At, High Court of Judicature at Madras
By, THE HONOURABLE MR. JUSTICE VENKATARAMAN
For the Appearing Parties: ------------
1. This is an appeal by a Christian husband against the order dated 3-2-1965 of the learned District Judge, Kanyakumari, dismissing his petition O. P. No. 41 of 1964 filed under Section 32 of the Indian Divorce Act, 1869, for restitution of conjugal rights. The appellant and the respondent Abraham Nadachl, were married according to the Christian rites in 1956. The petition itself starts by saying that there was an estrangement between the parties. As a result thereof, the wife filed M. C. No. 31 of 1961 before a Magistrate under Section 488 of the Criminal Procedure Code and obtained an order for maintenance of Rs.25/- per month. The date of this order appears to be 2-3-1962. The husband for his part, filed O. P. No. 44 of 1962 for restitution of conjugal rights in the Court of the District Judge Kanyakumari. The appellant, however, did not press that petition and an endorsement was made by him on 28-3-1963 to the following effect. "It is unnecessary to proceed with the petition." The wife and her counsel made an endorsement "I agree". That petition was accordingly dismissed. (After discussing the evidence in Paras 2 to 17 his Lordship proceeded).
18. It is thus abundantly clear that the specific case of the husband that his wife rejoined him on 25-2-1963, that the petition was dismissed on 28-3-1963 because of that circumstance and that she left the house abruptly on 22-8-1963, is false. It is also clear that another woman by name Bhai is living with him in his house. Learned counsel for the appellant, however, argues that even on these facts the appellant is entitled, as a matter of right, to restitution of conjugal rights. The argument is that under Section 33 of the Indian Divorce Act nothing shall be pleaded in answer to a petition for restitution of conjugal rights which would not be ground for a suit for judicial separation or for a decree of nullity of marriage. Section 22 lays down the grounds for judicial separation, namely, adultery, cruelty, or desertion without reasonable excuse for two years or upwards. It is urged that these elements have not been proved. The grounds
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for nullity of marriage are set out in Sections 18 and 19 of the Act. But the facts proved would not bring the case within those provisions.19. The argument is, however, untenable, because in the first place, adultery on the part of the husband has been established, because it has been proved that he has been living with Bhai and having continuous sexual intercourse with her. There is no proof that Bhai is a married woman. But, for the purpose of the Indian Divorce Act, 1869, it is not necessary that Bhai should be a married woman in order to hold that the appellant is guilty of adultery. The word 'adultery' has not been defined in the Act, and, therefore, the ordinary dictionary meaning must be applied. In Websters New English Dictionary, 1888, the following meaning is given :"Violation of marriage bed; voluntary sexual intercourse of a married person with one of the opposite sex, whether unmarried or married to another; (the former case being technically designated single, the latter double adultery)."The same meaning is given in Fowler's Concise Oxford Dictionary :"Voluntary sexual intercourse of married person with one of opposite sex married (double adultery) or not (single adultery)."No doubt, under Section 497, I. P. C. in order that a man can be guilty of adultery, the woman must be a married person. The actual definition of the offence runs thus :"Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with "imprisonment of either description for a term which may extend to five years, or with fine or with both. In such case the wife shall not be punishable as an abettor."Only one form of adultery has been made punishable by that section. It will be noted that under that provision a married woman is not guilty of adultery even as an abettor. If there is consent or connivance of the husband, then there will be no offence of adultery. There is no reason why this specialised definition of adultery should be extended to the interpretation of Section 32 of the Indian Divorce Act. It may be noted that under that section the husband may obtain a decree of judicial separation on the ground of adultery committed by the wife, though as we have seen, under Section 497, I. P. C. the wife will not be guilty of the offence of adultery under Section 497, I. P. C. This itself shows that the narrow definition of adultery in Section 497, I. P. C. cannot be applied to the interpretation of the terms of Section 22 of the Indian Divorce Act, 1869. Further, the principle underlying the relief of judicial separation on the ground of adultery of the spouse, namely, violation of the marriage bed, makes it immaterial whether the woman with whom the husband has sexual relationship is a married woman or not. The offence under Section 497, I. P. C. is against the husband with whose wife another man has committed adultery. But wider considerations apply when a husband or wife seeks judicial separation or dissolution of the marriage on the ground of adultery. In the latter case, it is the violation of the marriage tie which is relevant.20. The above view has been taken by a Special Bench of three Judges of the Calcutta High Court in Gomes v. Gomes, A.I.R. 1959 Calcutta 451 (SB). There, the wife filed a petition for dissolution of her marriage with her husband (under Section 10 of the Indian Divorce Act, 1869) on the ground that he was guilty of adultery coupled with cruelty, and adultery coupled with desertion, without reasonable excuse, for two years or more. The trial Court accepted her case, passed a decree and made a reference under Section 17 to the High Court for confirmation of the decree. The learned Judges accepted the findings. There was no difficulty so far as cruelty and desertion without reasonable cause were concerned. So far as adultery was concerned, the evidence showed that the husband had been keeping another house where he was living with girls of bad repute. Actually on one occasion when those premises were visited, a girl of bad repute was found lying on the bed with her body covered with a sheet upto the throat. The learned Judges, therefore, accepted the case that the husband was living with women of questionable character. There was no proof that those persons were married. But it was held that it was immaterial and that the husband was guilty of adultery for the purpose of the Indian Divorce Act. It was pointed out that the narrower definition in Section 497, I. P. C., could not be applied to the Indian Divorce Act because the purposes of the two enactments were entirely different. The learned Judges observed that under Section 7 of the Act the Court shall follow the principles and rules followed by the Court for Divorce and Matrimonial Causes in England. They quoted the definitions from Halsbury's Laws of England, Murray's Oxford Dictionary and the decision in Abson v. Abson, 1952 P 55 : (1952) 1 All ER 370. In Halsbury Volume 12, page 235 in paragraph 444 under the heading "Meaning of adultery", it is stated :"For the purposes of relief in the matrimonial jurisdiction adultery means consensual sexual intercourse during the subsistence of the marriage between one spouse and a person of the opposite sex not the other spouse."It is not stated anywhere there that the other person should be married. In Latley on Divorce 14th edition (1952) at page 74 it is stated :"In the Divorce Court, adultery means willing sexual intercourse between a husband or wife and one of the opposite sex while the marriage subsists."I have already quoted the definition in Murray's Oxford Dictionary. The Judges also quoted from Tomlins Law Dictionary:"The sin of incontinence between two married persons or if but one of the persons be married, it is nevertheless adultery, but in this last case it is called single adultery or distinguish it from the other which is double".Stroud's Judicial Dictionary defines "adultery"."The offence of incontinence by married persons".It is not stated as a further requisite that the other person should be married.21. In Rayden on Divorce (10th edition) in paragraph 107 at page 172 it is stated :"For purposes of relief in the Divorce Division, adultery may be defined as consensual sexual intercourse between a married person and a person of the opposite sex, not the other spouse, during the subsistence of the marriage."It is not stated that the other person should be a married person. Indeed, by necessary implication of the discussion in what are called "Hotel Cases" and "Brothel cases" (paragraphs 116 and 117) at pages 186 and 187 it is clear that the other person need not be married. Thus at page 186 under the heading "Hotel cases" it is stated :"Where the only evidence of adultery is that the respondent stayed at an hotel or boarding house with a woman, of whom nothing further is known the Court views the case with some suspicion. The Court must be satisfied that the true case is before it, not a mere cover or a sham, nor putting on an act to provide the petitioner with evidence. There is, therefore, need in some cases for the petitioner to prove a background of an adulterous association; and, where no such background is proved, the Court is not always prepared to make a finding of adultery where a hotel bill is produced and a witness from the hotel is called to say that the respondent and a person of the opposite sex were in a bedroom together. There should be proof of disposition as well as of opportunity for committing adultery. If the name or identity of the woman is not known to the proposed petitioner, she should, before filing a petition request the proposed respondent to furnish it. But if the evidence of adultery is otherwise conclusive, the Court will grant relief. Notwithstanding that nothing is known of the woman's name or Identity."Similarly in paragraph 117 under the heading "Visiting a brothel" it is stated :"It has been said that the fact of a woman going to a brothel with a man furnishes conclusive proof of her adultery. Although the fact of a married man doing so may not raise an irrebuttable presumption against him. still the onus on him, would scarcely be discharged by the denial of himself and of a woman, with whom he was alone."22. In the Calcutta decision cited above the learned Judges further pointed out that Section 46 of the Indian Divorce Act says that the forms set forth in the schedule to the Act might be used, and form No. 5, which may be used by the wife for judicial separation on the ground of her husband's adultery, sets out for instance in paragraph 4 that on divers occasions in the months of October, November and December her husband committed adultery with a certain woman, who was then living in the service of her husband at their residence. The wife is not required to state that the other woman was married. Similarly, it is pointed out that incestuous adultery is a ground for dissolution under Section 10 of the Act, and the definition of "incestuous adultery" in Section 3(6) is "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". Thus, the only requisite is that the woman falls within the prohibited degree, and it is not necessary that the adultery must be committed with a married woman.23. The learned Judges of the Calcutta High Court also followed a decision of a Full Bench of this Court in Gantapalli Appalamma v. Gantapalli Yellayya, (1897) ILR 20 Mad 470. It was a case which arose under the provisions of Section 488 of the Criminal Procedure Code, as it then stood, namely, that a Magistrate may make an order for maintenance in favour of the wife, even though the husband offers to maintain his wife on condition of her living with him, if the Magistrate is satisfied that the husband is living in adultery. In one case, the adultery was alleged to have been committed with a widow, and in the other case with a concubine who had lived with the husband for many years. The Magistrate ordered maintenance in each of those cases. The Sessions Judge made a reference to the High Court on the ground that the adultery alleged was not within the definition of the offence of adultery in the Indian Penal Code and referred to Section 4 of the Criminal Procedure Code which says at the end that all words and expressions used herein, and defined in the Indian Penal Code, and not hereinbefore defined shall be deemed to have the meanings respectively attributed to them by that Code. The Full Bench held that the Magistrate was right and that the word "adultery" as used in Section 488, Criminal Procedure Code, should not be interpreted in the narrow manner indicated in Section 497 of the Indian Penal Code. With reference to the definition in Section 4 of Criminal Procedure Code, they point out that the opening words state "unless a different intention appears from the subject or context" and that the context of Section 488, Criminal Procedure Code itself clearly showed that the strict definition of Section 497, I. P. C., would not apply to Section 488, Criminal Procedure Code Subramania Ayyar, J., observed :"What difference does it make to the wife whom the husband has neglected or refused to maintain, whether the woman with whom he is living in adultery is a married woman or not and, if the woman be married, whether the woman's husband connives at the adultery or not. So far as the wife is concerned her grievance is all the same. Therefore while in Section 497. Indian Penal Code, adultery of one specific description only is dealt with. it is clear that in Section 488 of the Criminal Procedure Code adultery is used in the wider and ordinary sense of voluntary sexual connection between either of the parties to the marriage and some one, married or single of the opposite sex other than the offender's own spouse..... Now looking to the context, a different intention cannot but be inferred, considering that the offence of adultery under Section 497 of the Indian Penal Code, as already observed, is one against the husband, whereas under Section 488 of the Criminal Procedure Code, the term includes cases where the wrong done is to the wife."Similar observations are made by the other Judges. Benson J., for instance, observed :"The "adultery" there contemplated is, I think, adultery in the popular sense of the term, viz., a breach of the matrimonial tie by either party."Abson v. Abson, 1952 P 55 : 1952-1 All ER 370, referred to by the Judges of the Calcutta High Court, was a case where the wife had obtained a decree for divorce, which was made absolute in 1948 on the ground of desertion by the husband. She was receiving maintenance from the husband. In 1951, the husband applied for the discharge of the maintenance order on the grounds that the wife had committed adultery with a married man Rayner. The application was under Section 7 of the Summary Jurisdiction (Married Woman) Act, 1895. The wife contested the application on the ground inter alia that after the divorce she was no longer a married woman and that, therefore, the Act would not apply. The argument was rejected. What is important for us is that it was recognised that in the ordinary Divorce Court where relief of judicial separation or divorce is sought on the ground of adultery by the other spouse, it does not matter in the least whether the third party named as the adulterer or adulteress is or is not married. Learned counsel for the wife himself conceded that that was the position in the ordinary Divorce Court where judicial separation or divorce is sought, but contended that the position was different under Section 7 of the Summary jurisdiction (Married Woman) Act, 1895.24. For all these reasons, I hold that by continuous sexual association with the woman Bhai, keeping her in his house, the appellant has been guilty of "adultery" for the purpose of judicial separation under Section 22 of the Act and that consequently that is a valid defence for the wife under Section 23 to his application for restitution of conjugal rights.25. Even if there be any doubt on the above point, the appellant is bound to fail because of the wording of Section 32 itself. That section says :"When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, either wife or husband may apply, by petition to the District Court or the High Court, for restitution of conjugal rights and the Court, on being satisfied of the truth of the statements made in such petition, and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly."Under this section, it is necessary for the husband, who has come before the Court seeking the relief of restitution of conjugal rights, to prove that the wife has without reasonable excuse withdrawn from his society. The burden is on him to show the absence of reasonable excuse on the part of the wife for her withdrawal from his society. Now it is obvious that when the husband is living with another woman Bhai having sexual connection with her and even having children by her, it is a reasonable excuse for his wife to withdraw from him. That is the view taken in several decisions both in India and in England of Sections 32 and 33 of the Indian Divorce Act and the provisions of Section 9 of the Hindu Marriage Act, 1955, which runs thus:"9 (1) When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the District Court for restitution of conjugal rights and the Court, on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly.(2) Nothing shall be pleaded in answer to a petition for restitution of conjugal rights which shall not be a ground for judicial separation or for nullity of marriage or for divorce."The decisions have all been summarised in the commentary of Chaudhari on "The Hindu Marriage Act, 1955" (Third Edition) (Eastern Law Time) under Notes 6 and 12 of Section 9. Some of them are : Rebarani Sen v. Ashit Sen, A.I.R. 1965 Calcutta 162; Shakuntalabai v. Baburao, A.I.R. 1963 Madhya Pradesh 10; Gurdev Kaur v. Sarwan Singh, A.I.R. 1959 Punjab 162; Tulsa Pannalal v. Pannalal Natha, A.I.R. 1963 Madhya Pradesh 5 and Putual Devi v. Gopi Mandal, A.I.R. 1963 Patna 93. It is pointed out at page 116 :"Where the behaviour of the petitioner had given the respondent a reasonable excuse for withdrawing from the society of the petitioner, the petitioner fails to establish prima facie case. In such a case the petition shall fail not because of any defence set up by the respondent, but it cannot succeed on account of the non-fulfilment of one of the essential ingredients of sub-section (1). Thus, it will be seen that the 'reasonable excuse' need not be identical with the 'defences' permitted under sub-section (2), English case law leaves no doubt that there may be 'a reasonable excuse' which is not one of the grounds mentioned in sub-section (2) and may be something less than a justification for judicial separation or annulment or divorce but may still justify the Court in refusing the prayer for restitution of conjugal rights. Timmins v. Timmins, (1953) 2 All ER 187."I think this is the correct statement of the law. To the same effect is the commentary in "Ravden on Divorce" at pages 205 and 227, where it is pointed out; that for grave and weighty conduct on the part of the husband, the wife may be justified in withdrawing from his society even though she may fail to establish that the husband has committed a matrimonial offence. Several cases are quoted including (1953) 2 All ER 187. It is not necessary to discuss the cases because it is clear that there cannot be a greater justification for the wife withdrawing from the society of her husband than the presence of another woman in the house of the husband with whom the husband has been having sexual connection continuously.26. In the result, the appeal is dismissed, but without costs.27. I must record that considerable assistance was rendered to the Court by Sri V. Janakiraman, learned counsel appearing for the appellant.Appeal dismissed.
"1970 AIR (Mad) 434,"