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HIGH COURT OF CALCUTTA
P. B. Mukharji
ADELAIDE MANDE TOBIAS - Appellant
Versus
WILLIAM ALBERT TOBIAS - Respondent
Matrimonial Suit 24 Of 1966
Decided On : MARCH 8, 1967
ADULTERY - DESERTION - SECTION 10 OF THE INDIAN DIVORCE ACT, 1869 - STANDARD OF PROOF - DELAY IN FILING PETITION - WIFE'S RIGHT TO CLAIM RELIEF - INTERPRETATION OF SECTION 3(6) AND 3(9) OF THE INDIAN DIVORCE ACT, 1869 - MEANING OF "DESERTION" - EFFECT OF DELAYED PRESENTATION OF PETITION ON THE CHARGE OF DESERTION - ENGLISH LAW ON DESERTION - APPLICABILITY OF ENGLISH LAW IN INDIA - DISTINCTION BETWEEN DESERTION AND CRUELTY - STANDARD OF PROOF IN ADULTERY CASES - RELEVANCE OF CIRCUMSTANTIAL EVIDENCE - BURDEN OF PROOF.
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 never returned. The wife alleged that the husband committed adultery with various women of the town since the desertion. The husband did not enter appearance and the Court requested Mrs. Monjula Bose to act as Amicus Curiae to help the Court in examining the evidence and arguing the points of law.
Finding of the Court:
1. The evidence of the wife and the private detective established that the husband deserted the wife in 1940 and never returned. The husband did not contest the evidence, hence it was held that the desertion was proved in fact and law. 2. The delay in filing the petition for divorce did not defeat the wife's right to claim relief as the reason for the delay was that she had to bring up two daughters and a son during those years. 3. The evidence of the wife and the private detective was sufficient to establish adultery on the part of the husband. 4. The standard of proof in adultery cases is the same as in other civil cases, and the Court must be satisfied on the evidence that the case for the petition has been proved.
Issues: 1. Whether the desertion was proved in fact and law? 2. Whether the delay in filing the petition for divorce defeated the wife's right to claim relief? 3. Whether the evidence was sufficient to establish adultery on the part of the husband? 4. What is the standard of proof in adultery cases?
Ratio Decidendi: 1. Desertion is defined under Section 3(6) 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. Delay in filing a petition for divorce does not defeat the charge of desertion, as desertion is a continuing matrimonial offence and the cause of action is not complete until the petition for divorce is presented. 3. Adultery can be proved by circumstantial evidence, and the Court must be satisfied on the evidence that the case for the petition has been proved. 4. The standard of proof in adultery cases is the same as in other civil cases.
Final Decision: Decree nisi for dissolution of marriage was granted as prayed by the petitioner wife and the respondent husband was ordered to pay the costs of the proceedings to the petitioner.
( 1 ) THIS is a wife's petition for divorce on the ground of "adultery coupled with desertion without reasonable excuse for 2 years or upwards".
( 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 Secred Heart of No. 3 Dha-ramtala Street, Calcutta within the jurisdiction of this Court. The Marriage Certificate has been proved and marked as Ext. A in this 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 John Andrey Tobias, daughter born on March 20, 1936; Daphne Tobias, daughter born on August 26, 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 his 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 Crooker 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 was 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 oi 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 the 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 it made in para 7 of the petition which states that on January 6, 1966 at 90-A, 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, 1968 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 Co. Ltd. , at 63, Netaji Subhash 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 poi
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