BABY AMMAL Vs. VARADARAJULU NAIDU

JUDGEMENT

(1.) This appeal has been instituted by Baby Ammal, the respondent, from the judgment and decree of Venkatadri J in Varadarajulu Naidu v/s. Baby Ammal, (1964) 2 M.L.J. 187. The text of the report itself provides all the essential facts of the appeal. It is sufficient for us to observe, very tersely, that the single issue of fact which is involved in the entire proceeding is, whether the appellant, Baby Ammal, was living in adultery with one N.S. Mani, which would admittedly clothe her husband, Varadarajulu Naidu with a right to obtain a dissolution of the marriage on the ground of adultery, under S. 13(1) of Act 25 of 1955. This issue is entirely an issue of fact, dependent on the merits and the probabilities of the evidence. The learned Judge Venkatadri J. has referred to certain decisions of English courts wherein the broad principles of proof of this matrimonial offence have been stated, such as Davis v/s. Davis, (1950) 1 A.E.R. 40, Getty v/s. Getty, (1907) L.R. 17 Pro. Div. 334, and Riches v/s. Riches, (35) T.L.R. 141, and the dicta of Denning L.J. in Miller v/s. Ministee of Pensions, (1947) 2. A.E.R. 3721 It is not necessary for us to recapitulate these passages or to proceed into any further discussion of the legal principles themselves they are well settled and this area of the law has suffered and undergone very little alteration, in the course of the proceeding half century or so. To put it very briefly though the proceeding is civil in character, nevertheless proof of adultery is in a certain sense, in a peculiar category of the facts, which have to be established in order to obtain relief. As Denning L.J. observed, the degree of proof "need not reach certainty, but it must carry a high degree of probability". The language of Sir Williams Scott in a very early decision was that "the circumstances must be such as would lead the guarded discretion of a reasonable and justman to the conclusion". These English decisions usually stress the cumulative effect of the circumstances of the matter, for the simple reason that adultery can very rarely, if ever, be proved by direct evidence, it is generally established by circumstantial evidence, and the rules and principles governing consideration circumstantial evidence, will broadly apply to proof of this particular fact as well.

(2.) Having said all this, we may very briefly refer to the major probabilities of the evidence upon, which we are fully convinced that adultery was established in this case to indeed a high degree of certainty. One very significant criterion which had to be kept in mind, in judging the evidence, is the social grade in which the alleged offence is said have occurred and the probabilities connected therewith. As is well known, the social characteristics and norms of behaviour vary from country to country and we must be concerned with the probabilities in relation to our own country, the social grade of the parties, and the kind of conduct which would be probable or likely in such a stratum of society (Vide Subbarama Reddiar v/s. Saraswathi Ammal : (1966) 2 M.L.J. 263.

(3.) There is disinterested oral evidence in this case, as detailed by the learned Judge, to prove that the appellant left the respondent, or that she at any rate parted from him, and lived in her village with her mother for some time, without making any attempt to resume matrimonial living, and was later living with one N.S. Mani in Washermenpet of the city. As this locality has nothing to do either with the village of the appellant and her mother, or with the village of her husband, respondent, learned counsel for the appellant is constrained to concede that, if the facts did establish that the appellant was living with N.S. Mani in one house in Washermenpet, that is virtually overwhelming proof of adulterous living or illicit intimacy. There is no other relationship of any kind between N.S. Mani and the appellant, and no conceivable reason why the appellant should be living with this man, unless the relationship between them was sexual in character.