V. Varadarajulu Naidu v. Baby Ammal

JUDGMENT

This appeal is preferred against the order of the Subordinate Judge, Chingleput, in O.P No. 1.5 of 1957, refusing to grant a divorce to the appellant under S. 13 (1) of the Hindu Marriage Act XXV of 1955.

The appellant married the respondent on 18th September, 1946, at Nandivaram. The parties led a happy married life till 1952. It is alleged in the petition that subsequently the respondent contracted illicit intimacy with one Kamalanathan Naidu, who was living in the same village. When the appellant and his father came to know of this intimacy, they chided her for her misconduct. The respondent then left her husband's protection and went to her mother's place at Rajkilpakkam. Kamalanathan Naidu followed the respondent and lived with her for some months at Rajkilpakkam. Subsequently the respondent deserted Kamalanathan and contracted illicit intimacy with one N. S. Mani and was living with him at Washermenpet. During her stay with N.S Mani, she conceived and it is alleged that she aborted the child in the Chingleput Headquarters Hospital. The appellant also alleged that during her stay with Mani, they posed for a photo together. The respondent subsequently deserted Mani also and at the time of filing the petition, she was living with one Sait at No. 45/4, Iswaran Koil St., Old Mambalam. When the appellant was taking steps to take divorce proceedings, the respondent gave a notice to him containing false allegations and also offering to live with him. The appellant filed the petition out of which this appeal arises for dissolution of the marriage between him and the respondent on the ground of adultery under S. 13 (1) of Act XXV of 1955.

The petition was stoutly resisted by the respondent. She denied the allegations made in the petition about her living in adultery with Kamalanathan and N.S Mani. She stated that she never went to the Chingleput Hospital for abortion and that the photo said to have been taken by her with Mani was a faked one. She alleged that the appellant is a man of weak intellect and is under the control of his parents, who want to arrange for his marriage with a girl related to them. She denied having lived with Mani at Washermenpet. It is also alleged by her that her father-in-law attempted to get a letter of consent from her offering to pay Rs. 200 as consideration for her consent to the re-marriage of the appellant. She also stated that when she came to know that preparations were going on for the re-marriage of the appellant, she gave a notice to him, which led to the appellant filing the petition for dissolusion of marriage.

The learned Subordinate Judge of Chingleput before whom the petition came up for trial found that the appellant has not proved by any reliable evidence that the respondent was living in adultery with N.S Mani, and that regarding the respondent living with one Sait at Mambalam, the appellant has not let any evidence at all and has made no attempt to examine any of the neighbours of the Sait in support of his case. In view of these findings, the learned Judge dismissed the petition. It is against the dismissal of this petition, that the appellant has preferred this appeal.

This case rests mainly on the oral and circumstantial evidence. The question for consideration is whether the appellant had adduced satisfactory evidence in support of his case that the respondent was living in adultery. In Davis v. Davis(1) while considering the standard of proof required in divorce cases, Denning, L.J observed at page 42:

“……A suit for divorce is a civil and not a criminal proceeding. One would expect, therefore, to find that in the ordinary way the rules of civil procedure and not the rules of criminal procedure would apply to divorce suits. The standards and rules of the criminal Courts have been built up out of the high regard which the law has for the liberty of the individual. No man's liberty is to be taken away unless the case is proved against him beyond reasonable doubt. The same stringency is not necessarily called for in divorce suits, or, at any rate, in divorce suits on the ground of cruelty or desertion, where the Court is concerned, not to punish any one, but to give statutory relief from a marriage that has broken down”

Learned Counsel for the appellant seriously contended before me that when there is substantial evidence to prove that the respondent was living with one N.S Mani, the Court ought to have granted a decree for divorce as prayed for. The learned Counsel however conceded that it could not be substantially proved that after the respondent left N.S Mani, she was living with one Sait in Mambalam. He also gave up the case of the respondent's alleged intimacy with Kamalanathan, who happens to be a near relation of the respondent and who subsequently married the respondent's sister. Therefore, the success or failure of this appeal entirely depends on the oral evidence that has been let in by the appellant to prove that the respondent Baby Ammal was living in Washermenpet with N.S Mani. The case according to the appellant is that after she left his house and protection, for some time she lived with her mother at Rajkilpakkam and subsequently she came down to Madras and lived with Mani at Washermenpet. Subramania Naicker P.W 3 has given evidence that Krishtappa Naidu, P.W 5, introduced Mani and the respondent to him and requested him to provide a portion for their stay. P.W 3, who is the owner of a house with 18 rooms, gave a portion for the occupation of Mani and the respondent, charging a rent of Rs. 3 per month, and they lived there for a period of about 15 months. P.W 3 says that during their stay there were quarrels and on one occasion, Mani broke a photo containing the photographs of Mani and the respondent. In view of these quarrels P.W 3 asked them to vacate the premises and they also vacated after sometime. P.W 3 also says that from their behaviour it appeared if the respondent was Mani's wife. P.W 5 Krishtappa Naidu has deposed that Mani was a close friend of his son and that 4 years prior to his giving evidence, Mani wanted a house for himself and his wife and that he, P.W 5, fixed the house of P.W 3 for their stay. He says that they were staying in his house for two days before occupying the house of P.W 3 He was awere of the quarrels between Mani and the respondent during their stay in a room in the house of P.W 3. He also says that when P.W 3 asked them to vacate, he gave them temporary protection by allowing them to occupy a room in his house for a period of 3 months on a monthly rental of Rs. 5. Gajapathi Naidu, P.W 6, who was doing milk business, has also given evidence that the respondent used to come to his house for purchasing milk and used to say that she would pay the money when her husband comes back. He says that Mani and the respondent were living in P.W 3's house for 1½ years. He corroborates the evidence of P.Ws 3 and 5 that there were quarrels and misunderstandings between Mani and the respondent during their stay in P.W 3's house. P.W 7 Radhakrishna Naidu, who is a friend of Mani and who was previously a co-worker with him, deposes that Mani and the respondent were living in the house of Subramania Naicker, P.W 3, that Mani had not got married then, that there was a quarrel between Mani and the respondent during the period of their stay in P.W 3's house and after vacating that house they lived in the house of P. W. 5 for a period of about six months. All the above witnesses are independent witnesses and they are not related to either the appellant or the respondent. But it is the case of the respondent that all these people have given evidence at the instance of one Chinnappan, a Police Constable attached to the Washermenpet Police Station, who happens to be a relation of the appellant. Even assuming that Chinnappan has influenced these witnesses to give evidence on behalf of the appellant, what I have to consider is only whether the evidence given by them with regard to the stay of the respondent with Mani is true. The facts in this case reveal that after she left her husband's protection, the respondent went and stayed in the village with her mother for a very short period and there is no evidence of a satisfactory character as to how, where and with whom she lived subsequently till the petition for divorce was filed by the appellant. It is admitted case that her house in the village was dilapidated. Her father appears to have renounced the world and left the house and her brother joined the army. This was the state of affairs of her household. Thus she had no house of her own wherein she could stay continuously after she left the appellant's house and till the petition was filed by the appellant. We do not know how she was living and who was maintaining her during that period. At the time of giving evidence, she was living in Vyasarpadi. The appellant appears to have lost touch with her after she left his house. It is only when Mani wrote two letters informing the appellant's father that she was living with him till recently and went away after quarrelling with him, the appellant appears to have taken steps to trace her whereabouts. It may be that the appellant and his father might have sought the services of Chinnappan to collect evidence for the purpose of proving their case that she was living in adultery. It is however not proper to rely on the letters written by Mani to the appellant's father for the purpose of coming to the conclusion that the respondent was living with Mani. The appellant also wanted to prove his case by producing a photo said to have been taken by N.S Mani during the period of her stay with him. But there was a controversy about it during the trial, the appellant alleging that it is a genuine one and the respondent contending that it is a faked photo and two photographers were examined to prove the respective cases of the parties. Even leaving aside the evidence furnished by the letters written by Mani to the appellant's father and also the evidence of the two photographers, I feel there is enough evidence to come to the conclusion that the respondent was living with the said N.S Mani. There is also another piece of evidence to support the case of the appellant and that is Ex. A-7, which is the entry made by the Head Constable, P.W 2 of H division. During the period of respondent's stay with Mani, there was a quarrel and Mani was apprehended by the police and kept in the lock-up. At that time the Head Constable made the Entry Ex. A-7. There the name of the accused is stated as Mani and his wife's name is entered as Baby Ammal (respondent,). P.W.2 has given evidence that when Mani was kept under lock-up, the respondent came to see him and at that time the respondent said that Mani is her husband. In divorce cases Courts can even act upon uncorroborated testimony and grant relief to the parties taking the surrounding circumstances into account. In Getty v. Getty, it was held that although it is the general practice in matrimonial cases to act and grant relief upon uncorroborated confessions of adultery there is no absolute rule of practice and no rule of law precluding the Court from acting upon such uncorroborated evidence and that the true test seems to be whether the Court is satisfied from the surrounding circumstances in any particular and exceptional case that the confession is true, and, if so satisfied, it is open to the Court to grant relief, notwithstanding the absence of independent corroborative testimony. Again in Riches v. Riches and Clinch(2), Coleridge, J., observed:

“I am in the position of a Jury and I am entitled to act on the uncorroborated evidence of a witness in the absence of any statutory enactment that corroboration is essential. Here there is no substantial corroboration but there are circumstances to aid my mind on the question whether I believe the petitioner's evidence uncorroborated.”

Sir William Scott stated the general rule thus in Lovedon v. Lovedon(3):

“The only general rule that can be laid down upon the subject is, that the circumstances must be such as would lead the guarded discretion of a reasonable and just man to the conclusion.”

In the instant case, there is no evidence to show that she was living either in the village with her parents or in a known place of residence. Nor is there any evidence to show the source of income with which she was maintaining herself. Though she says that she has got some property in the village, she was not able to say the extent of the same or the income therefrom. Even though her mother has given evidence, she has not satisfactorily proved whether she was able to maintain the respondent with the income she was getting from her lands. There is abundant evidence to prove that the respondent was living with N.S Mani and this has been corroborated in material particulars by the neighbours. The circumstances also lead to the only conclusion that she was living with the said N. S. Mani for a period of about 1½ years. In all these cases direct evidence may not be possible. As pointed out by Denning, L.J, in Miller v. Minister of Pensions, while dealing with the degree of proof:

“It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. 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 not in the least probable’, the case is proved beyond reasonable doubt, but nothing short of that will suffice.”

Here, the evidence is strong and sufficient to come to the conclusion that the respondent was living in adultery with N.S Mani and the appellant is therefore entitled to a decree for divorce and he is granted a decree accordingly.

The appeal is therefore allowed. But in the circumstances the parties will bear their costs throughout.

V.C.S