SUBBARAMA REDDIAR Vs. SARASWATHI AMMAL

JUDGEMENT

(1.) THIS letters Patent Appeal has been instituted by one Subbarama Reddiar, the respondent before Venkatadri, J. in C. M. S. A. 9 of 1964, form the judgment and decree of the learned Judge. We may very briefly state that the proceeding before the learned Judge was of the nature of a second appeal, in respect of a petition under Ss. 10 (f) and 13 of the Hindu Marriage Act (Act 25 of 1955) for a decree for judicial separation originally before the learned Principal Subordinate Judge, chingleput.

(2.) THE learned Principal Subordinate Judge of Chingleput went into the fact of the evidence before him, elaborately on the merits, and held that the act of adultery alleged by the husband (appellant) against his wife Saraswathi Ammal (respondent), in the occasion in question, was legally proved, and hence that the husband was entitled to a decree for judicial separation; under Section 10 (f) of the hindu Marriage Act. the matter went up on appeal to the learned District Judge, chingleput (C. M. A. 64 of 1962), and the learned District Judge, Chingleput confirmed the judgment of the courts below in the first appeal, in a judgment of some length, which again proceeds to an analysis of the evidence. There can be no doubt that the appeal against this order before the learned Judge (Venkatadri J.)was of the nature of a second appeal. That was held by Kailasam J, in Sathappa chettiar v. Ammaponnu, 1966-1, Mad LJ 102 and if we may say so with respect, we have no doubt whatever that Kailasam J. is correct in his view. Though the proceeding before him was thus of the nature of second appeal, and the jurisdiction of the learned Judge (Venkatadri J.) was indisputably restricted by virtue of Section 100 C. P. C. the learned Judge nevertheless has differed from both the courts below and allowed the second appeal, after the citation of certain english decisions and a further analysis of the facts of evidence, both with regard to the probabilities arising on that evidence, and the credibility of the witnesses.

(3.) TWO main questions therefore arise before us for our determination. It is strenuously contended by learned counsel for the appellant (Sri V. Thyagarajan)that, in view of the explicit and categorical decisions of the Supreme Court and of this court, to which we shall presently refer, the learned Judge (Venkatadri J) had really no jurisdiction to proceed into questions of fact, to re-assess the evidence and to come to any different conclusion. If that is the situation at law, the learned counsel for the respondent is unable to contend that there is any authority for holding that the situation is different because the question of fact is the question of an act of adultery, which has sometimes been characterised as a fact of quasi-criminal character, and therefore requiring a high degree of proof. The second question is, apart from this question of the ambit of interference in second appeal, whether there is any error of law or misapplication of the principles of law in the judgments of the courts below, in their conclusion that the act of adultery was proved against the wife, which might conceivably justify interference with the decree by this court in second appeal. If both these questions are to be answered in favour of the appellant, it would inevitably follow that we must allow this appeal and reverse the decision of Venkatadri. J.