1. This appeal arises out of a judgment of the District Judge of the 24 Parganas dismissing a petition for dissolution of marriage presented on 19th January 1940 by the appellant Dr. Niranjan Das Mohan against his wife Ena Mohan and three corespondents, (1) Brojendra Nath Pal, (2) H.K. Lalvani and (3) M.G. Mennon. The petition was presented under Sections 10 and 34, Divorce Act, 4 of 1869 (which provide respectively for dissolution of marriage and award of damages) and Section 17, Special Marriage Act, 3 of 1872 (which makes the Divorce Act applicable to marriages contracted under the Special Marriage Act). The statements in the petition, so far as they are relevant for the purposes of this appeal, may be briefly summarised thus: The petitioner is a Hindu of the Arya Samaj sect. The respondent was born of Christian parents, but became a convert to the Arya Samaj sect on 5th April 1925. They were married according to Arya Samaj rites that very day; but they had also been married under the Special Marriage Act on 13th March 1925. The parties lived together until 28th January 1938. There are 5 children of the marriage, 3 sons and 2 daughters whose ages at the date of the petition ranged between 3 and 13 years. The respondent has since 1929 been guilty of adultery on various occasions and with various persons, the latest being between 9th December 1939 and 7th January 1940 with co-respondent 1, B.N. Pal. Details of about 18 adulteries are given in the petition. The petition also mentions that the respondent has now reverted to Christianity, as appears from her application in 1938 for judicial separation from her husband. (This application for judicial separation was dismissed by the District Judge, after the disposal of the present petition, on the ground that the applicant had not proved cruelty and had herself been guilty of adultery.) On these allegations, the petitioner asked for dissolution of marriage and damages of Rs. 15,000 against Pal, Rs. 5000 against Lalvani, and Rs. 5000 against Mennon; also for custody of the children and for costs.
2. The respondent's defence was briefly this: she was born a Christian; was forced by the petitioner to become a member of the Arya Samaj sect on 5th April 1925; but has now reverted to Christianity. She was legally married to him on 13th March 1925; there was no legal marriage on 5th April 1925. She denies all the allegations of adultery. The petitioner has no cause of action andeven if he had, he has condoned it. Moreover, the petition should be dismissed because of his delay in presenting it. On these pleadings a number of issues were framed; we need mention only the main ones. Issues (1) and (3) related to the two ceremonies of marriage and their legal effect; (i) and (8) to the allegations of adultery; (9) and (10) to condonation and revival; (11) to the question of delay. The District Judge found that the marriage under the Special Marriage Act on 13th March 1925 was a valid marriage and that the subsequent marriage according to Arya Samaj rites also would have been valid if the parties had not already been married. On this footing, the Divorce Act was applicable to the case by virtue of Section 17, Special Marriage Act. But he went on to find that even if the second of the two marriages was the valid one, the Divorce Act was still applicable because of Section 2 as amended by Act 30 of 1927. The relevant paragraph of the amended section runs:
Nothing hereinafter contained shall authorise any Court to grant relief under this Act except where the petitioner or respondent professes the Christian religion.
3. Since, at the date of the appellant's petition for dissolution of marriage, the respondent was admittedly a Christian, the Judge held that the Divorce Act applied to the case by its own terms. On the issue relating to adultery, the District Judge found the following instances proved : (1) adultery with Mennon between 5th May and 24th May 1982; (2) adultery with Lalvani on 29/30th March 1938; (3) adultery with Pal between 22nd September 1938 and 12th October 1938 and again between 9th December 1939 and 7th January 1940. On the issue of condonation, he found that since the parties lived together till 28th January 1938, any previous misconduct of which the petitioner was then aware must be held to have been condoned, but the adulteries after that date had the effect of reviving all the previous' offences. On the question of delay, however, he re. luctantly found against the petitioner. He amplifies the issue thus:
The position briefly is that there is convincing evidence that the respondent has committed adultery with several men, but the petitioner has not only tried to corroborate this evidence by a great deal of very dubious evidence and by some evidence that is proved to be false, but he has also put off seeking redress, until nearly two years after his wife finally left him. By such conduct has he forfeited his right to a decree?
4. And he concludes his answer to the issue thus:
I have not lost sight of the fact that though the petitioner has been accused of cruelty and of wasting the respondent's property, there has not been any allegation against him of unfaithfulness. At the same, time, after a careful and anxious consideration of the facts of this case and the principles of law applicable thereto, I have come to the reluctant conclusion that my duty is to refuse him a decree.
5. In the result, he dismissed the petition, the parties being directed to bear their own costs. It may be mentioned incidentally that the accusation of cruelty was held to be wholly without foundation in the wife's suit for judicial separation. The appellant contends that the District Judge was wrong in holding that there was unreasonable delay in presenting the petition. This contention is plainly well-founded. It is true that there was a period of nearly two years between the date when the respondent finally left the petitioner (28th January 1938) and the date when the petition for dissolution of marriage was presented (19th January 1940). But the petition was not founded on her going away: it was founded on the adulteries committed afterwards, which, by themselves as well as by reviving previous offences, gave the petitioner a cause of action. The latest of these subsequent adulteries, according to the District Judge's findings was between 9th December 1939 and 7th January 1940. The petition was presented on 19th January 1940 so that there was hardly any delay so far as this particular incident was concerned. To deny the petitioner relief in these circumstances would come to this, that, whereas he would have been entitled to relief if he had proceeded only on the latest adultery of all (because there would then have been no question of delay), he is not entitled to relief because he has proved previous offences as well. This is hardly a tenable position.
6. In (1920) 123 L.T. 585 (1920) 123 L.T. 585, Rutter v. Rutter, the wife complained of two adulteries by the husband, one committed in 1914 and the other in 1919; the petition was filed in 1920. The second adultery having been proved, the Court granted her relief, observing 'If you can prove adultery with the second woman, the question of delay falls.' Moreover, even as to the earlier adulteries committed after 28th January 1938 (the date on which the parties ceased to live together), we consider that a reasonable explanation of the delay has been given by the petitioner. He has stated that for the sake of the children and the honour of the family, he wished to avoid publicity; but when the respondent started proceedings for judicial separation at the end of 1938 and he himself had to supply detailed particulars in connexion with those proceedings (which he did on 14th August 1939), his hands were forced. We are prepared to believe this statement and having regard to the conditions of Indian society, we think this to be a sufficient explanation of any delay there has been on the part of the petitioner. Under Section 14, Indian Divorce Act, as under the corresponding provision of the English statute, delay is not an absolute bar to relief; the Court has a discretion either to grant or refuse a decree. In the English case in (1870) 22 L.T. 552 (1870) L.R. 2 P. 57 : 39 L.J. Mat. 36 : 22 L.T. 552 : 18 W.R. 584 Newman v. Newman, nearly 20 years' delay was excused, because the Court was satisfied that the wife had not presented her petition in deference to the wishes of her mother who was anxious to avoid a scandal.
7. The respondents in this appeal have, however, attempted in their turn to challenge some of the other findings of the District Judge with a view either to securing the dismissal of the petition on other grounds or defeating or at least mitigating the claim for damages. In the first place, it was argued that the Divorce Act did not apply to the case at all. The District Judge has dealt with this point as a preliminary issue in a very full and careful order in which we entirely concur. As already stated, the parties went through two forms of marriage. It is no one's case that neither of them was valid. According to the wife's written statement in this suit, it was the first one, namely, that under the Special Marriage Act, that was valid; according to the husband, it was the second, namely, that according to Arya Samaj rites, rather than the first. It is immaterial for our present purposes which is the correct view. If the marriage under the Special Marriage Act was valid, Section 17 of that Act makes Divorce Act applicable to the dissolution of the marriage. If, on the other hand, the marriage under the Special Marriage Act was not valid and the subsequent marriage according to Arya Samaj rites was valid, then the Divorce Act (as amended in 1927) would be applicable proprio vigor e as already explained, the wife being admittedly Christian at the time when the husband presented his petition for dissolution of marriage.
8. There is, however, one point in this connexion which needs notice. Under section 2, Divorce Act, one requisite condition for relief is that the petitioner or the respondent should be a Christian and it follows from 18 Cal. 252 (91) 18 Cal 252 Gobardhan Das v. Jasa Damoni Dassi that this means that he or she must be Christian at the time when the petition is presented. Undoubtedly this condition was fulfilled in the present case. But what about Section 77 This section first spates in effect that the Indian Courts must, as nearly as may be, act on the same principles as the Divorce Court in England : then follows a proviso:
Provided that nothing in this section shall deprive the said Courts of jurisdiction in a case where the parties to a marriage professed the Christian religion at the time of the occurrence of the facts on which the claim to relief is founded.
9. The condition mentioned in this proviso was not fulfilled in the present case. What then is the effect of the section? In our opinion, the effect is this: the Indian Courts may be deprived of jurisdiction if and only if the principles on which the Divorce Court in England acts would exclude relief in such a case as the present. Had the marriage in the present case been polygamous, it might conceivably have been argued that the Indian Courts would have had no jurisdiction to dissolve it, since the English Divorce Court does not recognise such a marriage. There is, however, satisfactory evidence, as found by the District Judge that an Arya Samaj marriage is monogamous; therefore there is nothing even in Section 7 to bar relief. We have so far assumed that the valid marriage between the parties was the one according to Arya Samaj rites. For definiteness, however, we consider it desirable to state that in our opinion the earlier marriage under the Special Marriage Act on 13th March 1925 was undoubtedly valid. A certified extract from the Marriage Certificate Book prescribed by the Act has been produced in evidence (EX. 2). The husband and the wife both gave evidence of the ceremony and of cohabitation following it. The Registrar himself is dead, but further evidence of the ceremony has been given by one of the witnesses. We consider this to be sufficient proof of the marriage. We would point out that as regards proof of marriage in civil suits one of the principles which the English Courts act upon is that
where there is evidence of a ceremony of marriage having been gone through, followed by the exhabitation of the parties, everything necessary for the validity of the marriage will be presumed in the absence of decisive evidence to the contrary. (Bargrave Deane J. 's statement of the law, approved in (1930) 46 T.L.R. 243 (1930) 46 T.L.R. 243 : 99 L.J.P. 52 : 142 L.T. 492 : 94 J.P. 91 : 28 L.G.R. 188 : 74 S.J. 155, Spivack v. Spivack.
10. There is no such evidence to the contrary here. It is said that the declarations made by the parties before the Kegistrar were defective : the respondent says that'while she her. self declared that she professed no religion, the petitioner declared that he was a Hindu. Now, in the first place, the petitioner himself says that he too declared that he professed no religion. Witness, Lalchand Pathak, who was present at the ceremony, says, that while the petitioner at first declared that he was a Hindu and the respondent that she was a professed Christian though a Hindu in ideas, ultimately both of them declared that they were of no religion and then the Registrar married them. The actual declarations made by the parties, which have to be in a prescribed form and signed by them, are not now available in the Registrar's office; but we cannot believe that if there had been any such irregularity or discrepancy as the respondent now mentions, the Registrar would have solemnised the marriage. It has, however, been argued because on behalf of the co-respondent Lalvani that the declaration, even if it was in the prescribed form, was in fact false, since the respondent according to her evidence at the trial, was always a Christian at heart, and yet she declared before the Registrar that she professed no religion. Even so, we do not consider that this avoids the marriage, whatever penalty she may incur for making a false declaration under Section 21 of the Act. Section 2 of the Act provides that marriages may be celebrated under the Act between persons neither of whom 'professes' the Christian or certain other specified religions, subject to four specified conditions. The wording, it must be noted, is not 'neither of whom belongs at heart' to the Christian or other specified religion but simply 'neither of whom professes' the Christian or other specified religion. What the parties were or were not at heart is as irrelevant for the purposes of this section as it would be difficult to ascertain; the criterion is what they professed or did not profess according to their declarations made at the time.
11. We have no doubt that this wording of the section was deliberate. The Legislature obviously did not intend that the Courts should embark 'upon an enquiry into the state of mind of the parties or into their secret religious beliefs in order to determine the validity of a marriage. Moreover, while Section 17 of the Act provides, inter alia, that a marriage may be declared null and void on the ground that it contravenes one of the four conditions specified in Section 2, it does not provide that a marriage may be avoided on the ground that the parties belonged at heart to some religion which they repudiated in their declarations. The same intention is discernible in the sections of the Act which deal with penalties. Thus, Section 15 not only provides a penalty for a married person marrying again under the Act but also goes on to say that the marriage so solemnised under the Act is void. Section 21, on the other hand, which provides a penalty for signing a false declaration does not avoid the marriage merely on the ground that the declaration contains some false statement. The marriage can only be avoided on one of the grounds stated or included in Section 17. We have therefore no hesitation in deciding that the marriage solemnised on 13th March 1926, under the Special Marriage Act was valid, although for sentimental or other reasons, the parties may have considered it expedient to follow it up with a ceremony according to Arya Samaj rites.
12. Coming next to the issue of adultery, corespondent 1, Pal, has challenged the findings of the District Judge on various grounds. The petition mentions eleven separate occa-sions on which he is alleged to have committed adultery; the District Judge has found the allegations proved as regards two and unproved as regards the rest. The first one which the Judge finds proved is said to have taken place between 22nd September and 12th October 1938 at 34/1D Ballygunge Circular Road and forms the subject-matter of issue 8(e). He relies for his finding on (1) the evidence of petitioner's witness, Rambali Singh, (2) Pal's own admission that he used to visit the respondent almost every day after Court hours, although only in the capacity of a lawyer, (3) the evidence of Pal's witness Panchanan Aditya that Pal chose a motor-oar for the respondent and guaranteed payment of the price, (4) the letter, Ex. 22 written by the respondent to Pal. There are two flaws in the Judge's findings. Witness, Rambali Singh, on whom he relies, has stated that respondent's ayah and children used to live with her at 34/1D, Ballygunge Circular Road during the period in question. This ayah (Dukhoda Dasi) has been examined as a witness for Pal. According to her, she used to sleep in the same room with the respondent and her children, she and one of the children on the floor, and the respondent and the other child on a bed. If this witness is believed, it seems incredible that adultery could have been committed. The Judge has not mentioned her evidence at all, so that we do not know whether he took it into account, and if he did not, why he did not. The other flaw arises out of the use of Ex. 22. That letter was written on 15th March 1939, nearly six months after the period now in question. We have no doubt that it Vas a letter from the respondent to Pal, as deposed by the petitioner, and we have also no doubt that it is good evidence under Section 14, Evidence Act, of the respondent's feelings towards Pal at the time it was written. But it must be remembered that we have here a very susceptible lady whose feelings undergo rapid changes. At the end of March 1938 she was in love with Lalvani; in March 1939 she is in love with Pal. Her life previous to 1938 shows no great constancy. To the circumstances it seems unsafe to use totter of March 1939 as evidence of the state of her affections in the previous September or October. For these reasons we feel constrained to hold that although Pal may have been on terms of growing intimacy with her during this period the evidence of adultery is not convincing. The second instance of adultery alleged against Pal is said to have occurred between 9th December 1939 and 7th January 1940 at 16 Purulia Road, Ranchi, and is dealt with in issue 8 (k). That Pal was living at Ranchi during this period is admitted by him; his version is that he stayed at a place called 'Arya Nibas' wrth a gentleman named Krishna Pada Samanta and merely used to visit the respondent two or three times a week in the afternoons. The respondent stayed at a boarding house at 16 Purulia Road. The cook bearer of the boarding house, who has the unusual name of Benedict Ghee, has given evidence in the case; he says Pal used to come there at about 3 P.M., in the afternoon and to be in the respondent's room even next morning at 6 A.M., when the bearer brought them their early morning tea. It follows that they must have been in the room throughout the night. And this hap. pened every day while Pal was in Ranchi. Against this witness, we have the evidence of Pal himself and Krishna Pada Samanta. The District Judge had the great advantage of seeing and hearing all the witnesses and he has believed Benedict Ghee in the main. He thinks Krishna Pada Samanta has stret-ched the truth to save a friend in need. In a matter of this kind, great weight must necessarily attach to the findings of the trial Judge; we find no compelling reason for dissenting from them, particularly as the respondent has not ventured to come into the witness-box to deny the allegations. We must therefore consider this charge as proved.
13. Coming next to the case of co-respondent 2, Lalvani, we find that there is only one instance of adultery which the District Judge considers proved, namely, on 29/30th March 1938. The evidence of this is so ample and cogent that only a faint attempt was made to challenge the Judge's finding. We have no hesitation in confirming that finding. We consider therefore that there have been at least two proved adulteries after 28th January 1988: one with Lalvani on 29/80th March 1938 and the other with Pal between 9th December 1939 and 7th January 1940. Neither was condoned, there was no delay at all in complaining of the latter and no inexcusable delay in complaining of the former. It follows that this appeal must be allowed. Under Sections 16 and 55, Divorce Act, we accordingly make a decree nisi dissolving the marriage between the petitioner and the respondent, the decree not to be made absolute until after six months from the date thereof.
14. It is now a settled rule that damages in proceedings of this kind must be compensatory, not punitive. The amount must depend as laid down in (1920) L.R. 1920 P. 126 (1920) L.R. 1920 P. 126 : 89 L.J.P. 151 : 122 L.T. 804 : 36 T.L.R. 265, Butterworth v. Butterworth at p. 142 on (1) the actual value of the wife to the husband, (2) the proper compensation to the husband for the injury to his feelings, the blow to his marital honour and the serious hurt to his matrimonial and family life. The question of the amount or damages was raised in issue No. 13 before the District Judge, but has not been dealt with by him, presumably because he dismissed the petition. We have therefore to assess the damages ourselves with the help of the materials on the record. As to the first head of damages, namely, the actual value of the wife to the husband, we have some evidence as to its pecuniary aspect inasmuch as the petitioner has stated that the expenses of the household were being paid from the joint funds of the petitioner and the respondent and in particular that she used to look after the education of the children. This evidence has not been challenged : in fact, there was no cross-examination on it at all. The District Judge finds that the respondent inherited half a lakh or more of rupees and some house property from her father. Even if we assume that she was contributing no more than Rs. 10 per month or the equivalent thereof towards the maintenance and education of her children, the capitalized value of the contribution would come to about Rs. 2400 (at 20 years' purchase). To this must be added such estimate as we can make under the second head. Undoubtedly the husband's feelings must have been considerably blunted by the respondent's conduct even before co-respondents 1 and 2 came on the scene; even so, their intrigues must have destroyed any remaining chances of a reconciliation between the parties and thereby contributed to the final breaking up of the petitioner's home. They must also have caused some further injury to his feelings, however much they may have been blunted already. Taking all the circumstances into account, we assess the damages at Rs. 3000 to be paid by co-Respondents 1 and 2 (Pal and Lalvani) in equal shares; we make no order of damages against co-respondent 3; (Mennon), as the misconduct so far as he is conoerned occurred in 1932 and must be treated as having been condoned. Any damages recovered shall be applied for the benefit of the children of the petitioner and the respondent.
15. As to costs, the petitioner will get his costs of this appeal, the hearing fee being assessed at 10 gold mohurs. He will also get Rs. 500 towards the costs incurred by him up to now whether in the Court below or in applications to the High Court. All the costs will be borne equally by co-respondents 1 and 2. The petitioner will have custody of the children, subject, for the present and until the decree nisi is made absolute, to the orders made by the High Court in this behalf on 3lst March 1941. It appears from the District Judge's judgment in the present suit and in respondent's suit for judicial separation that she is entitled to some property of her own. Under Section 39, Divorce Act, it is open to us to order settlement of the property or an appropriate part thereof for the benefit of the children. We shall consider the question of making such an order if and when this decree nisi is made absolute. Meanwhile, the respondent is restrained from disposing of the property or any part thereof or any interest therein without the previous sanction of this Court. The cross-objections are not pressed and are accordingly dismissed without costs.
Nasim Ali J.
16. I agree.