E. Madhavarao vs C. Chinnammi

Bhimasankaram, J.—This appeal arises out of an application filed u/s 5 (1) (b) and (d) of Madras Act VI of 1949 for the dissolution of the marriage of the, Appellant and the Respondent who are husband and wife respectively. The Respondent is also the sister''s daughter of the Appellant.

The facts of the case are as follows; The marriage of the Appellant and the Respondent took place sometime before 1944 "when it was consummated and the couple were living together ever since till 30th January, 1950. The Appellant and the Respondent had three children, but only a male child, Chitti Babu has survived. The Appellant was woks king as Railway Guard on the Bengal Nagpur Railway line. He, his mother, the Respondent and their child were residing at Raipur. About the third week of January that year (1950), one Gatti Umamaheswarrao, a bachelor, whose sister had recently become the wife of the Appellant''s first cousin, came on a visit to their house.

When the Appellant returned home on the morning of the 31st from his duty on the previous night, he found that both the Respondent and G. Umamaheswarrao were absent. It is alleged that for sometime after Umamaheswarrao and the Respondent left Raipur they were living together at Parvatipur, and later at Thotada for about a month, that the said Umamaheswarrao saying that he would take the Respondent to Kaviti, his village, near Rajam, took her from there to Amadalavalasa by a night train. It is further alleged that Umamaheswarrao, and his maternal uncle, one Battula Apparao, who accompanied them stripped her of nearly 25 tolas of gold which she had on her person and left to her own devices.

Thereupon, the Respondent proceeded to Srikakulam, a few miles away, and reached the house of one Rallapati Mohanarao, an employee of the local Municipality, It is stated that she has been living the with him ever since. The Appellant states minis petition that the said Mohanarao is a pelf, stranger to his family. In paragraphs 10 of the petition the Appellant makes the fold-allegations:

graph 10: Respondent has many near relations ih)Chicacole and in neighbouring villages. It is curious that Respondent had chosen to live with Rallapati Mohanarao alone knowing full well that; lie is unconnected with her family. Thus from March, 1950, up to now the Respondent is living in the company of Rallapatti Mohanarao in his house in Chicacole. The Respondent during all this time never made any attempt to join her his Paragraph 11: Thus this conduct of the res-poiifi''Mii, is proof beyond all doubt that she is unchaste and Mint she Is leading the life of a prostitute. Under these circumstances, it is unsafe and luxurious be Mint the Petitioner should take her bade again and live with her.

It is to be noticed that there is no specific allegation here that she is the concubine of Mohanarao. Nor is he made a party lo the petition. Strictly speaking therefore the charge seems to be that the Respondent is leading the life of a prostitute. But it is clear enough that the Appellant meant to say that she Is the concubine of Mohanarao with whom she had been residing from March 1950 to October 1951, the date of the petition. The reiponaent in her countee denied the allegation that shy hud gone away with Umamaheswararao because of illicit intimacy. She asserted that she had taken the permission of the Appellant''s mother and went with him on a visit to his village.

She admitted that at Amiitialavasa the said Umamaheswararao in association with Apparel had deprived her of her jeweler and stated that she had filed a complaint against both of them, in the Sub-Divisional Magistrate''s Court, Srikakulam. Her case is that Rallapati Mohanarao is a cousin of hers, that she sought his assistance in the conduct of the criminal proceedings and that therefore she is living in his house. She accuses the Appellant of being enraged with her for having lost the gold and says that he refused to take her back without it. The learned Sub-Judge proceeded to trial on these pleadings without raising any issues. Both the parties tendered evidence and the learned Judge ultimately dismissed the petition. He states in paragraph 3 of his order as follows-

The point for consideration is whether the Petitioner is entitled to divorce (a)'' on account of the Respondent leading the life of a prostitute or being the concubine of any other man, and (b) has been guilty of cruelty as to render it unsafe for the Petitioner to live with the other party.

As appears from the above precis of the contents of the petition there is no allegation that the Respondent has been guilty of sue cruelty as to render it unsafe for the Petitioner to live with her. There is also nothing in the evidence in support of any such case. Nor is turbo any evidence tending to show that the Respondent is living" the of a prostitute. Therefore, tie only (''.round on Which the Appellant, could divorce is that the Respondent is the of Rallapati Mohanarao.

In view of the course we. have decided to adopt, we do riot propose to of the evidence. It is enough to state that the leered Subordinate. Judge reached the conclusion of the whole of the evidence.

that the Appellant has miserably failed to establish the fact that the Respondent is leading the life of a prostitute or is the concubine of any ''particular individual, be he Uaiamaheswararao or Rallapati Mohanarao.

Now, it appears to us. that the procedure following in the lower Court is irregular and opposed to the rules made under S. C of the Act. Rule 3, Sub-rule (2) is as follows:

In every petition presented by a husband for the dissolution of marriage on the ground that his wife is a concubine of any other man, the Petitioner shall'' state the name, occupation and the place of residence of such other man, so far as they can be ascertained.

Now, it is not quite clear from the allegations in the petition whether the charge is that she was the concubine of Umamaheswararao or of Rallapati Mohanarao with whom, at the time of the petition, she was residing. The statute requires that it should be established that, the wife is the concubine of some other man, that is to say, is such at the time of the petition. It is not enough, if she was once the concubine of some man sometime before the petition. Again, it is to b2 noticed that R. 9 provides:

After framing issues, the Court shall adjourn the hearing: of any petition under Sub-section (1) or Sub-section (2) of Section 5 of the Act for a period of not less than four months and may require evidence-thereon, if it sees fit to do so.

This rule has, admittedly, not been complied within the present case. Our attention has been drawn in this connection to the decision of a single Olid a,e of the Madras High Court in Sivakami Ammal Vs. Bangaruswamy Reddi, (A), in which the learned Judge held that non-compliance with the provisions of the rule amounts to a failure to exercise jurisdiction vested in the Court. We are in entire! agreement with the learned Judge.

5a. As he points out:

This (provision) is intended to give scope for Locus Paenitentiae to the parties.'''' II is to be observed that the Act does not provide for a decree nisi to be followed by a decree absolute as in cases governed by the Indian Divorce Act which adopts in that regard substantially the procedure followed in England. The policy underlying the fixing of time is to give the parties an opportunity for reconciliation. We think, therefore, the proper order to be passed in this case is to direct this matter to be sent back to the lower Court for fresh disposal in accordance with law. We also consider that, in the circumstances above stated, it is necessary that the Appellant should be given an opportunity to bring the allegations in his petition into technical conformity with the language of Section 5 (1) (b) of the Act.

The Respondent may also file a fresh counter. Issues will be framed on the amended pleadings and the case put off for a period of four months as prescribed by Rule 9 before evidence is taken. The appeal will therefore be allowed and the petition remanded for a new trial in the light of the foregoing observations. In the circumstances, there will be no order as to costs in this appeal. Costs of the lower Court will abide and follow the result. The Appellant is entitled to a refund of the court-fee paid by him.