Mrs. Agnes Cecillia Gome (Gannon) v. Lancelot Ashby Gome .

Laik, J.:— This has come up before us exercising jurisdiction over matrimonial causes under section 17 of the Indian Divorce Act (Act IV of 1869), hereinafter referred to as the Act, for confirmation of a decree nisi passed by the learned Additional District Judge, 24 Parganas, dissolving the marriage.

2. It was a wife's petition under section 10 of the Act. The grounds were adultery with the other aggravated circumstance, viz., cruelty. The petitioner has two minor children, born out of the wedlock, living with her. The learned Judge passed the decree mentioned above and also directed custody of the children to the petitioner. The husband (respondent) was further directed to pay a monthly sum of Rs. 250/- to the wife (petitioner) as alimony pending the suit.

3. I have reviewed the entire evidence. All pertinent facts are brought out to prevent the blinding of our eyes. The parties profess Christian religion. They were legally married. They were of Indian domicile at the date of the presentation of the petition. They last resided within the jurisdiction of the court below. There is no collusion between the parties. The petitioner has not been in any manner consistently accessory to or conniving at the adultery There is no proof of connubial intercourse after the adultery, which would be a prima facie evidence of condonation. The petitioner has not slumbered in sufficient comfort and there is no unreasonable delay in presenting the petition. It is not a motion on behalf of the guilty party being adulterous herself. Neither the petitioner is guilty of cruelty to the respondent or of separating herself from him or of any wilful neglect or misconduct towards him. The husband on the other hand is held to be cruel. The said cruelty is such, as without adultery, it would have entitled the wife a divorce from bed and board (a mensa et toro). The notice was properly served. Statutory six months have elapsed from August 1, 1961, the date of signing of the decree by the learned Judge but the records were only sent up by him to this Court on an application being moved by the petitioner specially for that purpose and not earlier. I regret to record that the said state of affairs is not very much creditable to the Court concerned. The guilt of adultery in the present case is held to be proved, but circumstantially. There is a letter of the husband to the wife in the present case (Ext. 4) admitting the adultery but this letter stands in isolated glory. There is no other letter. There is no other item of the conduct of the husband which is admitted and which is consistent with the contents of the said letter. Hence we would have to consider whether the proof by circumstantial evidence would be sufficient in such cases.

4. It is not necessary that there should be direct evidence of adultery; as it is not easily available, rather direct proof is very rare. It has been pointed out in a number of cases that rarely the parties are surprised in a direct act of adultery (Rayden on Divorce, 7th Edn. pp. 135, 136). But circumstantial evidence must be sufficiently strong and conclusive. Association coupled with opportunity, illicit affection, undue familiarity, guilty attachment are some of the instances which create an inference upon which the Court can act. There is an old legal maxim in Scotland which runs as follows: “Solus cum sola in suspecto loco non presumitur dicere pater noster”, which being translated means that when a man and a woman are found together under suspicious circumstances, it cannot be presumed that they are saying their prayers. It would also be difficult to ascribe the theory of “platonic love” in such circumstances but then again the circumstances must be such as would lead “the guarded discretion of a reasonable and just man to the conclusion” or “fair inference as a necessary conclusion”. (See the observations of Sir William Scott, determined in the Consistory Court of London, in the classic case of Loveden v. Loveden, (1) reported in (1810) 161 E.R 648). Though the said discretion is held to be: unfettered in some cases but the same must not be exercised capriciously but cautiously and with utmost care.

5. In the case of an adultery, no higher proof of a fact is demanded than that it is established beyond all reasonable doubt. (See Head v. Head (2) (1823) 37 E.R 1049). “But what is reasonable doubt, is always difficult to dicide and varies in practice according to the nature of the case and the punishment which may be awarded”, Lord Oaksey pronounces in Preston-Jones v. Pretson-Jones, (3) 1951 (1) All E.R 124. In my opinion, Lord Merrimen's dictum in Churchman v. Churchman, (4) 1945 (2) All E.R 190 that the same strict proof is required in the case of matrimonial offence as required in connection with criminal offence has been widely expressed. In my judgment the correct approach has been laid down by Denning L.J in Gower v. Gower (5) (1950) 1 All E.R 804 that the Court should not be irrevocably committed to the view that a charge of adultery must be regarded as a criminal charge. The statute lays down a standard and puts adultery on the same footing as cruelty, desertion or unsoundness of mind. The rule as to the standard of proof, laid down at p-138 by Lord Macdermott in the House of Lords in the case of Preston-Jones (supra) has been accepted by their Lordships in the Supreme Court in the case of E.J White v. K.O White (6) reported in A.I.R (1958) S.C 441. Their Lordships observed that the said rule should be followed by the Indian Courts under section 7 of the Act. It is held that it is the duty of the Court to pronounce a decree, only when it is satisfied that the case has been proved beyond reasonable doubt as to the commission of a matrimonial offence. The evidence must be clear and satisfactory beyond mere balance of probabilities. In that eventuality the provisions of section 14 of the Act would be taken to be satisfied. The evidence in the present case satisfies the above tests.

6. I am not unmindful of the general notions that the proceeding under section 17 of the Act has no exact parallel in other countries; that the petition for divorce is not of the nature of an undefended civil suit; that such cases are not to be decided on ground of sympathy; and that it is also not enough for one of the parties to come forward and say exactly following the terms of the Act but it seems to me repugnant that a Court of Justice should be so little in accord with the common notions of mankind that it should require the evidence to displace fantastic suggestions.

7. As so often occurs in human affairs, however, the difficulty lies in drawing the line. But the Court, while exercising its discretion in matrimonial causes, must have regard not only to the rights and liabilities of the matrimonial persons wronged and of the wrong-door respectively inter se but also to the interest of society and public morality, and to discourage vice and immorality.

8. Reluctant as I am, as a matter of general principle, to dissolve an union, unless it becomes impossible to allow it to continue and there are compelling circumstances in favour of dissolution; in all the circumstances of this case I think I should be going far beyond any other authorities and should be ignoring altogether the paramount consideration applicable to such cases viz., the interest of public morality. I find that there is sufficient legal evidence to support the decree.

9. For all these reasons I am of opinion that the decree nisi should be confirmed and I order accordingly. There will be no order for costs.

P.B Mukharji, J.:— I agree.

R.N Dutt, J.:— I agree..

S.N.G