her husband and was always willing to reside with him but that without justifiable cause her husband failed and neglected to maintain her and in February 1949 he married a second wife and that therefore she has filed this suit for the above reliefs.
3. On the Other hand, the case for the first defendant husband is that even in the first period when the plaintiff was living with him she proved troublesome and a termagant wife, that she left for her parents' house in 1937 and did not return back to him, that she had become immoral and her carryings on constituted an open scandal, that in accordance with the practice in those parts scandalmongers pasted wall-posters proclaiming the conduct of the wife and the shame of the husband, that he left for foreign parts on that ground, that during his absence his wife was leading an immoral life by living in terms of illicit intimacy with D.W. 1 Veerappa Chettiar of Puduvayal Openly, that this brazen illicit intimacy is shown by the letters Exs. B-1 to B-9 and the photo Ex. B-10 and the admissions in plaintiff's cross-examination showing her close movements with D. W. 1 like giving her watch to him for repairs and not getting it back, the commotion created by her sudden unaccompanied visit to Puduvayal, Veerappa Chettiar s place, etc.
Then in regard to what happened after the return of the husband in 1946, we Have the evidence of the first defendant examined as D. W. 2, that she had started intimacy with one Thyagarajan, her family native physician's son, one Chinniah Asari, a goldsmith who keeps his smithy in the shed next to her house with one Balakrishnan Servai of Vennavalkudi and one Appuraman Chettiar between 1946 and 1947. D. W. 2 is corroborated by D. W. 3 who says that ho has seen the plaintiff moving in a manner inconsistent with the decent manners of a wife with Appuraman Chettiar. The learned Subordinate Judge who saw P.W. 1 in the box states:
'I may state that from the manner and method of her answers in the witness box and from her gestures and gesticulations while answering questions she appears to be a person fit for the stage or the screen and not for family life as per the opinion of D. W. 3 which he is stated to have communicated to D. W. 2, also.'
4. On this evidence the learned, Subordinate Judge came to the conclusion that the evidence regarding the immorality of this plaintiff for the first period between 1937 and 1941 is vague, that the evidence for the period between 1941 and 1946 has established beyond reasonable doubt the immorality of the plaintiff with Veerappa Chettiar D. W. 1 and to which D. W. 1, speaks and which is corroborated by other evidence as it should be and that the evidence regarding the third period after 1946 is vague and that in view of his finding that the plaintiff had been leading a life of immorality during the years 1941 to 1946 after her husband left for foreign parts; the plaintiff was not entitled to the reliefs asked for by her. He therefore dismissed the suit with costs. Hence this appeal by the defeated plaintiff.
5. The maintenance of a wife by her husband is of course a matter of personal obligation which attached from the moment of marriage. It is a liability created by the Hindu Law in respect of the jural relationship of husband and wife and is not an obligation arising out of a contract. This obligation to maintain exists independently of the possession of property, ancestral or separate. Jayanti Subbiah v. Alamelu, : AIR1936Bom138 (M). He is bound to maintain her in it while she is willing to reside with him. If she quits him of her own accord either without cause or on account of ordinary quarrels as are incidental to married life in general, she can set up no claim to separate maintenance. Naganna v. Rajya Laksnmi Devi, 55 MLJ 242: AIR 1928 PC 187 (N); Sidlingapa v. Sidava, ILR 2 Bom 634 (O); Surampalli Bangaramma v. Surampalli Brambuze, ILR 31 Mad 338 (P).
But if on account of cruelty or abandonment or where the husband for reasons of his own chooses to put his wife away from him or the wife lives away from her husband for justifiable reasons, she can be awarded separate maintenance. Matangini v. Jagendra, ILR 19 Cal 84 (Q); Babu Ram v. Mt. Kokla, ILR 46 All 210: (AIR 1924 All 391) (R); Sitabai v. Ramachandra, 12 Bom LR 373 (S); Lajwanti v. Batchiram, AIR 1934 Lah 110 (Sic); Manikya Bai v. Venkateswara, AIR 1951 Trav-C. 147 (T); Seethayamma v. Venkataramana : AIR1940Mad906 Subba Rao, 45 MHCR 485 (V); Sajjanbai v. Prabhulal, AIR 1952 Mad 140 (W).
7. In short it may be said that the grounds which would be available to a wife for restitution of onjugal rights would also entitle her to live apart from her husband and claim separate maintenance,
8. Under Section 2 of the Hindu Women's Rights to Separate Residence and Maintenance Act, 1946, which came into operation on 23-4-1946, a Hindu married woman is entitled to separate residence and maintenance from her husband on one or more of the grounds specified therein.
9. Before the said Act the circumstance of a man taking another wife even without any justifying cause did not by itself entitle the wife to leave her husband's home so long as the husband was willing to keep her there. Under this Act the wife has become entitled to separate maintenance if the husband had married again.
10. The law has always been that a wife who leaves her home for the purpose of unchastity and persists in following a vicious course of life cannot claim to be maintained or to be taken back. Savitri v. Narayana, 1 Mad HC 372 (X); Debi Saran v. Daulala Shukhain, ILR 39 All 234: AIR 1917 All 86 (Y); Subhayya v. Bhavani, 24 Ind Cas 390; AIR 1914 Mad 665 (Z); Kandaswamy v. Murugammal, ILR 19 Mad 6 (Z1). A wife who has sued for maintenance on the ground that she was a chaste woman and that she had to leave her husband owing, to his conduct is not entitled when the husband proves her vicious course of life to claim maintenance on the ground that the husband should also prove that she was leading an immoral life when she filed the suit. Jeevammal v. Ranganatha Mudaliar : AIR1939Mad788 Kuppammal v. Thangamuthu : AIR1944Mad426 Manohari v. Ramchandra .
Semble, if she repents, returns to purity and performs explatory rites does she become entitled to all the conjugal and social life unless her adultery is with a man of lower Caste in which case after expiation she can claim no more than bare or starving maintenance and residence. This was the observation of Chandavarkar J., in Parami v. Mahadevi, ILR 34 Bom 278 (Z5), but it does not seem now to be good law, because as pointed out in Gupte's Hindu Law, Second Edition, page 1060:
'It is well established that a wife who has been unchaste (whether she is living with the husband or apart from him) loses her right to maintenance; but it is not yet decided whether where she wholly renounces her immoral conduct she should be allowed starving maintenance.'
(This request to starving maintenance was disallowedby the Bombay High Court in Valu v. Ganga, ILR7 Bom 84 (Z6). See the guarded language of Mulla'sHindu Law 11th Edn. edited by Shri B. K. Mukherjea late Chief Justice, Supreme Court in Section 556 'itwould seem').
In fact our court has gone to the extent that a wife who is unchaste or who leaves her husband's home for improper purposes forfeits her right to maintenance even though it is secured by a decree. ILR 19 Mad 6 (Z1). This is in accordance also with what our ancient writers have held. Manu Ch. IX --80 to 82 says that a wife who is immoral may be superseded or deserted. Yagnayavalkya and Vignaneswara authorise desertion where a wife is guilty of unchastity.
The disqualification of unchastity for maintenance even applies to other categories of women also like concubines (Avarudbas three); Ram Raja Thevar v. Papammal, : AIR1934Bom86 at p. 465) (Z10), only in the case of a mother due to close and tender relations that exist between her and her son is placed on a different footing and unchastity does not deprive her of her right to maintenance. J. Bhattacharya in his Hindu Law deduces the proposition from the texts of Baudhayana, (II-2-3-42) Apastamba (I-X-28-9) and Gautama (XXI-15); ILR 7 Bom 84 (Z6); ILR 39 Mad 658: AIR 1916 Mad 464: 29 MLJ 87 (Z10), where there are observations that the case of a mother is an exception to the general rule that unchastity disqualifies a woman for maintenance.
11. Adultery may be proved in various ways. Direct proof is very rare and even if produced, the Court will look upon it with disfavour, as it is highly improbable that any person could be a witness to such acts, as they are generally performed with the utmost secrecy. In fact direct evidence would normally be required to be corroborated by circumstantial evidence. Adultery is as a general rule, proved by presumptive proof based on; (a) Circumstantial evidence; (b) evidence as to non-access and the birth of children; (c) contracting venereal disease, (d) by evidence of visits to houses of ill-repute, (e) decrees and admissions made in previous proceedings, and (f) confessions and admissions of the parties; see The Law and Practice of Divorce by Manchanda, page 47.
12. Proof of a matrimonial offence is as strict as that required in criminal proceedings. It is not, however, necessary to adduce direct evidence in order to prove adultery. There would be no protection for the wronged spouse if the rule were otherwise, as such evidence rarely exists. The fact that adultery has taken place is inferred in almost every case from all the surrounding circumstances, such as undue familiarities, confessions and admissions, suspicious circumstances, improper behaviour, compromising letters, association coupled with opportunity, inclination and opportunity etc., England v. England, (1952) 2 All ER 784: (1953) P 16 (Z11); Ginesi v. Ginesi, (1948) 1 All ER 373: (1948) P. 179 (Z12); Gower v. Gower, (1950) 1 All ER 804: (1950) WN 156 (Z13).
But the evidence must go beyond establishing suspicion and opportunity to commit adultery and must be such as to satisfy the court that from the nature of things adultery must have been committed; where the evidence is entirely circumstantial the Court will not draw the inference of guilt unless the facts relied on are not reasonably capable of any other explanation. The evidence of an accomplice like D. W. 1 here must be corroborated; Fairman v. Fairman, (1949) 1 All ER 938; (1949) P. 341 (Z14); Galler v. Galler, (1954) 1 All ER 536: (1954) P. 252 (Z15); See Tolstoy's Divorce Law and Practice, Second Edition, page 24; Latey on Divorce 14th Edn. Section 149 page 77; Phillips Divorce Practice, Fourth Edn. P. 16.
13. Rayden on Divorce, Fifth Edition, page 90, note (a) has the following to say:
'(1948) 1 All ER 373, C. A. (Z12), applying dictum of Lord Merriman P., in Churchman v. Churchman, (1945) P. 44 at p. 51,: (1945) 2 All ER 190, at P. 195, C. A. (Z16); 'The same strict proof is required in a case of matrimonial offence as is required in connection with criminal offences properly so called.'
In Ginesi v. Ginesi (Z12) (Supra) Tucker L. J., cited with approval the words of Hodson J., in the Court below Ginesi v. Ginesi, (1947) 2 All ER 438: (1847) WN 248 (Z17), in which he described adultery as a 'quasi-criminal offence'; but note that the dictum of Lord Merriman, P., is not limited, to cases of adultery, although he was in fact dealing with a case of connivance at adultery. See also Blunt v. Park Lane Hotel Ltd., (1942) 2 KB 253: (1942) 2 All ER 187 (Z18). The C.A. in Ginesi v. Ginesi, (supra) expressly limited their decision to cases of adultery, and left for future consideration whether the same standard applies to other matrimonial offences.' (See also Bater v. Bater, (1950) 2 All ER 458: (1951) P. 35 (Z19); Preston Jones v. Preston Jones, (1951) 1 All ER 124: (1951) AC 391 (Z20).
14. The case law in India is also the samenamely that imputation of unchastity to any personbeing a serious charge it must be specifically set upand clearly established, general averments are insufficient and a court should not base its findings onmere suspicious, loose talk tittle-tattle or gossip. Theburden of proving unchastity is on the person settingup. Haji Saboo Siddick v. Ayeshhabai, ILR 27 Bom485' (Z21); Lakhmichand v. Anandi Soundrarajaswami In re. 2 Weir 647 (Z23); Jodhanv. Kulwanti, 49 Cri LJ 323: : AIR1948Pat285 (Z24). The wife must always be given an opportunity of adducing rebutting evidence. Kista v. Amrithammal, 39 Cri. LJ 95,1: AIR 1938 Mad 833 (Z25).See following decisions regarding standard of proofunder Section 10 Indian Divorce Act of 1869; Barker v.Barker, AIR 1955 Mad 103 (Z26); White v.White, AIR 1954 Pat 560 (Z27); Dwarka Bai v.Nainah Mathews : AIR1952Mad0 Ramachandra v. Saraswati Mrs. Thomas v. Mr. Thomas .
15. Bearing these principles in mind if we examine the facts of this case, we find that it has been established beyond reasonable doubt that this plaintiff has left her husbands home for purposes of unchastity and persisted in following a vicious course of life and it is idle on her part to contend that the husband should also prove that she was leading an immoral life when she filed the suit and therefore she cannot claim to be maintained or to be taken back by her husband.
16. The appeal fails and is dismissed with costs.