N. Subbanunaiah vs N. Venkala Subbamma

Satyanarayana Raju, J.—This is an appeal under CI. 15 of the Letters Patent, from the .''judgment of Mr. Justice Basheer Ahmed Suyeed in CM.A. No. 315 of 1952 which reversed the order of the Subordinate Judge''s Court, Narasaraopet, granting dissolution of the marriage of the Appellant with the Respondent.

The facts are simple ami may be briefly stated: The Respondent is the Appellant''s wife. They were married in or about the year 1944 and the. marriage was consummated about two years thereafter. The Appellant averred in his petition that in or about April 1950, while the Respondent was staying with her foster mother at Kondramutla village, she eloped with one Venkatanarsu with whom she was living at Guntur the July, 1950, and that some time thereafter the Respondent returned to the place of her foster mother. The Appellant filed a petition on 2nd August, 1950, u/s 5(1)(b) of the Madras Hindu (Bigamy, Prevention and Divorce) Act (VI of 19 ) (hereinafter referred to as the ''Act'') for dissolution of his marriage With the Respondent on the ground that she is concubine of the said. Venkatanarsu and that both of them are continuing to have illegal intimacy even after their return from Guntur. The Respondent''s case, on the contrary is. that she had never any illicit intimacy with Venkatanarsu but that she was faithful to her husband oil along.

The learned Subordinate Judge of Narasaraopet held that the version of the Appellant, namely, that the Respondent was leading an adulterous life with Venkatanarsu is true and grant-'' ed the petition for dissolution of the marriage of the Appellant with the Respondent. Against this order, the Respondent filed an appeal in die High Court of Mauras which was disposed of by Mr. Justice Basheer Ahmed Sayeed. The learned Judge held that no case was out out for ordering dissolution of the marriage and allowed the appeal. Against the said judgment, the husband filed the above appeal.

The petition for dissolution of marriage was founded on Section 5 (1) (b) of the Act and it is necessary to set out its provisions:

(i) Either party to a marriage solemnised before or after the commencement of this Act who has completed eighteen years of age may present a petition to the Subordinate Judge''s Court, the District Court or the City Civil Court, within the limits of whose jurisdiction the marriage was solemnized or the other party to the marriage actually and voluntarily resides, praying that the marriage may be dissolved on the ground that the other party:

(b) if a wife is a concubine of any other manor is leading the life of a prostitute....

Under this section, a husband would be entitled for a dissolution of the marriage if his wife is a concubine of any other man or if the wife is leading the life of a prostitute. In this case the husband explicitly alleged that his wife is living in concubine'' with Venkatanarasimha. We have therefore to ascertain the extract connotation of the expression ''concubine'' occurring in Section 5 (it (b) of the Act. In Chamber''s Twentieth Century Dictionary, the word ''concubine'' had been defined as "one (esp. a woman) who cohabits without being married." The Concise Oxford Dictionary defines the word as a "woman who cohabits with a man, not being his wife; (among polygamous people) secondary wife." In the Law Lexicon of British India compiled and edited by Mr. P. Ramanatha Aiyar, 1940 edition, the word is defined as follows:

A woman who cohabits with a man without being his wife; a kept mistress; a sort of inferior wife, among the Romans, upon whom the husband did not confer his rank or quality.

Apart from these dictionary meanings, the meaning of the word was considered at some length by their Lordships of the Privy Council in AIR 1926 73 (Privy Council) , though in different context. The question for decision before the Privy Council was as to the right of a concubine of a deceased Hindu to maintenance out of his estate. A person professing the Hindu faith during the last five years of his life kept a woman continuously as his concubine, almost entirely in a house which he rented in her name, a''nd during that period the woman consorted only with the deceased and bore him a child and she remained chaste after his death. On those facts, the Privy Council held that the woman was entitled to maintenance out of the estate of the deceased. During the course of the discussion their Lordships posed the question for determination as to whether the Appellant was entitled to maintenance out of the estate of the deceased and that depended upon whether, upon the facts proved, she was in a strict sense, according to the Hindu Law, as prevailing In Bombay, the ''permanent concubine'' of the deceased. In the further discussion that followed they made the following pertinent observations;

This word ''concubine'' has long had a definite meaning, whether expressed in the language of India or of Europe. The persons denoted by it had, have still where it remains applicable, a recognised status below that of wile and above that of harlot ........ Almost a wife according to ancient authorities, the distinction of the concubine from harlots was due to a modified chastity, in that she was affected to one man only, although in an irregular union merely .......... Harlots solicited to immorality; concubines were reserved by one man.

Their Lordships proceeded to state that the right to maintenance was limited to those women, who, amongst Hindus, were properly called Alvarado ha a word ordinarily end. accurately rendered by ''concubine'' in English.

The word ''concubine'' connotes state of living together a man and v. the without their being intrude. "It iciest not menu sporadic, lapse Groin virtue. It cannot lie equate to npeineiit which means a woman running away from her husband or her home with R paramour or lover. There is a clear distinction bet won concubinage and elopement or adultery, The bison then is: when does a woman become a concubine? When a woman consents to cohabit with a mar. generally as though tire marriage relation.-hip exists between them, and actually commences . cohaoillac. with him in pursuance of that understanding, she becomes his concubine, or in other words, his kept mistress. This postulates the oilstone of an intention on the part of the man and woman to live together; or to put it dillrreully, it depends upon the state of mind with which they begin-to live together. It would be enough to get relief under escudo-u .''I (!) (!>) of be Act if is the then of the application the wife had still that intention. The real difficulty, however, is not so much in the definition of the word ''concubine'' as in its application to the facts of a particular case. It might be argued, as in fact it was. hi this case, that it I may not be possible always to divine the intention of the parties or to adduce evidence as to its existence. It may be so, but it must be left to be determined judicially on. the facts of each case. It has now to be considered whether on the evidence adduced in the present case it has been established that the Respondent is the concubine of Venkatanarsu as alleged by the Appellant.

Nine witnesses were examined on behalf of the Appellant. Their evidence can be briefly summarised as follows: The Respondent was living with her foster mother in the village of Kondramutla. She was friendly with Venkatanarsu, both of whom left the village together for Guntur, where they were living in the cattle-shed of P. W. 2 for some time. The Appellant made search for her in the neighbouring villages and not having found her anywhere, gave a complaint to the police. The Sub-Inspector in charge of the police station deputed the Head Constable to make air investigation as a result of which the Heed Constable came to the conclusion that Venkatanarsu and the Respondent eloped and that there was illicit intimacy between them. That they were seen together is spoken to by some of the witnesses, hold of them were not in 4be village for three months hereafter they returned. Since their return to the village they have been living a:; husband and wife. The learned Counsel for the Appellant relied upon the evidence of P. Ws. 4, 5, 7 and if to show that the illicit intimacy between the Respondent and Venkatanarsu continued even after their return from Guntur, They only say that the Respondent and Venkatanarsu were moving on friendly terms. The evidence is vague and does not really clinch the Issue, OF ANDHRA ( Visivanatha Sastri J) (10) As against this evidence, besides examining herself, the Respondent examined five witnesses. Her case is that she had attack of small-pox and , after she recovered from the attack, she wanted to return to her husband''s house but that the Appellant refused to take her unless her foster mother conveyed the property which she had in her name. She denied having eloped with Venkatanarsu. Her foster mother has been examined as It. W, 2 and she supported the Respondent''s story. , Their evidence is that the Appellant and his father 1 invented the false story of elopement with a view I to blackmail the Respondent and her foster mother 1 to get at the property of it .W 2, 1 (11) Accepting the evidence adduced on behalf of the Appellant, the* learned Subordinate Judge found that the Respondent was leading an I adulterous life with Venkatanarsu and therefore the Appellant was entitled to ask for dissolution of his marriage with the Respondent. On appeal Ba-sheer Ahmed Sayeed, J" however, considered that the evidence of the Respondent and her foster mother was more convincing than the evidence of the Appellant and his father; that even otherwise the burden was on the Appellant to prove by independent and disinterested testimony that the wife had entered into a state of concubine with Venkatanarsu which the Appellant had not succeeded in doing.

On the evidence adduced in the case it is not possible to reach the conclusion that the Respondent is a concubine of Venkatanarsu as alleged by the Appellant. All the evidence adduced for the Appellant would amount to no more than this; that the Respondent eloped with Venkatanarsu for a couple of months & both of them came back to the village. Except this evidence which is of a vague and indefinite character, there is no definite evidence on record which establishes that they Were living together as husband and wife either during their stay at Guntur or after their return from that place. The requirement of S. 5(1) (b) cf the Act that the Respondent has been living as a concubine, is not satisfied.

The learned Counsel for the Appellant .finally contended that under the Hindu Marriage Act (XXV of 1955), the Appellant is entitled for dissolution of his marriage with Respondent, if he is able to establish, that the Respondent is living in adultery, which in any view, the evidence sufficiently establishes in this case. The Appellant, sought the dissolution of his marriage under Madras Act VI of 1949 and definitely put forth the case of concubine as the ground for the dissolution. That, we have held, the Appellant did not succeed in proving. We are unable to accept the contention of the learned Counsel for the Appellant that the ground of adultery on which a petition for dissolution of a marriage can be founded under the Hindu Marriage Act can be availed of by the Appellant in this appeal.

We therefore, hold that the appeal must fail and it is dismissed with costs.