PETITIONER:
EARNEST JOHN WHITE
Vs.
RESPONDENT:
MRS. KATHLEEN OLIVE WHITE AND OTHERS
DATE OF JUDGMENT:
10/03/1958
BENCH:
KAPUR, J.L.
BENCH:
KAPUR, J.L.
BHAGWATI, NATWARLAL H.
GAJENDRAGADKAR, P.B.
CITATION:
1958 AIR 441 1958 SCR 1410
ACT:
Divorce-Adultery-Standard of Proof-Principle-Direct evidence
if imperative-Finding of fact when can be interfered with-
Divorce Act (IV of 1869), ss. 14 and 7.
HEADNOTE:
The appellant sued his wife for dissolution of marriage on
the ground of her adultery.
On the evidence the trial court found that it was not
possible to hold that adultery had been committed, though it
found that one of the letters contained "a large substratum
of truth". The High Court in appeal concurred with the
decision. On appeal to the Supreme Court it was contended
for the appellant that the finding of the courts below was
vitiated because certain pieces of evidence had been
misread, and some others ignored. As a matter of legitimate
and proper inference the Court should not have arrived at
any other conclusion, but that the wife was guilty of
adultery with respondent NO. 2. The evidence showed that the
wife went to Patna and stayed in a hotel with respondent NO.
2 under an assumed name, that they occupied the same room in
the hotel, that the conduct of the respondent indicated a
guilty inclination, and that so far as the wife was
concerned, her conduct was entirely consistent with her
guilt :
Held, that, the nature of the evidence adduced was such as
would satisfy the requirements of s. 14 of the Divorce Act,
and that the finding of the Courts below that an inference
of adultery could not be drawn therefrom must be set aside.
Although it is not usual for the Supreme Court to interfere
1411
on questions of fact, where, however, the courts below
ignore or misconstrue important pieces of evidence in
arriving at their finding, and this Court is of the opinion
that no tribunal could have come to such a finding oil the
evidence taken as a whole, such finding was liable to be
interfered with by this Court.
Held, further, that the words "satisfied on the evidence" in
s. 14 Of the Divorce Act, 1869, imply that it is the duty of
the (Court to pronounce a decree only when it is satisfied
that the case lhas been proved beyond reasonable doubt as to
the commission of a matrimonial offence.
The evidence must be clear and satisfactory beyond mere
balance of probabilities. It is not neccessary and rarely
possible, to prove the issue by any direct evidence.
The rule laid down in Preston Jones v. Preston Jones, [1951]
A.C. 391, lays down the principle that should be followed by
tile courts under s. 7 Of the Divorce Act.
State of Madras v. A. vaidanatha Iyer, A.I.R. 1958 S.C. 61,
Purvez Ardeshir Poonawala v. The State of Bombay, Cr. A.
122 Of 1954, decided on December 20, 1957, Stephen
Seneviratne v. The A.I.R. 1936 P.C. 289, Mordaunt v.
Moncrieffe, (1874) 30 649 and Gower v. Gower [1950] 1 All.
E.R. 804, referred to.
Loveden v. Loveden, (1810) 161 F. R. 648 ; (1810) 2 Hag.
Con. 1,3, referred to.
Preston Jones v. Preston Jones, [1951] A.C. 391, relied
upon.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil AppeAl No. 19 of 1956.
Appeal from the judgment and decree dated July 21, 1954, of'
the Patna High Court in Letters Patent Appeal No. 24 of
1951, arising out of the judgment and decree dated May 15,
1951, of the said High Court in Matrimonial Suit No. 2 of
1950.
M. C. Setalvad, Attorney-General for India, N. C.
Chatterjee and P. K. Chatterjee, for the appellant. Both
the Courts below have failed to draw the proper inference of
the commission of adultery, which should legitimately have
been drawn from the facts proved. Both the Single Judge and
the Appeal Court failed to take into consideration some
pieces of evidence and certain other pieces of evidence
which were equally important had been misread and
misconstrued and as a matter of legitimate and proper
inference the lower courts should not have arrived at any
other 179
1412
conclusion but that the wife was guilty of adultery and in
such case the interference with the finding of facts below
by the Supreme Court will be called for.
State of Madras v. A. Vaidanatha Iyer, A. I. R. 1958 S. C.
61 and Stephen Seneviratne v. The King, A. I. R. 1936 P. C.
289.
N.C. Chatterjee continued. The judgment of the High Court
suffers from certain serious infirmities and this Court
should not act on the rigid principle that finding of fact
should not be interfered with in the final court of appeal.
Sir William Scott's dictum in Loveden v. Loveden, (1810) 161
E. R. 648, as to " the guarded discretion of a reasonable
and just man" does not mean there should be satisfactory
evidence of the commission of a matrimonial offence. Lord
MacDermott has pointed out in Preston Jones v. Preston
Jones, L. R. [1951] A.C. 391, that if a judge is satisfied
beyond reasonable doubt as to the commission of the
matrimonial offence relied on by the petitioner as ground
for divorce, he must surely be "satisfied" within the
meaning of the enactment, and no less so in cases of
adultery where the circumstances are such as to involve the
paternity of a child. To succeed on an issue of adultery it
is not necessary to prove the direct fact of, or even an act
of adultery in time and place ; for if it were so, in many
few cases would that proof be attainable. It has been
pointed out in a number of cases that rarely the parties are
surprised in a direct act of adultery and such evidence will
have to be disbelieved. Rydon on Divorce, 6th Edn., P. 115;
Douglas v. Douglas, [1951] P. 85: [1950] 2 All E.R. 748. In
nearly every case the fact of adultery is inferred from
circumstances which lead to it by fair inference as a
necessary conclusion. Unless it is so held there will
absolutely be no protection to marital rights. Allen v.
Allen, [1894] p.248, approving Loveden v. Loveden.
Counsel then cited Davis v. Davis, [1950] P. 125: [1950] 1
All E. R. 40. In that case Bucknill, L. J., and Somervell,
L. J., held that when husband petitions for divorce on the
ground of wife's cruelty, it is
1413
unnecessary to introduce any question of the standard of
proof required of a criminal charge. Denning, L. J.,
emphasised that a suit for divorce is a civil and not a
criminal proceeding. The same standard of proof as that
required in criminal cases is not needed. The stringency of
proof required in a criminal court is not necessarily called
for in divorce suit. Lord Merriman's dictum quoting
Churchman v. Churchman, [1945] P. 44, that the same strict
proof is required in the case of matrimonial offence as is
required in connection with criminal offence has been too
widely expressed and should be read in the light of later
judgments.
Recent judgment of the Court of Appeal (Bucknill, L. T.,
and Denning, L. J.,) lays down the correct law in Gower v.
Gower, [1950] 1 All E.R. 804, that the correct approach has
been laid down by Denning, L. J., who observed that the
court should not be irrevocably committed to the view that a
charge of adultery must, be regarded a criminal charge, to
be proved beyond all reasonable doubt. All that the statute
requires is that the court must be satisfied on the evidence
that the case of the petitioner has been proved and it is
submitted that Denning, L. J., has enunciated the correct
principle and the statute lays down a standard and puts
adultery on the same footing as cruelty, desertion or
unsoundness of mind.
N. C. Chatterjee cited also Mordaunt v. Moncrieffe, (1874)
30 L.T. 649.
S. P. Varma, for the respondent. The burden of proof is on
the person alleging adultery and there is always a
presumption of innocence. In any event on a petition for
divorce some strict proof is required of adultery as is
required in a criminal case before a person is found guilty.
Ginesi v. Ginesi, [1948] P. 179: [1948] 1 All E.R. 373.
Applying the dictum of Lord Merriman in Churchman v.
Churchman, [19451 P. 44, the trial court was not satisfied
of the guilt beyond all reasonable doubt. It is for the
trial judge to decide an issue of fact ; unless he has
misdirected himself his finding should not be disturbed.
R. Patnaik, for co-respondent No. 1. Submitted that
1414
the evidence in the case falls far short of the standard of
proof required.
1958. March 10. Tile Judgment of the Court was delivered
by
KAPUR J.-This is an appeal with a certificate under s. 56 of
the Divorce Act (IV of 1869) (hereinafter called the Act)
against a judgment and decree dated July 21, 1954, of the
High Court of Patna dismissing the husband's suit. The
husband who is the appellant sued his wife who is respondent
No. I for dissolution of marriage on the ground of her
adultery with two co-respondents now respondents Nos. 2 and
3. The suit was tried in the High Court by Shearer J., who
dismissed the suit and this decree was on appeal confirmed
by the Appeal Court. The question as to the legality of the
certificate granted was raised but in the view that we have
taken it is not necessary to decide this question.
The husband was married to the wife at Kharagpur on February
3, 1,943, and there is no issue of the marriage. The
parties thereafter resided at "Rose Villa" at Samastipur and
respondent No. 2 was residing with his mother in an
adjoining house called " Sunny Nook". The husband alleged
various acts of adultery between the wife and the other two
respondents. As regards allegations of' adultery of the
wife with respondent No. 3, the High Court has found against
the husband and these findings have not been challenged
before us. The allegations of adultery between the wife and
respondent No. 2 were also held not proved. In appeal
before us the husband has confined his case to the acts of
adultery alleged to have been committed at the Central
Hotel, Patna where the wife and respondent No. 2 are alleged
to have resided together between July 25, 1950 and July 28,
1950, under the assumed names of Mr. and Mrs. Charles
Chaplin. The wife pleaded that she came to Patna solely
with the object of having her tooth extracted and returned
to Samastipur the same day and that she had to come alone as
in spite of her request the husband refused to accompany
her.
1415
Respondent No. 2 pleaded that he came to Patna with his
mother " in connection with seeking employment under the
Superintendent Of Police, Anti-Smuggling Department, also in
connection with mother's tooth trouble and for house hold
shopping ". He also pleaded that he stayed with his mother
in the same room under his own name and not under an assumed
name.
The trial judge found that the wife and respondent No. 2 and
the latter's mother stayed in two rooms in the Hotel Nos. 9
& 10 from July 25, 1950 to July 28, 1950. He accepted the,
testimony of the Manager of the Hotel, Cardoza P. W. 3 and
also of the sweeper Kira Ram P. W. 4. He found that the Wife
and respondent No. 2 were seen by Kira Rain in room No. 10
and also that the party, i.e., the wife, respondent No. 2
and the latter's mother were served morning tea in one room
which they had together but he did not infer any acts of
adultery from this conduct. The document Ex. 8 dated
November 22, 1950, but actually written earlier was held by
the learned Judge to contain " a large substratum of truth
". The Appeal Court (S. K. Das C. J. and Ramaswami J.)
agreed with the findings of the trial judge but they also
were unable to draw the inference of the commission of
adultery front the evidence. In appeal it was contended
that the findings of the courts below. were vitiated because
certain pieces of' evidence had been misread, some ignored
and as a matter of legitimate and proper inference the court
should not have arrived at any other conclusion but that the
wife was guilty of adultery with respondent No. 2.
This Court will not ordinarily interfere with findings of
fact given by the trial judge and the Appeal Court but if in
giving the findings the Courts ignore certain important
pieces of evidence and other pieces of evidence which are
equally important are shown to have been misread and
misconstrued and this Court comes to the conclusion that on
the evidence taken as a whole no tribunal could properly as
a matter of legitimate inference arrive at the conclusion
that it has, interference by this Court will be called for.
(See
1416
State of Madras v. A. Vaidanatha Iyer Purvez Ardeshir
Poonawala v. The State of Bombay(2); Stephen Seneviratne v.
The King (3).
The Central Hotel, Patna, which is alleged to be the scene
of adultery by the wife bad only 10 rooms, which were all
single, but whenever necessary additional beds were put in.
At the relevant time M. C. Cardoza P. W. 3 was employed as
its Manager, Kira Ram P. W. 4 as a sweeper, Abdul Aziz P. W.
5 and Usman Mian P. W. 6 as bearers. Kira Ram identified
the wife as the lady who had stayed at the hotel with
respondent No. 2 but the other hotel servants although they
were shown the photograph of the wife and also saw her in
court were unable to recognize her as the person who stayed
with respondent No. 2. But they did identify him as the
gentleman who had stayed in the hotel along with two ladies.
Examined by counsel Kira Ram stated:
Q. " (Pointing out to the wife) I ask you, do you know
this lady? A. Yes. Q. Did they ever visit your hotel? A.
Yes. Q. How long ago? A. About 9 or 10 months ago. Q. How
long did they stay there? A. About 4 or 5 days. Q. What
room did they occupy? A. Room No. 10 ".
He was unable to say as to the number of beds in room No. 10
nor is there any other evidence in regard to this. He also
stated :
Q. " During their stay for these 4 or 5 days in your
hotel, did you go to clean their bath room ? A. Yes. Q. Did
you see them in that room whenever you went ? A. Yes,
whenever I used to go to sweep the room I found Memsaheb and
Saheb there." (Questioned by the Court the witness said:
Q. "Can you remember was there any other Memsaheb with
these two? A. There was another Memsaheb who lived in room
No. 9.
Q. What was she like young Memsaheb or what ?
A. She was not very old, but she was old."
(1) A. T. R. 1958 S.C. 61, 64.
(2) Cr. A. I 22 Of 1954, decided on December 20, 1957.
(3) A.I.R. 1936 P.C. 289, 299.
1417
And this obviously refers to respondent No. 2's mother. The
evidence of Kira Ram therefore shows that the wife and
respondent No. 2 occupied one room, room No. 10. No
question was put to this witness as to his hours of duty nor
was the manager Cardoza asked anything about it but another
witness Abdul Aziz bearer P.W. 5, was asked about it as
follows:
Q. " What are the hours of work of the sweeper ?
A. He comes at 7 a.m. and he leaves in the evening.He sometimes
goes away at about 11 and 11-30 a.m.or 12 noon".
Similarly no questions were put to Kira Ram about the state
of habillement of the wife and respondent No. 2 and the
witness never deposed about this fact. The learned trial
Judge erroneously thought that when Kira Ram spoke of the
wife and respondent No. 2 lie " speaks as if ' they' were
fully dressed and not en deshabille " and the Appeal Court
took this finding to be " as if this witness's evidence
showed that both of them were fully dressed". The Appeal
Court also seems to have misdirected itself in regard to the
duty hours. It said " the sweeper concedes that he was on
duty from 6 a.m. to 11 a.m. " There is also evidence which
has not been rejected that morning tea was served to all the
three, i.e., the wife, respondent No. 2 and the mother of
the latter in the same room. The statement of Kira Ram that
the wife and respondent No. 2 occupied the same room
receives corroboration from Ex. 6 the hotel bill and receipt
dated July 29, 1950 for room No. 10 in the name of Mr. and
Mrs. Charles Chaplin. This document even though contempo-
raneous with the events under consideration and strongly
corroborative of Kira Ram's evidence and of the statement of
Cardoza that when Mr. and Mrs. Charles Chaplin "stayed in
the hotel, they stayed in their own room " does not seem to
have been brought to the notice of either of the Courts
below. Because of the infirmities pointed out above the
import of the testimony of Kira Ram which has in the main
been accepted by both the Courts below has been missed and
its necessary consequences ignored.
1418
Then there is the evidence as to disappearance of the entry
in the Hotel Visitor's Book which was in the handwriting of
respondent No. 2. This entry was in the assumed name of Mr.
and Mrs. Charles Chaplin from Hong Kong but when he
(respondent No. 2) was asked to fill in the Foreigner's form
the entry was changed from Hong Kong to Samastipur. The
entry itself could not be produced in Court because as
deposed by Cardoza, respondent No. 2 came to the hotel and
by managing to send the hotel servant away from the room
where the Visitor's Book was kept, he tore off the pages
containing this entry. This fact receives support from the
complaint which Cardoza made to the police on December 5,
1950, and the entry in regard to this complaint made in the
Station House Diary of the same date. Both these
documents have been produced as Exs. 1/1 and 1/2. The
significance of this piece of evidence lies in the fact that
it was done after the husband started collecting evidence of
adultery and after lie and his sister had inspected the
entry which according, to his statement was in the
handwriting of respondent No. 2.
The reason of the wife's visit to Patna was tooth trouble.
After her tooth was extracted she did not ,ice her -Dentist
again even though he had asked her to (lo so. Her version
is that she returned to Samastipur the same evening which
the Courts below have not accepted. Thus it shows that she
stayed on at the Central Hotel, Patna for four days with
respondent No. 2 without any reason being given by her and
so far as the hotel bill and receipt Ex. 6 goes, the hotel
charges for her stay were paid by " Charles Chaplin ", i.e.,
respondent No. 2 and not by her. This fact has again
escaped the notice of both the Courts below. And this is
more in consonance with guilt than innocence of the wife.
There are then the statements of J. A. Baker P.W. 8 and T.H.
O'Conior P.W. 9 to the effect that in September 1950, at the
house of O'Connor respondent No. 2 in the presence of these
two witnesses boasted of his having had a good time with the
wife and that she was a remarkable lady ". Respondent No. 2
1419
had also love letters purporting to be from the wife, parts
of which he read out to these witnesses. They repeated the
story to the husband which set him thinking. Shearer J.
held this part of the evidence to be true and the Appeal
Court also accepted it but construed it as showing that
there was no adulterous connection at that time, i.e., in
September or it had ended at the instance of the wife. Even
as it is this finding is not destructive of the husband's
case as to adultery at Patna in the month of July; on the
other hand it supports adulterous relations.
The presence of the mother of respondent No. 2 might have
been a shield against the commission of adultery at Patna
but the document Ex. 8 which has been accepted by the Courts
below to have a substratum of truth just strips it away.
This document is indicative of the mother's attitude towards
the wife. The following extract from this document is
relevant as showing that she wanted the wife for her son:
" How nice it would have been if you had married my son
-David'. On another occasion while having tea along with
her she begged me to leave my husband and go away with her
son who was ruining his life and health and could not settle
down to a job as he could not bear to see me married to
another man."
The presence of the mother would thus be no impediment to
adulterous relations between the two. The wife in the
witness box wholly denied the episode of the Central Hotel
including her stay there, which has deprived the Courts of
her explanation. We are, therefore unable to get any
assistance from her or as a matter of that from respondent
No. 2 as to what happened in the hotel at Patna.
The appellant contends that the only conclusion to be
arrived at upon the evidence taken as a whole is that the
wife was guilty of adultery with respondent No. 2. In other
words the evidence was in quality and quantity such that it
satisfies the requirements of s. 14 of the Act which
provides:
S. 14 "In case the Court is satisfied on the
180
1420
evidence that the case of the petitioner has been
proved....................................................."
The important words requiring consideration are "satisfied
on the evidence ". These words imply that the duty of the
Court is to pronounce a decree if satisfied that the case
for the petitioner has been proved but dismiss the petition
if riot so satisfied. In s. 4 of the English Act,
Matrimonial Causes Act of 1937 the same words occur and it
has been there held that the evidence must be clear and
satisfactory beyond the mere balance of probabilities and
conclusive in the sense that it will satisfy what Sir
William Scott described in Loveden v. Loveden (1), as " the
guarded discretion of' a reasonable and just man ". Lord
MacDermott referring to the description of Sir William Scott
said' in Preston Jones v. Preston Jones (2):
" The jurisdiction in divorce involves the status of the
parties and the public interest requires that the marriage
bond shall not be set aside lightly or without strict
enquiry. The terms of the statute recognise this plainly,
and I think it would be quite out of keeping with the
anxious nature of its provisions to hold that the court
might be "satisfied " in respect of a ground for
dissolution, with something less than proof beyond
reasonable doubt. I should, perhaps, add that I do not base
my conclusion as to the appropriate standard of proof on any
analogy drawn from the criminal law. I do not think it is
possible to say, at any rate since the decision of this
House in Mordaunt v. Moncrieffe (3) that the two
jurisdictions are other than distinct. The true reason, as
it seems to me, why both accept the same general standard-
proof beyond reasonable doubt-lies not in any analogy but in
the gravity and public importance of the issue with which
each is concerned."
The Act lays down in s. 7 that Courts in all suits and
proceedings under the Act shall act and give relief on
principles and rules which in the opinion of the
(1) (1810) 161 E.R. 648, 649; (1810) 2 Hag. Con. 1, 3.
(2) [1951] A.C. 391, 417.
(3) (1874) 30 L.T. 649.
1421
Court are as nearly as may be conformable to the principles
and rules on which the Court for Divorce and Matrimonial
Causes in England for the time being acts and gives relief.
In our opinion the rule laid down by the House of Lords
would provide the principle and rule which Indian Courts
should apply to cases governed by the Act and the standard
of proof in divorce cases would therefore be such that if
the judge is satisfied beyond reasonable doubt as to the
commission of the matrimonial offence he would be satisfied
within the meaning of s. 14 of the Act. The two
jurisdictions, i.e., matrimonial and criminal are distinct
jurisdictions but the terms of s. 14 make it plain that when
the Court is to be satisfied on the evidence in respect of
matrimonial offences the guilt must be proved beyond
reasonable doubt and it is on that principle that the Courts
in India would act and the reason for adopting this standard
of proof is the grave consequence which follows a finding of
guilt in matrimonial causes.
Gower v. Gower (1) was pressed before us by counsel for the
appellant as to the approach that the court should have to a
matrimonial offence. But in view of the decision in Preston
Jones Case (2) it is unnecessary to discuss that case.
In a suit based on a matrimonial offence it is not necessary
and it is indeed rarely possible to prove the issue by any
direct evidence for in very few cases can such proof be
obtainable. The question to be decided in the present case
therefore, is whether on the evidence which has been led,
the court can be satisfied beyond reasonable doubt that
adultery was committed by the wife with respondent No. 2 at
Patna between July 25, 1950, and July 28, 1950. In our
opinion the facts proved are quantitatively and
qualitatively sufficient to satisfy the test laid down by
the House of Lords in Preston Jones Case (2). The wife went
to Patna and stayed with respondent No. 2 under an assumed
name. They occupied the same room, i.e., room No. 10.
There was undoubtedly a guilty inclination and passion
indicated by the conduct of respondent No. 2 and there is no
contrary indication as to
(1) [1951] 1 All E. R. 804.
(2)[1951] A.C. 391, 417.
1422
the inclination and conduct of the wife. On the other hand
her conduct as shown by the evidence is so entirely
consistent with her guilt as to justify the conclusion of
her having committed adultery with respondent No. 2 and
therefore the finding of the Courts below as to the guilt
should be reversed.
We would, therefore, allow this appeal, set aside the
judgment and decree of the High Court and pass a decree nisi
for dissolution of marriage. As adultery has been proved
respondent No. 2 shall pay the costs in this Court and in
the Courts below.
Appeal allowed.
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