Kalyanam Narasayya vs Kalyanam Seetaramma on 2 March, 1960

    Kalyanam Narasayya vs Kalyanam Seetaramma on 2/3/1960

JUDGMENT

   Chandha Reddy, C.J.

   1. This is an appeal under Clause 15 of the Letters Patent against the order
of our learned brother, Manoher Pershad, J. in C. M. P. 354 of 1953.

   2. The appellant sought dissolution of his marriage with the respondent under
Section 5(b) of the Madras Hindu (Bigamy Prevention and Divorce) Act, (Act VI of
1949) in the court of the Subordinate Judge, Tenali.

   3. A few facts material for the purpose of this enquiry may be set out. The
appellant was married to the respondent in or about the year 1944 and they lived
together for some time amicably. Later on, he found the respondent misconducting
herself and he chastised her on one or two occasions. It is alleged that having
fallen into bad ways, the respondent did not like to continue to live with her
husband and one day when he was away from the house, she bolted away to her
parental home taking with her all the jewels and also some cash, On returning
home he learnt that she had gone to her parents' house.

   Thereupon, he wrote a letter to her brother, one Curuvaiah (Ex. A-1)
complaining that the respondent was leading an immoral life and that she left
his house in his absence carrying away the jewels and some cash. He added that
the brother should take care of the jewels and the money as otherwise she was
likely to dissipate them. A reply was sent by her brother (marked as Ex. A-3)
denying the allegation of unchastity attributed to his sister and stating that
she had obtained the permission of her husband before coming to his house.

   This evoked a rejoinder from the appellant, who refuted the allegation
regarding the permission said to have been accorded to the respondent. The
charge of immorality was reiterated in this rejoinder. There does not seem to
have been any further cor-respondence between the parties. Coming to know that
the respondent continued to lead an adulterous life and was pregnaint, the
appellant filed the petition which has given rise to this appeal on 15-10-1951.

   4. He also filed an application in the Sub Court for getting the respondent
examined by a lady doctor. The request was complied with and she was examined by
the local) doctor and the examination disclosed that she was nine months
pregnant. She gave birth to a female child in the beginning of November 1951, It
may be stated that the medical examination took place on 28-10-1951.

   5. The petition was opposed by the respondent on the ground that she was not
leading an unchaste life and that the child was en ventre sa mere before she
went to her brother's house.

   6. In support of their respective cases, the parries led oral evidence. The
appellant stuck to his case that the respondent was guilty of immoral conduct,
that she was having promiscuous intercourse with a number of people, that the
child was not born to him and that the conception took place after she left him.
He was supported in this behalf by P. Ws. 2 and 3, who stated that they saw the
respondent in the company of two paramours, once in the house of the appellant
petitioner himself and again in a kandhichenu.

   7. On the other hand, the case of the respondent as put forward in the oral
evidence was that after she left her husband, some time in October 1950 the
elders of the village, like R. Ws. 2 and 3, effected a reconciliation between
them, took her and left her in the appellant's house and that it was only when
she was seven months pregnant that she went back to her parents' house.

   8. The Subordinate Judge dismissed the petition in the view that the case of
the appellant that his wife was leading an immoral life and that the latter was
not carrying at the time she left his house was not made out. He relied mainly
on the statement made by the appellant in the course of his cross-examination
that his wife left his house a day before the filing of the petition and a week
before she was examined by the doctor. The learned Subordinate Judge had not
taken into account the contents of the counter filed by her and of the plaint in
the suit for maintenance.

   Ho had completely ignored them. He ought to have tested the oral evidence in
the case in the light of these two documents and the result of the medical
examination. The surmise of the trial Court that it was with a view to evade
payment! of maintenance is baseless as could be seen from his present conduct.
The Subordinate Judge had also not paid sufficient attention to the attitude oi
the respondent as disclosed in Ex. A-3.

   9. On appeal, our learned brother, Manohar Per-shad, J. concurred! in the
opinion of the trial court. Here again, it is the statement of the appellant
mentioned above that was responsible for the result of the appeal. Aggrieved by
this decision the husband has brought this Letters Patent appeal.

   10. The sole question for determination in this appeal is whether the
allegations in the petition have been made out by the appellant. Indisputably,
the burden is very heavy on a person, who seeks to get a dissolution of his
marriage on the ground that his wife is leading the life of a prostitute, to
establish it by cogent and unimpeachable evidence. At the same time, it should
be borne in mind that it is not possible for any person to prove by direct
evidence that his wife is having promiscuous intercourse with a number of
persons and the Court is entitled to have regard to strong and cogent
circumstantial evidence,

   11. In considering this point, we shall first advert to the pleadings in the
case. As we have already stated, the case of the appellant was that even while
the respondent was living in his house she was leading an adulterous life and
that the appellant reprimanded her when he found her once in the company of a
paramour and was keeping a strict watch on her way of living. This was found
rather irksome to the respondent and, therefore, she suddenly left his house
when he was away in the fields. On returning home and finding that she had gone
away, the appellant wrote a letter to her brother complaining about her conduct
and alleging that she had run away with the jewels on her person and money
belonging to him. It was further recited in the petition that on enquiry he
learnt that she was carrying on the life of a prostitute and was in an advanced
state of pregnancy.

   12. This was countered by the respondent by pleading that by the time she had
to leave the appellant's house for the reason that she was being ill-treated by
her husband at the instigation of his brothers she had 'passed the month and
conceived and, knowing that, the appellant rushed with a petition with frivolous
allegations. Reference is also made in the counter to her getting a reply notice
issued to the appellant on 6-10-1950 with full details of the circumstances and
the jewels that the appellant had taken.

   13. This counter makes it abundantly clear that the respondent left the house
of the appellant on the 30th September 1950, but at that time she wad pregnant.
This is opposed to the present case which is already referred to. Evidently, the
present ver-rion was invented to fit in with the medical exarnination. That
examination revealed that on 28-10-1951 she was nine months pregnant. If that
were so, she could not have conceived in September 1950. The longest period of
gestation is only 330 days and there can be no interval of nearly fourteen
months between conception and the birth of a child. It is to get over this
difficulty that a change of front was made in the oral evidence of the
respondent's witnesses.

   14. Having regard to the recitals in the counter, it is difficult to believe
the story set up in the oral evidence. Her present version is also destroyed by
the averments in the plaint in O. S. No, 286 of 1952 (on the file of the
District Munsif's Court, Tenali). The relevant recitals are as follows:

     "Subsequently, when the petitioner (plaintiff) became pregnant, the
respondent (defendant) at the evil advice of his elder brother beat and abused
the petitioner (plaintiff) and was making attempt to administer poison to her,
whereupon she bad to leave the house. As soon as she came out, the petitioner
(plaintiff) had caused even a notice to be issued on 6-10-1950 with full
particulars thereof. Therefore, this suit has been filed for making proper
provision in respect of the petitioner's (plaintiff's) maintenance and
residence."

   It is also pertinent to notice that the cause of action for the suit is
alleged to have arisen on 6-10-1950 when the notice was issued. Significantly
enough, there is no reference at all in the plaint to the respondent having come
back to her husband after having left his home at the end of September 1950. On
the other hand, the specific ease of the respondent was that she had left her
husband's home before the issue of notice of Ex. A-3 and that she was then
pregnant. It is also noteworthy that maintenance was claimed from 6-10-1951)
which could not have been the case had she come hack to her husband and lived
with hint for some months.

   These documents are incompatible with the present version of the respondent
that she returned to her husband sometime after October 1950 and was with him
till she was seven months pregnant. On the other hand, read in conjunction with
the result of the medical examination, they firmly establish the case of the
appellant. It is abundantly clear from these two documents and the medical
examination that she had not come back to her husband after October 1950 and
that the conception took place long after she deserted him.

   15. There is another circumstance which has a material bearing on this
enquiry. Ex. A-3 docs not reveal any inclination on the part of the respondent
to return to her husband. She only wanted that a deed ef maintenance should be
executed in her favour. It is to be noted that in Ex. A-1 the appellant said
that be was considering whether it was possible for him to live with her after
what she had done. In reply to this, one would expect her to show her
willingness to go back to him. This renders the defence of the respondent that
shortly after she left her husband's house a, reconciliation took place and she
was taken to the appellant's house by some mediators highly improbable.

   16. In this state of affairs, could the statement of the appellant which has
been referred to above lend any countenance to support the case o the
respondent? In our opinion, the so-called ad mission was a mere slip. This is
not also consistent with the respondent's case. It is nobody's case that the
respondent left the house of the appellant on 14-10-1951. Nor is it consistent
with, the other part of the statement that she left his house, a week before her
medical examination, which took place on 28-10-1951. The two parts of the
statement are irreconcilable for the reason already mentioned above, namely,
that the petition was filed on 15-10-1951 and the medical examination was
conducted on 28-10 1951.

   That apart, the present case of the respondenl is that she left her husband's
house when she was six or seven months pregnant, which should be somewhere in
July or August, while the medical examination took place on 28-10-1951.
Therefore, this does not support her case either. We are told by Sri Ramanarasu,
counsel for the appellant, that when the appellant was questioned in cross-
examination whether it was not a day before he filed the application that she
left life house and a week before the medical examination, without realising the
signi-ficance of it, he said 'yes' That seems to accord with probabilities. No
doubt, this was not clarified in the re-examination, but, in our opinion, that
should not make much difference so far as the case is concerned.

   17. That there is not much substance in the case of the respondent could also
be gathered from the evidence of R. W. 3 who said:

     "It may be about two years before she came with pregnancy we took and left
her in the house of the petitioner";

   which is not the case of the respondent. Moreover, as we have already stated,
P. Ws. 2 and 3 have deposed to the respondent being found in the company of
persons whose names are given by the appellant and who are described as her
paramours. There are no reasonable grounds to disbelieve their evidence. The
fact that p. W. 2 did not know whether the respondent was carrying when she went
away could not belittle bis evidence as was done by the trial court. He is not
expected to know this, unless it he an advanced pregnancy. It must be mentioned
that the opinion of our learned brother was founded mainly on the so-called
admission of the appellant.

   In our opinion, this cannot form the basis of judgment against the appellant
for the reasons mentioned above. The averments both in the counter and in the
plaint in O. S. No. 286 of 1952 read in the light of the medical examination
substantiate the case of the appellant and leave no room for doubt regarding the
unchastity of the respondent. In this connection, it should also be remembered
that it is not the case of the respondent that during her stay with her parents
her husband visited her or that he had any access to her. That being the
position, the conclusion is inescapab'e that the child was not born to the
appellant. Adultery by a wife may be proved by the birth of child to her of
which her husband could not be the father (See Latey on Divorce (1952 Edition)
page 302).

   18. This leads us to the question as to whether these facts are sufficient to
sustain a petition under Section 5 of Madras Act VI of 1949. It is contended by
Srimathi Amareswari, counsel for the respondent, that a solitary instance of
adultery could not justify the granting of a decree for dissolution of marriage
and that it should be established that the respondent took to prostitution. The
above narration of facts clearly establishes that it is not a mere case of a
single lapse but that the child born was not to the appellant but to someone
else.

   In our opinion, this is sufficient to maintain a petition under Section

   5. It is not necessary that it should be established that she was a common
prostitute or a public prostitute. The language employed in Section 5(1)(b) of
the Act is 'leading the life of a prostitute'. That does not connote that the
wife is a public prostitute. In our opinion, it is sufficient if she is a whore
having indiscriminate intercourse with a number of people to satisfy her lust.

   19. In this connection, we may refer to Narasamma v. Dharmaraju, 1955-1 Andh
WR 584 which contains an elaborate discussion on this subject. Subba Rao C. J.
(as he then was) considered this question at some length and reached the
conclusions that the conditions laid down in Section 5(1)(b) were satisfied if
it was established that the wife was having promiscuous intercourse with
different persons. In our considered judgment, if it is proved that the wife was
having intercourse indiscriminately with different persons to satisfy her
passion and not to make money, it would amount to 'leading the life of a
prostitute' within the ambit of Section 5(1)(b) of that Act.

   20. We may here advert to the following passage in the decision Emperor v.
Lalya Bapu, AIR 1929 Bom 266 extracted by the learned Judge in 1955-1 Andh WR
584:

     "The idea underlying prostitution is that a woman should surrender her body
for a monetary consideration to some one who is not in law entitled to have
sexual intercourse with her. The position of a mistress is not necessarily that
of a prostitute. The relationship is of a more permanent nature than a casual
relationship implied in prostitution. Having a stray paramour would not in our
opinion constitute a woman a prostitute. Mr. Barberkar has also relied upon the
distinction between a common prostitute and an ordinary prostitute. According to
his contention, an ordinary prostitute is one who is available to any man who
pays a price for her virtue. We do not agree that such a distinction is
contemplated by Bombay Act XI of 1923. The matter, in our opinion, appears to
rest more on degree than on kind."

   These remarks afford us some assistance in gathering the applitude of the
sub-section. The law, if we may sav so with respect, was correctly stated in
1955-1 Andh WR 584. We are in entire agreement with the learned Judge that the
word 'prostitute' used in the section is in the sense of a where rather than in
the sense of professional prostitute. We are persuaded that the requisites of
Section 5(1)(b) have been satisfied in this case and that the appellant is
entitled to a decree for dissolution of his marriage with the respondent.

   21. We are glad that irrespective of the result of this appeal, the appellant
has agreed to pay maintenance to the respondent at eight bags of paddy per year
and to give a vacant site of an extent of two cents on which a thatched shed
could be put up to the respondent for her life with the vested reminder to her
child.

   22. In the result, the appeal is allowed. But, we direct the parties to bear
their own costs throughout.