Panchapakesa Ayyar, J. -
(1.) THIS is a long -drawn -out petition, having a tangled history which must be set out briefly for the purpose of understanding the facts and issues involved.
(2.) THE petition is by Dr. Dwaraka Bai, M.B.B.S.. an Indian Christian doctor of Guntur, now aged 43, for divorce against her husband Professor Nainan Mathews M.A., B.L., a retired Indian Christian Professor, now aged 60, and till recently 'a regular student of the United Theological College, Bangalore. The petitioner took her M.B.B.S. degree in Madras in 1935 and began practising at Guntur where her father also is a doctor. When she became nearly 36 years old, i.e., in the beginning of 1946, she felt an urgent desire to get married. She, therefore, wanted to find out a suitable man to marry. One Mrs. Joseph, a Syrian Christian doctor of Bapatla, in Guntur district, told her about the respondent, Nainan Mathews, and told her also that he was by age, education, culture, family and character eminently fitted to be her husband. So, a long paper correspondence began between Mrs. Joseph and the respondent and then between the petitioner and the respondent. The petitioner told the respondent in Ex. P. 27 dated 23 -2 -46 that she had acquired house, lands, and cash worth some Rs. 80,000 and had been an Honorary Magistrate. She finally became violent in her passion for the respondent (see Exs. P. 33, P. 34 etc.) in her letters and was willing to overlook the disparity in age. The respondent was far more cool and calculating. He told her bluntly in his letters that he had undertaken various responsibilities towards his step -brothers which were not legally or morally binding on him but had been taken up by him on Good Samaritan principles. So, he wanted her at first to give him a dowry, (really bride -groom's price) of Rs. 15,000/ - and finally demanded an irreducible minimum of Rs. 6000/ -. The petitioner who had made good money by her practice and was getting more than a thousand rupees a month by 1946, and had also acquired house and lands and car and had much cash lent out for interest, was quite willing to give a good sum as bride -groom's price. The respondent told her in his letters that both by culture, character and wealth she appeared to him to be a desirable mate but that there was one difficulty he had to overcome, namely, his family which was an ancient Syrian Christian family and claimed to be the descendants of Nambudri Brahmins converted by St. Thomas in the first century A. D. Naturally the family wanted him to marry only a Syrian Christian, and there was also one Syrian Christian Inspectress of Schools in sight besides an M.B.B.S. lady of doubtful character but of undoubted wealth. The respondent, in his letter to the petitioner, said that he did not want to marry the lady of doubtful character and of undoubted wealth. The petitioner wrote to the respondent (see Ex. P. 34) that if he married the Syrian Christian Inspectress lady, the first marriage present he would receive would be her corpse, meaning that she would commit suicide like a Juliet of the 20th Century. The respondent assured her that there was no need to take any such desperate step as he had resolved to marry her and he was not the man to go back on his resolve. (3) Eventually negotiations progressed to the usual climax, and the respondent arrived with his four brothers at Bapatla on 20 -4 -1946. The petitioner ran up from Guntur to Bapatla in her car in her eagerness to see her would -be husband and pour out her love to him. But, when she met him in the night (the time is given by her as 9.30 p.m. and by the respondent as 12 -30 a.m. on the night of the 20th), in her own words, she was shocked to find that he looked much older than the figure in the photo that was sent to her by him. In their anxiety for the marriage, the petitioner and the respondent had sent to each other photos taken several years before. That is perhaps an illustration of the maxim that in love and war truth is the first casualty. Anyway, the petitioner was thoroughly disappointed at the physical appearance of the respondent whom she considered to be an ugly old man, very much dilapidated and not coming up to his own specification. But she had already made 'all preparations for the marriage and had told one and all, and the bride -groom too had arrived and she had to go on with the marriage, as remarked by the learned Judges in O. S. A. No. 73 of 1947. The marriage was celebrated at a cost of Rs. 4000 and with great pomp, at Guntur, on 22 -4 -1946, advancing it three days earlier than the original date fixed. But, as usually happens, the pomp did not contain the substance. The voice of laughter hid a heart of sadness so far as Dwarakabai was concerned.
4. That night, after she went to the nuptial chamber upstairs, with the respondent, according to her, she could not have sexual Intercourse with the respondent owing to her being in menses. But, she did not admittedly, tell him about the menses till both entered the nuptial chamber at night. According to her, when the respondent wanted to have sexual intercourse with her, she told him that she was in menses and could not have it that day. But he insisted on having intercourse with her, and suddenly removed her clothes and committed sodomy on her. She got upset in body, mind and soul by this unnatural act and could not attend to her work for several days and had to engage a substitute (the substitute was not examined or even named). On subsequent days also she could not have sexual intercourse with the respondent owing to her nervous state. But, some days after the marriage, one night the respondent pretended that he was having a stomachache, at 4 a.m. and, when she was administering to him some medicine to relieve his supposed stomachache, he suddenly began fondling her parts, and she thought that he was wanting to have sexual intercourse and angrily jerked him off. On 7 -5 -1946, the respondent left her house in a rickshaw intending to go to Chirala with one Verghese, a Syrian Christian Professor of the Andhra Christian College, Guntur and his wife Mrs. Verghese. But the petitioner who was already aggrieved at Mrs. Verghese going and taking away her wedding ring on the ground that it was hers, lent to the respondent went and told the Verghese? that they should not take the respondent to Chirala with them, and so, they did not take him; and the respondent remained in the Vergheses' house and sent a registered letter, dated 9th May 1946 with false allegations to her and she denied all those allegations.
5. Thereafter according to the petitioner, all attempts at reconciliation failed, 'and she filed O. M. S. No. 34 of 1946 on the file of this Court for a divorce on the ground of cruelty by sodomy and desertion, sought to be covered up by clever letters inviting her to return to him but with no real intention to take her or live with her. That petition was heard by Clark J. and dismissed on 31 -7 -1947. Clark J, disbelieved the case of cruelty by sodomy, or even by attempt to commit sodomy, alleged by the petitioner. He relied on the observations of Lord Hanworth M. R. in - - 'Statham v. Statham',, (1929) Probate 131 (A), to the following effect:
"It is quite clear from the authorities cited that cogent evidence is required to overcome the presumption of innocence where such a charge is made. As Sir Crosswell said in - - 'N. v. N., (I860) 3 Sw. & Tr. 234 (B)', 'The crime here imputed is so heinous and so contrary to experience, that it would be most unreasonable to find a verdict of guilty where there is simply oath against oath, without any further evidence, direct or circumstantial, to support the charge'. The same principles apply in my judgment in divorce proceedings as in a criminal Court, for it is the very nature of the charge, easy to make and difficult to repel, which demands such proof as is adequate to establish the guilt of the person charged in the minds of reasonable men'."
6. The petitioner took the matter in appeal. Rajamannar C. J. and Viswanatha Sastry J. heard the appeal O. S. A. No. 73 of 1947 and by their Judgment dated 13 -9 -1950, dismissed the appeal with costs. They disbelieved the petitioner's story of attempted sodomy and observed further that they were not also impressed with the evidence adduced on her behalf about her mental prostration, nervous breakdown etc. after the wedding night. They went on to observe: "The impression left on us is that as soon as she saw him she was intensely disappointed, shocked as she says and was practically compelled by circumstances to go through the marriage. She, however, felt afterwards that it was impossible to be the wife of the respondent except in name, and the respondent was obviously insisting on his rights as a husband. There was no other go for the appellant to be free from the shackles of this unfortunate marriage except to file a petition for divorce. As the law stood, it was necessary to allege one or other of the grounds mentioned in Section 10 of the Divorce Act to obtain a dissolution of the marriage. That was why resort was sought to the story of an attempt on the part of the respondent to commit an unnatural offence. We have no hesitation in holding that the appellant has failed to establish her case even of an attempt at sodomy. She will therefore be entitled to no relief either for divorce or for judicial separation."
7. The petitioner has filed the present petition thereafter on 15 -10 -51, changing her case and asking for dissolution of her marriage with the respondent, this time on the ground of his alleged adultery with one Mrs. H. living in No. 72, Wallajah Road, Madras, sexual perversity, cruelty and desertion. The respondent contested the case vigorously and claimed that the petition should be dismissed with compensatory costs under Section 35 -A, Civil P. C.
8. The following issues were framed:
1. Has the respondent deserted the petitioner for upwards of two years prior to the date of the petition?
2. Has the respondent been guilty of cruelty to the petitioner?
Has the respondent committed adultery as alleged in paragraph 15 of the petition?
(3.) IS the petition barred by 'res judicata?;