Sukla Rani Maitra vs Nripal Krishna Maitra

A.K. Sinha, J.—Both these appeals are preferred against a decree for judicial separation passed by the Fifth Bench, City Civil Court, one (Appeal No. 683 of 1968) by the wife for dismissal of the husband''s petition for divorce or for judicial separation on the ground of adultery and the other (Appeal No. 617 of 1968) by the husband for a decree for divorce in place of judicial separation.

This is an unfortunate case. The brief history that we get is that the father of the husband, now dead, a resident of Nepal, during his life time amassed a great fortune. The husband, the youngest of his three sons got one-third of his wealth, both in business and properties under the Will left by him. The husband married the Respondent at her tender age when she was reading only in the eighth standard of a High School in 1952. The husband, though he himself could not have a high academic career, devoted much of his time and money in giving education to the wife. She in her turn gave a good account of the money spent and the sincerity shown by the husband. She became a university graduate in course of time. The husband purchased lands in the name of the wife, opened joint account with her in bank. He also possessed a car and the wife learnt driving. She became thus what is called accomplished and attractive. Living as they did apparently in happy conjugal relation, the husband and the wife co-habited since their marriage and had three children by the end of the year 1958. Normally, in this country, according to the set notions and ideas of the class-of society to which the couple belonged, the husband or the wife already having three children can hardly think of going out of their ways driven only by sex impulse even if both or any one of them suffers from want of happy sexual relation in marital ties. But then, we are not concerned with it. The husband has come up with a charge, serious enough, of adultery against the wife with the co-Respondent, who again is a married man and father of three children. Shortly put, the relevant facts as set out in the husband''s petition are:

On December 1, 1952, the Petitioner (referred to herein as the husband) and the Respondent (referred to herein as the wife) then a spinister, who are Hindus domiciled in India, were lawfully married according to Hindu rites at 47 Keshab Chandra Sen Street, Calcutta. Since then they lived and co-habited together and one son Mohan Kumar Maitra and two daughters Subhra Maitra and Sarmila Maitra were born to them in lawful wedlock the date of their birth being November 14, 1953, February 6, 1957 and December 13, 1958, respectively. Between 1959 and 1962 the wife lived, co-habited and habitually committed adultery with one Anil Kumar Sanyal, co-Respondent, a brother of the wife of the husband''s elder brother Gopal Kumar Maitra, at 14/A Gariahat Road South, amongst other places. As a consequence, two daughters nick-named ''Fuchun'' and ''Ankhi'' (referred to herein as the fourth and fifth child) were born to the Respondent on January 9, 1961 and November 10, 1962, respectively.

Since about the beginning of the year 1961 the husband did not co-habit with the Respondent due to his absence from Calcutta. On coming back to Calcutta in the middle of the year 1962 the husband came to know of the conception of the Respondent resulting in the birth of the fifth child. Thus being suspicious the husband came to know on enquiries and watching towards the end of 1962 about the adulterious life of the wife with the co-Respondent. The wife, thereafter, went away from the husband''s house to live at her father''s residence. The husband on account of his frequent visits to Nepal in connection with his business during 1963 and 1964 and for his highly depressed mental condition and family prestige could not take steps earlier for dissolution of the marriage.

The husband did not in any manner connive or condone such adultery. The petition was not collusive, nor there was any unnecessary and improper delay.

The wife filed a written statement and contested the proceeding. Her case was one of denial of material allegations with assertion that the husband was the father of the fourth and the fifth child. Her further case was that the father of the husband H.P. Maitra left properties worth about 30 lakhs of rupees in India and Nepal. He had three sons Gopal, Bhupal and Nripal. After the death of the father, the second son Bhupal started creating troubles in the family and threatened all the members including her husband and the brother Gopal and their mother Sushila Sundari Maitra. The husband who had no sufficient education was ultimately won over by Bhupal by transferring the joint account of the Lloyd''s Bank in his name and thus started conspiring against the elder brother. This was protested by the Respondent and in spite of her suggestion he was abused and assaulted by the husband and Bhupal and his wife Nayarani also started making reckless and false allegations against the Respondent. In or about July 1962 the husband at the instigation of this brother got all the properties and the bank account in the name of the Respondent transferred in his own name and also other papers signed, by her. The matter reached such a stage that she had to come away to her parents in October 1962. Even, thereafter, the husband took away wrongfully on or about July 3, 1964, two daughters Subhra and Sarmila from her custody and also took away son Mohan from school without any intimation to her. The allegation of living an adulterous life with the co-Respondent was absolutely false and the plea of the husband''s inability to take steps due to his absence from India was ridiculous. During his stay in Calcutta the husband visited the Respondent almost everyday till July 1964.

The co-Respondent also filed a written statement but did not thereafter contest the proceeding. His case was also one of denial of the material allegations in the petition. His further case was that after the death of husband''s father in 1957 Bhupal created troubles over the division of the properties left by him and tried to win him over to his side for he, as his manager of lime factory in M.P., was acquainted with the entire business position. But since he took the side of Gopal his own brother-in-law (wife''s brother) Bhupal who had great influence over the husband of the Respondent thus conspired and instigated him and in collusion implicated him in this false case.

Upon these respective pleadings the following issues were framed by the trial Court:

(i) Did the Respondent No. 1 co-habit with the Respondent No. 2 and commit adultery with him, as alleged?

(ii) Were the daughters Manashi and Arpita born out of the wedlock between the Petitioner and the Respondent No. 1, as alleged?

(iii) To what relief, if any, is the Plaintiff entitled?

On the first issue the trial Court on assessment of evidence adduced by the parties held that the wife was living in adultery with the co-Respondent from a pretty long time before 1962. On the question of legitimacy of the fourth and fifth child covered by the second issue, the trial Court expressed its doubt as to illegitimacy of the fourth child but not so in respect of the fifth child and declared, her to be illegitimate child of the wife. On a discussion of the third issue it took the view that there was no connivance or condonation of the wife''s adultery by the husband nor the petition for divorce was barred by delay. But since there was no evidence to show that the wife continued to live in adultery after she left the husband''s flat in October 1962 till the date of the suit or near about that time, the trial Court passed a decree not of divorce but of judicial separation.

In the wife''s appeal before us since the entire matter is open, identical questions covered by the issues before the trial Court arise for our determination. For that purpose, before we proceed to examine evidence in this case, we must notice certain admitted facts which are:

The co-Respondent Anil Kumar Sanyal was not a stranger in the father''s family of the husband. He happened to be a brother of the wife of the husband''s elder brother Gopal. He was taken in as an employee by his father in his business in 1955 and since then continued in such employment even after the death of the father. Thus he picked up acquaintance and intimacy with the wife and had free access to the inner apartments of the husband''s home. He also used to visit the wife at her father''s place.

Against the background of these admitted facts the first question, therefore, really is whether this intimacy of the co-Respondent with the wife developed into an illicit love and affection which led the wife to live in adultery with the co-Respondent during the period of husband''s absence from Calcutta and secondly whether as a result of such adulterous connection the fourth and fifth children were born.

In support of his case, the husband has adduced oral evidence of seven witnesses including his immediate elder brother Bhupal, besides examining himself. He also produced documentary evidence in the form of series of letters and correspondence and other papers marked as exhibits in this case. The wife examined herself and adduced evidence of only one witness, a bank clerk to prove a certified copy of certain statement of joint bank account of the husband and his two other brothers with National and Grind-lays Bank Ltd. We must say at this stage, in all fairness to Mr. Sinha, learned Advocate for the husband, that he took us at great pains through fairly long course of entire depositions of all the witnesses and also all letters, correspondence and other papers used as documentary evidence adduced by both parties. It appears that the evidence both oral and documentary adduced by the husband seems to cover a long period between March 1952 and November 1964. Evidently, some of such evidence included brief history of the married life of the husband and wife, their matrimonial home, the birth of their three children and also certain events including birth of the fifth child that took place after the husband came back on or about July 20, 1962, upto the date of the presentation of the petition by the husband. The evidence as adduced by the husband in support of charge of adultery against the wife covers a period from the end of the year 1959 upto July 1962. The trial Court considered the evidence so adduced under two chapters, the first chapter related to a period from the end of the year 1959 upto the birth of the fourth child, i.e. upto January 9, 1961. The episode of the second chapter dealt with by the trial Court began from the period after the birth of the fourth child till the birth of the fifth child in November 1962.

The trial Court, it appears, first of all summarised the statements of all the witnesses excepting Bhupal (P.W. 7) and the Doctor (P.W. 8) evidently in aid of his finding in respect of the entire period during which the wife was alleged to have been living in adultery with the co-Respondent. Of the seven witnesses Dipak (P.W. 1) was an employee of the husband from December 28, 1961 to October 1962 and used to attend the husband''s flat at premises No. 14/A Gariahat Road, Calcutta. P.W. 2 Nidhi Nath Misra was a cook and he was employed by the husband from the rainy season of 1961 upto March 1963 in the said flat of Gariahat Road. P.W. 3 Dilip Kumar Ghosh was a tenant of another flat in the ground floor of the same premises at Gariahat Road from November 1959 with his wife. P.W. 4 Tarapada Paul also was a tenant in the ground floor of the same premises from 1958. The next witness P.W. 5 Durgapada Paul lived at a neighbouring premises at 16/2 Gariahat Road at a distance of about 150 ft. from the husband''s flat. Next, the husband examined himself as P.W. 6 whereas his brother Bhupal was examined as P.W. 7. P.W. 8, a Doctor, stated his opinion about conception, period of gestation and birth of a child. We need not restate or summarise over again the evidence of these witnesses. It would be sufficient to state that each one of the witnesses from P.W. 1 to P.W. 5 related their own experience as eye witnesses, in respect of the periods for which they were competent to speak about the affairs that were going on between the wife and the co-Respondent during the absence of the husband at the said flat. Their respective statements, if knit together, offer a complete picture as to how the co-Respondent during the absence of the husband from Calcutta used to visit the Respondent in the husband''s flat frequently or almost daily either at day time or at night, used to take meal there, go for outing in the husband''s car driven by the wife and then again come back most often and pass many nights with the Respondent wife in the same room at the same flat. We find little or no discrepancy in their statements. It is true that a part of the statement of Dilip Ghose (P.W. 3) narrating the incident as to how one day the co-Respondent escaped through the exit door of the sweeper of the bath-room by jumping on the landing of the stair-case on getting scent of unexpected arrival of the husband, was considered by the trial Court to be an exaggeration. We, however, do riot think that such an incident was absurd. For, cases may be visualized where in a secret meeting between the wife and her paramour the possibility of the husband''s appearing on the scene cannot be ruled out altogether. In any case, even assuming that this part of the statement was not accepted, that by itself could not constitute a ground for rejection of the entire evidence of this particular witness. Mr. Ghosh, learned Advocate on behalf of the wife, however, wanted us to reject the evidence of all the above witnesses on two-fold grounds.

In the first place he contended that the evidence of these witnesses even if accepted would only raise at best certain suspicion from which conclusion as to actual acts of adultery might or might not follow. Their evidence can by no means be treated as a direct proof of the wife''s living in adultery with the co-Respondent. In our opinion, in eases where, as here, the charge of matrimonial offence is either against the husband or the wife, direct proof is not necessary to establish such a charge, for it is difficult, if not impossible, to always adduce direct evidence as to the acts of adultery. Law on this point is stated in Raydon''s ''Divorce'' (8th ed., p. 147, chap. 111, para. 106) thus:

To succeed on such an issue it is not necessary to prove the direct fact, or even an act or adultery in time and place, or even necessarily the name of the person with whom the Respondent is alleged to have committed adultery; for if it were, in very few cases would that proof be attainable; it is rarely indeed that parties are surprised in the direct act of adultery and such evidence is looked at carefully; in nearly every case the fact is inferred from circumstances which lead to it, by fair inference, as a necessary conclusion; and unless this were so held, no protection whatever could be given to marital rights.

Although the above statement of law is established by precedence of English Courts, the principle indicated has been equally applicable to cases under Divorce Act in India on charge of adultery and other matrimonial offences. To be brief, in recent time the Supreme Court adopted the above-principle in Earnest John White Vs. Mrs. Kathleen Olive White and Others, . On principle there is no difference in its application to cases arising under Hindu Marriage Act. The first contention, therefore, is without any substance.

The second branch of contention of Mr. Ghosh was that none of these witnesses were disinterested or independent witnesses. The first two witnesses Dipak and Nidhi were in the pay of the husband. One was an employee and another was a cook. The next witness Dilip was not a man of great integrity and in any case, he was a tenant of the adjoining flat and was friendly with the husband and indebted to him possibly for many things, as for instance, he was allowed to use the telephone of that flat during the long period of his stay from 1959 to 1964. The witness Tara-pada Paul was simply procured as his alleged occupation of another flat which was being used for holding classes of draftsmanship of Civil and Mechanical Engineering was doubtful while the witness No. 5 Durgapada Paul was very much interested in the husband as he wanted to smuggle out some typewriters through the husband from Nepal, for his Commercial College. We cannot agree. It may be some of the witnesses were in the pay of the husband, but that fact by itself without more does not go to show that they were tutored or came to give false evidence before the Court. As regards the other three witnesses it appears to us that they were all independent and disinterested witnesses. It may be that Durgapada Paul wanted some typewriters to be brought from Nepal. But it seems to be altogether unreasonable to suggest that in such expectation he had gone to the length of making false statements before the trial Court in support of a charge so serious as adultery against the wife. Nothing was elicited in the cross-examination to shake the credibility of each of these witnesses. Such being the position we are not prepared to take a different view of their evidence which were relied upon, we think rightly, by the trial Court in support of its findings.

Looking next to the evidence of the husband we find that apart from narrating a brief history of his married life, conjugal relation, the birth of the first three children, he has stated that he was away from Calcutta and stayed at Birganj, Nepal, till the middle of July 1962 with a few visits to Calcutta while his wife was mostly staying alone in the flat. The co-Respondent, who was brought down in Calcutta by his father during the year 1955, used to work, in his father''s house at 36/5 Gariahat Road South and as a relation he used to go inside the house and had acquaintance with the family including the Respondent. The most important part of his evidence, it appears, is that he has proved and explained series of letters and correspondence all in vernaculars excepting one or two in English and other papers which he said were discovered by him from the almirah of his wife and taken in custody after his return from Birganj in July 1962. These documents, according to him, played vital role in this case as they fully supported the charge brought by him against the wife. We shall examine these documents as we pass on, but at the present moment regarding the oral testimony of the husband, it seems to us clear, his evidence regarding his absence from Calcutta and stay at Birganj in Nepal in connection with the management of his business and properties in his share is, fully corroborated by the oral testimony of the above witnesses. His immediate elder brother Bhupal also supports the husband''s evidence. Bhupal also gave evidence as a witness on his side and fully supported him. It is true that Bhupal in a sense was most interested witness as being the elder brother of the husband, but it must be said that he deposed in a very straight-forward manner. In his evidence he frankly admitted that there were strained feelings between the brothers over the division of properties left by the father, but those were amicably settled. He also stated that he wrote certain letters to the husband after meeting the mother of the wife at the husband''s flat and there in spite of his assurance and persuasion in many ways the wife refused to act to his advice and went up to the length of saying that she and the co-Respondent already got themselves married. Although he was cross-examined at length but nothing tangible transpired from such cross-examination. There is nothing to indicate that this brother hatched a conspiracy with the husband in engineering a false case against her or the co-Respondent. The evidence of these witnesses are no doubt circumstantial, but they seem to be sufficiently indicative of the circumstances leading to establish illicit affection, undue familiarity and guilty attachment from which it seems quite reasonable to draw an inference that the wife had surely adulterous connection with the co-Respondent. Novertheless, since the husband has adduced series of documentary evidences in this case, veracity of statements of these witnesses still remains to be tested in the light of all these exhibited documents. We would, therefore, again advert to their oral evidence at the proper time as we proceed.

Coming now to the documentary evidence of the first chapter we find that the post card, Ex. 4, bearing a postal seal dated April 27, 1958, written by the co-Respondent to the Respondent from Muzaffarpur at her father''s place in Calcutta when the husband was in Nepal. This letter gives sufficient indication as to the nature and extent of their intimacy, but this time, as the co-Respondent addressed the wife in a most endearing term ''Sukla'' in which name according to her she used to be addressed only by her husband. The co-Respondent also made anxious enquiries about her health and advised her to take regular medicines, but no enquiries about the husband was made. He also described him as ''Chabida''. This letter no doubt corroborates the evidence of the husband that love and affection already began growing as between them. The next document is a letter dated December 6, 1959 (Ex. 5) written by the wife to the husband at Birganj. This letter, though apparently contains several matters about their domestic life, on a closer scrutiny, it appears that it is not so. First, it gives an indication of the fact that the husband left for Nepal for a long time as in the first line the wife complained, for a long time she did not receive any letter from the husband and wanted to know if she was boycotted. The wife, however, in her evidence stated that ''by long time'' she meant ''few days back'' and this was only a relative term. This explanation does not appear to be at all convincing. Then, the word ''boycott'' though used in jest has, in the present context, its seriousness too. For without getting any letter from the husband for a long time she became suspicious because by that time she developed closer intimacy with the co-Respondent in Calcutta. Secondly, she betrayed her nervousness by cautioning the husband not to think that she was enjoying with his money. It is difficult to see how such thought could occur to her unless she actually spent money for persons for her enjoyment other than for merely domestic expenses. Thirdly, it seems, she only made a show of her earnestness to go to the husband at Birganj in December as at the same time she very carefully avoided it on the pretext of presence of husband''s mother there about whom she pretended to have imaginary fear. So, this letter gives somewhat clear indication that the wife was tapping the husband, to be sure, if he had any information or suspicions about her movements with the co-Respondent in Calcutta. The next letter written by the wife is dated March 14, 1960 (Ex. 5a) to the husband on the occasion of Dol-Purnima. The date, however, is stated by the wife to be an interpolation but there is nothing on record to support this statement. It appears from this letter that she already got two letters from the husband but they have not been produced by the wife. No explanation seems to have been given by her as to why these letters were not produced. So, the allegation of interpolation made by the wife cannot be accepted as true. Now, in this letter, it seems, the wife was again pretending to make a show of love to the husband with a misleading statement that there was nobody in Calcutta to address her by the name of ''Sukla''. Evidently, this was not true as already noticed in Ex. 4. The co-Respondent, it is in evidence, who was on the date of this letter in Calcutta and frequently visited the wife, surely used to call her by this name.

At this stage it will be convenient to consider certain writings of the wife in loose papers in the form of letters exs. 5(f) to 5(1). The contents of these letters were also summarised arid considered by the trial Court of course in the second chapter. On an examination of these letters it seems clear that they contain romantic outpourings surcharged with sexual emotions of a female who seems to have had already illicit coition with a male other than the husband and had since been pining for more sex enjoyment with him in future. It is not necessary to re-state the contents of these letters or the summary-made by the trial Court. These letters though undated and without any address were admitted by the wife, but her explanation was that those were ''ramblings of idle imaginations'' of her mind addressed to nobody, far less to the co-Respondent. She further said in her evidence that she gave these writings to her husband when he came back from Nepal. It is difficult to accept such an explanation for such writings never appeared in any of her letters addressed to him. If it was meant for the husband written under pangs of separation, then clearly these writings should have been addressed to the husband and sent to him in Nepal. There is, in these letters, as for instance in Ex. 5(g) such writing as

...In your presence I cannot reply to any of your words. You wanted to know how did I like it. Is not that? The reply that I will give will that please you--wonderfully, such as cannot be expressed in words.

This can only be interpreted to mean the satisfaction derived by the wife after sexual enjoyment she had with somebody other than the husband. At such a distant date of their married life it seems absurd that the wife would feel inclined to record in such effusive language her satisfaction of sex enjoyment she had with the husband who was again staying then in Nepal. On a fair reading of these letters it leaves us in little doubt that the were meant for co-Respondent with whom the wife already entangled herself in illicit love and had physical enjoyment through sexual intercourse with the co-Respondent. In any event, these letters no doubt disclose the mental condition of the wife and also the surrounding circumstances from which it would be reasonable to infer that illicit love and affection were already established between the wife and the co-Respondent and they were indulging in sexual intercourse. It was, however, submitted on behalf of the wife that if these writings were addressed to the co-Respondent then they could by no means remain in the wife''s almirah. One of the possible answers to this is that the co-Respondent on the plea of detection by his own wife must have managed to return to the wife these writings, who preserved them in her own almirah. That she developed a great intimacy with the co-Respondent would appear also form the next document which is a draft prepared by the co-Respondent (Ex. 4p) addressed to the Presidency Post-Master for loss of the pass book of the wife in her Postal Savings Bank Account, Gariahat Branch, from the husband''s flat, i.e. 14/A Gariahat Road. The letter on the basis of this draft was of April 12, 1960 and addressed to the Presidency Post-Master, Calcutta. The wife in her evidence stated that, at the instance of the husband, the co-Respondent drafted this letter, but excepting her uncorroborated testimony there is no other evidence or material on record to show that the draft was made at the request of the husband. In any case, this draft also proves that the co-Respondent was regularly visiting the wife in the husband''s flat and intimately connected with her. The next letter given by the wife to the husband is dated April 29, 1960 (Ex. 5b) which, however, though contains mostly matters of domestic importance make two things clear, namely, the husband was staying in Nepal and he might come to Calcutta for registration of land which was likely to be made on Baisakh 25, that is, almost at the middle of May 1960. The next letter (Ex. 5C) dated May 1, 1960, is a document of considerable importance. The trial Court laid special stress on the information given in this letter by the wife that she had ''M'' meaning thereby her menstrual course. The wife also intimated amongst other things that she was physically very unwell. Further, there was a reference of ''Chabida'', that is, the co-Respondent from whom, it was stated in the letter, she learnt that before the receipt of the husband''s telegram certain money was paid. This again shows that the co-Respondent was there in Calcutta and she was in close touch with him. The wife in her evidence, with reference to this letter, stated that the husband left her a few days ago carrying an anxiety about her menstrual course. If the husband did not come to Calcutta after the end of December 1959 and stay with her, the reference to menstrual course by the Respondent in this letter would have been redundant and suspicious too, but the husband even after receipt of such letter had no such suspicion then. Even assuming for the moment that the husband came to Calcutta and stayed with her at the flat sometime before this letter was written, then also the photographs, exs. 7 and 7(a), with negatives exs. 7(b) and 7(c) and their enlargements exs. 8 and 8(a) clearly demonstrate the state of affairs otherwise. In one of the photographs the wife is seen standing with a smile while the co-Respondent is seen seated very close to her with a Bengali daily ''Jugantar'' which on closer examination, as found by the trial Court, bears date of May 20, 1960, while in the other, the wife is seen standing very close to the co-Respondent trying to arrest her smile by putting her right palm on her lips. The wife admitted that these photographs were true, but then, she said, they were taken by one of the husband''s relations in presence of and at his instance and equally many photographs of other members of the house were taken. This statement in the absence of any corroboration cannot be accepted as true. From these photographs it seems as if the co-Respondent and the wife were enjoying intimate moments like a married couple. In any case, these photographs prove that the co-Respondent at the material time was visiting regularly the wife at the husband''s flat and she was intimately attached to him.

Against the background of these photographs and other documents already discussed if we consider the next movement of the wife, then her defence that she had no adulterous connection with the co-Respondent up to this stage, stands wholly condemned. For although, according to her, she was in a bad state of health, she made a dramatic exit for a far distant country like Bombay, according to her own evidence, on or about June 15, 1960, by withdrawing a sum of Rs. 1,000 from their joint account in the bank without the knowledge and consent of the husband or without giving any information to him which she never appears to have done in the whole history of her past married life and that also only taking with her younger brother, then of tender age, now in Germany. The explanation given by the wife was that she went to Bombay just for the purpose of visiting Ellora, Ajanta and Poona. It is difficult to accept such an explanation for if it is an ordinary case of travel to a distant country simply for sight seeing why she should leave so suddenly with such undue haste keeping everything secret to the husband or his near relations who were staying in Calcutta? Then again, she did not visit Ellora, Ajanta and Poona. The reason given by her that the Mail, ''Deccan Queen'', was not available on the same day and she was in want of fund seems to be straining too much on the credulity of Court. A lady of her education and accomplishment, it is not possible to believe, could not estimate the costs of travel to these distant places or could not complete the travel for non-arrival of ''Deccan Queen'' on the same day. This sudden and secret sojourn to Bombay seems to indicate that she became highly apprehensive, nervous and to a certain extent desperate, for by then she felt almost certain that she conceived as a result of illicit sexual intercourse with the co-Respondent. That is why she hurried to Bombay with a plan to relieve herself from burden. Nobody knew the purpose excepting her mother.

This conclusion seems to be further fortified from the next letter Ex. 6 given to her by her mother at Bombay. Mr. Ghosh contended that these letters might at best raise some suspicion, but they could by no means furnish appropriate standard of proof that was required in a case for establishing matrimonial offence so serious as that of adultery. His argument was that in such a case the proceeding in a matrimonial offence must be equated with that of a criminal trial and therefore, mere suspicion or a certain degree of probabilities from such type of documentary evidence, as had been adduced by the husband, were not sufficient to establish a charge of adultery against the wife. In this case, having regard to nature and extent of evidence, both oral and documentary, the question seems to us to be more or less academic. Even so, we would proceed to examine the correctness of this contention raised by Mr. Ghosh.

The question as to standard of proof, briefly speaking, assumed importance in English Courts in absence of proper and specific provisions or the procedure to be followed either in the repealed Acts or Enactments or the Matrimonial Causes Act, 1950. Looking at the English decisions it appears, not in quite a few cases, it was held that such strict proofs were required in a case, of matrimonial offence as were required in connection with a criminal offence properly so called. See for instance Genesi v. Genesi (1948) 1 All E.R. 373 C.A. and Churchman v. Churchman (1945) 2 All E.R. 190, but the description of adultery as a criminal or quasi-criminal offence was condemned by Denning, L.J. in Gower v. Gower (1950) 1 All E.R. 804 where the learned Lord Justice held, inter alia, that upon a petition for divorce on charge of adultery, desertion etc, the Court was required only to be "satisfied on the evidence that the case for the Petitioner was proved." Subsequently, however, in the decision of the House of Lords in Preston-Jones v. Preston-Jones (1951) A.C. 351 there seems to be a little departure from the proposition in the form as laid down in Gower v. Gower (1950) 1 All E.R. 804. It has been held that in case of divorce based on adultery, cruelty or desertion or other matrimonial offence appropriate standard of proof requires that the Court should be satisfied beyond reasonable doubt that such offence has been proved not on the basis of analogy of criminal law but because of the gravity of public importance of the issues with which each is concerned. This principle as indicated in the above decision has, it appears, been followed in subsequent English cases. See for instance Galler v. Galler. (1954) All E.R. 536. The view in the latter casts of English Courts found favour with the Courts of India. The Supreme Court in a case of desertion, Bipin Chander Jaisinghbhai Shah Vs. Prabhawati, , held that like any other matrimonial offence the-Plaintiff must "prove the offence beyond reasonable doubt." In E.J. White v. K.O. White Supra, while considering a case of adultery of the wife on the petition of the husband under Divorce Act, 1869, the Supreme Court held that

the standard of proof in Divorce cases would, therefore, be that if the Judge is satisfied beyond reasonable doubt as to the commission of matrimonial offence, he would be satisfied within the meaning of Section 14 of the Act.

Without narrating long line of cases it would be sufficient to notice that in a Full Bench decision of this Court in Mrs. Agnes Cecillia Gome (Gannon) Vs. Lancelot Ashley Gome, my learned brother Laik, J. while considering the question of standard of proof under the Divorce Act on the wife''s petition for divorce on the ground of adultery of the husband, on a review of several English decisions including these decisions in Gower v. Gower Supra and Preston-Jones v. Preston-Jones. Supra and relying on the above decision of the Supreme. Court, E.J. White v. K.O. White Supra, held inter alia:

It is the duty of the Court to pronounce a decree only when it is satisfied that the case has been proved beyond reasonable doubt as to the commission of a matrimonial offence.

In a latter case, P.B. Mukharji, J. who was also a party to the above Full Bench decision sitting singly on a fresh and fuller descussion of most of the above decisions of English Courts reiterated the same view in Adelaide Mande Tobias Vs. William Albert Tobias, a case of adultery with desertion under the Divorce Act. Mr. Ghosh, however, relied on a Bench decision of this Court in Leelabati Pakhira v. Kashinath Pakhira (1968) 73 C.W.N. 19 the judgment delivered by B. Mukherji, J. and pointed out that following a comparatively recent decision of the Supreme Court reported in Lachman Utamchand Kirpalani Vs. Meena alias Mota, , it was held that

in a case of desertion the proof required in a matrimonial cause was to be equated to that in a criminal trial.

In this case, it appears, however, that the above Full Bench decision of this Court or the decision of P.B. Mukharji, J. were not cited. As regards the Supreme Court decision it appears that the learned Judge followed above observation made by Subba Rao, J. (as he then was) in his dissenting judgment but Ayyangar, J. peaking for the majority while considering the question of the burden of proof expressed himself, inter alia (at p. 48, sub-para. 3 of para. 18 of the report), as follows:

The first relates to the burden of proof in these cases and this is a point to which we have already made a passing reference. It is settled law that the burden of proving desertion--the ''factum'' as well as the ''animus deserendi''--is on the Petitioner; and he or she has to establish beyond reasonable doubt, to the satisfaction of the Court, the desertion throughout the entire period of two years before the petition as well as that such desertion was without just cause. In other words, even if the wife, where she is the deserting spouse, does not prove just cause for her living apart, the Petitioner-husband has still to satisfy the Court that the desertion was without just cause.

The above opinion given, as appears, was based on certain observation of Denning, L.J. in Dunn v. Dunn (1948) 2 All E.R. 822 where while; considering the difference between legal burden arid provisional burden of proof it was held that in a case of desertion if the wife failed to rebut the inference of desertion by proving that she had just cause for her refusal, the husband was still under legal burden to prove desertion without cause. It would be partinent to observe in this connection that Subba Rao, J. (as he then was) in his dissenting judgment also followed the above earlier decision of the Supreme Court--Bepin Chandra v. Probhavati Supra where all that is laid down is that

it is also well settled that in proceedings for divorce, the Plaintiff must prove the offence of desertion like other matrimonial offence beyond reasonable doubt.

That being so, we do not find much of substance in the connection raised by Mr. Ghosh. We would, therefore, proceed further to examine the documentary and oral evidence in this case to see whether the charge of adultery brought by the husband against the wife has been established to the satisfaction of Court beyond reasonable doubt.

Now, reverting back to the Ex. 6, the mother''s letter, we find that she intimated the wife that the husband reached Calcutta on the following day and took away the cheque book being angry at the movement of the wife. There is also veiled reference in the shape of advice of the mother to the daughter to get "first the thing performed which was intended by her to be done." She also expressed her inability to comply with further request from the daughter (to send Rs. 300 and amongst other things complained unwittingly as "you know your father. He is talking so many things of which there is no limit. I am tolerating everything." The explanation of the, wife was that the mother''s advice to get certain thing performed meant only to finish their intended visit to Poona, Ajanta and Ellora. But this could not be accepted, we think rightly, by the trial Court. This advice of the mother in the words in which it was written could not have any other meaning than the wife''s plan for an intended abortion or for application of any other medical methods for removing foetus that she was carrying in her womb. Clearly this she intended to do for fear of detection of her adulterous connection already established with the co-Respondent. It was, however, suggested that she had no necessity to go to Bombay for miscarriage as she could have had it done easily in Calcutta, but'' obviously there were more than one difficulties. There were the husband''s brother and many other relations and the husband himself had the chance of coming down to Calcutta any time and in fact he came to Calcutta almost immediately the wife left for Bombay. But then, she could not act according to her plan. On receipt of the mother''s letter she abruptly changed her intention. She at once decided to leave Bombay, as clearly, she did not want to meet her husband there for fear of detection. From such movement of the wife it is again not altogether unreasonable, to suspect that the co-Respondent must have either accompanied or joined her in Bombay, but there is no evidence. Be that as it may, like a restraint and responsible wife she wrote a letter, Ex. 5(d), on June 21, 1960, with perfect calmness asking the husband to meet her at Lucknow on receipt of her telegram as if nothing had happened. She also gave an indication for travel with her husband in other places from Lucknow. She made entreaties with softening words to pacify the husband and asked him to complete all arrangements. She also put forward her excuses for not giving any reply to the letter which she received prior to her departure for Bombay. From the tenor of this letter it seems that the wife even then was quite confident of her complete control over the husband. In fact, she was not wrong in her anticipation. The husband came to Allahabad, but the programme for further travel to other places was not put into {effect. The explanation by the wife was that such programme had to the abandoned, because, her husband had quarrel with her younger brother over the medical advice given or treatment made by a Doctor when\\she had a fall at Lucknow from a rickshaw. The brother has not been examined in this case. It is true that he is how An Germany, but no steps were taken in the trial Court to get him examined on commission who alone could throw much light on the Bombay episode. The Doctor who was alleged to have treated her at Lucknow has also not been examined. The real cause seems to be that she, according to her changed plan, passed nights with the husband at Lucknow and thus she gained her objective, for it was only the end of June 1960 which meant in the present context only about ten weeks from the possible date of her conception. To the husband who was a layman this period over the birth of a child, as the wife thought, could be easily explained as a case of premature delivery which is not unnatural. She thus played her part well and came back to Calcutta on some pretext or other. In any case, the husband, who had no occasion to doubt by then the chastity of the Wife, felt apparently satisfied and then went to Myhar in Madhya, Pradesh presumably in connection with his business and a few days thereafter he returned to Calcutta.

That this conclusion is justified will appear from the sequence of events that followed from her departure from Lucknow to Calcutta. It is in evidence of the wife that after her return from Lucknow she lived for sometime at her mother''s place. The husband on getting a letter from her in July 1960 came to Calcutta when she went to the flat to live with him upto the birth of the fourth child on January 9, 1961. This part of the wife''s evidence is not contradicted; on the other hand, it is admitted by the husband in his evidence that he took her to her mother''s place on January 7, 1961, when labour pain started and after examination by the Doctor she was taken to the S.S.K.M. Hospital for delivery. It is in evidence of the husband that she got the discharge certificate from this hospital after delivery of the fourth child on the said date who was given the name by the wife ''Fuchun''. Thus, although due to smooth manoeuvering of the wife she could escape the detection of the husband at this stage, the series of letters followed by her journey to Bombay and her return to Calcutta, as discussed above, together with the evidence of Dilip and Tarapada (P.Ws. 3 and 4) at the material time no doubt establish a chain of circumstances creating such high degree of probabilities that the conclusion becomes irresistible that the wife in the year 1960 almost from its beginning has had sexual intercourse from time to time with the co-Respondent during the absence of the husband from Calcutta and his stay in Nepal.

This brings us at'' this stage to the question whether the fourth child (Fuchun) was born as a result of this adulterous connection of the wife with the co-Respondent, for although such illicit connection is found to have been established that fact by itself does no carry with it a presumption that the child must have been born out of such illicit intercourse between the wife and the co-Respondent; on the contrary a child born to a wife during the subsistence on the marital ties with the husband carries with him a presumption of legitimacy. In order to rebut that presumption it has to be established beyond any reasonable doubt that at the matrerial time, namely, at the time of conception of the child the husband had no access to the wife. This proposition was undisputed, but then it was pointed out that at the material time the husband had access to the wife and as a result of co-habitation with the husband the fourth child was born. The trial Court relying on the evidence of the wife held that the husband left for Nepal towards the end of Chaitra which would be April 13, 1960. Mr. Sinha on behalf of the husband disputed this part of the finding of the trial Court. It appears that there has not been any cross-examination directly on the point that the husband left Calcutta for Nepal to pay Chait kist (quarterly instalment or rent or revenue ending with Chaitra) in respect of his zamindari properties in Nepal. All that was, suggested was that it would follow from the letter (Ex. 5b) that the husband did not come to Calcutta in April 1960, but there the wife asserted that he did. As against this the husband stated in cross-examination that there was nothing to show that he did not come to Calcutta prior to receipt of the letter of his wife dated April 29, 1960 and May 1, 1960 (exs. 5b and 5c), the latter one, as already seen, carried an information that she had her menstrual cycle. This then being the state of evidence we entirely agree with the finding of the trial Court that the husband left Calcutta for Nepal on April 13, 1960. Now, the Doctor (P.W. 8) who, again, has no degree or diploma in Obstetrics said in his evidence in examination-chief that "the period of coitus and fertilisation varied between 12 to 48 hours." If that be so taking into account the entire period of gestation resulting in the birth of the child on January 9, 1961, it may be fairly presumed that the intercourse took place between April 16 and 17, 1960; even then the opinion of the Doctor cannot always be treated as sure guide in this matter. So, in between the departure of the husband for Nepal and the possible period of conception of the wife; if there is a difference of two to four days, then such opinion cannot be treated as conclusive that the child could not have been conceived, as a result of intercourse she had with the husband two to four days earlier. There are cases where the birth of a child covering a period of 331 days from the date of the first coitus could not be regarded as impossible. See for instance Weed v. Wood (1947) 2 All E.R. 95. It is true that in Preston-Jones v. Preston-Jones Supra a period of 360 days for the birth of a child Was rejected as ''fantastic suggestion'', but then Lord Macdermott made at the same time the following observation:

I do not think it open to doubt that a time must come when, with the period far in excess of the normal, the Court may properly regard its length as proving the wife''s adultery beyond reasonable doubt and decree accordingly. But, as has so of en been pointed out, the difficulty is to know where to draw the line. The reported cases naturally tend to creep up on each other and there is little sound guidance to be gleaned from authority. If a line has to be drawn I think it should be drawn so as to allow an ample and generous margin, for it may be as difficult for the wife to prove a freak ''of nature as for anyone else; and it need hardly be added that, before acting on the length'' of the period, due regard must be paid to any other relevant evidence. But I do not find it possible to go further and lay down any hard and fast rule capable of general application.

Then again in the Supreme Court decision, Mahendra Manilal Nanavati Vs. Sushila Mahendra Nanavati, , while considering similar questions in different set of circumstances Raghubar Dayal, J., speaking for the majority, inter alia, observed:

It is not disputed that �he usual period of gestation from the date of the first coitus is between 265 and 270 days and that delivery is expected in about 280 days from the first day of the menstruation period prior to a woman conceiving a child.

Such being the position, in the present case, since the child was born on January 9, 1961, the total period taking into account the entire period of gestation covered 272 days from the date of the first coitus and added to it four days or even a week, the delivery would be practically'' normal. Necessarily, therefore, it cannot be held that the fourth child is not the legitimate daughter of the husband.

There is yet another aspect of the matter. In this case, the husband admittedly received information from the wife in the beginning of the month of May 1960, Ex. 5(c), that she had her menstrual cycle. If that be so, the husband''s subsequent conduct upon the birth, of the fourth child, as revealed in this case and already discussed, clearly demonstrates that he had at the material time access to the wife when this child was conceived. If it was otherwise, the husband surely could not be expected to accept this child as his own. It is in evidence of the husband that he had no suspicion because he had no knowledge that the wife was at the material time living in adultery, but this is quite different from proving that he did not have any access to the wife at Or about the time when this child was conceived. Taking into consideration the entire evidence and the attitude and the conduct of the husband upto the birth of this child, the only possible conclusion is that the husband had sexual intercourse with the wife at the material time. In this connection, we may usefully refer also to the original matrimonial petition where although in para. 8 the paternity of both the fourth and the fifth children were vaguely denied, ho specific case was made about the conception or illegitimate birth of the fourth child in para. 9 as that of the fifth child (Ankhi) about whom all particulars, viz., that on coming to know about the conception resulting the birth of the fifth child (Ankhi) the husband became suspicious and on enquiries being made learnt, that the wife was leading an adulterous life with the co-Respondent, were given. The presumption as to legitimacy of child u/s 112 of the Indian Evidence Act as noticed earlier is a conclusive presumption which can only be rebutted by sufficient and satisfactory evidence. See Chilukuri Venkateswarlu Vs. Chilukuri Venkatanarayana, .

We may also refer to an English decision a near approach td the point under consideration in this case, Francis v. Francis (1959) 3 All E.R. 206, where

after the wife had committed adultery, she and her husband still slept together and they had marital intercourse at the material time, husband using contraceptive sheaths, when the child was conceived. The wife registered the child''s birth in her name, leaving the name of the father blank both parties having accepted the probability of child being the daughter of the adulteror.

On appeal by (he wife against refusal to make over custody of the child in her favour in a summary proceeding for desertion etc. Lord Merriman P. held that the order for custody should have been made in wife''s favour on the view

that the presumption of law is not to be lightly repelled. It is not to be broken in upon and shaken by a mere balance of probability; the evidence for the purpose of repelling it must be strong, distinct, satisfactory and conclusive.

In this case, at any rate the evidence is not clear or otherwise sufficient satisfactory or conclusive for the purpose of repelling such presumption. In our opinion, therefore, the trial Court was right in holding that the fourth child could not be held to be the illegitimate offspring of the Respondent wife.

Passing now on to the second chapter, that is, from the remaining period of January 1961 to the birth of the fifth child in November 1962, the documentary evidence adduced by the husband may be categorised in three groups. The first group contains letters addressed by wife to the husband, his mother, mother-in law, wife''s brother from Germany, Bhupal (P.W. 7) his immediate elder brother, employee Dipak (P.W. 1), Durgapada Paul (P.W. 5) at Birganj, Nepal, to show that between'' December 23, 1961 and middle of July 1962 the husband was in Nepal. The second group includes some of the letters also of the first group written by mother-in law to the husband and some to the wife by her friend and also by her brother from Germany by which it was intended to prove that the wife had illicit affairs with the co-Respondent during the absence of husband and she was trying to move out of the matrimonial home to live permanently with the co-Respondent.

The third group contains letters written by the co-Respondent to the wife and also by the wife to him by which the husband Wanted to establish that she was clearly living in adultery with the co-Respondent.

Coming now to the first group in point of time we come across the letter of wife''s brother ''Piklu'' from Germany which, as appears from postal mark, is of December 20, 1961 (Ex. 9), addressed to the husband conveying-his Bijoya greetings and also his gratitude for the pecuniary help which was given to him by the husband to enable him to come to Germany. This letter of course shows that the husband was staying at his Gariahat flat on that day. The next letter is by the wife to the Petitioner dated December 26, 1961 (Ex. 5C), addressed to him at Birganj. From this letter it is quite clear that the Petitioner left for Nepal at least a few days before that date. The other thing of importance is a reference to Dipak (P.W. 1) who, according to this letter, joined work two days after. In this connection it should be remembered that this witness Dipak stated in his evidence that the husband left for Nepal before December 28, 1961. One other matter which the wife wrote amongst other things seems to be significant. She informed the husband again that she had menstrual cycle using the letter ''M'' but not very clearly; even if this is true that was prior to December 28, 1961. The next letter (Ex. 1) written by Dipak (P.W. 1) to the husband in Nepal shows that he joined his work already and the husband was staying then in Nepal. This, of course, was challenged by the Respondent as being created with his help as there was no envelope. This witness was cross-examined at length, but nothing came out from his cross-examination which showed that this letter was procured from him. The next letter (Ex. 10) is written by the mother of the husband on February, 1, 1962, from Calcutta to him in Nepal. This letter shows that the husband was staying in Nepal at the beginning of February 1962. The mother expressed her extreme anxiety in this letter for her son for two days, i.e. February 3 and 4 and asked him to be very careful. The next letter (Ex. 11) is of Bhupal, the husband''s immediate elder brother (P.W. 7), written to the husband in Nepal on Februarys, 1962. This letter also shows that the husband was in Nepal and they would have to spend upto February 15 and 16 in Delhi in connection, with the income tax matters and then they would go back to Birganj but not before February 20 or 22. Then on February 13, 1962, the letter (Ex. 3) is written by Durgapada Paul (P.W. 5) to the husband in Nepal in which he requested him to bring typewriter machine when he would come next to Calcutta. It was also stated by him that on enquiry he heard that the husband might be delayed by 2 to 3 months-in coming to Calcutta. The next letter (Ex. 1A) as appears from the postal mark is of March 1962 written by Dipak to the husband in Nepal from his Gariahat flat giving certain important information about the deposit of dividend warrant of Rs. 700 and other matters. This letter also shows that in March 1962 Dipak was in the employment of the husband who was at that time staying in Nepal. Then we come across another letter (Ex. 3) of Durgapada Paul addressed to the husband on March 17, 1962, in which he again requested him to bring typewriter machine for him if available from Nepal. It also appears from this letter that the husband would be delayed in coming to Calcutta and so he requested him to come back only after finishing all his work there and not to worry about the machine. The next letter (Ex. 6A) given by the wife''s mother, Sabita Bagchi, to the husband must have been written in May 1962; according to the Petitioner, but there is no date in the letter as the top portion appears to have been torn and it is not possible to ascertain the date from the indistinct postal seal. The authenticity of this letter or the month as stated by the husband was not denied by the wife. The letter clearly shows, therefore, that in May 1962 the husband was staying in Nepal. As regards the contents and true purport fit this letter we would discuss them in the second group of documents as we pass on. Then there are three letters, exs. 1(b), 1(c) and 1(d) dated May 11, 1962, with a copy of letter in English dated May 11, 1962 and two other separate letters dated May 14, 1962 and May 30, 1962, addressed by Dipak (P.W. 1) to the husband in Nepal. These letters establish two things,'' namely, that in May 1962 the husband, was staying in Nepal and Dipak (P.W. 1) was actually m his Employment and looking after his business in shares. In between May 14 and 30, 1962, there is another letter given by the mother of the wife, Sabita Bagehi, to the husband in Nepal on May. 25 1962, Ex. 6(b). This letter is of great significance which will be dealt with in the second group of documents. At the present moment this letter clearly shows that the husband was in Nepal in May 1962. On July 9, 1962, Dipak (P.W. 1) again wrote a letter to the husband in Nepal. Then Bhupal, his immediate elder brother, wrote two important letters on July 14 and 19, 1962, exs. 11(a) arid 11(b). The importance about the contents of these two letters also will be discussed in the second group of documents, but for the present purpose it is clear that the husband must have been in Nepal at least upto July 20, 1962. In the last letter it was written by his brother that his presence in Calcutta was urgently necessary and he requested him to come immediately. The husband''s case is that he did not come to Calcutta between the end of December 1961 and July 20, 1962. Of course, the wife in her evidence denied this fact. In particular, she stated that the husband returned to Calcutta, on Saraswati Puja day at 3 p.m. which would be February 9, 1962 and he lived with her upto the middle of March 1962 and then went to Nepal and came back again to Calcutta by the middle of April 1962 (before last Baisakh) and lived with her in the flat and brought her mother there on April 24, 1962. Then again he left for Nepal 2/3 days before the RabindraJayanti day, i.e. Baisakh 25 (May 8 or so of 1962) and again returned to Calcutta in June-July. But if the series of letters with their respective dates addressed to the husband in Nepal are to be believed, then the entire statement as made by the wife seems to be absolutely without any foundation in fact. We shall again advert to this part of her evidence at the proper time and see if there is any sufficient reason to disbelieve these letters, but at the present moment this much is clear, even according to the evidence of the wife, that the husband left Calcutta for Nepal by the end of December 1961 and stayed there almost continuously and then came back to Calcutta after July 20, 1962. Against the background of these letters, if the evidence of all the witnesses (P.Ws. 1-5) on behalf of the husband are tested, then clearly they show what they stated before the Court about the absence of the husband from Calcutta and the movement of the wife with the co-Respondent must be accepted as true.

Now, coming to the second group of letters, the first that we see is a letter (Ex. 12) of April 30, 1960, addressed by the brother of the wife ''Piklu'' to the wife. This letter seems to be of great significance for it discloses certain information�s received by the brother about the wife intending to go away In fact, he expressed surprise and wrote in these lines:

Hallo, I hear you intend to go away, with whom? With one who has children, has wife, mountain-high problems, with him? Well what taste? You have children--you will go away forgetting them. Of course, I do not deny that your love is noble. But my sister, I have read in books that noble love seeks for noble persons. Why that is not applicable in your case? What

more should I say, etc.

The brother also cited the case of illustrious Sita, Sabitri and others and wondered if she wanted to deviate from the glorious path they treaded. This particular person, according to the husband, mentioned in this letter, with whom the wife intended to go away was the co-Respondent. The wife, however, wanted to say that she intended to join an ashram out of frustration. She mentioned the name of one Birendra Kr. Bhattacharyya arid also Krishnapada Bhattacharyya who according to her were saints though living a worldly life and she Wanted to be intiated by any one of them. None of these persons nor any one of their disciples of their ashram were examined as witnessed by the wife in support of such a case, Then there is no explanation as to how she got rid of such frustration and proceeded with normal domestic life. The fact remains, she never renounced the world. Instead, she conceived again and gave birth to her fifth child. So, from the sequence of events that followed it is impossible to accept such a suggestion. From the contents of the above letter it seems, therefore, clear that she was observed with illicit love and sex enjoyment with somebody and in the present context, it is clear, he must be the co-Respondent. That, this was so, would be further fortified by a letter of her mother, Sabita Bagchi, written to the husband in May 1962 (top portion torn), Ex. 6(a), as noticed earlier in the first group. From this letter it seems clear that her mother was staying at the husband''s flat and keeping an watch on her movement. She also assured the husband that she would continue to stay there till his return, but for this the wife became considerably irritated and she did not even respond to telephone calls from one Mr. Nag or the husband''s Mejda. (Bhupal). She was very much displeased with the mother as her impression was that the other actually tutored the husband not to allow the wife to go out without an escort. She also mentioned'' about the ''person'' who, she heard, joined his office. She also thought that everything would become normal and the husband need not be worried at all nor about the situation there and not to worry about the wife Sukla. The person in the context of this letter, according to the husband, clearly indicates the co-Respondent. From this letter it also, seems to be clear that illicit love affair of the wife with the co-Respondent became by then open secret at least to the mother, but even go the husband might not have any suspicion about the wife for this letter does not appear to give a clear picture as to what was happening. That the wife could go to such an extent of having illicit sexual intercourse was still then beyond his imagination. This letter again was followed by another letter from the wife''s mother to the husband, as noticed earlier, of May 25, 1962, Ex. 6(b), (postal mark ''29th May, 1962'') which is equally important For in this letter she wrote again in these lines,

...it is much better than what was before. Now-a-days it is very much normal but I do not know ultimately what will happen...gradually all will settle down but it will take time....

She asked the husband not to get despondent. With regard to this letter also the wife, wanted to explain that she wanted to renounce the world, but as already seen this plea does not appear to be convincing at all. It is significant that her mother has not come to depose on* her behalf in this case. This letter no doubt indicates that the wife was already steeped in illicit love with some other person in such a way that possibly for the time being she was having mental set back. This mental condition of the wife as disclosed by the mother in her own letter to the husband is fully corroborated by Bhupal (P.W. 7), his immediate elder brother, in his evidence in which he related that in spite of his efforts and assurance the wife showed her desparate attitude by asserting that even the fourth child was not the child of her husband and she was deeply in love with the co Respondent and was already married with him at Kalighat. Along with this letter if we consider two other letters written by the wife''s brother from Germany, one to his mother on June 26, 1962 (Ex. 13) and another to the wife on August 9, without mentioning any year, Ex. 12(a), there can be little doubt that the wife deeply entangled herself in adulterous connection with the co-Respondent and allowed it to continue unabated in spite of entreaties, requests and protests at least by her mother and brother to whom by then everything was clear. In the letter to the mother the brother of the wife expressed his disgust and wrote in these lines,

...my only elder sister can find time to go to Cinema and cannot afford to give me a letter--any way do not tell her anything. I do not understand why ''he'' has been destroying a matrimonial home in such a way. I know his address. If you give your consent I can give him a strong letter--I am glad to learn that Nripalda has come....

Then in the next letter, Ex. 12(a), the brother requested his sister (wife) not to destroy her matrimonial home for the sake of her so-called love. He also compared the lover with ''summer friend'' who never turns up at the time of real necessity and that is why he thought that she was entirely mistaken. He also as younger brother dared not to give her advice but he expressed his sorrow at the news that she did not keep any connection with her mother for about 15 days. Of course, he also entreated her to revive her connection with the mother. The wife, however, wanted to explain away by saying that there was some misunderstanding with the mother at that time though she could not remember the actual cause of it. Such being the writings even of the brother either to the mother or to, the elder sister (wife) there is no scope for its interpretations in any way other than the illicit love affair that the wife was carrying on with the co-Respondent. The trial ''Court also dealt with these letters and rejected the explanations given by the wife, we think rightly and found that the letters did refer to the illicit love of the wife with the co-Respondent. That being so, if we consider the oral evidence given by the five witnesses on behalf of the husband it would appear that their statements entirely fit in with these documentary evidence and go to establish that the wife was living in adultery with the co-Respondent during material period as stated by them.

We shall pass on now to consider the documentary evidence in the third group to see whether the above conclusion reached by us is justified. The trial Court in considering the documents of this group also discussed the writings of the wife, exs. 5(f) to 5(i), described by her as ''ramblings of her imagination''. We have scrutinised these documents and agreed with the trial Court that from a fair reading of these writings it must be held that they were addressed to somebody other than the husband and that was the co-Respondent. Coming now to the letters, exs. 4(b) to 4(o), written by the co-Respondent to the wife, it is stated by the husband that they were discovered in the wifes almirah after he camp back from Nepal in July 1962. The husband''s case is as suggested in the cross-examination that these letters were received by her by the end of July to September 1962. Some of these letters bear no date but mention the days on which they were purported to be written. These are exs. 4(b) to 4(g) and 4(m) to 4(o) and 4(h) and 4(p). The letters exs. 4(i) to 4(1) were written with dates by the co-Respondent from Delhi to the wife. These letters were collected by her from one Arun Sanyal, a cousin of the co-Respondent, according to the arrangement made by him. She, however, denied this and also tried to refute that the co-Respondent ever addressed her in endearing terms as found in these letters. Most of these documents, are fairly long letters. The peculiar feature of this case, as appears from these letters, in that the co-Respondent also seems to be mad in love with the wife. He openly declared in many of these letters that he was the father of the fourth and fifth child but at the same time considering the endless harassment, miseries and troubles the wife was undergoing for Tier illicit sex attachment to him, he became completely despondent about his life. He, however, did not intend to end his life but wanted to live for the sake of ''Fuchun'' and ''Ankhi'' (fourth and fifth child) and for his dearest ''Sukla'', the wife. The trial Court scrutinised each of these letters carefully and noted their substance. It was satisfied that they were unimpeachable evidence of the illicit love, affection and sex communion between the wife and the co-Respondent. It is not necessary to restate the contents of these letters over again. Suffice it to say that if these letters are to be believed then there cannot be least doubt that the wife was living in adultery with the co-Respondent as a result of which she conceived the fifth child, ''Ankhi'' and in course of time this became an open secret at least by the time when these letters were being addressed, possibly to all the near relations of the husband and also to the co-Respondent''s own wife. For, in one of such letters, Ex. 4(b), it was written that Dolly, the co-Respondent''s own wife, told him that Police had already been informed and unless the co-Respondent stopped the efforts of bringing the wife out, exchanging letters, making gestures from his own flat or mixing with her in any way, then the wife with her two children (fourth and fifth child) would have to the or she would have to go out'' of the house completely mad. Of course, he expressed his doubt whether this information received from his wife was correct and also assured that he would write letter to the wife every day which he requested her also to procure at her convenience.

Then in another letter, Ex. 4(e), after repeating the same love and caresses for the wife he cautioned her against signing any affidavit on certain terms which was not different from getting a divorce. It was also started amongst other things that he would divorce his wife Dolly and was prepared for all other eventualities as he would not be able to live without her. Their relations, it was also stated, were not grown up on a brittle and unsound foundation. They were only two parts of the same life and there was no force on this earth which could separate them except death. It seems dear from this letter that the wife too was exchanging letters with the co-Respondent. Then in letter, Ex. 4(f), the co-Respondent expressed himself as depressed in heart. From the tenor of this letter it is only reasonable to infer that he heard something from the wife for which he wrote amonst other things in these lines,

Why dear, am I then bad? You know my words at the heart of your hearts--is it for this reason that at the words of mother and others there has appeared some doubt in your mind, that after some days after satisfying my desire I might as well leave you to your fate? Tell me, is it due to that, that you are lagging behind?

In the letter, Ex. 4(g), it seems that the wife was insisting on leaving the matrimonial home and going away with the co-Respondent, for, the co-Respondent again wrote in these lines,

I have come to know of everything from your letter. Let it be so. After my return from Delhi I shall speak to them in that light. Thereafter what is necessary for as to do will be done. Let me see what is in store in my lot in the long run. Yes--after we go away, if they file a case, then there will be some difficulty. Let me see if they can be made to agree in this regard--otherwise it will happen what is ordained. I shall consult a lawyer on my return.

In the next letter, Ex. 4(h), the co-Respondent cautioned the wife against the false telephone calls in his name, to the wife and also warned her not to believe any information given by them meaning the husband or his relation about him. He also gave, information about his visit to Delhi in connection with the office work.

Next, he wrote successive long letters, exs. 4(i) to 4(b), oh different dates between August 21, 1962 and September 4, 1962. These letters seem to be one-sided for almost in each of these letters he expressed his anxiety for not receiving any letter from the wife. In most of these letters he became extravagantly effusive and erotic in his expressions about the wife, but at the same time gave her assurance against dangers and difficulties. He also told stories in some of them about his dreams and asked her to come and join him immediately, if she liked, although simulteneously he stated that in the present set up it was not possible for him to help her in any way. In one of such letters, Ex. 5(h), he also wrote that he expected her at the Howrah Station when he would be back from Delhi to come* and join him there on some plea or other, but not seeing her in the Station he was very much dejected. From the letter Ex. 4(o) it seems that the co-Respondent had come back from Delhi and met the wife with the daughter ''Fuchun'' (fourth child) somewhere, but he expressed also his feeling of disappointment at the mental, condition and fomented her naturally not to be carried away by their propaganda meaning surely the husband or his relation for effecting a permanent separation between the wife and the co-Respondent. He entreated her not to leave him but to keep him as her domestic servant. It thus appears from the sickening mass of these sensuous writings of the co-Respondent that not only the adulterous connection between the wife and the co-Respondent was established beyond any reasonable doubt, but the co-Respondent was trying by all possible means to entice away the wife from the fold of the husband.

Mr. Ghosh on behalf of the wife, however, firstly wanted us to hold that all these letters were procured from the co-Respondent collusively by the husband to secure a divorce. It was pointed out that the letters which were discovered and taken in custody by the husband from the almirah of the wife were kept in flat file duly punched. If these letters were genuine letters of the co-Respondent addressed to the wife-then they would have equally been kept in file by her after punching them, but there was no mark of punching in these letters. We are not prepared to go into this question at this stage for it does not appear that any such suggestion was made to the husband in cross-examination nor even this aspect of the matter even if there is any truth in it was argued before the trial Court. There is nothing to indicate that these letters and documents discovered by the husband and taken away by him from the almirah of the wife were kept in a flat file after punching them. Even if some of these letters exhibited were stacked in flat file after punching that cannot be accepted as a sure test that all these letters without such punching marks found by the husband in the wife''s almirah and exhibited in this case were not genuine documents. The wife also did not deny in her evidence that these letters were not in the hand-writing of the co-Respondent. What she denied was that she collected those letters from one Arun Sanyal, a cousin of the co-Respondent, under advice from him or that the co-Respondent ever addressed her in endearing terms as found in these letters, exs. 4(b) to 4(o). She, of course, also denied that these letters were kept by her in her almirah. It appears, however, that Arun Sanyal was known to the wife, for, it is admitted in her evidence that Arun Sanyal is a cousin of the co-Respondent, but he has not been examined as a witness on her behalf in this case. No explanation appears to, have been given by her for'' not examining him as a witness. Then again, haying regard to the contents and purports of these letters or the manner in which they have been written, with minute details, particularly about the relation of the wife with the co-Respondent and their tyro children, certain day to day events or many other matters or the nature and style of such writing, it seems absurd to suggest that they could be written at a stretch by any person only out of his imagination for the purpose of creating a false case against the wife.

There is yet another aspect of the matter. No reason has been assigned as to why this co-Respondent, against whom there is serious allegation in this case of committing adultery with the wife, should write these letters creating evidence against his own self or incriminating himself and thus expose him also to penal consequences. The wife in her evidence again said that she did not know how these letters came into existence. So, considering this aspect also we reject the story that these letters, Ex. 4(b) to 4(p), were procured letters.

Mr. Ghosh, secondly, contended that even assuming that these letters were not procured letters, then also few love letters exchanged between the wife and the co-Respondent could not establish adultery. In support of his contention reliance was placed on a decision of the Supreme Court in Chandra Mohini Srivastava v. Avinash Prasad Srivastava AIR 1967 S.C. 581 where, it was pointed out, the charge of adultery based on two letters written by the co-Respondent to the wife was found by the Supreme Court not to have been established, We fail to see how this case is of any assistance to the Petitioner. In this case, one Chandra Prakash who was a cousin of the Appellant wife Chandra Mohini wrote two letters. Her husband also adduced other evidence to prove that there had been illicit intimacy between his wife and Chandra Prakash in May/June 1958, but both the Courts below disbelieved such evidence. Even so, the High. Court, relying on two letters, found that there had been adultery between the wife Appellant and Chandra Prakash. In that'' context the Supreme Court did not uphold the conclusion of the High Court on the view that since Chandra Prakash was a cousin of the wife, his writing letters to her "would not, therefore, be a matter of surprise". By this observation the Supreme Court surely did not lay down as a proposition that no adultery could be established on love letters. Whether or not adultery has been established in a given case is a question of fact, which can be proved like any other fact by adducing both oral and documentary evidence either direct or, circumstantial. We, therefore, do not find much of substance in the second contention of Mr. Ghosh.

Now, reverting back to the above letters there seems to be little doubt that apart from other evidence these letters by themselves amply demonstrate that the wife was living in adultery with the co-Respondent. There are enough indications in these letters to show that the wife''s infatuation for the co-Respondent completely obsessed her with the idea of leaving her matrimonial home permanently arid stay with the co-Respondent as husband and wife. Now recapitulating the evidence of all the five witnesses (P.Ws. 1-5) we find that their uniform evidence are that during the absence of the husband the co-Respondent used to come often to the wife at the husband''s Hat, used to go out with her in husband''s car and then come back and stay at night when the wife was living alone. It thus appears that their testimony relating to illicit intimacy of the wife, with the co-Respondent find full corroboration in these letters.

Such being the position, the wife''s specific case that the instant matrimonial proceeding was started falsely against her at the instigation of Bhupal in collusion and conspiracy with the husband to drive her put from the matrimonial home cannot stand a moment''s scrutiny. Bhupal, as already noticed, frankly conceded in his evidence that there were some estrangement of feelings between the brothers over the division of lather''s properties but they were amicably settled. Not a scarp of paper nor even any oral evidence has been Adduced by the wife to show that facts were otherwise. Her own evidence on this matter also'' is Hot at all satisfactory for she also stated that she did not know why this case was started against her. On top of this the co-Respondent though filed a written statement did not contest the proceeding and possibly tried to save his Own skin by leaving the wife to Her own fate. Be that as it may, the motive allegedly the wife for Seeking her divorce on the ground of adultery has not been proved, at all. Nevertheless, the legal burden of proving adultery lies on the husband. That is why we have gone through this long course of evidence, both oral and documentary and analysed and assessed them to see if this legal burden has been discharged. Now, therefore, taking an overall picture of the facts disclosed and the circumstances revealed from these three groups of documents and oral evidence of several witnesses adduced by the husband and properly weighed against those of the wife and her witness, the hus-hand, it seems clear, has been able to relieve himself of such burden in this case. We are satisfied beyond reasonable doubt that the wife continued to live in adultery with the co-Respondent during the husband''s absence from Calcutta from the end of December 1961 till at least he came back to Calcutta after July 20, 1962.

It now remains to be seen whether the fifth child ''Ankhi'' or ''Arpita'' was conceived by the wife as a result of such adulterous connection of the wife with the co-Respondent. The husband''s case is that he did not come to Calcutta between the end of December 1961 and July 20, 1962. The wife in her evidence denied this fact. In particular, she stated that the husband returned to Calcutta on Saraswati-Puja day at about 3 p.m. which would be February 9, 1962 and she lived with her upto March 1962 and then went to Nepal and came back again to Calcutta by the end of April 1962 (before Baisakh 1). He lived with her in the flat and brought her mother there on April 24, 1962. Then again he left for Nepal 2/3 days before the Rabindra-Jayanti day, i.e. Baisakh 25 (May 8 or so of the year 1962) and again returned to Calcutta in June-July. It is difficult to accept this part of her evidence as true state of things if they are tested in the background of a number of letters written by different persons to the husband in Nepal. These letters, of course, have already been discussed in the first group of documents to ascertain actually as to when the husband left Calcutta and the date when he came back to Calcutta. Now, on a recounting of these documents we find, the first letter, Ex. 10, was written by the mother of the husband where she expressed her worries about February 3 and 4 next and cautioned the husband to be very careful on those two days. Then the next letter, Ex. 11, is dated February 2, 1962, addressed by Bhupal, husband''s immediate elder brother, where he amongst other things gave a programme of their stay in Delhi upto February 15 or 16 or it might be that they would not be able to reach Birganj before February 20 or 22, 1962. The next letters, exs. 3 and 3(a), written by Durgapada Paul (P.W. 5) to the husband in Nepal requesting to bring typewriter machine when he would come next to Calcutta; These letters of course, it was suggested, were procured letters from Durgapada (P.W. 5), but we have already seen there was nothing in the cross-examination which could indicate that Durgapada for the sake of typewriter would give such letters to enable the husband to start a false case of adultery, against her. The next letter, Ex. 1(a), as appears from the postal mark is of March 1962 written by Dipak to the husband in Nepal from his Gariahat flat. So, these letters if considered in point of time would clearly falsify the statement of wife that the husband came on the Saraswati-Puja day, i.e. February 9, 1962 and lived with her upto March 1962. Then the other part of her evidence, namely, that the husband after March 1962 went back to Nepal and came back again to Calcutta by the end of April 1962 (before Baisakh. 1) and lived with her in the flat or brought her mother there on April 24, 1962 and then again he left for Nepal 2/3 days before the Rabindra-Jayanti equally turns out to be false if we consider these letters along with the letters of wife''s mother, exs. 6(a) and 6(b), written to the husband in May 1962 and also the letters written by Dipak between May, 11 1962 and May 30, 1962, exs. 1(b), 1(c) and 1(d). In the two letters of Durgapada, exs. 3 and 3(a), there is clear indication that the husband would be delayed in Nepal in connection with his work there from two to three months. That, this was true, is supported by the letters, exs. 6(a) and 6(b), given by the mother of the wife in May 1962 and also the three letters given by Dipak. It is already found that nothing transpired in the cross-examination of these witnesses, Durgapada or Dipak or Bhupal, that these letters were procured by the husband for creating evidence in this case. The genuineness of the letters given either by the mother of the husband or of the wife has neither been denied nor there is anything to show that these letters were spurious. If that be so, then these letters conclusively prove that the husband was staying in Nepal during the entire months of February, March and April of 1962. The rest of the period of the husband''s stay in Nepal till the end of July has not been denied. That being so, as against this unimpeachable documents excepting the uncorroborated oral testimony of the wife herself, there is no other evidence, either oral or documentary, adduced by the wife to show that the husband in fact was present in Calcutta during the period as stated by her in her evidence. It is significant that although from the month of May 1962 the mother was staying with her at the husband''s flat she even has not come to depose supporting her daughter in this case. Then, it is in evidence of the wife that whenever she used to come and live in the husband''s flat she always had with her some of her own relations, namely Shenty, Amiya a cousin, Salil, Jhuma. None of these relations was produced as a witness in this case by the wife. Such being the position, it is clear that the husband had no access to the wife during any period from the month of February to May 1962.

Now, in this case it is undisputed that the fifth child was born on November 10, 1962 and the delivery and the child born were normal. Counting this normal period of gestation at 272 days plus 10 days for expected delivery the child, it may be fairly presumed, must have been conceived between February 8 and 10, 1962, when clearly the husband had no access to the wife. In view of the clear evidence the presumption of legitimacy in favour of this child stood wholly rebutted. Since the wife, as already found, had been living in adultery with the co-Respondent during this period there cannot be any doubt that the wife conceived the fifth child as a result of illicit sexual intercourse with the co-Respondent. The result of such finding no doubt leads to a very grave and serious consequence, but on a review and reassessment of the entire evidence and after giving our most anxious consideration to the facts and circumstances of this case we could not pursuade ourselves to take a different view of the matter. We, therefore, hold in agreement with the trial Court that the fifth child ''Ankhi'' or ''Arpita'' is the illegitimate child of the wife.

We now proceed to consider the next question viz., as to whether there is any connivance or condonation by the husband of such adultery of the wife. The question was considered by the trial Court under Issue No. 3 together with the question of delay. The trial Court on consideration of evidence held that the plea of condonation of adultery was merely an afterthought of the wife which was neither believed nor accepted. The collusion of the husband with the co-Respondent was not believed. The trial Court also accepted the grounds of delay in presenting the petition as sufficient and satisfactory. We have already scrutinised the entire evidence, both oral and documentary, in this case of either parties. So, on a review and reassessment of evidence we think there is nothing to indicate that the husband condoned the adultery of the wife. It appears from the evidence of the husband as also from the letters by his brother Bhupal and the wife''s mother that she Was so much obsessed with the illicit love and affection for the co-Respondent that she became almost desperate and wanted to leave even her own children behind and run away to live with the co-Respondent. The husband after coming back from Nepal by the end of July 1962 naturally took time to know the real state of things about the wife and then he discovered bundle of letters and other papers exhibited in this case. It is in evidence that he confronted the wife with these letters at which she flared up and straightway told him that she would go away with the co-Respondent. In fact, she left the flat with the mother and four children on or about October. 8, 1962, in the absence of the husband and without his knowledge. It is also in evidence that in spite of these saddest and most tragic state of affairs in his own matrimonial home he had to leave again for Nepal in October 1962 as his properties were being forcibly occupied by a section of rebels who were eventually convicted in criminal cases started by him. On account of this unforeseen calamities befalling him regarding his own properties he had to spend considerable time in Nepal. Then again, he very frankly seated that having regard to the future of his own children and prestige of his family and on account of his own frustrated mind he could not present the instant petition forthwith, but he never condoned or connived the adultery of his wife with the co-Respondent nor there was any collusion between him and the co-Respondent. The suggestion that the letters from the co-Respondent were all procured as already found cannot be accepted. Equally the suggestion that the husband prevented the co-Respondent from appearing in Court seems to be absurd. It is true that he went several times to the father''s residence of the wife to see his own children and tried to bring them back, but the wife''s suggestion that the husband even there in the father''s residence stayed with her at night on such occasions do not appear to be at all convincing) No such case was made out in the written statement filed by her nor any other person, either the mother or anybody else in the father''s residence, had come to depose supporting the wife. On the other hand, it is in evidence of the husband that his three children who used to be kept in the residence of the wife''s father were brought by the husband in his flat on July 3, 1964. That the husband had to struggle for quite a long time to take custody of these three children would appear from the letter with declaration, exs. 14 and 15, to the Rev. Prefect of St. Xaviers College (Primary Department) stating amongst other things that nobody from their house would meet Mohan the eldest son in the school premises or Outside anywhere. So, in the state of evidence as they are, we are not prepared to take different view from that of the trial Court. We entirely agree with its finding that plea of condonation was merely an afterthought of the wife and therefore, not believable and acceptable as correct.

On the question of delay, for the same very reason the trial Court accepted the ground of delay in filing the suit as sufficient and satisfactory. It was, however, contended by Mr. Ghosh that there had not been any sufficient explanation for the delay in filing the present petition. It was contended that the statements made in para. 14 of the petition relating to such delay were wholly inconsistent with the husband''s evidence given in this case on the point of such delay. We fail to see how this is so. In the petition the Petitioner has pleaded

that there has not been any unnecessary or improper delay in instituting this proceeding and there is no legal ground why relief prayed for should not be granted.

In his evidence the husband has given explanation relating to certain circumstances under which it was not possible to come earlier than May 1965 to start the instant matrimonial proceeding. The evidence as we have already seen is that the husband mostly had to stay in Nepal from November 1962 on account of invasion of his properties and mill by the rebels there. He had to start criminal cases in which they were also convicted. The land laws of Nepal were also changing. He came to Calcutta only for a very urgent piece of business and stayed only for a short time. Practically he had to remain in Nepal for the whole year of 1963 and 1964. Then, his evidence was that

having regard to the future of my children and prestige of my family and on account of my broken state of mind I could not file a suit forthwith. I filed this suit in May 1965....

On this part of the husband''s evidence he does not appear to have been cross-examined on behalf of the wife. The only suggestion in the cross-examination regarding delay was that he could not make up his mind whether he should act upto the instigation of his mother, brother Bhupal or should follow the path of truth. It is clear that the husband under the circumstances, as related by him, was prevented by sufficient cause, for not coming to the Court earlier.

Mr. Ghosh then argued that a delay of more than two and half years in instituting the instant matrimonial proceeding, in any case, must be held as improper. Reliance was placed on a decision of this Court in the case of King v. King ILR Cal. 215 where Costello, J. following the celebrated observations of Lord Stowel in Mortimer v. Mortimer (1820) 2 Hag Con. 310 that

a Court will be indisposed to relive a party who appears to have been slumbered in sufficient comport...and it will be inclined to infer either an insincerity in the complaint or an acquiescence in the injury whether rule was supposed or a condonation of it

refused to giant a decree of divorce on the ground of delay of 2� years as improper. We think the principle indicated in the above decision is undisputed, but then each case has to be judged on its own facts. It is neither possible nor desirable to draw any hard and fast line. It is not really the number of years but the circumstances that count which may be related by the party aggrieved for not being able to come up to Court earlier. We find the husband neither ''slumbering'' nor in ''sufficient comfort''. At any rate cases may be visualised where delay of even 26 years were found not to be improper. See Adelaide Tobias v. William Tobias Supra. That being so we do not find much of substance in the second branch of contention made by Mr. Ghosh. In the facts and circumstances of the present case and on the state of evidence we are satisfied and we hold in agreement with the trial Court that there has not been any unnecessary and improper delay on the part of the husband to institute the present matrimonial proceeding.

This brings us to the husband''s appeal where the only question is whether he is entitled to get a decree of divorce instead of judicial separation. On this point the trial Court, in view of Section 13(1)(i) of the Hindu Marriage Act, held that since the Respondent was not ''living in adultery'' at the time of the petition and there was no evidence in this case that the wife was so living, the Petitioner was held to be entitled only to a decree of judicial separation obviously u/s 10(1)(f) of the Act and not to a decree of divorce. Mr. Sinha argued that the word ''living in adultery'', as used in Section 13(1)(i) of the Act, only meant a continuous course of conduct of illicit sexual intercourse for any particular period and not that such conduct must be shown to have continued till the date of the filing of the petition. Reliance was placed on a Bench decision of this Court in Jatindra Mohan Banerjee v. Gouri Bala Debi (1924) 29 C.W.N. 647 (648) where Chotzner, J., while considering the meaning of ''living in adultery'' occuring in Sub-section (4) of Section 488 of the Code of Criminal Procedure, observed inter alia:

The expression ''living in adultery'' has been judicially interpreted more than once. In the case of Gantapalli Appalama v. Gantapalli Tellaya (2) Shephard, J. said, ''The words point to a continuous course of conduct, not to isolated acts of immorality''. In the case of Patala Atchamma v. Patala Mahalaksmi (3), the learned Judges refer with approval to this case as well as to the case of Kallu v. Kaunsilia (1) and say: ''These words refer rather to a course of conduct or at least to something more than a single lapse from virtue.

We are of opinion that this is the proper and natural construction to be put upon the words and unless continuity of conduct is established, it cannot be inferred from a single act of adultery that the woman is ''living in adultery''. In the present case we think that although the woman has given birth to a child it was to the Magistrate to find that, apart from that circumstance she was not ''living in adultery'' and that we should consequently not interfere with his decision.

In this case therefore, according to Mr. Sinha, such a continuous course of conduct was clearly established at least covering a period of two years from the beginning of 1960. Mr. Ghosh sought to repel this contention on an argument that the course of such immoral conduct of adultery must fie shown to have continued at least upto near about the time of presenting the petition as the words used in Section 13(1)(i) are--''the wife or the husband is living in adultery''. In support of such contention he relied on a decision of the Bombay High Court in Rajani Prabhakar Lokur Vs. Prabhakar Raghavendra Lokur and Another, . In this case, on interpretation of Section 13(1)(i) of the Act it was held that it must be shown that the period during a spouse was living an adulterous life was so related from the proximity of time to the filing of the petition that it would be reasonable to infer that the Petitioner had a fair ground to believe that when the petition was filed, his or her spouse was living in adultery. The view taken by the Bombay High Court, it appears, has been followed in Bhagwan Singh Sher Singh Arora Vs. Amar Kaur and Another, . The interpretation put on this Section 13(1)(i) in these two decisions does not seem to have made any departure essentially from the construction put on the expression ''living in adultery'' in Sub-section (4) of Section 488 of the Code of Criminal Procedure in the above Bench decision of this Court. On a fair and proper construction of Section 13(1)(i) of the Hindu Marriage Act it appears that the adultery complained of must not be isolated act for a particular period, but it must lead to a continuous course of adulterous conduct upto the time or near about the time when the petition is filed so that, if such adultery is proved, a decree of divorce may be properly claimed under this section. That this must be so will be apparent from the other Section 10(1)(f) where a different relief, namely, a judicial separation is provided if either of the husband or the wife after the marriage ''had sexual intercourse'' with any person other than his or her spouse. Clearly, therefore, under this section there is no question of continuity of such sexual intercourse at the date when the petition was filed. This really seems to be the view taken by the Supreme Court in Chandra Mohini v. Avinash Prosad Supra, where though Section 13(1)(i) was not expressly construed it approved the view taken by the High Court and agreed that no decree of divorce could be granted since "the Appellant was not living in adultery at the time when the petition was, filed". Such being the position in law the trial Court held,; we think rightly, that since there was no evidence to prove at least after July 1962 a continuous course of adulterous conduct of the wife in relation to the co-Respondent till at least near about the time when the petition was filed, he was not entitled to a decree for divorce. We, therefore, in agreement with the trial Court, hold that the decree for judicial separation, in the facts and circumstances of the present case, was rightly passed.

The result is, both the appeals fail. The appeals are dismissed, but having regard to the facts and circumstances of this case we saddle the co-Respondent with the entire costs of the proceeding in the trial Court which we assess at Rs. 2,000 (Rupees two thousand) and direct him to pay such costs to the Petitioner-husband. We modify the order passed by the Court accordingly. There will be, however, no order as to costs in both these appeals.

The application filed in Court on June 5, 1969, by the wife is dismissed without any order as to costs.

Laik, J.

I agree.