Thursday 29 March 2012

Divorce-Adultery-Standard of Proof-Principle-Direct evidence is not imperative






 1958 AIR  441                       1958 SCR 1410

Divorce-Adultery-Standard of Proof-Principle-Direct evidence
if  imperative-Finding of fact when can be interfered  with-
Divorce Act (IV of 1869), ss. 14 and 7.

The  appellant sued his wife for dissolution of marriage  on
the ground of her adultery.
On  the evidence  the trial court found  that       it  was   not
possible to hold that adultery had been committed, though it
found that one of the letters contained "a large  substratum
of  truth".   The High Court in appeal        concurred  with                the
decision.   On appeal to the Supreme Court it was  contended
for  the appellant that the finding of the courts below    was
vitiated  because  certain  pieces  of        evidence  had    been
misread, and some others ignored.  As a matter of legitimate
and  proper inference the Court should not have              arrived  at
any  other  conclusion,   but that the  wife  was  guilty  of
adultery with respondent NO. 2. The evidence showed that the
wife went to Patna and stayed in a hotel with respondent NO.
2 under an assumed name, that they occupied the same room in
the  hotel, that the conduct of the respondent  indicated  a
guilty     inclination,  and  that      so  far  as  the  wife        was
concerned,  her                conduct was entirely  consistent  with   her
guilt :
Held,  that, the nature of the evidence adduced was such  as
would satisfy the requirements of s. 14 of the Divorce   Act,
and  that the finding of the Courts below that an  inference
of adultery could not be drawn therefrom must be set aside.
Although it is not usual for the Supreme Court to interfere
on  questions  of  fact, where, however,  the  courts  below
ignore   or  misconstrue important  pieces  of     evidence  in
arriving at their finding, and this Court is of the  opinion
that  no tribunal could have come to such a finding oil     the
evidence  taken                as a whole, such finding was liable  to  be
interfered with by this Court.
Held, further, that the words "satisfied on the evidence" in
s. 14 Of the Divorce Act, 1869, imply that it is the duty of
the  (Court to pronounce a decree only when it is  satisfied
that the case lhas been proved beyond reasonable doubt as to
the commission of a matrimonial offence.
The  evidence  must be clear and  satisfactory    beyond                mere
balance                of probabilities.  It is not neccessary and  rarely
possible, to prove the issue by any direct evidence.
The rule laid down in Preston Jones v. Preston Jones, [1951]
A.C. 391, lays down the principle that should be followed by
tile courts under s. 7 Of the Divorce Act.
State of Madras v. A. vaidanatha Iyer, A.I.R. 1958 S.C.     61,
Purvez  Ardeshir  Poonawala v. The State of Bombay, Cr.                A.
122   Of  1954,    decided  on  December                20,  1957,   Stephen
Seneviratne  v.  The  A.I.R.  1936  P.C.  289,           Mordaunt  v.
Moncrieffe,  (1874) 30 649 and Gower v. Gower [1950] 1               All.
E.R. 804, referred to.
Loveden              v.  Loveden, (1810) 161 F. R. 648 ; (1810)  2           Hag.
Con. 1,3, referred to.
Preston                Jones   v. Preston Jones, [1951]  A.C.     391,  relied

Appeal from the judgment and decree dated July 21, 1954, of'
the  Patna  High Court in Letters Patent Appeal  No.  24  of
1951,  arising out of the judgment and decree dated May             15,
1951,  of the said High Court in Matrimonial Suit No.  2  of
M.   C.     Setalvad,  Attorney-General  for  India,   N.          C.
Chatterjee  and P. K. Chatterjee, for the  appellant.         Both
the Courts below have failed to draw the proper inference of
the  commission of adultery, which should legitimately  have
been drawn from the facts proved.  Both the Single Judge and
the  Appeal  Court failed to take  into      consideration   some
pieces   of  evidence and certain other   pieces   of  evidence
which    were   equally    important  had  been   misread  and
misconstrued  and  as  a matter of  legitimate    and  proper
inference  the lower courts should not have arrived  at  any
other 179
conclusion  but that the wife was guilty of adultery and  in
such  case the interference with the finding of facts  below
by the Supreme Court will be called for.
State  of Madras v. A. Vaidanatha Iyer, A. I. R. 1958 S.  C.
61 and Stephen Seneviratne v. The King, A. I. R. 1936  P. C.
N.C. Chatterjee continued.  The judgment of the High   Court
suffers  from  certain serious infirmities  and      this  Court
should  not act on the rigid principle that finding of          fact
should not be interfered with in the final court of appeal.
Sir William Scott's dictum in Loveden v. Loveden, (1810) 161
E.  R. 648, as to " the guarded discretion of  a  reasonable
and  just  man" does not mean there should  be                satisfactory
evidence  of the commission of a matrimonial offence.  Lord
MacDermott  has             pointed  out in Preston  Jones   v.  Preston
Jones,   L. R. [1951] A.C. 391, that if a judge is  satisfied
beyond                reasonable  doubt  as  to  the     commission  of  the
matrimonial  offence relied on by the petitioner  as  ground
for  divorce,  he  must surely       be  "satisfied"    within  the
meaning              of  the  enactment,  and no less  so  in  cases  of
adultery where the circumstances are such as to involve               the
paternity of a child.  To succeed on an issue of adultery it
is not necessary to prove the direct fact of, or even an act
of  adultery in time and place ; for if it were so, in             many
few  cases  would  that proof be attainable.   It  has          been
pointed out in a number of cases that rarely the parties are
surprised in a direct act of adultery and such evidence will
have to be disbelieved. Rydon on Divorce, 6th Edn., P. 115;
Douglas v. Douglas, [1951] P. 85: [1950] 2 All E.R. 748.  In
nearly   every  case the fact of adultery  is  inferred          from
circumstances  which  lead  to it by  fair  inference  as  a
necessary  conclusion.   Unless it is so  held        there    will
absolutely  be    no protection to marital rights.   Allen  v.
Allen, [1894] p.248, approving Loveden v. Loveden.
Counsel                then cited Davis v. Davis, [1950] P. 125: [1950]  1
All E. R. 40.  In that case Bucknill, L. J., and  Somervell,
L.  J., held that when husband petitions for divorce on   the
ground of wife's cruelty, it is
unnecessary  to                introduce any question of the   standard  of
proof  required of  a criminal      charge.   Denning,  L.     J.,
emphasised  that  a suit for divorce is a civil          and  not  a
criminal  proceeding.      The same standard of proof  as that
required in criminal cases is not needed.  The stringency of
proof required in a criminal court is not necessarily called
for  in    divorce  suit.       Lord     Merriman's  dictum   quoting
Churchman  v. Churchman, [1945] P. 44, that the same  strict
proof  is required in the case of matrimonial offence as  is
required  in connection with criminal offence has  been too
widely   expressed and should be read in the light  of  later
Recent judgment of the Court of Appeal (Bucknill, L.   T.,
and Denning, L. J.,) lays down the correct law in Gower   v.
Gower, [1950] 1 All E.R. 804, that the correct approach   has
been  laid  down by Denning, L. J., who  observed  that the
court should not be irrevocably committed to the view that a
charge  of adultery must, be regarded a criminal charge,  to
be proved beyond all reasonable doubt.               All that the statute
requires is that the court must be satisfied on the evidence
that  the case of the petitioner has been proved and  it  is
submitted  that Denning, L. J., has enunciated    the  correct
principle  and     the statute lays down a standard  and   puts
adultery  on  the  same footing  as  cruelty,  desertion  or
unsoundness of mind.
N.   C. Chatterjee cited also Mordaunt v. Moncrieffe, (1874)
30 L.T. 649.
S. P. Varma, for the respondent.  The burden of proof is  on
the   person  alleging      adultery  and  there  is  always   a
presumption  of innocence.  In any event on a  petition for
divorce some  strict proof is required of  adultery  as  is
required in a criminal case before a person is found guilty.
Ginesi   v.  Ginesi, [1948] P. 179: [1948] 1  All  E.R.               373.
Applying  the  dictum  of  Lord    Merriman  in  Churchman  v.
Churchman,  [19451 P. 44, the trial court was not  satisfied
of  the   guilt beyond all reasonable doubt.  It is  for         the
trial  judge  to  decide an issue of fact ;  unless  he             has
misdirected himself his finding should not be disturbed.
R.   Patnaik, for co-respondent No. 1. Submitted that
the evidence in the case falls far short of the standard  of
proof required.
1958.     March 10.  Tile Judgment of the Court was  delivered
KAPUR J.-This is an appeal with a certificate under s. 56 of
the  Divorce Act (IV of 1869) (hereinafter called  the        Act)
against  a judgment and decree dated July 21, 1954,  of the
High  Court  of Patna dismissing the  husband's  suit.      The
husband who is the appellant sued his wife who is respondent
No.  I     for  dissolution of marriage on the  ground  of    her
adultery with two co-respondents now respondents Nos. 2        and
3.  The suit was tried in the High Court by Shearer J.,       who
dismissed  the suit and this decree was on appeal  confirmed
by the Appeal Court.  The question as to the legality of the
certificate granted was raised but in the view that we    have
taken it is not necessary to decide this question.
The husband was married to the wife at Kharagpur on February
3,  1,943,  and     there is no issue  of        the  marriage.    The
parties thereafter resided at "Rose Villa" at Samastipur and
respondent  No.               2  was   residing  with    his  mother  in  an
adjoining  house called " Sunny Nook".  The husband  alleged
various acts of adultery between the wife and the other              two
respondents.   As  regards allegations of' adultery  of      the
wife with respondent No. 3, the High Court has found against
the  husband  and these findings have  not  been  challenged
before us.  The allegations of adultery between the wife and
respondent  No.               2  were also held not     proved.                  In  appeal
before  us the husband has confined his case to the acts  of
adultery  alleged  to  have been committed  at   the  Central
Hotel, Patna where the wife and respondent No. 2 are alleged
to have resided together between July 25, 1950 and July              28,
1950,  under  the  assumed names of  Mr.  and  Mrs.  Charles
Chaplin.   The     wife pleaded that she came to  Patna  solely
with  the object of having her tooth extracted and  returned
to Samastipur the same day and that she had to come alone as
in  spite  of her request the husband refused  to  accompany
Respondent  No.              2 pleaded that he came to  Patna  with his
mother "  in connection with seeking employment  under            the
Superintendent Of Police, Anti-Smuggling Department, also in
connection  with mother's tooth trouble and for               house  hold
shopping  ". He also pleaded that he stayed with his  mother
in the same room under his own name and not under an assumed
The trial judge found that the wife and respondent No. 2 and
the latter's mother stayed in two rooms in the Hotel Nos.  9
& 10 from July 25, 1950 to July 28, 1950.  He accepted      the,
testimony  of the Manager of the Hotel, Cardoza P. W. 3               and
also of the sweeper Kira Ram P. W. 4. He found that the Wife
and  respondent No. 2 were seen by Kira Rain in room No.  10
and  also that the party, i.e., the wife, respondent  No.  2
and the latter's mother were served morning tea in one               room
which  they  had together but he did not infer any  acts  of
adultery  from   this  conduct.     The  document  Ex.  8  dated
November 22, 1950, but actually written earlier was held  by
the  learned Judge to contain " a large substratum of  truth
".  The   Appeal Court (S.  K. Das C. J.       and  Ramaswami             J.)
agreed  with the findings of the trial judge but  they        also
were  unable  to  draw the inference of the  commission  of
adultery  front   the evidence.   In appeal it  was  contended
that the findings of the courts below. were vitiated because
certain  pieces of' evidence had been misread, some  ignored
and as a matter of legitimate and proper inference the court
should not have arrived at any other conclusion but that the
wife was guilty of adultery with respondent No. 2.
This  Court will not ordinarily interfere with          findings  of
fact given by the trial judge and the Appeal Court but if in
giving    the  findings the Courts  ignore  certain  important
pieces   of evidence and other pieces of evidence  which              are
equally important  are  shown to  have  been   misread                and
misconstrued and this Court comes to the conclusion that  on
the evidence taken as a whole no tribunal could properly  as
a  matter of legitimate inference arrive at  the  conclusion
that it has, interference by this Court will be called           for.
State  of  Madras  v. A.  Vaidanatha  Iyer  Purvez  Ardeshir
Poonawala v. The State of Bombay(2); Stephen Seneviratne  v.
The King (3).
The  Central Hotel, Patna, which is alleged to be the  scene
of  adultery by the wife bad only 10 rooms, which  were                all
single, but whenever necessary additional beds were put            in.
At the relevant time M. C. Cardoza P.     W. 3 was employed as
its Manager, Kira Ram P. W. 4 as a sweeper, Abdul Aziz P. W.
5  and Usman Mian P. W. 6 as bearers.  Kira  Ram  identified
the  wife  as  the lady who had stayed    at  the   hotel    with
respondent No. 2 but the other hotel servants although               they
were  shown the photograph of the wife and also saw  her  in
court were unable to recognize her as the person who  stayed
with  respondent  No. 2. But they did identify     him  as  the
gentleman who had stayed in the hotel along with two ladies.
Examined by counsel Kira Ram stated:
Q.   "      (Pointing  out to the wife) I ask you, do  you        know
this lady?  A. Yes.  Q. Did they ever visit your hotel?           A.
Yes.  Q. How long ago?  A. About 9 or 10 months ago.  Q. How
long  did they stay there?  A. About 4 or 5 days.   Q.         What
room did they occupy?  A. Room No. 10 ".
He was unable to say as to the number of beds in room No. 10
nor is there any other evidence in regard to this.  He       also
stated :
Q.   "      During   their  stay for these 4 or 5  days  in           your
hotel, did you go to clean their bath room ? A. Yes.  Q. Did
you  see  them  in that room whenever you  went            ?  A.      Yes,
whenever I used to go to sweep the room I found Memsaheb and
Saheb there." (Questioned by the Court the witness said:
Q.   "Can  you     remember was there any other  Memsaheb       with
these two?  A. There was another Memsaheb who lived in          room
No. 9.
Q.   What was she like young Memsaheb or what ?
A.   She was not very old, but she was old."
(1)  A. T. R. 1958 S.C. 61, 64.
(2)  Cr.  A. I 22 Of 1954, decided on December 20, 1957.
(3)  A.I.R. 1936 P.C. 289, 299.
And this obviously refers to respondent No. 2's mother.               The
evidence  of  Kira  Ram therefore shows that  the  wife  and
respondent  No.               2  occupied  one room, room  No.  10.     No
question was put to this witness as to his hours of duty nor
was the manager Cardoza asked anything about it but  another
witness                Abdul   Aziz bearer P.W. 5, was asked  about  it  as
Q.   " What are the hours of work of the sweeper ?
A.   He comes at 7 a.m. and he leaves in the evening.He                  sometimes
goes away at about 11 and 11-30 a.m.or                12 noon".
Similarly no questions were put to Kira Ram about the  state
of  habillement of the wife and respondent No.               2  and   the
witness                never deposed about this fact. The  learned  trial
Judge  erroneously thought that when Kira Ram spoke  of            the
wife  and respondent No. 2 lie " speaks as if '      they'     were
fully  dressed and not en deshabille " and the Appeal  Court
took  this  finding to be " as if  this            witness's  evidence
showed                that both of them were fully dressed".  The  Appeal
Court also seems to have misdirected itself in regard to the
duty  hours.  It said " the sweeper concedes that he was  on
duty  from 6 a.m. to 11 a.m. " There is also evidence  which
has not been rejected that morning tea was served to all the
three,   i.e., the wife, respondent No. 2 and the  mother  of
the latter in the same room.  The statement of Kira Ram that
the  wife  and    respondent  No. 2  occupied  the  same room
receives corroboration from Ex. 6 the hotel bill and receipt
dated  July 29, 1950 for room No. 10 in the name of Mr. and
Mrs.  Charles Chaplin.    This document even though  contempo-
raneous               with  the events under consideration  and  strongly
corroborative of Kira Ram's evidence and of the statement of
Cardoza                that when Mr. and Mrs. Charles Chaplin               "stayed  in
the hotel, they stayed in their own room " does not seem  to
have  been  brought to the notice of either  of   the  Courts
below.  Because  of the infirmities pointed out  above   the
import  of the testimony of Kira Ram which has in  the   main
been  accepted by both the Courts below has been missed         and
its necessary consequences ignored.
Then there is the evidence as to disappearance of the  entry
in the Hotel Visitor's Book which was in the handwriting  of
respondent No. 2. This entry was in the assumed name of           Mr.
and  Mrs.  Charles  Chaplin  from  Hong  Kong  but  when  he
(respondent No. 2) was asked to fill in the Foreigner's form
the  entry  was changed from Hong Kong to  Samastipur.              The
entry  itself  could  not be produced in  Court      because  as
deposed              by Cardoza, respondent No. 2 came to the hotel              and
by  managing  to send the hotel servant away from  the                room
where  the  Visitor's Book was kept, he tore off  the  pages
containing this entry.     This fact receives support from the
complaint  which Cardoza made to the police on               December  5,
1950, and the entry in regard to this complaint made in  the
Station    House Diary     of  the   same  date.       Both   these
documents  have             been  produced as Exs. 1/1  and  1/2.     The
significance of this piece of evidence lies in the fact that
it was done after the husband started collecting evidence of
adultery  and  after lie and his sister        had  inspected the
entry     which  according,  to  his  statement  was  in        the
handwriting of respondent No. 2.
The  reason of the wife's visit to Patna was tooth  trouble.
After her tooth was extracted she did not ,ice her  -Dentist
again  even though he had asked her to (lo so.   Her  version
is  that she returned to Samastipur the same  evening  which
the Courts below have not accepted.  Thus it shows that              she
stayed  on  at the Central Hotel, Patna for four  days       with
respondent  No. 2 without any reason being given by her             and
so  far as the hotel bill and receipt Ex. 6 goes, the  hotel
charges for her stay were paid by " Charles Chaplin ", i.e.,
respondent  No.               2  and not by her.   This  fact  has  again
escaped               the notice of both the Courts below.  And  this  is
more in consonance with guilt than innocence of the wife.
There are then the statements of J. A. Baker P.W. 8 and T.H.
O'Conior P.W. 9 to the effect that in September 1950, at the
house of O'Connor respondent No. 2 in the presence of  these
two witnesses boasted of his having had a good time with the
wife and that she was a remarkable lady ". Respondent No. 2
had also love letters purporting to be from the wife,  parts
of which he read out to these witnesses.  They repeated             the
story  to  the husband which set him thinking.    Shearer  J.
held  this  part of the evidence to be true and    the  Appeal
Court  also  accepted it but construed it  as  showing        that
there  was no adulterous connection at that time,  i.e.,  in
September or it had ended at the instance of the wife. Even
as  it is this finding is not destructive of  the  husband's
case  as to adultery at Patna in the month of July;  on      the
other hand it supports adulterous relations.
The  presence of the mother of respondent No. 2            might   have
been  a shield against the commission of adultery  at  Patna
but the document Ex. 8 which has been accepted by the Courts
below  to  have a substratum of truth just strips  it  away.
This document is indicative of the mother's attitude towards
the  wife.   The  following extract from  this          document  is
relevant as showing that she wanted the wife for her son:
"  How   nice it would have been if you had  married  my                son
-David'.   On another occasion while having tea  along    with
her  she begged me to leave my husband and go away with        her
son who was ruining his life and health and could not settle
down  to  a job as he could not bear to see  me  married  to
another man."
The  presence of the mother would thus be no  impediment  to
adulterous  relations  between  the two.  The  wife  in    the
witness                box wholly denied the episode of the Central  Hotel
including  her stay there, which has deprived the Courts  of
her  explanation.   We    are, therefore   unable  to  get   any
assistance  from her or as a matter of that from  respondent
No. 2 as to what happened in the hotel at Patna.
The  appellant   contends  that the  only  conclusion  to  be
arrived  at upon the evidence taken as a whole is  that  the
wife was guilty of adultery with respondent No. 2. In  other
words the evidence was in quality and quantity such that  it
satisfies the requirements of s.   14         of  the   Act   which
S. 14 "In case the Court is satisfied on the
evidence   that  the  case  of       the  petitioner     has       been
The  important words requiring consideration are  "satisfied
on  the evidence ". These words imply that the duty  of the
Court  is to pronounce a decree if satisfied that  the        case
for the petitioner has been proved but dismiss the  petition
if  riot  so  satisfied.   In  s.  4  of  the  English         Act,
Matrimonial  Causes Act of 1937 the same words occur and  it
has  been  there held that the evidence must  be  clear  and
satisfactory  beyond the mere balance of  probabilities  and
conclusive  in     the  sense that it  will  satisfy  what          Sir
William Scott described in Loveden v. Loveden (1), as "  the
guarded               discretion  of' a reasonable and just man  ".        Lord
MacDermott referring to the description of Sir William Scott
said' in Preston Jones v. Preston Jones (2):
"  The    jurisdiction in divorce involves the status  of        the
parties  and the public interest requires that the  marriage
bond  shall  not  be set aside       lightly    or  without  strict
enquiry.   The terms of the statute recognise this  plainly,
and  I     think  it would be quite out  of  keeping  with      the
anxious                nature of its provisions to hold  that  the  court
might    be  "satisfied      "  in  respect       of  a       ground for
dissolution,   with   something    less  than   proof   beyond
reasonable doubt.  I should, perhaps, add that I do not base
my conclusion as to the appropriate standard of proof on any
analogy                drawn from the criminal law.  I do not think it  is
possible  to  say, at any rate since the  decision  of            this
House   in   Mordaunt  v.  Moncrieffe  (3)  that   the          two
jurisdictions are other than distinct.        The true reason,  as
it  seems to me, why both accept the same general  standard-
proof beyond reasonable doubt-lies not in any analogy but in
the  gravity and public importance of the issue   with  which
each is concerned."
The  Act  lays      down in s. 7 that Courts in  all  suits          and
proceedings  under  the                Act shall act and  give  relief  on
principles and rules which in the opinion of the
(1)  (1810) 161 E.R. 648, 649; (1810) 2 Hag.  Con. 1, 3.
(2)  [1951] A.C. 391, 417.
(3)  (1874) 30 L.T. 649.
Court are as nearly as may be conformable to the  principles
and  rules  on which the Court for Divorce  and   Matrimonial
Causes in England for the time being acts and gives  relief.
In  our   opinion the rule laid down by the  House  of  Lords
would  provide  the principle and rule which  Indian  Courts
should  apply to cases governed by the Act and the  standard
of  proof in divorce cases would therefore be such  that  if
the  judge  is satisfied beyond reasonable doubt as  to   the
commission of the matrimonial offence he would be  satisfied
within   the  meaning  of  s.  14  of  the  Act.   The              two
jurisdictions,      i.e., matrimonial and criminal are  distinct
jurisdictions but the terms of s. 14 make it plain that when
the  Court is to be satisfied on the evidence in respect  of
matrimonial  offences  the  guilt  must    be  proved   beyond
reasonable doubt and it is on that principle that the Courts
in India would act and the reason for adopting this standard
of proof is the grave consequence which follows a finding of
guilt in matrimonial causes.
Gower v. Gower (1) was pressed before us by counsel for           the
appellant as to the approach that the court should have to a
matrimonial offence.  But in view of the decision in Preston
Jones Case (2) it is unnecessary to discuss that case.
In a suit based on a matrimonial offence it is not necessary
and  it is indeed rarely possible to prove the issue by      any
direct    evidence  for in very few cases can  such  proof  be
obtainable.  The question to be decided in the present  case
therefore,  is whether on the evidence which has  been               led,
the  court  can be satisfied beyond  reasonable  doubt   that
adultery was committed by the wife with respondent No. 2  at
Patna  between                July 25, 1950, and July 28,  1950.   In          our
opinion   the       facts      proved are   quantitatively         and
qualitatively  sufficient to satisfy the test laid  down  by
the House of Lords in Preston Jones Case (2).  The wife went
to  Patna and stayed with respondent No. 2 under an  assumed
name.   They  occupied  the same room, i.e.,  room  No. 10.
There  was  undoubtedly              a guilty  inclination          and  passion
indicated by the conduct of respondent No. 2 and there is no
contrary indication as to
(1) [1951] 1 All E. R. 804.
(2)[1951] A.C. 391, 417.
the inclination and conduct of the wife.  On the other    hand
her  conduct  as  shown by  the  evidence  is       so  entirely
consistent  with her guilt as to justify the  conclusion  of
her  having  committed adultery with respondent            No.  2   and
therefore  the finding of the Courts below as to  the  guilt
should be reversed.
We  would,  therefore,  allow this  appeal,  set  aside       the
judgment and decree of the High Court and pass a decree nisi
for  dissolution of marriage.  As adultery has       been  proved
respondent  No. 2 shall pay the costs in this Court  and  in
the Courts below.
                   Appeal allowed.

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