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.