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HIGH COURT OF CALCUTTA
P. B. Mukharji
ADELAIDE MANDE TOBIAS - Appellant
Versus
WILLIAM ALBERT TOBIAS - Respondent
. Of .
Decided On : March 8, 1967
DIVORCE - ADULTERY COUPLED WITH DESERTION - DESERTION FOR 26 YEARS - DELAY IN FILING PETITION - STANDARD OF PROOF FOR ADULTERY - INFERENCE OF ADULTERY FROM CIRCUMSTANCES - WIFE GRANTED DECREE NISI FOR DISSOLUTION OF MARRIAGE.
Fact of the Case:
The wife filed a petition for divorce on the ground of "adultery coupled with desertion without reasonable excuse for 2 years or upwards." The husband deserted the wife in 1940 and had not returned since then. The wife alleged that the husband had committed adultery with various women of the town since the desertion. The husband did not enter appearance and the Court appointed an amicus curiae to assist the Court in the proceedings.
Finding of the Court:
The Court held that the husband had deserted the wife without reasonable excuse for 26 years. The Court also held that the wife had proved adultery on the part of the husband on the basis of the evidence of a private detective who had seen the husband entering a flat with a woman of the town. The Court rejected the husband's argument that the delay in filing the petition for divorce defeated the wife's right to claim relief, holding that the delay was explained by the fact that the wife had to bring up two daughters and a son during those years.
Issues: 1. Whether the husband had deserted the wife without reasonable excuse for 2 years or upwards? 2. Whether the wife had proved adultery on the part of the husband? 3. Whether the delay in filing the petition for divorce defeated the wife's right to claim relief?
Ratio Decidendi: 1. Desertion is defined under Section 3 (9) of the Indian Divorce Act as implying "an abandonment against the wish of the person charging it." Leaving the matrimonial home by consent or separate living by mutual consent, express or tacit is not "desertion" within the meaning of this law. 2. Adultery is essentially an act which can rarely be proved by direct evidence. It is a matter of inference and circumstance. In the present case, the Court inferred adultery from the fact that the husband had been seen entering a flat with a woman of the town. 3. Delay in filing a petition for divorce does not necessarily defeat the right to claim relief. In the present case, the Court held that the delay was explained by the fact that the wife had to bring up two daughters and a son during those years.
Final Decision: The Court granted a decree nisi for dissolution of marriage as prayed by the petitioner wife.
( 2 ) THE wife Adelaide Mande Tobias states in the petition the following facts. She was married on May 15, 1935 to the respondent William Albert Tobias at the Church of the Sacred Heart of No. 3 Dharamtala Street, Calcutta within the jurisdiction of this Court. The Marriage Certificate has been proved and marked as Ext. A. , in theis suit. Both the wife and the husband are domiciled in India and are Roman Catholic Christians.
( 3 ) AFTER marriage they lived and cohabited at 25, Dharamtalla Street and also at 9, Crooked Lane, Calcutta, both within the jurisdiction of this Court. There are three issues of the marriage now living one is Joan Andrey Tobias, daughter born on March 20, 1936; Daphne Tobias, daughter born on August 28, 1938; and Harold Tobias, son born on April 26, 1940. It was immediately after the birth of the son that the respondent-husband is alleged to have deserted the petitioner. The matrimonial home was of a very short duration, lasting barely five years.
( 4 ) THE petitioner's case is that the husband's desertion commenced in 1940. Therefore, this desertion has continued for about 26 years before the presentation of the petition. It is said in the petition for divorce that in June 1940 the husband left her and packed his bags and baggages and for ever left the matrimonial home, then at 9 Crooked Lane, Calcutta with the intention of never again coming back to the petitioner for the purpose of cohabitation with her. It is alleged in the petition that he has ever since remained separate and that the husband has refused all the requests of the petitioner to return to her. She has supported this case by her evidence given in this Court.
( 5 ) APART from desertion, the other allegation of the wife made in paragraph 6 of her petition is that the respondent ever since the desertion in 1940, frequently committed adultery with various women of the town, whose names and identity were unknown to the petitioner. This allegation makes it difficult for the Court to find out why in such circumstances, where the husband not only deserted wife but also committed adultery for so many years with the women of the town, that the wife was patient enough to take 26 long years to bring the present proceedings for divorce. The question is : why did not she come much earlier? This Court had throughout these proceedings a very anxious time to find out a plausible answer to this question.
( 6 ) THE other allegation of adultery is made in paragraph 7 of the petition which states that on January 6, 1966 at 90a, Dilkhusa Street, Calcutta the respondent committed adultery with a woman of the town whose name and identity are unknown to the petitioner. It is this incident of January 6, 1966 that the petitioner has tried to prove by calling a private detective by the name of Joseph Okeeffe, whom she had employed. I shall presently discuss that evidence along with the evidence of the petitioner given in these proceedings.
( 7 ) THE necessary averment is made that she has not been accessory to or connived at or condoned the said adultery alleged in the petition.
( 8 ) CONTINUING with the account of facts in the petition for divorce it is alleged that the respondent was employed by Jessop and Company Limited at 63 Netaji Subhas Road, Calcutta and to the best of the petitioner's belief was in receipt of a monthly pension of Rs. 350 and is also possessed of other assets and other properties assessed by the petitioner to be of the value of Rs. 8000. On that basis and on that allegation there is also a claim for maintenance. Mr. Dutt, learned Counsel for the wife, has given up the claim for maintenance. The wife in her evidence before the Court in answer to question 51 has also said that she is not pressing her claim for maintenance. Therefore, it will not be necessary to pursue this point of maintena
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