JUDGMENT Anwar Ahmad and M.P. Verma, JJ.

1. This appeal by the plaintiff is directed against the judgment and decree passed by the Third Additional District Judge, Singhbhum, dismissing his suit for the dissolution of his marriage with his wife respondent No. 1 by a decree of divorce or, in the alternative, for a decree for his judicial separation from her.

2. It is not disputed that respondent No. 1 is the lawfully wedded wife of the appellant, their marriage having taken place on the 14th December, 1954, and that a son was born to them in the year 1957. That son, however, died within fifteen days of his birth.

3. The case of the appellant is that the dealings of respondent No. 1 were never warm towards the appellant. After the premature death of the child in 1957, she became extremely moody and morose and adopted a wholly indifferent attitude towards the household of the appellant. To repeated interrogation made by the appellant, she always said that her child had been visited with her sins and, on account of her sins, had met with premature death. On the appellant's repeated request made to her to disclose her heart to him, on the 13th April, 1958, she wrote out a letter addressed to him (Ex. 4) and handed it over to him. This letter disclosed some horrible secrets covering her maiden and married life, admitting therein that she had committed repeated acts of adultery with several persons, including her own father (respondent No. 2) and her neighbours (respondents 3 and 4) who were on frequent visiting terms with her. On a perusal of this letter, the appellant became totally upset and refused to accept respondent No. 1 any longer as his wife. Next morning i.e. on the 14th April, 1958, respondent No. 1 was removed to her father's house in the same town (Jam-shedpur). Since then, respondent No. 1 is residing in her father's house.

4. Three written statements were filed, one on behalf of respondent No. 1, another on behalf of her father (respondent No. 2) and the third on behalf of respondents 3 and 4.

5. In the written statement of respondent No. 1, apart from the legal defence as to the maintainability of the suit, failure to comply with the rules framed by this Court under the provisions of the Hindu Marriage Act (hereinafter referred to as the Act,) absence of cause of action etc., her main defence is that she is a chaste woman and is not guilty of any matrimonial offence. She has still the same warm feelings in her heart for her husband (appellant) in spite of the acts of cruelty committed upon her by her father-in-law (P.S. 4) and step-mother-in-law (P.W. 5). Her case is that the appellant's father (P.W. 4) had a lusty eye upon her. The appellant is under the clutches of his father who prevailed upon him to file the present suit with false allegations as respondent No. 1, refused to satisfy his lust in spite of his overtures on two occasions, namely, in August 1956 and on the 13th April 1958. According to her, the first incident took place at about 11 O'clock in the morning on a day in August 1956. There was no one in the house. The appellant's father unexpectedly came to the house and, against the custom prevalent in her caste, asked respondent No. 1 for a glass of water which she placed on the table. He caught hold of her hands and said that he loved her and showed her a pair of gold bangles which he said he had bought to make a present to her and started to slip one of the bangles into her wrist. Just then, approaching foot-steps were heard. P.W. 4, thereupon, released her hands and she, out of shame and fear, fled to the kitchen-meeting P.W. 5 in the passage. P.W. 5 asked her husband to let her know the purpose of his visit at the unusual hour of the day and he told her that he had come to take the pair of bangles for a customer waiting in the shop. P.W. 5 did not accept this explanation and she told him that she said pair of bangles, in the usual course, had been taken away in the morning to the shop. She wept and said that he had never spared any maid-servant and now he was seeking to ruin his own daughter-in-law. P.W. 4, thereafter, left the place in a hurry. The other incident took place in the night of the 13th April, 1958. Respondent No. 1 was sleeping alone in her room where it was dark. She suddenly felt the touch of a strange hand. She woke up and screamed out of fear. She recognised P.W. 4 when he placed his hand on her mouth to stifle her cries and asked her softly not to rouse the household. The other members of the household including the appellant came to her room and found the appellant's father who explained his presence by saying that the had also come on hearing the scream of respondent No. 1 and pro-bably some stranger had come to her room. It was in the background of these two incidents that the father and the step-mother of the appellant forced her to write the letter (Ext. 4), as they wanted to poison the mind of her husband (appellant) in order to get rid of her.

6. Respondent No. 2, father of respondent No. 1, has supported the case of his daughter (respondent No. 1). Respondents 3 and 4, in their joint written statement, have denied having any illecit intimacy with respondent No. 1 and have stated that they have been leading happy married life and have many children.

7. The learned Additional District Judge has disbelieved the case of respondent No. 1 so far as the incidents of August 1956, and April 1958 are concerned but has refused to act on the contents of Exhibit 4 as the same appears to be "indicative of use of some compelling force in the house itself which has either not been disclosed or remained yet to be proved.

The final finding arrived at by the learned Judge is that-

Ext. 4 cannot be said to represent a free voluntary and true statement of D. W. 2 so as to bind her. It may further be observed that there appears to be absence of materials, by which any such inference can be drawn. That being so, it may well be found that it yet remained to be proved that respondent No. 1 had any sexual intercourse with any man other than the plaintiff, so as to bring the case under Section 10(f) (sic) of the Hindu Marriage Act or even that she is living in adultery so as to bring it under Section 13(1)(i) of the same Act as above.

The further finding of the learned Judge is that the petition is maintainable and cannot be thrown out on account of the non-compliance with Rule 8 framed by this Court under the provisions of the Act.

8. The appeal has been argued at great length by Mr. Ghose on behalf of the appellant and Mr. J. C. Sinha on behalf of respondent No. 1. Learned Counsel for the parties have raised a number of points in support of their respective cases and have also placed before us the entire evidence on record. It will not be necessary for us, however, to refer to their contentions in any detail, as we are satisfied on the State of evidence on record that sufficient ground has not been made out for our interfer-ference.

9. In order to prove that respondent No. 1 had sexual intercourse with any person other than the appellant; as required by Section 10(1)(f), or is living in adultery, as contemplated by Section 13(1)(i) of the Act, the appellant has examined himself as P.W. 3, his father as P.W. 4 and his step-mother as P.W. 5 as well as the handwriting expert (P.W. 1) and the photographer (P.W. 2). The evidence of P.W's 1 and 2 is of no real significance in view of the admission of respondent No. 1 that she wrote the letter (Ex. 4) except some minor portions. In cross examination, P.W. 3 has admitted that-

Except Exhibit 4, there is nothing to my information against the behaviour of Rama or against her character.

He has, further, admitted that, till April, 1958, he had no suspicion on respondents 3 and 4 for having attachment with respondent No. 1. To the same effect is the evidence of the appellant's father (P.W. 4). In cross-examination, this witness has admitted -

I do not know when she comitted adultery and with whom.

Prior to the morning of 14-4-58, I took her to be a goddess and understood her to be a chaste lady of sound character. I had no suspicion on Rama till before the morning of 14-4-58. It is only the letter of Rama, which leads me to think that her character is loose.

On the evidence of this very witness, he received Exhibit 4 from the appellant in the morning of the 14th April, 1958. He has denied that Exhibit 4 was written by respondent No. 1 under duress and coercion. On similar lines is the evidence of P.W. 5. She has/however, stated that she is not prepared to believe that a girl can sleep with her father 6n a common bed and indulge in adultery with him or that a son can be guilty of adultery with his mother. P.W.'s 3, 4 and 5, no doubt, have denied that respondent No. 1 wrote the letter (Ex. 4) under compulsion and have stated that it was a voluntary statement of respondent No. 1.

10. It has also come in the evidence of P. W's 3, 4 and 5 that respondent No. 1 confessed her sins before them. P.W. 3 has stated that respondent No. 1, on giving the letter (Ex. 4) to him, said that those things were committed before and even after her marriage. P.W. 4 has stated that, on being asked by him as to what she had done, she replied that these acts were committed by her before and after marriage. P.W. 5 has stated that respondent No. 1 told her on the 14th April, 1958 that she had committed acts of adultery before and after her marriage. In the original plaint, no such case of admission made by respondent No. 1 to these witnesses had been pleaded. The appellant filed an application for an amendment of the plaint By inserting paragraph 9-B in the original plaint, which ran as follows:

That the plaintiff-petitioner came to know of the acts of adultery committed by respondent No. 1 through her said letter mentioned in paragraph No. 6 of the plaint and also from her statements made by the said respondent No. 1 in reply to the questions put to her by the plaintiff-petitioner after perusal of the said letter and as such, the plaintiff-petitioner is unable to furnish the particulars and specific dates in respect of acts of adultery committed by respondent No. 1 as the same could not be ascertained by the plaintiff-petitioner from her and the plaintiff-petitioner could not also ascertain the particulars of other persons with whom respondent No. 1 committed acts of adultery as mentioned in her said letter.

But the prayer for amendment was refused by the learned Judge (vide order No. 66 dated the 27th August, 1968 and order No. 71 dated the 29th August, 1968). It is, therefore, clear that the evidence of these witnesses to the effect that respondent No. 1 admitted her guilt before them cannot be looked into as no such case was pleaded in the plaint. The evidence of respondent No. 1 is that she has never been guilty of any matrimonial offence and that exhibit 4 was written on the dictation of P.W. 4. She has, further, stated that P.W. 4 told her that, if she wrote the letter as dictated by him, he would arrange for respondent No. 1 and the appellant a separate house and, if she failed to do so, he would hand her over to the police. The explanation given by respondent No. 1 for writing the letter (Ext. 4) that she did so on the temtation of living with her husband also finds support from her evidence in Court wherein she has stated as follows:

I shall prefer to live with my husband in that very house even if I have to face troubles. My love for my husband has not been lessned even for a moment.

11. The learned Judge has rightly come to the conclusion that Exhibit 4 cannot be said to represent a free voluntary and true statement of respondent No. 1 as to bind her. In coming to this conclusion, he has not only taken into consideration the evidence of P. W's 3, 4 and 5 but has also relied on the tenor and contents of Exhibit 4 and has further found that they are indicative of the use of some compelling force. Having gone through the entire evidence on record, we find ourselves in complete agreement with the learned Judge. A reference to Exhibit 4 makes it clear that the recitals therein are so very obnoxious and revolting that no Indian woman would write the same unless she was forced to do so. Respondent No. 1 has also stated that, at the time of writing this letter, she wanted to remain separate from her father-in-law's house and that she wrote it out of fear and temptation of remaining separate. Exhibit 4 translated into English consists of four paragraphs. Paragraph 1 deals with the misdeed of her mother namely, that she committed adultery with live or six persons including respondents/ 3 and 4. She also committed adultery with her own son Ashok, brother of respondent No. 1, and that she used to take the male organ of every one in her mouth. In paragraph 2 of Exhibit 4, it is stated that the father of respondent No. 1 deflowered her (that is to say, she was; vergo intacto before that or, in other words, the first act of coitus was performed upon her by her own father). This was repeated four or five times. The father of respondent No. 1 made her commit adultery with her own: brother also. She was also forced to do such acts by her mother. In paragraph 3 of exhibit 4, it is stated that she should not be allowed to go to her father's place and what has been stated in paragraphs 1 and 2 would shock the father of the appellant but hereafter she will lead an ideal life. In the last sentence of this paragraph, pardon has been sought from the appellant.

12. In order to get a decree for divorce under Section 13(1)(i) of the Act, it was obligatory on the appellant to prove that respondent No. 1 was living in adultery and, for getting a decree for judicial separation, as has been alternatively prayed for in the plaint, the appellant should have proved under Section 10(1)(f) of the Act that, after the solemnization of the marriage, respondent No. 1 had sexual intercourse with any person other than the appellant. As already stated, there is nothing on these points in the evidence of the appellant and his witnesses, Even if Exhibit 4 be taken at its face value, there is no statement made therein that respondent No. 1 was guilty of any matrimonial offence after her marriage. "Adultery" has not been defined in the Act, "Sexual intercourse" is set out as a ground for judicial separation under Section 10(1)(f) of the Act. A comparison of the words "living in adultery" with the wording of Section 10(1)(f) makes it perfectly clear that, under Clause (i) of the Sub-section (1) of Section 13 of the Act, what is required is that the other party should be living in adultery and not merely guilty of sexual intercourse with a person other than his or her spouse. The expression 'living in adultery' connotes neither a single act of a dultery nor several acts but the following of a course of continuous adulterious conduct vide Fulchand Maganlal-in re A.I.R. 1928 Bom. 59; Rajani Prabhakar Lokur v. Prabhakar Raghuvendra Lokur and Anr. . The case of respondent No. 1 that she was taken to her father's house in the morning of the 14th April, 1958 has been admitted by the appellant and his witnesses. The appellant has, further, admitted-

I have not brought her to my place since 1958". The appellant and his witnesses have not stated that respondent No. 1 has been guilty of any matrimonial offence and with whom after she was left at her father's residence in 1958 and, in fact, P. W's 3, 4 and 5 are not in a position to say ;this, as respondent No. 1 was living away from them. The vague statement of the appellant that she is passing the same wretched life does not entitle him to get a decree for divorce or that for judicial separation.

13. Admittedly, Exhibit 4 was written on the 13th April 1958 before she was taken to her father's house and, as such, cannot be evidence of any matrimonial offence committed by her at or near about the time when -the application giving rise to this appeal was filed before the Court below. In order to attract the application of Clause (i) of Sub-section (1) of Section 13 of the Act, it was not enough for the appellant to allege that respondent No. 1 had been living in adultery some time in the past, as it appears from Exhibit 4. It should also have been shown that she was living in adultery at or near about the time the application giving rise to this appeal was filed (Vide Rajani Prabhakar Lokur v. Prabhakar Raghavendra Lokur and Anr. A.I.R. Bom. 264).

14. There is yet another unassailable aspect of the case in favour of respondent No. 1, the evidence of P. W's 3, 4 and 5 has already been referred to and it does not prove beyond reasonable doubt that respondent No. 1 was guilty of any matrimonial offence. The recitals in Exhibit 4, which have been relied upon by these witnesses, even if taken at their face value, do not make it clear that she was guilty of any offence after her marriage. Their statement that respondent No. 1 told them that she was guilty, is beyond the pleading and not worthy of acceptance in face of her denial and the tenor of the recitals contained in Exhibit 4. It has, therefore, to be held that the case against respondent No. 1 has not been proved beyond reasonable doubt.

15. It is settled that the standard of proof in divorce cases should be such that the applicant must satisfy the Court beyond reasonable doubt as to the commission of the matrimonial offence. A reference in this connection may be made to Farman v. Farman 1949 (1) A.E.R. 938 wherein it was laid down that the same strict proof was required of adultery as was required of an offence against the criminal law. Similarly, in Churchman v. Churchman 1945 (2) A.E.R. 195 it was laid down:

The same strict proof is required in the case of a matrimonial offence as is required in connection with criminal offences properly so called.

So far as this country is concerned, the matter stands finally settled by the decision of their Lordships of the Supreme Court in Earnist John White v. Mrs. Kathleen Olive While (Nee Meade) and Ors. . In this case, their Lordships relied upon and approved the observation made in the case of Preston Jones (1951) A.C. 391, which is to the following effect:

The jurisdiction in divorce involves the status of the parties and the public interest requires that the marriage bond shall not be set aside lightly or without strict enquiry. The terms of the statute recognise this plainly, and I think it would be quite out of keeping with the anxious nature of its provisions to hold that the Court might be 'satisfied' in respect of a ground for dissolution, with something less than proof beyond reasonable doubt. I should, perhaps, add that I do not base my conclusion as to the appropriate standard of proof on any analogy drawn from the criminal law. I do not think it is possible to say, at any rate since the decision of this House in Mordaunt v. Moncreiffee (1874) 30 L.T. 649, that the two jurisdictions are other than distinct. The true reason, as it seems to me, why both accept the same general standard-proof beyond reasonable doubtlies not in any analogy but in the gravity and public importance of the issue with which each is concerned.

16. A petition has been filed on behalf of respondent No. 1 praying for the grant of alimony to the tune of Rs. 500/- per month in her favour under Section 25(1) of the Act. It has been stated therein that, since 1958, respondent No. 1 is living at her parents' house and is solely their dependent. She has no independent source of income and it is not possible for her to live any more on their charity. The income of the appellant has been stated to be near about Rs. 2,000/-per month as he carries on a flourishing business in jewellery, precious stones and money-lending. In the counter-affidavit filed on behalf of the appellant, the case of respondent No. 1 that she has no source of income has been negatived. It has been further stated therein that the father of respondent No. 1 is a millionaire; The case of respondent No. 1 that the appellant earns about Rs. 2,000/- per month has been denied and it has been stated that his income does not exceed Rs. 500/- per month. It has also been stated therein that respondent No. 1 is now in the finalyear of the degree course in the Women's College at Jamshedpur and is in a position to earn.

17. Sub-section (1) of Section 25 of the Act runs as follows:

Any Court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on application made to it for the purpose by either the wife or the husband, as the case may be. order that the respondent shall, while the applicant remains unmarried, pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to the respondent's own income and other property, if any, the income and other property of the appellant and the conduct of the parties, it may seem to the Court to be just and any such payment may be secured, if necessary, by a charge on the immovable property of the respondent.

A plain reading of this sub-section makes it clear that an order for permanent alimony can only be made on passing a decree for restitution of conjugal rights, judicial separation, declaration that the marriage is void, annulment of voidable marriage or for dissolution of marriage by a divorce. In the present case, we propose to dismiss the appeal and confirm the decree of the learned Additional District Judge dismissing the suit of the appellant for divorce as well as for judicial separation and, as such, we are not entitled in the eye of law to pass a decree for alimony as prayed for by respondent No. 1 vide Minarani Mazumdar v. Dasrath Mazumdar ; Shanta Ram Dmkar Karnik v. Maltl Shantram Karnik and Kadia Harilal Purshottam v. Kadia Lalavati Gokaldas .

18. The result, therefore, is that the appeal is dismissed with costs. The application filed by respondent No. 1 under Section 25(1) of the Act is also dismissed but without costs.