Lal Changmunga vs Lianpari on 7 January, 1988

    Lal Changmunga vs Lianpari on 7/1/1988

JUDGMENT

   Saikia, C.J.

   1. This is a reference under Section 17 of the Indian Divorce Act, 1869 for
confirmation of decree nisi dated 16-7-87 passed by the District Judge, Cachar
at Silchar under Section 10 of the Act. The petitioner sued for dissolution of
the marriage between him and the respondent. Both of them are Mizos by birth and
Christians by religion.

   2. Examining himself, the petitioner deposed that he married respondent
Lianpari on 12th April, 1979 at Silchar according to Christian rites at Silchar
Christian Mission. In that wedlock a son was born to them in September, 1980.
However, thereafter "non-adjustment and misunderstanding" developed between
them. He was required to go to Shillong for training and during his absence the
respondent ''developed intimacy" with one of his friends and a child was born in
February, 1981, and that she was living separately and so he wanted divorce. He
also stated that the respondent sent affidavit alleging divorce. It appears from
the records that the respondent sent a letter dt. 27-1-87 to the Court
authenticated by a Gazetted Officer stating that she left the petitioner due to
certain grievances against him in April, 1981 causing temporary separation after
they had two children together and she having been pregnant at that time their
third child was born while she was with her parents. During that period the
petitioner was living and was still living, with some other girl as husband .
and wife. Finally, it was stated that she could agree to legal separation of
their marriage only on condition that the first two surviving children, namely,
(1) Zonumanra and (2) Lalramliana be given to her so that their father, in
future, could never claim for their possession. The Court ordered issue of fresh
notice to the respondent by registered post as the earlier notice was not yet
returned It further appears that the respondent, after receiving notice, sent an
affidavit to the Court stating, inter alia, that they separated not on February,
1981 but on 19th May, 1981; that the wrong date was given to deny paternity of
the second child; that they lived together as husband and wife using the same
bed till 18th May, 1981; that she was pregnant at that time; and that the second
child, a boy, named Lalramliana was born on Jan. 20, 1982. The respondent
challenged the petitioner to spell out in a clear term and give the name of the
man alleged to be the father of the second child and asserted that the
allegation was false and affected her moral life. She also stated that no person
as customary go-between was sent by the petitioner to her for bringing her back
to the petitioner and a voluntary return to her husband without the invitation
through a go-between was not in accordance with Mizo custom, and that she was
waiting for such an invitation, but the petitioner instead of sending one has
filed this petition for divorce. She asserted that the second child was sired of
the petitioner's loins; and it was the petitioner who was unfaithful to the
marriage and had three children through his illegal wife Lalmalsawmi. She
emphasised that she never insisted that the petitioner should divorce her and
never compelled him to file any case for divorce. She accordingly prayed that
the petitioner be declared unfaithful to the marriage with her; but as there was
no prospect of happy married life between them a decree nullifying the marriage
could be passed in which the two children, namely, (1) Zonumanra, and (2)
Lalramliana be given to her and the petitioner be suitably penalised for making
the false allegation.

   3. We have perused the records of the case. We find that the petitioner has
not named the person with whom the respondent is alleged to have "developed
intimacy". No co-respondent has been impleaded.

   4. Section 11 of the Indian Divorce Act provides :

     "Upon any such petition presented by a husband, the petitioner shall make
the alleged adulterer a co-respondent to the said petition, unless he is excused
from so doing on one of the following grounds, to be allowed by the Court-

     (1) that the respondent is leading the life of a prostitute, and that the
petitioner knows of no person with whom the adultery has been committed;

     (2) that the name of the alleged adulterer is unknown to the petitioner
although he has made due efforts to discover it;

     (3) that the alleged adulterer is dead."

   In the instant case, the petitioner did not apply for excuse and he was not
excused on any of these grounds by the Court. The adulterer could not be named
by the petitioner despite the challenge thrown by the respondent.

   5. We have carefully perused the petition for divorce and the evidence on
record The petitioner spoke about misunderstanding and non-adjustment between
him and the respondent and that he doubted and denied the paternity of the child
born after the respondent separated from him. The date of separation, according
to the respondent, is 19th May, 1981 in which case the date of birth (January,
1982) of the child would be well within the period of gestation, which the
respondent stated in her evidence. The statement that the respondent refused to
live with the petitioner has also been denied by the respondent saying that no
customary go between was sent inviting her back home. Of course the fact that
the respondent has been living separately for the last six years has not been
denied. The petitioner has not expressly alleged adultery of the respondent with
any one. What he alleged was that she "developed intimacy" with one of his
friends who used to visit her from time to time. The frequency, time and
duration of the alleged visits have not been stated No co-respondent has been
impleaded. Two questions would, therefore, arise. First, assuming that the
allegation of the respondent's developing intimacy with one of the petitioner's
friends to be correct, whether that would be a sufficient ground for divorce?
Secondly, would the circumstances otherwise be enough to provide a ground for
divorce?

   6. As regards the first question what has been alleged in the petition and in
the deposition of the petitioner is that the respondent "developed intimacy"
with a friend of the plaintiff. The learned District Judge has also referred to
this in the order. The respondent denied this allegation and challenged the
petitioner to give the name of the person. Assuming the allegation to be correct
we find that developing intimacy is not synonymous with adultery. Intimacy,
according to Bouvier's Law Dictionary, as generally applied to persons, is
understood "to mean a proper, friendly relation of the parties, but it is
frequently used to convey the idea of an improper relation; an intimacy at least
disreputable and degrading". The same meaning is to be found in the Black's Law
Dictionary.

   7. Adultery has not been defined in the Indian Divorce Act, 1869, 'Incestuous
adultery', as defined in Section 3(6), "means adultery committed by a husband
with a woman with whom, if his wife were dead, he could not lawfully contract
marriage by reason of her being within the prohibited degrees of consanguinity
(Whether natural or legal) or affinity". Adultery may be generally defined as
voluntary sexual intercourse after solemnisation of marriage with any person
other than his or her spouse. It is a voluntary sexual intercourse of a married
person with a person other than the offender's husband or wife. It means
consensus sexual intercourse with one of the opposite sex, while marriage
subsists. In Orford v. Orford, (1921) 47 OLR 15 (Canada) it has been observed:
"The essence of adultery consists in the voluntary surrender to another person
of the productive power or faculties of the guilty person and any submission of
these powers to the service or enjoyment of any person other than husband or the
wife comes within the definition of 'adultery'." Adultery means willing sexual
intercourse, as distinguished fromrape, with one of the opposite sex, while
marriage subsists. Rape is not adultery as a ground for action because it is not
voluntary. Unlawful voluntary sexual intercourse between two persons, one of
whom at least is married, is the essence of the adultery in all cases.

   8. In the instant case the petitioner deposed : "I married Liampari in April
1979 at Silchar. I used to go to Shillong for training. During my absence she
developed intimacy to a friend of mine and a child was born in February 1981.
She is living separately. So I want divorce." Besides denying the allegation,
the respondent stated that they were separated on 19th May, 1981 and that the
child was born on January 20, 1982. Under Section 112 of the Indian Evidence
Act, birth during Marriage is conclusive proof of legitimacy. The fact that any
person was born during the continuance of a valid marriage between his mother an
any man, or within two hundred and eighty days after its dissolution, the mother
remaining unmarried, shall be conclusive proof that he is the legitimate son of
that man, unless it can be shown that the parties to the marriage had no access
to each other at any time when he could have been begotten, 'Access' and 'non-
access' mean no more than existence or non-existence of opportunities of marital
intercourse, as was held in Venkateswarlu v. Venkatanarayana, AIR 1954 SC 176 :
1954 SCR 424. The presumption is conclusive and can only be displaced by proof
of 'non-access' at the relevant time, and the burden is on him who pleads it.

   9. Under Section 10 of the Indian Divorce Act, any husband may present a
petition to the District Court or to the High Court, praying that the his
marriage may be dissolved on the ground that his wife has, since the
solemnization thereof, been guilty of adultery. Developing intimacy with another
person has not been provided as a ground for a petition for dissolution of
marriage under this provision. Under Section 10 every petition for divorce shall
state, as distinctly as the nature of the case permits, the facts on which the
claim to have such marriage dissolved is founded. Under Section 11 the adulterer
has to be made a co-respondent to the petition, unless excused from doing so by
the Court.

   10. Throughout the trial, the burden of proving adultery lies on the person
alleging it, as was laid down in Churchman v. Churchman, (1945) 2 All ER 190,
195.

   11. As regards the next question as to whether adultery can otherwise said to
have been proved, it is the accepted principle that adultery is in the nature of
a quasi-criminal charge and it must be proved with the same strictness as a
criminal charge, namely, ''beyond reasonable doubt". Lord Denning defined the
expression 'beyond reasonable doubt' as follows : "It need not reach certainly
but it must carry a high degree of probability. Proof beyond reasonable doubt
does not mean proof beyond the shadow of a doubt. If the evidence is so-strong
against a man as to leave only a remote possibility in his favour which can be
dismissed with the sentence, 'of course, it is possible, but it is not in the
least probable'. The case is proved beyond reasonable doubt, but nothing short
of that will suffice." In Bastable v. Bastable and Sanders, (1968) 3 All ER 701
and Blyth v. Blyth, (1966) 1 All ER 524, it has been observed that adultery is a
matrimonial offence. It is for the petitioner to satisfy the Court that the
offence has been committed. Whatever the popular view may be it remains true to
say that in the eyes of law, the commission of adultery is a serious matrimonial
offence. It therefore follows that a high standard of proof is required in order
to satisfy the court that the offence has been committed In Bhagwanti v. Sadhu
Ram, AIR 1961 Punjab 181 it has been held that adultery should be proved clearly
and convincingly. A mere possibility is not enough and certainly suspicion
cannot take the place of proof. Under 23 of the Hindu Marriage Act, the words
used are 'satisfied but not otherwise'. This means that it should be beyond
reasonable doubt, as was held in Devyani Kantilal Shroff v. Kantilal Gamanlal.
AIR 1963 Bom 98.

   12. It is common knowledge that adultery is an act often committed with
calculated care and sufficient secrecy. It is, therefore, unrealistic to expect
direct evidence of an eye-witness of the act. Therefore the evidence of key-hole
witness is to be weighed with great caution. What is necessary is reliable
circumstantial evidence pointing to the probability of the carnal connection.
Often two ingredients are found to co-exist. The first is undue familiarity or
intimacy transgressing the bounds of common relationship and propriety; and the
second is reasonable opportunity. If these circumstances are established an
inference of adultery may be reasonable. But there must be a fair inference. The
circumstances must be such an would lead the guarded discretion of a reasonable
and just man to the conclusion. The conjunction of strong inclination, with
evidence of opportunity affords a strong prima facie evidence of adultery, but
it is not irrebuttable. In Clark v. Clark, (1939) 2 All ER 59 where a child was
born after 174 days of the last coitus, it was held that it provided no evidence
of adultery. Circumstantial evidence have to be cumulatively weighed and
assessed.

   13. Considering the facts and circumstances of the case in light of the above
we do not find any inference of respondent having committed adultery.

   14. On the basis of the evidence on record and the facts and circumstances of
the case in the light of the foregoing provisions and principles of law, we hold
that development of intimacy is not synonymous with commission of adultery
within the meaning of the Divorce Act. Undue intimacy coupled with opportunity
may justify an inference of adultery when it is specifically alleged and the
circumstances proved beyond reasonable doubt. In the instant case we do not find
any such allegation or proof. The plaintiff-petitioner has also not complied
with the mandatory procedure of impleading the corespondent. He has thus failed
to make out a case for dissolution of marriage.

   15. For the foregoing reasons, we are unable to confirm the decree nisi which
we accordingly refuse to confirm; and we reject the reference.