Guda William vs Guda Karunamma on 18 March, 1915

    Guda William vs Guda Karunamma on 18/3/1915

JUDGMENT

   John Wallis, C.J.

   1. It has always been the practice of this Court, since the passing of the
Indian Divorce Act of 1869, to post and dispose of decrees sent up from the
District Court for confirmation after notice to the parties without requiring
the petitioner to appear and move for confirmation. I see no sufficient reason
to depart from this practice, which appears to me to give effect to the
intention of the Legislature. It was in the interest of poor suiters that
jurisdiction in divorce was conferred upon District Judges instead of on a
Central Divorce Court as in England, and it would be a restriction of the boon
to require a petitioner who has obtained a decree in a District Court, to take
proceedings for confirmation in the High Court. The mere appearance of the
petitioner would be no protection against collusion which is guarded against by
the other provisions of Section 17, and as regards the possibility of the
parties having died or come together again subsequent to the decree of the
District Court the serving of notice seems a sufficient safeguard.

   2. As to the facts the petitioner has no doubt failed to prove the specific
act of adultery shortly after the marriage on which he relied, besides which
condonation has been proved. But with regard to the allegation that the
petitioner was not the father of the infant born to the respondent in September
1913, the District Judge, who saw the witnesses, has accepted the evidence of
witnesses who, if believed, in my opinion sufficiently prove non-access on the
part of the petitioner and misconduct on the part of the respondent. The case
really turns on whether the husband had access to his wife about the time the
child was conceived. The parties had been separated some months before, when at
the instance of the missionaries an effort was made to reconcile them.
Plaintiff's 2nd witness speaks to going with the petitioner to her mother's
house and finding her absent and to staying the night and their going over to
Achutapuram, where she was keeping a night school for adult men as well as boys.
There does not seem to have been any opportunity of access on that occasion, and
the evidence, in my opinion, negatives anything of the kind. The fact of her
having previously to this contracted a venerial disease which she did not accuse
her husband of having given her and of her keeping the night school shows the
sort of woman she was. I think the adultery is sufficiently proved and would
confirm the decree.

   Ayling, J.

   3. I agree.

   Sadasiva Aiyar, J.

   4. This ease is described as a "case referred under Section 17 of Act IV of
1869 for confirmation of the decree nisi passed by the District Court of
Godavari in Original Suit No. 15 of 1914" on the file of that Court. I have to
make two remarks in connection with this. In the first place, Section 14 of the
Act IV of 1869, does not call the decree pronounced by the District Court a
decree nisi. It is only a divorce decree passed by the High Court on its
original side which is called a Decree nisi in Section 16 of the Act. In the
second place, there is no provision for the District Court referring the decree
to this Court. Section 17 merely says "that every decree for dissolution made by
the District Judge shall be subject to confirmation by the High Court." I am not
aware of any rules passed by the High Court under Section 62 of the Indian
Divorce Act enabling the District Court to make any such reference. I might
further add that in this case I find that a head clerk of the District Court, as
the officer in charge in the absence of the District Judge from the station, has
made this reference on the 13th May 1914. Even holding that a reference by the
District Court is contemplated by the Act and we are bound to act on such
reference, I think we must decline to act on a reference made by the head clerk
of the District Court who is left in charge of the administrative duties and of
the establishment during the absence of the District Judge.

   5. I further think that even if a reference is admissible and is properly
made, the person who wants the confirmation of the decree pronounced by the
District Judge ought to make an application to this Court for such, confirmation
and without such an application, I am inclined to hold with the Full Bench of
the Allahabad High Court see William Arthur Forshaw v. Eunice Geraldine Forshaw
3 Ind. Cas. 969 : 31 A. 511 : 6 A.L.J. 793 : 6 M.L.T. 96 that we should not
confirm the decree passed by the District Judge.

   6. I might be permitted to quote the following from that judgment:

     We are wholly unable to say whether or not the parties have come to terms
and arranged their differences. It may be that since the decree nisi was passed
the petitioner and respondent have co-habited and so the adultery has been
condoned.

   7. I might further add that it may be that one of the parties has even died
after the pronouncement of the decree by the District Court which is now nearly
a year old. While I am not prepared to say that we have no jurisdiction to
consider this case because there has been no proper reference and there has been
no application by the party, I think that the practice might be introduced of
requiring an application from the interested party. Most of the Indian
Christians are, no doubt, very poor and hence, jurisdiction in divorce matters
was given to the District Court, so that the expenses and trouble of going to
the High Court of Madras and securing attendance of witnesses there might be
avoided. But, in such a momentous matter as confirmation of a divorce, often
involving the [legitimacy of children, a petitioner might be expected to
manifest at least the interest required to apply to the High Court therefor, and
if it is too great trouble to go to Madras to put in the application, the rules
might provide for his sending it through the District Court.

   8. So much for the preliminary difficulties in this case. On the merits also
I am inclined to hold that it is not proved that the respondent has been guilty
of adultery. The petitioner (husband) is not at all a straightforward witness,
and his story that he caught his wife in adultery with a man (now deceased) in
broad daylight in a school house a few days after his marriage is not worth a
moment's belief. The respondent is no doubt proved to be a bold, immodest woman.
Her talking freely to other males and opening and conducting for sometime a
school for adult males do show her to be a coquette and flirt, but I am not
prepared to hold that she has lived the life of a public prostitute" as stated
in paragraph 9 of the petition, in fact there is no evidence at all of her
having led a life of promiscuous intercourse with all who sought her. See Roe v.
Boe 3 B.L.R. App 9 as to who is a public prostitute. That the petitioner went to
her residence in January 1913 is admitted by the petitioner. He says he had no
intercourse with her on that occasion. She says, on the other hand, that he had
and she attributes to him the paternity of the child born to her in September
1913, between eight and nine months after this visit. He, no doubt, went to her
with mediators in order to persuade her to live with him. I, however, do not
think it so very improbable that she did allow him to have intercourse with her
at that time, though she refused to return to his place to live jyith him
continuously. I am not prepared to brand the child born to her in September 1913
as a child born of the adultery of its mother with some unknown paramour, having
regard to the stringent provisions of Section 112 of the Evidence Act. That the
mediator witness says that to his knowledge there was no access between the
petitioner and the respondent when he went to her in January 1913, is of very
little value. In Atchley v. Sprigg (1864) 33 L.J. Ch. 345 : 3 N.R. 360 : 10 Jur.
(N.S.) 144 : 10 L.T. 16 : 12 W.R. 304 : 143 B.R. 357 it was said that the
presumption of a child's legitimacy can be rebutted if it is shown by strong,
distinct, satisfactory and conclusive evidence that the husband, whether before
or after marriage, had not access to his wife." In the Barony of Saye and Sele
(1848) 1 H.L.C. 507 : 9 E.R. 857, it was held that circumstantial evidence
showing that the husband and wife were living separately from each other at such
a distance that they could not have had intercourse during the three or four
months during which alone the child could have been begotten was sufficient
evidence. I do not think that in this case any facts proving non-access beyond
reasonable doubt are proved, and I am not prepared on the mere denial of the
petitioner to hold that he had no access to his wife in January 1913. I might
add that there is clear evidence in this case that the petitioner, who was
anxious to get at his wife even in March 1913, has since begun to love another
native Christian woman and is, therefore, anxious to get rid of the respondent
and that he is not a person of much delicacy of feeling. I would, therefore, on
the merits also refuse to confirm the decree.

   9. Following the opinion of the majority the decree is confirmed.