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A.J. Tulloch Vs. M.P. Tulloch and anr. - Court Judgment

LegalCrystal Citation
CourtKolkata High Court
Decided On
Case NumberMatrimonial Suit No. 7 of 1973
Reported inAIR1975Cal243,79CWN157
ActsDivorce Act, 1869 - Sections 3, 10 and 14; ;Evidence Act, 1872 - Section 101
AppellantA.J. Tulloch
RespondentM.P. Tulloch and anr.
DispositionSuit dismissed
Cases Referred(See Sachindra v. Nilima
- sudhamay basu, j. 1. the petitioner has come up before this court for a decree dissolving his marriage with the respondent, maxine patrica tulloch. the petitioner's case is that the petitioner was married with the respondent on the 2nd of july, 1970, according to the roman catholic rites. a certificate extract from the register of marriages is annexed to the petition. it is alleged further that the petitioner and tho respondent last resided together at 83, park street, calcutta at the home of the petitioner's sister between 1st of february and the 8th of february, 1971. the petitioner acknowledges the paternity of a child born to tha respondent on the 7th of june, 1972. it is stated that in a previous suit filed by the petitioner in this court adecree was passed ex parte on 21st of april,.....

Sudhamay Basu, J.

1. The petitioner has come up before this Court for a decree dissolving his marriage with the respondent, Maxine Patrica Tulloch. The petitioner's case is that the petitioner was married with the respondent on the 2nd of July, 1970, according to the Roman Catholic rites. A certificate extract from the register of marriages is annexed to the petition. It is alleged further that the petitioner and tho respondent last resided together at 83, Park Street, Calcutta at the home of the petitioner's sister between 1st of February and the 8th of February, 1971. The petitioner acknowledges the paternity of a child born to tha respondent on the 7th of June, 1972. It is stated that in a previous suit filed by the petitioner in this Court adecree was passed ex parte on 21st of April, 1971 but the same was later on set aside. It transpires that an appeal from the same has since been disposed of against the petitioner. The petitioners case is that the respondent was living in adultery with the co-respondent at Santragachi. The petitioner engaged a firm of private investigator from whose report he learnt that the respondent was living in open concubinage with the co-respondent. The petitioner accompanied by two operatives of the said firm on the 22nd of May, 1972 also found the respondent sharing the same bed room with the co-respondent. The respondent confessed that she was the concubine of the co-respondent.

2. In an answer the respondent denied that she resided with the petitioner at 83, Park Street within the jurisdiction of this Court or that she resides or ever resided with the corespondent at Santragachi as alleged or at all. She has, inter alia, denied the allegations that she had met or was living with the co-respondent at Santragachi as alleged or at all. She had denied that the petitioner or the private investigator did or could find her sharing the same bed room with the co-respondent as alleged or at all. She further denies that she confessed or that there can be any reason or occasion for the confession that she was a concubine of the co-respondent. She has also dealt with other allegations in the petition which will not be material to take note of.

3. The co-respondent has also filed an answer denying that the respondent was residing with him or ever resided with him as alleged or at all. The co-respondent has also denied the allegations of adultery or living in concubinage with him by the respondent.

4. On the basis of the said allegations the following three issues were raised.

1. (a) Did the petitioner and the respondent reside together at 83 Park Street, Calcutta as alleged in paragraph 4 of the petition.

(b) Does this Hon'ble Court have jurisdiction to try and determine the suit?

2. Has the respondent committed adultery with the co-respondent at Santragachi between 24th April, 1973 and 22nd of May, 1973 as alleged in paragraphs 9 and 10 of the petition?

3. What reliefs, if any, is the plaintiff entitled to?

5. A number of witnesses were examined on either side. Mr. Tulloch, the petitioner; Mr. Rao, Mr. Shew Sankar Prosad and Mr. Haripada Bhattacharjee of the Globe Detective Agency deposed on behalf of the petitioner. Mrs. Maxine Tulloch, Mrs. Charlesworth, Mr. Macmarquis and Mr. Rodney Everson deposed on behalf of the respondent. Their evidence was then summarised. Issue No. 1:

6. Mr. Sarkar, the learned Counsel appearing for the respondent challenged thefactum of residence at 83, Park Street, Calcutta by the petitioner and the respondent from the 1st of February to 8th of February, 1971. His contention was mainly twofold. Firstly that the petitioner has failed to establish the factum of stay; Secondly that even if the factum was there, it constituted no residence within the meaning df Section 3 of the Indian Divorce Act. Referring to the evidence of the petitioner in this Court and also his evidence in a previous proceeding Mr. Sarkar took pains to point out some discrepancies with regard to this fact. The petitioner's answer that the co-respondent left at the end of December, came back in January and lived with the respondent (questions 37, 38) and his further answer (questions 421 and 428) that she left him initially were cited as being contrary to the petitioner's case that the petitioner and the respondent lived at Park Street from 1st of February to 8lh of February. After pointing out some other discrepancies in the evidence of the petitioner as to his age and the age of the respondent. Mr. Sarkar invited the Court not to rely on the evidence of the petitioner.

7. He next submitted that even assuming that the factum of stay at 83 Park Street for about a week was established, something more was necessary to constitute 'last residence' of the parties concerned within the meaning of Section 3 of the Indian Divorce Act. He relied on some cases in this respect. The first case cited was an old one Jogendra Nath Banerjee v. Elizabeth Banerjee reported in (1899) 3 Cal WN p. 250 in which Jenkins, J. while observing that the meaning of the word 'reside' must in each case be decided with reference to its own circumstances pointed out that it conveys an idea, if not of permanance, of some degree of continuation. Residence must be something more than occupation during occasional and casual visits within the local limits of the Court, more specially where there is a residence outside its limits marked with a considerable measure of continuation. The next case cited was that of Jagir Kaur v. Joswanth Singh reported in : [1964]2SCR73 . That case related to Section 488 of the Criminal Procedure Code 1898. Various decisions came to be considered therein. It was held (page 1524).

'Generally stated no decision goes so far as to hold that residence in the Sub-section means only domicile in the technical sense of the word. There is also a broad unanimity that it means something more than flying visit to or a casual stay in a particular place. They agree that there shall be an animus manendi or intention to stay for a period, the length of the period depending upon the circumstances of each case.'

Mr. Sarkar laid emphasis on the expression 'animus manendi' and pointed out that the question of intention was an important aspect of the matter. He then next referred to a Full Bench decision of the Kerala High CourtPoonen v. Varghease reported in : AIR1967Ker1 . In that case the petitioner resided with his wife for sometime at Trivendrum but their stay at Bangalore for seven days in a P. & T. Bungalow was considered to be a casual one. The District Judge of Trivendrum held that he had jurisdiction and that the parties did not intend to have residence at Bangalore for an indefinite period. After considering numerous decisions from various High Courts including the Supreme Court decision referred to the Full Bench while endorsing the views of the District Judge evolved some propositions of which Mr. Sarkar placed reliance on the second one, namely

'To constitute 'residence' the stay need not be permanent; it can also be temporary so long as there is animus manendi or an intention to stay for an indefinite period.'

Mr. Sarkar emphasised that stay at Bangalore for about a week in that case was similar to the petitioner's stay at Calcutta in the present instance. Mr. Sarkar pointed out that according to that decision, if there is a prior residence of more permanent nature then that residence is to be taken into account for the purpose of jurisdiction. So far as the pleading was concerned there was nothing in it regarding 'intention'. Mr. Sarkar submitted that the cause title showed that the petitioner was residing at Chakradharpur in the State of Bihar. That was also the address given in the previous suit. He went there in October and November, 1970 after his marriage in July, 1970. The evidence also showed that Chakradharpur was the centre of his business. He said that he had plans to come to Calcutta for two weeks to attend to some business (Mr. Tulloch Q. 144-145). He also said later that he had to talk over the matter with his sister (question 384-385). According to Mr. Sarkar the petitioner had a previous permanent residence at Chakradharpur and that is his last residence.

8. Mr. D'Rose appearing for the petitioner drew the attention of the Court to the allegations in para. 4 of petition and to para. 2 of the answer filed by the co-respondent in which the latter professed to have no knowledge with regard to the statement therein. The co-respondent, therefore, does not deny the residence at Park Street. In this respect Mr. D'Rose drew the attention of the Court to Order 8, Rule 5 and the case of J. Shah v. Dwarka Prosad reported in : AIR1967SC109 . It was observed in that case by Mudholkar, J. that ' say that the defendant hasno knowledge of the fact pleaded by the plaintiff is not tantamount to a denial of the existence of that fact, not even implied denial'. Mr. D'Rose, therefore, submitted with some force that the co-respondent should be deemed to have admitted the allegation.

9. So far as the respondent is concerned there is, of course, denial of the factum of residence. But Mr. D'Rose contended thatthe permanent matrimonial home of the parties was initially and for the last time at Barbil. They went to Chakradharpur thereafter (question 38). Mrs. Tulloch's evidence shows that they went there on holidays on the understanding that if they liked the place they would stay there. Mrs. Tulloch's evidence further is that on the 26th of January she and her husband lived at Chakradharpur. Mr Tulloch said that he stayed at Park Sreet for about a fortnight. Eight days in February and five days in January would make up thirteen days. It is the case of both the parties that Mrs. Tulloch lived at Chakradharpur but Mr. D'Rose emphasised that there was no case made out of permanent residence at Chakradharpur. The respondent made out a case in pleading that she stayed permanently at Barbil and came to Chakradharpur on holiday. She could not depart from the case made out in the pleadings. She should be estopped by her pleadings. In question 384 it was put to Mr. Tulloch that he decided to live at Chakradharpur permanently but his answer was not contradicted. Mr. D'Rose submitted that the respondent's evidence was hit by Section 115 of the Evidence Act and secondly it was a surprise evidence. He referred to Sarkar's evidence and Odgers in this connection. He cited also Rayden, 10th Edition page 790 paragraph 17 in Chapter 30. So far as the jurisdiction is concerned Mr. D'Rose's submission in substance was that the co-respondent was estopped from denying the jurisdiction because he admitted the same and the respondent's case was not put to Mr. Tulloch (questions 20 to 11 (sic), 325 to 40). The permanent matrimonial home at Barbil was sold. That came out in cross-examination. It is the respondent's case that she came to Chakradhapur for a holiday with her husband. Therefore there was no question of permanent matrimonial home. The petitioner has said that between November, 1970 and January, 1971 he used to come to Calcutta for stay with his sister. He also stayed at Astroia Hotel. Mrs. Tulloch also came down. He was asked as to why he stayed at Astroia Hotel and the answer was that it was centrally situated for his work and he found it convenient. Then from questions 325 to 40 it is also on record that the respondent lived with her child at 83, Park Street, that was a place at Calcutta to which she could go at any time. This was in consonance with the petitioner's case of residence at Park Street in the first week of February. In the entire course of cross-examination there was never any suggestion given to Mr. Tulloch that he never stayed with his wife at Park Street. In questions 416 and 417 he was even asked if his wife was with him at that time to which the answer was 'yes'. The question put was ..... 'yourwife, I presume, was with you at that time' In this connection Mr. D'Rose cited the case of Carapie reported in : AIR1961Cal359 . Putting the case of the respondent was not a matter of mere technicalities but of sub-stance. Mr. D'Rose submitted that the factum of residence at 83 Park Street for about a week in February, 1971 could not be challenged. Mr. D'Rose also submitted that it was fairly established from the evidence of the respondent that the last permanent matrimonial home was at Barbil. Mr. Tulloch's evidence in cross-examination also supported that the residence at Chakradharpur did not partake of the nature of any kind of matrimonial home. Evidence of Maxine Tulloch (questions 255, 256) reveals that there were three beds in the same room. She had to share the bed in the same room where Mr. Wilson slept. They were the guests of Mr. Wilson. There was not even the bare minimum of privacy between husband and wife as was expected. On the basis of the pleadings and evidence and after hearing the arguments the Court comes to a finding in favour of the petitioner as to the factum of stay.

10. As regards the position in law it appears that the rationale of the decision in (1899) 3 Cal WN, 250 is that jurisdiction is to be rejected when there is more permanent matrimonial home outside the limits of the Court but where there is no permanent residence outside the jurisdiction of the High Court it does not ordinarily refuse to heaf the case. In the case of Ritchson v. Ritchson, reported in (1934) 38 Cal WN p. 347 = (AIR 1934 Cal 570) temporary residence for five days at Calcutta was held sufficient to confer jurisdiction as the parties had no fixed home. After their marriage in July at Barbil the petitioner and the respondent came to Chakradharpur. They sold their house at the end of October. Then they came down to Calcutta three or four times between November and January (Questions 198 to 201).

11. In the case of : [1964]2SCR73 the Supreme Court observed that the decisions on the subject 'agree that there shall be animus manendi or the intention to stay for a period, the length of the period depending upon the circumstances of each case.' The meaning which has been given to residence by the Supreme Court no doubt includes animus Manendi but the same is not to be equated with intention 'to stay for an indefinite period' at one place as was indicated in Charan Das v. Surastibai reported in AIR 1940 Lah 449 and which also seems to have been relied on by the Kerala Full Bench in the case of Poonen v. R. Varghease, : AIR1967Ker1 for the second proposition. The Latin word Animus Manendi means 'intention to stay', Manendi arises from 'Maneo' from which the word manor is derived. Maneo means 'to remain', 'to continue' (See Latin for lawyers, Sweet and Maxwell). The Supreme Court while retaining the expression 'animus manendi' seems to qualify its quality by deliberately omitting the expression 'indefinite period.' Animus Manendi was given new meaning in the context--something different it seems from what is required in a domicile. A person, for the purpose of resi-dence, should have animus manendi or theintention to stay for a period, the length of the period depending upon the circumstances of each case. The Supreme Court thus avoids a rigid formulation. The views expressed by the Kerala Full Bench in : AIR1967Ker1 in the second proposition, i.e. the intention to stay is to be for an indefinite period, with the utmost respect do not seem to be in accord with the views of the Supreme Court. A person resides in a place if he through choice makes it his abode permanently or even temporarily. In Tarasingh v. Joypal Singh, reported in (1946) 50 CWN 442 a week's residence at Darjeeling was held sufficient to give jurisdiction to the District Court under Section 3(3) of the Divorce Act. Edgley, J. while construing: the observation of Sir Lawrence Jenkins that 'it conveys.....anidea if not of permanence at any rate of some degree of continuance' made in Jogendra v. Elizabeth, reported in (1899) 3 Cal WN 250 noted that Sir Lawrence himself recognised that the degree of continuance is not capable of precise definition but it served as a foundation of this important branch of the Court's jurisdiction. In that particular case the petitioner actually had a place which could be described as his home at Chandcrnagore outside the jurisdiction of this Court and in view of the special circumstances it was held that the petitioner had no residence in Calcutta. Edgley, J. noted two other cases; Bright v. Bright, reported in (1909) ILR 36 Cal 964 and Murphy v. Murphy, reported in ILR 45 Bom 547 - (AIR 1921 Bom 211). Some emphasise was laid there on the circumstance that the husband and wife never had a permanent residence. There may be cases where actually abode for the time being is the only residence. The case of Clarence v. Rachel, reported in AIR 1964 Mys 67 (SB) was an extreme case where the two parties were never together except during the marriage ceremony at the Church. At the dwelling where the marriage was to be consummated the wife on the night of the marriage confessed that she was in love with another person. The husband parted with her leaving her with her parents and never visited her. In that extreme case the place where the marriage was solemnized was construed to be place of residence. The word 'resides' no doubt normally connotes -some degree of continuity of stay and specially in cases where there is a home or place of residence of more permanent character a casual or brief residence together may not confer jurisdiction. But the Courts have interpreted the term 'residence' liberally. In the case of Saroja v. Emanuel, reported in AIR 1965 Mys 12 where the husband and the wife had no joint permanent home where they could reside together and when both of them were employed in different districts and the wife visited the husband's place for short interval during her vacation the last place of residence was held to confer jurisdiction under Section 3(3) of the Divorce Act.

12. Mr. D'Rose took pains to impress upon the Court that in the present case also the petitioners really had no permanent matrimonial home. The permanent matrimonial home at Barbil was sold. They came to Chakradharpur for holiday. Thereafter there was no living together for any considerable time. Mr. D'Rose argued with some force that the refusal to hear this case would result in injustice. In that event the petitioner could neither come to Patna High Court as it might be said that they had left Barbil for a long time ago and thereafter lived at Chakradharpur in Orissa. The Orissa High Court also would be in difficulty in assuming jurisdiction. In this regard arguments for the respondent and the co-respondent was, of course that the difficulties of the petitioner would not confer jurisdiction on the Court when it had none. The Court in this connection also takes into consideration the comments made by Mrs. Pal that the jurisdiction for maintenance under Section 188 of the Criminal P,. C. which was the subject-matter of the Supreme Court case was liable to be construed liberally while jurisdiction for the purpose of breaking a home was to be construed more rigidly. It is also well known that even by consent parties could not confer jurisdiction on a Court.

13. However on review of a large number of cases it appears that the word 'resides' does not have a rigid connotation and its meaning might vary in the context of each case. Soon after the marriage the parties came to Chakradharpur where even, according to the respondent, they had even no separate bed room. The latter could hardly constitute a proper matrimonial home. Thereafter, relationship between the parties seems to be estranged. In that context the residence for more than a week at Park Street is of significance in view of the cases such as 38 Cal WN 347 - (AIR 1934 Cal 570); Singh v. Singh, reporled in (1946) 50 Cal WN 447; reported in AIR 1965 Mys 12 and specially the decision in AIR 1964 Mys 67 (SB) noted above. The Court has already come to a rinding in favour of the petitioner as to the factum of stay. Even if the intention to stay was for a fortnight and not indefinitely yet it was certainly an intention to stay for a period. The question of jurisdiction in this case seems to be a difficult one. After going through the maze of varying case laws and specially in view of the Supreme Court eschewing a rigid formulation of the word residence and on the basis of the facts of this case -- on which evidence, too, is not very satisfactory -- for reasons stated above, I decide the issue in favour of the petitioner.

Issue No. 2:

14. As to issue No. 2 Mr. Sarkar drew attention of the Court to the evidence of Mr. Tulloch (questions 315 to 316 and 465 to 69) where he said that the evidence of adultery was between 24th April and 22nd of May, 1973. The petitioner was relying on theauthentic report of the detectives. Mr. Rao of the Globe Detective Agencies private limited did not give evidence directly as to adultery. Mr. Bhattacharjee, another detective went to Santragachi only on the 22nd of May, 1973. It was Prosad who only deposed about the incidents on the 30th of April, 1st of May, 2nd of May and 22nd May. After all Prosad was a witness interested in the success of his investigation. On the uncorroborated testimony of a paid agent it would be unsafe to come to a finding of adultery. He relied on a case reported in : 1974CriLJ307 in which acceptance of such evidence was held to be not illegal but inadvisable. The other authorities relied on were Halsbury's Laws of England, volume 12, page 238 and Sopwith v. Sopwith, reported in 164 ER 1509 (1510) for the proposition that the Court looks with suspicion on the evidence of a paid detective. Mr. Sarkar submitted that the letter Ext. P only affects creditability of Rodney Everson. It was not substantive evidence and could not be taken note of otherwise by the Court.

15. Referring to Section 7 of the Indian Divorce Act Mr. Sarkar submitted that the principles and rules on which the Court of Divorce and Matrimonial causes in England gives relief may be adopted by this Court. He referred to the evidence of Mr. Tulloch (question 69) where he said that at his request the detectives undertook the work between 24th of April to 22nd of May, 1973. He approached the agency on the 28th of February, 1973, gave description of the place at Santragachi to them (questions 74, 75). Yet according to Mr. Sarkar the witness had never been there before December, 1973 as would appear from the answers to questions 446 to 450. Tn question 236 also he said that he went there towards the end of 1973 to see the child. Again while the case of the petitioner is that he came to learn about the adultery from the report of the agency (questions 80, 83, 311) yet he did not study the report (question 233). Mr. Sarkar also commented on the absence of Srivastava and the report itself. Srivastava went to Santragachi along with Prosad on all the days except the 22nd of May yet he was not called. He invited the Court to draw adverse inference on account of the same. As to the report he said that as the petitioner himself proceeded on the basis of the alleged report withholding the same from the Court it also should call for adverse presumption. He cited in this connection two cases reported in : [1968]3SCR862 and : AIR1974Cal61 , (Subrata v. Dipti).

16. Mrs. Pal on behalf of co-respondent analysed the allegations in the petition and said that the period of the adultery was from 24th April to 22nd of May as was revealed from the report of the investigators. Secondly on the 22nd May the petitioner accompanied by the investigators found the respondent sharing the same bed with the corespondent and thirdly the respondent con-fessed that she was the concubine of the corespondent. There was also an averment that the respondent continued committing adultery even after 22nd of May at various other places and times not mentioned. Two persons gave evidence as to the first period one is Rao; and the other Prosad. Neither Mr. Tulloch nor Mr. Bhattacharjee, the other investigator came and deposed about it. Rao's evidence was that on the morning of 24th of April he arrived at Santragachi by train with two investigators. They started surveyance at 2 O'clock. He identified the subject when he came at the Balcony at about 2-30. Thereafter he left at 3 P. M. He instructed the operatives to continue surveyance and give him the report and the report came to him on the same day (questions 76 and 236). There was no identification of Mr. Macmarquis and in fact Rao said that he did not know him. Prosad, however, in his evidence said that there was one more person with him on the 24th of April and his name was Srivastava. He did not mention Rao. While Rao says that on arrival at Santragachi they proceeded to the said address (question 62) Prosad said (question 11) that on arrival at Santragachi they waited inside the waiting room as they had to look for the address. Again while Rao says that he identified the subject at 2-30 P. M. Prosad, in questions 20 to 21, said that he saw her for the first time on tie 24th at 4-50 P. M. when she was giving company to the child. Rao did not mention the child. While Prosad says that he was in the waiting room Rao says that he was in the football ground, While Rao said that the report was submitted on the same day in his office Prosad said (question 87) that he submitted the report on the next day to Mr. Rao at his house. Apart from the contradictions between Rao and Prosad Mrs. Pal pointed out that Prosad's evidence itself was full of contradictions. The learned Counsel drew the attention of the Court at length to the evidence datewise on the 30th of April, 1st of May, 2nd of May and 22nd of May. Prosad said on the 30th of April (in question 105) they were waiting at the big tower outside the quarters at about 7-30 (questions 104 to 105) yet a little later he said (in question 108) that they were waiting under the shadow of trees playing cards. At the same time he said that they were keeping watch on both sides (question 102) but in question 114 he said that Srivastava was in the waiting room. In minute details Mrs. Pal pointed out some inconsistencies and contradiction with regard to time and place and what the detectives saw which it will be unnecessary to narrate. It seems to the Court that Prosad's evidence, amongst otherwise, with regard to the position of over-bridge and what would be seen therefrom, about the time spent with Rodney and the submission of reports, seems to be considerably discrepant. After showing the inconsistencies of the witness on behalf of the petitioner Mrs. Pal invited the attention ofthe Court to the evidence of Mr. Macmarquis, Mrs. Charlesworth, Maxine Tulloch and Rodney Eyerson to show that Mrs. Tulloch was not living at Santragachi. Macmarquis categorically stated (questions 382 and 91) that Maxine Tulloch was not living with him. Maxine also in questions 518 to 24 denied, that she ever lived with Mr, Macmarquis at Santragachi or committed adultery. Mrs. Pal submitted that there was no reason why their testimonies should not be accepted. According to her evidence of adultery was, prima facie, unbelievable. She pointed out that the investigators were near the house on the 30th April, 1st of May and 2nd of May from 7 A. M. to 9 P. M. There was no evidence that any of them came out. There is no refrigerator in the house yet nobody came out even for marketing. There is no mention even of the servants coming out. All the activities referred to were confined to a balcony 4 x 2 1/2 wide. There is even no evidence that any photograph was taken of Mrs. Tulloch or Macmarquis which was the task assigned to the detectives. There is even no evidence to suggest that an attempt was made for that purpose. Again Mrs. Pal ably pointed out some portions of Mr. Tulloch's evidence which seem to be inconsistent with a case of adultery. He admitted in question 149 that he gave money to his wife to buy clothes. Was that an attitude consistent with his wife living in adultery? In question 234 Mr. Tulloch said that he visited Macmarquis's house to see the child. Was it natural for a person to visit the house of another who seduced his wife? In question 256 Mr. Tulloch again said that he stayed at the house of Mr. Macmarquis. His answer to questions 248-49 again showed that he celebrated the child's birthday with his wife Mrs. Tulloch.

17. Again analysing the evidence of adultery Mrs. Pal said that firstly there was some evidence as to closed doors in the afternoon. These are however capable of most innocent explanations. These incidents took place in the months of April and May when it is very hot and it is not unnatural to have the doors closed. Secondly the house was a large one comprising several rooms. There is nothing to show that even if Mrs. Tulloch was inside the house the two would be necessarily in the same room. She might as well have been sitting in reading room or playing with the child. While allegation in the petition was that on the 22nd of May the respondent was found sharing the same bed room with co-respondent the evidence was quite different. Macmarquis was not at home admittedly and there was no question of sharing the bed room. Mr. Tulloch in his evidence said that he had an impression that Mrs. Tulloch was living there from her behaviour, from seeing her clothes and as she was giving tea and all that. The positive case made out in the petition was reduced to one of suspicion or inference. As to clothes there was no positive identification but Mrs. Charlesworth saidthat she left her clothes there. Rodney also said that if any ladies' clothes were there those must be of Mrs. Charlesworth. Prosad gave no evidence in this regard. So far as giving of tea was concerned evidence is that Rodney sent for tea (Q. 450). Maxine was not asked any question about tea. The last allegation in the petition was about the confession of concubinage. The evidence of Mr. Tulloch as to confession was (questions 125 to 127) that in course of discussion Mrs. Tulloch told him that she was slaying there but it was of no consequence. Even the same was not put to Maxine Tulloch. Again it is common case that Rodney was living in the same house. There is no evidence as to inclination and no question was put to Maxine Tulloch about confession. After thus analysing the allegations and the evidence Mrs. Pal referred to a number of decisions; In the case of England v. England reported in (1952) 2 All ER 784, admittedly the wife spent one night with another gentleman. It was even assumed that there was an inclination and opportunity yet the Court accepted the verbal testimony of the respondent. It was held that there was no rule of law that evidence of conjunction of inclination and opportunity must raise presumption that adultery has been committed. The sworn testimony of the wife and other gentlemen were accepted by the Court. The next case relied on was Thomas v. Thomas, a Full Bench decision reported in (FB) where it was held that if the factum of adultery was sought to be proved by circumstantial evidence the evidence should be such as would be incompatible with the innocence of the party charged. The fact that the husband introduced another woman to other persons as his wife did not constitute an admission by the husband that he had committed adultery with her. The next case was Fairman v. Fairman reported in (1949) 1 All ER 938. In that case the lodger gave evidence that he committed adultery with the wife of the petitioner but the wife denied the same. As the lodger's evidence was not corroborated it could not be held that adultery had been proved.

18. In the case of Bhagwanti v. Sadhu-ram reported in it was held that evidence whether direct or circumstantial must necessarily be of such character as would induce the guarded discretion of a reasonable and just man to conclude that no other inference than that of misconduct can be drawn from it. Mere possibility that adultery has been committed is not enough. Such commission must be highly probable. Mrs. Pal emphasised that the onus of proof essentially lays on the petitioner. She cited the case of Sachindra v. Nilima, reported in : AIR1970Cal38 where it was observed that falsity of the evidence on the part of the wife did not prove the truth of her husband's case to prove which the onus lay upon him and him alone. She also referred to the case of R. Lincoln v. Mrs. Ellis,reported in AIR 1932 PC 95 which, however, related to negligence. But an observation was made there that failure of the defendants did not advance the other side's case.

19. Mr. D'Rose appearing for the petitioner submitted that the Detective agency's report being notes from evidence was a privileged document which the petitioner was not obliged to disclose. He referred to a case reported in 20 Cal WN 617 = (AIR 1916 PC 157), (D. G. Kunwar v. H. Singh). It was held by the Privy Council that the Judges should not allow their minds to be influenced by the facts that the note was not produced in Court. That was an information for the cavcator.

20. Mr. D'Rose then referred to Rayden on Divorce, 11th Edition page 184 for the purpose that general cohabitation excludes the necessity of proof of particular facts to establish adultery; Secondly the conjunction of strong inclination with evidence of opportunity affords strong, prima facie, evidence of adultery but it is not irrebuttable presumption.

21. He also relied on the authority on Rayden on Divorce for the proposition that the Court looked to the evidence of paid detective with great care but the modern practice is generally to accept such evidence unless the facts arouse the suspicion of the Court that a true case is not being disclosed in the sense that adultery may not in fact have been committed; in such circumstances the Court will closely scrutinise the case (page 186, 11th edition). He also relied on Emperor v. Chaturbhuj, ((1911) 15 Cal WN 171) in this connection and said that detectives were not in the position of accomplices and their evidence could be relied upon without corroboration. Mr. D'Rose then relied on the decision in White v. White, reported in ATR 1958 SC 441. In that case the Supreme Court approved of the test laid down in Loveden v. Loveden, reported in (1810) 161 ER 648 as 'the guarded discretion of a reasonable and just man.' It was observed that in a suit based on matrimonial offence it is not necessary and it is rarely possible to prove the issue by any direct evidence for in very few cases can such proof be obtained. The Supreme Court also referred to the test laid down by the House of Lords in Preston Jones reported in (1951) 1 All ER 124. Mr. D'Rose also referred to the celebrated case reported in (1810) 161 ER 648 which was referred to by the Supreme Court. In that case general cohabitation was deemed enough. It was not necessary to prove the direct factum of adultery. Mr. D'Rose also relied on Rayden for the proposition that direct evidence was not requisite. For the same principle he also relied on Cadogan v. Cadogan, (1810) 161 ER 649 (FN) which is also referred to in (1810) 161 ER 648 and is reported in the same volume.

22. According to Mr. D'Rose the persons who deposed on behalf of Mrs. Tullochwere witnesses selected by themselves and from their evidence the Court is required to believe that she was innocent. She comes to the house, takes her meal but never sleeps at night. That is the gist of their evidence. He referred to Gibbs v. Gibbs, reported in AIR 1933 All 427 where also general cohabitation was considered enough to exclude any proof of direct facts of adultery. The fact can be inferred from circumstances that lead to it by fair inference as a necessary conclusion. The petitioner's wife was found to reside with the co-respondent in a Bungalow. No one else was residing there. A decree nisi was passed. Mr. D'Rose drew the attention of the Court to the evidence of Rodney Everson when he said that in January 1971 there was a fight between the husband and the wife. Earlier Mr. Macmarquis had been there. Again the evidence is that Rodney and Mrs. Tulloch both left Chakradharpur on or about 26th January. Tn that background the story made out that Rodney and Mrs. Tulloch came to Calcutta in search of a job and went to Macmarquis just for finding out the house of his sister was improbable. Another circumstances to note was that Mrs. Macmarquis had also left her husband nearabout that time. There is a proceeding by her against her husband. He referred to the case of Gopi v. Mt. Hiriya, reported in AIR 1935 Nag 49 in which it was observed (51) that it is no doubt extremely difficult, if not impossible to prove the actual fact of adultery, but no sensible man familiar with the common course of human conduct would ever persuade himself that when a man turns away his wife and lives with another woman in the same room for days and months that their relations could be altogether innocent. Justice Young in the case aforesaid reported in AIR 1933 All 427 refers to an old maxim in Scotland to the effect that when a man and woman are found together under suspicious circumstances it cannot be presumed that they are saying their prayers. Similarly in the case of Stracey v. Stracey, reported in AIR 1957 Assam 66 it is stated that adultery from its very nature is a secret promiscuous act. Insistence on direct evidence by Courts may well amount to a denial of the legitimate protection of marital rights. Referring to the case of Subrata v. Dipti, reported in : AIR1974Cal61 which was a Special Bench decision, it was pointed out that there was condonation in that case. It was noted that relationship between the parties could not be said to be irretrievably broken down so that there could not be any chance of compromise but that is not the case here.

23. Mr. D'Rose then asked the Court not to attach much importance on the discrepancy in evidence as to the age of the petitioner. As to the report he said that it was an analysis by the agency. He further said that possibly Rao was a little boastful. His statement that the report was made every day and that he had special eye-sight might be ex-plained by that. Rao was there on the 24th of April and actually identified the girl to Prosad. Maxinc and Tulloch met. Prosad has corroborated to the extent that it is not denied that Maxine did not go there on the 24th. Possibly Prosad was not so accurate in his evidence as to direction but there was no reason why his evidence should be disbelieved. He analysed the evidence of Prosad and pleaded that Prosad's evidence could be accepted in broad detail. There is no doubt that Prosad saw her at about 2 P. M. Mr. Macmarquis's evidence was that she was there on the 24th (Q. 302). Mrs, Tulloch's evidence is that if she were there Mrs. Charlesworth must have been there. Maxine's evidence (questions 140 to 144) according to Mr. D'Rose covered all the four days. According to him it was apparent that she was hiding something. Mr. Macmarquis, in question 25, confirmed that he was on duty on the 24th of April. This confirms Prosad's statement that there was no other person on the flat that day. Mrs. Charlesworth merely said (question 64) that she could not remember. Maxine also says that she does not remember coming there. The minor discrepancy about the time of 4-30 or 5-30 may not be considered important. Mr. D'Rose further analysed what part of Prosad's evidence could be accepted with regard to the events of the 30th April, 1st and 2nd of May. Prosad's evidence that he saw Macmarquis on the 30th April practising at the balcony was confirmed. The accuracy of his observation is supported by Macmarquis (Q. 114). Prosad said that the lower part was not visible. Macmarquis said that he was indeed practising barebodied. Maxine also confirmed that she was there (questions 445, 446). There is evidence that Macmarquis was punching the wall at 10 A. M. Maxine Tulloch said (question 141) that she had no distinct recollection. On the 30th Prosad saw Macmarquis going out with a black shirt and waiving Ta Ta to Mrs. Tulloch. Prosad saw him coming in the morning at about 11 A. M. Mrs. Charlesworth (question 65) says that she remembers that she was there. With regard to 1st of May also Macmarquis said that he was on duty. Prosad did not attempt to show that Macmarquis slept there. No attempt was made to make out a false case. They merely recorded what happened. Mrs. Tulloch strenuously denied that she ever spent the night there. According to Mr. D'Rose not sleeping there at night will not make it the less adulterous. Her conduct was not consistent with innocence. If she had innocent explanation that could have come forward before the Court; on the other hand her answers were evasive in the box. As to 2nd of May also her answer was that she did not remember. Mrs. Charlesworth said 'if Mrs. Tulloch was there I was there'. Rodney says (Q. 43) he did not remember. Mr. D'Rose made comments on the fact that Mrs. Charlesworth volunteered from the witness box without being asked that in thisperiod she left her underwear and says that she never went there alons. Pointing to Rodney's answer that his sister was not 'at home' Mr. D'Rose commented that home means one's own house where a person is prepared to receive the visitors. The home is one's permanent residence. There was a similar language in the evidence of Mrs. Charlesworth (question 21). Mr. D'Rose then referred to Oxford Dictionary for the meaning of 'home' which denotes a dwelling place, a house for a fixed residence of a family. This expression, according to him, was significant and came out through a slip. Referring to the evidence in the case (1810) 161 ER 649 (FN) he emphasized that such minor but significant things were to be taken note of in a matrimonial proceeding. In (1810) 161 ER 649 (FN) also the evidence is that the corespondent used to go there from the morning and stayed there till the afternoon or go in the afternoon and stay till late at night. The so-called story of family friendship between Maxine Tulloch and Macmarquis was a myth.

24. Mr. D'Rose laid stress on the fact that Macmarquis met Maxine on the 5th of November, 1970. Maxine said that she never met him before in the whole of her life. Rodney's evidence (Q. 120) is also that he came to know him in 1971. This is also corroborated by Macmarquis (Q. 10). Mrs. Charlesworth even said that she came to know Mrs. Tulloch in late '72 or earlier '73. She said she was visiting her house and it was a family affairs. It is probable. Mr. D'Rose commented that the fire which was lit on the 5th of November began to blaze stronger and stronger with events thereafter. In the picnic party they go out to a forest about eight miles by jeep but Mrs. Tulloch volunteered to say that she was all the time with her husband. Macmarquis stays with Ihem for about a week. He fell ill and was in bed for the whole week. The evidence is that there was only one bed room in the house so he had to sleep in the same bed room where Mrs. Tulloch slept. Rodney volunteered to say that there was a fight between Mrs. and Mr. Tulloch on 14th January, 1973. That was a few days after Mr. Macmarquis had been to their place on the 2nd or 3rd of January. After the fight both the brother and sister came away from Chakradharpur, The reason for her coming to Santra-gachi was to seek for a job. Mrs. Tulloch (questions 296, 301 to 305, 485-87) however never found any job in Calcutta. The whole point is one of continuous association. Mrs. Charlesworth says that Maxine used to come and go. Almost the same expression is used by Mr. Macmarquis. Mr. Macmarquis is a railway servant, a motor man but he is so charmed and attracted by her that he goes to stay off and on. After his departure there was a tremendous fight between Mrs. Tulloch and Mr. Tulloch. Mr. Macmarquis's wife also leaves him. Both Mrs. Tulloch and Rodney ran away. Thereafter Rodney becomes almosta permanent inmate at Mr. Macmarquis's place. The close relatinship devevlops after Mrs. Tulloch leaves Mr. Tulloch. Comparing the case of (1810) 161 ER 649 (FN) Mr. D'Rose said that lady Cadogan was found residing in the same part of the country. As in that case here also the movements are exclusive and confined to a close circle. There was familiarity, the quality of which was to be gathered from the circumstances. The circumstances show general cohabitation. There was sufficient inclination and opportunity for commission of adultery. There is all the reason why adultery should be inferred in such a case. Mr. D'Rose referred to Barnard v. Barnard, reported in ILR 56 Cal 89 = (AIR 1928 Cal 657) where a decree was passed by Costello, J. on the ground of adultery. He commented that the Supreme Court case only laid down the standard of proof and would not indicate the various types of instances whether the remedy was available. He also referred to Barker v. Barker, AIR 1955 MB 103 (FB) a Full Bench decision of the Madhya Bharat High Court where also it was observed that direct evidence regarding the act of adultery cannot be expected. There was continuous coming and going around Santragachi. Mrs. Charlesworth's evidence was that she left her clothes at her brother's place but Mr. Tulloch in question 462 has confirmed that the clothes were those of Maxine Tulloch. Rodney said that Mrs. Charlesworth very seldom slept at Santragachi. Rodney admitted that he wrote to his mother that his sister was to take a second husband but he tried to explain by saying that it was a joke.

25. About the extent to which the letter could be made use of there was a controversy at the Bar. While Mr. Sarkar pointed out that it would not be substantive evidence but could only be used by way of contradiction, Mr. D'Rose contended that as Rodney admitted the contents of the letter this could also go in under Section 50 of the Evidence Act. Mr. D'Rose emphasised that when he put to Rodney Everson what he meant when he wrote in the letter that a second husband promised him to keep at Santragachi he avoided giving any answer (Q. 183). When the question was repeated the witness said that he did not understand. It was clear that the position was uncomfortable and Rodney could not face the Court. His explanation that it was a joke did not stand. He wrote to his own mother that his sister's husband had promised to keep him at Santragachi. Mr. D'Rose commented that he was not relying on the statement but on his conduct in writing such a letter to his mother. His opinion about his sister is just relevant. He is the member of the family and he was writing to his own mother about his own sister.

26. But while considering the submissions so forcefully made by Mr. D'Rose the Court has to note as pointed out by Mr. Sarkar and Mrs. Pal that the petitioner hasto confine his case to the pleadings. There is no pleading about general cohabitation. The petitioner's case is, as noted earlier, confined to paragraphs 5 and 6 on the point of adultery. In that context what happened in November or December, 1970 or January, 1971 were strictly not the subject-matter of this petition. As to the report of the Globe Detective Agency Mr. D'Rose's reference to the case reported in 20 Cal WN 617 = (AIR 1916 PC 157) was not strictly correct. In that case a note of evidence had been prepared by the witness from his memory for the brief of the Counsel and was considered to be a privileged document. The report in this case was made contemporaneously in course of business and not prepared later as in the other case. In that case the Doctor prepared a note for the purpose of litigation to show the appellant what evidence he was going to give. But here the report was contemporaneous and ante litem.

27. It maybe mentioned that Rao did not impress the Court. Mr. D'Rose fairly conceded that perhaps too much of confidence in himself induced him to make statements which were not always correct. Prosad's state-merits also involved contradiction but as Mr. D'Rose pleaded, his evidence in entirety need not be discarded. The Court assumes from his statement as corroborated by others such as Mr. Macmarquis, Mr. Tulloch, Rodney and Mrs. Charlesworth that Maxine was seen at the house of Mr. Macmarquis on the 24th, 30th April, 1st May and 22nd of May, 1973 and that some ladies' clothes were found in the bed room of Mr. Macmarquis which Mrs. Charlesworth sought to explain to be hers. The demeanour of Mr. Macmarquis was good. Rodney Everson, however, did not make a good impression. Many of his answers failed to be forthright. Mr. D'Rose. however, made comments that he did not want his past to be investigated. His letter and his prolonged stay at Santragachi were also subject of some legitimate comments by Mr. D'Rose. It is not necessary for the purpose of this case to try to sift and evaluate the evidence of each witness any further. The Court is prepared to proceed on the broad aspects of the case as presented by Mr. D'Rose, except when he furiously travelled beyond the scope of the pleadings. Both Mr. Sarkar and Mrs. Pal sought to pin-point the case of the petitioner as stated in the pleadings. Mrs. Pal's submissions had some validity when she said that even assuming the extreme viz. that it was established that Mrs. Tulloch was found at Santragachi on all the four days and that for some hours in the afternoon the doors and windows were found to be closed these were capable of innocent explanations. Her arguments on the pleadings and evidence have been noted earlier. The Court finds substance in them. There is, indeed no evidence that the respondent confessed that she was a concubine. About the allegation of sharing a bed room there is onlysome evidence of ladies' clothes being found. Mrs. Charlesworth's evidence is also there that she left her clothes there. As to Mrs. Charles, worth's evidence comments were made by Mr. D'Rose that it was somewhat strange that although she had two other daughters Maxine Tulloch had to look after her for about two months. Mr. D'Rose commented that the whole purpose of her evidence was to explain the presence of the ladies clothes. Two other points made by Mr. D'Rose viz. that she was present in Court when Mr. Macmarquis deposed and that she volunteered to speak about the clothes have to be noted in weighing her evidence. But even assuming that the entire evidence on behalf of the respondent was not acceptable, can it be said that the petitioner has proved his case, as pleaded?

28. The principles of law have been stated from rival points of view with ability and force before this Court. Much emphasis was laid by Mr. Sarkar and Mrs. Pal on the necessity of a strict proof in a case of divorce. The Court is made aware that jurisdiction in divorce, as was emphasised by the House of Lords in the case of Preston Jones ((1951) 1 All ER 124) involves the status of a party. It also appears that requirement of proof beyond reasonable doubt, as in criminal case, is also based on the gravity and the public importance of the issue. Some of the recent decisions such as (1952) 2 All ER 784 have insisted on proof of something more than a mere conjunction of inclination and opportunity. Falsity of the respondent's case again did not prove the truth of the case of the petitioner (See Sachindra v. Nilima, reported in : AIR1970Cal38 ). Some cases have insisted that evidence of adultery should be such as would be incompatible with the innocence of the party charged. Reported in AIR 1952 Punj 39 reported in AIR 1961 Punj 181.

29. On the other hand as Mr. D'Rose rightly emphasised it is extremely difficult to prove actual fact of adultery. Seclusion and secrecy are most likely to be observed while indulging in such promiscuous acts. (AIR 1935 Nag 49), (AIR 1933 All 427) may be mentioned in this connection. What is required is that the cumulative effect of the evidence should satisfy the conscience of the Court. In some cases such as (1810) 161 ER 649 (FN) and (1810) 161 ER 648 stress has been laid on the aspect of general cohabitation. The fact also is likely to be inferred from circumstances that led to it by fair inference as a necessary conclusion. The circumstances may be infinitely diversified by the situation and character of the parties. The learned Counsel emphasised that incidental circumstances slight and delicate in themselves may have important bearing on the decision of a particular case. On the basis of Lady Cadogan's case (1810) 161 ER 649 (FN) Mr. D'Rose made a strong plea on behalf of his client. In this case also he pointed out the wife of another man comes frequently to the husband of another woman who has left him.This person does not feel embarrassed to indulge in boxing practice, bare bodied, in presence of this lady. The lady, that is, Maxine is, therefore, no stranger. Almost two months after meeting this person she leaves her husband and from that moment onwards she is frequently found in the company of this gentleman or his sister for about three years. She has isolated herself from her family. She makes no attempt to return to her husband. There is no evidence that she has been deserted by her husband and her own brother too has since been found living with the co-respondent. But unfortunately for Mr. D'Rose, the pleadings in this case as noted earlier require much more than a general picture of possible cohabitation. The Court also notes in this connection Mrs. Pal's contention that cases like (1810) 161 ER 649 (FN) & (1810) 161 ER 648 were very old cases even though some of the tests laid down may still be good. Mrs, Pal brought to the notice of the Court a copy of the 'Foresnic Fables' in which a cartoon depicted how two husbands who met in the Elysian fields feel after they died. While exchanging their melancholy experience at the divorce Court it transpires that one of them during the time of Queen Victoria had his home broken up promptly on a petition by his wife because he accompanied a lady from the Hyde Park to a Railway road terminus in a four wheeled cab. The other husband in 1940 had no such luck. Desiring dissolution of marriage he visited a hotel with a sympathetic companion where tea was brought in the morning by a chamber maid. But the Judge decided that there was no satisfactory evidence of matrimonial misconduct. Mr. D'Rose, of course, submitted that so called progressive and advanced ideas that prevail in England today were by no means applicable to this country or amongst our Anglo Indian Community. He insisted on some more Orthodox standard. Mr. D'Rose's addresses made an impact on the mind of the Court. But on analysis it transpires to be an impression that the case of adultery may be true even assuming uncritically the evidence tendered by the petitioner to be prima facie acceptable. The decisions of the English Courts and our Supreme Court make it clear that matter of proof in such a case cannot be decided even on mere preponderance of evidence but has to be established beyond reasonable doubt. Between 'may be true' and 'must be true' there remains a gap and I feel unable to hold that this gap has been bridged by evidence or that adultery, as alleged, has been proved beyond reasonable doubt. The facts and circumstances disclosed and the nature of evidence in relation to the case made out in the petition are not such as would induce the guarded discretion of a reasonable and just person to conclude that adultery as alleged has been established by fair inference as a necessary conclusion. I am, therefore, constrained to decide the issue against the plaintiff.

30. The result is that the suit is dismissed with costs.

31. The Court records its appreciation of the very able assistance it received not only from Mr. D'Rose but Mr. Sarkar and Mrs. Pal, two very junior members of the bar.

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