Ambujam G. Ammal vs M.R. Arumugham

M. Anantanarayanan, Offg. C.J.

(1) In this reference by the learned District Judge of Tirunelveli under Ss. 10, 17 and 22 of the Indian Divorce Act, (IV of 1869), the moot

question is whether the plaintiff-petitioner (Ambujam G. Ammal) has established, on the facts, her claim for divorce. The plaint shows that the

plaintiff-petitioner prayed for divorce, upon one of the grounds specified in the second part of S. 10, viz., ""of adultery coupled with such cruelty as

without adultery would have entitled her to a divorce a mensa et thoro"".

(2) In the plaint, there is a long account given of the conduct of the respondent (defendant) subsequent to this marriage, particularly in the form of

dissolute living, physical violence towards the petitioner and her children, seizure of her earnings, and imputations of unchastity. Broadly stated, the

situation is that the plaintiff was a student in the S.S.L.C. class when the defendant then employed in Military service, married her by a registered

form on 12-2-1951, the defendant subsequently being converted to Christianity, the religion of the plaintiff. The plaint does contain averments, in

some detail of what would certainly amount to legal cruelty on the part of the husband (defendant). There is also Ex. A-2, a copy of the petition

submitted by the plaintiff to the Sub Inspector of Police, Tenkasi, which again contains many particulars of physical violence and cruelty. As the

learned District Judge points out, the defendant did not appear and contest the proceeding. Of the three witnesses examined by plaintiff-petitioner

herself has given evidence as P.W. 1, and Kuthalingam, (P.W. 2) corroborates her with regard to the physical violence employed by defendant

towards plaintiff on more than one occasion. These allegations are not controverted; and we are fully satisfied on the evidence, that the respondent

was guilty of cruelty towards his wife, which would ordinarily entitle her, by itself, to a decree for judicial separation under S. 22 of the same Act.

(3) But, unfortunately for the petitioner, such cruelty, by itself, is not an adequate ground for divorce. The scheme of S. 10 is that if the wife is to

succeed in a decree for divorce against the husband, she must show not merely cruelty, but adultery coupled with cruelty. It is true that the

petitioner in her plaint did allege that the defendant (respondent) was guilty of loose living, and unfaithfulness to her. She refers to illicit intimacy

between the defendant and other parties at Chikka Narasayyanna Village. But, obviously, a vague averment of loose conduct will not be sufficient

as proof of adultery. Adultery is a specific matrimonial offence, and this court had occasion to point out in the Full Bench decision in Siluvaimani

Ammal Vs. Thangiah Nadar, that vague allegations of adultery, or evidence confined to a mere statement that the respondent was keeping a

woman, will not be adequate to sustain a finding of adultery.

Learned counsel as amicus curiae for plaintiff-petitioner has urged that there is the evidence of Henry John Peter (P.W. 3) of adultery committed

by the respondent with a Chetty girl, living adjacent to the house of P.W. 1. But, P.W. 3 himself does not state whether he had any personal

knowledge of this illicit intimacy, and, could speak from such knowledge. The evidence of P.W. 3 rather suggests that he was relying upon

hearsay, and upon the conduct of the husband (defendant) when P.W. 1 (plaintiff) questioned him about this. But, extraordinarily enough, P.W. 1

makes no references whatever to this Chetty girl in her sworn deposition, nor can we find any such specific reference even in the plaint. Under

those circumstances, we are constrained to conclude that the factum of adultery was not at all established in the present case. The learned Judge

was conscious of the character of the evidence on this point, and he observes that it is a settled rule that adultery need not be established by direct

evidence, but that circumstantial evidence would be enough. Even so, as observed by the Bench in the decision already referred to, it must be

specific, and must relate to a particular individual; vague averments of dissolute living are not evidence of adultery.

(4) In these circumstances, the decree nisi has necessarily to be set aside, and instead, the suit can only be decreed for judicial separation under S.

22 of Act IV of 1869. The same course was adopted by the Full Bench in the authority that we have earlier cited; following this, we decree the

referred case only for judicial separation under the Act. The parties will bear their own costs.

LI/ DHZ

(5) Order accordingly.