Decided on August 16,1963

P.M.ISAAC JOHN Appellant

Referred Judgements :-


Cited Judgements :-



- (1.)THIS is a reference under Section 17 of the Indian Divorce Act for confirmation of the decree for the dissolution of a marriage. The petitioner, while employed as a lieutenant in the army, married the first respondent at Poona on the 11th July 1949. The latter lived for a time with the petitioner, but on occasions, especially when the petitioner was posted in what are called non-family stations, that is where no accommodation for families is provided she used to go to her mother's' house at Chombala in Badagara. In that very house, the co-respondent, who is said to be a friend of the family and was no relation, was also living. According tc the petitioner, the first respondent was in illicit intimacy with the co-respondent and a child was born to her on 25-3-1954 in adulterous relationship with him. Such relationship continued, whenever and so long as the first respondent lived at chombala until the co-respondent left the house by the year 1958. On these averments the petition was presented under Section 10 of the Indian Divorce Act for the dissolution of the petitioner's marriage, on the ground that the first respondent has been guilty of adultery. The two respondents denied the charge. The district Judge found the case of adultery to be proved, repelled an argument of condonation of adultery and gave a decree as prayed, for.
(2.)IT was common ground, that the co-respondent, a bachelor aged about 38, was living in the house at Chombala from June 1950 till the year 1958, the other instates of the house being the first respondent's mother, and the first respondent's brother who had been Undergoing treatment at a mental hospital and had been discharged but was still not of sound mental condition. The reason for the co-respondent's residence at Chombala house does not appear to be quite convincing. He had his house not far away, but it is said, that he was all alone there after his sisters had been married and that therefore as a friend of the first respondent's family he took up residence with the first respondent's mother who was practically alone. It was to this house at Chombala and not to the petitioner's family house at Trichur, that the first respondent came whenever the petitioner was transferred to non-family stations. We have it on the evidence, that the bedrooms in that house occupied by the two respondents during their stay, were adjacent rooms with an apology for a door for communication which had no shutters. After one of those periods of separation, the first respondent joined the petitioner at Kirkee on the 20th August, 1953, a date averred in the petition and sworn to by the petitioner. The averment as to the date was not denied by the first respondent in the counter. At the trial, as R. W. 1 she made an attempt to make out that she returned early in August, 1953, in the first week of that month or so, an attempt which did not succeed. She had also a story to tell that in December, 1953, when she was living with the petitioner, a gynaecologist examined her and pronounced in the hearing of the petitioner that she was then in the 5th month of pregnancy: but no attempt was made to prove this. Quite against the petitioner's wishes according to him, she insisted on leaving for Chombala and in February 1954 came to Chombala for her confinement Then she has another story to build, of premature delivery. She said that she was advised by sister Freeda, a midwife, that she had to be delivered of the child immediately to save her life and that accordingly she resorted to some treatment for inducing labour pains which failing p. W. 5 Dr. Bava Abraham attended on her on the 3rd day and the child was born. As seen from Ext A-3, a letter which P. W. 5 wrote to the petitioner, some time later in answer to his enquiry, and as sworn to by her, it was a forceps case "with two or three stitches" and "the baby looked full-term'. It appeared to be a clear case and P. W. 5 said that from her experience, she could say even by a casual look, whether delivery was premature or not There is nothing in her cross-examination to shake her testimony. According to the first respondent who it may be noted, had been a nurse by profession, the delivery was 263 days after conception, which does not appear to be true even on her showing that she conceived early in August, for then it would be only 237 days and making allowance for 20 days up to the 20th August, it was but a period of 217 days. In either case, the child would not have looked full-term. We are satisfied that conception had taken place while she was living at Chombala and before she joined the petitioner. There was no case for any one that the petitioner had been to Chombala or had met the first respondent, after she left him in April 1953 and before she returned. There is no denying the fact, that opportunities for adultery were ample at Chombala house and it does not appear that her mother or her invalid brother had at any time objected to the co-respondents continued residence there, when she was also there. Indeed, P. W. 6 an uncle of the corespondent aged more than seventy, once made bold to open this topic with the first respondent's mother but he was asked to mind his business. P. W. 2, a close neighbour, who lived in the same compound, testified to the behaviour of the respondents as man and wife. He was present when the first respondent was taken to the hospital for confinement and he said that the co-respondent also came to the hospital and was there. P. W. 6 also testified to their undue familiarity and mentioned a few episodes. On these materials we are satisfied, that the first respondent had committed adultery with the co-respondent
(3.)THE argument of condonation remains. This plea though not taken specifically in the first respondent's counter was urged at the hearing and may be said to arise in view of the interval of time that had elapsed before the petition for dissolution was filed. It may be mentioned that the first respondent went over to the petitioner with the child before the end of October 1954. pa seeing the child, the petitioner said, his suspicion was confirmed, but that he did not Want to "break up my (his)relationship because of my (his) official status and family reputation. " In 1955 october when he was transferred to a non-family station, ho wanted her to go to trichur and reside there, but she did not agree and wanted to go to Chombala instead. Then the petitioner insisted that the corespondent should be asked to go away, and she agreed; but she did not send him away. In January 1956, the petitioner went on leave to Chombala: without previous intimation and there found the corespondent sleeping in her bedroom. The petitioner then asked her to go with him to Trichur, but she excused herself saying she was ill. The petitioner thereupon stopped making remittances to her for three months, and then she went to Trichur but only to return to Chombala about two weeks after, and lived there. When the petitioner came on leave to Trichur in 1958, be sent her Ext. A-5 registered letter on the 14th July, 1958, alleging most of these facts and purporting to sever "all connections with her". In that letter he told her plainly that the child was the co-respondent's and complained that instead of living with his mother at Trichur as directed she was still living in adultery with the corespondent. The first respondent did not reply to this. In March 1959, the 1st respondent came to Dehra Dun and created a scene, when in order to save his reputation as the petitioner said, he agreed to pay her Rs. 75/- a month; she then returned to Chombala. He paid her till October 1959 as agreed and filed this petition. In the meantime, even in November 1955, the petitioner had written Ext. A-9 to the, pastor of the C. S. I. Church, Trichur, to request the pastor at chombala to arrange for a divorce. The pastor sent him a reply Ext. A, 10 stating that though the allegations were believable, no divorce could be had as the christian religion did not sanction it. This is the history of the petitioner's married life after the birth of the child. It may be recalled that the co-respondent left chombala house only in the year 1958.

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