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HIGH COURT OF CALCUTTA
Laik, M. M. Dutt, Sen Gupta
SUBRATA KUMAR BANERJEE - Appellant
Versus
DIPTI BANERJEE - Respondent
Divorce Suit 19 Of 1967
Decided On : JUNE 04, 1973
INDIAN DIVORCE ACT, 1869 - SECTION 14 - CONDONATION - REVIVAL OF CONDONED ADULTERY - STANDARD OF PROOF - ADULTERY - INTERPRETATION.
Fact of the Case:
Petitioner-husband filed for divorce on the grounds of adultery committed by respondent-wife with co-respondent. The wife denied the allegations and claimed that the husband was a man of wild temperament and wicked nature. The trial court found that the wife committed adultery with the co-respondent at various places and passed a decree nisi for dissolution of marriage.
Finding of the Court:
The High Court held that the petitioner failed to establish the allegation of adultery against the respondent at any time and at any place. The court found that the evidence on record did not meet the required standard of proof beyond reasonable doubt and that the circumstances relied upon by the petitioner were not sufficient to infer adultery. The court also held that the act of adultery committed by the respondent and co-respondent at Bombay and at several hotels at Calcutta having been condoned, the same did not revive after the respondent began to lead a fast life and again committed adultery with co-respondent at New Alipur.
Issues: 1. Whether the petitioner had established the allegation of adultery against the respondent? 2. Whether the act of adultery committed by the respondent and co-respondent at Bombay and at several hotels at Calcutta having been condoned, the same revived after the respondent began to lead a fast life and again committed adultery with co-respondent at New Alipur?
Ratio Decidendi: 1. The standard of proof required in cases of adultery is beyond reasonable doubt. In the absence of direct evidence, circumstantial evidence must be sufficiently strong and conclusive to base a finding of adultery on the same. 2. Condonation of past matrimonial offences is impliedly conditioned upon the future good behaviour of the offending spouse. However, the question of revival of condoned adultery is not specifically dealt with in the Indian Divorce Act, 1869. The court held that in the instant case, the evidence did not establish that the respondent committed adultery after the condonation by the petitioner.
Final Decision: The High Court set aside the decree nisi passed by the trial court and dismissed the petition for divorce.
( 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 Subrata Kumar Banerjee and his wife Dipti Banerjee. The husband filed the petition for dissolution against his wife on the allegation that she committed adultery with respondent No. 2. From the marriage certificate which has been produced in this case, it appears that the petitioner was married to the respondent No. 1 on the 9th of March, 1953 at the Duff Church, Calcutta, according to Christian rites. The marriage was consummated and as a result of the same, respondent No. 1 gave birth to three children. The first child of the marriage was a still born male child born on 4-2-54. The second child, a daughter Sudipta, was born on 17-1-55 and the last one the son Sudip, was born on 1-3-57.
( 2 ) UPON the evidence which has been believed by the Court below and which has not been controverted before us, the husband and the wife lived together for some years after their marriage and their last matrimonial home was at premises No. 144, Rashbehari Avenue, P. S. Tollygunge, within the jurisdiction of the District Judge, 24-Parganas. It is an admitted case that both the petitioner and his wife have been living in India since their birth and both of them are Indian Christians. Thus the District Judge, 24-Parganas had jurisdiction to entertain such a suit.
( 3 ) THE petitioner's case is that they came to know co-respondent in June, 1960 while they went to Delhi and staying at Broadway Hotel, co-respondent went there in connection with his work of M/s. Jatia Industries; that they returned back to Calcutta by the same train and their acquaintance grew to an intimacy; that the petitioner went to Delhi on transfer and stayed there with his family till June, 1963; that the respondent had to stay at Delhi till December, 1963 as she was employed there, she was, however, persuaded to come to Calcutta in December, 1963.
( 4 ) THE petitioner's further story is that they accidentally came to meet co-respondent in February, 1964 in a restaurant and their old friendship revived. The petitioner found Mr. Shaw the corespondent, to visit his house in his absence and he also noticed change in behaviour of his wife; sometimes his wife exposed herself in showing her abnormal attraction to the co-respondent. The petitioner raised objection to the said behaviour of his wife but it had no effect.
( 5 ) ACCORDING to the petitioner he was very ill from 27th of April, 1964 suffering from stomach trouble. At that time while he was undergoing through a physical and mental agony the wife respondent disclosed that she required an immediate operation and as such she decided to take admission in the Harrington Nursing Home. On being questioned she gave out that the entire arrangement had been made by the co-respondent Mr. Shaw and that he would bear all the expenses. Though the petitioner did not agree to that proposal she left home in the company of Mr. Shaw and was admitted in the said Nursing Home on 30-4-64. The wife had to undergo an operation and remained confined in the Nursing Home for about a month. The petitioner said that after his recovery, he went to the Nursing Home to enquire about his wife but he found himself an unwanted person there. On 2-6-64 to his utter surprise he was told by his wife that she was going to Bombay and not returning home as previously arranged. He was shocked to see this reckless behaviour of his wife and he was more shocked to know that she left Calcutta by plane with Mr. Shaw for Bombay where both of them stayed together. He got a trunk call from his wife informing him as to her arrival at Dum Dum Airport from Bombay with a request to attend. He did not go to Dum Dum Airport. The wife and Mr. Shaw without coming to their home at Calcutta, went to Gopalpore on 15-6-64.
( 6 ) THE petitioner alleged that the wife committed matrimonial offence by committing adult
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