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 vs A Vaidanatha Iyer A I R 1958 section C 61 and Stephen Seneviratne vs The King A I R 1936 P C 289
NC 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 vs Loveden   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 vs Preston Jones L R  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 vs Douglas 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 vs Allen 1894 p248 approving Loveden vs Loveden
Counsel then cited Davis vs Davis 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 vs Churchman  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 vs Gower  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 vs Moncrieffe section 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 vs Ginesi Applying the dictum of Lord Merriman in Churchman vs 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
March 10
Tile Judgment of the Court was delivered by KAPUR J This is an appeal with a certificate under section 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 1943 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 ie 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 exhibit 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 section 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 vs A Vaidanatha Iyer Purvez Ardeshir Poonawala vs The State of Bombay2 Stephen Seneviratne vs 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
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
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
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
What was she like young Memsaheb or what  A
She was not very old but she was old 1 A T R  64
2 Cr A
I 22 Of 1954 decided on December 20 1957
3 AIR 1936 PC 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 PW 5 was asked about it as follows Q  What are the hours of work of the sweeper  A
He comes at 7 am and he leaves in the evening
He sometimes goes away at about 11 and 11 30 amor 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 am to 11 am  There is also evidence which has not been rejected that morning tea was served to all the three ie 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 exhibit 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
11 and 12
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 exhibit 6 goes the hotel charges for her stay were paid by  Charles Chaplin  ie 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 PW 8 and TH O Conior PW 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 ie 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 exhibit 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 section 14 of the Act which provides section 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 section 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 vs 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 vs 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 vs 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 section 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   649 1810 2 Hag
Con 1 3
2  417
3 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 section 14 of the Act
The two jurisdictions ie matrimonial and criminal are distinct jurisdictions but the terms of section 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 vs 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 ie 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 21951 AC 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


Summary:
Mainavati who had purchased the premises in question at a court sale conveyed the same by sale in favour of Gopinath
The appellant who was in occupation attorned his tenancy in favour of Gopinath
Gopinath in turn sold the property in favour of Chhaya Gupta the third respondent
The appellant tenant on being asked to attorn the tenancy in favour of Chhaya Gupta declined to do so and assailed not only the derivative title of the third respondent to the property but also the validity of the sale in favour of Gopinath himself on the ground that Mainavati had not acquired the totality of all rights and interests in the property and as such her title was defective
This act of disclaimer of the title of Gopinath to whom the appellant had attorned was the foundation of proceedings in ejectment
The High Court dismissing the appellant s writ petition upheld the order of ejectment made by the Courts below
Before this Court it was contended by the appellant 1 that the High Court was in error in its view that the stand taken by the appellant amounted in law to a denial of title of the landlord and 2 that the view of the High Court on the scope of a tenant s estoppel was erroneous
Dismissing the appeal it was  HELD 1 The law as to the estoppel of a tenant under Section 116 of the Evidence Act was a recognition and statutory assimilation of the equitable principles underlying the doctrine of estoppel in rela 248 tion to tenants
The Section was not exhaustive of the law of estoppel
The section inter alia predicated that no tenant of immovable property during the continuance of the tenancy would be permitted to deny that the landlord of such tenant had at the beginning of the tenancy title to such property
251B C 2 There could be a denial of the title of his landlord without the tenant renouncing his own character as a tenant where for instance he had set up a plea of Jus tertii
254B 3 The derivative title of the third respondent was not denied on any other ground than the one that the vendor Gopinath to whom appellant had attorned had himself no title the implication of which was that if appellant could not have denied Gopinath s title by virtue of the inhibitions of the attornment he could not question third respondent s title either
What appellant did indeed amounted to a denial of title which appellant was precluded from doing on the general principles of estoppel between landlord and tenant
254C D 4 Having regard to the findings of fact recorded by the High Court it appeared to be a clear case which attracted the grounds for eviction under section 3 1 of the Uttar Pradesh Temporary Control of Rent and Eviction Act 1947
254E F Kumar Krishna Prasad Lal Singha Das vs Baraboni Coal Concern Ltd  referred to