Adelaide Mande Tobias vs William Albert Tobias on 8 March, 1967

    Adelaide Mande Tobias vs William Albert Tobias on 8/3/1967

ORDER

   P.B. Mukharji, J.

   1. This is a wife's petition for divorce on the ground of "adultery coupled
with desertion without reasonable excuse for 2 years or upwards".

   2. The wife Adelaide Mande Tobias states in the petition the following facts.
She was married on May 15. 1935 to the Respondent William Albert Tobias at the
Church of the Secred Heart of No. 3 Dha-ramtala Street, Calcutta within the
jurisdiction of this Court. The Marriage Certificate has been proved and marked
as Ext. A in this suit. Both the wife and the husband are domiciled In India and
are Roman Catholic Christians.

   3. After marriage they lived and cohabited at 25 Dharamtalla Street and also
at 9 Crooked Lane, Calcutta, both within the jurisdiction of this Court. There
are three issues of the marriage now living: one is John Andrey Tobias, daughter
born on March 20, 1936; Daphne Tobias, daughter born on August 26, 1938; and
Harold Tobias, son born on April 26, 1940. It was immediately after the birth of
the son that the respondent-husband is alleged to have deserted the petitioner.
The matrimonial home was of a very short duration, lasting barely five years.

   4. The petitioner's case is that the husband's desertion commenced in 1940.
Therefore, this desertion has continued for about 26 years before the
presentation of his petition. It is said in the petition for divorce that in
June 1940, the husband left her and packed his bags and baggages and for ever
left the matrimonial home, then at 9 Crooker Lane, Calcutta, with the intention
of never again coming back to the petitioner for the purpose of cohabitation
with her. It is alleged in the petition that he was ever since remained separate
and that the husband has refused all the requests of the petitioner to return to
her. She has supported this case by her evidence given in this Court.

   5. Apart from desertion, the other allegation of the wife made in paragraph 6
oi her petition is that the respondent ever since the desertion in 1940,
frequently committed adultery with various women of the town, whose names and
identity were unknown to the petitioner. This allegation makes it difficult for
the Court to find out why in such circumstances, where the husband not only
deserted the wife but also committed adultery for so many years with the women
of the town, that the wife was patient enough to take 26 long years to bring the
present proceedings for divorce. The question is: why did not she come much
earlier? This Court had throughout these proceedings a very anxious time to find
out a plausible answer to this question.

   6. The other allegation of adultery it made in para 7 of the petition which
states that on January 6, 1966 at 90-A, Dilkhusa Street, Calcutta the respondent
committed adultery with a woman of the town whose name and identity are unknown
to the petitioner. It is this incident of January 6, 1968 that the petitioner
has tried to prove by calling a private detective by the name of Joseph Okeeffe.
whom she had employed. I shall presently discuss that evidence along with the
evidence of the petitioner given In these proceedings.

   7. The necessary averment is made that she has not been accessory to or
connived at or condoned the said adultery alleged in the petition.

   8. Continuing with the account of facts in the petition for divorce it is
alleged that the respondent was employed by Jessop and Co. Ltd., at 63, Netaji
Subhash Road, Calcutta and to the best of the petitioner's belief was in receipt
of a monthly pension of Rs. 350 and is also possessed of other assets and other
properties assessed by the petitioner to be of the value of Rs. 8000. On that
basis and on that allegation there is also a claim for maintenance. Mr. Dutt,
learned counsel for the wife, has given up the claim for maintenance. The wife
in her evidence before the Court in answer to question 51 has also said that she
is not pressing her claim for maintenance. Therefore, it will not be necessary
to pursue this point of maintenance.

   9. In my long experience on the Bench I have never come across in this Court
nor do I remember to have read of any case or authority of other Courts of other
lands where a wife moved the Court after 26 years of desertion by her husband
where the allegation was as. It is in the present case, that the husband
committed adultery with women of the town ever since he deserted the wife 26
years ago.

   10. It is sometimes said that the devil knoweth not the mind of man. Equally
it should follow that the devil does not know the mind of a woman. Perhaps the
cynic of this age will say that even God does not know it either. What is
perhaps truer is that no man knows the mind of a woman. I am not thinking of
rare exceptions but most of the men who proudly proclaim to know the feminine
mind are either romantic or foolish. Besides, this court must necessarily suffer
from the handicap of the situation of a man having to judge a woman. It is all
the more difficult, specially in this case, because the wife gave evidence
before me in a manner which, I hold, was honest, frank, candid and impressive.
In coming to this conclusion, I hope T am not duped by am charm. She and her
demeanour in the witness box had little to recommend by looks and charms but
candour and long suffering were writ large on a very thin weather worn face. She
is now about 55 years of age with all her children grown up and settled. She did
not seek the divorce when perhaps she needed most, when she had youth and
passion to built another home She did not give me the impression that she was
seeking this divorce in the evening of her life at the age of 55 years for any
delayed fancy for remarriage. She did not give me the impression that she was of
that type. In fact, she did not say so in answer to the very pointed questions
from Court After a series of questions from this Court on this subject this is
what she finally answered in Qs. 33 and 34:

     "Q. 33. When you needed most you never sought for a divorce or maintenance?
That is so.

     Q. 34. Now that you do not need to bring up your children any more after 28
years, they are all grown up and settled, what is the point of seeking a
divorce?-- Just I do not know."

   11. The answers impressed me as coming from a person who was not hiding
anything from Court Nor was she trying by these answers to find an excuse to
provide some plausible reason for this divorce after lone 26 years of desertion
by her husband coupled with adultery. In that answer there was no resentment but
resignation.

   12. I put this very same question to Mr. Dutt, the learned counsel for the
petitioner and he said that the reason perhaps of seeking this divorce after so
many years was that she did not want to have any more the stigma of being known
as "Mrs. so and so" when the husband was charged with adultery. But that
submission of Mr. Dutt did not impress me. First, because that was not the case
made by the petitioner herself in her evidence. If she thought that there was a
stigma attaching to the name of Mrs. Tobias and it was to get rid of that name
that she wanted the divorce now after 26 years, then she could have said so in
evidence. But this is exactly what she did not say; and secondly, because if the
stigma was there then why carry the stigma for 26 years and not make an end of
it much earlier. I have come to the conclusion that this is not the reason for
this delay.

   13. In this situation the Court wanted to consider very carefully the factual
and the legal position; the fact how far adultery is proved and to test the
evidence of the petitioner by some' cross-examination; and secondly, to examine
arguments on the question of the long delay after desertion in presenting the
petition and how far such delay affects in law the present claim for divorce.
But the difficulty was that the suit was undefended and the Respondent husband
did not enter appearance.

   14. In the circumstances, the Court, therefore, requested Mrs. Monjula Bose
to act an Amicus Curiae to help the Court: first by cross-examining the evidence
given by the petitioner and the private detective Mr. Okeefee and secondly, by
arguing the points of law about desertion and delay, their effects on divorce
proceedings and on the standard of proof required for establishing adultery, for
they all involve significant and important points of law.

   15. Mrs. Bose accepted the Court's request to act as Amicus Curiae. She has
heen commendably thorough in analysing and cross-examining the evidence and
placing all the relevant law and authorities before the Court. Her cross-
examination has been brief, to the point and relevant. As Amicus Curiae she has
not taken any partisan attitude and has throughout acted according to the
highest traditions of the Bar of this Court. She Pointed out that the evidence
given by the petitioner was impressive and in particular the answer to q. no. 34
which I have quoted above. This is greatly obliged and deeply Indebted to Mrs.
Bose for the help given. The Court records its high appreciation of an admirable
tradition admirably discharged with great ability by Mrs. Bose.

   16. On the point of desertion the evidence is that of the wife petitioner. In
answer to question 18 asking her why the husband left her, she said "he just
went out and did not come. We had a misunderstanding and he packed his bag and
baggage and just left the house". In further answer to question 19 she said that
she did not do anything to cause him leave the home. It is also her evidence in
answer to question 18 that he did not at any time thereafter come back and live
with her. She has also said that she asked him to come back and live with her
but he did not do so. It is her evidence that he left very soon after the birth
of his son on the 26th April 1940. As the husband has not come to defend this
evidence therefore goes uncontradicted and unchallenged.

   17. On adultery there is the evidence of the wife as well as the evidence of
Mr. Joseph Okeeffe. Petitioner's evidence is that she employed this private
detective. In answer to questions 38 and 39 to the Court she said that she heard
something against her husband round about Christmas time in 1965. It is her
evidence that after her husband left her in 1940 the first time that she
complained against him and his character was in 1965, that is 25 years after
desertion. See her answers to questions 40 and 41. She relied on the report of
the detective who was supposed to have informed her that the husband was going
about with a woman. She gave the detective a photograph of her husband. This
photograph was secured by her daughter. It was distinctly put to her in cross-
examination by the counsel appearing as amicus curiae that since the husband's
desertion in 1940 and until the 6th January 1966 she did not know that the
husband committed adultery with a woman of the town. Her answer to question 67
is that before the 6th January 1966 she had no idea what the husband was doing
and what kind of life he was leading. She thus contradicted her allegations in
paragraph 6 of her petition that he had committed adultery since the desertion.
See also her specific answer to question 72. What she ultimately said in
question 74 is that "I would be hearing from different people -- I could not
believe it until I found out." She practically admits that the statement in
paragraph 6 of her petition is not correct and for this purpose see her answer
to questions 75 and 76. The evidence is that it was really the 6th January 1966
which is the crucial date on which she came to know that the husband committed
adultery with a woman of the town.

   18. On this solitary incident of the 6th January 1966 hangs the whole charge
of adultery in this case. The only evidence on this point is that of Joseph
Okeeffe, the private detective. He produced no diary of his detective work
although he has one. See his answers to questions 16-17. The gist of his
evidence is that in January 1966, presumably on the 6th day of January at about
7.30 in the evening, he followed in a taxi the respondent husband from his flat,
who in another taxi drove up to Park Street in Calcutta, right on to Chowringhee
and near Lloyds Branch of the National and Grindleys Bank. There he is supposed
to have seen the husband talking with some common women of the town (Q. 20). His
further evidence is that one of these women got into the cab and then the
husband and the woman drove back to the husband's flat. The detective followed
them up in a taxi and is supposed to have found out that they entered the
husband's flat. The detective loitered near about for 45 minutes to one hour
when the woman came out. The woman went to the tram depot and boarded a tram and
left. According to his evidence he immediately came and informed the petitioner
wife (Q 22). In cross-examination to Mrs. Bose, amicus curiae, this detective
witness said that his evidence that there was nobody in the flat of the husband
at the time when he entered there with the woman of the town and really based on
hearsay from people in the lorality or neighbours. But it is difficult to make
out what exactly this detective was trying to say on this point Mrs. Bose
brought the defect in cross-examination in answer to question 36 which is as
follows. "It may be there were other people as well? -- Could be possible -- he
went with this lady in the flat himselt" Then again in answer to question 38 in
cross-examination he says: "You have no personal knowledge whether she was alone
in that flat? -- No personal knowledge." On the point whether this detective
witness knew this woman to be a woman of the town, naturally the witness said
that he had no personal knowledge on that point but he saw that she was an
Indian lady. His evidence is that he used his plain eyes to judge that she was a
common woman of the town. It if the evidence of this detective witness that he
saw the husband only that day and there was no other occasion. He has also
admitted in answer to question 71 as follows: "You could not possibly say as to
whether who else was in the flat of Mr. Tobias? Yes." That is all the evidence
on adultery.

   19. Having analysed the evidence on desertion and adultery, it will now be
appropriate to examine first the arguments for and against desertion in this
case. Desertion is defined under Section 3(6) of the Indian Divorce Act as
implying "an abandonment against the wish of the person charging it." Leaving
the matrimonial home by consent or separate living by mutual consent, express or
tacit la not "desertion" within the meaning of this law. Any and every departure
from matrimonial home is not "desertion". It has to be an abandonment against
the wish of the person making the charge of desertion. Again desertion in order
to be a ground for divorce under the last clause of Section 10 of the Indian
Divorce Act must be desertion "without reasonable excuse". In other words, if
desertion is with a "reasonable excuse" it cannot be a ground of divorce under
that section.

   20. Mrs. Bose on the basis of the evidence above makes this criticism that
this desertion has not been proved in fact and law on the ground that the whole
case of the wife is that he left due to mere misunderstanding. That in her
submission is not enough to establish desertion in law and within the meaning of
Section 3(9) of the Indian Divorce Act read with the last clause of Section 10
thereof. While appreciating the force of her submission it is difficult for this
Court to accent it because the wife has definitely pledged her oath to say that
the husband not only left but when she had asked him to come back, he did not.
Reading the evidence as a whole on this point I have no doubt that the husband
left against the wish of the wife. That is abandonment against the wish of the
wife who is making the charge of desertion and therefore within the statutory
meaning and definition of desertion. The evidence also establishes in my view
there was no reasonable excuse for this desertion by the husband. I come to that
conclusion all the more readily because this evidence of desertion has not been
contradicted or challenged by the husband. I therefore hold that the wife has
proved desertion in fact and law in these proceedings.

   21. The next important point of law is what is the effect of delayed
presentation of this petition on the charge of desertion. The contention is that
delay does not defeat the charge of desertion. In Perry v. Perry, 1952 P. 203
the English Court of Appeal had occasion in recent times to discuss this law It
is said there that desertion as a ground for divorce differs from the other
statutory grounds of adultery and cruelty, in that the offence founding the
cause of action is not complete until the action is constituted. i.e. the
petition for divorce is presented. Indeed it is said there that the conception
of condonation either in strictness or by analogy has no application to the
continuing matrimonial offence of desertion as defined in Section 1(1)(b) of the
Matrimonial Causes Act, 1950. Desertion as a ground for divorce was not a part
of the traditional law of England appearing in its ecclesiastical and common law
as providing a foundation for a decree of separation. The reason for looking
into the English Law, which I would have liked to avoid is that Section 7 of the
Indian Divorce Act makes it necessary by expressly providing that subject to the
provisions con- tained in the Indian Divorce Act, the High Court shall in all
suits and proceedings here-under act and give relief on "principles and rules"
which in the opinion of the said Courts are as nearly as may be conformable to
the principles and rules on which the Court for Divorce and Matrimonial Causes
in England for the time being acts and gives relief. Reference to the English
law, and the principles and rules thereunder, therefore, to some extent is
unavoidable in the present context.

   22. The only remedy for desertion in old English Law was a suit for
restitution of conjugal life. It is in that context that Evershed M R. expressed
the view in 1952 P. 203 at p. 211. that desertion as a ground of divorce
differed from the statutory grounds of adultery and cruelty in one important
respect under the Matrimonial Causes Act 1937. The learned M. R. observes at
that page:

     "The offence founding the cause of action is not complete, is, (as if it
were) inchoate, until the action is constituted. If one spouse has committed
adultery or has treated the other with cruelty, the latter has an accrued right
to petition for divorce. He or she may at once repudiate the marriage and is no
longer bound to affirm it and reinstate the offending spouse. The deserted
spouse has no such right, no such election. If the deserting spouse genuinely
desires to return, his or her partner cannot refuse reinstatement. It is
moreover as Denning L. J. observed in Bartram v. Bartram, 1950 P 1 contrary to
public policy that the deserted spouse desiring a resumption of cohabitation and
bound to affirm the marriage should be embarrassed in efforts for
reconciliation. '

   23. It was therefore suggested in English law that that contention could not
properly be applicable to the offence of desertion prior to the presentation of
petition.

   24. Evershed M. R. points out in 1952 P. 203 at p. 212, that desertion
postulates both: (i) the factum of separation and (ii) the animus deserendi on
the part of the deserting spouse There can be no difficulty in accepting these
two basic postulates. What becomes difficult on the basis of this decision in
1952 P 203 is the proposition that seems to emerge, that sexual intercourse
between a deserted and a deserting spouse unaccompanied by the setting up of any
matrimonial home or by any intention to do so cannot end or interrupt the state
of desertion whether the deserter is the husband or the wife and whether or not
the intercourse leads to the birth of a child.

   25. It may be difficult in India to accept the full implication of that
proposition both in law and fact. Sexual intercourse between a husband and a
wife is one very cogent act to overcome those two very postulates viz. (a) the
factum of separation and (b) the animus deserendi. The view that such sexual
intercourse between the husband and wife can continue without the intention to
set up what is called the "matrimonial home" appears to be a refinement more
suited to legal dialecties than to common sense and domestic life, as usually
understood It is possible for a husband and wife to remain husband and wife,
happy and contented, without sexual intercourse. I do not say that such
instances are frequent but they are not rare on grounds of health, self-
restraint and particular notions and brands of morality and companionship. It is
equally possible for a de facto and de jure husband and wife to have sexual
intercourse and not to have a happy home, or the "matrimonial home", as the
English Court of Appeal would like to describe. I shall not enter into the
discussion of what is a "home". In a very old accepted Sanskrit tradition in
India the very modern idea is epitomised by a very famous and celebrated saying:
"Grihini Grihamuchayate" -- the wife is the home, --wherever the wife is, the
home is. There is no other matrimonial home in that sense of the term according
to the Indian law. It is not the building of bricks and mortars or the apartment
or the flat which is the "home".

   25a. This brings me to certain notions of a fastly changing human society in
the modern age, where the whole expression and notions of married life,
matrimonial home and matrimonial behaviour are acquiring new and strange
proportions and dimensions. Qualitatively and quantitatively matrimonial ideas,
like other ideas are changing. Being in a field of intimate conduct, these ideas
change slowly but change they do. Any one familiar with the Kinsey Report or
Judge Lindsay's report would see some of the symptoms of these changes in the
modern age. The English Court of Appeal also discusses some Australian cases and
the ratio of those cases quoted at p. 219 in 1952 Probate appears to indicate
that the desertion was not stopped or condoned by what is called "casual acts of
intercourse" on the ground that the matrimonial relationship has not thereby
been re-established. This meant a definite departure from some of the older
authorities. Evershed M. R. in 1952 P. 203 disapproved of the observation of
Lord Merriman P. in Viney v Viney, 1951 P 457 where the very definite opinion
and conclusion were expressed that an act of sexual intercourse by a husband
with his wife was absolutely conclusive (in the absence of fraud on her part')
of the fact that he had thereby reinstated her as his wife and that was so
although the express object of the husband's actions was to effect a
reconciliation. The significant observations of Lord Merriman P. were made at p.
465 of 1951 Probate, where the learned President of the Court stated them in the
following terms:

     "I venture to say that the judge misdirected himself because he ignored the
vital fact that in 1950 P. 1 there was lacking the essential element, which is
present in this case we are now deciding, that the husband petitioner had
voluntarily had sexual intercourse with his wife, and that Henderson v.
Henderson and Crellin, (1944) AC 49 decides that it is absolutely conclusive of
the fact that he has thereby reinstated her as his wife."

   26. The view of Lord Merriman P., which was disapproved in 1952 P. 203
appears in my judgment to be more consistent with the view that the Indian
courts would like to accept. I for one sitting here in this Court, in deciding
this case would prefer the view expressed by the English Courts in 1951 P 457
and 1944 AC 49 to the one suggested in 1952 P 203 on this particular point.

   27. No one for a moment can dispute the basic principle which was voiced in
the decision in 1950 P. 1 that is mere resumption of cohabitation perhaps casual
in nature, after desertion by one spouse, must necessarily and always mean
resuming a state where a matrimonial home is again set up and that invariably
involves a bilateral intention on the part of both spouses so to set up that
home. But the question is that this intention has got to be gathered by conduct.
The point is, if sexual intercourse is a conclusive conduct. It was said in 1951
P 457 that an act of sexual intercourse by husband with his wife was absolutely
conclusive, except of course in the case of fraud, of the fact that he has
thereby reinstated her as his wife and that was so although the express object
of the husband's action was to effect a reconciliation The question thereafter
is not one of principle any more, but whether the Court should accept the test
of sexual intercourse as a sufficient indication of the intention to resume
matrimonial status? To accept the view expressed in 1950 P 1 means that the
Court really will have no obvious guide to find out such an Intention. Intention
naturally is basically subjective, mental and phy-chological, but a Court of Law
has got to go by certain objective standard to find out that state of mind. I
should have thought that the sexual-intercourse was an act of such Intimacy and
objective standard that it should normally be conclusive proof of such Intention
unless there are other obvious facts which contradict it. Any other view would
really mean that the Court is taking up the position that a wife could be used
only as a mistress for the purpose of sexual Intercourse and that is to be
iustlfied at the altar of the problematic process of reconciliation which
appeared to be the main reason with Denning L. J. in 1950 P 1 at pp 6-7. As at
present advised I am unable to commit the Indian Courts to the view that Denning
L. J. expressed there. I do not regret my inability to treat sexual intercourse
in such circumstances as mere Inconclusive experiments at reconciliation. I am
all for reconciliation but not to the extent of considering the act of sexual
intercourse as an overture in the process of reconciliation. I would, therefore,
draw the curtain when the sexual intercourse is voluntary, even though it is
casual and hold it to be conclusive.

   28. It will be plain from the decisions already cited of the English Courts
on this point that the English Law is at present somewhat confusing and appears
to be in the melting pot. This perhaps is due to the fact that conception of
marriage and married life, relationship between husband and wife, the nature and
character of the matrimonial home are all undergoing a tremendous change,
ideological, sociological, emotional, psychological and behaviouristic. The
judicial opinions, therefore, are also naturally reflecting the inevitable
confusion that such change brings about, of which one more illustration is found
in the more recent decision of the English Court of Law in Pizey v. Pizev and
Stephenson, 1961 P. 101 where on the fact it was held that the desertion had
been terminated by the husband's course of conduct consisting of regular visits
to and intercourse with the wife (which also con-doned adultery), and was such
that the separation thereafter became consequential and it was held that the
husband had failed to discharge the onus on him of showing any subsequent
desertion by the wife, and therefore, his petition was dismissed.

   29. I am satisfied on the evidence in this case that there has been desertion
by the husband of the wife. I am also of the opinion that the unusual delay of
26 years in this case from the date of desertion in filing this petition by the
wife for divorce does not defeat in the facts of this case her right to claim
this relief. I hold that the reason for this delay by the wife in bringing the
proceedings, although not said at all in so many words, is plainly that she had
to bring up two daughters and a son during those years. As I could understand
from the net effect of her answers to the various questions put to her in
examination is that she did not think that until the children were brought up
and educated and settled it would be wise for her to have the divorce for very
often such an event affects their education and mental and moral upbringing. A
wife's reluctance to lose the status of a wife and become a divorcee during the
cru cial period of the education and bringing up of her children by the
unsuccessful marriage is understandably natural and explains the delay in this
case. That I think is the major inarticulate premise throughout the answers
given by the petitioner wife in these proceedings.

   30. It is not, therefore, necessary to subscribe to the view as at present
advised that no amount of delay can ever condone desertion and that the right
continuous Indefinitely till divorce proceedings are brought, the view expressed
in some of the cases discussed above, because I hold on the fact here that the
delay is explained and by a very good reason just stated by me. The general
question whether delay at all in any case can defeat the ground for desertion,
therefore, I do not answer because it is not necessary for the disposal of this
case. I shall only express the view that here again the Courts will be well
advised not to take any dogmatic view that no delay condones desertion for it is
just possible in an appropriate case the Court might consider that passivity or
long delay is proof that it was not desertion in law, but living separately by
consent, express or tacit. It will depend on the facts of the case under
consideration. At any rate I am unwilling to subscribe to any general
proposition or a general formula on this point.

   31. I come now to the petitioner's case of adultery against the husband.

   32. Mere desertion, however, is not a sufficient ground for divorce by wife
under Section 10 of the Indian Divorce Act. As already pointed out from the
section itself it has got to be adultery coupled with desertion without
reasonable excuse for two years or upwards. That is the language of the Statute.
Therefore, a wife can only succeed in obtaining a dissolution of her marriage if
she can prove in this case adultery coupled with desertion without reasonable
excuse for two years or upwards. Desertion per se will not be a ground for
dissolution under Section 10 of the Indian Divorce Act. Desertion per se,
however, may be a ground for judicial separation under Sections 22/23 of the
Indian Divorce Act.

   33. That was the view expressed about Section 10 of the Indian Divorce Act by
the Madras Full Bench in Siluvaimani Ammal v. Thangiah Nadar . Incidentally,
this Madras Full Bench decided that on the mere evidence that the husband was
keeping a woman it was impossible to return a finding of adultery on the part of
the husband. This aspect will be relevant later on when I consider how far
adultery has been proved in this case and what are the standards of proof in
adultery in matrimonial proceedings. Similar view on the construction of Section
10 was expressed by the Lahore decision in Glorious Jacob v. Mrs. Rosie Jacob,
AIR 1939 Lah 404. An old Calcutta decision also took the same view in Fowle v.
Fowle, (1879) ILR 4 Cal 260 The well-known English decisions on this point are
Wood v. Wood, (1888) 13 P D 22 and Lapington v. Lapington, (1888) 14 PD 21.

   34. Mrs. Bose appearing as Amicus curiae has contended with considerable
force and logic that the evidence in this case given both by the wife and the
private detective Mr Okeeffe is inadequate to establish adultery. Her main
criticism of this evidence is that it does not establish beyond doubt the
commission of the act of adultery by the husband. She develops her argument in
this way. The evidence of the wife that the husband has been going about with a
woman of the town was utter hearsay and that she never saw even any single
instance of such company kept by the husband although she and her husband were
in Calcutta all these twenty six years. The wife relies only on one solitary
instance which was reported to her by the private detective Mr. Okeeffe, whom
she employed after 26 years of description by her husband and who has also given
evidence in this case. Mrs. Bose submits that this evidence should be rejected
by the Court on the ground that it is unreliable and insufficient. Mrs. Bose
marshalls her argument on this point in different steps.

   35. To discover a woman to be a woman of the town on the 6th January in the
winter month of Calcutta from a distance by her dress and cosmetics is
criticised as an act of imagination and, not a credible fact. Woman's dress in
the modern age has become literally and metaphorically far too slippery, not
merely to the touch but also as a dependable basis for judging feminine
character. It is difficult to judge by dress alone a modern woman. Judicially it
will be indeed riskv and too venturesome to come to so serious a conclusion by
dress alone, whether a person is a woman of the town or a woman of the home or
society. The Victorian opacity of the feminine dress has yielded place to the
modern pellucid transparency, whose diaphanous and scanty character, either
"topless" or "topful", has come in as a screaming protest against the heavy
overclothing of the previous age when the puritanic anxiety was to keep
invisible the female body then regarded as an unholy instrument of sin and
temptation. If wise Shakespeare was right in saying "for the apparel oft
proclaims the man", then it is doubtful whether in this modern age the apparel
proclaims the woman. Carlyle, if alive today, would have revised his "Sartor
Resartus" to express the modern philosophy of clothes to say that the feminine
dress today neither clothes nor covers, but exaggerates protuberances,
accentuates angularaties and deepens the depressions to produce the new
sartorial anatomy, radically different from the physiological anatomy of the
orthodox medical science. The crisis of female dress does not stand alone but
combines with the crisis of colours and the new cosmetics of this age. It is
equally difficult to distinguish a woman of the town by cosmetics alone in this
new age of science and nuclear sophistication, when the natural beauty of a
female face is so universally replaced by the plastic glim-mer of modern
cosmetics wearing its new message of chemistry of colours and riot of hues, on
the lips, the cheeks, the eye-laahes tnd the nails and displaying a formidable
combination of variety of shades of tints, taints and stains, helping to creat
pneumatic blondes and parched brunettes who produce optical illusion and
psychopathic hallucinations. Cosmetics therefore are not absolutely safe test to
distinguish the woman of easy virtues from the woman of difficult virtues.
Elusive as all external tests of modern dress and cosmetics are, yet an unerring
human sight and the remnant of a basic human instinct can still, I believe,
judge from a type of meretricious display of dress and cosmetics and detect the
demimonde.

   36. Mrs. Bose's next attack on this evidence is that this going into a flat
with a woman when there is no authentic evidence, who was inside the flat,
cannot establish adultery- This Court, therefore, will have to judge in this
case what are the standards of proof for establishing adultery in a Court of law
and whether such standards have been satisfied.

   37. Mr Dutt, learned counsel for the wife-petitioner has heavily relied on
the decision of the English Court of Appeal in Gower v. Gower, reported in
1950-1 All ER 804 and particularly on the observations of Denning L. J. at pp.
805-806 where the learned Lord Justice observed:

     "I would issue a caveat about the standard of proof. I do not think that
this Court is irrevocably committed to the view that a charge of adultery must
be regarded as a criminal charge, to be proved beyond all reasonable doubt. I
can well understand the iudgp applying that standard because of what was said in
Ginesi v. Ginesi, 1948 P. 179 = 1948-1 All ER 373 but I would like to point out
several things in regard to that case. First, it was not fully argued, because
counsel conceded that the standard of proof of adultery was the same as in a
criminal case. Secondly, the decision of the House of Lords in Mordaunt v.
Moncreiffe, (1874) 30 LT 649 was not cited. It was there decided that a suit for
divorce for adultery is a civil and not a criminal matter and that the analogies
and precedents of criminal law have no authority in the divorce courts. This
strikes at the root of 1948 P. 179 which appears to have proceeded on the
supported criminal or quasi-criminal character of adultery. Thirdly, no
reference was made to the Supreme Court of Judicature (Consolidation) Act 1925,
Section 178(2), as substituted by the Matrimonial Causes Act, 1937, Section 4,
which simply requires the court on a petition for divorce to be 'satisfied on
the evidence that the case for the petition has been proved'. This itself lays
down a standard and puts adultery on the same footing as cruelty, desertion or
unsoundness of mind. Fourthly, the High Court of Australia in Wright v. Wright,
(1948) 77 CLR 191 after full consideration, declined to follow 1948 P. 179 and
held that, on a charge of adultery, the criminal standard of proof was not
appropriate. Fifthly, this Court, in Davis v. Davis, 1950-1 All ER 40 held that
the 'criminal' standard of proof did not apply to cruelty. So far as the Act of
1925 is concerned, no valid distinction can be drawn between the standard of
proof of cruelty and adultery, nor does public policy require any such
distinction: see a valuable note in the Law Quarterly Review, Vol. 66, pp.
35-38. These matters may well be sufficient to entitle this Court to re-consider
1948 P 179 if and when the occasion arises: see Young v. Bristol Aeroplane Co.,
Ltd., 1944-2 All ER 293, 300."

   38. These observations of Denning, L. J., for whose opinions I have the
highest regard, have provoked a good deal of controversy and comment not only in
the Court but also outside in the legal profession and in academic journals.
These observations, however, were obiter in that case because Denning L. J. was
satisfied on the evidence that there adultery had been proved. That was also the
view of Bucknlll. L. J. who was the other learned member of the Court of Appeal
in 1950-1 All ER

   804. If the facts proved beyond reasonable doubt that there was adultery
committed in that case, then these observations about the niceties of standards
of proof in criminal and civil matters might have been avoided.

   39-40. I for one do not subscribe in theory or in principle that in a Court
of law the standard of proof or principle of proof varies between the civil and
criminal proceedings. The celebrated expression "reasonable doubt" is not used
in Section 3 of the Indian Evidence Act which governs us. That doctrine was
developed as a caution to guide the Courts in deciding criminal charges against
the accused. But the standard of proof remains the same. The principle always is
that the court must be satisfied. It is unnecessary in my view to discuss in the
present case whether adultery partakes more of a crime than of a civil offence.

   41. The difficulty on the point is increased by a later and more recent
decision of the English Court of Appeal in Galler v. Caller, reported in 1954-1
All ER 536 decided by the Bench of Jenkins, Singleton and Hodson, L JJ. It is
distinctly laid down there by the English Court of Appeal that an adulterer who
gave evidence of his own adultery was in the same position as an accomplice in a
criminal case. Although this case was being decided four years after 1950-1 All
ER 804 it does not even mention or notice this earlier decision. 1950-1 All ER
804 discussed the cases of 1948 P. 179 as well as Preston Jones v. Preston
Jones. (1951) 1 All ER 124 = 1951 AC 391.

   42. This non-citation of 1950-1 All ER 804 in the subsequent decision of
1954-1 All ER 536 makes the authority of Gower v. Gower weak. I find myself in
respectful agreement with Hodson, L. J. delivering one of the judgments in
1954-1 All ER 536 where the learned Lord Justice observed at page 541:

     "It might appear from the passages which I have read from the judgment in
Fairman v. Fairman, (1949) 1 All ER 938 that the analogy of criminal law was the
ratio of that decision, but I think the result is the same by whichever road one
travels. In divorce, as in crime, the court has to be satisfied beyond
reasonable doubt."

   Again Hodson, L. J., at pp. 540-541 laid down the law in the following terms:

     "* * * I think the courts of this country may be taken to have come down on
the side of the view that there was no distinction to be drawn between the word
'satisfied' standing alone and the word 'satisfied' accompanied by the words
'beyond reasonable doubt'. Lord Simonds expressly assented to and adopted the
language of Lord Macder-mott (1951 AC 391) who continued:

     'The jurisdiction in divorce involves the status of the parties and the
public interest requires that the marriage bond shall not be set aside lightly
or without strict enquiry. The terms of the statute recognise this plainly, and
I think it would be quite out of keeping with the anxious nature of its
provisions to hold that the Court might be 'satisfied' in respect of a ground
for dissolution. With something less than proof beyond reasonable doubt, I
should, perhaps, add that I do not base my conclusions as to the appropriate
standard of proof on any analogy drawn from the criminal law. I do not think it
is possible to say, at any rate since the decision of this house in (1874) 30 LT
649 that the two jurisdictions are other than distinct. The true reason as it
seems to me, why both accept the same general standard proof beyond reasonable
doubt lies not in any analogy, but in the gravity and public importance of the
issues with which each is concerned."

   43. I respectfully agree with the view expressed by Hodson, L. J. and Lord
Mac-dermott. quoted above.

   44. At this stage it will be appropriate to refer to a decision of this Court
to which I was a party Mrs. Agnes Cecillia Gome (Gannon) v. Lancelot Ashley Gome
My learned brother Laik J.

   delivered the judgment to which my learned brother R. N. Dutta, J. and I
agreed. The ratio of that decision is that it is not necessary that there should
be direct evidence of adultery as it is not easily available and direct proof is
rather rare. It is noticed there and circumstantial evidence must be
sufficiently strong and conclusive. Association coupled with opportunity,
illicit affection undue familiarity, guilty attachment are some of the instances
which create an inference upon which the Court can act. In that case the old
Latin maxim leavened by Scottish humour is quoted with painful repetition:
"Solum cum sola in suspecto loco non presumitur dicere pater noster." Behind
this Latin maxim and the cold Scottish common sense lies the home-spun truth
that when a man and a woman are found together under suspicious circumstances,
it is not likely that they are together for the purpose of saying the Lord's
prayer or discussing Platonic love or engaged in any pedantry about Byronic
discontent. In such circumstances the Court might reach the conclusion that they
committed the act which the Court is trying to find out. I have some
reservations on this point which I shall express after I have disposed of the
relevancy of this decision in Agnes v. Lancelot on the point under discussion.

   45. Mr. Dutt for the petitioner-wife relies on the following observations of
Laik J. in :

     "* * In my judgment the correct approach has been laid down by Denning L.
J. in (1950) 1 All ER 804 that the Court should not be irrevocably committed to
the view that a charge of adultery must be regarded as a criminal charge,"

   46. To that, Mr. Dutt reminds me, I had agreed. Therefore. Mr. Dutt argues
that 1950-1 All ER 804 should be accepted in this case.

   47. I still subscribe to the proposition as quoted above. I still subscribe
to the view that the Court should not be irrevocably committed to the view that
the charge of adultery must be regarded as a criminal charge. But that does not
mean that the standard of proof of adultery is different. Indeed, in this very
decision in the decision of the House of Lords in (1951) 1 All ER 124 and the
decision of the Supreme Court in the case of E. J. White v. K. O. White were
cited. It must be mentioned here

   that the decision subsequent to 1950-1 All ER 804 namely, the decision of the
English Court of Appeal in 1954-1 All ER 536 was not noticed in the case of .

   48. Coming back to the case of adultery made here in these proceedings on the
evidence I am prepared to go a long way to accept much of the arguments advanced
by Mrs. Bose, appearing as amicus curiae to say that the evidence is not
sufficient on the point. I am not, however, one of those Judges in this modern
age to jump at the conclusion that in the present time, whenever a man and a
woman are found alone inside a room, the Court must presume or infer they must
be committing an act of adultery. I am sorry that the idealist philo-, sopher
Plato had such a bad time with suspicious judges and unbelieving Courts on that
very delicate subjects which has come to be known as Platonic love in memory of
his famous name and his celebrated views. Even holding in favour of the
proverbial judicial inclination to believe, that once inside a room alone, a man
and a woman have livelier things to do than philosophise on Platonic love, there
are I believe a thousand and one things of mutual interest today between a man
and a woman which can be discussed and are discussed without sexual intercourse,
Conjugal fidelity is a virtue of the highest honour and the crowning glory and
supernal power of married life but this precious virtue is not of tinsel
strength to melt at the narrow suspicion either of the Scottish or Latin
persuasion. Its wisdom since the days it was invented by the Scots or the
Romans, has outlived its time when women are no longer regarded as chattels or
slaves or inferior subhuman creatures. The devoted husband wife with ideal
married life can, in my view in the modern age, have a man or a woman as a fiood
friend and it will be against the social consciousness of the day and the
changing social behaviour pattern and norm to think that every such association
should be a ground for inference of sexual intercourse by a Court of law. That
would be installing a new in the place of old Victorian prudery. Prudery is not
a virtue, conjugal, matrimonial or judicial. Law and lethargy to response go
proverbially together. Indeed law and lethargy have been and are closest kins.
Their kinship is justified as protecting and preserving tradition. But the
Courts and law will have to respond to the new sociology of the age. All
associations between a man and a woman who are not husband and wife are not
associations for committing acts of adultery. Were it the standard then much of
the modern world would indeed be a world of adultery and adulterers, a position
which I am not intellectually, morally and legally ready to accept. I shall only
conclude by quoting Lord Atkin in Ross v. Ross, (1930) AC 1 at p. 23 where His
Lordship said:

     "That there were opportunities for committing adultery is nothing: there
must be circumstances amounting to proof that the opportunities could be used.
The circumstances relied on are consistent with the entirely innocent relations
of friends with a common interest in sports."

   49. I am not to be understood at all as saying that adultery cannot be
inferred from certain acts. I am alive to the plain and obvious fact that in an
offence of the nature of adultery it will be inappropriate to have or expect
direct witness witnessing the act, although I know Courts and Judges act on the
evidence of hired private detectives who with their proverbial rontgen eyes peep
through the narrowest key-holes of closed bedrooms and giving vivid and detailed
description of the whole panorama of the act of adultery, with a sang-froid that
freezes the judicial mind to accept that class of testimony. Circumstantial
evidence can prove and establish adultery, provided the circumstances are
relevant, cogent and compelling. In the 7th Edition of Rayden's Practice and Law
in Divorce Division 1958 the law is stated at page 133 in the following terms:

     "It is not necessary to prove the direct fact, or even an act of adultery
in time and place or even the name of the person with whom the respondent is
alleged to have committed adultery. In nearly every case the fact is inferred
from circumstances which lead to it, by fair inference, as a necessary
conclusion The Court must be satisfied that there was something more than
opportunity before it will fix the guilt; evidence of a guilty intention or
passion is needed in addition."

   50. The collection of cases in support of the above statement will be found
at Rayden's Divorce page 134 and which I need not examine individually here. I
shall be content here by saying that I agree with Rayden's statement of the Law
quoted above. Lord Buckmaster in (1930) AC 1 at page 7 clearly pointed out
"Adultery is essentially an act which can rarely be proved by direct evidence.
It is a matter of Inference and circumstance". In the recent work of D. Tolstoy
of the Law and Practice of Divorce and Matrimonial Causes, Fifth Edition, 1963
at pp 28-29 circumstantial evidence has been classified under different heads
such as (1) familiarity, (2) evidence of either spouse, (3) birth of a child.
(4) visiting a brothel and such other cognate or other acts from which
legitimate inference could be taken. But whether such inference will be drawn or
not will depend certainly on the facts in each case and upon the Court's
assessing and evaluating such facts. Indeed I need hardly add. that the burden
of proof is always on the person alleging adultery, not so much because there is
any legal presumption in favour of morality as on the plain common sense that a
person who asserts a fact must prove it.

   51. I perhaps would have accepted Mrs. Bose's argument in full on this point
that the husband's going to his flat with a woman by itself does not prove
satisfactorily that he committed an act of adultery with her on the 6th January
but for the fact that in spite of this allegation in the petition for divorce
which was duly served upon the husband he has not chosen to come and defend
himself against this charge of adultery or to den\ or dispute it or that the
woman was a public woman. I am satisfied that this tilts the balance in favour
of the petitioner wife. I hold, accordingly, that adultery has been proved in
the context of the present facts and circumstances and after taking into account
all these diverse considerations which I have discussed above.

   52. I, therefore, grant a decree nisi for dissolution of marriage as prayed
by the petitioner wife in prayer (1) of the petition and I also order that the
respondent husband shall pay the costs of these proceedings to the petitioner.