In order to obtain a divorce on the ground of concubinage, the petitioner must prove that the respondent is a concubine of another person. The evidence must be reliable and the letters allegedly written by the respondent to the other person must be properly authenticated and must have come from proper custody.

JUDGMENT : -This appeal is by the wife whose marriage with her husband has been dissolved by an order of the learned Subordinate Judge of Mayuram in an application filed by the husband for divorce under Act 6 of 1949, S.5(1)(b).

2. Section 5(1) (b) is in the following terms:

"(1) Either party to a marriage solemnised before or after the commencement of this Act who has completed eighteen years of age may present a petition to the (concerned court) within the limits of whose jurisdiction the marriage was solemnised......

(b) if the wife, is a concubine of any other man or is leading the life of a prostitute."

In this case the petitioner-respondent did not allege that the appellant was leading a life of a prostitute. He confined His petition for divorce to the ground that his wife, the appellant here, is a concubine of another man, namely, one Pavadai Chettiar. It goes beyond saying that in a case where the petitioner applies to the Court for a divorce on any one of the grounds contained in S.5 of Act 6 of 1949, the burden lies heavily on the petitioner who seeks to establish the case on the grounds on which he seeks the dissolution of his marriage tie with his wife. The question in this case is whether the petitioner, the respondent before me, has succeeded in establishing the particular ground on which he relied for obtaining an order of dissolution of the marriage with his wife. In his petition filed before the learned Subordinate Judge, in paragraph 4 the respondent averred:

"For about one year past the respondent has been frequenting and staying in the house of one Pavadai Chettiar, son of Govindaswami Chettiar Vannia Vaisya, of Karuvazhakarai carrying on the business of oil pressing. The respondent has been keeping the said Pavadai Chettiar as her paramour and the said Pavadai Chettiar has been keeping the respondent as his concubine. When they had both come to Mayavaram at 2 p.m. on 24-2-1951, the petitioner and his people found them at 12 O clock in the night and took them to Karuvazhakkarai."

In the course of the trial of this petition it is significant that the respondent failed miserably to adduce any evidence in proof of his avertment in the first part of paragraph 4 of his petition. If he had succeeded in proving his allegation in the first part of that paragraph, he should have been entitled to the relief which he had applied for.

3. It is the finding of the learned Subordinate Judge that the respondent however has succeeded in establishing that the appellant had keen keeping the said Pavadai Chettiar. as her paramour and that the said Pavadai Chettiar had been keeping the appellant as his concubine. According to the learned Subordinate Judge, four pieces of evidence would seem to prove the fact of this concubinage of the appellant with the said Pavadai Chettiar. The first piece of evidence referred to in paragraph 5 of his judgment is that of P.W.1, the husband, as having seen his wife and Pavadai Chettiar in a compromising situation. The learned Subordinate Judge has rejected this part of the evidence of P.W.1, the husband on the ground that it is not mentioned in the petition specifically and that it is not spoken to by the Sub-Inspector, P.W.7 or any other witness for the matter of that. Therefore the mention by P.W.1 of his having seen the appellant and Pavadai Chettiar in a compromising situation has not been accepted by the learned Subordinate Judge. I should think he has acted very correctly in having rejected that part of the evidence of P.W.1.

The next piece of evidence referred to by the learned Subordinate Judge and relied upon by him appears to be the deposition of P.Ws.2 and 4 to 6 to the effect that the appellants father and Natesa Padayachi, went and complained to the witnesses that the respondent was missing, that thereafter there was a search party consisting of these witnesses. P.Ws.2 and 4 to 6 and that they went by train and some by cycles and searched at various places including three cinemas