T. Venkatadri, J.
1. This, is an appeal preferred, by the wife against an order of the learned District Judge granting divorce on the ground that she was living in adultery, thereby reversing the order of the learned Subordinate Judge who dismissed the application of the husband under Sections 10(1)(a) and (f) and 13(1)(i) of the Hindu Marriage Act of 1955.
2. The appellant and the respondent were married in the year 1947. The respondent used to go away to Colombo where he was earning his livelihood. He used to visit his wife and children in India occasionally. He has alleged that during his absence in Ceylon his wife fell into immoral Ways. He has alleged that he received a letter from his mother that the appellant was living in adultery with one Ramiah and one Krishnan. When he came to India in 1958, he actually saw the appellant--so he alleges--leaning against Ramiah in the kitchen of his house and that on seeing him Ramiah ran away. The respondent has further alleged that one Sethuramalingam developed illicit intimatcy with the appellant and that they lived as man and wife. Evidence was adduced that the appellant and the said Sethuramalingam lived in the house of P.W. 3 to carry on their carnal pleasures. It is also alleged that on a particular occasion this Sethuramalingam was actually caught in the house of the respondent and produced before P.W. 2, Sundaram Chetti, who was the President of the Panchayat Board. His evidence is supported by P.W. 5, Lakshmanan Chettiar, who deposed that on information given by a watchman he went and saw the appellant and Sethuramalingam in the house of the respondent. P.W. 6, a provision shop-keeper has deposed that he has seen Sethuramalingam visiting the house of the respondent and living with the appellant.
3. It may be stated that before the husband filed the petition for the dissolution of his marriage with the appellant, the appellant herself filed an application under Section 488, Criminal Procedure Code, for maintenance. That application was opposed by the husband on the ground of adultery on the part of his wife. But the learned District Magistrate of Ramanathapuram at Devakottai, after considering the evidence adduced before him, came to the conclusion that it could not be said that the wife was living in adultery. The learned Magistrate granted maintenance to the appellant at the rate of Rs. 30 per mensem. The learned Subordinate Judge has observed in this case that the oral evidence does not conclusively show that the wife is living in adultery and that the stray lapses on her part would not be sufficient for the application of Section 13(1)(i) of the Act.
4. Documentary evidence was also adduced at the trial and much reliance was placed on Exhibit A-3 to A-10. Exhibits A-3 to A-10 are letters alleged to have been written by the appellant to Sethuramalingam. These letters are not signed, and the appellant has denied the contents of these letters. These letters have been produced by the husband himself, with the story that he met Sethuramalingam at the bus stand, that on discreet enquiry he understood that he was having some letters written by his wife, and that on his requesting him to produce the letters, Sethuramalingam went home and got the letters. The whole story seems suspicious. It is strange that a paramour would hand over such letters all on a sudden to the husband of the woman and that in a public place. No doubt Sethuramalingam has given evidence supporting the case of the husband. But the learned Subordinate Judge has rightly observed this incident as unnatural and improbable. Exhibit A-1 is another document relied on by the husband. That letter would only show that the appellant was being treated cruelly by the respondent at the instigation of his mother. In that letter, the wife begs of her husband to take her back into the family and she has assured the husband that she would live with his mother amicably. There is nothing in that letter to indicate that the appellant has been living in adultery. Another important letter is Exhibit A-2 alleged to have been written by the appellant and given to P.W. 2. There is an inter-lineation in Exhibit A-2 referring to the name of Ramiah of Tirupattur. The learned Subordinate Judge has not placed any reliance on this letter, because the evidence of P.W. 2 was not convincing. - If really P.W. 2 wanted to bring about some reconciliation, it would have been in the form of an agreement signed by both the parties. Thus the trial Court rejected, and rightly in my opinion, the documentary evidence also relied on by the respondent to show that the appellant was living in adultery. However, the lower appellate Court has believed the documentary evidence and has found that the appellant was living in adultery.
5. Coming to the case-law on the subject, there has been a difference of opinion in the Courts of British Commonwealth as to the standard of proof necessary in matrimonial causes. In Ginesi v. Ginesi (1948) 1 A.E.R. 373 the Court of Appeal decided that the standard of proof of adultery in a matrimonial suit was proof beyond reasonable doubt. But the High Court of Australia in Bviginshaw v. Briginshayo (1938) 60 C.L.R. 336 took a contrary view. In Lovedon v. Lovedon (1810) 2 Hag, Con. 1 it was observed that the circumstances must be such as would lead the guarded discretion of a reasonable and just man to the conclusion. Denning, L.J., in Better v. Bater (1950) 2 A.E.R. 458 considered that the phrase ' reasonable doubt' did not imply the same strict standard of proof as that which prevails in criminal proceedings. In Lyons v. Lyons 1950 N.I. 181 the Lord Chief Justice of Nothern 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 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.
6. In Preston Jones v. Preston Jones L.R. 1951 A.C. 391 the House of Lords decided that the husband had established his case beyond reasonable doubt. Finally in Gaiter v. Galier (1954) 1 A.E.R. 536 Hodson, L.J., observed:.the Courts of this country...have come down on the side of the view that...an divorce, as in crime, the Court has to be satisfied beyond reasonable doubt.
7. Bearing these principles in mind in this case, I am of the opinion that the respondent has not established beyond doubt that the appellant has been living in adultery.
8. Adultery, from its nature, is a secret act. Direct 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. The Court will tend to look upon direct evidence even if produced with disfavour as it is highly improbable that any person can be a witness to such an act as such an act is generally performed with utmost secrecy. Many High Courts have held the words ' is living in adultery ' to mean a continuous course of adulterous life as distinguished from one or two lapses from virtue.
9. Ramaswami, J., in Mahalinga Pillai v. Amsavalli : (1956)2MLJ289 has considered the case-law on the subject elaborately, and has observed at page 294 thus:
There is a distinction between ' committing adultery 'and' living in adultery'; living in adultery means, following in a course of adulterous conduct more or less continuous; a single act of adultery cannot be considered as living in adultery.
10. 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 quite some time before the petition for the dissolution of the marriage by the husband. The learned Judges held that it would be difficult in the circumstances to hold that the petitioner's wife's conduct would fall within the purview of Clause (i) of Sub-section (1) of Section 13 of the Hindu Marriage Act, so as to entitle the husband to. a decree for divorce against her.
11. Bearing these principles in mind, if we examine the facts of this case, we find that there is no other documentary evidence except Exhibit A-2 which is worth considering. The other letters Exhibits A-3 to A-10 have not been believed by the trial Court. I cannot imagine how P.W. 4 a stranger to the respondent would give him such letters and that at the public place. Exhibit A-2 has an interpolation which refers to Sethuramalingam. I have already stated that it is not worth considering. Taking a comprehensive view of the evidence and the facts of the case, I am of opinion that the story of the husband, that his wife has been living in adultery with Sethuramalingam cannot be believed. It gives me the impression that the husband did not like to take back his wife especially after she obtained a maintenance decree against him.
12. In the circumstances, I allow the appeal. There will be no order as to costs. No Leave.