SUBBARAMAIAH Vs. VENKATA SUBBAMMA

JUDGEMENT

(1.) This is an appeal under clause 15 of the Letters Patent from the judgment of Mr. Justice Basbeer Ahmed Sayed in C. M. A. No. 33 of 1952 which reversed the order of the Subordinate Judge's Court, Narasaraopet, granting dissolution of the marriage of the appellant with the respondent. The facts are simple and may be briefly stated: The respondent is the appellant's wife. They were married in or about the year 1944 and the marriage was consummated about two years thereafter. The appellant averred in his petition that in or about April 1950, while the respondent was staying with her foster mother at Kondramutla village, she eloped with one Venkatanarasu with whom she was living at Guntur till July 1950 and that some time thereafter -the respondent returned to the place of her foster mother. The appellant filed a petition on 2-8-1950 under section 5 (1) (b) of the Madras Hindu (Bigamy Prevention and Divorce) Act (VI of 1949), hereinafter referred to as the 'Act' for dissolution of his marriage with the respondent on the ground that she is a concubine of the said Venkatanarasu and that both of them are continuing to have illegal intimacy even after their return from Guntur. The respondent's case, on the contrary is, that she had never any illicit intimacy with Venkatanarasu but that she was faithful to her husband all along. The learned Subordinate Judge of Narasaraopet held that the version of the appellant, namely, that the respondent was leading an adulterous life with Venkatanarasu is true and granted the petition for dissolution of the marriage of the appellant with the respondent. Against this order, the respondent filed an appeal in the High Court of Madras which was disposed of by Mr. Justice Basheer Ahmed Sayeed. The learned Judge held that no case was made out for ordering dissolution of the marrige and allowed the appeal. Against the said judgment, the husband filed the above appeal. The petition for dissolution of marriage was founded on section 5 (1) (b) of the Act and it is necessary to set out its provisions:

(2.) Under this section, a husband would be entitled for a dissolution of the marriage if his wife is a concubine of any other man or if the wife is leading the life of a prostitute. In this case the husband explicitly alleged that his wife is leaving in concubinage with Venkatanarasu. We have therefore to ascertain the exact connotation of the experssion 'concubine' occurring in Section 5(1) (b) of the Act. In Chamber's Twentieth Century Dictionary, the word 'concubine' has been defined as "one iesp. a woman) who cohabits without being married." The Concise Oxford Dictionary defines the word as a "woman who cohabits with a man, not being his wife; (among polygamous people) secondary wife." In the law Lexicon of British India compiled and edited by Mr. P. Ramanatha Aiyar, 1940 edition, the word is defined as follows : "A woman who cohabits with a man without being his wife, a kept mistress; a sort of inferior wife among the Romans, upon whom the husband did not confer his rank or quality.". Apart from these dictionary meanings, the meaning of the word was considered at some length by their Lordships of the Privy Council in Bai Nagubi v. Bai Monghibai ' though in a different context. The question for decision before the Privy Council was as to the right of a concubine of a deceased Hindu to maintenance out of his estate. A person professing the Hindu faith during the last five years of his life kept a woman continuously as his concubine, almost entirely in a house which he rented in her name, and during that period the woman consorted only with the deceased and bore him a child and she remained chaste after his death. On those facts, the Privy Council held that the woman was entitled to maintenance out of the estate of the deceased. During the course of the discussion, their Lordships posed the question for determination as to whether the appellant was entitled to maintenance out of the estate of the deceased, and that depended upon whether, upon the facts proved, she was in a strict sense, according to the Hindu Law, as prevailing in Bombay, the 'permanent concubine' of the deceased. In the further discussion that followed they made the followin'g pertinent observations:

(3.) Their Lordships proceeded to state that the right to maintenance was limited to those women, who, amongst Hindus, were properly called avaruddha; a word ordinarily and accurately rendered by 'concubine' in English. The word 'concubine' connotes a state of living together as man and wife without their being married. It does not mean a sporadic '.apse from virtue. It cannot be equated to elopement which means a woman running away from her husband or her home with a paramour or lover. There is a clear distinction between concubinage and elopement or adultery. The question then is when does a woman become a concubine ? When a woman consents to cohabit with a man generally, as though the marriage relationship exists between them, and actually commences cohabiting with him in pursuance of that understanding she becomes his concubine, or in other words, his kept mistress. This postulates the existence of an intention on the part of the man and woman to live together, or to put. it differently, it depends upon the state of mind with which they begin to live together. It would be enough to get relief under S. 5(1) (b) of the Act if at the time of the application the wife had still that intention. The real difliculty, however, is not so much in the definition of the word 'concubine' as in its application to the facts of a particular case. It might be argued, as in fact it was in this case, that it may not be possible always to divine the intention of the parties or to adduce evidence as to its existence. It may be so, but it must be left to be determined judicially on the facts of each case. It has now to be considered whether on the evidence adduced in the present case it has been established that the respondent is the concubine of Venkatanarasu as alleged by the appellant.