M. Anantanarayanan, O.C.J.-

This Letters Patent Appeal has been instituted by one Subbarama Reddiar, the respondent before Venkatadri, J., in C.M.S.No. 9 of 1964, from the judgment and decree of the learned Judge. We may very briefly state that the proceeding before the learned Judge was of the nature of a Second Appeal, in respect of a petition under section 10 (f) and section 13 of the Hindu Marriage Act (XXV of 1955), for a decree for judicial separation originally before the learned Principal Subordinate Judge of Chingleput.

The learned Principal Subordinate Judge of Chingleput went into the facts of the evidence before him, elaborately on the merits, and held that the act of adultery alleged by the husband (appellant) against his wife Saraswathi Ammal (Respondent) on the occasion in question, was legally proved, and hence that the husband was entitled to a decree for judicial separation Under section 10(f) of the Hindu Marriage Act. The matter went up on appeal to the learned District Judge of Chingleput (C.M.A. No. 64 of 1962), and the learned District Judge of Chingleput confirmed the judgment of the Court below in first appeal, in a judgment of some length, which again proceeds to an analysis of the evidence. There can be no doubt that the appeal against this order before the learned Judge (Venkatadri, J.) was of the nature of a Second Appeal. That was held by Kailasam, J. in Sathappa Chettiar v. Ammaponnu1and if we may say so with respect we have no doubt whatever that Kailasam, J., is correct in his view. Though the proceeding before him was thus of the nature of Second Appeal and the jurisdiction of the learned Judge Venkatadri, J., was indisputably restricted by virtue of section 100, Civil Procedure Code, the learned Judge neverthless has differed from both the Courts below and allowed the Second Appeal after the citation of certain English decisions and a further analysis of the facts of evidence both with regard to the probabilities arising on that evidence and the credibility of the witnesses.

Two main questions therefore arise before us for our determination. It is strenously contended by learned Counsel for the appellant (Sri V. Thyagarajan) that in view of the explicit and categorical decisions of the Supreme Court and of this Court to which we shall presently refer the learned Judge (Venkatadri, J.) had really no jurisdiction to proceed into questions of fact to reassess the evidence and to come to any different conclusion. If that is the situation at law the learned Counsel for the respondent is unable to contend that there is any authority for holding that the situation is different because the question of fact is the question of an act of adultery which has sometimes been characterised as a fact of quasi-criminal character and therefore requiring a high degree of proof. The second question is apart from this question of the ambit of interference in Second Appeal whether there is any error of law or misapplication of the principles of law in the judgments of the Courts below, in their conclusion that the act of adultery was proved against the wife, which might conceivably justify interference with the decree by this Court in Second Appeal. If both these questions are to be answered in favour of the appellant, it would inevitably follow that we must allow this appeal and reverse the decision of Venkatadri, J.

As regards the first proposition, the matter is really not in doubt, and must be regarded as set at rest by numerous decisions of the Supreme Court and of this Court of which it is sufficient to refer to the following:

In Muthia Asari v. Madasami Asari1, a Bench of this Court, of which one of us was a party, had occasion to discuss the same principle, and it was laid down that the High Court, in exercise of its jurisdiction with regard to Second Appeals, will have no power to interfere with an explicit finding of fact based on the appreciation of evidence even if the High Court be of the view that the find

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