Mrs. C. Howell vs R.S. Howell

N.N. Goswamy, J.—This Matrimonial Reference u/s 10 of the Indian Divorce Act, 1869 has come to us for confirmation of the decree nisi granted by the Additional District Judge, Delhi.

The wife filed a petition u/s 10 of the Divorce Act for dissolution of marriage and claimed that she is entitled to divorce on the ground of respondent having committed adultery coupled with such cruelty as without adultery would have entitled her to a divorce a mensa et thoro and the respondent had committed adultery coupled with desertion without reasonable excuse for over two years and afterwards.

It is alleged in the petition that the parties were married on 6th May, 1970, under the Indian Christian Marriage Act and they lived together and cohabited at Delhi where they were married. Later, they lived and cohabited at Ludhiana where the respondent was employed and that out of this wedlock a daughter was born on 6th December 1972 who is of six years of age and is living with the petitioner. At the time of marriage, the respondent was working as a "C" Class Guard in the Northern Railway and was posted at Ludhiana drawing about Rs. 1000/- per month as his total emoluments though he never disclosed his exact income to the petitioner. The respondent provided the daily necessities of life for the family but never paid the petitioner any cash amount to meet her requirements as pocket money. It is further alleged that on the date of marriage, the petitioner was working in Nav Hind Girls Higher Secondary School at Rohtak Road, Delhi and continued to work there and resided with her parents at 22, P. & T Colony, Sevanagar, Lodhi Road, New Delhi. The respondent was not willing to take the petitioner to Ludhiana where he was posted. The petitioner''s mother asked the respondent as to why he did not want to take her to stay with him, but the respondent could not give any satisfactory reply to that question. The petitioner''s mother advised her to resign her job as a teacher in the school. The petitioner resigned her job in May, 1971, and went to Ferozepur, the family house of the respondent, where she studied and passed her B. Ed. examination and joined her husband in July, 1972. She remained with him till October, 1972. At that time, the petitioner was pregnant and she was pushed out of her own house as the respondent wanted the child to be born at Delhi at her mother''s house and at her expense- The petitioner gave birth to a baby daughter on 6th December, 1972 and the respondent was informed about it but he was not happy and did not bring any present and rather took Rs. 120/- from the petitioner which were given to the petitioner by her friends and relations who had come to see the petitioner in the hospital.

The petitioner continued to stay at Delhi after the birth of the child with her parents as the respondent was not willing to take her back. The petitioner''s mother made certain efforts to persuade the respondent but she also failed. The petitioner''s father died on 26-8-1973 as a result of this shock. The respondent even did not care to come after having been informed of the death of the petitioner''s father. The respondent''s father came to Delhi in December, 1973 and asked the petitioner to accompany him to Ludhiana which she willingly and obediently did. The respondent''s father had promised that the respondent would thenceforth behave properly with her and her family and the petitioner would forgive him and forget the past. The respondent took the petitioner to Sacred Heart Convent School at Ludhiana on 6-1-1974, for a job. She was selected immediately and joined the school from 13-1-74. The entire family of the respondent was living at Ludhiana in a separate house near Loco Shed Bus Stop, but the respondent did not shift there to live with the family and occupied a small room in a part of a house No. 160-A, Ludhiana Railway Colony, Since the respondent was not contributing anything in the family house, the petitioner was asked to leave the family house and she accordingly shifted to the room where the respondent was living. She was made to live in a small room, to work hard, do cooking, washing etc, Besides this, she was tortured by the respondent by abuses and subjecting her to physical beatings on many occasions, She felt miserable and came to the conclusion that it was dangerous for her to live with the respondent any longer. In April, 1975, when the petitioner came back from the school, she found her husband playing and fiddling with a girl of 11/12 years of age and he was embracing and kissing her and doing shameful acts and was encouraging her to do evil things and she found out subsequently that the respondent was giving her small amount of money and petty presents which perhaps she was not getting from her family. On being noticed the respondent started taking heavy doze of liquor and often used to beat the petitioner mercilessly and abused her in the worst filthy language which was unbecoming for any decent man or woman, He also threatened her that he would change his religion and after divorcing her he would remarry.

In November, 1975, the petitioner again saw the respondent making overtures to that young girl of 11/12 years of age and it passed the limits of her patience. She rebuked him and told him that he had completely lost all sense of decency and morality and had fallen to a degradation beyond any means of redemption. This incident brought an end to the cohabitation of the parties and the petitioner left the matrimonial home.

Notice of the petition was issued to the respondent but he did not appear to defend the petition. The petition was set down for ex parte evidence of the petitioner. The petitioner examined herself as P.W. 1. Besides proving the acts of cruelty as alleged in the petition, she deposed that she found from her neighbours that a girl 11/12 years of age used to come to their house and her husband was alleged to be having illicit relations with her, Initially she did not believe that allegation but one day she came to her house and saw with her own eyes that the girl was sitting in the lap of her husband and he was kissing her and embracing and was doing other things which she was ashamed to tell. On seeing this, she rebuked her husband and thereafter her life became more unpleasant.

The aforesaid evidence was the only material before the learned Addl. District Judge and he came to the conclusion that there could be no better evidence of adultery and he accordingly found the respondent to be guilty of the matrimonial offence of adultery and accordingly granted a decree for dissolution of marriage between the parties.

The aforesaid decree came for confirmation before a Special Bench of this Court, The Special Bench, however, was of the opinion that from the evidence on record, it was not possible to spell out adultery. However, in view of the fact that the respondent not having contested the petition, the Special Bench was of the opinion that the marriage between the parties had irretrievably broken down. In these circumstances, the Special Bench thought it proper to remand the case for further, evidence.

After the remand, the petitioner made a supplementary statement. She deposed that in her earlier statement she had stated that her husband was playing with a girl of 11-12 years of age and was embracing and kissing her and doing shameful acts. While further elaborating the "shameful act" she stated that she saw the respondent with the girl and both of them were completely naked. The girl was sitting in the lap of the respondent and holding his male organ. The respondent was also seen by her holding and kissing the girl. After seeing this state of affairs for 10-15 minutes she knocked at the door and the girl was sent out by the respondent through the other door, She further deposed that on another occasion in November, 1975 in the evening hours she noticed the respondent as well as the girl in their room in the same naked condition and engaged in similar shameful acts as before. She again staled that it was afternoon and not the evening and on the second occasion she also noticed the respondent lying on the girl with his hands on the private parts of the girl.

This is the entire evidence on record and the question for our consideration is whether from the aforesaid evidence the allegation of adultery can be inferred. Nobody has yet attempted to define adultery, but in Rayden on Divorce, (1979 Thirteenth Editions) at page 196, it is stated -

Adultery may be defined as consensual sexual intercourse between a married person and a person of the opposite sex, not the other spouse, during the subsistence of the marriage. There must at least be partial penetration for the act of adultery to be proved. The attempt to commit adultery must not be confused with the act itself, and if there is no penetration some lesser act of sexual gratification does not amount to adultery, Once sexual intercourse is proved, the onus of proof is on the respondent to show it was not consensual, Artificial insemination by a donor not the husband is not adultery, since there is no penetration.

The aforesaid passage is based on various judgments on the subject, In Sapsford v. Sapsford and Furtade, (1954) 2 All ER 373, it was found that on a number of occasions, the wife masturbated the co-accused, It was held that mere masturbation of the one by the Other does not come within the ambit of mutual sexual intercourse. That of course is an act of sexual familiarity which on any view of the marriage can hardly be thought to be consistent with the duties of a wife towards her husband but the same cannot amount to an adultery. In Dennis v. Dennis, (1955) 2 All ER 51, the husband pleaded that in or about the autumn of 1941 the wife frequently committed adultery with one Mr. C.E. Spillett and prayed that the marriage be dissolved on the ground of adultery as well as other grounds. The wife in her evidence stated that she was attracted by Mr. Spillett and that she was ready and willing to commit adultery with him that on the only occasion they attempted Mr. Spillett was unable to do that. She also described her fondness for Mr. Spillett and stated that he had visited her flat several tunes and on the important day she went to the bedroom, took off most of her clothing and Mr. Spillett after a little time followed her to the bed room and he took off part of his clothing and having put on his person a sheath he got on to the bed on which she was lying. He tried to have sexual intercourse with her but he was unable to effect this purpose. The evidence of Mr. Spillet was also to the same effect, On these facts, the Court of Appeal came to the conclusion that the act of the parties did not constitute adultery. It was further held that adultery cannot be proved unless there is some penetration. It is not necessary that the complete act of sexual intercourse should take place but if there is penetration by the man of the woman adultery may be inferred but if there is no more than an attempt it is not possible to record the finding of adultery.

In the light of the passage from Rayden on Divorce reproduced above and the conclusions in the two cases cited above, it is not possible for us to Infer "adultery" on the evidence in this case. All that the petitioner has deposed is that her husband and the girl of 11 to 12 years of age were indulging in indecent acts and were naked in a room. Even while describing the incident on the second occasion she deposed that the respondent was lying on the girl with his hand on the private part of the girl. Obviously after she noticed this nothing further could have happened because she was in any case standing outside her room and had entered the room thereafter. There is not even an allegation in the petition or a suggestion in the evidence that there was any penetration by the man of the girl. At best these could be said to be indecent acts, of sexual gratification and as long as they are unaccompanied by some penetration they cannot amount to adultery. The learned counsel for the petitioner relied on Dr. Saroj Kumar Sen Vs. Dr. Kalyan Kanta Ray and Another, , for the proposition that it is not necessary to have a direct evidence and a preponderance of probability is enough to infer adultery. This proposition cannot be disputed but in that case, it was not found as a fact that Dr. Saroj Kumar Sen had voluntarily committed adultery with Devika in petitioner''s quarters in the morning after 9.00 a.m. and he also committed adultery with her in the bed room of the petitioner''s quarter on the morning of 6-11-1969. This finding was arrived at after considering the admissions and other evidence led by the parties. In our opinion that case can be of no help to the petitioner.

For the reasons recorded above, we are unable to confirm the decree nisi passed by the learned Addl. District Judge and consequently dismiss the petition of the petitioner under S. 10 of the Divorce Act. Since there is no appearance for the respondent, we leave the parties to bear their own costs.