AMBAL BAGYAM Vs. RAMAYYA PADAYACHI

JUDGEMENT

(1.) This appeal is by the wife whose marriage with her husband has been dissolved by an order of the learned Subordinate Judge of Mayuram in an application filed by the husband for divorce under Act 6 of 1049, Section 5(1) (b).

(2.) Section 5(1) (b) is in the following terms:

(3.) It is the finding of the learned Subordinate Judge that the respondent however has succeed ed in establishing that the appellant had keen keeping the said Pavadai Chettiar as her paramour and that the said Pavadai Chettiar had been keeping the appellant as his concubine. According to the learned Subordinate Judge, four pieces. of evidence would seem to prove the fact of this concubinage of the appellant with the said Pavadai Chettiar. The first piece of evidence referred to in paragraph 5 of his judgment is that of P.W. 1, the husband, as having seen his wife and Pavadai Chettiar in a compromising situation. The learned Subordinate Judge has rejected this part of the evidence of P.W. 1, the husband on the ground that it is not mentioned in the petition specifically and that it is not spoken to by the Sub-Inspector, P.W. 7 or any other witness for the matter of that. Therefore the mention by P.W. 1 of his having seen the appellant and Pavadai Chettiar in a compromising situation has not been accepted by the- learned Subordinate Judge. I should think he has acted very correctly in having rejected that part of the evidence of P.W. 1. The next piece of evidence referred to by the learned Subordinate Judge and relied upon by him appears to be the deposition of P. Ws. 2 and 4 to 6 to the effect that the appellant's father and Natesa Padayachi, went and complained to the witnesses that the respondent was missing, that thereafter there was a search party consisting of these witnesses. P. Ws. 2 and 4 to 6 and that they went by train and some by cycles and searched at various places including three cinemas in Mayuram and found after all the girl in company with Pavadai Chettiar on the road in Kornad. Having been found in company with each other, the girl is said to have been sent back with her father and Pavadai Chettiar was also sent away separately. Though the learned Subordinate Judge came to the conclusion that there was no sufficient reason to discredit the evidence of these witnesses which, according to him seems to contain a solid substratum of truth, I do not think that in the nature of things it is safe to rely upon the evidence of these witnesses in order to prove concubinage, which has to be established positively and affirmatively by the person who seeks relief from the Court on that ground for a dissolution of a sacred tie between himself and another woman. I am inclined to agree with the points of attack that the learned counsel for the appellant has made against these witnesses. P.W. 2 is not a man of much status and means. Nothing is shown as to why the appellant's father should have gone and complained to this particular witness when the appellant was found missing and why this witness should have taken all the trouble to go by train in search of this missing woman is also not explained. P.W. 4 is admittedly a close relation of the petitioner. He stands in the position of a first cousin to the respondent-petitioner and P.W. 5 is also another cousin of. the respondent. It is in evidence that he P.W. 5 was convicted in a prohibition case and sentenced to three months' imprisonment. The remarks made against P.W. 2 would apply equally to P.W. 6. He is not a man of means and why he should have taken so much interest in having gone about in search of a woman who had attained majority and who was said to have eloped with another person is not quite explicable. Even assuming for arguments sake that there is scope for relying upon the evidence of these four witnesses, P. Ws. 2, 4, 5 and 6 still in my opinion, any reliance placed upon the evidence of these witnesses will not carry the case of the respondent any further. It will go only to establish that there has been a stray act of elopement by the appellant with one Pavadal Chettiar and they were found together after such elopement. The learned counsel for the respondent would however want me to accept his contention that this elopement could not have been an isolated or a single act. According to him, it postulates a prior arrangement or agreement and a continuous understanding that one should be the concubine of the other and the other should be the paramour of the one. He further argues that this elopement ought not to be considered as a mere casual act between two parties whose passion had run up to a certain degree which in turn forced them to elope in order that that passion might be satisfied, and that the natural and proper inference should be that this elopement is the result of a continuous course of conduct of intimacy between the parties. Therefore the learned counsel for the respondent would urge that this should be considered and construed to be nothing short of concubinage of the appellant with the said Pavadai Chettiar. I must say that it is difficult for me to agree with the contention of the learned counsel for the respondent which lays down a very wide proposition. I think that this mere elopement can never be sufficient to constitute any continuous course of conduct of any criminal intimacy between the appellant and her supposed paramour, so as to constitute a state of concubinage. For constituting concubinage between a Hindu wife and another Hindu gentleman, something more than what has been urged before me by the learned counsel for the respondent would seem to be necessary. The elopement might have been just for satisfying the passion of each other. It might also be the result not of any continuous course of intimacy between the appellant and the so-called paramour but it might have been arranged just with a view to have one single act of adulterous intercourse. Learned counsel for the respondent would urge that we should infer that elopement is always the result of a continuous course of conduct of intimacy between the parties, which amounts to concubinage. If concubinage has already come into existence there will be no need for any elopement. I do not think that it can be always postulated as a rule or the natural inference that when a couple, who are infatuated with each other resort to elopement, concubinage becomes proved. Granting that it has been proved that the elopement was true, still I do not think that it is possible for me to hold that the respondent in this case has established that his wife has been the concubine of another person by means of any acceptable evidence.