Samraj Nadar vs Abraham Nadachi on 10 February, 1969

    Samraj Nadar vs Abraham Nadachi on 10/2/1969

JUDGMENT

   Venkataraman, J.

   1. This is an appeal by a Christian husband against the order dated 3-2-1965
of the learned District Judge, Kanyakumari dismissing his petition O. P. No. 41
of 1964 filed under Section 32 of the Indian Divorce Act, 1869, for restitution
of conjugal rights. The appellant and the respondent Abraham Nadachi were
married according to the Christian rites in 5956. The petition itself starts by
saying that there was an estrangement between the parties. As a result thereof,
the wife filed M. C. No. 31 of 1961 before a Magistrate under Section 488 of the
Criminal P.C. and obtained an order for maintenance of Rs. 25/- per month. The
date of this order appears to be 2-3-1962. The husband, for his part, filed O.
P. No. 44 of 1962 for restitution of conjugal rights in the Court of the
District Judge Kanyakumari. The appellant however, did not press that petition
and an endorsement was made by him on 28-3-1963 to the following effect. "It is
unnecessary to proceed with the petition." The wife and her counsel made an
endorsement "I agree". That petition was accordingly dismissed. (After
discussing the evidence in Paras 2 to 17 his Lordship proceeded).

   18. It is thus abundantly clear that the specific case of the husband that
his wife rejoined him on 25-2-1963, that the petition was dismissed on 28-3-1963
because of that circumstance and that she left the house abruptly on 22-8-1963,
is false. It is also clear that another woman by name Bhai is living with him in
his house. Learned counsel for the appellant, however, argues that even on these
facts the appellant is entitled, as a matter of right, to restitution of
conjugal rights. The argument is that under Section 33 of the Indian Divorce Act
nothing shall be pleaded in answer to a petition for restitution of conjugal
rights which would not be ground for a suit for judicial separation or for a
decree of nullity of marriage Section 22 lays down the grounds for judicial
separation, namely, adultery, cruelty, or desertion without reasonable excuse
for two years or upwards. It is urged that these elements have not been proved.
The grounds for nullity of marriage are set out in Sections 18 and 19 of the
Act. But the facts proved would not bring the case within those provisions.

   19. The argument is, however, untenable, because in the first place, adultery
on the part of the husband has been established, because it has been proved that
he has been living with Bhai and having continuous sexual intercourse with her.
There is no proof that Bhai is a married woman. But, for the purpose of the
Indian Divorce Act, 1869, it is not necessary that Bhai should be a married
woman in order to hold that the appellant is guilty of adultery. The word
'adultery' has not been denned in the Act, and, therefore, the ordinary
dictionary meaning must be applied. 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 10 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 woman must be a
married person. 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 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, 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 o 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.

   20. The above view has been taken by a Special Bench of three Judges of the
Calcutta High Court in Gomes v. Gomes, (SB).

   There, the wife filed a petition for dissolution of her marriage with her
husband (under Section 10 of the Indian Divorce Act, 1869) on the ground that he
was guilty of adultery coupled with cruelty, and adultery coupled with
desertion, without reasonable excuse, for two years or more. The trial Court
accepted her case, passed a decree and made a reference under Section 17 to the
High Court for confirmation of the decree. The learned Judges accepted the
findings. There was no difficulty so far as cruelty and desertion without
reasonable cause were concerned. So far as adultery was concerned, the evidence
showed that the husband had been keeping another house where he was living with
girls of bad repute. Actually on one occasion when those premises were visited,
a girl of bad repute was found lying on the bed with her body covered with a
sheet upto the throat. The learned Judges, therefore, accepted the case that the
husband was living with women of questionable character. There was no proof that
those persons were married. But it was held that it was immaterial and that the
husband was guilty of adultery for the purpose of the Indian Divorce Act. It was
pointed out that the narrower definition in Section 497, I. P.C., could not be
applied to the Indian Divorce Act because the purposes of the two enactments
were entirely different. The learned Judges observed that under Section 7 of the
Act the Court shall follow the principles and rules followed by the Court for
Divorce and Matrimonial Causes in England. They quoted the, definitions from
Halsbury's Laws of England, Murray's Oxford Dictionary and the decision in Abson
v. Abson, 1952 P 55 = (1952) 1 All ER 370. In Halsbury Volume 12, page "235 in
paragraph 444 under the heading "Meaning of adultery", it is stated:

     "For the purposes of relief in the matrimonial jurisdiction adultery means
consensual sexual intercourse during the subsistence of the marriage between one
spouse and a person of the opposite sex not the other spouse."

   It is not stated anywhere there that the other person should be married. . In
Latley on Divorce 14th edition (1952) at page 74 it is stated:

     "In the Divorce Court, adultery means willing sexual intercourse between a
husband or wife and one of the opposite sex while the marriage subsists." I have
already quoted the definition in Murray's Oxford Dictionary. The Judges also
quoted from Tomlins Law Dictionary:

     "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 or distinguish it from the other which is double".

   Stroud's Judicial Dictionary defines "adultery".

     "The offence of incontinence by married persons".

   It is not stated as a further requisite that the other person should be
married.

   21. In Rayden on Divorce (10th edition) in paragraph 107 at page 172 it is
stated:

     "For purposes of relief in the Divorce Division, adultery may be defined as
consensual sexual intercourse between a married person and a person of the
opposite sex, not the other spouse, during the subsistence of the marriage."

   It is not stated that the other person should be a married person. Indeed, by
necessary implication of the discussion in what are called "Hotel Cases" and
"Brothel cases" (paragraphs 116 and 117) at pages 186 and 187 it is dear that
the other person need not be married. Thus at bage 186 under the heading "Hotel
cases" it is stated:

     "Where the only evidence of adultery is that the respondent stayed at an
hotel or boarding house with a woman, of whom nothing further is known, the
Court views the case with some suspicion. The Court must be satisfied that the
true case is before it, not a mere cover or a sham, nor putting on an act to
provide the petitioner with evidence. There is, therefore, need in some cases
for the petitioner to prove a background of an adulterous association; and,
where no such background is proved, the Court is not always prepared to make a
finding of adultery where a hotel bill is produced and a witness from the hotel
is called to say that the respondent and a person of the opposite sex were in a
bedroom together. There should be proof of disposition as well as of opportunity
for committing adultery. If the name or identity of the woman is not known to
the proposed petitioner, she should, before filing a petition request the
proposed respondent to furnish it. But if the evidence of adultery is otherwise
conclusive, the Court will grant relief. Notwithstanding that nothing is known
of the woman's name or Identity."

   Similarly in paragraph 117 under the heading "Visiting a brothel" it is
stated:

     "It has been said that the fact of a woman going to a brothel with a man
furnishes conclusive proof of her adultery. Although the fact of a married man
doing so may not raise an irrebuttable presumption against him, still the onus
on him, would scarcely be discharged by the denial of himself and of a woman,
with whom he was alone."

   22. In the Calcutta decision cited above the learned Judges further pointed
out that Section 46 of the Indian Divorce Act says that the forms set forth in
the schedule to the Act might be used, and form No. 5, which may be used by the
wife for judicial separation on the ground of her husband's adultery, sets out
for instance in paragraph 4 that on divers occasions in the months of October,
November and December her husband committed adultery with a certain woman, who
was then living in the service of her husband at their residence. The wife is
not required to state that the other woman was married. Similarly, it is pointed
out that incestuous adultery is a ground for dissolution under Section 10 of the
Act, and the definition of "incestuous adultery" in Section 3(6) is "adultery
committed by a husband with a woman with whom, if his wife were dead, he could
not lawfully contract marriage by reason of her being within the prohibited
degrees of consanguinity, whether natural or legal, or affinity". Thus, the only
requisite is that the woman falls within the prohibited degree and it is not
necessary that the adultery must be committed with a married woman.

   23. The learned Judges of the Calcutta High Court also followed a decision of
a Full Bench of this Court in Gantapalli Appalamma v. Gantapalli Yellayya,
(1897) ILR 20 Mad 470. It was a case which arose under the provisions of Section
488 of the Criminal P.C., as it then stood, namely, that a Magistrate may make
an order for maintenance in favour of the wife, even though the husband offers
to maintain his wife on condition of her living with him, if the Magistrate is
satisfied that the husband is living in adultery. In one case, the adultery was
alleged to have been committed with a widow, and in the other case with a
concubine who had lived with the husband for many years. The Magistrate ordered
maintenance in each of those cases. The Sessions Judge made a reference to the
High Court on the ground that the adultery alleged was not within the definition
of the offence of adultery in the Indian Penal Code and referred to Section 4 of
the Criminal P.C. which says at the end that all words and expressions used
herein, and defined in the Indian Penal Code, and not hereinbefore defined,
shall be deemed to have the meanings respectively attributed to them by that
Code. The Full Bench held that the Magistrate was right and that the word
"adultery" as used in Section 488, Criminal P.C., should not be interpreted in
the narrow manner indicated in Section 497 of the Indian Penal Code. With
reference to the definition in Section 4 of Criminal P.C., they point out that
the opening words state "unless a different intention appears from the subject
or context" and that the context of Section 488, Criminal P.C. itself clearly
showed that the strict definition of Section 497, I. P.C., would not apply to
Section 488, Criminal P.C. Subramania Ayyar, J., observed:

     "What difference does it make to the wife whom the husband has neglected or
refused to maintain, whether the woman with whom he is living in adultery is a
married woman or not and, if the woman be married, whether the woman's husband
connives at the adultery or not. So far as the wife is concerned her grievance
is all the same. Therefore while in Section 497; Indian Penal Code, adultery of
one specific description only is dealt with, it is clear that in Section 488 of
the Criminal Procedure Code adultery is used in the wider and ordinary sense of
voluntary sexual connection between either of the parties to the marriage and
some one, married or single, of the opposite sex other than the offender's own
spouse......

     Now looking to the- context, a different intention cannot but be inferred,
considering that the offence of adultery under Section 497 of the Indian Penal
Code, as already observed, is one against the husband, whereas under Section 488
of the Criminal Procedure Code, the term includes cases where the wrong done is
to the wife."

   Similar observations are made by the other Judges, Benson J,, for instance,
observed:

     "The "adultery" there contemplated is, I think, adultery in the popular
sense of the term, viz., a breach of the matrimonial tie by either party."

   Abson v. Abson, 1952 P 55 = 1952-1 All ER 370, referred to by the Judges of
the Calcutta High Court, was a case where the wife had obtained a decree for
divorce, which was made absolute in 1948 on the ground of desertion by the
husband. She was receiving maintenance from the husband. In 1951, the husband
applied for the discharge of the maintenance order on the grounds that the wife
had committed adultery with a, married man Rayner. The application was under
Section 7 of the Summary Jurisdiction (Married Woman) Act, 1895. The wife
contested the application on the ground Inter alia that after the divorce she
was no longer a married woman and that, therefore, the Act would not apply. The
argument was rejected. What is important for us is that it was recognised that
in the ordinary Divorce Court where relief of judicial separation or divorce is
sought on the ground of adultery by the other spouse, it does not matter in the
least whether the third party named as the adulterer or adulteress is or is not
married. Learned counsel for the wife himself conceded that that was the
position in the ordinary Divorce Court where judicial separation or divorce is
sought, but contended that the position was different under Section 7 of the
Summary Jurisdiction (Married Woman) Act, 1895.

   24. For all these reasons. I hold that by continuous sexual association with
the woman Bhai keeping her in his house, the appellant has been guilty of
"adultery" for the purpose of judicial separation under Section 22 of the Act
and that consequently that is a valid defence for the wife under Section 23 to
his application for restitution "of conjugal rights.

   25. Even if there be any doubt on the above point, the appellant is bound to
fail because of the wording of Section 32 itself. That section says:

     "When either the husband or the wife has, without reasonable excuse
withdrawn from the society of the other, either wife or husband may apply by
petition to the District Court or the High Court, for restitution of conjugal
rights, and the Court, on being satisfied of the truth of the statements made -
in such petition, and that there is no legal ground why the application should
not be granted, may decree restitution of conjugal rights accordingly."

   Under this section, it is necessary for the husband, 'who has come before the
Court seeking the relief of restitution of conjugal rights, to prove that the
wife has without reasonable excuse withdrawn from his society. The burden is on
him to show the absence of reasonable excuse on the part of the wife for her
withdrawal from his society. Now it is obvious that when the husband is living
with another woman Bhai having sexual connection with her and even having
children by her, it is a reasonable excuse for his wife to withdraw from him.
That is the view taken in several decisions both in India and in England of
Sections 32 and 33 of the Indian Divorce Act and the provisions of Section 9 of
the Hindu Marriage Act, 1955, which runs thus:

     "9 (1) When either the husband or the wife has, without reasonable excuse,
withdrawn from the society of the other, the aggrieved party may apply, by
petition to the District Court, for restitution of conjugal rights and the
Court, on being satisfied of the truth of the statements made in such petition
and that there is no legal ground why the application should not be granted, may
decree restitution of conjugal rights accordingly.

     (2) Nothing shall be pleaded in answer to a petition for restitution of
conjugal rights which shall not be a ground for judicial separation or for
nullity of marriage or for divorce."

   The decisions have all been summarised in the commentary of Chaudhari on "The
Hindu Marriage Act, 1955" (Third Edition) (Eastern Law Time) under Notes 6 and
12 of Section 9. Some of them ares Rebarani Sen v. Ashit Sen, ; Shakuntalabai v.
Baburao,

   ; Gurdev Kaur v. Sarwan Singh, ;

   Tulsa Pannalal v. Pannalal Natha, and Putual Devi v. Gopi Mandal, . It is
pointed out at page 116:

     "Where the behaviour of the petitioner had given the respondent a
reasonable excuse for withdrawing from the society of the petitioner, the
petitioner fails to establish prime fade case. In such- a case the petition
shall fail not because of any defence set up by the respondent, but It cannot
succeed on account of the non-fulfilment of one of the essential ingredients of
Sub-section (1). Thus, it will be seen that the 'reasonable excuse' need, not be
identical with the 'defences' permitted under Sub-section (2). English case law
leaves no doubt that there may be 'a reasonable excuse' which is not one of the
grounds mentioned in Sub-section (2) and may be something less than a
justification for- judicial separation or annulment or divorce but may still
justify the Court in refusing the prayer for restitution of conjugal rights.
Timmins v. Timmins. (1953) 2 All ER 187."

   I think this is the correct statement of the law; To the same effect is the
commentary in "Rayden on Divorce" at pages 205 and 227,' where it is pointed
out: that for grave and weighty conduct on the part of the husband, the wife may
be justified in withdrawing from his society even though she may fail to
establish that the husband has committed a matrimonial offence. Several cases
are quoted including (1953) 2 All ER

   187. It is not necessary to discuss the cases because it is clear that there
cannot be a greater justification for the wife withdrawing from the society of
her husband than the presence of another woman in the house of the husband with
whom the husband has been having sexual connection continuously.

   26. In the result, the appeal is dismissed, but without costs.

   27. I must record that considerable assistance was rendered to the Court by
Sri V. Janakiraman, learned counsel appearing for the appellant.