Antoniswamy vs Anna Manickam and Another

M. Anantanarayanan, C.J.—This is a reference by the learned District Judge, West Thanjavur, u/s 10 read with Section 17 of the Indian

Divorce Act, for dissolution of the marriage as between the petitioner and the first respondent, on the facts of the record.

The evidence in this case is very simple, and within a brief compass. The parties are Indian Christians, and the evidence of the petitioner is that

he married the first respondent 18 years ago at Ammapettai. They lived for about six years at Saliamangalam, immediately after the marriage. In the

year 1951 the petitioner was appointed as watchman of the Raja Mirasdar Hospital, Thaniavur, and he, thereupon, proceeded to Thaniavur along

with the first respondent and the two lived together there. The first respondent lived with the petitioner only till 1963, and she then deserted the

petitioner, ran away from him, and began living in illicit intimacy with the second respondent. From 1955 onwards she had been living separately,

and, with the second respondent, her paramour. The petitioner swears that there is no collusion between the parties and he prays for dissolution of

the marriage, u/s 10 of the Indian Divorce Act, on the ground of adultery by the wife.

This case has occasioned us some anxiety, because it is the petitioner (P. W. 1) alone who has given testimony on oath, and there is no other

evidence on the record, in corroboration of his testimony. The two respondents have remained ex parte throughout, and even in this Court. But

that is a circumstance which may not justify any Court in coming to the conclusion that the evidence of the petitioner is true and worthy of credit,

merely because the respondents have not cared to contest the proceeding. Actually, in the light of Section 7 of this Act, which lays down that the

High Courts and District Courts should give relief. In such cases, on principles and rules as nearly as possible conformable to the principles and

rules of the Divorce and Matrimonial Courts in England, there have been prior instances when this Court declined to act and give relief on the

uncorroborated testimony of the husband. One such instance is Pendurti Joseph Vs. Pendurti Ramamma and Another, .

But. we are definitely of the view that, in this case, not merely is the husband (P. W. 1) a competent witness, but that his evidence is true, worthy

of credit and that it deserves to be acted upon. We may point out that, under the Indian Evidence Act, ""a fact is said to be proved"" within the

meaning of the relevant definition in Section 3, when the Court considers its existence so probable, on the available evidence, that a prudent man

ought to act upon the supposition that the fact exists. u/s 134 of the same Act, no particular number of witnesses, nor particular quantum of

evidence is required by the law for the proof of any fact. Certainly, in divorce cases, because of the principles of Section 7 of the Indian Divorce

Act, Courts lave to be circumspect in this regard, and the uncorroborated evidence of a husband will have to be received with caution, and

assessed with vigilance.

But, keeping these principles In mind, nevertheless, we are convinced that this is a case in which the evidence ought to be accepted, and the relief

ought to be afforded. The evidence of the husband (P. W. 1) appears to be true, worthy of credit, and free from any possible suspicion of

collusion. As the learned District Judge points out, there are two sons by this marriage, aged 17 years and 14 years, whom the husband (P. W. 1)

is bringing up, in his custody and nurture. It is most improbable that the husband would have come forward with a proceeding of this character, if

the wife (first respondent) had not really deserted him, and had not been living in adultery with the second respondent.

It has to be borne in mind that, In the ordinary circumstances of society in this country, a man would not like to make statements of that character,

against a wife, including averments of prolonged desertion and continued illicit intimacy [with another man, had these averments no |basis or

foundation in truth. Again, though under the statute the matrimonial offence of adultery per se gives the husband a cause of action for divorce, this is

actually a case of continuous illicit intimacy, with a third party, deserting the home and the husband altogether. We are, hence, satisfied that this is a

case In which the evidence on record ought to be accepted, as affording a sufficient basis for the relief sought for by the husband.

Hence, we confirm the decree of the learned District Judge u/s 17 of the Indian Divorce Act and accept the reference.