Sm. Susama Singh vs Sri Sailendra Nath Singh And Anr. on 27 January, 1961

    Sm. Susama Singh vs Sri Sailendra Nath Singh And Anr. on 27/1/1961

JUDGMENT

   Bhattacharya, J.

   1. This is a reference under Section 17 of the Indian-Divorce Act for
confirmation of a Decree Nisi parsed by an Additional District Judge of Alipore
in an application under Section 10 of the Indian Divorce Act filed by Sm.
Susaina Singh against her husband, Sailendra Nath Singh, under Section 10 of the
Indian Divorce Act for dissolution of their marriage.

   2. Both parties are Indian Christian and both are of Indian domicile. The
parties were married at the Methodist Church, Dum Dum on 27th June, 1945. The
marriage was consummated. The parties lived together as husband and wife for the
last time on 24th August, 1950 at 3/1, Jannagar Second Lane at Entally within
the jurisdiction of Alipore Court. The petitioner is now living at her father's
place at 218, Lalji Shah Road, Dum Dura which also is within the jurisdiction of
the Court of Alipore. The respondent contested the jurisdiction of the learned
Additional District Judge who heard the application. But since both parties were
living together at 3/1 Jannagar Second Lane within the jurisdiction of the
Alipore Court for the last time, the learned Additional District Judge was
competent to hear the case. The husband raised a point that in a previous
application for divorce filed by the petitioner, which was with-drawn
ultimately, 22/1D Dixon Lane, which is beyond the jurisdiction of the Court of
Alipore, was mentioned as the place where the husband and wife bad lived
together for the last time. But the petitioner in the present proceeding has
explained that it was a mistake. The respondent, the husband, had previously
filed a petition under Section 10 of the Indian Divorce Act on 23rd September,
1953, and there stated that he and his wife last lived together at 3/1 Jannagar
Second Lane. In view of these facts and circumstances the learned Additional
District Judge was justified in holding that he had jurisdiction to hear the
application.

   3. The allegations are of adultery and desertion. According to the petitioner
the parties lived as husband and wife for the last time on 24th August, 1950. On
26th August next the respondent drove her out and left her at her father's place
at 218 Lalji Shall Road, Dum Dum, A point was taken that there was unreasonable
delay in presenting the petition for divorce which was filed on 14th May, 1957.
The petitioner had stated that she could not file the suit earlier as she had
not enough money to file one and that she was hoping that her husband would
return to her. The petitioner is getting a monthly salary of only BE. 75/-. In
the circumstances the plea of poverty may be accepted. She was expecting that
her husband would return to her as all women in such circumstances might. But
that would not amount to condonation of the offence in question, namely,
adultery.

   4. Even before 24th August, 1950, according to the evidence, the co-
respondent Depali used to meet the respondent. The petitioner has proved that
since then respondent No. 1 has gone through a form of marriage with Dipali, the
co-respondent, in 1955 and there is a son born of their union. Respondent No. 1
has, therefore, committed bigamy with adultery. It cannot be said that the
marriage with Dipali was a valid marriage. There was bigamy. In the eye of law
Dipali would not be deemed to be a legally married wife. The parties were
married according to Christian rites, as it would appear from evidence. Extract
from the Marriage Register, exhibit 3 has been filed to show that the marriage
was performed in Church. It was not an ordinary registered marriage. P. W. 2.
Peter Sarcar, has stated on oath that the officiated as priest in the marriage.
A child was born of this union in the Eden Hospital. Respondent No. 1 admits
both the form of marriage and the birth of the son. In the circumstances the
undisputed fact remains that during the subsistence of the marriage with the
petitioner respondent No. 1 did commit adultery within the meaning of law. There
was bigamy, and the offence is clearly one of bigamy with adultery.

   5. Cruelty was alleged initially but no satisfactory evidence was led on this
point and consequently it was not ultimately pressed and the learned Judge did
not come to any finding in favour of the petitioner in regard to the allegation
of cruelty.

   6. The evidence, however, makes out a case of desertion. After leaving Susama
Singh at 218, Lalji Shah Road on 26th August, 1950, the respondent No. 1 never
took any steps to bring her back or to maintain her. The learned Judge has
negatived the plea of respondent No. 1 that it Was the petitioner who had
deserted the husband. There is nothing on record to justify a contrary finding.
The very fact that the husband went through a form of marriage with another
woman and was living with her and had a child by her would in the circumstances
strengthen the inference of desertion as testified to definitely and positively
by the petitioner. The learned Judge's finding, therefore, on this point also
cannot be assailed.

   7. On a careful consideration of the facts and circumstances we are of the
opinion that the decree in question should be confirmed and we order
accordingly.

   8. Cost of hearing is assessed at five gold mohurs. Let the records be sent
down immediately to the Court of the learned Additional District Judge so that
further proceeding, if any, might be taken specially in regard to the question
of alimony.

   Banerjee, J.

   9. This is a reference under Section 17 of the Indian Divorce Act for
confirmation of the Decree Nisi, passed by an Additional District Judge of
Alipore, in favour of Sm. Susama Singh, for dissolution of her marriage with
respondent No. 1, Sailendra Nath Singh. The prayer for divorce was made on the
ground of cruelty and adultery with desertion. The husband filed a written
statement challenging the allegations made by the petitioner wife and in that
written statement he also made certain counter allegations against the wife. On
the date the case was taken up for hearing, the husband, did not appear. The
petitioner, wife gave extremely scrappy evidence on the merits of the claim as
hereinbelow set out:

     "On 24th August, 1950, I was driven away by the respondent. Since then he
is not maintaining mo, I have not colluded with him to bring the suit nor have I
condoned the conduct."

   Upon the aforesaid type of evidence, however, the trial court found that the
allegations of cruelty, adultery and desertion, as alleged by the petitioner,
had been proved. On the findings as aforesaid the trial court granted a decree
for dissolution of the marriage.

   10. On the matter coming before this Court for confirmation, under Section 17
of the Indian Divorce Act, this Court found itself unable to accept the
findings, because of the absence of supporting evidence and to confirm the
decree. In the aforesaid circumstances this Court remanded the case for retrial
with the following observations:

     (a) "It is really strange that even though no evidence was adduced by the
petitioner in support of her allegation of adultery as against respondent,
Sailendra Singh, the learned Judge should have come to the affirmative finding
that the charge of adultery, as levelled against respondent No. 1, stands
proved. Similarly, in respect of the charge of cruelty the learned Judge has
found against the respondent, even though no evidence on the point worth the
name was adduced by the petitioner.''

     (b) "The learned Judge observes inter alia in his judgment that respondent
No. 1 does not contest the suit and prove that he was not leading a life of
adultery with the respondent No. 2. This observation shows that the learned
Judge had approached the case from a wrong angle. It is apparent that the onus
of proof had been wrongly placed upon the respondent. It was for the petitioner
to prove that the respondent was living a life of adultery and not vice versa."

     (c) "There is another point which calls for some comment. While dealing
with the question of collusion the learned Judge has come to the finding that it
did not appear that the petitioner had colluded with her husband nor did it
appear that she had condoned his conduct. Upon the allegations made by the
petitioner she was deserted on 24-8-50, the present application under Section 10
for dissolution of marriage was made on 14-5-57. There was apparently
considerable dealy in filing the application for dissolution of marriage. No
explanation was given, however, in the petition itself, or for the matter of
that, in the evidence adduced by the petitioner as regards the reason for this
rather unusual delay. Unless satisfactory explanation is offered for this delay,
the court would be entitled to draw an adverse inference against the
petitioner."

   11. After the case went back on remand, the petitioner wife and the
respondent No, 1, husband, both led evidence. The petitioner appears to have
ceased to emphases on the charge of cruelty. The issues framed, after remand, in
so far as they are relevant for the present purpose are:

     "(1) Are the parties Indian Christians and domiciles of India?

     (2) Do they live within the jurisdiction of this Court?

     (3) Is the respondent No. 1 guilty of adultery as alleged with the co-
respondent No. 2? Did the respondent No. 1 desert the petitioner?

     (4) Is the petitioner entitled to a decree for dissolution of marriage?

* * * *

     (5) Has the petitioner colluded with the respondent No. 1 in filing this
suit? Has she condoned the conduct of her husband the respondent No. 1?"

   12. The Court below came to the conclusion that both the husband and the wife
were Indian Christians and were domiciled in India, The court below also found
that the petitioner wife and the respondent No. 1 husband last resided together
at 3/1, Jannagar Second Lane, within the territorial Jurisdiction of the trial
Court. The court below further found as follows:

     (a) "It is seen from the petition that the petitioner bases her claim on
the ground that the respondent No. 1 has committed bigamy with adultery with the
respondent No. 2 or because of his marriage with the respondent No. 2 with
adultery or because of his adultery coupled with the desertion without
reasonable excuse for two years or upwards. The petitioner has proved by her
evidence and the evidence of the Pastor in Calcutta Baptist Church, Peter Sarcar
(P. W. 2) that the respondent No. 1 has married respondent No. 2 4/5 years ago.
The marriage certificate is ext. 3. The respondent No. 1 in his evidence also
stated that he had married Dipali, respondent No. 2, in 1955. It is also in the
evidence of the petitioner, and the respondent No. 1 that there has been an
issue born of Dipali by respondent No. 1. The respondent No. 1 also stated that
he is living with Dipali since he has gone through a form of marriage with her
in 1955. On this evidence it is clearly proved that the respondent No. 1 has
committed bigamy with adultery. The ground of his marriage with another woman
with adultery has been made out. I hold that the petitioner is entitled to a
decree for dissolution of marriage on this ground.

     All allegations against the husband for living in adultery with Dipali
before 24-8-50 will not require any consideration as by the resumption of
cohabitation on 24-8-50 those would be deemed to have condoned. I am satisfied
on the evidence that there is no collusion or connivance on the part of either
the petitioner or the respondent No. 1.

     (b) The husband made a counter charge against the petitioner in the written
statement saying that she is living a wayward life and pursuing a course of life
resented to by him, The husband however did not give any evidence to satisfy the
Court about the counter charge.

     (c) I am satisfied on the evidence that the petitioner is not guilty of
unreasonable delay in presenting or prosecuting her petition. She filed the
petition on 14-5-57. She stated that she could not file the suit till 1957 as
she had not enough money to file one and that she was hoping that her husband
would return to her. She stated that she waited in the hope of her husband's
mending his conduct. I believe that evidence.

     (d) The petitioner wife denied that she deserted her husband in 1946. She
stated that she took training in nursing from Duffrin Hospital in 1946, when
staying with her husband. In her application for such training she gave her
address as 218, Lalji Shah Road, as married women were not given that training.
The husband stated that he wrote a letter to the petitioner in 1948 asking her
to come and that he met her while she was taking training in the Duffrin
Hospital, that he did not get any reply to his letter and that he had cut off
all connections with her from that time. This in a way lends support to the
petitioner's case that she had been deserted by the respondent No. 1 at least
from 1950. This is the entire evidence.

     This evidence coupled with the evidence that the respondent No. 1 had been
living with Dipali after going through a form of marriage in 1955 and had
begotten a son on her proves that there has been a desertion coupled with
adultery.

     (e) The husband stated that the wife condoned his conduct. The wife denied
that. The husband did not try to prove it. This plea is in a way contradicted by
the husband's evidence that he had cut off all connections with the wife from
the time of his seeing the wife in Duffrin Hospital in 1948. I hold that there
has been no condonation."

   13. On the aforesaid findings the Court below dissolved the marriage of the
petitioner wife with the respondent No. 1 and passed a decree Nisi in favour of
the petitioner. The matter is now placed before this Bench for confirmation,
under Section 17 of the Indian Divorce Act.

   14. Under Section 10 of the Indian Divorce Act, a wife may present a petition
for dissolution of marriage, inter alia, on the ground that the husband has been
guilty of bigamy with adultery or of marriage with another woman with adultery.
The expression "bigamy with adultery" is defined in Section 3(7) of the Indian
Divorce Act as follows:

     "Bigamy with adultery means adultery with the same woman with whom bigamy
was committed."

   The expression "marriage with another woman" is defined in Section 3(8) of
the Indian Divorce Act, as hereinbelow set out:

     "Marriage with another woman means marriage of any person being married to
any other person during the life of the former wife, whether the second marriage
shall have taken place within the Dominion of India or elsewhere".

   15. The expression "marriage with another woman with adultery" is, however,
not defined in the Indian Divorce Act. This last expression came up for
consideration before the Lahore High Court, in a case reported in 'Sainapatti v.
Sainapatti, AIR 1932 Lah 116 and Currie, J., in delivering the judgment,
observed as follows:

     Though as already noted bigamy with adultery' is specifically defined as
meaning adultery with the same woman with whom the bigamy was committed,
'marriage with another woman with adultery' is not defined. The definition
contained in Section 3(8) merely deals with "marriage with another woman'

* * * *

     Rattigan in his commentary .... .... ..... .... remarks that if a man after
such second marriage co-habits with such woman, the wife is entitled to apply
for dissolution of marriage just as she would have been entitled to apply if the
husband would have been guilty of 'bigamy with adultery'. No authority is cited
by him but it seems reasonable to suppose that that was the meaning and
intention of the legislature when differentiating between 'bigamy with adultery'
and 'marriage with another woman with adultery."

   The Lahore decision was approvingly referred to in Mrs. Chitnavis v. A. S.
Chitnavis in which a Special Bench of the Nagpur High Court, consisting of Stone
C. J. and Gruer and Vivian Bose, JJ., observed as follows;

* * * *

     "Under Section 10 of the Divorce Act a sharp-distinction is made between
bigamy with adultery and a second marriage with adultery, and the second case
can only apply where a marriage, while the marriage in question is subsisting,
is lawfully contracted. If the party manrying is not entitled to have more than
one wife, the second marriage would be bigamous. It is also pointed out that it
had been held in AIR 1932 Lah 116 that where the marriage is in Christian form
and a. second marriage takes place, while the first Christian wife is living,
with a Hindu in a Hindu form, though the second marriage does not amount to.
bigamy, it amounts to a second marriage and if that marriage is consummated the
consummation vis-a-vis the first wife amounts to adultery and forms a ground for
divorce on the petition o the first wife."

   The word 'Bigamy' is borrowed from English law. Every one commits the felony
called bigamy, who being married, marries any other person during the life of
his or her wife or husband. (See Rule v. Russel, 1901 AC 446). Section 494 of
the Indian Penal Code punishes the crime known to English law as. bigamy as set
out below:

     "Whoever having a husband or wife living marries in any case in which such
marriage is void by reason of its taking place during the life of such husband
or wife shall be punished with imprisonment of either description for a term
which may extend to seven years and shall also be liable to fine."

   The real distinction between 'bigamy with adultery' and 'marriage with
another woman with adultery' appears to be that there is 'bigamy with adultery
when the second marriage is null and void under any law but still then there is
co-habitation; 'marriage with another woman with adultery' happens when the
second marriage, though taking place during the life time of either the husband
or the wife is not void under any law and there is co-habitation between the
husband and the last married wife. It may be difficult to conceive adultery with
one's own wife or husband, the marital union between whom does not become void
under any law, but nevertheless that may be the distinction which the section
contemplates. The distinction, that I have in mind, also finds support from the
following observations by Currie, J. in the case reported in AIR 1932 Lah 116
(supra)

     "From this apparently it would follow that to constitute bigamy the second
marriage must be such as would render the person contracting it liable for
punishment under the Indian Penal Code. In the present case the respondent being
a Hindu would not in this Country be precluded from marrying a second wife
during the life time of the first, I am, therefore, of opinion that that is
doubtful whether his marriage * * could be held to bring him within the scope of
Section 494 I. P. C., as the marriage would not be void by reason of its taking
place during the life of his first wife. I am, therefore, of the opinion that
the petitioner cannot claim divorce on the ground that the respondent has
committed 'bigamy with adultery'."

   In the instant case the, parties are Indian Christians and the marriage
between the petitioner and the respondent No. 1 was solemnised according to the
Christian rites. Under Section 19 of the Indian Divorce Act, one of the grounds
for declaration of nullity of marriage is :

     Section 19(4) - that the former husband or wife of either party was living
at the time of marriage and the marriage with such former husband and wife was
then in force.

   As such the marriage between respondent No. 1 and the co-respondent Dipali,
taking place in 1955, when the marriage between the petitioner and respondent
No. 1 was still subsisting, was a marriage which was null and void and a
bigamous marriage as such, because the last marriage also was said to have been
performed according to the Christian rites. About the form in which the last
marriage took place there is the evidence of P. W. 2, Peter Sarcar who deposed
to the following effect:

     "I am priest in Calcutta Baptist Church. I married Sailendra Nath Singh
(shows respondent No. 1) to Dipali in my Church 4/5 years ago. I was priest in
that marriage. I made this entry relating to their marriage in her Marriage
Register, marked Ext. 1 (sic Ex. 3). Sailen Singh and Dipali signed the Register
themselves".

   This is some evidence that the marriage between the co-respondent Dipali and
the respondent No. 1 was performed according to the Christian rites. I hold, for
the purpose of this case, that the marriage between respondent No. 1 and Dipali,
the co-respondent, was performed according to Christian rites. There is no
dispute that there was co-habitation between respondent No. 1 and the co-
respondent Dipali and a child was born to them. On the above evidence the
respondent No. 1 was guilty of bigamy with adultery. The petitioner is,
therefore, entitled to claim divorce on that ground. The Court below was not
right in holding that the respondent No. 1 was guilty of marriage with another
woman with adultery.

   16. It is true that there was no issue framed as to whether respondent No. 1
was guilty of bigamy with adultery. I do not think, however, that this caused
any prejudice to respondent No. 1. He does not also appear before us to make any
grievance.

   17. Regarding the delay in claiming divorce, the finding of the Court below
is that the wife petitioner had not sufficient fund to start the proceeding
earlier and also that she hoped that the husband might come back to her. Since
the court be-low was satisfied, on that evidence, that there was no unreasonable
delay, I do not desire to differ from that finding, in the facts of this case.

   18. The court below was also satisfied on the evidence that there was no
collusion between the parties and no connivance or condonation and I accept that
finding.

   19. In the result, I agree with the order passed by my Lord, Bhattacharya, J.

   Niyogi, J.

   20. I agree with my Lords that the decree of dissolution of marriage passed
by the learned Additional District Judge, Alipore should be con firmed.