1. Appellant Krishnaveni appeals against tile dissolution of her marriage by the learned Subordinate Judge of Guntur in his order dated 27-2-1951 on a petition filed by her husband on 4-10-1950 when she was only 17 years old. She was born according to her admitted birth register extract Ex. A. 1 on 24-9-1933. The petition was founded on Section 5 (1) (b) and (c) of Madras Act 6 of 1949. It may be here convenient to set out Section 5 (1) (a), (b) and (c).
'Section 5 (1) (a). That the other party, if a husband, has any other woman as a concubine.
(b) that the other party, if a wife, is a concubine of any other man or leads the life of a prostitute or
(c) that the other party has, without just cause deserted the petitioner for a continuous period of not less than three years immediately preceding the presentation of the petition,'
2. The learned Subordinate Judge, though he framed one point for determination as to whether Krishnaveni was a concubine of any other man or was leading the life of a prostitute, round that there was no sufficient material to sustain a finding of unchastity. He however found in the husband's favour that his wife who was a little more than a girl, left her husband more than 3 years prior to this petition, & on this ground, granted the husband his prayer for dissolution.
This appeal raises several interesting and also somewhat difficult points for determination. The facts may be briefly stated. The marriage took place in 1842 when Krishnaveni was only 8 or 9 years old and the husband Brahmareddi was 17. The husband's case is that the marriage was consummated on 14-6-1946, i.e., when Krishnaveni must have been less than 13 years old and that the very next day she left his house on the pretext of indisposition and never returned. There was a serious allegation in the petition further to the effect that she had been leading the life of a prostitute ever, since. Krishnaveni's case on the contrary was that the marriage was consummated only a few months prior to the filing of the petition, that she lived with her husband for four months, and that there were then misunderstandings, which resulted in her being driven out. These are of course, two irreconcilable cases each of which had nonetheless support in evidence.
3. The husband examined himself, his father's sister's son Gopireddi (P. W. 2) and one Sriramareddi (P. W. 3), who all swore that after the consummation of the marriage about four years prior to their giving evidence in 1951, the wife went to her parents' house and never returned. P. W. 3 gave general evidence that Krishnaveni has been leading the life of a prostitute ever since. It is common ground that subsequent to the filing of the petition, Krishnaveni's hair was cut off. Her husband Brahmareddi asserted in his evidence that this was done by one Thirupathireddi, a suggested paramour of hers because she was promiscuous with other men. Krishnaveni herself in the witness-box as R.W. 1, on the contrary swore that it was her husband who, when she was in her father's house, came behind her and cut off her hair. She expressed her willingness to go back to her husband.
Mr. Rangachari for the husband has laid great stress on the omission of Krishnaveni to file any criminal complaint against her husband if he did indeed disfigure her by cutting off her hair. The resourceful explanation given by Mr. Chinnappa Reddi is that no criminal comolaint was flled in view of the wife's desire to go back to her husband, and not to close the avenue of reconciliation by a criminal complaint which would exacerbate relations. The wife's case that the marriage was only consummated a few months before the petition was filed is borne out by two witnesses, R. Ws. 2 and 3 and her father Raghavareddi (R. W. 4). In her counter to the petition dated 1-12-1950 she pleaded that she was 'pregnant about 3 or 4 months' on account of marital intercourse between her and the petitioner. Rather curiously, nothing was elicited in the evidence about this. The learned advocate states that no child was born in consequence of an abortion.
A rather extraordinary commentary on the apparently irreconcilable evidence is the evidence in chief 'of one Adireddi, whom the husband examined as P. W. 4. It is so remarkable that it may be reproduced here in extenso:
'Examination: My house is near Brahmareddi's. He was married to respondent about tour years ago. The marriage was consummated about one year back. She left immediately and never came back to her husband's house. Respondent is living the life of a prostitute.
Cross-examination: Respondent left petitioner's house one day after the consummation. Respondent refused to go back to her husband's house.'
Unless there has been a mistake in recording, this witness has rather hopelessly mixed up truth anddeliberate falsehood -- easily explicable if a person sets himself out to depose to a completely false story with knowledge of the true facts. The learned Subordinate Judge seemed oblivious to the strong support given by what P. W. 4 blurted out in the witness box to the wife's case.
4. It is most regrettable that in a case of this kind extreme and irreconcilable positions should be taken in elaboration of cases put forward in court calculated to conceal the truth in an obvious matter, which must have been generally known in the small village of Nadurupadu said to be about 10 miles from Guntur itself where both parties and their parents resided. Whether the wife left the husband a few months before this petition or nearly four years before it and never returned to him must have been common knowledge in the locality. Nonetheless we have in the elaboration of evidence given in court miles away these extreme positions taken. One side or other is deposing to utterly false facts which, had this enquiry been held in the village itself before a village panchayat, would never have been put forward. As I informed both learned advocates in court, I regretted not having power to direct them to go into the village, hold a joint enquiry and on their return to me to agree on the truth in this case on which after earful consideration I would be most reluctant to express any positive finding. This being the case and there being a burden on the petitioner to prove by satisfactory evidence that his Wife deserted him without just cause for a continuous period of not less than three years before the presentation of the petition, this appeal must succeed and the petition dismissed.
5. An interesting point this case raises is whether this minor girl, who was less than 17 at the time this petition was filed, could be found guilty of deserting her husband without just excuse for a period of three years prior to that. Mr. Chinnappa Reddi has ably argued that under Section 5 (1) either party to a marriage, who has completed 13 years of age, may present a divorce petition and that by application of the test of mutuality, no person under the age of 18 can be divorced. He has argued that three years desertion contemplated by Section 5 (1) (c) can only commence after the wife attains the age of 18. It is not possible to accept this rather extreme contention. Though 18 years is fixed as the attainment of majority under the Indian Majority Act. 1875, Section 2 specifically lays down that nothing in it shall affect the capacity of any person to act in matters of marriage, dower, divorce and adoption. The marriage therefore of a Hindu girl below the age of 18 would be perfectly legal. The point which arises is from what age she could be deemed to be capable in law of exercising a discretion in the matter of not joining or rejoining her husband.
6. The age of discretion in the case of a Hindu boy in a matter of adoption was discussed in -- 'Aravamudha Iyenvar v. Ramaswami Bhattar' : AIR1952Mad245 , by Satayanarayana Rao and Rajagopalan JJ., in which after research into ancient Hindu texts, the decision was reached that minority under Hindu law comes to an end on the completion of the 16th year, although there was no text in Hindu law, which specifically dealt with the act of adoption and laid down any limit for the age of majority. In that case, a Hindu boy below the age of 14 executed what purported to be a will but what was in fact an authority to adopt in favour of his widow, who some years later, on the strength of this authority adopted a son. It was held that the authority given by this boy, who was below the age of 14, was invalid. I understand from Mr. Ranga-chari that an appeal against that decision is pending in the Supreme Court.
I may with some diffidence, express the view that as regards the age of discretion so far as it relates to acts by minor girls in the domain of marriage, adoption and so on that what is laid down in ancient texts has undergone considerable modification by recent progressive legislation. The age of consent for marriage under the Child Marriage Restraint Act is 15 and this Act punishes anybody, who performs the marriage of a girl under 15 though the marriage itself is not rendered invalid by this legislation. Under the Indian Penal Code, the age of consent in cases of kidnapping has been raised by Act 42 of 1949 from 16 to 18 in the case of girls and 14 to 16 in the case of boys. The age of consent in regard to the offence of rape has also been raised from 14 to 16 under Act 42 of 1949. The view to which I am inclined is that in the domain of consent or volition as regards any act in relation to marriage, the age or discretion for a Hindu girl cannot possibly be brought below the age of 16. Until advanced social legislation specifically raises the age of consent or the age of discretion in matters relating to marriage from the age of 16, I have no hesitation in adopting for purposes of this case the fixation of the completion of the 16th year in AIR 1952 Mad 245 (A) as the age of discretion. Taking this view, there was quite clearly no desertion for 3 years without just cause in any event by Krishnaveni of her husband between the completion of her 16th year and the filing of the petition.
7. Another interesting point arising for consideration on this petition consequent on the extreme allegation made in the petition, sought to be supported by general evidence of reputation is whether this girl led the life of a prostitute. Section 5(1) (a) and (b) which mutually permit a husband or a wife to sue for dissolution both bring in the word 'concubine'. The husband has to have another woman as a concubine to give the wife a right of dissolution or the wife has to be the concubine of another man in order to give the husband a right of dissolution. Under the Indian Divorce Act, the commission of adultery is sufficient though to obtain a divorce a wife must prove adultery coupled with cruelty or desertion. There can be no doubt that it was not the intention of Act 6 of 1949 to make a single or sporadic lapses from virtue either by the husband or the wife a ground for divorce. On looking into the objects and reasons we find this stated:
'Nothing is more miserable and depressing to a woman than the existence of a co-wife. She is also utterly helpless if her husband keeps a concubine, deserts her or subjects her to cruel treatment.'
Nowhere in the statement is the word adultery used. In 'Bai Nagubai v. Bai Monghibai', AIR 1926 PC 73 (B), their Lordships of the Privy Council considered the meaning of the word concubine, which long had a definite meaning generally expressed in the language of India or of Europe. Lord Darling made the following observation :
'Almost a wife, according to ancient authorities, the distinction of the concubine from harlots was due to a modified chastity, in that she was affected to one man only although in an irregular union merely -- Harlots solicited to immorality; concubines were reserved by one man.'
There is reference in this judgment to relevant passages from the Mitakshara and the Mayuka.The word 'concubine' undoubtedly has in Europe, America and India come to have a meaning of its own which differentiates a concubine from, a harlot or a promiscuous woman who dispenses her favours to several men. It is defined in the Universal Dictionary of the English language as a woman who goes with a man outside lawful wedlock. I am unable to accept the strenuous contention of Mr. Rangachari that a single act of adultery committed by a wife would make her the concubine of another man and entitle her husband to obtain dissolution of his marriage under this Act. The unfortunate result is that as a party seeking dissolution of the marriage bond on the ground of infidelity or unchastity cannot succeed until a state of concubinage or prostitution is established either in the wife or in a woman with whom the husband is associated, sweeping and general allegations are 'made that a wife is leading the life of a prostitute supported by evidence which can only be characterised as wholly inadequate to prove what the law requires.
I have no hesitation in this case in allowing this appeal and dismissing the husband's petition with costs throughout. I do not think that he has proved any of the gross allegations made against his child wife in this petition. This is a most unfortunate case in which the husband and his wife were both-married when they were really children wholly unable to appreciate the consequences of what they were doing. This however does not justify this diametrical divergence of fact with legal ingenuity straining after compliance with law on what can be only described as a miserable paucity of evidence.
8. Advocate's fee in this appeal fixed at Rs. 100.