Panchapakesa Ayyar, J.
1. This is a long-drawn-out petition, having a tangled history which must be set out briefly for the purpose of understanding the facts and issues involved.
2. The petition is by Dr. Dwaraka Bai, M.B.B.S.. an Indian Christian doctor of Guntur, now aged 43, for divorce against her husband Professor Nainan Mathews M.A., B.L., a retired Indian Christian Professor, now aged 60, and till recently 'a regular student of the United Theological College, Bangalore. The petitioner took her M.B.B.S. degree in Madras in 1935 and began practising at Guntur where her father also is a doctor. When she became nearly 36 years old, i.e., in the beginning of 1946, she felt an urgent desire to get married. She, therefore, wanted to find out a suitable man to marry. One Mrs. Joseph, aSyrian Christian doctor of Bapatla, in Guntur district, told her about the respondent, Nainan Mathews, and told her also that he was by age, education, culture, family and character eminently fitted to be her husband. So, a long paper correspondence began between Mrs. Joseph and the respondent and then between the petitioner and the respondent. The petitioner told the respondent in Ex. P. 27 dated 23-2-46 that she had acquired house, lands, and cash worth some Rs. 80,000 and had been an Honorary Magistrate. She finally became violent in her passion for the respondent (see Exs. P. 33, P. 34 etc.) in her letters and was willing to overlook the disparity in age. The respondent was far more cool and calculating. He told her bluntly in his letters that he had undertaken various responsibilities towards his step-brothers which were not legally or morally binding on him but had been taken up by him on Good Samaritan principles. So, he wanted her at first to give him a dowry, (really bride-groom's price) of Rs. 15,000/- and finally demanded an irreducible minimum of Rs. 6000/-. The petitioner who had made good money by her practice and was getting more than a thousand rupees a month by 1946, and had also acquired house and lands and car and had much cash lent out for interest, was quite willing to give a good sum as bride-groom's price. The respondent told her in his letters that both by culture, character and wealth she appeared to him to be a desirable mate but that there was one difficulty he had to overcome, namely, his family which was an ancient Syrian Christian family and claimed to be the descendants of Nambudri Brahmins converted by St. Thomas in the first century A. D. Naturally the family wanted him to marry only a Syrian Christian, and there was also one Syrian Christian Inspectress of Schools in sight besides an M.B.B.S. lady of doubtful character but of undoubted wealth. The respondent, in his letter to the petitioner, said that he did not want to marry the lady of doubtful character and of undoubted wealth. The petitioner wrote to the respondent (see Ex. P. 34) that if he married the Syrian Christian Inspectress lady, the first marriage present he would receive would be her corpse, meaning that she would commit suicide like a Juliet of the 20th Century. The respondent assured her that there was no need to take any such desperate step as he had resolved to marry her and he was not the man to go back on his resolve. (3) Eventually negotiations progressed to the usual climax, and the respondent arrived with his four brothers at Bapatla on 20-4-1946. The petitioner ran up from Guntur to Bapatla in her car in her eagerness to see her would-be husband and pour out her love to him. But, when she met him in the night (the time is given by her as 9.30 p.m. and by the respondent as 12-30 a.m. on the night of the 20th), in her own words, she was shocked to find that he looked much older than the figure in the photo that was sent to her by him. In their anxiety for the marriage, the petitioner and the respondent had sent to each other photos taken several years before. That is perhaps an illustration of the maxim that in love and war truth is the first casualty. Anyway, the petitioner was thoroughly disappointed at the physical appearance of the respondent whom she considered to be an ugly old man, very much dilapidated and not coming up to his own specification. But she had already made 'all preparations for the marriage and had told one and all, and the bride-groom too had arrived and she had to go on with the marriage, as remarked by the learned Judges in O. S. A. No. 73 of 1947. The marriage was celebrated at a cost of Rs. 4000 and with great pomp, at Guntur, on 22-4-1946, advancing it three days earlier than the original date fixed. But, as usually happens, the pomp did not contain the substance. The voice of laughter hid a heart of sadness so far as Dwarakabai was concerned.
4. That night, after she went to the nuptial chamber upstairs, with the respondent, according to her, she could not have sexual Intercourse with the respondent owing to her being in menses. But, she did not admittedly, tell him about the menses till both entered the nuptial chamber at night. According to her, when the respondent wanted to have sexual intercourse with her, she told him that she was in menses and could not have it that day. But he insisted on having intercourse with her, and suddenly removed her clothes and committed sodomy on her. She got upset in body, mind and soul by this unnatural act and could not attend to her work for several days and had to engage a substitute (the substitute was not examined or even named). On subsequent days also she could not have sexual intercourse with the respondent owing to her nervous state. But, some days after the marriage, one night the respondent pretended that he was having a stomachache, at 4 a.m. and, when she was administering to him some medicine to relieve his supposed stomachache, he suddenly began fondling her parts, and she thought that he was wanting to have sexual intercourse and angrily jerked him off. On 7-5-1946, the respondent left her house in a rickshaw intending to go to Chirala with one Verghe.se, a Syrian Christian Professor of the Andhra Christian College, Guntur and his wife Mrs. Verghese. But the petitioner who was already aggrieved at Mrs. Verghese going and taking away her wedding ring on the ground that it was hers, lent to the respondent went and told the Verghese? that they should not take the respondent to Chirala with them, and so, they did not take him; and the respondent remained in the Vergheses' house and sent a registered letter, dated 9th May 1946 with false allegations to her and she denied all those allegations.
5. Thereafter according to the petitioner, all attempts at reconciliation failed, 'and she filed O. M. S. No. 34 of 1946 on the file of this Court for a divorce on the ground of cruelty by sodomy and desertion, sought to be covered up by clever letters inviting her to return to him but with no real intention to take her or live with her. That petition was heard by Clark J. and dismissed on 31-7-1947. Clark J, disbelieved the case of cruelty by sodomy, or even by attempt to commit sodomy, alleged by the petitioner. He relied on the observations of Lord Hanworth M. R. in -- 'Statham v. Statham', (1929) Probate 131 (A), to the following effect:
'It is quite clear from the authorities cited that cogent evidence is required to overcome the presumption of innocence where such a charge is made. As Sir Crosswell said in -- 'N. v. N. (I860) 3 Sw. & Tr. 234 (B)', 'The crime here imputed is so heinous and so contrary to experience, that it would be most unreasonable to find a verdict of guilty where there is simply oath against oath, without any further evidence, direct or circumstantial, to support the charge'. The same principles apply in my judgment in divorce proceedings as in a criminal Court, for it is the very nature of the charge, easy to make and difficult to repel, which demands such proof as is adequate to establish the guilt of the person charged in the minds of reasonable men'.'
6. The petitioner took the matter in appeal. Rajamannar C. J. and Viswanatha Sastry J. heard the appeal O. S. A. No. 73 of 1947 and by their Judgment dated 13-9-1950, dismissed the appeal with costs. They disbelieved the petitioner's story of attempted sodomy and observed further that they were not also impressed with the evidence adduced on her behalf about her mental prostration, nervous breakdown etc. after the wedding night. They went on to observe: 'The impression left on us is that as soon as she saw him she was intensely disappointed, shocked as she says and was practically compelled by circumstances to go through the marriage. She, however, felt afterwards that it was impossible to be the wife of the respondent except in name, and the respondent was obviously insisting on his rights as a husband. There was no other go for the appellant to be free from the shackles of this unfortunate marriage except to file a -petition for divorce. As the law stood, it was necessary to allege one or other of the grounds mentioned in Section 10 of the Divorce Act to obtain a dissolution of the marriage. That was why resort was sought to the story of an attempt on the part of the respondent to commit an unnatural offence. We have no hesitation in holding that the appellant has failed to establish her case even of an attempt at sodomy. She will therefore be entitled to no relief either for divorce or for judicial separation.'
7. The petitioner has filed the present petition thereafter on 15-10-51, changing her case and asking for dissolution of her marriage with the respondent, this time on the ground of his alleged adultery with one Mrs. H. living in No. 72, Wallajah Road, Madras, sexual perversity, cruelty and desertion. The respondent contested the case vigorously and claimed that the petition should be dismissed with compensatory costs under Section 35-A, Civil P. C.
8. The following issues were framed:
1. Has the respondent deserted the petitioner for upwards of two years prior to the date of the petition?
2. Has the respondent been guilty of cruelty to the petitioner?
3. Has the respondent committed adultery as alleged in paragraph 15 of the petition?
4. Is the petition barred by 'res judicata?
5. To what reliefs, if any, are the parties entitled?
9. But, before the trial, the respondent suddenly withdrew his defence unconditionally. His counsel Mr. p. S. Ramachandra Ayyar, however continued to be on record but was merely watching the proceedings on the final day of hearing, 8th April 1952, without the least attempt to contest the case or disprove the facts alleged by the petitioner. The reasons for the sudden 'volte face' by the respondent were not clear to me even that day. I considered that either he was unable to face the allegations in the plaint because, they were true, or had been bought off by the petitioner, or had become -- because of religious preoccupation -- uninterested what happened to this woman and the proceedings Instituted by her. Her counsel, Mr. Ramachandra Iyer, Emphatically assured me that the respondent had not been bought off by the petitioner and that there was no collusion. The petitioner swore to the facts stated In the petition. One Mrs. Pritchard, an Anglo-Indian woman, aged 60, stated that she had hersalf witnessed Mrs. Hill said to be a widow aged 50, with three children, all at school, spend some nights alone with the respondent in her bed-room in her house in 72, Wallajah Road, Madras she. (Mrs. Pritchard) being a tenant downstairs, in a room and having ample opportunities of watching all people going upstairs. As the case was undefended and the evidence of these two as P. Ws. 1 and 2 stood uncontradicted, and as I held that 'res Judicata' would operate only regarding the allegation of sodomy, or attempt at sodomy, and not regarding the subsequent allegation of adultery and cruelty or desertion, I granted a decree 'nisi' to the petitioner on 8-4-1952, but specifically stated, in the course of my order:
'In the circumstances, I have no other option but to grant a decree nisi to the petitioner, on the evidence on record though it is a curious and somewhat suspicious case.'
The petitioner did not want any order for alimony or maintenance or costs. The petition stood posted for further orders on 8-10-1952 for passing a decree absolute in the usual course .
10. The petitioner put in Application No. 4219 of 1952, on 29-9-1952 for recording a compromise she had entered into with the respondent in this matrimonial suit instead of proceeding with the hearing of the petition further for making the decree nisi absolute. I perused all the records and heard Mr. Thyagarajan, for the petitioner and Mr. P. S. Ramachandran Ayyar for the respondent, and on 29-9-1952 passed an order refusing to record the compromise. My order contained the following observations:
'I am of opinion that no Court in the Indian Union, should under the law as it stands, use its discretion in allowing a compromise of this sort which gives the petitioner liberty to rake up the old adultery, 'even after the compromise' and resumption of the status of husband and wife, as the basis of a fresh petition for dissolution of her marriage. The policy of law, is, of course, to see that marriages are, as far as possible, kept intact, and divorces only granted wherever unavoidable. The law of divorce in the Indian Union is not so easy or wide as in some of the States in the United States of America, the Courts in the Indian Union will not contemplate divorces freely, much less frivolously. If there is a bona fide agreement between a husband and a wife, and the wife really condones her husband's past adultery, and wants the marriage to continue that will be a generous and even praiseworthy act which the Courts will be only too ready to appreciate and support. But, when an alleged old adultery is held like a Damocles-sword over the husband for a fresh petition for divorce, as here, no Court will allow a compromise to be recorded and the decree nisi to be set aside 'on that ground' and grant the wife freedom for filing a fresh petition for divorce on the ground of the alleged old adultery and subsequent desertion. Adultery itself is a nauseous thing, and needless to say old adulteries will be even more stinking, and cannot be allowed to be raked up like this off and on as selfish interests dictate. In that view. I am not for granting permission for this compromise under such circumstances.'
11. Mr. Thyagarajan, for the petitioner, and Mr. P.S. Ramachandra Ayyar for the respondent, both prayed that the decree-nisi passed ex parts by me on 8-4-1952 should be set aside and that O. M. S. No. 6 of 1951 Should be restored to file and disposed of afresh after hearing the evidence to be adduced on behalf of the petitioner and the respondent. I agreed to that as In the peculiar circumstances of this case, and in view of the past history, it was desirable to set aside the decree nisi passed by me on 8-4-1952 and hear the evidence adduced on both sides afresh, and give a fresh decision after contest, especially as the respondent had ceased to abscond and had made himself available, as pointed out by his learned counsel and was likely to contest the action and adduce evidence on his behalf- The prayer to record the compromise was accordingly refused, but the prayer to set aside the decree nisi passed by me on 8-4-1952 was granted for the reasons stated above, and O. M. s. No. 6 of 1951 was restored to file and posted on 5-11-1952 for hearing. In the peculiar circumstances, all the parties to this petition were directed to bear their own costs.
12. After O. M. S. No. 6 of 1951 was restored to file thus, the petitioner wanted to raise another ground, namely, that it was repugnant to the Constitution of India, and especially to Articles 13, 14 and 15 thereof, to allow as still valid law Section 10 of the Indian Divorce Act requiring a woman wanting to divorce her husband to prove not merely adultery as the husband wanting to divorce his wife was entitled to do, but also cruelty or desertion in addition to the adultery, as that would amount to an 'illegal discrimination' based only on sex not countenanced by the Constitution of India. The respondent vigorously contested this prayer and said that it was a perfectly just, reasonable and valid classification and not based on discrimination-against women that while the poor husband had only one ground for divorce, namely, adultery of his wife, the wife had seven grounds for divorce, and that it was monstrous to say that there was illegal discrimination against the woman on the ground only of her sex. Anyway, I allowed the point also to be raised in case it became necessary 'after the proof of adultery' which, of course, is the hub of the whole petition, as agreed to by Mr. V. Thyagarajan. If adultery failed, cruelty not amounting to cruelty 'a mensa et toro' would be of no avail as also desertion 'by itself'.
13. When the petition came on finally for hearing, the petitioner examined P. W. 1, an Anglo-Indian woman of 60 called Mrs. pritchard, to prove the adultery between the respondent and one Mrs. Hill, a European or Anglo Indian widow with three children, living in No. 72, Walajah Road on seven or eight occasions. P. W- 2 was one Pachipulusu Subramanyam, a standing client of the petitioner. He spoke to the respondent's agreeing to resign his job in Ceylon and coming to India and living in Guntur with his wife, the petitioner, after the marriage, and went on to say that that was one of the conditions on which the petitioner married the respondent. He also stated that he tried to offer some more money to the respondent to induce him to allow the petitioner's divorce petition to remain unopposed. He probably thought that the respondent who took Rs. 6000/- to marry the woman, would take another Rs. 6000 to release the woman; but he was wrong in his conclusion as the respondent would not agree to take some more money and quit. P. W. 2 was a habitual client of the petitioner, even according to himself, and a person deeply interested in her. P. W. 3 was the petitioner herself. The petitioner marked on her behalf Exs. P. 1 to P. (46) ranging from the marriage certificate and letters intimating her weight, height, and colour and burning love letters, to letters containing sharp rebukes, accusations recriminations and insinuations. The respondent examined his friend Dr. Jacob as D. W. 1, his brother Georee as D. W. 2, and himself as D. W. 3. He filed Exs. D. 1 to D. (26) ranging from his photo to his Imperial Bank accounts and including his demands for bride-groom price and love letters and letters with sharp insinuations.
14. In the course of the final hearing of the ease, on 20-1-1953, the respondent felt that his advocate, Mr. P. S. Ramachandra Ayyar, was not asking the petitioner, P. W. 3 as many clinching questions as he would desire, and so, gave up that advocate, with his entire consent, and requested the Court for permission to conduct the case himself. Permission was granted and thereafter, the respondent most enthusiastically contested his own case. I may remark here that the respondent passed the examinations necessary to practice the law but did not take to the profession both because he had a low opinion of it and because he was diffident of making a success at it, it is needless to add that the petitioner, as P. W. 2 attributed the failure of the marriage to the attempt by the respondent to commit an unnatural offence, on her, though she now, as P. W. 3, watered down the sodomy and the attempt to commit sodomy to emission by the respondent on her buttocks on the wedding night without even an attempt to have intercourse 'per anus'. She alleged that the respondent was vamping on her and had married her more for monetary gain than for anything else, and was vilifying her to all and sundry at Guntur and elsewhere and attributing to her adulterous acts with one Jeeyarathnam a vakil and one Imazuddin, a Muslim doctor, besides attributing licentious and libidinous behaviour with one Vittal Rao, said to be another doctor of the place.
15. According to the respondent, the petitioner just before their entering the nuptial chamber, asked him why he did not marry the Syrian Christian Inspectress of Schools, and he took it as a joke and replied that he could not do so as he had married her (the petitioner). He added that when they entered the nuptial chamber and he invited her to have sexual intercourse with him, she said that she wanted a fat and hefty man for sexual intercourse (the respondent is thin, while she is fat). She also told him that though at Medical College she had kept free from carnal intercourse with boys she had contracted associations with Jeevarathnam and another and asked him whether he would mind them. He being a professor, said that he saw nothing wrong in healthy associations, but that he would certainly object to 'unhealthy associations' and asked her to which category the associations mentioned by her belonged. She said that the associations mentioned by her were 'unhealthy associations' & he then refused to allow them to continxie. According to him, she offered to have sexual intercourse with him, as also with fat young and hefty persons, and he refused this offer also. Further, he says that she offered to give him one or more of her nurses as 'bed-companions' to satisfy his lust and eagerness for Intercourse and he refused this third offer also. According to him, she then insulted him by referring to one of his letters, where he had honed that she would rejuvenate him, giving a loving wife to him, by telling him that what he required was not rejuvenation but castration making him impotent. Naturally, the wedding night was anything but happy. There was admittedly, no sexual intercourse between the husband and wife that night, though the causes given are different.
16. Admittedly there has been no sexual intercourse between this husband and wife at any time thereafter, though the causes given are again different. The respondent would have it that he had a real stomachache one night some days after the marriage and that at about 4 a.m. he went to the petitioner, who was sleeping separately from him downstairs after the wedding night, and told her about the stomachache, and she gave him some medicine and rubbed some ointment on his belly and then asked him angrily 'Do you want me to have sexual intercourse with you now?' and he replied, 'Good Heavens' I am dying. This is not the moment for sexual intercourse'. According to him also, the relations became further embittered by the tales carried by third parties. One Jacob told him even before the marriage, that he could not live with a woman like the petitioner for a week as he knew what Kind, of woman she was. A week after the marriage Verghese also told the respondent that he had heard several rumours about the petitioner. Several others joined in telling stories to the respondent. The respondent says that he firmly desisted from believing any of these stories, but that he could not avoid hearing whatever was related to him. He also added that the petitioner told him bluntly that he was a freak and that any child born to her by him would also be a freak and that she has therefore resolved to have a child only by Advocate Jevarathnam. When the respondent said that he would not allow it she told him in Malayalam 'Then, I shall kill you'. Jeevarathnam has a wife and four children. The respondent says that he saw Jeevarathnam rush into the bed-room when he and the petitioner were alone and pat the petitioner and stroke her hair, in his very presence, and that he also saw the Muslim doctor Imazuddin behave in that very nuptial room, in a compromising manner with the petitioner. He added that he asked Imazuddin to leave the room and house within twenty four hours on pain of fearful consequences, and that the doctor left without more ado.
17. The respondent, admittedly, sent a complaint Ex. p. 43 to the Deputy Superintendent of Police, Guntur stating that Jeevarathnam was trying to wreck his marriage and had interviewed him for more than two hours and told him about his long-standing love for the petitioner, ever since she was eleven years old, and assured him that the marriage of the petitioner with him was only nominal and that he had himself been a party to the marriage which was only to serve as a cloak for his own sexual depredations on her. According to the respondent, the Dy. Supdt. of Police sent for and warned Jeevarathnam, and that man, ever since then, avoided the respondent and even ran away from him when he came in his sight. The respondent was insistent that he never agreed to go and live with the petitioner at Guntur permanently after the marriage as alleged, and that he wanted to enter politics in Ceylon with the prospect of becoming a Minister or some other high dignitary as everybody now-a-days enters politics with some such high object in view. He also stated that he had offered to take the petitioner to Colombo or Panadurai, a suburb of Colombo to live with him there as he was getting a pension amounting to nearly Rs. 240 a month, and would get something extra by tution, and she could make easily Rs. 5000 a month by practising in Ceylon, a place noted for its generous payment to doctors. He offered even now to take the petitioner, directly from Court to live with him, and said that he would forget the entire past as his religious conviction told him that marriages were made in Heaven & should not be broken, and that any fault of a wife or husband should be forgiven on signs of repentence and reform. The petitioner said that she was not willing to go back to the respondent or have sexual intercourse with him and would rather prefer to die.
18. Now I shall give my findings on the issues, on the oral and documentary evidence on record. 'Issue No. 3.' This is the most important issue in this case, as the alleged adultery is the hub of the whole petition, the alleged cruelty and desertion being only- branches. Section 10, Indian Divorce Act, runs as follows:
'Any husband may present a petition to the District Court or to the High Court, praying that his marriage may be dissolved on the ground that his wife has, since the solemnization thereof, been guilty of adultery.
'Any wife may present a petition to the District Court or to 'the High Court, praying that her marriage may be dissolved on the ground that since the solemnisation thereof, her husband has exchanged his profession of Christianity for the profession of some other religion, & gone through a form of marriage with another woman: or has been guilty of incestuous adultery, or of bigamy with adultery, or of marriage with another woman with adultery, or of rape, sodomy or bestiality, or of adultery coupled with such cruelty as without adultery would have entitled her to a divorce 'a mensa et toro', or of adultery coupled with, desertion, without reasonable excuse, for two years or upwards.
Every such petition shall state, as distinctly as the nature of the case permits, the facts on which the claim to have such marriage dissolved is founded.'
This petition was not filed on the ground of incestuous adultery by the respondent, or bigamy combined with adultery, or marriage with another woman with adultery, or rape, sodomy and bestiality, but only on the ground of adultery coupled with some cruelty, as, without adultery, would have entitled her to a divorce 'a mensa et toro' or of adultery coupled with desertion, without reasonable excuse, for two years or upwards. So, adultery is the main thing to be proved. Whether it alone need to be proved will be considered later.
19. The case of the petitioner is that the respondent committed adultery with one Mrs. Hill, a European or Anglo-Indian widow with three children at No. 72, Wallajah Road, Madras, when the three children were away at school. The only witness examined to prove the alleged adultery with Mrs. Hill is P. W. 1. Mrs. Pritchard, an Anglo-Indian woman aged 60 and none too affluent. Reliance is also placed on a chit Ex. P. 45 given by the respondent on 4-4-1930 to a private detective called 'Mahavrat ('Great Penance') who called himself Charles Jones and made friends with the respondent and got the chit from him to Mrs. Hill. Of course there is no direct witness regarding the commission of the adultery by the respondent with Mrs. Hill. As Mr. Thyagarajan rightly urged, it will 'be unreasonable to expect direct evidence regarding such an act like adultery. It will be almost always committed behind closed doors and without witnesses. Except 'Aghorapanthins' in ancient India, who believed in having sexual intercourse in public, on the principle that no man should be ashamed to do in public what he does in secret, no others are found to do the sexual act in public, and so, direct witnesses to the act cannot usually be had. But, on the other hand, insinuations of adultery against women can be lightly made and are lightly made, especially in oriental countries. That is why Mohammed the prophet prescribed punishment for a man who accused a woman of adultery 'unless he produced four direct witnesses to prove it'. So, circumstantial evidence is all that can be normally got regarding adultery. The circumstantial evidence thus produced must be however convincing to the Court, which should be left in no reasonable doubt regarding the fact of adultery. Mr. Thyagarajan relied on the observations of Latey in page 69 of his 'Law and Practice in Divorce and Matrimonial Causes'. These observations are to the following effect:
'It is not necessary to prove adultery by direct evidence, as it is usually secret. Association coupled with opportunity and evidence of illicit affection or familiarities creates an inference upon which the Court can find adultery. If the alleged adulterers occupy the same bed or bed-room the inference of adultery is drawn, except In cases where it is a pretence for the purpose of cloaking the real facts and securing a collusive divorce.
'It is rarely that the petitioner is a witness to adultery, but, if so, the Court though entitled to grant a decree on such evidence usually requires corroboration, where possible either in the shape of suspicious circumstances, such as compromising letters, or the evidence of an independent witness.
'Evidence by paid witnesses, formerly called 'testes lupanres', private detective or inquiry agents, and women of evil repute, is subjected to special scrutiny.
A confession of adultery by a respondent must, if possible be supported by corroborative evidence, but the Court may, in appropriate circumstances, grant a decree on an uncorroborated confession....'
20. I may state here that there was no evidence of illicit familiarities between the respondent and Mrs. Hill in this case or of their occupying the same bed or bed-room. Mrs. Pritchard admitted that she had not gone upstairs or seen the respondent and Mrs. Hill occupying the same bedroom. Mr. Thyagarajan also relied on the observations of Manchanda at page 56 of his book 'The Law and Practice of Divorce' to the following effect:
'Going to a brothel and remaining alone for a considerable tune in a room with a common prostitute is sufficient evidence to infer adultery. If a married man goes to a brothel knowing it to be such, a strong presumption of adultery arises, which needs to be rebutted by the very best evidence....'
In this case, there is no evidence that NO. 72 Wallajah Road, Madras is a brothel, or that Mrs. Hill was running a brothel in her flat upstairs in that house. I am of the opinion that the adultery alleged in this case between the respondent and Mrs. Hill is not proved. My reasons are these: Mrs. Pritchard's evidence, even if believed in full, will not lead to a conclusive inference of such adultery. That woman admittedly did not go upstairs to see what the respondent did to, or with, Mrs. Hill. Mrs. Hill, according to her, occupied the entire upstairs and Mrs. Pritchard had no occasion to go upstairs, and never did so. Mrs. Hill had in the upstairs not only a bed-room but also admittedly a court yard, a bath room and a kitchen. It is one thing to say that a man and a woman of an age fit for sexual intercourse and not within prohibited degrees shut up alone in a single bed-room for the night, may be presumed to be there only for committing sexual intercourse, and it is another thing to say that any man going to a woman's house or flat goes there only to commit adultery with her, even if he visits her at night. Mrs. Pritchard stated that she never found the respondent and Mrs. Hill together in the same bed-room. No doubt she added, that the respondent spent some nights on the seven or eight occasions she noticed him visiting Mrs. Hill's flat upstairs. But she did not say that she kept awake all night and made sure that the respondent spent the night actually in Mrs. Hill's flat. There was no reason for her to do so. What is more, the petitioner, as P. W. 3 said that Mrs. Hill was the first person she interviewed on. receiving the report from her private detective. Mahavrat, about this adultery, that Mrs. Hill told her that she committed several acts of adultery with the respondent in the months of February, March and April 1950 and that if she wanted any witness she could go to Mrs. Pritchard, P. W. 1 whose address she gave, as by that time, that woman had shifted to another lodging place. But P. W. 1, Mrs. Pritchard gave the months of the adultery as March to September 1950, and not February to April 1950 as given by Mrs. Hill, the person who is actually alleged to have committed the act of adultery with the respondent. Mrs. Hill was not examined by the petitioner, though she is alive and available, and though P. W. 3 stated that she was friendly with her and told her freely about her acts of adultery with the respondent. Mahavrat also was not examined to prove his investigations into this adultery, or even the chit Ex. P, 45, given to him by the respondent to Mrs. Hill.
21. What is more, Mrs. Pritchard does not strike me as a very reliable witness. She improved her case from time to time. She swore in this very Court on 8-4-1952 that Mrs. Hill was over 50, but not quite 60 as she herself was. That was when the respondent had given up his defence. But when he renewed his defence and contended that he could not have had intercourse with Mrs. Hill, as she was past the age of intercourse, P. W. 1 swore that Mrs. Hill was only 42. The age of Mrs. Hill was, in my opinion, advanced eighteen years to make the probabilities of adultery greater. Not only that, Mrs. Pritchard had, on 8-4-52 described Mrs. Hill as a European widow with three children and had merely attributed adultery to her. But now, she swears that Mrs. Hill is a prostitute entertaining several lovers and that she can identify 40 or 50 of Mrs. Hill's paramours. It will almost seem as if Mrs. Pritchard spent her whole time counting the paramours of Mrs. Hill. The evidence of a witness like this cannot be safely acted on in a grave charge like this, amounting almost to a criminal offence even though it is set up on a civil matter like this. I may add here that Mrs. Pritchard's evidence cannot be accepted for another reason. She admitted that she cannot give any single date for the visits of the respondent to Mrs. Hill. A criminal charge of adultery will founder at onca without a definite date, or a series of dates covering a period. When Mrs. Pritchard confessed that she could not give any date, & that the visits were casual and far between, it is obvious that the charge of adultery, which is a quasi-criminal charge, must founder for lack of definiteness. Any person accused of adultery is entitled to know with precision the specific date of the alleged adultery, or the period covered by the adultery. The period does not mean vaguely between the years or the months named when the visits are admittedly casual and far between but means a period of continued living between the adulterous pair. Mrs. Pritchard made her evidence somewhat picturesque, though more incredible, by saying that the respondent always went with the tennis racket to meet Mrs. Hill for committing adultery. Why a tennis racket was carried by him when he went for such purposes is not clear. Indeed, she identified the respondent from a photo as the adulterer and as 'the man with a tennis racket' like 'the Woman in White'. It is only in Court that she identified the respondent in person as the 'adulterer'. There were according to P. W. 1 half a dozen more Anglo Indians living in the downstairs of that very house, like her. None of them was examined.
22. The chit Ex. p. 45, does not carry any more conviction on the question of adultery. It runs as follows:
'Dear Mrs. Hill,
I am writing this to introduce my friend Mr. Charles Jones whom you met in the Canteen along with me. I am held up owing to some important Court work and so unable to come. I hope you will extend to him the courtesy of homely treatment.
(Sd) P.N. Mathews,
72 Wallajah Road.'
According to the petitioner, this chit was given by the respondent, the adulterous paramour to Mrs. Hill, a prostitute, introducing Charles Jones, or Mahayrat, to that prostitute for sexual intercourse with her. I cannot agree with Mr. Thyagarajan when he says that an Immoral man will introduce another immoral man to his keep for sexual intercourse as pigs are said to do. Psychologists are agreed that even immoral people want to monopolise their immoral keeps for themselves and do not offer them to all and sundry, as even immorality attracts a man only in the guise of morality. Whatever it be, Mahavrat, the man to whom Ex. P. 45 was given, is the proper person to state that the chit was given to him by the respondent to be handed over to Mrs. Hill as a recommendation, for sexual intercourse. Mahavrat has not been examined. The fact that the respondent recommended 'homely treatment' by Mrs. Hill to Mahavrat, will not mean unambiguously that Mrs. Hill was asked to have sexual intercourse with Mahavrat. It will be a sad day when the beautiful phrase 'homely treatment' in the English language comes to mean 'sexual intercourse for immoral purposes' as Mr. Thyagarajan wants it to be interpreted. Nor is Mrs. Hill proved to be a prostitute. The allegation that she is a prostitute is made for the first time by that unreliable woman Mrs. Pritchard, when examined now. She did not refer to Mrs. Hill's being a prostitute before, nor was any independent witness examined to prove Mrs. Hill was or is a prostitute. While Ex. P. 45 may undoubtedly lead to an inference that the respondent had visited Mrs. Hill at No. 72 Wallajah Road, end not merely seen her dancing away in the Marine Canteen as stated by him, it will not show that he had committed adultery with her, in the absence of proof that Mrs. Hill was a prostitute or was running a brothel in No. 72 Wallajah Road. The varying periods given by Mrs. Hill for the acts of adultery & by Mrs. Pritehard for the very same acts of adultery, will also create doubts regarding the alleged adultery. Mr. Thyagarajan's argument that there was nothing physically preventing the respondent from going to No. 72 Wallajah Road and having sexual intercourse with Mrs. Hill does not appeal to me. Practically no healthy person of the sexual age is physically prevented from having sexual intercourse with any woman of sexual age anywhere in the vicinity. But that win not show that he did actually go and have sexual intercourse with that woman. The burden of proving adultery is under the law, on the person alleging it, and the petitioner has failed to prove adultery. There is also the suspicious fact that the petitioner had filed the former petition for divorce on the ground of sodomy and had watered it down to an attempt to commit sodomy and had failed to prove either sodomy or attempt at sodomy, and had then filed this petition setting up adultery, desertion and cruelty. Whenever a person sets up one thing and fails to prove it, and sets up another thing for getting the same relief, Courts will naturally examine the evidence with a lynx eye and will not be satisfied except with convincing and unimpeachable evidence proving adultery. As I am satisfied that there is no such evidence in this case, I hold on issue 3 that the allegation of adultery against the respondent has not been proved and find it accordingly in the negative.
23. Once it is held that adultery has not been proved, there is perhaps no real need to discuss the allegations of desertion and cruelty, as they cannot, by themselves, admittedly, entitle the petitioner to divorce as fairly conceded by Mr. Thyagarajan. Still, I shall discuss them for the sake of completeness.
24. 'Issue 4'. This petition is barred by res, judicata regarding sodomy and attempt at sodomy, but not regarding the allegation of adultery and cruelty otherwise than by sodomy or desertion. To hold otherwise will be to prevent a person fromr getting a relief for subsequent acts of misconduct) and to encourage the husband, acquitted of sodomy to go on committing adultery only not combined with cruelty and desertion, and snap his fingers at the Law.
25. 'Issue 2'. The cruelty alleged, apart from the sodomy or attempt at sodomy, is attributing to the petitioner statements admitting her passion for intercourse with hefty men for immoral purposes and desire to get children by advocate Jeevarathnam, and her alleged improper behaviour with Dr. Imazuddin. I must say that I am not convinced about the truth of the allegations made by the respondent regarding these matters, though I am not prepared to say that they are entirely imaginary. I only hold that they are as unproved as the adultery alleged against him, though they have some kind of suspicion not amounting to proof, behind them. I cannot agree with Mr. Thyagarajan that making such statements of, Othello-like jealousy against a wife will amount to cruelty under Section 10, Indian Divorce Act, though deliberate attribution of immorality to a wife with named persons will certainly, under many rulings of this Court and other Courts entitle the wife to resist a petition for restitution of conjugal rights filed by the respondent. Cruelty under Section 10, Indian Divorce Act, must be such cruelty as, without adultery would entitle her to a divorce 'a mensa et toro'. Our Divorce Law is based on the English Law, which has always held that mere mental cruelty, without causing bodily injury, is not sufficient though mental cruelty affecting bodily health will be sufficient. Mr. Thyagarajan urged the advance of modern psychology and modern manners and morals. He said that in revolutionary times like ours, a revolutionary view is indicated, and that even though adultery is not proved, and physical harm to the body by means of cruelty is not proved, still divorce should be granted. He stated that the law of maintenance had advanced much in recent times, and that husbands are freely taking a walk on the Marina with their wives which they were not doing in former times, and that I must stretch a point and hold that cruelty which is sufficient to resist a petition for restitution of conjugal rights--would be enough to grant a divorce. He also relied on the dictum of Sir F. Jeune at page 153 of Latey's book, to the following effect:
'It is a terrible thing that people should be going about the world, neither married nor unmarried, possibly liable to contract fresh and illegal matrimony, and certainly exposed to temptation to commit adultery,'
and urged that Dr. Dwaraka Bai should be granted a divorce to save her from such temptation.
26. But he could not show any case where this terrible thing was sought to be cured by a more terrible thing, viz., granting a divorce, where the law would not permit it, by stretching the law. He frankly admitted that that has never been done. So, the pious observation, quoted above, will not help him, and only the legislature must be approached to liberalise the law as desired by Mm. Indeed on mere commonsense and reason, most sane human beings will agree that it is cruel to ask a woman who loathes her husband or a manwho loathes his wife, to remain as husband andwife and have conjugal relations. But the lawin our country, in its anxiety to protect the sacredinstitution of marriage, will not allow mere incompatibility of temperament to be a ground for divorce. Till the law is amended. Courts must enforce the law and cannot make judge-made law bystretching law beyond its legitimate limits. Therespondent assured me that he has not the leastintention of filing a petition for restitution ofconjugal rights, and that he only wants as a goodChristian, that the marriage is not dissolved bydivorce or even judicial separation by Court. Isee no reason to grant a divorce or judicial separation in this case. Nor need I discuss how far thecruelty proved in this case, namely, of attributingimmorality deliberately to the wife, would be acomplete answer to a petition for restitution of conjugal rights, if and when filed. I hold that thecruelty required under Section 10, Indian Divorce Act,has not been proved, and accordingly find issue2 in the negative.
27. 'Issue 1'. I have no doubt, on the evidence on record, that the petitioner has failed to prove that the respondent deserted her for upwards of two years prior to the day of the petition. It was urged by Mr. Thyagarajan that the respondent had agreed to reside with the petitioner at Guntur permanently after the marriage and that when he broke this agreement, and left the house, he would be guilty of desertion, following the ruling in --'King v. King', (1942) Probate 1 (C). I need not discuss the question as to whether there is a breach of public policy in India by making the husband stick to such an undertaking, if made at the marriage on pain of divorce being granted against him on the ground of desertion, because, in this case, the evidence has not proved that there is any such undertaking. Mr. Thyagarajan could not lay his finger on any sentence, in the innumerable letters that have passed between the petitioner and the respondent, where the respondent agreed to any such undertaking. The letters show that the respondent intended to discuss with the petitioner, after the marriage, where they should settle down. The respondent had three alternatives: one, for him to settle down in Guntur with his wife; another for him to settle down at Colombo with his wife and make her practice there, earning the fabulous sum of Rs. 5000 per month and supplement this princely income with his own meagre pension and tuition earnings, the third for him to settle down in Tuticorin or Travancore, or any other suitable place, where there was scope for his ambition and enterprise and where people would want him and her. Nothing was settled before the marriage.
28. Mr. Thyagarajan relied on Exs. P. 5 and P. 25 and the oral evidence. Exs. P. 4 and P. 25 themselves contain these three alternatives which are also found in many other letters. People, when they marry embark on a new life, and think of various plans which settle down only after some time. Time and opportunity govern the final decision. Very few people, in India, at any rate, stipulate regarding the residence of the husband in the bride's house as a condition to the marriage, as in the case relied on. P. W- 3 spoke to such a condition, and P. W. 2 her standing client, interested in her, tried to corroborate her. I am not impressed with their evidence. I do not think that, at the first midnight visit of the petitioner to the respondent on the night of 20-4-1946, she discussed this question and got an undertaking from him, especially when she confessed that the very sight of him gave her a shock, as he was far older and more dilapidated than she had ever imagined. A person in shock does not think out things coolly or take undertakings from another. So, the ruling relied on by Mr. Thyagarajan will, far from helping him, be in favour of the respondent and will disprove desertion. Nor will the alleged fact that the respondent wrote letters asking the petitioner to come to him without any intention to take her in reality and maintain her be enough to prove desertion. The respondent in this case has, no doubt not spent one pie on the petitioner, or on the marriage and has only wanted her to give him Rs. 6000 as dowry, to take him to Bangalore for a honey-moon, and do such other acts out of her own earnings and income. But many a husband in India today vamps on rich wives and their resources, and the very fact of the vamping may not be proof of desertion. I am satisfied that the respondent has not deserted the petitioner and that he was always asking her to join him and that he is still willing to take the petitioner with him, and that it is the petitioner who says that she will rather die than go back to him.
29. Of course, I am satisfied that if the petitioner goes back to the respondent, he will make her life miserable and that this couple can never live again together in peace and amity on earth. But, unfortunately that conclusion will not do for granting a divorce or judicial separation, when the law will not allow it. It will only do to resist a petition for restitution of conjugal rights if and when brought. Mr. Thyagarajan urged that it will be against reason and commonsense to allow this healthy and sturdy woman of 43, the petitioner, to go without a mate and thus frustrate her and that it will be in the interests of society if she is granted a divorce and allowed to marry a man she likes. But a Judge is not the person to decide the interests of society, under our Law. When the law says a thing clearly, it must be carried out. That is why many a Judge, with his own private view against capital punishment, has to inflict it under the law, or resign and preach for a reform of the Penal Code. So. I find this issue also in the negative and hold that desertion is not proved.
30. Lastly, I wish to say a few words about Mr. Thyagarajan's contention that, under Articles 13 to 15 of the Constitution of India. Section 10, Indian Divorce Act, in so far as it requires a woman to prove not only adultery by her husband, but also desertion and cruelty, is null and void, as repugnant to the Law, as it amounts to an illegal discrimination against woman on the ground only of sex, and that I should hold that mere proof of adultery by the husband is enough for a woman to obtain a divorce, just as mere proof of adultery by the wife would be enough for a husband to get divorce from the wife. I cannot agree, though I do not want to give a final decision on the point, as it is unnecessary in this case, where I hold that neither adultery nor desertion nor cruelty has been proved, and that the petition for divorce, as well as judicial separation must be therefore dismissed. I may add, however, that I consider that Section 10 as it stands, is not prima facie repugnant to Articles 13 to 15 of the Indian Constitution. It appears to be based on a sensible classification, and after taking into consideration the abilities of man and woman, and the results of their acts, and not merely based on sex, when alone it will be repugnant to the Constitution. Nothing in Articles 13 to 15 of the Constitution can be urged for proving that women also ought to be conscripted as soldiers along with men, or that girls also ought to be allowed, under the law, to be taken in adoption like boys. It is obvious that, under the second example, the discrimination is against women, because they would lose by not being adopted by persons having vast properties, and yet even Mr. Thyagarajan was not prepared to urge that the Hindu Law of adoption as it stands is invalid, and that girls ought to be allowed to be adopted like boys. I may add also that an adultery by a wife is different from an adultery by a husband. A husband commits an adultery somewhere, but be does not bear a child as a result of such adultery, and make it a legitimate child of his wife's to be maintained by the wife. He cannot bear a child, nor is the wife bound to maintain the child. But if the wife commits adultery, she may bear a child as a result of such adultery, and the husband will have to treat it as his legitimate child and will be liable to maintain that child under Section 488, Criminal P. C., read with Section 112 of the Indian Evidence Act, which has been made applicable to civil, criminal and revenue Courts alike. It is obvious that this very difference in the result of the adultery, may form some ground for requiring a wife, in a petition for divorce not only to prove adultery by the husband but also desertion and cruelty, whereas the husband need prove only adultery by the wife.
31. Anyway, I need not discuss the matter further, as I am not deciding the question finally. I am only indicating a few considerations, in view of Mr. Thyagarajan's argument on the point.
32. In the end, therefore, this petition deserves to be and is hereby dismissed with costs. The respondent will not get compensatory costs, as he prayed for, but only ordinary taxed costs, as his conduct at one stage, in not contesting the petition, and the other facts, do not entitle him to compensatory costs, but only to ordinary taxed costs.