NARAYANAN EZHUTHASSAN v. PARUKUTTY — 1972 DIGILAW 284 (KER)

Judgment :- 1. This is a husband's appeal from the judgment of the Subordinate Judge, Ottapalam, dismissing his petition for dissolution of his marriage with his wife, Parukutty, the respondent, under. S.13(1)(i) of the Hindu Marriage Act, 1955 (Act 25 of 1955). 2. The appellant and the respondent got themselves married in 1951 and they lived as husband and wife till June 1965 with their twelve year old daughter Devaki (Pw. 4) at the appellant's house at Cherplachery. The appellant had been working as a male nurse and he was employed outside Cherplachery. He used to visit the respondent when he was employed at Ottapalam and other places. The respondent is a school teacher. The sole ground for dissolution of the marriage, according to the appellant, is that the respondent has been living in adultery with her paramour, one Bhaskarankutty Ezhuthassan, who is also working as a school teacher at Cherplachery. The appellant's version is that there was a rumour afloat that the respondent had been carrying on with Bhaskarankutty Ezhuthassan and so he wanted to verify in person whether there was any truth in the rumour. On the night of 22 21965, therefore, the appellant made a surprise visit to his house at about 7.00 p.m. when he found that the respondent was closeted with her paramour inside the bouse closing the front door. In spite of his attempt to get the door opened, they continued to remain inside till 3.30 a.m. when Bhaskarankutty Ezhuthassan came out by opening the door. Then there was a scuffle between the appellant and Bhaskarankutty Ezhuthassan during the course of which the latter escaped from his hold. The scuffle outside the house was alleged to have been witnessed by pws. 3 and 5. Since the respondent closed the door once again, the appellant could not get into the house, but finally the door was opened at the instance of pw. 2, the elder brother of the appellant. pw. 4 was then studying at Ottapalam living in a hostel. pw. 4. however, stated that while she lived with the respondent at Cherplachery, the aforesaid Bhaskarankutty Ezhuthassan was a regular visitor to their bouse, that he used to live with them and that she doubted seriously that the respondent was in illicit intimacy with Bhaskarankutty Ezhuthassan. Pw. pw. 4 was then studying at Ottapalam living in a hostel. pw. 4. however, stated that while she lived with the respondent at Cherplachery, the aforesaid Bhaskarankutty Ezhuthassan was a regular visitor to their bouse, that he used to live with them and that she doubted seriously that the respondent was in illicit intimacy with Bhaskarankutty Ezhuthassan. Pw. 5 stated that he had occasion to meet Bhaskarankutty Ezhuthassan going in the company of the respondent whenever she went out for a bath in a tank in the neighbourhood of her residence. The appellant was examined as pw.1 and the respondent as dw.1.On a detailed and careful consideration of the evidence and the material circumstances which emanated from the evidence and conduct of the parties, the learned Subordinate Judge came to the conclusion that the evidence in support of the alleged adultery was not sufficient to inspire confidence to hold that the respondent was living in adultery. 3. It is admitted that since June 1965 the respondent had been living away from the petitioner. According to her version the immediate reason for her shifting residence from the appellant's house was the exchange of Ext. Al notice and Ext. A2 reply between them. She stated that the appellant thereafter threw her out of his house and locked the house and that she had to live on the verandah of the house for three days before she shifted to a rented house. She denied having any connection whatsoever with Bhaskarankutty Ezhuthassan. 4. The truth of the incident on the night of 22-2-1965 that the petitioner caught the respondent while she was engaged in adulterous conduct with Bhaskarankutty Ezhuthassan was in serious doubt for more than one reason. The appellant sent Ext. Al registered notice to the respondent on 24-2-1965 immediately after the incident. No mention was made in it about that incident and much less that the respondent lived in illegal intimacy with Bhaskarankutty Ezhuthassan. The evidence of pws. 3 and 5 that they witnessed a scuffle outside the appellant's house on the morning of the next day between the appellant and Bhaskarankutty Ezhuthassan could hardly be accepted. It was disputed that pw 3 could have come anywhere near the appellant's house on the morning of that day. But for the fact that he was a milk vendor he would have had no opportunity to visit that locality. It was disputed that pw 3 could have come anywhere near the appellant's house on the morning of that day. But for the fact that he was a milk vendor he would have had no opportunity to visit that locality. From his own admission it had come out that be did not commence hawker's business in milk during the relevant time. The evidence of pw. 5 was equally unworthy of credit. It is difficult to believe his version that Bhaskarankutty Ezhuthassan would have accompanied the respondent from her house to the tank every time she came out for going to take her bath. It was not likely that she would have paraded her adulterous conduct in the streets going in the company of Bhaskarankutty Ezhuthassan even while she went out for a bath. pw. 4, the daughter of the respondent, had been under the control and protection of the appellant throughout and she admitted that she was brought to the Court by the appellant, to give evidence in the case. Neither pw. 3 nor pw. 5 was summoned through Court to appear and give evidence. These witnesses including pw. 2 came to Court at the instance of the appellant to swear in his favour in the manner he wanted. No reliance could be placed on their evidence. 5. The principles regarding the nature and burden of proof in a, case where adultery is alleged by the husband against the wife or vice versa are well settled. In this case the ground for dissolution of marriage is based upon S 13 (1) (i) of the Act (Act 25 of 1955) which reads "is living in adultery." There is a distinction between "committing" adultery and "living in adultery". 'Living in adultery' means following a course of adulterous conduct, more or less continuous; a single act of adultery cannot be considered as living in adultery. Living in adultery means continuous course of adulterous life as distinguished from one or two lapses from virtue. It would not be in consonance with the intention of the legislature to put too narrow and too circumscribed a construction upon the words "is living" in clause (i) of sub-section (1) of S.13 of the Act. For attracting the operation of these words, it would not be enough if the spouse was living in adultery some time in the past. For attracting the operation of these words, it would not be enough if the spouse was living in adultery some time in the past. It must be shown that the period during which the spouse was living an adulterous life was so related, from the point of proximity of time, to the filing of the petition that it could be reasonably inferred that the appellant had a fair ground to believe, when the petition was filed, that she was living in adultery. There was no allegation in the petition filed in the lower court that the respondent had any access to her alleged paramour after she shifted her residence from the appellant's house in June 1965. Any amount of evidence on that question without specific allegation, is not acceptable. 6. Regarding the mode of proof in case of dissolution of marriage under S.13(1)(i) of the Act, the Bombay High Court in Devyani Kantilal Shroff v. Kantilal Camanlal Shroff (AIR. 1963 Bombay 98) stated. "When a petition is filed for divorce on the ground of adultery; before the Court can grant relief under S.23, the petitioner roust prove the allegations of adultery on part of the other spouse beyond reasonable doubt. 'Satisfied' in the first part of the section read with the words 'but not otherwise', in the latter part of the S.23 (1) mean satisfied beyond reasonable doubt. The burden is no more than in a criminal case where the consequences to an accused are equally serious. It only means that there must be evidence, either oral or circumstantial in nature from which the Court can be satisfied beyond reasonable doubt that the alleged offence is made out." In Bhagwan Singh Sher Singh Arora v. Amar Kaur (AIR. 1962 Punjab 144) the scope and extent of the requisite evidence in the case of dissolution of marriage under S.13(1) (i) are dealt with as follows: "It must be shown right upto the date of petition under S.13 and even till the date of the decree that the offending respondent is living in the matrimonial offence of adultery to entitle the aggrieved spouse to claim a decree for dissolution of marriage on this ground-Where only one act of adultery has been proved on record, namely, on 21st October 1955. a decree for dissolution of marriage cannot obviously be granted to the husband". a decree for dissolution of marriage cannot obviously be granted to the husband". Regarding the standard of proof in divorce cases the English Courts followed the principle that the adultery shall be proved beyond a reasonable doubt. See what is observed in Preston Jones v. Preston Jones (1951 AC. 391): "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 inquiry. The terra 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, and that I do not base my conclusions 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. Moncreiffe ((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 doubt lies not in any analogy but in the gravity and public importance of the issue with which each is concerned". 7. The Courts therefore should insist upon proof beyond reasonable doubt if allegation of adultery is made against wife by husband or vice versa as a ground for the dissolution of matrimonial tie. The legislature in using the word 'satisfied' read with'but not otherwise' in S 23 of the Act meant satisfied beyond reasonable doubt. In White v. White (AIR. 1958 SC. 441), while considering similar provisions of the Indian Divorce Act where similar words in S.7 and 14 are used, the Supreme Court, following the case of Preston Jones v. Preston Jones (1951 AC. 391) said: "The standard of proof in divorce cases would be such that if the judge is satisfied beyond reasonable doubt as to the commission of a matrimonial offence, he would be satisfied within the meaning of S.14 of the Act. 391) said: "The standard of proof in divorce cases would be such that if the judge is satisfied beyond reasonable doubt as to the commission of a matrimonial offence, he would be satisfied within the meaning of S.14 of the Act. The terms of S.14; make it plain that when the court is to be satisfied on the evidence in respect of matrimonial offences the guilt must be proved beyond reasonable doubt and it is on that principle that the courts in India would act". 8. Based on these principles the case on hand did not satisfy the test that the allegation of adultery levelled against the respondent is proved beyond a reasonable doubt. The evidence of one single act of adultery on 22-2-1965 against the respondent was not supported by clinching circumstances and even if it was true the single act by itself would not amount to living in adultery' within the meaning in clause (i) of sub-s, (1) of S.13 of the Act. The identical expression is to be found in S.488(4) of the Crl. Procedure Code, which means something more than a single lapse from virtue. The present tense in the words, 'is living in adultery", is significant and the court will refuse to pass a decree if it is satisfied that the respondent is not actually living in adultery at the time of the petition, even though it may be shown that he or she had in the past an adulterous connection. "Living in adultery" which occurs in S.488(4) Cr.PC., was explained with reference to other judicial pronouncements in a decision of this Court in Mercy v. V. M. Varughese (1968 KLT.154), where Sadasivan J. stated: "Living in adultery means something different from leading as unchaste life. One or two lapses from virtue would be acts of adultery but would be quite insufficient to show that the woman was living in adultery. Words used are 'living in adultery ana not committed adultery'." 9. There is no reliable evidence in this case to come to the conclusion that the respondent is living in adultery. Bhaskarankutty Ezhuthassan, the alleged paramour of the respondent, is a cousin of the petitioner. Words used are 'living in adultery ana not committed adultery'." 9. There is no reliable evidence in this case to come to the conclusion that the respondent is living in adultery. Bhaskarankutty Ezhuthassan, the alleged paramour of the respondent, is a cousin of the petitioner. He was legitimately entitled to visit the respondent and there was evidence that pw 2, none other than the elder brother of the appellant, invited the alleged paramour to the house of the appellant.when the appellant was not in his house, for a breakfast on a Vishu day If really Bhaskarankutty Ezhuthassan was a paramour of the respondent, pw. 2 would not have invited him to the appellant's house when the latter was not there-There were many artificialities in the evidence on the appellant's side. We are unable to accept the evidence to come to a conclusion that the respondent is living in adultery. The entire evidence was read before us. We are satisfied on a reappraisal of the evidence that the appellant failed miserably to establish that the respondent is living in adultery, 10. The conclusion arrived at by the learned Subordinate Judge is correct and there is no merit in the appeal. The appeal is accordingly dismissed with costs. Narayana Pillai J. As there is no reliable evidence to show that the respondent is living in adultery, I agree in dismissing the appeal with costs.