M.T. Carunya vs S. Joseph Chellappa

Srinivasan, J.—The wife is the petitioner. She has sought divorce on the ground that the husband is guilty of bigamy with adultery. The

husband remained ex parte. The wife has given evidence deposing that the husband has married another woman. The learned District Judge, on the

basis of the evidence adduced by the wife, granted a decree for divorce. The said decree has come up before us for confirmation.

The amicus curiae, appointed for the respondent, has raised a contention that there is no allegation in the original petition or proof in the

evidence of any adultery on the part of the husband. According to him, the evidence makes out only bigamy and not bigamy with adultery. For this

purpose, he places reliance on the definition of adultery in Section 497 of the Indian Penal Code. Under that section, necessary ingredient is that

the woman concerned is the wife of another man. According to learned Counsel, in this case, the husband is only having, if at all, intercourse with a

woman, whom he has married and she not being the wife of another woman he is not guilty of adultery as defined by Indian Penal Code.

The question, therefore, arises whether the definition of adultery as found in the Indian Penal Code can be applied for the purposes of the Indian

Divorce Act. It is too well-settled that a definition of an expression found in one particular statute cannot be utilised for the purposes of another

statute unless the context warrants the same, as held in Pandit Ram Narain Vs. The State of Uttar Pradesh and Others, . While the Indian Penal

Code is dealing with offences against State and containing definition for the purpose of punishing persons who have committed such offences, the

Indian Divorce Act deals with the parties to a marriage and offences committed in violation of such marital relationship. While the Indian Penal

Code is a statute dealing with the public as such, the Indian Divorce Act is one dealing with the rights of individuals who are parties to a marriage.

Hence on general principles, it is not possible to import the definition of ''adultery'' found in Section 497 of the Indian Penal Code, while

considering the provisions of the Indian Divorce Act. Moreover the definition in the Indian Penal Code owes its origin to historical reasons. The

section in the Indian Penal Code defines the offence in a very special narrow sense that offence can be committed only by a man, the woman being

exempt from punishment even an abettor. Under that section, a married wife cannot commit adultery for the abetment thereof. The term ''adultery''

under the section is, therefore to be understood in the light of socialideas of the community as being a serious breach of matrimonial ties for the

purpose of punishing the offender as having committed an offence against the society.

The Indian Divorce Act does not contain any definition of the expression ''adultery'' Section 3, the interpretation clause, defines ''bigamy with

adultery'' as adultery with the same woman with whom the bigamy was committed. It also defines the expression ''marriage with another woman''

as marriage of any person being married to another person during the life of the former wife whether the second marriage shall have taken place

within India or elsewhere. u/s 10 of the Indian Divorce Act, a wife may present a petition to the District Court or to the High Court praying for

dissolution of marriage on the ground that her husband has been guilty of bigamy with adultery or of marriage with another woman with adultery.

Adultery is defined in the Concise Oxford Dictionary as (voluntary sexual intercourse of married person with a person other than his spouse''. In

Black''s Law Dictionary (Sixth Edition), adultery is defined as ''voluntary sexual intercourse of a married person with a person other than the

offender''s husband or wife, or by a person with a person who is married to another''. In P. Ramanatha Aiyar''s Law Lexicon (Reprint Edition

1993), ''adultery'' is defined as follows:

Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the

consent or connivance of that man; such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery. (Penal Code,

Section 494.) See also Reg. V of 1872, Section 7 Adultery is the wilful violation of the marriage bed.

Adultery is the offence of incontinence by married person.

Other definitions: Adultery is the voluntary sexual intercourse of a married person with a person other than the offender''s husband or wife.

(Anderson L. Dict.) The Civil Law defines adultery to be the carnal knowledge of another man''s wife. By the civil law, adultery could be

committed only by the unlawful sexual intercourse of a man with a married woman.

It is ''the sin of incontinence between two married persons or if but one of the persons be married, it is nevertheless adultery; but in this last case, it

is called single adultery, to distinguish it from the other, which is double.

The question is not res integra. This High Court had to consider, at the end of the fast century, as to whether the definition contained in the Indian

Penal Code of the word ''adultery'' would apply to a proceeding u/s 488 of the Code of Criminal Procedure for maintenance filed by the wife. In

Gantapalli Appalamma v. Gantapalli Yellayya ILR 20 Mad. 470, the Magistrate was satisfied that the husband was living in adultery and granted

maintenance. On the facts, it was found that the husband in one case was living with a widow and in another case with a concubine. The Sessions

Judge made a reference to the High Court on the ground that adultery alleged in those cases was not within the definition of the said offence in the

Indian Penal Code. Section 4 of the Code of Criminal Procedure, which prevailed at that time, provided that all the words and expressions used

therein and not defined but defined in the Indian Penal Code, will have the meanings respectively assigned to them in the later. Referring to that

provision, the Full Bench of this Court held that the word ''adultery'' used in Section 488 of the then Code of Criminal Procedure should not be

interpreted in the narrow manner indicated in Section 497 of the Indian Penal Code. It was said that with reference to the provision u/s 4 of the

Code of Criminal Procedure, if a different intention appears from the subject or context, the meaning given to the said expression in the Indian

Penal Code would not apply and in the context of Section 488, Code of Criminal Procedure, the strict definition of Section 497, Indian Penal

Code would not apply.

In Sainapatti v. Sainapatti AIR 1932 Lah. 116, a single Judge of that court had to consider the expression ''marriage with another woman'' u/s

3(8) of the Indian Divorce Act and observed that the section had defined only marriage with another woman and not marriage with another woman

with adultery. Learned Judge said that if after a second marriage, during the life of the wife by the first marriage, a person cohabits with a woman,

whom he married later, he commits adultery and the wife is entitled u/s 10 of the Indian Divorce Actio apply for dissolution of marriage, just as she

would have been entitled to apply, had the husband been guilty of bigamy with adultery. The learned Judge had obviously applied the wider

meaning for adultery and not confined it to the narrower meaning given in Section 497 of the Indian Penal Code. For the said purpose, the learned

Judge relied on a passage in Rayden on Divorce page 86 Edition 2, which read:

Bigamy was defined as the marriage of any person during the life of the former husband or wife, whether the second marriage shall have taken

place within His Majesty''s dominion or elsewhere.

The learned Judge also referred to the following passage in Rattigan on his Law of Divorce in India at p.24, which read:

Under the Indian Penal Code (Section 494) a person who contracts a marriage during the life of a former husband or wife, ''does not commit the

offence of bigamy'' if such husband or wife, at the time of the subsequent marriage, shall have been continually absent from such person for the

space of seven years, and shall not have been heard of by such person as being alive within that time, provided that the person contracting such

subsequent marriage shall, before such marriage takes place, inform the person with whom such marriage is contracted of the real state of the facts

so far as the same are within his or her knowledge.

In Olga Thelma Gomes Vs. Mark Gomes, , a Special Bench of the Calcutta High Court held that the definition of ''adultery'' found in Section

497 of the Indian Penal Code has no application the proceeding for divorce u/s 10 of the Indian Divorce Act. The Bench has pointed out that the

word ''adultery'' has been used in a wider sense in Section 10 of the Indian Divorce Act than the definition contained in the Penal Code. The Bench

has relied on the definition given in Latey on Divorce and Murray''s Oxford Dictionary as the true meaning of the word ''adultery'', which has been

used in Section 10 of the Indian Divorce Act. The Bench placed reliance on the Full Bench Judgment of this Court in Gantapalli Appalamma v.

Gantapalli Yellayya ILR 20 Mad. 470.

A similar ruling was given in Susama Singh Vs. Sri Sailendra Nath Singh and Another, . The Full Bench of the Calcutta High Court, after

referring to the Lahore High Court''s judgment in Sainapatti v. Sainapatti AIR 1932 Lah. 116, held that the real distinction between ''bigamy with

adultery'' and ''marriage with another woman with adultery'' is that there is ''bigamy with adultery'' when the second marriage is null and void under

any law but still there is cohabitation and ''marriage with any other woman with adultery'' happens when the second marriage, though taking place

during the life time of either the husband or the wife is not void under any law and there is co-habitation between the husband and the last married

wife. The Bench proceeded on the footing that co-habitation with the woman, whom the husband married while the first wife was living, would

amount to adultery within the meaning of Section 10 of the Indian Divorce Act.

The entire law on the subject was discussed in detail by a single Judge of this Court in Samraj Nadar Vs. Abraham Nadachi, . That was a case

which arose u/s 32 of the Indian Divorce Act on an application for restitution of conjugal rights in which adultery was pleaded as a defence. The

learned Judge said that the word ''adultery'' has not been defined in the Indian Divorce Act and the ordinary dictionary meaning must be applied.

The learned Judge proceeded to observe:

...In Websters New English Dictionary, 1888, the following meaning is given; ""Violation of marriage bed; voluntary sexual intercourse of a

married person with one of the opposite sex, whether unmarried or married to another; (the former case being technically designated single, the

latter double adultery)

The same meaning is given in Fowler''s Concise Oxford Dictionary:

Voluntary sexual intercourse of married person with one of opposite sex married (double adultery) or not (single adultery).

No doubt, u/s 497, I.P.C. in order that a man can be guilty of adultery, the actual definition of the offence runs thus : ''Whoever has sexual

intercourse with a person who is and whom he knows or has reason to believe to be the wife of an other man, without the consent or connivance

of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with

''imprisonment of either description for a term which may extend to five years or with fine or with both. In such case, the wife shall not be

punishable as an abettor''.

Only one form of adultery has been made punishable by that section. It will be noted that under that provision a married woman is not guilty of

adultery even as an abettor. If there is consent or connivance of the husband, then there will be no offence of adultery. There is no reason why this

specialised definition of adultery should be extended to the interpretation of Section 32 of the Indian Divorce Act. It may be noted that under that

section, the husband may obtain a decree of Judicial separation on the ground of adultery committed by the wife, though as we have seen, u/s 497,

I.P.C. the wife will not be guilty of the offence of adultery u/s 497, I.P.C. This itself shows that the narrow definition of adultery in Section 497,

I.P.C., cannot be applied to the interpretation of the terms of Section 22 of the Indian Divorce Act, 1869. Further, the principle underlying the

relief of judicial separation on the ground of adultery of the spouse, namely, violation of the marriage bed, makes it immaterial whether the woman

with whom the husband has sexual relationship is a married woman or not. The offence u/s 497, I.P.C. is against the husband with whose wife

another man has committed adultery. But wider considerations apply when a husband or wife seeks judicial separation or dissolution of the

marriage on the ground of adultery. In the latter case, it is the violation of the marriage tie which is relevant.

The learned Judge proceeded to refer to the judgment of the Calcutta High Court in Olga Thelma Gomes Vs. Mark Gomes, and the Gantapalli

Appalamma v. Gantapalli Yellayya ILR 20 Mad. 470 We are entirely in agreement with the view expressed by the learned single Judge in that

case.

In Christinamary Stella Vs. Vijay Siddharaj and Another, , the same view has been expressed, but without any discussion of the position in

law. The Full Bench held that the husband in that case contracted a marriage with another woman within the meaning of Section 3(8) of the Indian

Divorce Act when the former spouse of his was alive and without her consent and knowledge and therefore he had committed an act which

entitled her to present a petition for dissolution of marriage u/s 10 of the Divorce Act. Though there is no discussion of the question, it is clear from

the judgment that the Full Bench proceeded on the footing that the definition of ''adultery'' as found in the Indian Penal Code, would not apply to a

proceeding under the Indian Divorce Act.

Applying the above principles of law, we find that once it is approved beyond doubt that the husband has married another woman and is

continuously living with her, the husband is guilty of bigamy with adultery. There is no evidence to the contra. Husband has not chosen to cross-

examine the wife on her deposition. The view taken by the District Judge that the wife is entitled to a decree of divorce is fully justified and we are

upholding the same. Hence, the decree passed by the District Judge is confirmed.