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Pattayee Amhal v. Mamckam Gourder And Another
Concise Analytical Summary of the Opinion
Factual and Procedural Background
This appeal was preferred by the wife (appellant) against an order of the courts below which had dissolved her marriage with the first respondent (husband). The husband had petitioned under Section 13(1)(i) of the Hindu Marriage Act 1955, alleging that the wife had been living in adultery with the second respondent.
Short facts as presented in the opinion: - The first respondent was described as a man of influence and means (about 50 acres of immovable property; annual income Rs. 50,000) and polygamous: the appellant was his third wife. - The appellant alleged that after becoming pregnant the husband, together with a brother-in-law (Manicka Gounder), plotted to drive her away and to take her to the Sub-Registrar's office under the pretext of providing immovable property; instead a document alleged to be a marriage settlement between the appellant and the second respondent was registered in May 1960. - The appellant later learnt of the contents, returned with the second respondent to the Sub-Registrar and executed a counter-document annulling the marriage agreement; the appellant also issued notices and initiated criminal proceedings against her husband. - The husband denied maintenance claims and alleged the appellant was living in adultery with multiple men; a Magistrate found the husband had not proved unchastity and awarded maintenance to the appellant. - The husband then initiated the present dissolution proceedings alleging adultery with the second respondent. The husband led evidence of the alleged marriage agreement, notices, a photograph of the appellant beside the second respondent, and evidence of an alleged panchayat in which the appellant purportedly returned her tail to the husband. - The courts below found the panchayat evidence to be false but concluded the appellant had been living in adultery with the second respondent and granted dissolution; the present appeal challenges that finding.
Legal Issues Presented
- Whether the first respondent (husband) is entitled to a decree for dissolution of marriage under Section 13(1)(i) of the Hindu Marriage Act 1955 on the ground that the wife has been "living in adultery" with the second respondent.
- What standard of proof is required to establish adultery or "living in adultery" in matrimonial proceedings and whether the evidence in this case meets that standard.
- Whether the particular facts and documentary/circumstantial evidence produced (alleged marriage agreement, notices, photograph, alleged panchayat) are sufficient to establish a continuous course of adulterous conduct ("is living in adultery") as distinct from isolated lapses.
Arguments of the Parties
Appellant's Arguments (as recorded)
- The appellant alleged she was deceived and driven away by the husband and his associates; a document presented as a settlement was in fact a trap leading to a purported marriage settlement with the second respondent which she later annulled.
- After discovering the document's true contents, she and the second respondent went to cancel it; she also issued notices to her father and husband and initiated criminal proceedings against the husband.
- The Magistrate had earlier found the husband could not prove her unchastity and awarded her maintenance — suggesting the husband's accusations of adultery were unproven at earlier stages.
First Respondent's Arguments (as recorded)
- The husband alleged the appellant was living in adultery with the second respondent and produced direct and circumstantial evidence: an alleged marriage agreement between the appellant and the second respondent, notices purportedly issued by the appellant to her father and husband informing them of the intended life with the second respondent, a photograph of the appellant beside the second respondent, and alleged panchayat evidence.
- He relied on witness testimony (notably P.W.7 and P.W.8) that the appellant and the second respondent lived together in a village house for about two weeks in 1960.
- Based on that evidence the husband sought a decree for dissolution under Section 13(1)(i) HMA for the wife’s alleged adultery.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Ginesi v. Ginesi, 1948-1 All E. R. 373 | Held that the standard of proof of adultery in matrimonial suits was "beyond reasonable doubt", likening it to quasi-criminal offences in ecclesiastical courts. | Cited as an authority advocating a strict standard (beyond reasonable doubt); the opinion discusses this view but ultimately evaluates the evidence against the required degree of satisfaction. |
| Briginshaw v. Briginshaw, (1938) 60 C.L.R. 336 | Taken as a contrary view to Ginesi — High Court of Australia view on standard of proof in matrimonial matters. | Noted as part of the comparative authorities reflecting differing positions on the standard of proof; the court surveyed it while determining the appropriate approach to proof. |
| Merdunt v. Mancreiffe, (1874) L.R. 2 Sc. and Div. 374 (House of Lords) | Holds that divorce suits alleging adultery are civil proceedings (thus relevant to the standard of proof debate). | Cited to demonstrate that divorce/adultery allegations are civil in nature, feeding into the discussion of what standard should apply. |
| Davis v. Davis, 1950-1 All E. R. 40 | Followed the approach in Ginesi (strict standard). | Referenced among authorities supporting a stringent standard of proof; used in the court's survey of case law. |
| Gower v. Gower, 1950-1 All E. R. 804 | Lord Denning suggested reconsideration of the strict "reasonable doubt" formulation; discussion on the meaning of "reasonable doubt" versus criminal standard. | Referred to illustrate judicial debate and refinement of the standard to be applied in matrimonial causes. |
| Levendod v. Levedon, (1810) 2 Hag. Con 1 (William Scoot) | Statement that circumstances must lead the "guarded discretion of a reasonable and just man" to a conclusion. | Quoted to support the proposition that courts should be guided by what would satisfy a reasonable and just person, not mechanical application of criminal standards. |
| Lyons v. Lyons, 1950 N. I. 181 | Observed that applying full criminal standard in divorce would often nullify jurisdiction; matrimonial matters may call for a higher standard than ordinary civil cases but not necessarily full criminal standard. | Used to justify a middle approach in evaluating matrimonial proof — a heightened weighing of evidence without fully equating it to criminal proof in all respects. |
| Preston Jones v. Preston Jones, 1951 A. C. 391 | House of Lords case where timing and probability led to the conclusion of adultery established beyond reasonable doubt (birth timeline). | Referred to as an example where facts were such that the higher standard was met; included in the court's survey of authorities. |
| Galler v. Galler, 1954-1 All E. R. 536 | Expressed that courts had come to the view that in divorce, as in crime, the court has to be satisfied beyond reasonable doubt. | Cited in the discussion on the trend among authorities regarding strict satisfaction; the opinion takes a comprehensive view of these authorities when assessing the present evidence. |
| Gantapalli Appalamma v. Gantapalli Yellayya, (1897) AIR 20 Mad 470 (FB) | Indian authority holding that "living in adultery" implies a course of adulterous conduct, more or less continuous. | Applied when interpreting "is living in adultery" under Section 488 Cr.P.C. and Section 13(1)(i) HMA; the court relied on such authorities to require continuity rather than isolated lapses. |
| Patala Atchamma v. P. Mahalakshmi, (1907) ILR 30 Mad 332 | Similar Indian authority on the meaning of "living in adultery" as implying continuity. | Referenced to support the court's understanding of "living in adultery" as requiring a course of conduct. |
| Kallu v. Kaunsilia, (1904) ILR 26 All 326 | Indian authority cited on the concept of continuous adulterous conduct. | Used in the court's exposition of the meaning of "living in adultery". |
| Jatindra v. Gouri Bala, 26 Cri. L. J. 1184 (AIR 1925 Cal 794) | Holds that "living in adultery" implies a continuous course of adulterous conduct. | Relied upon in determining that mere one or two lapses may not satisfy clause (i) of Section 13(1) HMA; used in the court's analysis of the evidence. |
| Rajani v. Prabhakar (citation as referenced in text) | Illustration where short-lived illicit intimacy shortly after marriage was held insufficient to fall within Clause (i) of Section 13(1) HMA. | Cited to show that a relatively brief period of illicit intimacy may not amount to "living in adultery" for divorce purposes; applied analogously to facts of the present case. |
Court's Reasoning and Analysis
The court's reasoning proceeds in the following principal steps, as recorded in the opinion:
- Identification of the central factual evidence relied upon by the husband: the alleged marriage agreement registered at the Sub-Registrar's office, notices purportedly issued by the appellant to her father and husband, a photograph of the appellant standing beside the second respondent (said to have been taken in May 1960), testimony of P.W.7 and P.W.8 that the parties stayed together for about two weeks in a village, and evidence of an alleged panchayat where the appellant returned her tail to her husband.
- The courts below had already rejected the panchayat evidence as not true, but nonetheless found adultery proved on the remainder of the evidence; the appellate court re-examines the sufficiency and character of that remaining evidence.
-
The appellate court subjects the documentary and circumstantial material to critical scrutiny and finds them suspicious rather than probative. Specific points made by the court:
- The reported conduct surrounding the Sub-Registrar's registration of a "marriage settlement" is implausible (the court finds it inconceivable that the appellant would openly go to the Sub-Registrar to register such a document) and implausible that an illiterate married woman would immediately go to an advocate to instruct notices to her father and husband about a proposed life with the second respondent.
- The hurried cancellation of the alleged marriage agreement, even if it had been executed, is inconsistent with the assertion that the appellant freely entered into and intended to continue the alleged marriage.
- The photograph is not a reliable indicium of adulterous living: the court finds it unbelievable that the appellant would pose for a photograph with the second respondent and pay the charges under the circumstances alleged, and it reads these facts as potentially the product of contrivance by the husband.
- The testimony of P.W.7 and P.W.8 (that the pair stayed together for about two weeks) is treated skeptically by the court on grounds of public knowledge and propriety in the village: the court finds it improbable that the village would tolerate an openly adulterous two-week cohabitation by the appellant, given the husband's influence and the social context.
- The court then addresses the legal standard of proof. It surveys Commonwealth authorities (including Ginesi, Briginshaw, Lyons, Preston Jones, Galler and others), noting divergent judicial views about whether the criminal standard ("beyond reasonable doubt") applies in matrimonial suits alleging adultery or whether a modified/heightened civil standard suffices. The court emphasizes authorities that treat "living in adultery" as requiring a course or continuance of adulterous conduct rather than isolated lapses.
- Applying the law to fact: the court concludes that the cumulative circumstances (the alleged marriage agreement, notices, photograph, and their subsequent cancellation) do not "certainly lead a reasonable man to the conclusion" that the appellant had been living in adultery with the second respondent. The court stresses that adultery is normally secretive and that direct evidence is rare and often unreliable; given this, the circumstantial evidence must be persuasive and consistent.
- On the particular question whether the appellant was "living in adultery," the court relies on Section 488 Cr.P.C. interpretation and the cited Indian authorities that "is living in adultery" implies a continuous course of adulterous conduct. Applying that legal standard, the court finds the husband's story to be clumsy, hasty and insufficient to establish a continuing adulterous course.
- Conclusion drawn from the analysis: the appellate court finds the husband's evidence insufficient to meet the requisite standard and to establish that the appellant was "living in adultery" with the second respondent; accordingly the courts below were wrong to grant dissolution on that ground.
Holding and Implications
Holding: APPEAL ALLOWED.
Direct consequences and immediate implications (as stated in the opinion):
- The appellate court allowed the wife's appeal against the order dissolving the marriage; by permitting the appeal, the effect is to overturn the decree of dissolution granted by the courts below (the court's reasoning explains why the husband's proof was insufficient).
- There will be no order as to costs. (The opinion expressly states "There will be no order as to cost.")
- Leave granted. (The opinion records "Leave granted.")
The opinion does not purport to establish a novel legal precedent; it discusses and applies existing authorities on the standard of proof and the meaning of "living in adultery" and concludes the particular evidence in this case is insufficient. No broader novel rule of law is declared beyond the application of established principles to the facts.
This summary is based exclusively on the text of the provided opinion and does not add or infer facts or reasoning beyond what the opinion contains.
(1) This is an appeal preferred by the wife against the order of the courts below dissolving her marriage with the first respondent-husband, on a petition filed by him under Section 13(1)(i) of the Hindu Marriage Act 1955 for dissolution of the marriage on the ground that the wife has been living in adultery with the second respondent.
(2) The short facts necessary for the disposal of this appeal are these. The first respondent is a man of influence as well as affluence. He is possessed of immovable properties about 50 acres and he gets an annual income of Rs. 50,000. He is a much married man, having three wives at the same time, and the appellant is the third wife. The first respondent married the appellant when she was three years. After attaining puberty, she joined the first respondent. The first wife has two daughters. The second wife died in 1957 leaving behind two sons and a daughter. Manicka Gounder a brother-in-law of the first respondent, was looking after the children left behind by the second wife. When the appellant was pregnant, the first respondent and his brother-in-law conceived the idea of driving away the appellant for his houses. In the month of May 1960, it is alleged by the appellant, her husband, under the protect of providing her some immovable property, took her to the Sub Registrar Office karur, along with Pichaikara Gounder, the second respondent. A document, alleged to be a settlement, providing immovable property was registered there. In fact, it turned out to be a marriage settlement between the appellant and the second respondent. Subsequently she was taken to the house of one advocate, S. Krishnaswami Aiyangar, and she was asked to sign in some papers, which turned out to be notices to her father and her husband informing them of her marriage with the second respondent. When she came to know of the contents of the notice from her father, she apprised the second respondent about that, any they both rushed to the Sub Registrar Office and executed a counter document annulling the said marriage agreement. The appellant also issued notices to the first respondent and started criminal proceedings against her husband. The first respondent opposed that application and contended that his wife was not entitled to any maintenance, because she was carrying on an adulterous life with one Shanmugha Moopan and another farm servant. The Magistrate found that the husband was not able to establish the unchastity of his wife and granted her maintenance. The husband, in turn, started the proceedings out of which this appeal arises for dissolution of the marriage on the ground that she has been living in adultery with the second respondent.
(3) In order to prove his case, the first respondent has adduced evidence about the marriage agreement entered into between the appellant and the second respondent, the alleged notices issued by her to her father and the first respondent and the photograph of the appellant standing by the side of the second respondent. He also led in evidence of an alleged panchayat wherein the appellant returned her tail to her husband.
(4) The courts below have given a concurrent finding that the alleged panchayat convened by the first respondent for the dissolution of the marriage with the appellant on the ground of her misconduct with the two farm servants was not true. But the courts below have found that the appellant was living in adultery with the second respondent and that therefore the husband was entitled to the dissolution of the marriage.
(5) In this appeal, the only question for consideration is whether the first respondent husband is entitled to get a decree for dissolution of his marriage with the appellant, on the ground that the wife has been living in adultery with the second respondent. For this, the courts below have mainly relied on the evidence of P.W. 7 and P.W. 8. These witness speak to an incident which happened in their village. According to them, the second respondent came to the village with the appellant to seek accommodation in house, together for about two weeks. This must be in 1960. The courts below have also relied on the photograph taken in May 1960. Thus there is no specific allegation that the appellant has been living in adultery with the second respondent at the time of the petition. To my mind, the alleged marriage agreement, the alleged notices issued by the appellant to her husband and her father, the subsequent cancellation of the marriage agreement and the alleged photograph taken on the appellant with the second respondent are all suspicious in character. The attending circumstances only go to show that the first respondent has been anxious to get rid of the appellant on some pretext or other. It is inconceivable that the appellant would go to the Sub Registrar office to registrar such a document with the second respondent openly. Even assuming that the marriage settlement came into existence, as alleged by the first respondent, it was immediately cancelled by the parties to the marriage agreement. If the appellant had really registered such an agreement there is no reason for this hurried cancellation of such an agreement. Equally, one would not except an illiterate woman as the appellant to go to an advocate's house soon after the registration of the marriage agreement, and instruct her counsel to cause notices to be issued to her father and her husband, informing them of the life she was going to lead with the second respondent. It is unbelievable that the appellant who is a married woman would go to a photographic studio and pose with the second respondent who is a farmservant of her husband's brother for a photograph. No doubt, the photographer has given evidence that both the appellant and the second respondent came to the studio and had a photo taken, and that the appellant paid the charges of Rs. 5. I fail to understand why the appellant should pay the charges of Rs. 5 and also put her signature in the book, when the second respondent has accompanied her to the studio. All these circumstances throw an air of suspicion that they were all due to the ingenuity displayed by the first respondent to somehow get rid of the appellant.
(6) Now what is the standard of proof necessary in matrimonial causes? These has been a difference of opinion in the courts of British Commonwealth concerning the standard of proof. In Ginesi v. Ginesi, 1948-1 All E. R. 373 the court of appeal decided that the standard of proof of adultery in a matrimonial suit was proof beyond reasonable doubt, because.
"Adultery was regarded by the ecclesiastical court as a quasi-criminal offence, and it must be proved with the same strictness as is required in a criminal case."
But the High Court of Australia in Briginshaw v. Briginshaw, (1938) 60 C. L. R. 336 took a contrary view. In Merdunt v. Mancreiffe, (1874) L. R. 2 Sc. and Div. 374 the House of Lords decided that divorce suits in which adultery was alleged were civil proceedings. The principle laid down in 1948-1 All E. R. 373 was followed in Davis v. Davis, 1950-1 All E. R. 40. But in Gower v. Gower. 1950-1 All E. R. 804, Lord Denning expressed the opinion that it was open to the court to reconsider 1948-1 All ER 373. In 1950-2 All, E. R. 458 Denning L. J. considered that the phrase "reasonable doubt" did not imply the same strict standard of proof as that which prevails in criminals proceedings. In Levendod v. Levedon, (1810) 2 Hag. Con 1, William Scoot observed that the circumstances must be such as would lead the guarded discretion of a reasonable and just man to the conclusion. In Lyons v. Lyons, 1950 N. I. 181 the Lord Chief Justice of Northern Ireland observed.
"To apply the full criminal standard of proof in all cases of divorce.... would.. in a large measure nullify jurisdiction and amount in many cases to a denial of a justice.. The rights and privileges of civil status, and 'the peculiar duty of protecting the sanctity of marriage', call for a higher standard of proof than is required in ordinary civil proceedings which are determined by the preponderance or weight of evidence and the balance of probabilities."
(7) In Preston Jones v. Preston Jones, 1951 A. C. 391, the wife had given birth to a child three hundred and sixty days after the husband could have had intercourse with the wife as could have resulted in the conception of a child. The House of Lords decided by a majority of four to one that the husband had established his case beyond reasonable doubt. Finally in Galler v. Galler, 1954-1 All E. R. 536 at p. 546, Hodson L. J., observed that
"the courts of this country... have come down on the side of the view that....in divorce as in crime, the court has to be satisfied beyond reasonable doubt". Taking a comprehensive view of the case law on the standard of proof, I am of opinion that the circumstances alleged by the first respondent, viz., the marriage agreement between the appellant and second respondent, the alleged notice issued by the appellant to the first respondent, and also her father, the alleged photograph taken by the appellant with the second respondent, the subsequent cancellation of the marriage agreement, would not certainly lead a reasonable man to the conclusion that the appellant had been living in adultery with the second respondent.
(8) Adultery, from its nature, is a secret act. Directed evidence of an act of adultery is extremely difficult. It is very rarely indeed that the parties are surprised in the direct act of adultery. Direct evidence, even when produced, the court will tend to look upon it with disfavour, as it is highly improbable that any person can be a witness to such acts, as such acts are generally performed with utmost secrecy. It is therefore highly improbable that the appellant and the second respondent would have come to a village to seek accommodation to carry on their carrel pleasure. It is too much to believe that the witnesses P.W. 7 and P.W. 8 allowed them to remain in a farm house continuously for two weeks. In such a case they would have certainly informed the first respondent who is a man of influence and affluence. The people in the village will not certainly allow such persons to lead the adulterous life knowing fully well that the appellant is the wife of the first respondent.
(9) I shall now deal with the point whether the appellant has been living in adultery. The words "is living in adultery" have been considered in Section 488 Cri. P. C. Many high Courts have held them to mean a continuous course of adulterous life as distinguished from one or two lapses from virtue. Living in adultery is wider than mere living as a concubine or as a kept mistress. The word is "is living" cannot mean "was living". It is true that it would not be possible to lay down and hard and fast rule. Each case must be decide upon its own facts. Our courts in Gantapalli Appalamma v. Gantapalli Yellayya, (1897) AIR 20 Mad 470 (FB), Patala Atchamma v. P. Mahalakshmi (1907) ILR 30 Mad 332, Kallu v. Kaunsilia, (1904) ILR 26 All 326 and Jatindra v. Gouri Bala, 26 Cri. L. J. 1184: (AIR 1925 Cal 794) have held that the words "living in adultery" imply a course of adulterous conduct more or less continuos. In Rajani v. Prabhakar, , soon after the marriage, the wife went and lived for about three weeks in the house of a friend of her father where she developed illicit intimacy with his son. Documentary evidence was produced to show that she was living in illicit intimacy with him. This was write some time before the petition for the dissolution of the marriage by the husband. The learned judges held that it would be difficult to hold that the petitioner's wife's conduct would fall within the purview of Clause (I) sub-sec. (1) of S. 13 of the Hindu Marriage Act so as to entitle the husband to a decree for divorce against her. Taking a comprehensive view of the facts of this case, I am of opinion that the story of the husband that his wife was having illicit intimacy with the second respondent, who is already a father of five children, that she was living with him for two weeks in the village, that she and the second respondent executed the marriage agreement, that she sent noticed to her father and her husband and the subsequent cancellation of the agreement, goes to show that the first respondent was anxious to somehow get rid of the appellant. The course adopted by the husband appears clumsy and hasty.
(10) For the aforesaid reasons I allow the appeal. There will be no order as to cost. Leave granted.
(11) Appeal allowed.
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