Premchand Hira vs Bai Galal on 25 June, 1927

    Premchand Hira vs Bai Galal on 25/6/1927

JUDGMENT

   Amberson Marten, Kt., C.J.

   1. This is another instance of the apparent difficulty of the mofussil Courts
in appreciating the essentials for a valid decree under the Indian Divorce Act.
In a case from Poona not long ago Walsh v. Walsh, (1926) 29 Bom, L.R. 308 we had
to send the case back no less than twice for remands in order to have the
essential evidence before the Court. In the present case from Nadiad, I regret
that it is also necessary to send the case to the learned District Judge for a
remand to determine essential points. I also regret that like several other
divorce cases from the mofussil we have not had the benefit of the assistance of
counsel, and that the time of no less than three Judges is occupied in doing
work that should properly have been done in the trial Court.

   2. Now in the first place the learned Judge here has never had the marriage
proved properly. There is no certificate of marriage. There is a statement in
the petition that the marriage was solemnized in a Salvation Army Hall. Whether
that was a duly licensed place for the performance of Christian marriages, and
whether the marriage was performed by a duly licensed person in pursuance of the
requirements of the Indian Christian Marriage Act 1872, we do not know. But I do
unhesitatingly say that in every divorce case that has hitherto come before me
in this High Court-and I believe the same is true of the Divorce Court in
England-one principal element is that the marriage should be proved strictly and
that in general a certificate of marriage should be produced. The learned Judge
will, therefore, take that course in the present ease, and he will he careful to
see that the requirements of the Indian Christian Marriage Act 1872 have been
carried out in this particular case. In this connection I would draw his
attention to the fact that in her evidence before the Court the wife describes
herself as a Hindu and that both parties have Hindu names. But under Section 4
of that Act it is essential to prove that one or both of the parties were
Christians. Further, under Section 2 of the Indian Divorce Act 1869, it is
essential to prove that the petitioner professed the Christian religion at the
date of presenting the petition.

   3. A further point which the learned Judge has not dealt with notwithstanding
the directions that have from time to time been given by this Court, is as to
the domicile of the parties. (See Hewson v. Hewson (1924) 26 Bom. L.R. 467). It
was laid down by this Court in Wilkinson v. Wilkinson (1923) 25 Bom. L.R. 945
that the Indian Courts have no jurisdiction to dissolve the marriages of persons
who are not domiciled in India. By the recent Indian Divorce (Amendment) Act
1926 this is now enacted as part of the statutory law of this country.
Consequently, the learned Judge should record a finding, if it be the fact, that
the parties were domiciled in India at the date of the presentation of the
petition. Having regard to their names there should be no difficulty about that.
So it is only a technical point in the present case.

   4. What I have just said about domicile is irrespective of the Act which just
has been passed by the English Parliament giving the Indian Courts a limited
power to grant divorces where the parties are not domiciled in India. But those
new powers are confined to the High Court and are not given by the English Act
to the District Courts. This High Court has not yet obtained a copy of this
English Act, but from what has been announced as to its effect, it must be taken
that it does not apply to the present case, which is brought in a District
Court.

   5. Then coming to the substance of the allegations, there is really no
evidence worth the name. The husband has put in a petition. This he has not
attempted to support by any independent evidence. His own evidence is confined
to a denial that he has divorced his wife. The allegations in the petition
including those as to the adultery of the wife must, therefore, be properly
proved. It was apparently thought sufficient for the wife to go into the box,
and to say that she lived with another man, and gave birth to a child by him.
But we have already drawn attention more than once to the care required before
accepting an admission of adultery by either spouse as sufficient by itself.
(See Over v. Over (1924) 27 Bom. L.R. 251.)

   6. There is one other technical difficulty that may arise owing to a recent
decision of the House of Lords in Russell v. Russell [1924] A.C. 687 which,
speaking generally, has ruled out evidence by either spouse as to non-access
which would have the effect of bastardizing a child which was conceived during
the time the marriage was in existence. That case has been considered by Mr.
Justice Swift in Warren v. Warren [1925] P. 107, to which my brother Blackwell
has drawn our attention. There it was held, in effect that the confession of a
wife that she has committed adultery is admissible as evidence in a suit for
divorce so long as she does not assert that the husband could have had no access
at the time of conception. In the present case, however, the wife's evidence
comes very nearly to making such an assertion, and if so, the case would not be
within Warren v. Warren. Accordingly, it is desirable that independent
corroborative evidence should be obtained to show that the respondent was living
in adultery with the co-respondent. There, again, if that be the truth, there
should be no difficulty in obtaining the proper evidence.

   7. It must also be shown in accordance with the requirements of Section 3 of
the Act that the parties last resided together within the jurisdiction of the
Nadiad Court. That, again, is not specifically stated by the husband, and in my
opinion it is not sufficient merely for certain statements to be made in the
petition which are not verified in the witness box.

   8. Lastly, I notice that in the learned Judge's judgment he seems to have
thought that the claim for damages would not lie because damages are not
mentioned in Section 10 of the Indian Divorce Act 1869. That is so for the
section dealing with damages is Section 34 and not Section 10; and in the face
of those clear provisions of Section 34 it is idle to suggest that the case is
governed by Section 10. In point of fact it is a well recognised remedy which is
applied over and over again both here and in England, and the learned Judge
certainly should not have overruled the question of damages on that particular
ground.

   9. I would, accordingly, remand this case to the District Court under Section
17 of the Act for further inquiries and additional evidence on inter alia the
following points:-

     1. The marriage must be proved in accordance with the requirements of the
Indian Christian Marriage Act 1872. A certificate of marriage should be
produced.

     2. The petitioner must be shown to be a Christian and domiciled in India.

     3. The spouses must be shown to have last resided together within the
jurisdiction of the Nadiad Court.

     4. The rest of the allegations in the petition should be proved, and some
corroborative evidence of adultery is desirable apart from the wife's admission.
(See Over v. Over (1924) 27 Bom. L.R. 251.)

   10. In this connection it is the duty of the Court to guard against collusion
under Section 12 of the Act. I would also draw the attention of the Court to the
fact that under Section 7 of the Act, relief has to be given "on principles and
rules which, in the opinion of the ...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". The
English Courts, as I have already pointed out, exercise this jurisdiction with
care, and so far as I am concerned, I intend to do my best to see that the
District Courts in this Presidency should also exercise this important
jurisdiction with due care.

   Blackwell, J.

   11. I agree and desire to add a few words on two points only in this case.
Having regard to Section 7 of the Indian Divorce Act IV of 1869, I think that
the rule laid down by the House of Lords in Russell v. Russell [1924] A.C. 687
to the effect that neither a husband nor a wife is permitted to give evidence of
non-intercourse after marriage to bastardize a child born in wedlock, applies to
divorce suits in India. In the present case the evidence given by the wife
clearly pointed to the impossibility of access by her husband, for according to
her evidence she had left her husband, alleging that he had divorced her, and
then in fact had been living for a considerable period of time with another man.
Her evidence, therefore, clearly intimates that there had been no possibility of
access by her husband. Mr. Justice Swift in the English case of Warren v. Warren
[1925] P. 107, to which my Lord ' the Chief Justice has referred, says at p. 112
:-"Her evidence (that is the wife's evidence) and proof of her conduct and
statements are admissible unless and until it is sought to prove by these means
non-access or non-intercourse". It follows that if her evidence involves
allegations of non-access or non-intercourse by her husband in the course of a
confession, or an admission made by her, the confession or the admission becomes
inadmissible. It is, therefore, very essential that the learned Judge, when he
deals with this case further, should be satisfied by independent evidence, which
it ought to be quite possible for the petitioner to obtain, that his wife has
been living in adultery with the corespondent. In the absence of such evidence-
and if the confession of the wife alone is relied on---it seems to me that the
evidence will be wholly insufficient.

   12. The District Judge has not permitted the petitioner to proceed with his
claim for damages upon the ground apparently that Section 10 of the Indian
Divorce Act did not contemplate a claim for damages. But, as my Lord the Chief
Justice has pointed out, under Section 34 of that Act a husband may claim
damages. It does not, of course, follow that he will think it proper to give
damages in this particular case. It has been laid down in a case in England
(Gibson v. Gibson and West (1906) 22 T.L.R. 361) that proof of adultery does not
necessarily entitle a petitioner to damages. The measure of damages in such a
case has been laid down in a Full Bench case, Freer v. Johnson (1923) 46 M.L.J.
282, F.B.. The head-note in that case is as follows:-

     In a husband's suit for divorce on the ground of the wife's adultery with
the co-respondent, the Court can, if the adultery is proved, award damages
against the co-respondent. But the damages in divorce are not punitive. The
means of the co-respondent are an irrelevant consideration except in so far as
they were of assistance to him in seducing the wife. It is not the intention
that a man should make a profit out of the dishonour of his wife. The only
question is what the petitioner has lost in his wife.

   13. I think the District Judge should consider whether the wife, according to
such evidence as the petitioner may give, was in the past a good wife and took
good care of his house and children, That is an element for consideration. See
the English case of Keyse v. Keyse (1886) 11 P.D. 100. On the other hand, if she
were a worthless wife, always out of the house and not attending to her duties,
the petitioner may not be entitled to any damages at all. Those are
considerations to which the District Judge should direct his attention. But
having regard to the fact that he has not permitted the petitioner to go into
the question of damages, I think he should do so upon the further hearing.

   Baker, J.

   14. I agree and have nothing to add.

   Amberson Marten, Kt., C.J.

   15. There will be further a question (5) added as to what damages, if any,
the petitioner ought to recover under Section 34 of the Indian Divorce Act. The
learned Judge has really never applied his mind to that particular section.

   16. As regards what my brother Blackwell has just said about the effect of
the decision of the House of Lords in Russell v. Russell [1924] A.C. 687 I
should like to reserve my final opinion until the matter has been argued before
me by counsel, and in particular as to whether there is any difference in India
arising from the provisions of the Indian Evidence Act. But I entirely agree, as
I have already said, that the proper way to avoid the difficulty altogether is
to prove otherwise than by the evidence of the wife that she has been living in
adultery with the co-respondent. And I may point out that when this Court's
judgment in Hewson v. Hewson (1924) 26 Bom. L.R. 467 was given, the decision of
the House of Lords overruling the Court of Appeal in Russell v. Russell had not
been given, and consequently the contrary opinion of the Court of Appeal [1924]
P. 1 was then the guiding authority.

   17. On remand, the certificate of marriage between the parties was produced,
and the petitioner and his witness Parshottam. were examined. The learned Judge
found issues Nos. 1 to 3 in the affirmative; he found also that Galal had
committed adultery with Jetha in May 1922, but it was condoned by the petitioner
as he lived with her. The learned Judge was of opinion that the condonation was
fatal to the claim, since there was no allegation in the petition of adultery
committed in and after August 1922. No finding was recorded as to the claim for
damages.

   18. The above findings were certified to the High Court.

   19. The reference was further considered by Marten C.J. and Crump and
Blackwell JJ.

   20. There was no appearance on either side.

   21. When the Indian Divorce Act was framed, it was probably not contemplated
that the time of no less than three Judges of this High Court would be occupied
in hearing these applications for confirmation of divorce decrees but without
any appearance either by the parties themselves or by their pleaders. In effect,
therefore, it is left to three Judges to treat the case as if it was a brief at
the bar and to have valuable time, which ought to be spent on other duties,
occupied in doing counsel's work.

   22. In this Court's previous judgment on remand of January 17, 1927, this
Court was obliged to point out several omissions that had been made in disposing
of this case in the trial Court. The learned Judge has now heard further
evidence, and has recorded findings on certain of the points that were sent back
on remand. We have now a certificate of the marriage, and we respectfully agree
with the learned Judge that the marriage has now been proved. This was a
marriage between native Christians, and it is sufficient to refer to Sections 60
and 61 of the Indian Christian Marriage Act 1872. The latter section makes a
particular certificate conclusive proof of the performance of the marriage. We
have that certificate in the present case in the evidence now before us.
Similarly it is now shown that the parties are domiciled in India. We also agree
with the learned Judge in thinking that the adultery has now been properly
proved, and that there is proper corroborative evidence.

   23. In his original judgment the learned Judge was prepared to pass a decree
nisi in favour of the petitioner, but having regard to the evidence on remand he
has now come to the conclusion that the petitioner's case must fail because the
adultery alleged in the petition, viz., adultery taking place "from about" or
"on or about" May 15, 1922, was condoned by reason of the fact that the husband
and wife afterwards lived together as such and that consequently there was
condonation within the meaning of Section 14 of the Indian Divorce Act. But
unfortunately the learned Judge has failed to appreciate the true doctrine of
condonation and to give effect to Section 7 of the Act which requires the Court
in all proceedings thereunder to 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". Now it is a clear
proposition of English divorce law that condonation is not absolute, but is only
conditional, and that if there is a subsequent matrimonial offence, then the
condonation goes, and the original offence is revived. In Palmer v. Palmer
(1860) 2 Sw. & Tr. 61, the head-note runs :-

     All condonation is conditional on no offence of which the Matrimonial Court
can take cognizance being in future perpetrated. Cruelty once condoned may be so
revived by subsequent adultery as to form, coupled with that adultery, ground
for a sentence of dissolutionn.

   24. There is another case on the question of cruelty in Moss v. Moss [1916]
P. 155, a decision of the Court of Appeal, where a similar decision was arrived
at as regards subsequent acts of cruelty. Then in Cramp v. Cramp and Freeman
[1920] P. 158, Mr. Justice McCardie reviewed the law, and the head-note thus
states the view he took:-

     Condonation, as applied to matrimonial offences, though frequently defined
as conditional forgiveness, is not forgiveness in the ordinary sense, but would
be more properly defined as conditional reinstatement of the offending spouse.
It is always subject to the condition that the offence must not recur.

   25. The case is not on all fours with the present case as regards the facts;
but as regards the law it reviews and re-states well-established propositions.

   26. It is true that the present petition does not expressly plead revivor.
But in Braddock v. Braddock (1910) 27 T.L.R. 94, where revivor of the previous
misconduct had not been specifically pleaded, the President of the Divorce Court
nevertheless pronounced a decree nisi, although he added "some day, however, the
question of whether 'revival' should be pleaded or not might have to be
seriously considered". We think, however, in the present case-particularly
having regard to the fact that we are dealing with a mofussil case, and with
people in humble circumstances-that it is unnecessary to insist on the pleadings
being amended. My brother Blackwell has also pointed out that the existing
pleadings may be wide enough to cover not only adultery before this act of
condonation, but also adultery afterwards. In that view of the case it would be
also open for the petitioner to obtain a decree. The learned Judge felt
embarrassed because the petitioner's pleader did not amend his petition, but in
a case like the present, one remedy might have been for the Judge to direct the
petition to be amended so as to put the main materials before the Court in a
strictly technical fashion. However that may be, in my judgment, it is
sufficient for the petitioner to rest his case on the original adultery pleaded,
inasmuch as there was a subsequent matrimonial offence with the same adulterer
after the date of the alleged condonation I draw attention to the fact that it
was the same adulterer, because there is authority for questioning whether
adultery with another man would revive the original offence. In that respect
Bernstein v. Bernstein [1892] P. 375, [1893] P. 292, a decision of the Court of
Appeal, may be referred to. (See also Halsbury, Vol. XVI, p pp. 490-1).

   27. There is one small point that I wish to mention. In my judgment on
remand, in stating that the petitioner should have been examined in detail in
support of his allegations I perhaps did the learned Judge unwittingly an
injustice. That was because 1 had overlooked the final sentence of Section 47.
it only shows the difficulty of, in effect, having to do the work of both
counsel and Judge. That sentence provides that the statements contained in the
petitions may at the hearing be referred to as evidence. Therefore, technically,
the learned Judge was entitled to refer to the allegations in the petition as
evidence. On the other hand, speaking for myself, 1 think the ordinary practice,
which is followed in the English Divorce Court, viz., that the parties give viva
voce evidence, should invariably bo followed in every case unless there are some
very good reasons to the contrary.

   28. We think, therefore, that on the evidence now before us there should be a
decree absolute for dissolution of the marriage. There remains the question of
damages. As pointed out in the previous judgment, the learned Judge originally
held that no damages ought to be granted against the co-respondent because they
are not mentioned in Section 10 of the Act. We, however, pointed out that the
relevant section is not Section 10, but Section 34 which clearly provides for
damages. We, therefore, directed the learned Judge to record a finding as to
damages. The learned Judge has not done so having regard to his findings as to
condonation. But with great respect to the learned Judge, in my opinion it was
his duty to record findings to all the questions sent on remand and not to omit
certain answers because of the view he took of the law. The law was for this
appellate Court finally to decide. However, under all the circumstances we do
not propose to send the case back for a second remand. There is evidence here by
the petitioner as to the damages he has sustained by the co-respondent's
conduct, and we think we have power to award them. He says his wife was a good
wife to him, that they lived happily together, and that this lasted some ten or
eleven years. Then the co-respondent formed an improper acquaintance with the
wife; he took her away; the husband got the wife back again and gave her another
chance for some two or three months, and then the corespondent abducted the wife
a second time, and has been living with her ever since. It is clearly,
therefore, a case where the co-respondent has deliberately broken up the home.
Under those circumstances we think it is a ease where damages should be awarded,
and having regard to all the circumstances of the case, and the condition in
life of the parties, and in particular to the loss which we think the husband
has suffered, we think a sum of Rs. 300 would be a proper sum to award as
damages.

   29. Therefore, the order I would pass would be to pass a decree absolute for
the dissolution of the marriage, and to award a sum of Rs 300 as damages against
the co-respondent. He must also pay the costs of the proceedings throughout.

   Crump, J.

   30. I agree.

   Blackwell, J.

   31. I agree.