CHAMPA GOURI Vs. JAMANDAS AMICHAND

JUDGEMENT

(1.) This appeal is filed under Section 28 of the Hindu Marriage Act, 1955 by a wife aggrieved by a decree for divorce The husband filed an application O. P. 225 of 1952 in the court of the Subordinate Judge, Vijayawada under Section 13 ot the Hindu Marriage Act seeking divorce against his wife (first respondent in the O.P.) on the ground that she was living in adultery with the second respondent. According to the wife, she had to leave the husband on account of his cruelty. She went to her native place Jamnagar and filed a suit O.S.366 of 1962 in the Minsif's court against the husband praying for a decree for separate maintenance. In the said suit, the husband raised a defence that the wife was unchaste and leading an adulterous life. Subsequent to the institution of the maintenance suit by the wife at Jamnagar, the husband in his turn filed the petition for divorce in the Court of the Subordinate Judge, Vijayawada. The trial of the maintenance suit at Jamnagar was concluded before the commencement of the trial in the divorce petition at Vijayawada.

(2.) The Jamnagar munsif rejected the husband's plea as regards adultery on the part of the wife and accepting the wife's plea of ill-treatment, decreed the suit for maintenance. In the divorce petition, the husband again sought to substantiate the plea of adultery on the part of the wife on practically the same evidence, except with certain developments. As the judgment of the munsiff in the maintenance suit does not operate as res judicata in the petition for divorce at Vijayawada, the issue regarding adultery was tried afresh but on this occasion, the Subordinate Judge, Vijayawada, upheld the plea of adultery and granted a decree for divorce.

(3.) The main question for consideration in this appeal is whether the husband established his plea of adultery as a ground for divorce. Under Section 13 (1) (i) of the Hindu Marriage Act, the petitioner should establish that the respondent "is living in adultery". Before considering the evidence and the circumstances of the case it is necessary to refer to the guiding principles on adultery and the standard of proof required under law. It is now settled law that the expression "living in adultery" indicates that something more than a single or isolated act of adultery should be. established. "For purposes ot relief in the Divorce Division, adultery may be defined as consensual sexual intercourse between a married person and a person of the opposite sex not the other spouse, during the subsistence of the marriage. To succeed on the issue of adultery it is not necessary to prove the direct fact, or even an act of adultery in time and place, or even necessarily the name of the person with whom the respondent is alleged to have committed adultery ; for it were, in very few cases would that proof be attainable ; it is rarely indeed that parties are surprised in the direct act of adultery, and such evidence is looked at carefully- In nearly every case the fact is inferred from circumstances which lead to it, by fair inference, as a necessary conclusion and unless this were so held, no protection whatever could be given to marital rights. The Court must be satisfied that there was something more than opportunity before it will affix guilt. Evidence of a guilty inclination or passion is needed in addition. As regards burden of proof it rests throughout on the person alleging adultery there being a presumption of innocence. Reference to the statute shows that the standard of proof is that the Court must be "satisfied on the evidence". A suit for divorce is a civil and not a criminal proceeding and the analogies and precedents of criminal law have no authority in the divorce court, which is a civil tribunal. As far as the standard of proof is concerned, adultery, like any other ground for divorce, may be proved by a preponderance of probability"