Samuel Bahadur Singh vs Smt. Roshni Singh And Anr. on 31 August, 1959

    Samuel Bahadur Singh vs Smt. Roshni Singh And Anr. on 31/8/1959

JUDGMENT

   Naik, J.

   1. The applicant Samuel Bahadur Singh has been granted a decree nisi against
respondent No. 1 Roshni Singh for the dissolution of his marriage with her. He
has also been granted a decree for Rs. 500/- as damages against the co-
respondent Chhuttan. The proceedings have been submitted to this Court under
Section 17 of the Indian Divorce Act (hereinafter referred to as the Act) for
the confirmation of the decree nisi aforesaid.

   2. The petitioner was married to the respondent Roshni Singh at the St.
Paul's Church at Jabalpur on 14-1-1953. After their marriage, they lived and co-
habited at 117, Napier Town, Jabalpur, till about 16-1-1954. On or about
16-1-1954, the respondent Roshni Singh left the petitioner's house informing him
that she was going to her brother's place at Mandla. She never came back to live
with him thereafter. Soon after January 1954, the petitioner was transferred to
Wardha where he lived for about 2 1/2 years. In the last week of November 1957,
the petitioner was transferred back to Jabalpur, when he learned that his wife,
the respondent Roshni Singh, was living in adultery with the corespondent
Chuttan at Mandla for the last three years and that she had also begotten a son
from him.

   He, therefore, filed the present petition under Section 10 of the Act for the
dissolution of his marriage with his said wife, the respondent Roshni Singh, on
the ground that since the solemnization of his marriage with her, she had been
guilty of adultery with the co-respondent Chhuttan. He averred that there was no
collusion between the parties for the purpose of obtaining the divorce and that
the petitioner had neither connived at, nor condoned, the adultery committed by
the respondent Roshni Singh with the co-respondent Chhuttan. He also claimed a
sum of Rs. 1,000/- as damages from the co-respondent Chhuttan for the loss of
company of his wife.

   3. The petition was undefended, and the proceedings were ex parte, both
against the respondent Roshni Singh as well as against the co-respondent
Chhuttan. The learned District Judge held that the petitioner and the respondent
Roshni Singh professed Christian religion, that they were Christians at the time
of their marriage as also at the time the present petition was made, and that
their marriage was solemnized according to the Christian rites at the St. Paul's
Church, Jabalpur, in the year 1953. He also found that the petitioner and the
respondent Roshni Singh were domiciled in India and that they last resided
together at Napier Town, Jabalpur, within the jurisdiction of his Court. He
further held that since the solemnization of their marriage, the respondent
Roshni Singh had been guilty of adultery.

   Relying on the testimony of the petitioner, he also held that there was no
collusion between the parties and that the circumstances of the case showed that
the petitioner had neither connived at, nor condoned, the adultery committed by
the respondent Roshni Singh with the co-respondent Chhuttan. As regards damages,
the learned District Judge came to the conclusion that the married life of the
petitioner and the respondent Roshni Singh for about a year after marriages was
happy and that the loss of the former's wife was brought about by a wrongful act
of the co-respondent Chhuttan without any fault on the part of the petitioner.
He accordingly passed a decree nisi in favour of the petitioner for the
dissolution of his marriage with the respondent Roshni Singh. He also passed a
decree for a sum of Rs. 500/-as damages against the co-respondent Chhuttan and
also awarded costs of the proceedings against both the respondent and the co-
respondent.

   4. Before us also, neither the respondent nor the co-respondent have
appeared, though they were served with notices of these proceedings. The learned
counsel for the petitioner took us through the evidence, and, in our opinion,
the findings that the petitioner and the respondent Roshni Singh were Christians
at the time of their marriage, that they were married according to the Christian
rites, and that they were practising the Christian religion at the time of
filing of the present petition, are amply established. There is also no evidence
to show that there was collusion between the parties for the purpose of
obtaining a divorce. The Deputy Government Advocate, who appeared for the Legal
Remembrancer on a notice as required by Section 17A of the Act, also stated that
there was no evidence of collusion between the parties and that the State
Government had no objection to the decree being confirmed.,

   5. These are proceedings for the confirmation of a decree nisi. The obvious
intention of the legislature, as expressed in Section 17 of the Act is that the
High Court, upon a reference for confirmation should review the entire evidence
and come to its own conclusion as to whether the facts proved are sufficient to
justify a decree for the dissolution of marriage : (see A. A. Garlinge v. I. R.
Garlinge, ILR 44 All 745: (AIR 1922 All 504) (FB) and John Howe v. Charlotte
Howe, ILR 38 Mad 466: (AIR 1916 Mad 338) (FB)). The obligation became all the
more greater in the instant case because the petition was undefended in the
lower Court and in this Court also the respondent and the co-respondent have not
cared to appear to oppose the confirmation.

   6. The dissolution of the marriage of the petitioner with the respondent was
sought on the ground that since the solemnization of his marriage with her, she
had been guilty of adultery with the co-respondent at Mandla. The petitioner,
who examined himself as P.W. 1 had no personal knowledge of the alleged
adultery. All he stated in his deposition was that the respondent wife left his
house after 16-1-1954 saying that she had to go to Mandla, i.e., to the place of
her brother, and in the same month, after her departure, he was transferred to
Wardha and from there be used to write letters to her and her brother that the
respondent should live with him at Wardha but they were both delaying her
corning back to him on one pretext or the other with the result that his wife
(the respondent) did not come and stay with him at Wardha. He further stated
that a child born to her after she had left his house was not from him, but
regarding the birth of this child also, he had no personal knowledge.

   He sought to prove the fact of adultery from the evidence of Newton (P.W. 2)
and Mst. Shanti (P.W. 3), who is his mother. The former stated that he was a
frequent visitor to the house of the co-respondent, that he had seen the
respondent living with the co-respondent as his wife at the latter's house at
Mandla, that she had also given birth to a male child from the co-respondent,
and that the child was (on the date of his evidence, i.e., on 9-2-1959) about
three or four years old. Mst. Shanti (P.W. 3) had specially gone to Mandla to
investigate the matter. She stated that she learnt from the neighbours of the
co-respondent that he was living with the respondent. She also saw with her own
eyes the respondent living in the house of the co-respondent, and, according to
her, no third person lived with them.

   7. We could not come to any definite finding on the basis of the evidence on
record, whether the birth of a child to the respondent proved adultery because
the age of the child alleged to have been born to her after she left the
petitioner's house was said to be about four years old. No exact date of birth
was proved, nor was any attempt made to establish that the child could not have
been begotten on her by the petitioner. We further found that the evidence did
not disclose who the brother of the respondent was, what attempts were made by
the petitioner to bring the respondent back and whether the co-respondent was
not a brother of the respondent to whom she had gone.

   8. As clarification on the aforesaid points was necessary before the decree
nisi could be confirmed, we further examined the petitioner to enable him to
explain certain facts appearing in the evidence. In Holloway v. Holloway and
Camptell, ILR 5 All 71 at p. 75, a reference for confirmation, the High Court
examined the petitioner further in order to afford him an opportunity of
explaining certain parts of his evidence as well as to enable the Court to
obtain further information because it found the evidence of the petitioner
highly unsatisfactory. Giving its reasons for this course, the learned Judges
said :

     "... .the High Courts in these divorce cases are placed in a very difficult
position. For, in the absence of any official like the Queen's Proctor in
England, they have, where suspicion is aroused as to the conduct or good faith
of the parties, to inaugurate and carry out such inquiries and investigations as
may appear necessary, in order to prevent the provisions of the divorce law
being abused and themselves being imposed upon."

   9. In answer to our question, the petitioner, inter alia, stated that when
his wife (the respondent) left him, she was not pregnant, that the name of his
wife's brother was Israel and that Chhuttan (the co-respondent) was a different
person, and that he had written to his wife's brother to send his wife back but,
though he replied to the first letter saying that he would send her, he did not
give any reply thereafter, and consequently he also stopped writing to him.

   10. From the evidence on record we have no doubt that the respondent, who was
the married wife of the petitioner, has been living in adultery with the co-
respondent at his house at Mandla. 'Adultery' has been defined as voluntary
sexual connection between two persons of opposite sex who are not married to
each other but of whom one at least is married to a third person : (See
Phillips' Divorce Practice, Fourth Edition, p. 16). To succeed in a petition for
divorce on the ground of adultery, adultery must be established to the
satisfaction of the Court beyond reasonable doubt; but, as direct proof of
adultery can rarely be had, a Court may infer adultery from certain facts unless
there is evidence to negate the inference.

   In Loveden v. Loveden, (1810) 2 Haq Con 1 at p. 2, Sir William Scott said
that it was necessary to prove the direct fact of adultery, for

     "if it were otherwise, there is not one case in a hundred in which that
proof would be attainable: it is very rarely indeed that the parties are
surprised, in the direct fact of adultery. In every case, almost the fact is
inferred from circumstances that lead to it by fair inference as a necessary
conclusion; and unless this were the case, and unless this were so hold, no
protection whatever could be given to marital rights".

   That passage has been quoted with approval in the Court of Appeal by Lopes,
L. J. in Alien v. Alien and Bell, 1894 P 248 at p. 252, where he said :

     "To lay down any general rule, to attempt to define what circumstances
would be sufficient and what insufficient upon which to infer the fact of
adultery, is impossible. Each case must depend on its own particular
circumstances."

   The Court usually infers adultery from the fact that the respondent wife
shared a bed or bedroom for the night with a person of opposite sex other than
the petitioner or from the fact that the respondent had been carrying on an
association with a person of the opposite sex other than the petitioner and
there is evidence of illicit affection or undue familiarity between them coupled
with an opportunity for them to have committed adultery.

   11. In the instant case, the respondent went and stayed in the house of the
co-respondent for over three years alone with him. The evidence of Newton (P.W.
2) shows that she was living as his wife, and the evidence of Newton (P. W. 2)
and Shanti (P.W. 3) is that no third person lived with them. In India, it is not
usual for a young man and woman to live together in a house when they arc
neither related nor married to each other. In the instant case, there is no
reasonable innocent explanation to account for the respondent and the en-
respondent living together. Society being very much more conservative here than
elsewhere, it would not be unreasonable to infer adultery from the facts -- .

     1. that only the respondent and the co-respondent stayed in one house
together for a long time,

     2. that the respondent had refused to go back to her husband,

     3. that the respondent and the co-respondent had not the courage to come
into the witness-box to deny the charge of adultery, and

     4. that they had ample opportunity to commit adultery by being alone in the
house, and their stay together cannot be accounted for on any other reasonable
innocent hypothesis.

   As pertinently observed by Young, J. in Cyril Gibbs v. Ellen Gibbs, ILR 55
All 597 : (AIR 1933 All 427):

     "Where a man and a woman are found together under suspicious circumstances,
it cannot be presumed that they are saying their prayers."

   In the aforesaid case, the learned Judge inferred adultery from somewhat
similar circumstances. We are, therefore, satisfied that there was proof of
illicit affection coupled with an opportunity for the respondent and the co-
respondent to have committed adultery.

   12. We are, however, not satisfied that the evidence on record is sufficient
to come to any positive conclusion that a child had been born to the respondent
after she had left her husband's shelter, that a child, even if so born to her,
was born out of wedlock or that it was a child begotten on her by the co-
respondent. We have, therefore, not considered the allegation of the birth of a
child to the respondent as any evidence of her adultery, but have based our
conclusion on the oral evidence only.

   13. The trial Court has also awarded to the petitioner a sum of Rs. 500/- as
damages against the co-respondent. The co-respondent has not appealed against
the order, but, under Section 17 of the Act, we have power to deal with the
question at the time of confirmation of the decree nisi : see Kyte v. Kyte, ILR
20 Bom 362.

   14. Under Section 34 of the Act, damages are claimable by the petitioner
against the adulteror correspondent in a suit for dissolution of his marriage.
The claim for damages is founded on the hypothesis that the husband has suffered
injury by being deprived of the comfort and society of his wife through the
wrongful act of the co-respondent Consequently, it is now well settled that
compensatory damages only can be given and that exemplary or punitive damages
are not permissible ; (See Butterworth v. Butterworth 1920 P. 126.) The measure
of damages is thus the value of the wife, of which the husband has been deprived
of by the wrongful act of the adulterer. In 1920 P. 126 (supra), McCardie, J.,
reviewing the case law on the subject, ruled as follows :

     '........ the two main considerations upon which damages are to be based.
They are these : first, the actual value of the wife to the husband; secondly,
the proper compensation to the husband for the injury to his feelings, the blow
to his marital honour and the serious hurt to his matrimonial and family life.

     I take each head briefly; first, as to the value of the wife. This has two
aspects -- namely, the pecuniary aspect, and the consortium aspect. The
pecuniary aspect (which is generally the least important) depends on the wife's
fortune : see Evans v. Evans and Platts. 1899 P. 195, per Jeune P.; her
assistance in the husband's business : see Keyse v. Key.se and Maxwell. (1886)
11 PD 100, per Lord Hannen; her capacity as a housekeeper and her ability
generally in the home. The considerations are concisely given in Sedgwick on
Damages (1913), vol. ii, 9th ed., Section 478.

     The consortium aspect is broader and depends on the wife's purity, moral
character and affection, and her general qualities as a wife and mother. This is
pointed out in all the old text-books already cited and also in the modern text-
books on Damages, such as Arnold on Damages, 2nd ed. (1919), pp. 226 et seq.,
and Mayne on Damages, 9th ed. (1919), pp. 584 et seq., where the authorities are
well collected and the appropriate considerations are indicated.

     Now upon the pecuniary aspect of the value of a wife the adulterer's
conduct has but little bearing. This branch of assessment must be decided by the
criteria of good sense and experience : see also Sedgwick on Damages (1913), 9th
ed., Section 478.

   But upon the consortium aspect of the matter the co-respondent's conduct may
have the utmost relevance. For this branch depends, as I have said, upon the
purity and general character of the wife. If the wife be of wanton disposition
or disloyal instincts, it is obvious that the general value to the husband is so
much the less. Thus if it be proved that she thrusts herself upon the co-
respondent, or lightly yields to his desire, or holds herself out to be a single
woman, a conclusion adverse to her general character and therefore to her value
will at once be drawn : see per Sir Cresswell Cressell in Comyn v. Comyn and
Humphreys, (1860) 32 LJP (M and A) 210, where he said to jury:

     "If a woman surrenders herself very readily to a man, who fakes no pains to
obtain her affections, or if you have reason to suppose that she has made the
first advances, you are to estimate, as far as you can form an estimate in
money, the loss the husband has sustained. If on the other hand the co-
respondent has only gained his wish by assiduous seduction and by practised
artifice, it may well be considered that the moral character and general worth
of the wife is an asset of value to the husband."

   The petitioner must, therefore, place before the Court all the' relevant
factors on which a decision could be taken on the aforesaid points.

   15. It is, therefore, pertinent to know whether the wife of the petitioner
was a virtuous, good and industrious wife, whether their home life was happy,
whether the husband derived pleasure from her society and was careful about her
chastity, whether the husband reasonably provided for bis wife and did not leave
her destitute at any time, whether he made any genuine attempts to bring her
back from the house of her brother where she had ostensibly gone, how the
adulterer obtained introduction to the wife and how he estranged her affection
to her husband, who made the first advances, whether there was any treachery in
his conduct, whether the wife when living separate from her husband at Mandla
posed herself as a simple unmarried woman, whether the co-respondent knew or
ought to have known that the woman was a married woman and that he was
committing adultery with her, and such other facts which may have a reasonable
bearing on the question at issue,

   16. In the instant case, all that has been vouchsafed to us is that the
husband married the respondent Roshni Singh on 14th January 1953 and that on
16th January 1954 she left him to go to Mandla, i.e., the place of her brother',
and thereafter never came back. The petitioner states that he made attempts
thereafter to set her back but he neither went to Mandla nor has he filed the
replies to letters said to have been sent by him to his wife and her brother. No
letters of the wife to the petitioner have been filed to establish the affection
or esteem in which she held him or his home, and it is not possible on the
material before us to assess damages either regarding the pecuniary aspect or
the consortium aspect or their married life.

   17. It may, however, be argued, on the authority of Stone v. Stone and
Appleton, (1864) 34 LJP (Mat) 33 and Long v. Long, (1894) 63 LJP 67, that non-
contest by the co-respondent of the suit and, the decree for damages was
tantamount to an admission of guilt and we may proceed to assess damages on that
presumption; and that, as held in Spedding v. Spedding and Smith, (1862) 31 LJP
(M and A) 96, when adultery is proved, damages follow as a matter of course even
though the husband has not been proved to have suffered any loss. On this
nominal damages may be awarded. It is, however, now settled law that proof of
adultery does not necessarily entitle a petitioner to any damages: (see
Halsbury's Laws of England, 3rd Ed., Vol. 12, para 855). Adverting to the
question, McCardie, J. in 1920 P. 126 (supra) said :

     "Now, what are the principles., on which damages should be awarded? At the
outset, there arises the question whether the Court is bound, upon proof of the
adultery and the grant of a resultant decree, to assess any damages at all
against the correspondent. In my humble opinion the Court is under no such
obligation. Section 33 requires that claims for damages be tried on the same
principles and subject to the same rules as an action for criminal conversation.
That action, as I have ventured to point out, was in substance an action on, the
case. It follows, therefore, I think, that the jury were entitled, although
adultery was proved, and although the defendant had failed to establish a
technical defence (e.g., privity of the plaintiff to the adultery), to find that
the plaintiff had suffered no damage at all. This view seems to be agreeable to
the trend of the old decisions and text-books. The summing up of Alderson J. in
Winter v. Henn, (1831) 4 C and P 494 at p. 498, is not, I think, when taken as a
whole, really adverse to the view I have expressed. In substance the matter
could be put thus. The claim was for actual loss and injury and not for mere
trespass. Therefore if loss or injury were not shown, the claim for damages
failed."

   In our opinion, therefore, on the facts of the instant case, the petitioner
would not be entitled to any damages as he has not established what actual loss
or injury he had suffered by the wrongful act of the co-respondent.

   18. As regards costs, they have been awarded Jointly against the respondent
and the co-respondent both. Though ordinarily a correspondent, who had no
knowledge that the woman with whom he was consorting was a married woman, is not
to be saddled with costs, in the instant case, we cannot believe that, even if
he did not know initially, his continuance of the intimacy was without
knowledge, and consequently we do not feel inclined to vary the direction
regarding costs: Learmouth v. Learmouth and Austin. (1889) 62 LT 608.

   19. In the result, we confirm the decree nisi, but set aside the direction as
to damages against the co-respondent. There shall be no order as to costs of the
confirmation proceedings.