OLGA THELMA GOMES Vs. MARK GOMES

JUDGEMENT

(1.) This is a Reference under Section 17 of the Indian Divorce Act for confirmation of a decree nisi for dissolution of marriage between the petitioner Olga Thelma Gomes and her husband Mark Gomes. The petitioner filed the petition for dissolution against her husband on the allegation that her husband was guilty of adultery coupled with desertion for more than two years and also on the allegation that her husband was guilty of adultery coupled with cruelty. From the marriage certificate which has been produced in this case it appears that the petitioner was married to the respondent on 26-4-1936, at St. Francis Xavier Church at 68, Bow Bazar Street according to Christian rites. As a result of the marriage one daughter was born to the petitioner. Upon the evidence which has been believed by the court below the petitioner and her husband lived happily for some time and their last matrimonial home was at premises No. 38 Beckbagan which is within the jurisdiction of the District Judge of 24-Parganas. The petitioner states on oath that both she and her husband have been living in India since their birth and both of them are Indian Christians. The court of the District Judge, 24-Parganas, therefore, has jurisdiction to make a decree for dissolution of marriage under Section 2 of the Indian Divorce Act.

(2.) On the merits the petitioner's case is that she lived quite happily with her husband up to the end of the year 1954 but from 1955 her husband became cold and indifferent towards her. Very often he used to return home at night in a drunken condition and on some occasions he did not return home at all. In her evidence she states that on 2-6-1955, her husband wanted to go away for the night alleging that he was going out on a pressing business. As she protested, her husband slapped her on her cheek, gave her a push as the result of which the petitioner fell down and sustained a bleeding injury on her forehead. Her neighbour, one Mrs. Mathanda, gave her first aid. She further states that she heard from Mrs. Mathanda that her husband was living at premises No. 105, Collin Street with girls of bad repute and Mrs. Mathanda told the petitioner that she got this information from one of her (Mathanda's) friends Warned J. C. Gomes. On 20-7-1957, the petitioner was taken by Mrs. Mathanda to J. C. Gomes and at the request of the petitioner J. C. Gomes knocked at the door of the respondent who opened it and while the respondent was having a talk with J. C. Gomes the petitioner rushed inside the respondent's bed room and found a girl lying in his bed with her body covered with a sheet up to the throat. In support of this statement the petitioner has examined Mrs. Mathanda as P. W. 2, and also J. C. Gomes at P. W. 3, both of whom have corroborated the petitioner on these points. Upon this evidence it has been found by the learned Additional District Judge 24-Parganas, that the respondent was spending his nights at premises No. 105 Collin Street with different girls of bad repute. It has also been found that since the 2nd of June, 1955, the respondent did not care to maintain the petitioner or the daughter born of the marriage. Upon this evidence the learned Additional District Judge has found:

(3.) The learned Advocate appearing for the petitioner cited before us the case of Gantapalli Appalamma v. Gantappalli Yellayya decided by a Full Bench of the Madras High Court and reported in ILR 20 Mad. 470. In that case their Lordships had to construe the meaning of the word "adultery" as appearing in Sub-section (4) of Section 488 of the Code of Criminal Procedure which provides that no wife shall be entitled to receive an allowance from her husband under that section "if she is living in adultery". In that case there was nothing to show that the husband was guilty of committing acts of adultery with married women and was therefore not guilty of adultery within the meaning of Section 497 of the Indian Penal Code. Their Lordships however held that the definition given in Section 497 of the Indian Penal Code will not have any application in ascertaining the meaning of the word "adultery" as appearing in Section 488 (4) of the Code of Criminal Procedure. Subramania J., in the aforesaid case made the following observations at page 473: