(Delivered by Anantanarayanan. C.J)
This is a reference under S. 10 of the Indian Divorce Act, by the learned District Judge of Tiruchirapalli, for confirmation of the decree nisi dissolving the marriage between the partie under S. 17 of the same Act.
The petitioner is the wife, and she has put forward, as the ground for dissolution of the marriage, the clause of S. 10 which refers to “adultery coupled with such cruelty as without adultery would have entitled her to a divorce a mesne et toro.”
In the body of the petition, the petitioner states that the respondent, her husband, married her, according to Christian rites, at St. Joseph's Church, Golden Rock, Tiruchirapalli on 27th May 1961. But soon after the marriage, the respondent behaved to her with great cruelty, and brought drunken young men to the house and attempted to constrain or induce the petitioner to submit to the indecent overtures of those men. He also beat her and starved her, and in brief, attempted to compel her to lead a life of prostitution. Because she resented this and resisted the attempts with all might, the respondent forced her to leave the house in September 1961 and she has since been living with her parents. In paragraph 10 the petitioner also states that the respondent was leading an adulterous immoral life, visiting brothels and being friendly with prostitution. According to the petitioner, the respondent is “an incorrigible moral wreck.”
The respondent was exparte throughout. The petitioner gave evidence as P.W 1 broadly in support of the averments in the petition. She swore that the respondent tried his best to coax her to lead the life of a prostitute, and to submit to the indecent overtures of drunken young men brought by him to the house. After the petitioner was driven away the respondent if, according to her “leading” bad, immoral life, consorting with lewd women”. P.W.1 has beta supported by P.W.2, P.W.3 and P.W.4, all of whom have given testimony in the matter. P.W 2 is the father of the petitioner, and, he also speaks to the cruelty of the respondent towards the petitioner and to the subsequent profligate life led by the respondent. P.W 3 states that respondent sometimes made suggestions to him to visit women of bad repute, either at Tiruehirapalli or at a particular street in Srirangam town. The respondent knew the addresses of women of bad repute. P.W 4 gave evidence to much the same effect. That is all the evidence in the case, and the learned District Judge has accepted this evidence and also recorded his satisfaction that there was no collution between the parties in making the decree nisi.
We are afraid that this evidence cannot amount to proof of the ground relied upon by the petitioner under S 10 of the, Indian Divorce Act. Had the ground related to cruelty alone, the petitioner would, indisputably, be entitled to succeed. We are satisfied that cruelty in an extreme and unbearable form has been proved in the case, both by the evidence of P.W 1 and by the evidence of the other witnesses. There cannot be a greater decree of cruelty than to compel a chaste wife to submit to overtures of other persons, out of an ignoble desire to make gain by prostituting the wife. But, we are afraid that this ground, per se, will be quite insufficient to grant the petitioner the relief of divorce, the law specifically states that the petitioner must prove adultery coupled with cruelty; or if another relevant section is to be resorted to, adultery coupled with desertion without reasonable excuse for two years or more.
Adultery is the matrimonial offenee, defined in the following manner in standard Treatises, such as Raydon on divorce' 10th Edn, it is:—
“Consensual sexual intercourse between a married person and a person of the opposite sex, not the other spouse, during the subsistence of the marriage.”
Judged by this test, there is no relevant evidence in the present record to prove adultery. It may not be always possible for the wife to give the name of the person with whom adultery was committed, but, indisputably, there must be such a specific individual, and there must be evidence from which a clear and rational inference could be drawn that adultery had taken place as between the erring spouse (her husband) and that individual. Needless to say, general evidence of the ill-repute of the husband, or of the lewd company that he was keeping, or even that he knew the addresses of prostitutes, and was seen with doubtful women, would neither prove nor prebabilise adultery. It may be perfectly possible for an individual to keep such bad company and, still, not to commit adultery. Actually, the record appears to suggest, judging from the particular kind of cruelty exhibited by the respondent towards the petitioner, that the respondent must be a person or some perversity in the sexual impulse, and frequently, such a perverted impulse, may find satisfaction in other activities, without at all involving adulterous sexual intercourse.
Under the circumstances, we are unable to accept the reference, and to grant the divorce, though we are satisfied that the parties are not acting in collusion. But, under S. 22 of Act IV of 1869, in such a case, it is competent for the court to grant the decree of judicial separation. This decree has the effect of a divorce a mense et toro under the existing law. That form of the decree has been rendered obsolete as far as divorce decrees proper are concerned. Accordingly, we grant the petitioner a decree for judicial separation.
Learned eounsel for the petitioner submits that it may still be open to the petitioner, if the respondent is continuing in his profligate ways and is committing acts of adultery with ether women, to take out further proceedings for actual divorce, on the basis of evidence about such a specific act. We merely record this, with the observation that it may certainly be open to the petitioner to resort to such a remedy, if there is an adequate basis for it, in the future.
V.C.S