B.D. Charles vs Smt. Nora Benjamin and Another

S.K. Mal Lodha, J.—FB Civil Misc Reference (Divorce) No. 120 of 1978 has come up before us exercising jurisdiction over matrimonial causes u/s 17 of the Indian Divorce Act, 1869 (No. IV of 1869)(for short, ''the Act'' hereafter) for confirmation of a decree nisi passed by the learned District Judge, Jodhpur dated January 3, 1978 SB Civil Misc. Appeal No. 32 of 1978 u/s 55 of the Act is directed against the aforesaid order of the learned District Judge by which he awarded Rs. 1,000/- as damages to the petitioner-husband by the appellant-non-petitioner No. 2 (alleged adulterer). The reference and the appeal were heard together. As common questions of law and fact are involved, it is convenient to decide them by a common judgment.

BD Charles is the husband, Smt. Nora Benjamin is his wife and Ravikumar Guswsami is the alleged adulterer, who will hereafter be referred to as ''the husband'', ''the wife'' and ''the adulterer'' respectively. In the petition of the husband u/s 10 of the Act, the wife and the adulterer were impleaded as non-petitioners Nos. 1 and 2 respectively. The case of the husband is that he and his wife are Chirstians & they were married in Tudala City, District Agra on October 20, 1958 according Christian rites and that out of this wedlock, Savita Charles (PW4), Santosh Charles (PW 3), Sanjay Charles (PW 5), Sanjay Charles and Sandeep Charles were born. It was further stated in para 6 of the petition that during the three years immediately preceding the date of filing it, the wife ran away from the house of the husband for about four to five times and lived separately where the adulterer was frequently visiting and cohabiting with her. The illicit relations of the wife with the adulterer developed day to day and she left the house of the husband and shifted to another house situate at Paota ''C'' Road, Jodhpur on September 29, 1976. It was averred that she had no intention to return to her matrimonial home. A notice was issued by the husband to the adulterer on June 5, 1978 which was delivered to him but no reply was received. The petitioner also mentioned that the adulterer also is a married man and knowing fully well that the wife is lawfully married to the husband who is alive still indulged In sexual intercourse with the wife frequently against the wishes and without the consent or connivance of the petitioner. On the ground of adultery, it was prayed that, decree may be passed in favour of the husband and against the wife and their marriage maybe dissolved. A sum of Rs. 5000/- was claimed v as damages from the adulterer for having committed adultery with the wife. This petition was filed on October 18, 1976.

The wife contested the petition by filing a reply dated March 11, 1977. She denied the allegation of adultery and also denied that she had eloped with the adulterer and had been living with him It was slated by her that the allegation of adultery has been levelled against her by the husband to harass her and that the cruel behaviour of the husband-had forded her to live separately and leave the matrimonial, home. It was submitted in the reply that the husband, according to his own saying, is guilty of connivance and condonation, for the wife had been Jiving with the husband upto September, 1976 and, had been discharging all her material obligations faithfully. An objection was taken that the Husband has not been able to explain the gross delay in filing the petition. In these circumstances, it was prayed that the petition may be dismissed with costs.

The adulterer also resisted the petition by filing, a separate reply. According to him, the, husband has conceded false story to malign the adulterer. A similar objection to one which was taken by the wife regarding gross delay, was also raised by him. 1 he learned District Judge framed three issues inclusive of relief, which when translated into English read as under,-

Whether bon petitioner No. 1 (wife) has been living in adultery with non-petitioner Np. 2 (adulterer) for more than three years?

Whether non-petitioner No. 1 (wife) and non-petitioner No. 2 (adulterer) lived in adultery with the connivance of the petitioner (husband) and whether the petitioner has condoned the same?

Relief.

The husband examined himself as PW 1, Shivkuamr PW 2, Santosh Phillips Charles PW3, Sharley Charles PW 4, Sanjay. Charles PW 5 and Cyril Lobo PW 6 In rebuttal, the statements, of the wife and the adulterer were recorded as DW 1 and NA2/W1. The learned District Judge accepted the petition and granted a decree nisi for dissolution, of the marriage by his judgment dated January 3, 1978 He also awarded Rs. 1,000/- as damages to the husband from the adulterer. The decree nisi passed, by the, learned District Judge dissolving, the marriage has come up for confirmation u/s 17 of the, Act. The adulterer has preferred appeal praying that the judgment of the, learned District Judge should be set aside so far as it relates to him regarding the finding of adultery'' and award of Rs. 1000/- as damages and costs to the husband.

We have heard Mr. M.L. Kala for the husband, Mr. L.R. Calla for the wife and Mr. S.R. Singhi, for the adulterer and have also carefully perused the-record of the case.

6 The burden of issue No. 1 was placed on the husband as he moved the petition u/s 10 of the Act for dissolution of the marriage on the ground that his, wife has, since the solemnisation thereof been guilty of adultery. Section 11 enjoins upon a husband-petitioner to make the alleged adulterer co-respondent to a petition u/s 10 of the Act unless he is excused from doing so on one of the grounds mentioned in the section. Until leave to dispense with the presence of the adulterer as co respondent is actually obtained, the petition cannot succeed. Relying on Loveden v. Loveden 161 ER 648, Pullan, J., in Mrs. Agnes Cecillia Gome (Gannon) Vs. Lancelot Ashley Gome, observed that it is a fundamental rule that it is not necessary to prove the direct fact of adultery and that in every case, almost, the fact is inferred from circumstances that had to it by fair inference as a necessary conclusion, and unless this were the case, and unless this were so held no protection Whatever could be given to the marital lights It was also held that the circumstances most be such as would lead the guarded discretion of, a reasonable and just man to the conclusion.

In Mrs. Agnes Cecillia Gome (Gannon) Vs. Lancelot Ashley Gome, it was observed.-

It is not necessary that there should be direct evidence of adultery : as it is not easily available, rather direct proof in very rare. It has been pointed out in a number of cases that rarely the parties are surprised in a direct act of adultery.... But circumstantial evidence must be sufficiently strong and conclusive. Association coupled with opportunity, illicit faction, undue familiarity, guilty attachment are some of the instances which create on inference upon, which the Court can act. There is an old legal maxim in Scotland which runs as follows: "Solus (sic) in suspicto loco presumitur direre 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.

(emphasis supplied)

The provisions of Section 497, Penal Code, came up for consideration before a learned Single Judge of the Delhi High Court in A.S. Puri Vs. K.L. Ahuja, of the report, it was observed,-

...What is essential for the offence of adultery is proof of "sexual intercourse". It is also true that this could rarely be proved by direct evidence because precautions are taken to screen it from the view of others. But in evaluating the husband''s accusation against his wife of adultery the entire back ground and the context in which such Accusation is made is highly relevant. When the parties concerned are sophiscated, conclusions cannot be arrived at on the mere basis of opportunities for sexual intercourse; such an inference may be more readily possible when dealing with persons whose social mores are more rigid and less sophisticated The fact of adultery has, therefore, to be inferred from the totality of circumstances that lead to it by fair inference and as a necessary conclusion. What those circumstances are cannot be laid, down universally None theless, the circumstances, must be such as should lead the guarded discretion of a reasonable and just mind to that conclusion; it is not to be reached by rash and intemperate judgment, or upon assurances that they are enqually capable of two interpretations.

(Italies is ours)

In Smt. Pushpa Devi Vs. Radhey Shyam, Kansingh, J., while dealing with the wife''s appeal u/s 28 of the Hindu Marriage Ace, 1955 directed against the decree for dissolution of marriage by divorce on the ground of adultery, held that it is not necessary to prove the fact of adultery by direct evidence and such evidence, if produced, would normally be suspect and likely to the discarded and that normally adultery is proved by circumstantial evidence. It was further had that the general rule is that the circumstances must be such as would lead to a guarded judgment of as reasonable and just nun to the conclusion.

The following principles emerge from the afore-said decisions.-

Direct proof of adultery is very rate.

Adultery can be established by circumstantial Evidence, and

Circumstances must be such as would lead the guarded discretion of a reasonable and just man to a conclusion of adultery.

Keeping these principles in view, we propose to review the evidence. The learned District Judge, on a careful consideration of the oral evidence of PW 1 B.D. Charles. PW. 2 Shivkumar PW 3 Santosh Charles. PW 4 Sharley Charles, PW 5 Sarjay Charles PW 6, Cyril Lobo, DW 1 Nora Benjamin and NAW/W1 Ravi Kumar Goswami and the letters Ex. 1 to Ex. 6 which, are said to have been written by the adulterer to the wife, reached the conclusion that the wife has been living in adultery with, the adulterer.

We may briefly refer'' to the evidence. PW 1 B.D. Charles (husband) has deposed that three years ago from the date of his statement in Court, there was illicit relation between the wife & the adulterer, that his wife had sexual intercourse with the adulterer and roamed about with him and about these things he came to know from PW 2 Shivkumar. PW 2 Shivkumar has stated that he has been visiting the house of the husband for the work of refrigeration, that he saw the adulterer coming to the house generally in the evening, that the wife and the adulterer used to talk inside the house, that they used to kiss each other & that he had seen the wife and the adulterer naked on a bed in a room. It may be Mated that this witness was not believed be the learned District Judge, PW. 3. Santosh has stated in his statement that, the adulterer used to leach him, that ''whenever'' the adulterer came, he either used to give him, some work, or used to send him out for some Work, that the adulterer and the wife used, to go inside the room and used to remain there sometimes for one or two hours and sometimes for sufficiently long period. He has further stated that he has seen them naked & in compromising position inside the room on one cot. This witness went on to state that he has seen such instances in the gear''s 1972. 1973 and 1975 PW. 4 Sharley has deposed that when her father was net in the house, the adulterer used to come and used to kiss the wife, that they both used to drink together and used to bolt the door and Keep them cut side the house. It is further clear fro to her statement that the adulterer used to come at 10 in the night and return in the morning PW. 5 Sanjay has supported PW. 3 Santosh and PW. 4 Sharley PW. 6 Cyril Lobo is the landlord in whose house the adulterer was living at the relevant time. He has deposed that when the adulterer''s wife went for delivery to Bikaner and he was alone, the wife used to come daily to his house in the side room which was on rent with the adulterer. He has further stated that the wife used to come in the morning, afternoon and in the evening and at times, she used to spend the whole night in the adulterer''s room and leave in the morning. From his statement, it is clear that in the adulterer''s room, there was no third person and only the wife and the adulterer used to stay in the night. This, according to this witness, continued for a period of two months.

The learned District Judge has examined in detail, the statements of the wife and the adulterer given in the Court. Having read them, we are satisfied that the reasons given by the learned District judge for believing them are correct.

Letters Ex. 1 to Ex 8 have been placed on record by the husband. These letters have been proved by the, statements of B.D. Charles PW 1 (husband) and PW 3 Santosh Charles. The husband has stated that he has seen the adulterer writing and he can identify the handwriting of the adulterer PW 3 Santos has stated that the writing of, the letters Ex. 1 to Ex. 8 appears to be that of the adulterer as he can identify it. This evidence is admissibly u/s 47, of the, Evidence Act. The wife and the adulterer have denied that these letters are written by the adulterer. Besides denial simpliciter by the adulterer, there is no other independent and convincing evidence to hold that these letters were not written by the adulterer, The learned District Judge has rightly placed reliance on the statements of the husband and his son PW 3 Santosh Charles for holding that these letters are proved to have been, written by the adulterer. On going through the contents of these letters and the words used therein, reference of which has been made by the learned District Judge in his judgment, it is clear that the wife was having illicit intimacy with the adulterer. Prom the evidence of PW 3 Santosh Charles and PW 6 Cyril Lobo, it is clear that the wife and the adulterer used to remain in a room at night From this, an inference of adultery can be drawn in the absence of any evidence tending to negative it. It to may be added that PW 3 Santosh Charles has stated that he had seen the adulterer and the wife in a room in compromising position. In these circumstances, we are satisfied, on the basis of aforesaid evidence, both oral and documentary that the wife has been guilty of adultery.

The next question that arises for, our consideration is whether the, wife and the adulterer lived in adultery, with the connivance of the, husband and he condoned it. The contention raised on behalf of the wife before us, was that the husband and the wife lived together upto September 29, 1976, and the petition u/s 10 was filed on October 18, 1976. According to the learned Counsel for the wife, the husband has condoned the conduct of the wife and the petition is highly belated.

The delay, that operates as a bar to the grant of relief of divorce, is the, delay which could be described as either unnecessary or improper or as culpable delay in English decisions. It was held in Lulithamma v. Kannan AIR 1966 Mys. 178, that delay really means the delay for which some blame can be attached to the part guilty of delay. In Lakshmi Ammal Vs. Alagiriswami Chettiar, it was held that the, court must be satisfied that the delay has not been due, to any such reason as acquiescence in the injury or indifference to the same, or there is some wrong motive for seeking relief after sleeping over the matter far an inordinate period.

It is well settled that condonation, means forgiveness all such material offences which are known to or believed by the offended spouse so as to restore, between him/her & the offending spouse, the position which existed prior to the commission of the matrimonial offence i.e. restoration, between them the status quo ante. It is equally well settled that whether or not there has been condonation is as question of act in every case.

Connivance in the cases of adultery is such conduct by one spouse as intentionally or recklessly allowing the adultery on the part of the other.

16 It has been stated by the petitioner that he Game to know about the adulterous conduct of the wife gradually. It has not been elicited from Ms. statement that after having acquired knowledge in regard to the adulterous conduct of the wife, he had cohabited with her. A perusal of the statement of the husband as PW 1 shows, that the wife had left his house finally on September 29, 1976 and that in 1975, when he went out on tour, he came to know that the wife was having illicit intimacy with the adulterer in 1970-71. He has stated that he did not take any proceedings in 1975 because for 1� years, he was in Bihar. The learned District Judge rightly held, on the basis of the statement of the husband that he had come to know about the adultery of the wife gradually. Thus, delay in this case cannot operate as a bar. In the facts and circumstances of the case, cannot be said that there was any acquiescence or condonation of the adulterous conduct of the wife by the husband In Mudge v. Mudge 1950 (1) All. ER 607, it was held that if a husband, who suspects his wife of adultery in order to get proof of the adultery watches her or employees agent for this purpose, there is no connivance.

For the reasons mentioned above, we confirm the findings of the learned District Judge, which he recorded in respect of issue Nos. 1 and 2. There appears to be no collusion between the husband and the wife. On the basis of the evidence led in the case, the learned District Judge was right in granting a decree for dissolution of the marriage as prayed for by the husband on the ground that the wife has been guilty of adultery.

Now we take up the question of award of damages to the husband. The learned District Judge has directed that the husband will be entitled to receive, from the adulterer, a sum of Rs. 1,000/- as damages Section 34 of the Act reads as under,-

HUSBAND MAY CLAIM-DAMAGES FROM THE ADULTERER. Any husband may either in a petition for dissolution of marriage or for judicial separation, or in a petition to the District Court or the High Court limited to such objects only claim damages from any person on the ground of his having committed adultery with the wife of such petitioner.

Such petition shall be served on the alleged adulterer and the wife, unless the Court dispenses with such service, or directs some other service to be substituted.

The damages to be recovered on any such petition shall be ascertained by the said Court, although the respondents or either of them may not appear.

After the decision has been given the Court may direct in what manner. such damages Shall be paid or applied.

According to this Section, compensation is given to the husband for the loss which he has sustained and not punitive damages. In case actual loss or injury suffered by the husband on account of the adultery is not established, the husband is not entitled to damages. In the case of award of damages to the husband from the adulterer, it is necessary to consider the circumstances of the married life of the husband and the wife from the beginning. We are supported in this view by the observations made in AIR 1931 259 (Oudh) In W.H. Thomas Vs. Mrs. Thomas and Another, it has held that the objects, of awarding damages against an adulterer is not to punish at all and fill that the law permits to be given is compensation for the loss which the husband sustained. In AIR 1927 34 (Oudh) it was observed,-

There are atleast three points to be considered in measuring the damages : (1) How has the husband damaged himself, (2) did he and his wife lived happily together, and (3) the position of the partner in adultery, though the actual means of the man have nothing to do with the question.

In the petition, the husband has made no averment for claiming damages from for the adulterer. In Para 24 dealing with the reliefs amongst others, it has been stated by the husband that the adulterer may he directed to pay a sum of Rs. 5000/- to the husband as damages by reason of his having committed acultery with the wife. In his statement as PW 1, he has said nothing regarding his claim for damages u/s 34 of the Act. As there is no allegation about the damages in the petition and as there is no evidence about the injury which the husband had suffered as a result of the conduct of the adulterer, we hold that the learned District Judge was not justified in direction the adulterer to pay Rs. 1000/- as damages to the husband u/s 31 of the Act.

It follows from the discussion made here in above that the decree nisi should be confirmed and the direction awarding damages in the sum of Rs. 1000/- should be set aside.

The decree nisi is accordingly confirmed and the appeal of the adulterer is allowed in part and the direction made u/s 34 of the Act for awarding Rs. 1000/- as damages to the husband by the adulterer is set aside. There will be no order as to costs.