M.T. Carunya vs S. Joseph Chellappa on 15 September, 1995

    M.T. Carunya vs S. Joseph Chellappa on 15/9/1995

ORDER

   Srinivasan, J.

   1. The wife is the petitioner. She has sought divorce on the ground that the
husband is guilty of bigamy with adultery. The husband remained ex parte. The
wife has given evidence deposing that the husband has married another woman. The
learned District Judge, on the basis of the evidence adduced by the wife,
granted a decree for divorce. The said decree has come up before us for
confirmation.

   2. The amicus curiae, appointed for the respondent, has raised a contention
that there is no allegation in the original petition or proof in the evidence of
any adultery on the part of the husband. According to him, the evidence makes
out only bigamy and not bigamy with adultery. For this purpose, he places
reliance on the definition of adultery in Section 497 of the Indian Penal Code.
Under that section, necessary ingredient is that the woman concerned is the wife
of another man. According to learned Counsel, in this case, the husband is only
having, if at all, intercourse with a woman, whom he has married and she not
being the wife of another woman he is not guilty of adultery as defined by
Indian Penal Code.

   3. The question, therefore, arises whether the definition of adultery as
found in the Indian Penal Code can be applied for the purposes of the Indian
Divorce Act. It is too well-settled that a definition of an expression found in
one particular statute cannot be utilised for the purposes of another statute
unless the context warrants the same, as held in Ram Narain v. The State of U.P.
. While the Indian Penal Code is dealing with offences against State and
containing definition for the purpose of punishing persons who have committed
such offences, the Indian Divorce Act deals with the parties to a marriage and
offences committed in violation of such marital relationship. While the Indian
Penal Code is a statute dealing with the public as such, the Indian Divorce Act
is one dealing with the rights of individuals who are parties to a marriage.
Hence on general principles, it is not possible to import the definition of
'adultery' found in Section 497 of the Indian Penal Code, while considering the
provisions of the Indian Divorce Act. Moreover the definition in the Indian
Penal Code owes its origin to historical reasons. The section in the Indian
Penal Code defines the offence in a very special narrow sense that offence can
be committed only by a man, the woman being exempt from punishment even an
abettor. Under that section, a married wife cannot commit adultery for the
abetment thereof. The term 'adultery' under the section is, therefore to be
understood in the light of socialideas of the community as being a serious
breach of matrimonial ties for the purpose of punishing the offender as having
committed an offence against the society.

   4. The Indian Divorce Act does not contain any definition of the expression
'adultery' Section 3, the interpretation clause, defines 'bigamy with adultery'
as adultery with the same woman with whom the bigamy was committed. It also
defines the expression 'marriage with another woman' as marriage of any person
being married to another person during the life of the former wife whether the
second marriage shall have taken place within India or elsewhere. Under Section
10 of the Indian Divorce Act, a wife may present a petition to the District
Court or to the High Court praying for dissolution of marriage on the ground
that her husband has been guilty of bigamy with adultery or of marriage with
another woman with adultery.

   5. Adultery is defined in the Concise Oxford Dictionary as (voluntary sexual
intercourse of married person with a person other than his spouse'. In Black's
Law Dictionary (Sixth Edition), adultery is defined as 'voluntary sexual
intercourse of a married person with a person other than the offender's husband
or wife, or by a person with a person who is married to another'. In P.
Ramanatha Aiyar's Law Lexicon (Reprint Edition 1993), 'adultery' is defined as
follows:

     Whoever has sexual intercourse with a person who is and whom he knows or
has reason to believe to be the wife of another man, without the consent or
connivance of that man; such sexual intercourse not amounting to the offence of
rape, is guilty of the offence of adultery. (Penal Code, Section 494.) See also
Reg. V of 1872, Section 7 Adultery is the wilful violation of the marriage bed.

     Adultery is the offence of incontinence by married person.

     Other definitions: Adultery is the voluntary sexual intercourse of a
married person with a person other than the offender's husband or wife.
(Anderson L. Dict.) The Civil Law defines adultery to be the carnal knowledge of
another man's wife. By the civil law, adultery could be committed only by the
unlawful sexual intercourse of a man with a married woman.

     It is 'the sin of incontinence between two married persons or if but one of
the persons be married, it is nevertheless adultery; but in this last case, it
is called single adultery, to distinguish it from the other, which is double.

   The question is not res integra. This High Court had to consider, at the end
of the fast century, as to whether the definition contained in the Indian Penal
Code of the word 'adultery' would apply to a proceeding under Section 488 of the
Code of Criminal Procedure for maintenance filed by the wife. In Gantapalli
Appalamma v. Gantapalli Yellayya I.L.R. 20 Mad. 470, the Magistrate was
satisfied that the husband was living in adultery and granted maintenance. On
the facts, it was found that the husband in one case was living with a widow and
in another case with a concubine. The Sessions Judge made a reference to the
High Court on the ground that adultery alleged in those cases was not within the
definition of the said offence in the Indian Penal Code. Section 4 of the Code
of Criminal Procedure, which prevailed at that time, provided that all the words
and expressions used therein and not defined but defined in the Indian Penal
Code, will have the meanings respectively assigned to them in the later.
Referring to that provision, the Full Bench of this Court held that the word
'adultery' used in Section 488 of the then Code of Criminal Procedure should not
be interpreted in the narrow manner indicated in Section 497 of the Indian Penal
Code. It was said that with reference to the provision under Section 4 of the
Code of Criminal Procedure, if a different intention appears from the subject or
context, the meaning given to the said expression in the Indian Penal Code would
not apply and in the context of Section 488, Code of Criminal Procedure, the
strict definition of Section 497, Indian Penal Code would not apply.

   6. In Sainapatti v. Sainapatti A.I.R. 1932 Lah. 116, a single Judge of that
court had to consider the expression 'marriage with another woman' Under Section
3(8) of the Indian Divorce Act and observed that the section had defined only
marriage with another woman and not marriage with another woman with adultery.
Learned Judge said that if after a second marriage, during the life of the wife
by the first marriage, a person cohabits with a woman, whom he married later, he
commits adultery and the wife is entitled under Section 10 of the Indian Divorce
Actio apply for dissolution of marriage, just as she would have been entitled to
apply, had the husband been guilty of bigamy with adultery. The learned Judge
had obviously applied the wider meaning for adultery and not confined it to the
narrower meaning given in Section 497 of the Indian Penal Code. For the said
purpose, the learned Judge relied on a passage in Rayden on Divorce page 86
Edition 2, which read:

     Bigamy was defined as the marriage of any person during the life of the
former husband or wife, whether the second marriage shall have taken place
within His Majesty's dominion or elsewhere.

   The learned Judge also referred to the following passage in Rattigan on his
Law of Divorce in India at p.24, which read:

     Under the Indian Penal Code (Section 494) a person who contracts a marriage
during the life of a former husband or wife, 'does not commit the offence of
bigamy' if such husband or wife, at the time of the subsequent marriage, shall
have been continually absent from such person for the space of seven years, and
shall not have been heard of by such person as being alive within that time,
provided that the person contracting such subsequent marriage shall, before such
marriage takes place, inform the person with whom such marriage is contracted of
the real state of the facts so far as the same are within his or her knowledge.

   7. In Gomes v. Gomes A.I.R. 1959 Cat. 451 : 63 C.W.N. 395, a Special Bench of
the Calcutta High Court held that the definition of 'adultery' found in Section
497 of the Indian Penal Code has no application the proceeding for divorce under
Section 10 of the Indian Divorce Act. The Bench has pointed out that the word
'adultery' has been used in a wider sense in Section 10 of the Indian Divorce
Act than the definition contained in the Penal Code. The Bench has relied on the
definition given in Latey on Divorce and Murray's Oxford Dictionary as the true
meaning of the word 'adultery', which has been used in Section 10 of the Indian
Divorce Act. The Bench placed reliance on the Full Bench Judgment of this Court
in Gantapalli Appalamma v. Gantapalli Yellayya I.L.R. 20 Mad. 470.

   8. A similar ruling was given in SM. Susama v. Sailendra Nath A.I.R. 1961
Cal. 373. The Full Bench of the Calcutta High Court, after referring to the
Lahore High Court's judgment in Sainapatti v. Sainapatti A.I.R. 1932 Lah. 116,
held that the real distinction between 'bigamy with adultery' and 'marriage with
another woman with adultery' is that there is 'bigamy with adultery' when the
second marriage is null and void under any law but still there is cohabitation
and 'marriage with any other woman with adultery' happens when the second
marriage, though taking place during the life time of either the husband or the
wife is not void under any law and there is co-habitation between the husband
and the last married wife. The Bench proceeded on the footing that co-habitation
with the woman, whom the husband married while the first wife was living, would
amount to adultery within the meaning of Section 10 of the Indian Divorce Act.

   9. The entire law on the subject was discussed in detail by a single Judge of
this Court in Samraj Nadar v. Abraham Nadachi . That was a case which arose
under Section 32 of the Indian Divorce Act on an application for restitution of
conjugal rights in which adultery was pleaded as a defence. The learned Judge
said that the word 'adultery' has not been defined in the Indian Divorce Act and
the ordinary dictionary meaning must be applied. The learned Judge proceeded to
observe:

     19. ...In Websters New English Dictionary, 1888, the following meaning is
given; "Violation of marriage bed; voluntary sexual intercourse of a married
person with one of the opposite sex, whether unmarried or married to another;
(the former case being technically designated single, the latter double
adultery)

     The same meaning is given in Fowler's Concise Oxford Dictionary:

     Voluntary sexual intercourse of married person with one of opposite sex
married (double adultery) or not (single adultery).

     No doubt, under Section 497, I.P.C. in order that a man can be guilty of
adultery, the actual definition of the offence runs thus : 'Whoever has sexual
intercourse with a person who is and whom he knows or has reason to believe to
be the wife of an other man, without the consent or connivance of that man, such
sexual intercourse not amounting to the offence of rape, is guilty of the
offence of adultery, and shall be punished with 'imprisonment of either
description for a term which may extend to five years or with fine or with both.
In such case, the wife shall not be punishable as an abettor'.

     Only one form of adultery has been made punishable by that section. It will
be noted that under that provision a married woman is not guilty of adultery
even as an abettor. If there is consent or connivance of the husband, then there
will be no offence of adultery. There is no reason why this specialised
definition of adultery should be extended to the interpretation of Section 32 of
the Indian Divorce Act. It may be noted that under that section, the husband may
obtain a decree of Judicial separation on the ground of adultery committed by
the wife, though as we have seen, under Section 497, I.P.C. the wife will not be
guilty of the offence of adultery under Section 497, I.P.C. This itself shows
that the narrow definition of adultery in Section 497, I.P.C., cannot be applied
to the interpretation of the terms of Section 22 of the Indian Divorce Act,
1869. Further, the principle underlying the relief of judicial separation on the
ground of adultery of the spouse, namely, violation of the marriage bed, makes
it immaterial whether the woman with whom the husband has sexual relationship is
a married woman or not. The offence under Section 497, I.P.C. is against the
husband with whose wife another man has committed adultery. But wider
considerations apply when a husband or wife seeks judicial separation or
dissolution of the marriage on the ground of adultery. In the latter case, it is
the violation of the marriage tie which is relevant.

   The learned Judge proceeded to refer to the judgment of the Calcutta High
Court in Gomes v. Gomes the Gantapalli

   Appalamma v. Gantapalli Yellayya I.L.R. 20 Mad. 470 We are entirely in
agreement with the view expressed by the learned single Judge in that case.

   10. In Christinamary v. Vijay Siddharaj , the same view has been expressed,
but without any discussion of the position in law. The Full Bench held that the
husband in that case contracted a marriage with another woman within the meaning
of Section 3(8) of the Indian Divorce Act when the former spouse of his was
alive and without her consent and knowledge and therefore he had committed an
act which entitled her to present a petition for dissolution of marriage under
Section 10 of the Divorce Act. Though there is no discussion of the question, it
is clear from the judgment that the Full Bench proceeded on the footing that the
definition of 'adultery' as found in the Indian Penal Code, would not apply to a
proceeding under the Indian Divorce Act.

   11. Applying the above principles of law, we find that once it is approved
beyond doubt that the husband has married another woman and is continuously
living with her, the husband is guilty of bigamy with adultery. There is no
evidence to the contra. Husband has not chosen to cross-examine the wife on her
deposition. The view taken by the District Judge that the wife is entitled to a
decree of divorce is fully justified and we are upholding the same. Hence, the
decree passed by the District Judge is confirmed.